TNAG-2219-FCO40-3187-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 37

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DIRECTOR OF ADM.

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(at

speeches of Lora moulten (at 2.554) and of Luru Parmoor PP.575-576). I shall refer later to short passages from the lutter's speech.

In Council of Caval Service Unions v. Minister for the Civil Service [1985] 1 AC $74, Lord Roskill, when agreeing with Lords Scaran and wiplock that a decision-making power was amenable to judicial revien

whether its source ..as 27 prerogative power (subject to some exceptions) or statutory power, pointed out, at p.417:

In yet other cases,

the vecisions

show, the two powers may co-exist or the statutory power ay y necessary implication Have replaced the Lormer prerogative."

an Article

Thus, for example, nolly unfettered though the power of

the Governor to appoint judges was when on the lines or the present Article XIV Vas I list promulgated, ne cannot in the present state of the statute book appoint someone to wje a juuye of the Supreme Court or of the Jistrict Court unless pe or sne is qualified to hold such an office by virtue, respectively, of s.y of the Supreme Court Ordinance or of s. of the District Court Orainance and, as we have seen, the manner of appointment is governcu

s.vli of the former, and by s 4121 of the utter. vrdinance.

•

Is the article XIV power to appoint capable of aelevation?

This seems to me to pe a crucial, if not the decisive, issue 10 this appeal. Counsel for the Chius nave aryued strenuously that the powers gaven to the Governor under Article XIV must, in Hong Kong, we exercised by the Governor personally and may not be delegated.

Patent powers could lawfully be delegateu, it was submitted, where Letters

express power was given as in the ammended Article XIII relating to grants etc. of land. Insofar as the business of