TNAG-2173-FCO40-3110-Hong-Kong-Bill-of-Rights-1990 — Page 229

Foreign and Commonwealth Office

London SW1A 2AH

Telephone 01-

270 3381

اك

Frank Stock Esq QC Solicitor General

Attorney General's Chambers 41F High Block, Govt Offices Queensway, 66 Queensway HONG KONG

Your reference

Our reference

Date

JBLABB

21 February 1990

; HKD 24EGISTRY

RECEIVER IN REGISTRY

- 9 WR 1990

DESK OFF

INDEX

REGISTRY Action Taken

36

BILL OF RIGHTS

1.

Thank you for your letter of 9 February addressed to Mr Fifoot, which has been passed to me in his absence. I am sure that Mr Fifoot will wish to reply personally after his return in March, but I hope that in the meantime the following comments might be of assistance.

2.

The reasons for our serious misgivings about the inclusion of the provision on certification of legislation by the Attorney General are as follows. First, we doubt whether it is realistic in practical terms to commit the Attorney General to such an onerous task. Secondly, in our view it is in principle impossible for any one to assess the compatibility of draft legislation with the Bill of Rights in the abstract. Inconsistencies may only become apparent in the light of concrete cases. (Certainly our experience of the European Convention on Human Rights would support this conclusion.). To issue this kind. of certificate would involve the performance of a judicial function in respect of an indeterminate category of cases in advance of hearing any of them. Thirdly, in the case of government legislation, surely if the Attorney General had taken the view that a bill was incompatible with the Bill of Rights, it is hardly likely that it would have been presented to Legco at all? Fourthly, in the case of non-government bills; there must be some doubt as to whether the view of the Attorney General would be seen by the public to be impartial!

27) 3. Our proposed substitution for Clause 4 in tel i70 was simply a suggestion as to one possible method of achieving the desired protection against future inconsistent legislation which we drafted with the requirement of the BL very much in mind.