TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 165

CONFIDENTIAL

A

Mr McLaren

Back to me

109

Discussed at length

Ms Major, HKD

with

My Rifoot.

Bratt hub.

HONG KONG BILL OF RIGHTS

Pm

16/3

HKD2411.

NECE

From:

24 MAY 1990

Date:

Paul Fifoot

Legal Advisers

10 May 1990

CC Mr Burns, AUSS

RY

Mr Paul, HKD

Mr Whomersley

Ms Barrett

GISTRY

Tron Takuar

1. The establishment of a Human Rights regime gives rise to a considerable number of issues as Canadian experience and the various proposals made in the United Kingdom have shown. There are fundamental differences in the various possible approaches. However, I do not think that Hong Kong had much choice except to start by enacting, with essentially editorial changes, the text of the ICCPR and this is the approach adopted in their Consultation Bill. There is, therefore, no purpose in examining the comparative merits of other approaches or whether the weaknesses of the present approach require fundamental changes. So far as the FCO is concerned, what we should seek to do now is to build on the approach that has been adopted. In this minute my aim is, as shortly as possible, to identify the defects in and difficulties arising from the present text and to indicate possible solutions. If you or Hong Kong require a more detailed explanation on particular points, I will do my best to supply it.

The Bill of Rights (clause 8)

2.

The Consultation Bill does not always repeat the relevant provisions of the Covenant word for word and it is right not to do so. It is important (for "Chinese" reasons if none other) that, so far as possible the Bill of Rights should be directly applicable and that neither in form nor effect should it appear that it consists of legal principles which require the enactment of some other law to give them force. It may be repetitive of other laws or supplement or be supplemented by other laws, but it must be capable of being directly invoked in the courts to establish wholly or in part the remedy or relief it purports to afford. This requires some modification of the Convention text and I do not think that the draftsmen of the Bill have gone far enough to make the Convention text suitable as directly applicable law.

In the attached text, I have made a number of additional changes in red ink to the Bill of Rights and have set out on the right-hand side of the page brief notes of the reasons for these changes. Most of them are of a substantive

nature.

1PFABM

CONFIDENTIAL

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