(containing an extra rule-making power), which Mr Fifoot presented at our meeting on 8 October. I explained the legal advantages in terms of
clarificationof the relationship between the BOR and existing legal remedies, etc, and the possible political advantage of presenting the amendment as compromise with elements in Legco who oppose application of the BOR to the private sector. saw attractions in the proposal, but some of the lawyers had reservations. Decision was deferred pending further consideration by the Solicitor General.
(c) Inter-citizen Rights: the Lester opinion
CAB
It was agreed that most of Mr Lester's points could be adequately refuted either on legal or policy grounds. HKG lawyers are preparing full defensive briefing, along the lines of my minute to you of 5 October on Lester's opinion. The main point on which doubt remained concerned the meaning of Article 22 BOR (discrimination). HKG had previously been advised that it only imposes a negative obligation on the legislature not to enact discriminatory laws; it imposes no positive obligation on the State to prohibit discrimination; and it does not apply to the private sector. I said that FCO legal advisers were not convinced that such a narrow interpretation would necessarily stand up; in our view it probably does require some kind of anti-discrimination legislation, though in the absence of any, Article 22 may well be interpreted as not directly enforceable against the private sector. In our view, such obscurity on a point of such importance is undesirable (as Mr Lester pointed out); the enactment of specific legislation, as is being undertaken in respect of Article 14 on privacy, would be preferable.
CAB accepted that future court decisions or comments by the Human Rights Committee might compel them to legislate in this area, but maintained their unwillingness to contemplate it at the present time. This rules out deferral of the application of Article 22 to the private sector (as for privacy) since this would imply a commitment to legislate. It was accepted that pressure from the private sector, exerted through members of Legco,, to confine the scope of the whole BOR to public authorities was likely to become intense, and therefore some kind of compromise position needs to be prepared.
(d) The Language of the BOR ("is" and "shall be")
The Solicitor General remained uncomfortable with the retention of treaty language such as "shall be
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