HKA 233/1
Reference
137
.....
From: Miss S Brooks, Legal
Counsellor
Date: 16 March 1992
Good. No
real problems
Mr S
Stone, H
м
HKD
17/3
HMOCS: COMPENSATION FOR LOCAL OFFICERS
1.
Ра
pls.
80
I refer to your minute of 9 March concerning paragraph 17 of Command 1193 of 1960 which is about service with overseas Governments. You draw attention to a statement that compensation "may need to be paid also to any local officer appointed by the Secretary of State or on his behalf who is able to show to the satisfaction of the Secretary of State that his career in the public service has been prejudiced by constitutional change or that, because of such change, he has reasonable grounds for anxiety about his career".
2. I think both Mr Fifoot and myself have taken the view in the past that Command 1193 imposes moral rather than legal obligations. It is a policy paper. I think the arrangements that HMG were considering in the policy paper were directed at employing Governments rather than at officers themselves (see paragraph 9, first sentence, paragraph 11, first two sentences, and paragraph 13, first sentence). Moreover, although there are references to "the undertakings given to (HMOCS) members in Colonial No.306", these "undertakings" are cast in general terms. Were they to be set out in letters to individual members of HMOCS in a precise and detailed way, I think that would be another matter. In other words, I think that it is hard for HMOCS officers, and even harder for local officers who are not HMOCS. to arque that the statements made by HMG in Command 1193 amount to legal obligations on which they can rely.
3. Furthermore, I should point out that the sentence you have quoted from paragraph 17 makes it clear that the local officer has to be able to show to the satisfaction of the Secretary of State that. for two reasons, he has reasonable grounds for anxiety about his career. The words "show to the satisfaction of the Secretary of State" make it clear that the Secretary of State is exercising a discretion. In addition, it would be hard for a local officer to show that his career in the public service had been prejudiced by constitutional change or that, because of such change, he has reasonable grounds for anxiety about his career. JD 72 and Basic Law, Article 100 make it clear that public servants previously serving in Hong Kong in Government departments may continue in employment after the