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S Brook
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FROM: Miss S Brooks
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we shall be able to find extra
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Miss Williams
In Store 18112
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Mr cox,
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DATE: 11 December 1991
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1047,3/20
HKD
CC: Mr Stone,
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Hong Kong Dept
HER MAJESTY'S OVERSEAS CIVIL SERVICE (HMOCS) OFFICERS IN HONG KONG
190
1. Thank you for your minute of 21 November which raises some complex issues. Despite your helpful explanation, I am not sure that I have all the facts straight. These may in any case change as a result of the present talks involving the Treasury and the ODA in Hong Kong. At this stage, therefore, I can only lay down pointers as to the legal position in respect of the issues you raise. I would need to be sure of all the facts before giving firm advice.
2. You ask me first of all whether HMG have any relevant legal obligations towards HMOCS members on the change of sovereignty. The White Paper on the Re-organisation of the Colonial Service 1954 (Colonial No.306?) refers at paragraph 6 to HMG's "special obligation" to Colonial Service Officers, the predecessors of HMOCS, and it lays out the conditions that "these officers are entitled to expect" should the territory in which they were serving become self governing. Paragraph 8 proposed a list of all Colonial Service officers to whom the arrangements would apply in order that "all concerned may be clearly aware of their rights and obligations". Paragraph 4 of the White Paper on "Service with Overseas Governments 1961 (Cmnd No. 1193) refers to the HMOCS and states that "the undertakings given to its members in Colonial No.306 will continue to be observed but these undertakings do not take effect until the moment of self government". Paragraph 17 of Cmnd 1193 sets out the broad principles which in the opinion of Her Majesty's Government should be applied in any future compensation scheme. In the light of paragraph 10, however, it may be argued that these principles would not apply to a Hong Kong scheme.
3. I would conclude from the two White Papers and in particular from the passages I have quoted above, that despite the language which suggests the existence of obligations they do not give rise to legal obligations as such, although they do give rise to legitimate expectations on the part of HMOCS officers. Moreover, I do not consider that HMOCS officers could, for example, argue that HMG were estopped from providing arrangements for Hong Kong which
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