TNAG-0870-FCO40-1080-Air-services-between-Hong-Kong-and-the-UK-1979 — Page 89

Miss Stoddart, MAED (G66/1)

RECEIVED IN REGIST

REG

Mere 18415

10 AUG 1979

AIR SERVICES ON THE LONDON-HONG KONG.ROUTE

N⋅

Nor the fugal advice

No. 51

RY

Taken

29/8.

See 27

26

13/in

1. I refer to your minute of 7 Anburst enclosing a copy of Counsel's Opinion obtained by the Hong Kong Government on the question whether the Secretary of State for Trade has the power under section 4(3)(b) of the Civil Aviation Act 1971 to give directions to the Civil Aviation Authority (CAA) to treat Cathay Pacific Airways (CPA) as if they were a British airline for the purposes of section 3(1) of the Act when the CAA considers the applica- tions by British Caledonian, Laker Airways and CPA for a licence

for the London-Hong Kong route.

2.

Before I received your minute I had discussed the question with Mr Freeland and Mr Rushford. We consider it doubtful whether such directions could be made under section 4(3)(b). Although it can be argued that the United Kingdom does have "relations" with its dependent territories, it is equally arguable that the provision was designed to deal with the United Kingdom's international relations. Paragraph 6 of Counsel's Opinion refers to the words of Lord Denning in Laker Airways Ltd v Department of Trade (1977) 2WLR 234 at p.244f in which he says, inter alia, that section 4(3) confers large powers in respect of "international relations". Whilst this could be interpreted as a reference to the provisions of section 4(3)(c), (d) and (e) which deal with international organisations and international agreements it could equally be read as covering section 4(3)(b). Lawton LJ (at page 268F) said that the Secretary of State could take action under section 4 in 4 kinds of cases "in time of war, for the safeguarding of national security, in the sphere of international relations, and for the preservation of the environment". The judgment of Roskill L J is no help on the point. Looking at the matter more broadly, we take the view that

3.

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-

even if one can interpret "relations" in a broader sense, it could still be argued that the directions proposed would not be those envisaged by Parliament since their true purpose would be in effect to amend the definition of "British airline" in section 3(1) for the purposes of one application to the CAA.

/4. The definition

1

RESTRICTED