TNAG-2219-FCO40-3187-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 63

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DIRECTOR OF

HUM.

50

852 877 0802

P.52

a

and

instrument I conclude that it must we within the spirit intenament of Article XIV that the Governor should by that Article have been given a power which included, as necessary incident to the due performance of his office, the authority to delegate the power where circumstances were considered by him to make this necessary.

ust rave

reasons.

ladenince

100

In my opinion authority for some form of devol

peen intended to be implied,

to be implied, for practical Although the Governor exercises tris prerogative power as a servant of the Crown and not as a vicero; I do

of the not consider that he can

minister De equated with = Crown in England who exercises prerogative powers of the

Crown Las

distinct from statutory powers: see key. v. Secretary of State for the Home Department, ex parte

LA 1195 per Lord Jonaluson at

as the alter eyo or

or the Crown under the Carltona principle. The Governor nas legislative powers to exercise by and with

VII of Mavice of the Legislative Council under Article

the Letters Fatent ano re assents to bills under article X

subject to the restrictions imposea by clause xXVI of the

Koyal instructions. He summons and presides over the

VIII of Executive Council pursuant to clauses VII and Moyal instructions. He presides over the Legislative Council under clause XXI of the Royal Instructions. He does

not have a portfolio or assume responsibility for government

departments, nor 15 1.2 answerable to the Legislative Council

in the way that Minister of the Crown is answerapie to

Parliament.

the

سے

the

Accordingly, whilst I do not intend to be taken to

be holding that the Governor can in no circumstances act

through another person who is his instrument or alter eyo, I

nevertheless cannot accept that the Carltona principle, as

recognised and applied in England, is applicable to the

Governor's powers and auties under the Letters Patent. The

systems of government are not the same. I apprehend that

this explains why in the past it was common form in former