TNAG-2176-FCO40-3113-Hong-Kong-Bill-of-Rights-1990 — Page 31

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- 5 SEP 1990

From: Paul Fifoot Date: 29 August 1990

CC: Mr Paul

398

Mr Sainty

210

Ms Barrett

Tel out

fa PM 3/17

HK TELNO 2603: BILL OF RIGHTS

1.

I agree with the considerations set out in para 2(A), (B) and (C) of TUR. However, unlike para 3 of TUR, I do not think that there could be a reference in the BOR to a presently non-existent, but proposed, provision of the Letters Patent. The Letters Patent provision should be made before the BOR is finally passed by LEGCO and this probably means that the amendment to the Letters Patent must be:

(a) be made in October; and

(b) include provision for a freeze period.

2. As regards the text of an addition to the BOR, I think it would be desirable to examine first the acceptability of provisions of a titular or preambular nature, rather than immediately propose, as is apparently the case in TUR, substantive provisions (which, in any event, are, in the terms proposed, both self-evident and naive). My suggested approach could also help to minimise the constructional

Two possibilities for a reference (and a legally economical one at that) to the Letters Patent (as amended) in the BOR are as follows:

&xploud problems proposed in TUR.

(a) Amend the Long Title to insert before "implement" the following: "Give effect to Article VII (3) of the Hong Kong Letters Patent 1917 to 1990 so as to";

(b) Add a second preambular paragraph as follows:-

"And whereas provision is made in Article VII (3) of the Hong Kong Letters Patent 1917 to 1990 for the implementation of the said Covenant through the laws of Hong Kong";

In either case, all that would be required in the "midnight adaptation legislation" would be to substitute "Article 39 of the Basic Law" for "Article VII (3) of the Hong Kong Letters Patent 1917 to 1990". In each case the formula is such as to be clear that the Letters Patent/Basic Law is the

K15ABE

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