TNAG-0833-FCO40-1041-Colonial-Regulations-in-the-Dependent-Territories-1979 — Page 42

CODE 18-77

Mr Clarke, HK&GD

COLONIAL REGULATIONS

1.

UNCLASSIFIED

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I am taking action to clear up matters arising from the Governor's Conference.

2. The need to revise Col Regs was raised by Russell of Cayman Islands at the OAG's Conference and we agreed that HK&GD would look into the possibilities

of doing this. Russell suggested that Col Regs should be abolished and replaced by Vol 8 of DSP. This we all agree, I think, cannot be done since DSP has no legal effect in the Dependencies.

3. We all consider, I believe, that Col Regs have become outmoded and should be

This is, brought into line with present day circumstances in the territories. as I understand, the object of the exercise you are carrying out at present.

4. I would like to make a suggestion.

Because Col Regs are issued by the Crown through the Secretary of State for the general guidance of Governors, they do not have the same legal force as Royal Instructions they are guidelines and are not binding see attached extract from Roberts-Wray's Commonwealth and Colonial Law.

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5. But in fact when they were originally issued (100 years ago?) Governors enjoyed

under the total executive authority throughout their colonies and their writ Sovereign ran throughout. Their all-embracing instructions were executed almost entirely by officials wholly subject to Governors' directions. Although only issued "for guidance", CRS in these circumstances were virtually binding on the whole territory, because any Governor who did not comply with them would have got short shrift from the Colonial Office and any official who failed to observe them would have got even shorter shrift from the Governor. Thus, Col Regs issued to Governors for their guidance were in fact, for all practical purposes, binding on all and sundry. However, today circumstances in the rump of Empire are very different; except for Hong Kong, Governors' powers are reatricted. In practical political terms authority for most matters of internal affairs are vested in local ministers and Governors' powers to intervene are tightly circumscribed, if they exist at all (ie Montserrat). Col Regs certainly continue to serve as a guide to the Governor in matters that are of his direct concern, but they are probably a spent force in relation to local ministers in the execution of the functions devolved on them by the Constitution. Furthermore, many Col Regs have been superceded by local laws and regulations, eg Finance and Audit Legislation, Financial Instructions, General Orders and the like.

6.

There are, however, certain parts of Col Regs that must continue to be applied in the interests of good government. There are not many, I agree, but there are some of particular importance, such as finance.

7. My suggestion is that we should examine the relevance of Col Regs in relation to

Those each territory in the light of their constitutions and local legislation. aspects of Col Regs not covered by local legislation and which we consider essential to retain in the interests of good government, could be incorporated in Royal

thus

This Instructions, and become binding on both the Governor and the Government. would get over the difficulty of Col Regs being of limited application to local ministers and their responsibilities. Subjects in Col Regs that are already covered by adequate legislation in the territory, would not of course need to be covered by the Royal Instructions, except to require that any amendment to them needs our

vital approval. Where there is no local legislation, covering aspects of Col Regs, the provisions of Col Regs would be spelt out in the Royal Instructions, together with an instruction that any legislation or regulations and amendments enacted in these matters requires our prior approval. The latter provision is necessary to

/ensure