Telegrams: "SHIPMINDER, WESDO, LONDON," Telephone ABBEY 7711.
Any further communication on this subject should be addressed to:-
The Secretary,
(address as opposite)
and the following number quoted :—
AT/GEN.8479
لاله
Dear Gent,
WAR TRANSPORT (C.J)
MINISTRY OF SHIPPING,
BERKELEY SQUARE HOUSE,
DRAFT HONG KONG ORDER IN COUNCIL.
BERKELEY SQUARE,
16
108
LONDON, W.1.
5th February, 1942.
We have now had an opportunity of considering the draft Order in Council which you sent to me under reference 54109/41 on the 29th January. As you know, we are interested in this matter because there are a considerable number of Hong Kong registered ships under requisition by the Governor which are in our service and we are anxious to secure that the position of these is adequately covered by the proposed Order in Council in respect of action taken in the past as well as of action to be taken in the future. The first matter to which we should like to draw your attention arises on the definition of "enactment" in paragraph 1 (2) of the draft Order. This definition includes a provision contained in an Order of His Majesty in Council only in so far as such provision is not made by virtue of an Act of Parliament. While it is clear that the intention of the definition as a whole is designed to include the Hong Kong Defence Regulations under which the ships above referred to were requi- sitioned, we wonder whether the wording used does in fact achieve the desired result. These Regulations admittedly derive their immediate validity from the Emergency Powers (Colonial Defence) Order in Council, 1939, (S.R.&.0.1939 No.968), which was made pursuant to Section 4 (1) of the Emergency Powers (Defence) Act, 1939. But are not the Regulations themselves "provisions made by virtue of an Act of Parliament"? Unless the Act had been passed the Regulations could never have been made.
Further, it seems quite clear to us that the definition of "enactment" above referred to, excludes the various functions of the Governor of Hong Kong under the Merchant Shipping Acts 1894 to 1940. Thus Section 64 of the Merchant Shipping (Safety and Load Line Conventions) Act, 1932, enables that Act to be extended to the Colonies by Order in Council. In the case of Hong Kong, this was done by the Merchant Shipping Load Line Convention (Hong Kong) No.2. Order, 1938 (S.R.&.0.1938 No.782). The powers conferred on the Governor by this Order were clearly conferred "by virtue of an Act of Parliament". Under the draft Order in Council as it stands, there is, therefore, no-one who can exercise the functions of the Governor under the 1938 Order in relation to Hong Kong registered ships. Nor can the Governor's functions as regards the registry of such ships under Sections
/4 and 89
G.E.J.Gent,Esq., D.S.0., 0.B.E., M.C.
Anso. 1189