A
All useft ammunitie against te 'do nothing' option
The Ricketts Ew 2111 Miss Williaen 2111
Mr Stone of
P.a. pls
Useful clarification.
DATE:
There is also the question whether, FROM: even if the HMOCS Assoc. had been properly consulted, the courts might see the failure to meet their reasonable expectations as grounds for judicial review (Miss Brooks'
minute of 11 December).
Mr Cox
HKD
16.
Cc:
HKA 233/1
Miss S Brooks Legal Counsellor
16 January 1992
4/24/1
Mr Chamberlain,
Deputy Legal Adviser
HMOCS: HONG KONG TELNO 94 OF 10 JANUARY 1992
1.
You ask me whether the courts would make a declaration of the kind envisaged at paragraph 9 of the above telegram. I do not think the courts would make a declaration on the grounds referred to in that telegram, but I think it is quite possible that the courts might make a declaration that the compensation scheme is invalid because HMG had not complied with the requirements of natural justice in failing to consult the HMOCS Association before setting up the scheme (in the event that HMG do fail to consult).
2.
A declaration is not a ground for judicial review; it is a remedy. As such, it has often been used as a means of judicial control over the acts of the Administration. It does not 'quash', 'prohibit' or 'order'; it merely declares the legal position.
3.
A declaration will not lie if the question on which the court's ruling is requested is hypothetical or has not yet actually arisen. For this reason, I think the HMOCS Association would be unlikely to obtain a declaration that HMG have responsibility to introduce arrangements for Hong Kong HMOCS similar to those introduced for HMOCS officers in other territories upon the change of sovereignty, in advance of a compensation scheme being introduced. Also, I think the grounds are referred to in paragraph 9 of the telegram are shaky because the White Papers do not appear to establish any legal obligation on the part of HMG to introduce arrangements of the kind that HMOCS are very likely to want. Paragraph 9 of the telegram refers to the argument as being one of 'a moral obligation clearly established through practice and precedent elsewhere and in various White Papers'. The argument that there is a moral obligation is unlikely to satisfy the courts as a sufficient ground for judicial review.
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AELABW