TNAG-0964-FCO40-1183-Air-services-between-the-UK-and-Hong-Kong-1980 — Page 239

DE 18-77

SS 8/78

Miss Stoddart

MAED

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Reference

AIR SERVICES: LONDON

1.

HONG KONG

In paragraph 1 of your minute of 20 March you rightly deduce that it was the point in paragraph 7 of my minute of 15 August 1979 which has been causing me concern over the taxt paragraph 4 of Mr Morrice's minute of 19' March.

2. Decisions of the Civil Aviation Authority are reached by a quasi-judicial process, that is to say on the basis of evidence submitted to the Authority and following a process that contains legal safeguards for those concerned, such as the right to know the evidence that is being submitted by other interested parties and to challenge such evidence or adduce arguments based on it.

3. In my view there would be a general presumption that in any appeal from a decision reached by such a process, unless the contrary could be established, the same quasi-judicial requirements would apply. The extract from the Civil Aviation Authority Regulations 1972, attached to your minute of 19 March so far from rebutting this presumption re-inforces it.

4. As you point out in Regulation 16(10) the Secretary of State is empowered "if he thinks fit" to uphold the decision of the Authority or to direct the Authority to re-hear the case or to reverse or vary the Authority's d

ision..

I understand this as granting the Secretary of State a7substitute his decision for that of the Authority if he so chooses. However, that does not in any way affect the evidence on which he should base his decision.

5. Regulation 16 is very precise as to who must be given an opportunity to participate in the written process that constitutes an appeal. Regulation 16(6) makes it clear that those who have a right to make written submissions in the appeal may not introduce any evidence that was not before the Authority when it decided the case. The Authority is given an opportunity to give an amplification or explanation of its views and the Secretary of State may ask any that has bid made a submission to give an amplification or explanation.. However, it is to be noted that in either case the appellant has an opportunity to reply to any amplification or explanation, just as he has/to reply to any submission.

any party

6.. In my view this points very clearly to the conclusion that the procedure is designed to exclude any fresh considerations being introduced to ag appeal, which must therefore be clearly confined toythe existing evidence. Further argumention or submissions may be advanced but as in a judicial process, the appellant has the opportunity to attempt 8 XIX counter any such arguments or

submissions..

a

7. I would therefore provisionally conclude that the Secretary of State for Trade could not, when considering an appeal, properly take account of written views submitted to him by the Secretary of State for Foreign and Commonwealth Affairs. These would be extraneous matters put to him by one who is not a party to the proceedings, which were not available to the Authority and on which the parties have not had an opportunity to comment.

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18.