CODE 18-77
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CONFIDENTIAL
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HKB 233/1
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Miss Brooks, Legal Advisers
HMOCS OFFICERS IN HONG KONG
1.
Qui
26/11
We are now locked in battle with the Treasury about the financial arrangements for members of HM Overseas Civil Service (HMOCS) employed by the Hong Kong Government when British sovereignty ends in 1997. The matter will soon have to go to OD (K), but before that we need as much clarity as possible about the points at issue. We should be grateful for your advice on whether HMG have any relevant legal obligations towards members of HMOCS on the change of sovereignty and how the courts would be likely to react to an application by HMOCS officers for judicial review of HMG's policy in this respect. (I attach copies of relevant minuting by Mr Fifoot last year.)
2.
We are clear that there are strong political grounds for putting in place arrangements which provide sufficient reassurance for HMOCS members as to lead them to remain in service in Hong Kong until 1997 and as far as possible thereafter. We are also clear, though the Treasury contests this vigorously, that it would not be politically possible for the Hong Kong Government to pay for these arrangments (not least because it could not afford to offer similar arrangements for local civil servants and because of the Chinese dimension).
3. We are also clear that HMG has certain moral obligations towards these HMOCS officers, although there is disagreement with the Treasury about the extent of such obligation. These moral obligations, and presumably any legal obligations, derive from specific assurances offered to HMOCS members by successive governments on which the people concerned will have relied in deciding whether to join the HMOCS or to remain within it. The key assurances are set out in Annex A.
4. The Government's past practice is also relevant to the interpretation of these assurances. In all cases when the formerly dependent territory has failed to play its part in the partnership which the 1954 White Paper envisaged, eg to safeguard pension values, HMG have taken on the commitment. The package of protective measures provided when the Secretary of State ceased to have control consisted of the following points:
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All Officers could retire voluntarily with immediate payment of pension (entitlement calculated in accordance with number of years' service)
C
All Officers received compensation for loss of career. The compensation scheme should provide an inducement for officers to continue to serve while their services are required
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CONFIDENTIAL