TNAG-0314-FCO40-350-Appointments-to-judiciary-of-Hong-Kong-1971 — Page 119

Reference.......

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Lin

Mr Laird

I think the Hong Kong Government's proposal to issue a circular on this matter is bad for the following reasons

2.

(i) The mere fact that the Government saw fit to issue a

circular would tend to give the matter disproportionate significance and hence to disturb the Service in spite of the reassuring terms of the circular.

(ii) The issuing of a circular might also be taken as an

indication that an appointment from the Bar was imminent. If this is not the case, and we have not been told that the Governor has such an appointment in mind at the moment, then the Service would be disturbed unnecessarily.

(iii)

(iv)

A copy of the circular would inevitably find its way into the hands of the Bar Association and I would expect that the terms of the circular would provoke the Bar Association into a vigorous renewal of their earlier demands. You will remember that the case which Mr de Basto sought to argue before Lord Shepherd was that all appointments to the Bench should be either from the practising Bar in Hong Kong or from the Bar in England.

Although the Governor and the Secretary of State (or the FCO) have as a matter of policy agreed on the circumstances in which an appointment from the Bar might be justifiable, it would be wrong in principle for the Hong Kong Government to issue a document which purported to fetter the Crown's discretion in the matter of selecting persons to be Her Majesty's Judges in Hong Kong.

(v) If the circular were issued the members of the Service would regard it (and with reason) as part of their conditions of service and the terms of the circular would give members of the Service scope for maintaining that their conditions of service were being contravened by a particular appointment from the Bar. Under paragraph 4 they could allege either that there were officers of sufficient calibre available in the Service or that the appointee from the Bar was not suitable. Alternatively, under paragraph 5, they might maintain that the experience of the person selected from the Bar was not such as would strengthen the Bench. These, of course, are all matters of subjective judgment; the decision must lie with the Crown; and the Crown ought not to be put in a position (as it might be if the circular was issued) of having to justify its decision as not being a contravention of the conditions of service applying to existing members of the subordinate judiciary or the legal staff.

In my opinion the correct procedure would be as follows

(a) Let Mr de Basto have the reply suggested in your letter

of 4 November 1970 to the Acting Colonial Secretary - folio 34 on HKK.14/30; and

/(b)