Liu
1kk184/5
BY LAGISTRY
RECEIVED IN REGISTRY NO.
16 AUG 1979
MRA 184/393/1
30
Etv alpa
1618
AIR SERVICES:
DESK OFFICER
LONDON-HONG KONG
PA
1. In the second sentence of paragraph 3 of the draft Submission there is a reference in brackets to the GAA giving CPA a fair hearing. I think it is not really a matter of due process or fair hearing. The CAA is under a legal duty to perform its functions in a manner best calculated to secure certain objectives, one of which discriminates against CPA. I therefore suggest that in place of the words in brackets, you might say "though the extent to which this disadvantage will affect the outcome of the CAA's hearing of the applications cannot be predicted.
2. While I agree that there is a presumption that Parliament chose the definition of "British airline" quite deliberately, Hansard for 29 June 1971, columns 215-217, discloses an interesting picture of how the definition reached its present form. The clause in the Bill was very wide, covering any air transport undertaking appearing to the Authority to be controlled by the United Kingdom nationals. This met criticism that, while extremely wide, the provision did not include an airline based in the United Kingdom and using United Kingdom registered aircraft which happened to be controlled by foreign nationals. It seems that the amendment, in concentrating on the issue concerning an airline based in the United Kingdom but not covered by the wider definition resulted in a narrow definition tailored to meet the particular defect. the aim was stated as being to cover those airlines looking to the Authority not merely for licences but for help and encouragement. But it seems clear from the report that the amendment was agreed to because it met the specific difficulty and not after any consideration of a case such as the present one.
True,
3.2 Accordingly, unless there is other information of which I am unaware, I think the reference to the definition being "quite deliberate" may not convey the correct impression. What can be said is "The definition of 'British Airline' in the Act is quite clear and there are doubts as to the propriety of a direction to the effect that the definition be disregarded in a particular case.
4. It is not for me to comment on policy but in paragraph 2 of your minute of 14 August, you say that the Department of Trade may question whether we should be suggesting possible amendments to the Bill. There is no bar at all to the FCO suggesting amendments and as the definition concerns Hong Kong directly, I think the FCO clearly has locus standi.
5. With reference to the last two sentences of paragraph 4 of the draft Submission, I think it is essential to consider the scope of the existing arrangements for licensing. Section 21 of the Civil Aviation Act 1971 requires a licence in the case of "any flight in any part of the world by an aircraft registered in the United
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