TNAG-0964-FCO40-1183-Air-services-between-the-UK-and-Hong-Kong-1980 — Page 188

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1

CODE 18977

33 4/78

Miss Stoddart

MAED

AIR SERVICES:

Reference

RtR to of Williamsen

131/3

34

لسلام

4KK 1846

LONDON HONG KONG ·1 APR 20

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DESK OFFIC

1. We spoke about the information in Mr Williamson's minute of 28 March, a copy of which I have now eceived. I have spoken to Mr Ayling (Dept of Trade, solicitors about the points made in paragraph 1, to check that my understanding of the legal position accords with his.

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2. As to the assertion that such appeals are "administrative rather than semi-judicial", I think there are problems here over terminology. The whole procedure of licensing is an "administrative" procedure but that does not indicate how the Secretary of State must act. When an appellate body or individual is required to follow certain rules, as to who he may hear, what evidence he may consider, whether he has to give the appellant an opportunity to reply to any submissions made to him, and ultimately to give reasons for the decision, that body or individual is often described as acting "quasi-judicially". He is obviously not a court but is bound by many of the kind of requirements that are applied to the judicial process and if he does not follow those requirements his decision may be quashed in a court of law.

3. Regulation 16 of the Civil Aviation Authority Regulation 1972 sets out clearly who may be a party to an appeal (Paragraph (3)); that "neither the appellant nor any other party may submit to the Secretary of State any evidence which was not before the Authority" (Paragraph (6)); the appellant may reply to any submission made by a party or the CAA (Paragraph (8)); the Secretary of State must give reasons for his decision (Paragraph (11)). These are rules by which the Secretary of State is bound in the conduct of appeals and point to this function being quasi-judicial.

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4. The second point, that the Secretary of State for Trade may consult "anybody who has an interest in the appeal" is correct in sotfangsit may cover those entitled under the regulations to be a party and to make submissions. Beyond this I think one would have to know which person is asserted to have an interest. example, Rolls Royce as suppliers of Cathay Pacific's engines are seeking to make representations and might be said to have an interest in the appeal. However, they cannot be a party and cannot be consulted for the purposes of deciding the appeal. understand that Mr Nott has been advised not to receive Rolls Royce's representations. I think that only those listed in the regulations are entitled to be heard but I would be interested to know more about the specific cases of those alleged to be entitled to be xxxEXY considered.

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5. The position of the Channel Islands and the Isle of Man is covered in regulation 16(14). That expressly provides for overseas countries and territories to be consulted (and as explained on friday, it seems that the Dept of Trade accept this as meaning that the country or territory concerned may initiate the process). However, the regulation makes it clear that such consultation is for the purposes of section 4(3) of the 1971 Act, ie for the purposes of considering whether to give directions in relation to national security or relations with such countries or territories.

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