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(8.2)
8.2.3
8.2.4
8.2.5
8.2.6
Desk officer confirms whether disallowance or non-disallowance is appropriate (paras 8.2.88.2.10) and informs the OAG
Desk officer returns file to Library to note date of non-disallowance (para 8.2.11)
On receipt of the file, the Commonwealth legal section of the Library detaches authenticated copies of the legislation. If any model Ordinance or law or any international agreement is referred to in the legislation or its legal report or comparative table and is not already attached to the file or its accompanying papers, the Library attaches copies and returns the file to the desk officer.
On receiving the file back from the Library, the desk officer examines it to see whether the advice of any FCO Department is required, particularly that of any of the Advisers or whether consultation with any other government department is necessary or desirable. For example, if the legislation concerns trade unions, and the Overseas Labour Adviser were to advise that some provision should eventually be repealed on the grounds of its general repugnancy (see Annex 11) to some accepted practice in the United Kingdom, the point would at least have to be drawn to the attention of the Departmental Legal Adviser; and if it were intended to persuade the OAG to remove the provision at a later stage, the Departmental Legal Adviser's time may be saved by the point having been first examined in respect of policy. It is in any case tiresome first to find an enactment clear on legal grounds, and then to have to criticise it on some other grounds. In many cases the matters to which the legislation relates will already have been fully discussed between the FCO and the OAG, and further consultation within the FCO may not be necessary. But when it is necessary, it should be undertaken at a very early stage.
The desk officer checks that the requirements of Colonial Regulation No 149 have been complied with and makes sure that all relevant documents are attached.
After all matters of substance have been dealt with, the desk officer sends the file to the Departmental Legal Adviser for his advice. The purpose of referring policy-cleared legislation to a Departmental Legal Adviser is so that he may consider whether or not there are any legal reasons for any intervention by HMG (ie seeking to have the enactment amended or in extreme cases, withholding signification of non-disallowance). Governments of DTs have their own Law Officers, and responsibility for their legislation is, from the legal standpoint, theirs and not that of the Legal Advisers of the Secretary of State. This ensures the compatibility of the legislation with the legal requirements of both HMG and the DT. The following classes of legislation need not be referred to the legal advisers:
(a)
(b)
(c)
(d)
Legislation which has been seen in draft and approved without comment by a Legal Adviser, and which follows the approved draft;
Legislation which has been approved in draft by a Legal Adviser, subject to suggestions for alteration of the draft, where such suggestions have clearly been adopted;
Appropriation Ordinances and other enactments passed annually in substantially the same form as that used in previous years;
Legislation merely amending provisions relating to customs duties, fees and the like, where no question of legal principle is involved.
8.2.7
Subsidiary legislation (ie rules, regulations, by-laws, orders, notices etc) need not be referred to a Departmental Legal Adviser save in exceptional circumstances eg where the Secretary of State's approval is required, and even then the exemptions listed in para 8.2.6 apply.
September 1980
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AL/2
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