4.
(C)
Article 3 of the 1952 Order extended the provisions of certain sections, including Section 13 of the 1949 Act as adopted and modified, to various territories, including Hong Kong. It is those adopted and modified provisions of Section 13 in which, at the present time, the regulation making powers of the Governor are contained. They are set out in Schedule 2 of the Civil Aviation Act 1949 (Overseas Territories) Order 1969.
One provision which may appear to be relevant to the question of vires is Section 8(2)(q) of the 1949 Act. This empowers Her Majesty by Order in Council to exempt from the provisions of any such Order "any aircraft or persons or classes of aircraft or persons". However, the purpose of Section 8 is to give effect to the Chicago Convention and generally to regulate air navigation. As I read it, it is not intended to deal with licensing of air transport and commercial flying which is dealt with separately in Section 13. Sub-section (1) of that section provides that an Order made under Section 13 "may make different provisions as respects different classes of aircraft and different classes of licences". The same provision is to be found in paragraph 5 of Schedule 2 to the Civil Aviation Act 1949 (Overseas Territories) Order 1969 (SI 1969/592) which extends Section 13 to colonies and enables the Governor to make licensing regulations.
5:
It may be argued that Section 13 as extended to colonies gives the Governor sufficient discretion to enable him to exempt any airline. It says he "nay make regulations". On the other hand, the reference in Sub-section (a) to securing "that aircraft shall not be used" seems to imply that regulations, if made, should be applicable to all aircraft. I think it could be unsafe to rely solely on Section 13 as at present extended.
6. There is, however, an example of a specific exemption by Order in Council, regarding the Channel Islands, in the Civil Aviation Act (Extension to Channel Islands) Order 1947 (SI 1947/ 528). This was made under a statutory power of extension similar to that in Section 66 of the 1949 Act (under which the 1969 Ord og was made) which enables the Act to be extended to any colony "with such exceptions, adaptations and modifications, if any, as may be specified in the Order" This, very wide, power is common to most colonial extension provisions and has been interpreted liberally by HMG in the past. It could therefore be used to make an amendment to the 1969 Order either specifically exempting all British airlines or empowering the Governor to make regulabious exempting them.
7. It might be thought preferable therefore to make an Order conferring an exemption rather than amending the regulations, because of a possible challenge to the vires of such an amendment.
"/However,
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