TNAG-0964-FCO40-1183-Air-services-between-the-UK-and-Hong-Kong-1980 — Page 218

Miss Stoddart

Stoddart

RESTRICTED

MAED

AIR SERVICES: LONDON

LONDON

, HONG KONG

Reference

ODE 18-77

SS 8/78

1. In your minute of 25 March you ask how the power to give directions fits in with the appeal procedure.

2. I think that the answer is that the power to give directions is not designed to fit in" at all with the appeal procedure. It is an extreme power reserved for use when specified conditions are met(ie those in paras (a) to (f) of section 4(3) of the Civil Aviation Act 1971. This ultimate power to override the provisions of the Act (section 4(3) ad fin.: "in so far as any directions given in pursuance of this subsection conflict with the requirements of any provision of this Act except subsections (1) and(2) of this section those requirements shall be disregarded") being so extreme in character is to be taken as capable of use whenever the specified circumstances arise and the Secretary of State thinks it "appropriate" to give directions.

30- I find this interpretation is supported by the provision in Regulation 16(14) of the Civil Aviation Authority Regulations 1972 (SI 1972/178) which states:

(14) An appeal to the Secretary of State shall not preclude him from consulting the competent authorities of any country or territory outside the United Kingdom for the purposes of section 4(3)(a) to (a) of the Act notwithstanding that the consultation may relate to matters affecting the appeal."

I do not think that the Secretary of State would have reserved this option to consult about a provision in an Act to give directions if the result of such consultations, or one possible result, was not the issuing of such directions.

4. Thus it is my view that as a matter of law, if the circumstances fulfilled the requirements set out in section 4(3), the Secretary of State could give directions at any time even though an appeal was pending.

5. I think, however, that that bald statement of the position in law must be viewed in context. Unless some new factor entered into the picture while the CAA process and appeal procedure were being followed it would be most capricious for a Secretary of State to give directions based on facts that were known to him before the process started. Similarly, unless there were some new fact or some element that had not been disclosed in the hearings before the CAA or in the appeal, it would be very difficult for the Secretary of State to decide an appeal one way and then immediately issue a direction to the CAA reversing the effect of a decision he had just made.

6. It is not for me to speculate about the position in the present case as I have not been instructed as to the factors that are alleged to fulfil the requirements of section 4(3). However, what is clear is that the Secretary of State decided to allow the procedure before the CAA to go forward without any intervention and that procedure included representations by the Hong Kong Government. If the Secretary of State for Trade decides that the appeal procedure is not to be curtailed by a direction, and if the same evidence is before him as was before the CAA, his decision will be based on a toted picture of the case that includes a statement of the position with regard to Hong Kong by the Hong

RESTRICTED

/Kong