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Paragraph (a) would be safer in the Chinese context, but if a need is felt for some reference to the power of derogation, something on the lines of paragraph (b) should serve and be defensible.
12. Clauses 6 and 7 Hong Kong must have given serious consideration to the consequences of the proposal that the Bill of Rights should create obligations for private persons as well as public authorities and that a breach of those obligations should be actionable as a civil wrong. This is a very large question. It is true that there are arguments that Bills of Rights should extend so as to provide remedies against private persons and it may be the case that, in some instances, this is the case in some civil law jurisdictions; but the practice so far as common law jurisdictions are concerned has generally been to impose the obligations (or the greater part of them) on public authorities, not on private persons. I attach an extract from the New Zealand White Paper on a Bill of Rights (not subsequently proceeded with) of which Miss Wilmshurst reminded me. I am also indebted to her for the text of Lord Broxbourne's Bill see Clause 3 - which would have limited liability to public authorities. To take a third example, in India it would appear that while some obligations only affect the State, others are applicable both to State authorities and private persons. Apart from the general common law practice elsewhere, two other factors are to borne in mind. Is it the case that the Covenant requires the rights to be enforced against private persons across the board; that would appear to be highly debatable. Secondly, what would be the likely or possible effect on the volume of litigation of making private individuals liable for breaches of a Bill of Rights; one could well imagine an almost American litigation boom. Hong Kong should be strongly advised to think again on this point which would seem to go well beyond what its present law provides.
13. Clause 6 (2) This deals with remedies for a contravention of the Bill of Rights. If Hong Kong were to persist in its proposal to make private persons liable in tort for a violation, then that would necessitate providing a remedy in damages and Clause 6(2) is such that damages could be awarded. An order for payment of damages would also be appropriate if redress lay only against public authorities, but if Hong Kong were, as I would urge, to abandon the proposal to create a new tort, Clause 6(2) should be amended by deleting the words "as it has power to grant or make in those proceedings (whether by virtue of sub-section 1 or otherwise) and". A preferable provision, however, is in any event contained in the law of Bermuda to the following effect:-
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