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Government Regulations
In my contention, the Government Regulations constitute, inter alia, a delegation of certain of the Governor's powers, including the power to 'appoint public officers. They are regulations made by the Governor, and among other
things, tell his subordinate public officers how his prerogative powers are to
be exercised. We need focus only on C.S.R. 611. Bear in mind, if there are
no material instructions of the Crown, Article XVI gives the Governor broad
power to suspend "upon sufficient cause to him appearing". By C.S. R. 611 the Governor sets out an instance where sufficient cause shall appear to him to justify suspension. It also, in my interpretation, purports to delegate to the S.C.S. the power to suspend. I should perhaps interpose that if there were any statutory provisions inhibiting this power they might be effective. The prerogative powers may be overriden, as we have seen, by legislative enactments. It is, I think, highly questionable whether the Hong Kong legislature, i.e. the Governor with the advice and consent of the Legislative Council, could legislate to override his prerogative powers. I have not been
able to find any legislation, e.g. industrial relations, employment protection,
etc. purporting to restrict the prerogative powers of suspension. If it is accepted, as I submit it must be, that C.S. R. 611 is a purported delegation to the S.C.S. to suspend in the limited instance connected with trade disputes,
the question remains whether or not the Governor is empowered to delegate. A
statement of the delegatus non potest delegares rule is found in Halsbury
(6)
:
"a statutory power must be exercised only by the body or officer
in whom it has been confided, unless sub-delegation of the power
is authorised by express words or necessary implication. There
is a strong presumption against construing a grant of legislative, judicial, or disciplinary power as impliedly authorising sub-delegation;" Although today, perhaps in contrast to 1917, it is probably quite unfeasible for the Governor to personally deal with the suspension of individual Civil Servants, and certainly so to personally appoint them; I should not like to pin the argument to the "necessary implication" principle. The extract quoted refers to "statutory power" which strictly speaking does not include the prerogative powers embodied in Letters Patent. Whether or not that makes a
difference, I am not yet sure. Roberts-ray observes that in the area of
constitutional law when enquiring what may lawfully be done, it is not irrelevant to enquire what actually has been done. Certainly, via the Civil Service Regulations, a variety of the Governor's powers have been purportedly delegated, and treated by everyone as successfully delegated for at least 70
years.
hany of the C.S.R.'s, I an sure, have been introduced with the approval of the Principal Secretary of State for the Foreign and Commonwealth Office
(?)
Laws of England, Vol. 1, 4th Ed.,
Administrative Law, para. 32.