fiss S Brooks
со
Sir T Sinclair
Mr Hendry
Miss Brett Rooks HKGD Mr Paterson NTD
whit
CROWN SERVICE
1. You consulted me on 18 January on the question whether, for the purposes of s. 2(2)(a) of the British Nationality Act 1981, a colonial governor should be regarded as being in Crown Service under Her Majesty's Government in the United Kingdom.
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The office of governor normally has the following characteristics:
(a) it is constituted by Letters Patent or an Order in Council made in the UK and having the force of law in the colony concerned as part of its constitution;
(b) power to make approintments to the office, and to terminate any such appointment, is vested in Her Majesty acting on the advice of HMG in the UK;
(c) the functions of the office are for the most part conferred by the colonial constitution or other laws in force in the colony;
(a) in the exercise of those functions the governor is, under the colonial constitution, subject to the instructions of the Crown given by HMG to such extent as the giving of such instructions is consistent with the constitution and other local laws;
(e)
although the governor is paid from local funds, he may become qualified for a pension under the Governors' Pensions Acts.
(f) a person holding the office of governor may suffer abatement of a UK pension previously granted to him but I am not sure whether it is usual to apply the abatement rule.
I am not sure whether a person would become (or continue to be) a member of HMOCS when appointed as a governor.
4. Governors are not specifically mentioned in the House of Commons Disqualification Act 1957 and I am uncertain whether they would be regarded as necessarily falling within the general disqualification of persons in the civil service of the Crown provided for in that Act, the definition of which specifically includes members of the DS and of HMOCS, My recollection is that in some drafts of the bill governors were specifically referred to in the schedule of disqualifying offices, but subsequently the reference was deleted as it was thought unnecessary to disqualify them.
5. In a colonial constitution the public service of the colony is usually defined as the service of the Crown in a civil capacity in respect of the government of the colony and a public officer means a person holding or acting in an office of emolument in that service. This covers colonial civil servants and members of the colonial judiciary (including those appointed on instructions from the Crown in the UK). On the face of it the description would cover a governor but because of the special role of a governor under the constitution he is perhaps excluded from a general definition that does not apply where the context otherwise requires.
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