*
14
(ii)
Clause 7 is unusual.
Comment
The precise formulation is unusual, but Commonwealth and DT Bills of Rights frequently give a right of action without excluding the possibility that the right may lie against private persons.
(iii) The ICCPR does not require the UK to impose
obligations directly on individuals within a BOR.
Comment
True. The ICCPR does not require a BOR at all, still less one which provides remedies in the private sector. But the ICCPR requires the comprehensive protection of human rights by whatever means the State chooses, and HKG's announced policy is to bring together in a single piece of legislation all relevant rights included in the ICCPR (see para 6 of the Commentary of the White Bill).
(iv) The scope of the rights in Article 16 (Freedom of
opinion and expression) and Article 22 (Equality before and equal protection of the law) is unclear, and it is unsatisfactory for the private sector to have unclear obligations. HKG's view of the meaning of these Articles is over-sanguine. Article 16 might be interpreted to confer a right of access to information. Article 22 might be interpreted as prohibiting discrimination in the private sector (and not merely as a prohibition on the enactment of discriminatory laws, as argued by HKG). Discrimination ought to be the subject of detailed legislation.
(v)
Comment
These concerns have been addressed in the Memorandum for Exco of 10 July, paras 32-38, and paras 16-18 of the Chief Secretary's speech to Legco of 25 July. We find Mr Lester's assertions as to the possible scope of Article 16 exaggerated. On Article 22, it is possible that HKG's advice is mistaken and that the courts could find that it does apply to a wide range of private sector activity such as employment. HKG lawyers have now agreed with our view that such a possibility should be reconsidered. If it is considered to be a problem, it could either be avoided by redrafting Article 22 so as to ensure a very limited interpretation (which might then fail to give full effect to the ICCPR), or addressed by making a decision to enact more detailed legislation in this area, as is already being undertaken in the case of Article 14 on privacy.
Several provisions of the PRC Constitution appear incompatible with the ICCPR, in particular the duties imposed on citizens. Post 1997, the PRC authorities