TNAG-0991-FCO40-1210-Policy-on-salaries-and-pensions-for-civil-service-in-Hong-Ko-1980 — Page 320

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there is no easy answer to the question,

Emphasis]

is either the Crown or the civil servant bound by these regulations made under the prerogative?

In fact three possible answers could be given :-

(i) that neither party is directly and contractually

bound by the regulations, which constitute merely statements of policy [etc.].

(ii) that the regulations bind the civil servant but

not the Crown, and in that respect the contract is purely unilateral [sic.].

(iii)

that the regulations become terms of the contract

binding both the Crown and the civil service.

The learned author then pumps for the 3rd option - a contract, but "civil

service regulations are directory only, if they attempt to limit in any

way this power of dismissal at will, and it takes an express contract,

which in the particular circumstances is not contrary to public policy,

to limit or exclude this power".

No authority is offered for this somewhat unhappy resolution. The reference in "option (ii)" to a "unilateral contract", it may be

thought, rather exposes the learned author's discomfort. In fact

Professor Richardson's analysis manages to be incompatible both with

Shenton v. Smith and Rodwell v. Thomas. If Government regulations obtain

efficacy only by being contractual terms, and are contractual terms;

there is no earthly reason why they should not be capable of overriding

the "power" to dismiss at pleasure, which according to Shenton v. Smith

is merely an implied term of the contract. Furthermore, as we have already

seen, the Privy Council in Shenton v. Smith, has held that, ipso facto,

such regulations do not form part of a contract of service.

Professor Richardson then faces the difficulty that if

government regulations are efficacious only as a matter of contract; if

the civil servant undertakes to follow the regulations in force at the