TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 102

CONFIDENTIAL

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Recommendation

2. I recommend that the Secretary of State endorse the

amending instructions. Legal Advisers have prepared these in consultation with the Hong Kong Government, which is

content. If the Secretary of State is content with the

draft instruments, he should sign his name at the place

marked on the top right hand margin of each.

Background

3.

The attached explanatory note for the Privy Council sets

out the main contents of the three draft instruments. We

need three instruments, two amending Letters Patent and one

amending Instructions, because of special timing factors for

the ICCPR-related amending Letters Patent (para 5 below)

which are likely to proceed separately from the others. following is additional background.

The

ICCPR

4.

When the Bill of Rights for Hong Kong was introduced to

the Hong Kong Legislative Council in June 1990, there was

considerable pressure to entrench the Bill. To do so in Hong Kong law (eg by requiring a unanimous or two-thirds majority vote to repeal it) would have been contrary to the

Basic Law provisions concerning the working of the legislature. The Chinese, who are hostile to the Bill,

would have seized on this as a reason to declare the Bill

incompatible with the Basic Law, under Article 160, and

annul it. By making this amendment to the the Letters

Patent we do not entrench the Bill itself but we can

"entrench" the rights contained in it (which are those

contained in the ICCPR): the amendment will prevent

legislation from being validly enacted on or after the

commencement date of the Bill of Rights if it restricts the

rights and freedoms enjoyed in Hong Kong in a manner

inconsistent with the ICCPR. The Chinese cannot

legitimately find fault since this formulation mirrors that

in Article 39 of the Basic Law.

BATAKN/2

CONFIDENTIAL