TNAG-0964-FCO40-1183-Air-services-between-the-UK-and-Hong-Kong-1980 — Page 219

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Kong Government. If on that evidence he rejected CPA's appeal there would have to be some very convincing factor that was not in the evidence before him if he is to reverse himself by giving directions that CPA be granted a licence.

tor tell.

7. It may be relevant to mention that if the Secretary of State for Trade were to give directions overruling his own decision on an appeal it would be highly probable that BCAL would seek to have the directions reviewed by the High Court. I cannot predict their precise grounds or their chance of successfully raising matters of substance. I can, however, suggest that unless there were some convincing explanation for having allowed both the CAA procedure and an appeal to have been followed/f5P to deciding the matter by directions not based on factors, the courts will bend over backwards to find a way of striking down the use of extreme executive powers to side-step decisions reached by a quasi-judicial process..

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8. Thus the immediate considerations seem to be whether there is really any prospect of assembling a case meeting the requirements of section 4(3); whether it would be better to head off an appeal (if there is a case for directions) so that a further quasi-judicial step is not taken that would make it harder to justify directions later (if justified then); or whether there really is some factor that could be fed in after an appeal has been rejected that would convincingly alter the picture and so justify holding off until then. These are all matters for you rather than me and I am trespassing in raising them, but I am concerned that the problems over section 4(3)(both factual and legal may not be fully realised.

FOO

+ [on the legal side I

am waiting for papers on the API Act pour

Aldor

9. Taking up the point in para 1 of your minute, the thought behind my paragraph 10 of my minute of 20 March was that if the conclusion is reached that we cannot realistically expect the matter to be resolved by directions, FCO may be able to preserve some semblance of good repute with Hong Kong by making representations of concern before any appeal is lodged, even though we know that such representations cannot affect the course of an eventual appeal. However, I should perhaps have warned that even in those circumstances it may be that the Secretary of State for Tradę would simply respond by saying that as he is the potential arbiter of any appeal there is nothing he can as a result of any representations.

25 March 1980

Mi Burton

Richard Gardina

RK Gardiner Legal Adviser

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