TNAG-2173-FCO40-3110-Hong-Kong-Bill-of-Rights-1990 — Page 9

CONFIDENTIAL

ATTORNEY GENERAL'S CHAMBERS

4/F., HIGH BLOCK

QUEENSWAY GOVERNMENT OFFICES

65 QUEENSWAY, HỒNG KÔNG

Telex: 81710 HKAGC HX

Fax: 852-5-86527

8896720

9 February 1990

BASE: $1710 HEAŬC HX

MURIEM + 152-5-9637720

AGC ADV/638 00C VII

**** Our Ref.:

**** Your Ref.:

TSN Tel. No.:

867 2003

Mr. P. Fifoot,

Foreign and Commonwealth Office,

London.

Dear

Pame

1

Bill of Rights: Manner and Form

You will know that there is a breathing space in relation to consideration of the proposed Bill, and I would like to take the opportunity of canvassing with you the difference of approach between us in relation to the permissible width of an interpretation clause. I refer in particular to FCO Telncs 205 and 219. As I point out in paragraph 6 below, there is a political difficulty with the suggested approach, but I would welcome your response to our analysis of the position in law.

2.

In essence, we do not appear to be ad idem with you on the ambit of the manner and form concept. It seems to US that section 5 of the Colonial Laws Validity Act (CLVA) permits à representative legislature to make laws respecting its constitution, powers and procedures so long as they come within the proviso of having been passed in such manner and form as may be prescribed by an Act of Parliament, Letters Patent, Order in Council or colonial law. CLVA does not confer like powers on a non-representative legislature (Hong Kong), although such a legislature might enact laws respecting its constitution, powers and procedures if empowered by some other instrument to do so. (see Chenard v. Arissol (1949) AC 127 at 132-133).

3.

We have considered whether there are any existing instruments which we could use to circumvent the prohibition implied

section 5 CLVA that the Legislative Council cannot enact laws relating to its constitution, powers and procedures. We have considered the Hong Kong (Legislative Powers) Order 1989 which gives us the power to amend or repeal UK legislation to give

give effect to an international agreement which applies to Hong Kong and for connected purposes'.

This would mean amending section 5 CLVA to put us in the same position as representative legislature in order to enact an

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