TNAG-2396-FCO40-3483-Hong-Kong-Civil-Service-policy-1992 — Page 251

HK

Mrs S Duff AHS27

Copy to:

Policy Section, Overseas Pensions Department

B Foy

HONG KONG LOCALISATION OF UK LAWS ON CIVIL SERVICE MATTERS

1.

putt endovre Thank you for your minute of 25 September 1991/and the additional copy. am sorry that I have not been able to apply before but as you know other cases have taken precedence over this.

2. I think it might be helpful if I set out legal background relevant to this inquiry. The Principal Civil Service Pension Scheme has been made by the Minister for the Civil Service under the powers given to him by section 1(1) of the Superannuation Act 1972. The Minister's power is confined to making schemes in respect of persons "in the employment of the civil service of the State" or in the employment or offices listed in Schedule 1 to the Act. Schedule 1 does not refer to any employment or office connected with Hong Kong. I think it is clear from the wording of the 1972 Act that it was not intended to apply to the pensions of persons employed in the service of governments outside the UK even if they were colonial governments.

3. The 1972 Act repealed most of the Superannuation Act 1965 but left, inter alia, sections 33 and 39. Section 38 applies superannuation benefits obtained under section 1 of the 1972 Act to persons who have been employed in more than one public office. Public offices are defined in such a way in section 39(1)(5) as to include employment in the civil service of Hong Kong. Section 2(12) and Schedule 2 of the 1972 Act make it clear that sections 38 and 39 of the 1965 Act are not to take effect as # scheme under the 1972 Act and thus it seems clear that the provisions of section 38 and 39 do no more than give a limited extension to the PCSPS. It follows that the only civil servants in the Hong Kong Government who are at present eligible for benefits in the PCSPS are those who are eligible for reasons unconnected with their service in Hong Kong. After 1997 those persons will no longer be in reckonable service since the definition in section 39 will no longer cover Hong Kong and their continued service in Hong Kong will not count for benefits under the PCSPS as

at the law stands

the

J moment.

prior to 1997

#.

Future changes in the law must depend on policy decisions upon which we have no instructions. If it were decided that service which now counts as reckonable service under the PCSPS should continue to do so after 1997, the proper course will be to amend section 39 of the 1965 Act to cover such a position. PC SPS come 1997

Treasury.

5. I do not know whether HKG currently contribute to the proportion of the PCSFS pensions attributable to service in Hong Kong and I do not feel able to comment on the matters touched on in paragraph (b) of Mr Walter's letter of 19 June 1991.

6. In conclusion, in my view Telno 1162 is incorrect in suggesting that section 38 and 39 of the 1965 Act need to be incorporated into Hong Kong pensions legislation. From OPD's point of view I think we agree with the penultimate paragraph of Mr Walter's letter. I am not immediately aware of any provisions other than section 28 and 39 of the 1965 Act or section 11 of the Pensions (Increase) Act 1971 which need to be considered.

D3103499.022

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