TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 168

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6.

Freeze

Clause 1(2): Sub-section (2) is apparently designed to exclude the operation of Clause 3 (1) and (2) for two years. Clause 3(1) and (2) deal with the relationship of the Bill of Rights to previous laws and, in short, say that if the previous law is capable of being consistent it should be read as consistent with the Bill of Rights and if it is not capable of being consistent with the Bill of Rights it shall, to that extent, be repealed. That is, broadly, the common law doctrine of implied repeal which would apply even if there were no express provision as regards the effect of a later law on an earlier one. So what is the effect of suspending the operation of subsections which make the same provision expressly? There are one or two possibilities: first, the purported suspension has no substantive effect because the common law rule of construction would operate to the same end; alternatively are the courts to throw up their hands in despair because there is a conflict between old and new law and they are left with no instructions as to how to resolve that conflict? I cannot believe the courts would come to the latter conclusion.

7.

I assume that Hong Kong wants this freeze period so that it can adapt existing laws to avoid too traumatic a consequence if the courts were to hold some earlier laws were inconsistent with the Bill of Rights, and they are unsure at this stage of the extent of the adaptations which will be necessary to avoid this. However, I would have thought that, by now, Hong Kong should have a fairly accurate idea of what needs to be done. I therefore suggest that they consider the following. Abandon the two year freeze period but delay the Coming into force of Part III of the Ordinance (but not its enactment) for, say, 6 months; give the Governor-in-Council power (under a clause which would come into force

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immediately) by Order to amend any existing law to ensure conformity with the Bill of Rights. It would be possible (but not necessary) to put a time limit on this power of delegated legislation and also to provide that Orders are required to be laid before, and possibly affirmed, by the Legislative Council. Hong Kong might consider adapting section 5(2) of the Bermuda Constitution Order 1968 (SI.1968 No 182) for this purpose adding, if desired, a provision for affirmative resolution by the Legislative Council.

8.

Clause 2 (3) It is not clear to me why it is necessary to disapply the rules of interpretation applicable to other ordinances and paragraph (b) of this sub-section is unnecessary and positively undesirable. It is clear from the authorities (see Halsbury's Laws, Volume 44, paragraph 870 and particularly Rivestone Meat Co Pty Ltd v. Lancashire Shipping Co Ltd [1961] AC807) that the courts can and do take into account the international origin of an international agreement of this kind and the need for uniformity in the

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