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Mr Leeks
Hong Kong Dept
CONFIDENTIAL
lit schis Tel Sut
As amota
233/2.
A
18. il
FROM:
DATE:
Paul Fifoot
Ce 12/3
17 March 1987
PS
c.c.
HONG KONG: NEW PENSIONS SCHEME
1. I have looked at the draft Pensions Benefits Bill from the point of view of the Secretary of State's responsibilities. I have not considered any strictly pensions points, nor, in this minute, do I draw attention to any drafting points which arise other than those on clauses 27 and 29 and clause 33.
2.
Under the main Pensions Ordinance (CAP 89), the Secretary of State has
powers in relation to the amending of regula- tions - these are particularly relevant as regards "other public service" and with regard to retired officers who are not resident in Hong Kong (see CAP 89, sections 13 (3) and 15 (1)). There are no comparable provisions in this Bill.
3. It is understandable that Hong Kong should have omitted such provisions as part of their "localisation" of their laws. However, as Mrs Willis (her letter of 10 October 1986 to Miss Newby) accepts, the removal of the references to the Secretary of State in the legislation, bes mt preclude the Secretary of State from intervening by instruction. This is clearly the case. The Governor is required by the Letters Patent to exercise his functions in accordance with any instructions he receives through a Secretary of State. So long as the Secretary of State retains responsibility in relation to Hong Kong, he cannot avoid responsibility in relation to the public service of Hong Kong. In acquiescing in Hong Kong's deliberate- ly deciding not to reflect in the present Bill the powers con- ferred upon the Secretary of State in relation to CAP 89, therefore, the Governor should be informed that the Secretary of State is not in any way abdicating his general responsibili- ty insofar as it relates to the public service; in future, however, that responsibility would be exercised through instructions pursuant to the Letters Patent rather than direct- ly by powers conferred in a Hong Kong Ordinance.
4.
In practical terms, this means that the FCO will want to see any proposed changes in the Pensions Benefit Ordinance when enacted and to be made aware, in advance, of any proposals relating to "other public service", in order that the Secretary of State may have an opportunity to consider whether he wishes to issue any instructions.
CONFIDENTIAL
5.
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