CO129-603-8 Legal Department- reorganisation 17-3-1949 - 29-12-1949 — Page 18

query whettin

[ ] is recevay

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The implication in paragraph (b) that the Government of Hong Kong is not "the Crown" is a trifle unfortunate and it is suggested that the paragraph should read:-

"(b) any matter in which the Crown (or any Department of the

Government of Hong Kong is interested; "

The object of the last three lines of subsection (1) is not quite clear. If a matter is not one of public interest, in what circumstances would the Governor consider that the services of one or more legal officers should be employed? Another point which requires attention is that it is not stated how the Governor will notify his decision.

Perhaps these three lines could be omitted.

Should not "Section 4′′ in subsection 2 read "subsection (1) of this section"?

The purpose of the proviso to subsection (2) is not entirely clear; the first part of the subsection could hardly be effective if a certificate is not produced. Presumably the intention is to avoid the necessity for a certificate in a clear case, and if that is so it is suggested that the proviso should be deleted and that the subsection should read as follows:-

"(2) If in any case doubt should arise whether any matter is a

matter mentioned in subsection (1) of this section, a certificate under the hand of the Attorney-General on the question shall be final and conclusive for all purposes.

Clause 7

The effect of the words "subject to any contrary provision" is not quite clear. Enactments which confer powers or entrust duties to the Attorney- General do not usually specify that the Attorney- General must not delegate his powers.

What is probably intended is to ensure that the Attorney- General will not divest himself of any function, power or duty which should not be discharged or exercised by any other person.

One way out of the difficulty would be to leave out the words aforementioned and to rely on the quasi-certainty that an Attorney- General would be careful not to delegate matters which require his personal attention. From the point of view of the public, however, this would not be desirable and the best method would be to follow the scheme set out in Section 1 of the Law Officers Act, 1944 (ch. 25). This would have the advantage of avoiding any uncertainty and of making it quite clear that certain powers which should be performed exclusively by the Attorney-General will not be delegated. If this course is adopted, the section should be limited to existing powers, the right to delegate future powers being considered individually when they are conferred.

Clause 8

The same difficulty as in Clause 7 arises and the clause calls for further consideration.

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