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MDLIAN 6471
RATHER THAN AS LEGISLATIVE PROVISIONS, PARTICULARLY SINCE THEY ARE VERY DETAILED AND LIABLE TO THE NEED FOR CHANGES IN THE LIGHT OF
EXPERIENCE.
THE ROLE OF THE COURTS
10. THE IMPORTANT QUESTION WHICH THEN ARISES IS AS TO THE ROLE OF THE COURTS IF (A) INSTRUCTIONS ARE GIVEN OTHERWISE THAN IN ACCORD- ANCE WITH THE AGREED STEPS: OR (B) A CASE IS IRRATIONALLY CLASSIFIED AS FALLING WITHIN THE TWO AREAS.
11.
INSTRUCTIONS MIGHT BE GIVEN OTHERWISE THAN IN ACCORDANCE WITH THE AGREED STEPS IN A NUMBER OF WAYS, INCLUDING FAILURE TO MEET TIME LIMITS OR FAILURE TO GIVE REASONS. WE BELIEVE THAT IF AGREED STEPS WERE NOT FOLLOWED, THIS WOULD ENTITLE CE TO IGNORE INSTRUCTIONS AND WOULD BE A MATTER BETWEEN HIM AND CPG. WHETHER A FAILURE TO FOLLOW THE AGREED STEPS SHOULD GIVE RISE TO A RIGHT TO CHALLENGE THE VALIDITY OF A DECISION BY THE CE UNDER INSTRUCTIONS IS A MORE DIFFICULT QUESTION. CLEARLY, SOME BREACHES WOULD BE VERY TECHNICAL, SO THAT SUCH CHALLENGES WOLD BE WITHOUT MERIT AND UNAVAILABLE IN CASES FALLING OUTSIDE THE TWO AREAS. FOR THESE REASONS, OUR TENTATIVE VIEW IS THAT BREACHES OF THE AGREED STEPS OUGHT NOT TO PROVIDE GROUNDS FOR CHALLENGE IN THE COURTS.
ABUSE OF CLASSIFICATION
12.
PERVERSE CLASSIFICATION IS A WORRISOME AREA, PARTICULARLY TO EXCO. WE DO NOT BELIEVE THAT THE COURTS COULD OR SHOULD BE EXCLUDED ENTIRELY FROM GUARDING AGAINST ABUSE. THE EXTENT OF THE COURT'S ROLE WILL DEPEND ON THE WORDING OF THE LEGISLATIVE PROVISION DESCRIBED AT PARA. 7 ABOVE. THE LEGISLATIVE PROVISION COULD BE EXPRESSED TO APPLY (A) WHERE THE CASE INVOLVES THE TWO AREAS: (B) WHERE IT APPEARS TO THE CE THAT THE CASE INVOLVES THE TWO AREAS: (C) AS IN (B), PLUS A CONCLUSIVE CERTIFICATE TO BE GIVEN BY THE CE: OR (D) WHERE IT APPEARS TO THE CPG THAT THE CASE INVOLVES THE TWO AREAS, A CONCLUSIVE CERTIFICATE TO BE GIVEN BY THE CPG.
13.
OPTION (A) ABOVE WILL BE UNACCEPTABLE TO THE CHINESE AND WOULD IN ANY EVENT PLACE A DIFFICULT BURDENT ON THE COURTS. OPTION (B) IS MOST LIKELY TO BE UNACCEPTABLE TO THE CHINESE SINCE IT WILL LEAVE TOO MUCH ROOM FOR THE COURTS TO REVIEW THE EXTENT OF THE TWO AREAS. OPTION (D) COULD MAKE CPG DIRECTLY SUBJECT TO JUDICIAL REVIEW AND WOULD NOT ENCOURAGE CPG TO GIVE REASONS TO CE. WE WOULD THEREFORE OPT FOR (C) BEARING IN MIND THAT WHILST THAT WOULD NORMALLY
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