TNAG-2177-FCO40-3114-Hong-Kong-Bill-of-Rights-1990 — Page 180

327

AKD241/1

- 9 OCT 1990

1241/1

PAY

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Mr Paul, HKD

A 9110

My Major

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From:

Jill Barrett

Assistant Legal Adviser

K166

270 3381

Date: 5 October 1990

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Mr Fifoot

131

198)

MY VISIT TO HONG KONG: BILL OF RIGHTS

1.

You requested an outline of the issues relating to the Bill of Rights which I propose to raise with HKG during my forthcoming visit, for discussion between us on 8 October, together with Mr Fifoot.

2. The present version of the BOR Bill (the Blue Bill) is far from ideal; there are many areas where FCO legal advisers would prefer to have seen it drafted differently and we advised HKG so in a lengthy series of telegrams before publication of the Blue Bill (Nos 1007, 1008, 4009, 1010, 1043, 1203, 1246, 1260-1286, 1312). The question now is which of these issues it is worthwhile pursuing at this late stage. The debate on the Second Reading of the Bill in Legco is, I understand, due to commence in early November. The possibility therefore exists for HKG to move amendments, or arrange for unofficial members of Legco to do so. However, we were given to understand by the HKG legal advisers, with whom we met last week, that HKG is unlikely to be willing to consider introducing any unless compelling reasons are advanced for doing so.

3. In view of this, I see little point in reiterating a long list of suggestions, most of which have apparently been rejected for political rather than legal reasons. There is, however, one suggestion we made (in telno 1043, paragraph 7, and in

Mr Fifoot's minute to Ms Major of 5 July 1990 (which was faxed to HKG) paragraph 9 and Annex A) which I believe it would be useful to present again to HKG in a slightly redrafted form (see attached Annex). It concerns the remedies provided in clause 6(1). The effect of that clause is to give the courts a wide discretion to grant a variety of remedies in any case where a violation (or threatened violation) of the BOR is shown. In our view, a proviso should be added to this to make it clear that the courts should not exercise their powers under the BOR if they are satisfied that adequate means of redress are available under any other law. (The remedies clauses in other DT Bills of Rights all contain such a proviso.)

4.

(i)

The advantages of adding this proviso would be:

There is considerable substantive overlap between the BOR and existing law, since many rights under the BOR are already protected by ordinary law. For example, the rights

GENABQ

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