TNAG-2173-FCO40-3110-Hong-Kong-Bill-of-Rights-1990 — Page 230

Such

4. Section 5 (second and third sentences) of the Colonial Laws Validity Act (CLVA) does not seem to us to be relevant. Our proposed clause would not affect the constitution, powers or procedure of Legco. It is merely an interpretation clause, which provides that if Legco chooses to express itself in certain words, the courts shall interpret those words in a particular way, whereas if Legco chooses not to use those words, the courts shall interpret the omission in another way. (It is thus a direction addressed to the courts, not a fetter on Legco.) a Clause would be substantially different from the 1929 amendment at issue in Trethowan, which did fetter the powers of the legislature by preventing it enacting certain legislation altogether in the absence of approval of the electors by referendum. That did affect the powers and procedure of the legislature and therefore depended upon the power conferred by S5 (second sentence) for its validity. The 1930 Bills in issue in Trethowan also concerned the power of the Legislative Council and depended likewise upon S5 (second sentence) for their validity. Since our clause does not require authorisation by S5 (second sentence), the proviso in S5 (third sentence) does not come into play, so the words "manner and form" would not seem to have any particular significance.

5.

Our proposed clause would be enacted under the general power to make ordinances for the peace, order and good government. It would be an ordinary Ordinance without entrenchment, and in this respect would differ from the Canadian Bill of Rights which can only be repealed or amended by constitutional procedures. Our clause would not prevent repeal or amendment of the Bill of Rights by Legco legislating in the ordinary way, provided that such an intention is made sufficiently clear and express. We would expect the courts to apply the same principles of interpretation as have been applied in relation to slection 2(4) of the European Communities Act 1972 (see, for example, Macarthy v. Smith [1979]3 All ER 325 (A)]].

6. For the same reasons we see no inconsistency with the Draft Basic Law. The change would not affect the powers of Legco or its voting procedures (we do not agree that a fetter of the kind at issue in Trethowan's case could be considered inconsistent with Article 74).

7. If, contrary to the above view, the enactment of our proposal would require extension of the power in S5 CLVA (second and third sentences) to Hong Kong, we would have thought that