TNAG-0991-FCO40-1210-Policy-on-salaries-and-pensions-for-civil-service-in-Hong-Ko-1980 — Page 322

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"Overriding power" is indeed a curious way of describing

Furthermore, the statement

an implied term.

"It is a term implied by law, unless that term

is expressly excluded. The only doubt that remains

today is whether the exclusion must be made by

statute or whether it can be achieved by the contract

itself"

reveals the learned Judge's failure to come to grips with the crucial

issue. If the relationship between the Crown and its servants is one

of "simple contract", and the Crown's right to dismiss at pleasure

simply an implied term of that contract, not of a statutory kind, it

is difficult to see why it might take the operation of statute to

exclude the term. The differences of legal opinion I have described

perhaps in the end only point to the dangers in attempting to over- | generalize. It is beyond serious argument that the Government regulations

affecting home civil servants of the U.K. ("the Estacode") stem from

the prerogative power and not contract. That is not to say that some such provision might not, depending on all the circumstances, also be a term of the contract. By extension, there can be no serious doubt

that the Crown does have the power to make enforceable regulations

governing its servants, quite independent of contract or statutory legislation. The Crown then as an employer is in a very special position. Regardless of the position of civil servants in other Colonies or Commonwealth nations, in Hong Kong this is easily discernable from the

Letters Patent.

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Having said that, I must acknowledge that Professor Hogg at p.158 (see footnote 2) writes, quite erroneously in my view :- "In the United Kingdom there are public service regulations which include disciplinary provisions ..... The regulations do not have statutory authority, and this raises a question as to their legal effect. The true position, it is submitted, is that they form part of the contract of employment between the Crown and its servants, they therefore have contractual force, and contractual remedies are available for their breach."