TNAG-2116-FCO40-3021-Future-of-Hong-Kong-Sino-British-Joint-Declaration-action-ch-1990 — Page 6

CONFIDENTIAL

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The Judicial System (E)

15.

In the context of Judicial Service Commission

making amendments Ordinance,

to the

we have had to

consider

representations by the legal profession that judicial appointments should be made by the Governor in accordance with the advice of the Judicial Service Commission, thus in effect making the Commission executive. We accepted that the Commission would have to become executive before 1997, because of JD 63 (now reflected in BL 88). The question of timing however, was one which we felt required careful consideration. ExCo was consulted on this in May 1987. They noted that it would be necessary at some stage to make the Commission executive, but that this step would not be taken until much nearer to 1997 since, on the Commission becoming executive, judicial officers would lose the protection of the Secreary of State. ExCo advised that in the meantime the

the Commission should be given the responsibilities of an executive Judicial Service Commission although remaining advisory at this stage.

16.

The above references to the protection of the Secreary of State, which judicial officers would lose upon the Commission becoming executive, relate to the position of members of Her Majesty's Overseas Civil Service

(HMOCS).

The White Paper "Service with Overseas Governments" (Cmnd. 1193) provides that, "When the Secretary of State's control passes to an executive Public Service Commission, overseas offices (members of HMOCS) should be entitled to retire with compensation calculated with actuarial advice and taking account of age, salary and length of service." The question of the position of HMOCS if and when the PSC is executivised was discussed with you as early as 1984. In paragraph 2 of your telno. 816 of 4.5.1984 you advised that you saw difficulties in any proposal not to introduce compensation schemes on the creation of a fully executive PSC. In discussions in London in June 1984, FCO Legal Adviser David Bickford, Head of the ODA Pension Department Anthony Beatie and others explained that while they agreed that there

there was no legal obligation for HMG to adhere to the principle propounded in paragraph 17 of Cmnd 1193, in the light of past precedents and assurances given by Ministers it would not be possible to obtain agreement to the establishment of an executive PSC dealing with HMOCS members without at the introducing a general compensation scheme. considerations would, presumably, apply to officers who are members of HMOCS in relation executive Judicial Service Commission.

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CONFIDENTIAL

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