TREASURY
SOLICITOR
THE TREASURY SOLICITOR Matthew Parker Street London SW1H 9NN
Telex 917564 Telegrams Proctorex London SWI
R D Clift Esq
AKK 430/1
SWITCHBOARD 01-233 3000CEIVED IN REGISTRY NO. 51
01-233 7506
Telephones
DIRECT LINE
Hong Kong and General Department Foreign and Commonwealth Office King Charles Street
LONDON
SW1A 2AH
2 8 MAR 1980
DESK OFFICER
Please quote T&476%
Your reference
Date
18 March 1980
PA
कार
RELISH
Actio..
"AW 10/47
Deo: blift, веду
POSITION OF PUBLIC SERVANTS IN HONG KONG
Thank you for your letter of 14 February.
2. I agree that the present position of the Hong Kong Civil Service would appear to be broadly similar to that of the Diplomatic Service and the Home Civil Service in the UK at least as respects the general question of the legal status of civil servants. The simple truth is that the legal position on this question is not clear; indeed the state of the judicial decisions illustrates case law at its worst.
For
3. We here have also been grappling with the status question. some years now some of us (myself included) have taken the line that, although the matter is not free of doubt, the likelihood is that, if a UK court were now thoroughly to examine the whole question, the probability is that it would conclude that the relationship between the Crown and civil servants is contractual - subject to the qualification (which can only be erased by statute) that the Crown can (at common law) dismiss at pleasure. This view is advanced in the latest editions of several textbooks and is, in my opinion, supported by the cases of Sutton, Reilly, Cameron, and Kodeeswaran. It seems to me that case law took a wrong turning in 1926 (as a result of certain remarks by Lord Blackburn in Mulvenna's case) and did not get back on the right tracks until the Kodeeswaran case in 1970.
4. As a result of the widespread industrial action in the civil service early last year we recently felt it necessary to put up a case to the Law Officers on a fair number of questions on Crown employment since they affected the lawful power of civil service management to respond to such action. In a Joint Opinion of the Law Officers and both Treasury Counsel given last October the following passage is relevant:
"In this Opinion we have assumed against the Crown that the relationship between the Crown and its employees is basically contractual such that a claim in contract by the employee cannot be defeated in limine. In the light particularly of Kodeeswaran v AG of Ceylon 1970 AC 1111, we believe that assumption to be correct though the contrary is certainly arguable. It will be for consideration in any given case whether the Crown should as a matter of policy take the point, unattractive though it is to modern eyes.
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