24-JUN-1992 11:46
PAUL FIFOOT
From: PAUL FIFOOT
Tel No: (0372) 723755 Fax No: 0372 723755
23rd June 1992
To: Michael Stone
Hong Kong Department
FCO
Fages. 2
1.
FAX TRANSMISSION
0372723755
P.01/02/16
HKA 233/5
Pa
This is the paper you should havs received y day.
of
24 vi
JUDICIAL OFFICERS AND ELIGIBILITY FOR COMPENSATION
Thank you for your Fax of 21st June and the draft attached. I see no difficulties with paras 1, 2(i) and (iii), 3 to 9, and 14 of the draft submission or paras 1 to 3 of the statement (except that the last two lines of para 2 of the statement should be re-arranged so that "before 1 September 1992" applies to both sub-paras (a) and (b)).
2. Paras 2(ii) and 10 to 13 of the submission and para 4 of the statement do, however, raise problems. I addressed the relevant issues in my manuscript minute of 12th June to you. Briefly I advised that there was no logical reason why compensation and pension should be based on the same service factor, but past practice in compensation schemes had been to use pensionable service as a factor in calculating compensation and, therefore, there could be a reasonable expectation that it would be also used in the Hong Kong scheme. I advised that we should see if buy-back had been a relevant factor in past schemes and to the practice as regards buy-back under the PCSPS. Mr Fish's letter of 19th June does not quite deal with the first issue in the way I put it in my m/s minute, but he makes it clear that past schemes had made no distinction between service taken for calculation of compensation and bought back service and it is clear from that letter that no such distinction is made in the PCSPS. The proposal in paras 2(1), 11 and 13 constitutes a significant departure from past colonial and current UK practice.
3. In seeking to provide a compensation scheme for Hong Kong we are aiming to give effect to undertakings provided in the 1954 and 1960 White Papers. The UK can change its policy, but if it does so it is likely to be criticised, and possibly the decision will be subject to judicial revue, if reasonable expectations are disappointed without good reason or without adequate discussion with (and I believe notice to) those likely to be affected. Sir D Ford's telegramme No 1591 is some evidence of expectation that service bought back would count for HMOCS, i.e. for compensation, and I would doubt whether we could produce evidence to the contrary. It would be difficult to assert that there was not a reasonable expectation that service which counted for pension was to be taken for calculating compensation and was an expectation of the kind which we are seeking to satisfy by our proposals for a compensation scheme. If we are in the business of seeking to satisfy