Foreign and Commonwealth Office
London SW1A 2AH
K A M Johnson sq
Solicitor's Department
Department of Trade
Monsanto House
10-18 Victoria Street
London SWI
Dear Kenneth.
Telephone 01-
Xxchange
233-5313 233-3000
Your reference
Our reference
Date
RA 184/393/1
30 July 1979
AIR SERVICES:
LOIDON HONG KONG
1. You kindly explained this afternoon the legal difficulty foreseen by your department over the suggestion that directions could be given to redress the disadvantage resulting from section 3(1) of the Civil Aviation Act 1971. As I understood your explanation the difficulty was not that it would not be "proper" to give directions which could be construid es contrary to the wishes of Parliament, but that the Secretary of State could only give directions under section 4 of the 1971 Act where the Authority (the C. A. A.) had power to do that which it was to be directed to do, while in the present case it had no power to decide which airline to licence without applying seotion 3(1) of the Act.
2. If I have understood the argument correctly, I find it difficult to accept. While section 4(3) does authorize the giving of directions to the Authority to do something only where it has power to do that thing, it also empowers the Secretary of State to direct the Authority to refrain from doing a particular thing if he considers such directions appropriate and within one of the cases listed in paragrapis (a) to (f) of section 4 (3). Thus, directions to refrain from doing a particular thing seem to be capable of applying to any thing, whether it be something required by the Act or not (provided only that the directions do not produce a conflict with the requirements of section 4(1) and (2)).
3. The apparent breadth of the powers in section 4 of the 1971 Act appears to have been upheld by Lord Denning (Obiter) in Laker Airways v Dept of Trade 197 2W. LR. 234, at 244 where he says (at letter F) that the exceptional powers in section 4 enable the Secretary of State to override the statutory requirements and "to by-pass the general objectives". The marginal note to section 3 refers to "General objectives ..." and it seems that these must be the general objectives to which Lord Denning refers. Thus provided the case falls within one or more of paragraphs (a) to (f) of section 4(3) the Secretary of State would have the power to override a requirement of the Act, such as that in section 3(1)(a), namely the requirement to secure that "British airlines" provide air transport services etc.
14.