TNAG-1825-FCO40-2592-Hong-Kong-and-the-UK-Criminal-Justice-Bill-Administration-of-1988 — Page 140

Foreign and Commonwealth Office

London SW1A 2AH

J D M Rennie

Office of Parliamentary Counsel

36 Whitehall

LONDON

SW1A 2AY

Telephone 01- 270 3066

Your reference

Our reference

Date

8 March 1988

CRIMINAL JUSTICE BILL

I refer to your letter of 10 February 1988. I have now had an opportunity to discuss it with interested colleagues here.

1.

2.

Our concern as regards the remaining colonies is that the present Bill should enable requests for the return of prisoners to be made to the Governor and that the Governor should have the power to dispose of them exercising the powers of the Secretary of State - and here we are in agreement with views you expressed in your letter of 10 February - but nothing in this Bill should preclude the Secretary of State (a) instructing the Governor how to exercise the powers or (b) even himself exercising these powers in such a case, even though the likelihood of his wishing to do either is remote.

Our concerns derive from two principles: first, the Governor is not an independent authority. The nature and extent of the Governor's authority in a colony will depend on the constituent instrument (Order in Council, Letters Patent) for that Colony but the start point is expressed in Roberts Wray's "Commonwealth and Colonial Law" (at page 339) as follows:

4.

"Royal Instructions and the Secretary of State

Governors in the exercise of their legal powers, are required to observe Her Majesty's instructions. They may be given by Royal Instructions under the Royal Sign Manual and Signet, or conveyed less formally through a Secretary of State by despatch or telegram. And beyond that a matter of constitutional law - it is well understood that the Secretary of State is entitled to intervene in any matter of administration within a Governor's authority, whether legal powers are involved or not."

The second principle is that Her Majesty's Government always remains responsible for the external affairs of a colony and the implementation of a treaty extending to it. There must therefore be no doubt in our domestic law that the Secretary of State retains the necessary power to do so.

15.