30 September 1992
(By Fax)
M J C Waters Esq Civil Service Branch Government Secretariat Lower Albert Road HONG KONG
Dear Herwaters,
AUTHORITY FOR RETIREMENT:
кле
-
HKA 233/7
30
盩
Foreign & Commonwealth
Office
London SWIA 2AH
Telephone: 071- 270 2652
LIMITED COMPENSATION SCHEME
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Further to my predecessor, Miss Williams' letter of 9 September 1992 to Miss Tsang, our Legal Adviser has now given us her advice on the issue of the Limited Compensation Scheme.
There does appear to be a problem over the Governor's authority to retire an officer under the provisions of paragraph 2 of the Limited Compensation Scheme. Paragraph 2 merely defines officers to whom the Scheme applies. It does not in itself confer authority to dismiss an officer. It would, therefore appear that Mr Shipley's minute of 26 October 1987 to the Governor informing him that he now had the authority to permit an officer to retire in various circumstances such as in the interests of localisation or to facilitate constitutional change, was misconceived. While the Crown through the Secretary of State may dismiss a civil servant at will (see Colonial Regulation 55), the power of the Governor or his delegates to do so, except on disciplinary grounds, seems far more doubtful since this is not provided for in the Colonial Regulations.
Our Legal Adviser thinks that the endorsement of the Limited Compensation Scheme by the Secretary of State is not necessary to put the matter beyond doubt. The point about the scheme is that paragraph 2 contains no power to require an officer to retire in the interests of localisation rather than the point that the power cannot be safely relied upon. Subject to Mr Wingfield's views we suggest that a new provision will have to be added to the Colonial Regulations, with application to Hong Kong, enabling an officer to be retired in the interests of localisation, constitutional change, in the interests of the development of the public service and if circumstances exist which make it unreasonable for the officer to continue in the service. It would supplement Section J (Retirement) but for Hong Kong only. This would be a power which would be conferred on the Governor. We could also obtain the Secretary of State's approval for the Governor to delegate this power, but this need not form part of the Colonial Regulations.
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