NENTIAL
12
假密
IL
25.
Clause 6 of the BOR has been drafted So as to enable courts and tribunals to provide an effective remedy where there has been a breach of the BOR. No new remedies are created by this clause but does not permit courts and tribunals some flexibility in dealing with breaches of the BOR in order that existing remedies may be used in new ways or developed so as to ensure that in any particular case an effective remedy is granted. Clause 6 does not alter the jurisdiction of courts
courts and tribunals; magistrates will not be entitled to award damages for breaches of the BOR.
26.
During the public consultation, some criticism was directed at Clause 6(1) of the White Bill which characterised a breach of the BOR as a tort. Some people argued that a tort action, which if successful normally leads to a remedy in damages, would be inappropriate for a breach of BOR. Because we believe that there is some force in the
argument we therefore propose to delete clause 6(1).
In our view, clause 6(2) [as consequentially redrafted] is sufficient to enable courts and tribunals to grant an effective remedy in respect of breaches of the BOR and will enable damages to be awarded as an effective remedy only when it is appropriate and just to do so.
27.
There are those who consider that interim relief against the Crown which is not available at present is a necessary adjunct to an effective Bill of Rights. A number of groups, including LegCo Ad Hoc Group, have suggested amendment to the Crown Proceedings Ordinance (Cap. 300) to remove the existing Crown immunity. The issue was considered by this Council in 1986 and 1987 in a more general context. The Attorney General was opposed to granting injunctive action against the Crown for constitutional, public interest, legal and
practical
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