CONFIDENTIAL
Argument and Recommendation
5.
Whether an individual is accepted for enrolment as a
member of HMOCS is a matter for the Secretary of State.
There is no doubt that, if the Secretary of State wished, he
could refuse to consider applications from the judicial
officers concerned. But past practice in Hong Kong has
been to accept application. The main arguments for and
against refusing applications from the Judiciary in future
without warning are as follows:
For
It could make matters marginally less difficult with the
Treasury if we exclude the 40 or so who may decide to become
members of HMOCS.
-
The compensation proposals were not designed for a quick
profit but to recompense for real or anticipated loss of
career under the Crown. This does not readily apply to
these officers who have been aware since 1984 of the
prospect of a change in sovereignty.
Against
- If reasonable expectations of eligibility for, and
enrolment in HMOCS are defeated without notice the judicial officers concerned will create a rumpus. They could no
doubt mobilise vocal support here: the Court of Final
Appeal argument has alerted people to the need to retain a
strong expatriate element on the Hong Kong bench. This
would detract from what we hope will be viewed in Parliament as a fair package. The package will not be well received by
HMOCS and the fewer fronts we have to fight the better.
- We could not rule out a judicial review of our handling of
this issue. If it did come to judicial review, the courts
would have grounds for criticising us for changing our
policy without consultation and without notice.
-
The additional cost of allowing in say, 40 more judicial
JUDADN/3
CONFIDENTIAL