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is initiated privately or publicly.
(c) Under Clause 6, the courts would presumably grant remedies on the basis of ordinary tortious principles, ie damages would be the normal rule, with injunctions, declarations, restitution etc, also being available at the court's discretion. (This is one of the reasons why we wonder whether forcing B/R actions into the existing tortious mould is the best approach. Damages might not be the most appropriate remedy in the majority of cases where there is no material loss. (How would the court quantify damages for interference with freedom of religion for example) The creation of a sui generis action with a wide range of discretionary remedies but no presumption in favour of damages, along the lines of section 15 of the Bermuda Constitution Order 1968 is our preferred formula though you might prefer to widen the range further; as suggested in Paul Fifoot's minute.)
Options for limiting the effect of the Bill
4.
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The Covenant requires that all individuals must have remedies available in the courts against all public bodies (including all the "other agencies" you mention), public officers acting in their public capacity and all private individuals responsible for violating their Covenant rights. The Covenant does not require a B/R to be enacted at all piecemeal legislation could equally well satisfy Covenant requirements so, a fortiori, it does not require any B/R to be comprehensive. If your B/R were to be limited to public bodies, then provided that remedies are available under other laws for all violations of Covenant rights by private parties, the requirements of the Covenant would be satisfied. But you would be undermining your own stated rationale for enacting a B/R, ie to consolidate all Covenant rights in a single piece of legislation. Furthermore, any attempt to define "public bodies", would introduce a new range of problems (and invite endless litigation). Our suggested method of limiting the effect of the Bill is not to exlcude private persons but to use a proviso like the one in the final paragraph of section 15 (2) of the Bermuda Order. In many cases of violations by private parties, existing remedies would be adequate (defamation, assault, etc ...), so a B/R action would not be worthwhile. This would reduce the volume of B/R litigation considerably. If this method appeals to you, you could of course keep Clause 7 of the Bill as presently drafted and simply redraft your Clause 6 using Section 15 Bermuda as a model. (Or you could delete C1.7 and rely on a "S,15" alone)
The result of limiting the effect of the Bill and implementation of the ICCPR
5. If it is limited by means of the proviso we have suggested, the Covenant would be implemented to the full. If limited by restricting it to public bodies only, then where there are gaps in existing private law remedies, the Covenant would not be fully implemented. The extent to which the Covenant requires remedies against private parties in respect of particular Articles has been
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