TNAG-0991-FCO40-1210-Policy-on-salaries-and-pensions-for-civil-service-in-Hong-Ko-1980 — Page 342

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In

(and hence, Her Majesty) if not actually on instructions or advice. I should like to enquire more closely into this matter when time permits. the present case, C.S.R. 611 was introduced on the advice of the Secretary

of State, F.C.O. I refer to the telegram of 6th October, 1977. The advice is that C.S.R. 610 be amended to give power to suspend. In fact, as we know,

the new C. S. R. 611 was inserted. Thus the delegation that C.S.R. 611 entails

is at the advice of the Secretary of State F.C.O., who, as we have also seen,

gives advice on behalf of Her Majesty. In my opinion, taking all of these matters into consideration, it is highly unlikely a Court would find the

Governor had no authority to delegate. The implications of such a finding, including the result that virtually all Hong Kong Civil Servants employed in the last 70 odd years had been invalidly appointed, would be absurd. For these reasons I feel fairly confident that the validity of the suspension of the dispensers can be maintained. You will appreciate that the same line of reasoning, relying as it does on Article XVI could not be applied to all Government Regulations. Suffice it to say, the exact status of some Government

Regulations is open to question. Separate consideration is being given to this

most complicated matter.

Procedure

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>

I anticipate that the Dispensers will bring an action seeking a

declaration that their suspension was invalid. I have not yet seen proceedings

but I shall accept service on behalf of the A.G. They would not be entitled to an injunction against the Crown. I will as far as possible, resist any attempt to rush the matter to a speedy hearing, it being a matter of great constitutional importance which still requires a good deal of research and deliberation. If the Chief Justice was to certify the matter one of sufficient importance, the

case could be heard by a bench of 3 Judges of the High Court. I imagine he

would in this case. There may be advantages in this course, but we obviously

have time to consider the matter further.

(S.P. Graham)

Senior Crown Counsel

6.12.79