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Mr Paul
HKD (WH 307A)
CC MR MCLAREN
Many thanks : very clea
123 10/14 HKD 241/1
Me BuBO's PQL? 101+
W%
11 GET 1990
From: Jill Barre
Assistant Legal Adviser K 166 270-3381
Date: 5 October 1990
Date:
328
川
BILL OF RIGHTS:
ANTHONY LESTER QC's OPINION: HK Tel No 2881
to replace
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11/10
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Lle copy
1. You requested a summary of the content and significance of the legal opinion by Mr Lester which received coverage in the South China Morning Post.
2.
The Opinion was commissioned by the Hong Kong and Shanghai Banking Corporation, which is concerned about the implications of Clause 7 of the BoR, which would oblige the private sector to observe human rights standards. It consists of 42 pages of discourse about various human rights issues; buried within it are a number of criticisms of the BOR, some of which are fallacious and others of which are valid but have been raised publicly before and taken into account during the drafting of the Bill. I do not know how HKG came by a copy of the Opinion, nor whether they have in mind issuing any direct response, or whether they intend to defer responding until the issues raised within it emerge in the Legco debate.
3.
4.
Mr Lester's recommendations are:
(i)
to change Clause 7 so that the BOR binds public authorities only;
(ii) to restrict the available remedies to the kinds
of public law remedies available in judicial review proceedings;
(iii) to include Article 2(2) and (3) of the ICCPR (which
say that States must give effect to the rights in the ICCPR and provide remedies) in the BOR.
The arguments lhe makes to support the recommendations are:
(i)
Clause 7 (read together with Clause 6) would enable governmental authorities to bring criminal or civil proceedings against private persons alleging a violation of the BOR.
Comment
Incorrect. Only human beings have rights under the BOR. The government would have no standing to sue under it. The BOR creates no criminal offences.