TNAG-2669-FCO40-3866-Hong-Kong-Civil-Service-1993 — Page 206

Annex E

Summary of Legal Advice

Mr David Pannick QC

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The gist of Mr Pannick's advice is that, Article 21 of the Bill of Rights confers rights on permanent residents, there would be a breach of that provision to the extent that a permanent resident is denied the right and the opportunity to have access on general terms of equality to public service in Hong Kong.

In SO far as the policy does not permit a change to local terms when an overseas officer becomes a permanent resident, Article 21 would be violated.

The most appropriate definition of 'permanent resident' for the purposes of Article 21 is that

that in the Immigration Ordinance covering both 'Hong Kong permanent resident' (see Appendix D) and

'resident British citizens' (see Appendix F).

2.

Mr Pannick considers it important to ensure that no 'permanent residents' are subject to detriments under the localisation policy. He

suggests that Civil Service Regulations be amended to state that nothing in their provisions shall require а person to be treated as an officer if he is a 'Hong Kong permanent resident' or 'resident British citizen'. He further suggests that person may consent to being treated as an overseas officer even if he is, in

in fact, a permanent resident. If he So consents then he can have no claim under Article 21.

a

Mr Andrew LI OC

3.

Mr Li's

advice is broadly in line with

with that of Mr Pannick. The different treatment for overseas and local officers under the localisation policy is, in his view, unfavourable to the overseas officer. The criteria for determining an

an officer's terms of appointment as explained in Appendix A introduce a distinction of national or social origin or race, which is prohibited by Article 1(1) and 21 of the BOR. A court is therefore likely to hold that the present localisation policy infringes Article 21 of BOR. It deprives those permanent residents who are serving on overseas terms of the right and opportunity to have access on general terms of equality to public service Hong Kong.

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