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CLAUSE
19(1) & 201)
21(1)(a) & (c)
REMARKS
can't have this or that paper.
That is one case. But you may also have a case where the decision in question should not be open to any enquiry 2nd Schedule item 6. Clause 19(1) seems to cover the first, but not I think the second case. Who then is to determine that a decision is not subject to any investigation at all? Or is clause 19(1) meant to cover the 2nd Schedule item 6? If it is to be the A.G., I think this is open to question. There are secrets that are not in the knowledge of the A.G. and it is arguable that the C.S. should be the authority for determining what affects security and defence. Even if it is to be the A.G. I would be justified in objecting to certain matters being made known to his subordinates, and I think that he would have to decide personally on advice tendered by me or D.S.B., without junior legal officers being involved."
If the Commissioner is not legally qualified, he will need advice on legal matters in giving opinions under clause 21(1)(a) and (c). This advice cannot come from the Law Officers who may have given contrary, or other advice to Government. Some of his staff will have to be lawyers, but difficulties may arise if these officers return to the Legal Department.
21
Mr. Henderson has minuted as follows:-
"Clause 21 (together with the long title and clause 9(1) gives us the only clue as to the purpose of an investigation.
This seems rather negative in approach, and it seems to me that there should be a charge to the Commissioner to ascertain whether there has been a decision "contrary to law" etc. However that may be (and what is a "wrong" decision, see clause 21(1)(a)7) the key power of the Commissioner as far as the Establishment Branch and the Service is concerned is clause 21(3). I think consultation must take place on
this with the Civil Service Associations, as to what action the Colonial Secretary may take in general terms. There is a danger of the Service reacting badly to this Bill, particularly as the timing may coincide with new anti-corruption and discipline regulations. The Service may feel that a great deal is being done to investigate them, perhaps rather to the detriment of efficiency and, more emotionally, without much in the way of benefit in conditions. will probably be no great difficulty, but tactful and early discussion would be desirable, "in confidence" if necessary.
There
Note: The UK Act contains no provision along the lines of clause 21(3) of the Bill but presumably the Commissioner would draw to the attention of the appropriate Minister any evidence of breach of duty or misconduct.
22(2)
(i)
It seems quite unnecessary to have every individual case report (as distinct from the Commissioner's annual report, see clause 30) sent to the Legislative Council. The position under the UK Act is that if, after conducting an investigation, it appears to the Commissioner that injustice has been caused and the injustice has not been or will not be remedied he may, if he thinks fit, lay a special report upon the case before each House of Parliament.
/(ii).....