differ from previous arrangements. But once the arrangements for Hong Kong HMOCS are in operation, legal obligations must almost certainly arise.
4.
You also ask me how the courts would be likely to react to an application by HMOCS officers for judicial review of HMG's policy. By HMG's policy, I take it you mean whatever arrangements for the HMOCS officers that HMG finally decide to implement. There is one possible area of difficulty if I am right in thinking HMOCS officers have not so far been consulted. It would be wisest if HMOCS staff associations in Hong Kong were consulted before any decision is taken. Cmnd 1193 at paragraphs 13 and 17 refers to the need for future schemes to be settled between HMG and the government of the territory concerned "after consulting with the local staff association". But quite apart from this, the audi alteram partem rule probably applies. This is an aspect of the administrative law principle of natural justice. Reasonable expections of preserving or even acquiring benefits are among the interests which may be accorded protection by the courts and nowadays the courts do incline towards requiring decision makers to "act fairly". The more severe the loss of benefits, the more likely is it that the courts will apply the audi alteram partem rule. This, of course, must be seen against the background that HMG's decision to make arrangements for Hong Kong HMOCs is a discretionary one. In the interests of fairness however, it is best to provide an opportunity for those affected to participate in the making of a decision.
5. The Crown's power to provide a compensation/incentive scheme for HMOCS is presumably non-statutory; it seems to be a prerogative power. A prerogative discretion is unreviewable unless restricted by statute (as is largely the case). But the House of Lords' decision in the Council of Civil Service Unions v. Minister for the Civil Service case appears to have changed that to an extent. That case involved action under the prerogative to alter the terms and conditions of civil servants in the context of the exercise of functions delegated to the Prime Minister under the Civil Service Order in Council (a prerogative Order in Council). The House of Lords held unanimously that the manner of exercise of a power delegated by a prerogative instrument is reviewable and a majority expressed the view obiter that if the direct exercise of prerogative power had been in issue the courts would have reviewed its exercise in the case of this particular prerogative power, though not in most cases (such as prerogative powers relating to the defence of the realism of the prerogative of mercy). The House of Lords held inter alia that given the legitimate expectations engendered by previous government practice, GCHQ staff would
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