TNAG-0992-FCO40-1211-Policy-on-salaries-and-pensions-for-civil-service-in-Hong-Ko-1980 — Page 54

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exercise the disciplinary powers which are conferred upon him by Letters Patentat

It was argued, however, by the respondent that Col. Regs.

do not constitute such Instructions; that they are no more than guidance for the Governor, that he can ignore them as he wishes and that the result of his so doing could, at most, be no more than a remonstrance from the Secretary of State. It was not disputed, however, that no other. Instructions (save those of the informal type. (b). referred to above) have been issued to the Governor in

furtherance, of Article XVI.

26 AnoLICLugga

* The first paragraph of: Col. Regs. states that they are Sacs "Directions to Governors for general guidance given by the Crown

through the Secretary of State", but does not recite the power

under which Col. Regs. are made.

We do not think that there is any distinction between Instructions and Directions, though counsel for the respondent sought to persuade us that there is. Both words import the giving of orders which are expected to be obeyed. It was further argued that the words "for general guidance" show that Col. Regs. are merely advisory and not directory. We do not think that that phrase can have been intended to contradict the word "Directions"

and so convert an order into a suggestion. If Col. Regs. were merely meant to be for administrative guidance and not to constitute directions, they would not have said that they were

directions. It is to be noted that Col. Reg. 1 states that Part I

of Col. Regs. "applies

to public officers". This is surely

the language of direction, not of discretion.

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If Col. Regs. are to be characterized as Instructions for the purposes of Letters Patent, what is their status? Roberts-Uray suggests that they, are in the nature of subordinate legislation and that they have the force of lau "if they have mandatory effect", but concludes that they do not have the force of lau since they are

"directory" only.

If an

We do not find this distinction easy to draw.

instrument has the character of subordinate legislation, it does not lose that character because some of its provisions give guidance and do not impose positive obligations or rights of an enforceable

nature.