heart
4.
This means that the HK basic pension should be protected against adverse exchange rate movements.
In the Memorandum on the Public Officers' Pensions (Tanzania) Agreement 1976, referred to in paragraph 1 above, concluded between the British and Tanzanian governments, it states in paragraph 12:
"The supplement payable under the Pensions (Increase) Act 1971
is in broad terms the increase in pension necessary to maintain the original (sterling) purchasing power of the Tanzania pension.'
It would not be possible to apply this principle to the Hong Kong pensions unless the basic pension was protected against adverse exchange rate movements.
13. In a preprinted letter, apparently designed for general distribution, sent to me on 6 July 1987 by the Crown Agents (which previously paid the pensions on behalf of the ODA), the following statements were made:
"Pension supplements are intended to maintain the original
purchasing power of overseas service pensions, and to supplement overseas pensions to the level of United Kingdom public service pensions. ... For those pensioners therefore whose pensions are paid at a current rate of exchange, their supplements will be adjusted from one payment period to another to take account of currency fluctuations, so that the total of pensions and supplement payable in any period will be more or less constant."
This means that the Hong Kong pension, including the basic pension, should be protected against adverse exchange rate movements.
14. When I quoted these documents to the ODA, they replied by saying that the Ministry Guide and the Crown Agents' letter were erroneous and had no authority. They rely on Regulation 17(1) for their authority to convert the basic pension at a historical exchange rate and so prevent it being protected against adverse exchange rate movements (the HK supplements are converted at the current rate of exchange for the purpose of calculating SPCS and therefore are protected). I responded by saying that the quotations from the Ministry Guide and the Crown Agents' letter were fair and reasonable and bore the hallmarks of a properly formulated policy, whereas what the ODA were doing in practice was neither fair nor reasonable because it created anomalies and discriminated against one group of pensioners for no good reason. From the foregoing documentary evidence it is clear that Section 11(4) of the Act intended that only net increases paid by an overseas government should be taken into account. To put it another way, it is implied that reductions as well as additions to the value of the pension should be taken into account in determining the supplement, otherwise it "would do violence to the legislative intention inferred both from other provisions of the measure and from accepted notions of good government and administration." paragraph 9 above.
The Vires of Regulation 17(1) of the Overseas Service (Pensions Supplement) Regulations 1977
15.
Subordinate legislative instruments, as well as administrative acts and decisions, may be held to be ultra vires (de Smith's p.96). The House of Lords has laid down the principle that "whatever may fairly be regarded as incidental to, or consequent upon, those things which the Legislature has authorised, ought not (unless expressly
Precede's