TNAG-2177-FCO40-3114-Hong-Kong-Bill-of-Rights-1990 — Page 17

connection with "subject to the Letters Patent". The first sentence of the new text certainly relates to the purpose of the Bill of Rights, but no more so than the preamble to the latter. It does not, of itself, require that this Bill should give effect to the totality of the ICCPR or, even with the "subject to" reference necessarily invalidate a provision such as Clause 7(3), since it is possible that other and later Ordinances may fill in the gap, if, indeed, Clause 7(3) will produce a gap.

4.

The second sentence is rather more to the point. Leaving aside the question of when the second sentence has effect ("after the coming into operation of the [amending] Letters Patent"), that sentence does preclude the making of laws which are inconsistent with the ICCPR; that would provide some reason for insertion of the words "subject to the Letters Patent". (I ignore the fact that, again leaving aside the question of when it has effect, the second sentence could bite even if the words "subject to the Letters Patent" were not there.) Accordingly, eg if Article 17 of the ICCPR

(the equivalent of Article 14 of the Bill of Rights) applies as between private parties and not only between private parties and the Government and governmental authorities, the second sentence of the new text of the Letters Patent would call in question the validity of Clause 7(3).

5. Hong Kong telno 3066 proposed a programme whereby the amending Letters Patent should be made before, but not brought into operation until, the Bill of Rights was enacted with the object of preventing the second sentence of the amendment biting on the Bill and calling in question the validity of clauses 7 and 14. That programme involves the Government of Hong Kong, by an administrative act, delaying the bringing into operation of the amending Letters Patent. In these circumstances, could it be argued that:-

(a) the object of the amending Letters Patent is to ensure

that Hong Kong shall enact laws to give effect to the ICCPR and to prevent Hong Kong enacting laws which are contrary to or inconsistent with the ICCPR;

(b)

(c)

the insertion of the words "subject to the Letters Patent" in the Bill of Rights could only be intended to take into account both of those elements, and, indeed, they are particularly relevant to the second of those elements;

the delay by the Hong Kong Government in bringing the Letters Patent into effect was designed to defeat the second of those elements; and

6PFAAQ