HKB 016/1
ок
B
01014
in
1990.
CS
general
FROM:
Miss S Brooks Legal Counsellor
DATE:
18 December 1991
Ms Williams
Hong Kong Department
REFERRALS OF APPOINTMENTS TO THE SECRETARY OF STATE: AMENDMENTS TO HONG KONG CIVIL SERVICE REGULATIONS
1.
You asked me what is the legal status of the Civil Service Regulations and Colonial Regulations. The Colonial Regulations are directions to Governors for general guidance given by the Crown through the Secretary of State for Foreign and Commonwealth Affairs (see Regulation 1 of the Colonial Regulations 1977 edition). They are, in other words, directions of Her Majesty. Sir Kenneth Roberts-Wray at pages 239-240 of his book "Commonwealth and Colonial Law" takes the view that the Colonial Regulations are directory only. He makes the point that the fact they are called "directions (not instructions) for general guidance" indicates quite clearly that that is the intention. He points out that many of the regulations, by their nature or terms, exclude any notion that they are to have legally binding force. Nor do they constitute a contract between the Crown and its employees. I would not, however, exclude them from giving rise in certain cases to legal effects.
2.
The Hong Kong Civil Service Regulations are made by the Hong Kong Government. Paragraph 1 of the Introduction to the Regulations provides that Government Regulations regulate matters relating to the conduct of Government business, the conditions of services for Government servants and various other matters. Paragraph 4 provides that certain public officers such as the Secretary for the Civil Service have been authorised to amend, supplement, apply, interpret and make exceptions to the Regulations. Government Regulations may be supplemented by circulars and the instructions contained in such circulars are of equal application and force to the Regulations. I think they have similar legal status to the Colonial Regulations. They are directory, not mandatory in nature. It is for the Hong Kong Government to amend their Civil Service Regulations. You ask me whether it is right to assume that the Civil Service Regulations do not need to reflect what actually happens in practice. I think that in relation to the four Regulations referred to in your minute of 18 October, the fact that the
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