-64consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.” 180. Much the same point is made in, for example, Sandra Liebenberg, “Needs, Rights and Transformation: Adjudicating Social Rights” (2006) 17 Stellenbosch Law Review 5 and Aoife Nolan, Bruce Proter and Malcolm Langford, “The Justifiability of Social and Economic Rights: an Updated Appraisal” CHRGJ Working Paper No. 15, 2007. In the “Right to Welfare” chapter of Law of the Hong Kong Constitution (eds Johannes Chan and C L Lim) (2011) (Sweet & Maxwell) – a book cited by Lord Pannick in the course of argument (although not on this point) – Professor Karen Kong put it like this (at p.798, para 25.040): “As suggested by Sandra Leibenberg in relation to South African court’s adjudication of social rights, ‘claims involving a deprivation of basic needs should attract a high level of judicial scrutiny’. Aoife Nolan et al. also commented, ‘[i]n general, Government will be held to a stricter test in relation to available resources when existing programs are cut than they might be with regard to a simple failure to take positive steps to create programs or enhance them.’ The stricter test will include imposing a heavier burden on the Government to justify potentially retrogressive measures, and the need to show that alternative measures had been carefully considered.” Discretion 181. In seeking to justify the raising of the residence requirement from one year to 7 years, the Government places some reliance on the Director of Social Welfare’s discretion to waive the residence requirement. A discretion to waive is also a discretion not to waive. It is not suggested that the discretion would invariably, or even generally, be exercised in favour of any person who, absent a waiver, would be driven to seeking charity in order to meet her or his basic needs. 182. There is in any event, an inherent and fundamental weakness in the Government’s “discretion” argument. As Lord Shaw of Dunfermline said in