TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 123

of rights based on the Covenant rather than proceding piecemeal, it is required to ensure that those rights which can only effectively be secured by permitting direct recourse against a private party must be included in that Bill of Rights. So long as the latter rights continue to be secured by other legislation, I do not think there is any such requirement. Nevertheless, even where this is ths case, when Human Rights bills have been provided in some common law jurisdictions, they have not been confined to providing a recourse against public authorities and their

servants.

14. So far as Hong Kong is concerned, the issue is not what the Covenant requires, but consistency with its own assertion of why it proposes to adopt a Bill of Rights. If it maintains that there is a need to have in one place all the legislation required effectively to implement the Covenant, it would need to justify an exception to that intention were it to seek to exclude recourse and remedies against private persons.

It is not logically difficult to justify an exception on the grounds that private process is already provided for, and all that is required is protection against public authorities; but would that not give the Chinese an opportunity to assert that, if protection against public authorities is not already provided for, we have not been giving effect to the Covenant in relation to Hong Kong and, indeed, to call in question the whole exercise.

15. If Hong Kong is to include recourse to private persons in its BoR, it should not do so in a way which by-passes its existing civil law (e.g. the law of defamation ). This means it should not try to create a new tort, but should make recourse,

for a violation of the Bok a sui generis process which provides an additional or supplementary remedy if the existing remedy is inadequate. The Bermuda precedent from which I quoted an extract in my minute of 10 May and which is repeated in the law of a number of dependent territories ) proceeds in this fashion. Such an approach could possibly go some way to assuaging such fears as there may be about a litigation boom.

16. I attach a copy of Article 15 of the Bermuda Constitution. Hong Kong may like to consider paragraphs (1),(2),(3)? and (4) as an alternative to clauses 6 and 7 of its own bill. Three points in particular need to be considered:

(a) the Bermuda article does not refer to private persons or, indeed, to public authorities as being liable for violations of the chapter on fundamental rights. This leaves it to the courts to determine who are under obligations under the various provisions of that chapter and whether, if liable for a violation, some redress should be provided in addition

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