TNAG-2000-FCO40-2847-Hong-Kong-Civil-Service-appointments--promotions-and-policy--1990 — Page 8

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Mr Stone

DELEGATION TO HONG KONG OF RESPONSIBILITY FOR APPOINTMENTS, PROMOTIONS ETC

1. I did not manage to make much progress on this but I located various references and the precedent of practice in other Dependent Territories, which I hope will be useful.

2.

I first looked into this question in the light of CAP 89 (Pensions Ordinance) which no longer contains any references to the need to seek the Secretary of State's approval for decisions under the Ordinance. Despite this, or because of this, in 1987 the Legal Advisers recommended that the role of the Secretary of State should not be bypassed. In his minute of 13 April 1987 Mr Fifoot suggested identifying in which circumstances referred to the Secretary of State would still be required. No further action was taken until we raised the issue again towards the end of last year. In response Hong Kong summarised the position on referrals in CSB's letter of 15 January 1990 to the Future Section.

3. For several years, probably since 1975, recruitment has been arranged by the HKG. CR 19 has, I believe, not been relevant since then. Even for appointments made before that date in the name of a Secretary of State, I do not understand on what basis the subsequent promotions of those so recruited should still be subject to approval by the Secretary of

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CSB correctly recognise that applications for membership of HMOCS have to be referred to the FCO. In fact I now see the final date for application was 31 March 1990 Unless the date has been extended there will only be a handful of applications still to be processed. Then the process will cease. (The 1989 files "Transfer to Permanent Establishment" and "Membership of HMOCS" contain applications made well in advance of transfer date. We asked for the cases to be re-submitted 6 months before date of transfer. Some do not take effect until 1991 but should be honoured because application was made before the cut-off date.)

5.

Even for those officers whose cases have to be referrred as in paragraph 4 above, I do not think it follows that their subsequent promotions and retirement are anything to do with the Secretary of State.]

6.

One way of clarifying the issue of referrals would be for the Secretary of State to make an entrustment (CF entrustment of 1985 in respect of autonomy in economic and trade matters). Another is for the Secretary of State to issue an instruction to the Governor delegating all appointments, promotions and retirements to the Governor except in certain

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specified positions. This is what has happened in the case of other Territories with a less sophisticated adminigration than Hong Kong's. (Please see the Secretary of State's letters of 8 September 1978 to the Governors of the Cayman Islands and BVI).

7.

As I indicated in my recent minute to Mr Fifoot I am not convinced that there is any longer (since 1971) a requirement to seek the Secretary of State's approval for the appointment of Judges. Perhaps this 1970 amendment to the Letters Patent was unwise but I would have thought the best way to ensure sound decisions being taken in the Territory is to remove the safety valve of being able to fall back on the Secretary of State's rubber stamping of appoitments.

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राम nr amended 5/2/71.

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RECEIVED IN QUE

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FROM MS G J COGLIN, HKD, FCO

TO MR YUEN WAI-KEUNG, CSB, HONG KONG

MEMBERSHIP OF HMOCS FOR THE JUDICIARY

д

1. I WOULD BE GRATEFUL IF YOU COULD CLARIFY THE RULES GOVERNING HMOCS MEMBERSHIP OF THE JUDICIARY. FOR EXAMPLE, DOES THE RULE ABOUT APPOINTMENT BEFORE 18 MARCH 1985 APPLY TO THE JUDICIARY QUERY

2.

I WOULD BE GRATEFUL IF YOU COULD SEND ME THE DETAILS OF THE 1989 SCHEME WHICH WAS INTENDED TO MAKE THE JUDICIARY MORE ATTRACTIVE FOR LOCAL CANDIDATES.

SIGNED MS G COGLIN

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