TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 12

CONFIDENTIAL

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MDHIAN 6788

LEGISLATION IN ORDER TO DEAL WITH THESE TROUBLESOME

RIGHTS: AND

(D) LEAVE THE BILL AS IT IS BUT DELAY IMPLEMENTATION OF THIRD

PARTY RIGHTS IN RESPECT OF THE TROUBLESOME ARTICLE 14

ONLY.

ON BALANCE WE FAVOUR (D), AS (A) AND (B) WOULD UNDERMINE OUR POSITION THAT THE BILL ATTEMPTS TO IMPLEMENT THE ICCPR COMPREHENSIVELY AND (C) MAY BE SAID TO HAVE DEFERRED THE COMMENCEMENT OF CERTAIN RIGHTS WHERE ESTABLISHED EFFECTIVE REMEDIES ALREADY EXIST. THERE IS, HOWEVER, ALSO THE QUESTION OF WHETHER THE DELAY IN IMPLEMENTING ARTICLE 14 SHOULD ALSO APPLY TO ACTION

AGAINST THE GOVERNMENT. WE ARE CONSIDERING THIS FURTHER AND WILL SEEK GUIDANCE FROM EXCO.

9.

WE ARE GRATEFUL TO YOU FOR REMINDING US OF THE STANDARD COMMONWEALTH REMEDY AS EXEMPLIFIED BY SECTION 15 (1) OF THE BERMUDA CONSTITUTION. BUT WE HAVE RESERVATIONS ABOUT GIVING THE COURTS UNLIMITED POWERS TO CREATE NEW REMEDIES BY WAY OF QUOTE REDRESS UNQUOTE. AS MENTIONED IN PARAGRAPH 6 ABOVE WE ARE RECONSIDERING THE

RORT REMEDY IN THE LIGHT OF THE SUBMISSIONS.

AMENDMENT TO LETTERS PATENT (PARA 8 OF TUR)

10.

THE ASSISTANT SOLICITOR GENERAL (DYKES) HAS FAXED TO LEGAL ADVISERS THE VIEWS OF OUR LEGAL DEPARTMENT ON YOU PROPOSED DRAFT AND OFFERED AN ALTERNATIVE VERSION. WE HAVE RECEIVED THE REPLY FROM BARRETT AND ARE NOW EXAMINING YOUR NEW PROPOSED AMENDMENT.

FREEZE PERIOD (PARA 9 OF TUR)

.

11 WE NOTE YOUR COMMENTS ABOUT THE EFFECTIVENESS OF CLAUSE 3 BUT

WE FEEL THAT WHEN CLAUSES 1 AND 3 ARE READY TOGETHER AND IN THEIR ENTIRETY THE DESIRED PURPOSE OF FREEZING EXISTING LEGISLATION IS ACHIEVED. PLEASE SEE IN PARTICULAR CLAUSE 3(4).

JURISDICTION OF THE COURTS (PARAS 10-11 OF TUR)

12. THE SUGGESTION AS TO WHICH COURTS SHOULD HAVE JURISDICTION

OVER BILL OF RIGHTS ISSUES HAS BEEN NOTED. ALTHOUGH THERE IS MUCH TO COMMEND THE PROPOSAL THAT THE SUPREME COURT SHOULD HAVE THE PRIMARY JURISDICTION AND THAT INFERIOR COURTS AND TRIBUNALS WOULD HAVE TO REFER BOR MATTERS TO THAT COURT WE FEEL THIS WOULD NOT WORK

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CONFIDENTIAL