TNAG-2177-FCO40-3114-Hong-Kong-Bill-of-Rights-1990 — Page 16

Tel issued.

Mr Fifoot is

going under

to send this

From:

personal cover

to Mr Stock.

Ms

Мајок,

RM 29/1

HKD

374

376

Paul Fifoot

Legal Advisers

Date: 28 November 1990

CC Ms Foakes

MS Barrett

HK IZGI

RECE!

29 NOV 1990

DECK

INDEX

HONG KONG TELNO 3514: BILL OF RIGHTS

1.

As regards the "midnight adaptation legislation" and the text which would result from it, I have nothing to add to paragraphs 8 and 9 of my minute to Mr Paul of 4 October. TUR has, however, provoked further thought about a provision to the effect that "this Ordinance is subject to the Hong Kong Letters Patent".

2.

As I have pointed out before, it is difficult to give meaning to those words. Unlike the Basic Law, the Letters Patent do not contain any statements of substantive law to which that provision might refer. The only possible points of contact are Article 21(a) and (b) of the Bill of Rights with Articles V, VI and VII (2) of the Letters Patent and Article 21(c) of the Bill of Rights with Article XIV of the Letters Patent. But the possible effect of Article 21(a) and (b) of the Bill of Rights is overruled by Clause 13 of the Bill of Rights so that the Letters Patent not only do not restrict, qualify or otherwise detract from (which is essentially what "subject to" imports) the Bill of Rights; rather they make provision which partly expands the sum of the provisions in the Bill of Rights. Similarly, Article XIV of the Letters Patent does not provide any restriction or qualification of, or detraction from Article 21(c) of the Bill of Rights. It is, therefore, difficult to argue that those possible connections provide a reason for the insertion of "subject to the Letters Patent".

I have considered whether the text of the proposed amendment to the Letters Patent* could in any way provide a

3.

*The provisions of the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations on 16 December 1966, as applied to Hong Kong shall be implemented through the laws of Hong Kong. No law of Hong Kong shall be made after the coming into operation of the Letters Patent (No 2) 1990 [or Letters Patent 1991] that restricts the rights and freedoms enjoyed in Hong Kong in a manner which is inconsistent with that Covenant as applied to Hong Kong.

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