Mr Stone HKD
PA BP
HKA 233/7
q
8079.
From:
Miss S Brooks
Legal Counsellor
Date:
29 September 1992
AUTHORITY FOR RETIREMENT:
1.
LIMITED COMPENSATION SCHEME
I refer to Ms Williams' manuscript of 7 September. The Broadley case has raised a wide issue. Mr Broadley appears to accept that he holds his office during Her Majesty's pleasure. He is, however, now querying whether the power to dismiss him has been properly exercised. Paragraph 2 of the Limited Compensation Scheme merely defines officers to whom the Scheme applies. It does not in itself confer authority to dismiss an officer. Accordingly, Mr Shipley's minute of 26 October 1987 to the Governor informing the Governor that the latter 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. Mr Wingfield, Crown Solicitor, in his minute of 3 March 1992 recognises that it had been thought that the authority to require an officer to retire in the interest of localisation derives from paragraph 2 of the Scheme. 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 delegatee to do so, except on disciplinary grounds, seems far more doubtful since this is not provided for in the Colonial Regulations. It is not necessary that the Limited Compensation Scheme needs to be endorsed by the Secretary of State 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. This is the point rather than that the power cannot be safely relied
upon.
2.
What is required then, is not the endorsement by the Secretary of State of the Limited Compensation Scheme but a new provision in the Colonial Regulations with application to Hong Kong, enabling an officer to be retired in the interests of localisation, constitutional change or whatever. It would supplement Section J (Retirement) but for Hong Kong only. This would be a power which would be conferred on the Governor. After this we can obtain the Secretary of State's approval for the Governor to delegate this power as in the previous exercise we undertook; I do not think we would want to write this directly into the Colonial Regulations.
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