CONFIDENTIAL
AKK 430||
RECEIVED IN REGISTRY NO. 51
15 FEB 1980
DESK OFFICER
INDEX
PA
REGISTRY
Action Take
233-3184
15
I FC Macpherson Esq
Director of Administration and
Management Services Government Secretariat HONG KONG
B
(22) in CR1/3221/79
HKK 430/1
14 February 1980
STATUS OF PUBLIC SERVANTS IN HONG KONG
1. Thank you for your letter of 31 January to Donald Murray about the possible need to simplify and codify Government Regulations, and provide them with legal backing.
2. We have discussed your letter and its enclosures with our departmental Legal Adviser, Tony Rushford, who has said that there is little that he can add to the excellent and comprehen- sive analysis in your Senior Crown Counsel's opinion of 8 Janu- ary. He has, however, questioned whether it is the case, as suggested in the third line of page 14 of the opinion, that the Order in Council from which Estacode is derived has "legislative force". Graham's assumption that it does possibly derives from the statement in paragraph 4 of Murray's letter of 21 November: but we now realise that that paragraph was wrong. It does not follow that, because regulations under Estacode are made under powers derived from the Civil Service Order in Council, those regulations necessarily have the force of law.
3. In fact, therefore, it appears that the position in the UK is analogous to that in Hong Kong. I am writing to the Treasury Solicitor's Department and to the Civil Service Department here to ask if their understanding of the position coincides with Rushford's, and if it does, whether they believe that the situ- ation in practice creates any insuperable problems. Until we receive their replies, I do not think I shall be in a position to give you answers to the points raised in your paragraph 6, though I should be perfectly happy to discuss the subject as far as we can when we meet on 25 February.
4. The outcome of your case against the Dispensers will, of course, have an important bearing on the question. Rushford believes that it is inconceivable that the verdict should go against the Government, basically for the reasons set out in your letter. If, against all logic, the case does go the wrong way, this will have important implications not only for Hong Kong
CONFIDENTIAL
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