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6.
The governor is the head of the executive government in a colony and it is difficult to regard him as being in the service of that government or as in the service of the Crown under such a government eg for the purposes of section 16(2)(a) of the 1981 Act.
7. I should describe the office of governor as being an office in the service of the Crown (or under the Crown) in right of the colony (or in respect of the government of the colony).
8. In practice governors do not seem to regard themselves as subordinate to HMG in the UK in the same way as UK civil servants or as UK Ambassadors and High Commissioners overseas but, as indicated in para 2(d) above, they are subject to Royal Instructions to an extent that varies according to the terms of the colonial constitution. Ad hoc Royal Instructions are rarely given except for the appointment of judges. 9. A colonial governor's essential role is to administer colonial
the government, which is distinct from HMG in the UK and which may enjoy a substantial degree of autonomy under its constitution or, even in the absence of such autonomy, as a matter of practice.
10. One can visualise various tests for deciding whether service is under a particular government, eg
11.
(a) who hires and fires;
(b) who pays;
(c) who gives the orders;
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(a) what duties are involved.
As regards test (a) it seems unlikely that a person who is not appointed by Her Majesty in right of the UK or by some other UK. authority would be serving under HMG in the UK.
12. As regards test (b), those serving under HMG in the UK would normally be remunerated from UK funds.
13. As regards test (c), the holder of a judicial office in the UK is presumably regarded as serving under HMG in the UK although he is not subject to the orders of the UK executive, but one would expect the holder of an executive office who was serving under HMG in the UK to be subject to its directions in the performance of his functions.
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14. As regards test (d), it might seem a little odd for the officer whose principal function is to be the head of a colonial government to be regarded as serving under HMG in the UK, in as much as the colonial government (although not fully autonomous) is a distinct constitutional entity. A colonial governor is The Queen's representative in the colony but he is not regarded generally as the representative of HMG in the UK nor as its agent or subordinate, although sometimes he conveys HMG's views to local Ministers etc.
/15. Different
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