Summary of the Opinion of Mr David Pannick QC on Proposals to Implement BL 23
Mr Pannick was asked to advise the Department of Justice on whether the legislative proposals to implement Article 23 of the Basic Law as set out in the Consultation Document, are consistent with the rights to freedom of expression, peaceful assembly, freedom of association and the other rights protected by Articles 27 and 39 of the Basic Law and by the International Covenant on Civil and Political Rights.
Mr Pannick was satisfied that the contents of the proposals are consistent with human rights law.
He noted that the Consultation Document makes clear that a primary aim is to ensure that the substantive provisions adopted to implement Article 23 comply with Article 27 rights and with the international obligations specified in Article 39.
He states that rights conferred by Articles 27 and 39, and by the ICCPR, are not absolute. They require a balance between the interests of the individual and other interests, i.e. the interests of others and the interests of society. It is well established that the courts should seek to strike a -
"fair balance íK between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights"
Whether a fair balance is being struck depends on the facts of the particular case if and when the laws are applied under the discretionary powers which the proposals will confer.
If there is concern about the application to particular facts of the new laws, then courts will seek to interpret and apply those laws consistently with the basic rights in Articles 27 and 39. That is so in principle, but especially so when the Consultation Document has emphasised the intention to comply with fundamental rights.
He stated his opinion that none of the proposals in the Consultation Document offends against fundamental rights. It would, however, be essential to ensure that the powers are used only in a manner which is proportionate and which complies with fundamental freedoms in the circumstances of the individual case.
Prohibition of organizations
Mr Pannick specifically considered the proposal that power be conferred on the Secretary for Security to proscribe an organisation. He noted that this power would be enjoyed only if the organisation falls within specified categories, one of which is if it is affiliated with a Mainland organisation which has been proscribed in the Mainland by the Central Authorities. Mr Pannick could see nothing inherently objectionable in this. That the organisation has been proscribed in the Mainland is merely a pre-condition to the exercise of the power.
The Secretary for Security would only enjoy power to act if he or she reasonably believes that this is necessary in the interests of national security or public safety or public order. Were the Secretary for Security to apply the wrong test, or reach a patently unreasonable conclusion, judicial review would provide a remedy.
Serious Unlawful Means
On secessionist activities, Mr Pannick noted that paragraph 3.7 of the Consultation Document seeks to define "serious unlawful means", and does so to include -
"serious interference or serious disruption of an essential service, facility or system, whether public or private".
He said that the concern is that the definition of "unlawful means" may possibly cover conduct in the Mainland that is protected by fundamental rights, such as strike action or a peaceful demonstration. But that seemed to him to be very unlikely :
Para 3.7 of the Consultation Document adds :
"Adequate and effective safeguards should also be in place to protect the freedoms of demonstration and assembly etc, as guaranteed by the Basic Law, including peaceful assembly or advocacy".
He suggested that for the avoidance of any doubt, it may well be considered desirable to state generally in the new law that nothing in it is intended to contravene Articles 27 or 39 of the Basic Law, and that restrictions apply only in so far as they are lawful pursuant to those provisions of the Basic Law.
It was Mr Pannick's opinion that none of the provisions set out in the Consultation Document are objectionable as a matter of legal principle. He emphasized that it will be important, if and when enacted provisions are applied, to ensure that the application is consistent with human rights.