THE HONG KONG GOVERNMENT AND ITS SERVANTS
In the "old Commonwealth" countries; Australia, Canada, New
Zealand (and formerly South Africa) conditions of service under the Crown
are regulated by statute. The rights and duties of the Crown and its
servants are mainly questions of statutory construction. In the United
Kingdom, and again in colonies of the more primitive colonial model,
the position remains more tentative. Jurists and commentators have expressed divergent views, and indeed, it is not difficult to find contradictions within most of the leading articles. Professor I.L.M.
Richardson writes :-
"The structure of the civil service in the U.K.
rests upon prerogative powers of the Crown."
1902.
As
This is undoubtably correct. Civil Service Order in Council, Oct. 22 1969,
empowers the Minister for Civil Service to make regulations or give
instructions for controlling the conduct of the Home Civil Service.
we have seen, the Order in Council is the usual device whereby the Royal
prerogative is communicated.
On p.425, however, contrasting the position of the Crown's
civil and military servants, the same author writes :-
"by its prerogative rights the Crown has absolute
control of the armed forces .... any implied powers of
the Crown regarding its non-military servants is based on public policy and not on prerogatives of the Crown".
The authority relied upon for this proposition is Shenton v. Smith 1895 A.C. 229. A temporary resident medical officer sought to
establish that certain rules and regulations of the Colonial Service called "The Colonial Office List" (a forerunner of Colonial Regulations) constituted
a "special contract" between the respondent and the Crown, modifying the ordinary tenure at pleasure of Crown Servants. Lord Hobhouse delivered
the judgment of the Judicial Committee. Their lordships considered that
I.
Now The Hon. Mr. Justice Richardson of the
S.C. of New Zealand, See "Incidents of the Crown Servant Relationship", Vol. 33 Can. Bar Review (1955)