4.
I suggested in my minute of 11 December that the HMOCS would have a ground (natural justice) for judicial review of the compensation scheme to be introduced for the HMOCS if they were not consulted beforehand. As suggested in paragraph 1 above, the HMOCS could seek a declaration to the effect that the compensation scheme is defective because it did not take into account the views of HMOCS. In other words, the compensation scheme would be invalid because it did not comply with natural justice.
5. However, I note that there is a case, Nixon v The Attorney-General 1931 AC194 which apparently held that a civil servant may not bring an action for a declaration as to his entitlement to a pension from the Crown because he has had no legal right to receive any pension. The author of the text book in which I found this case (de Smith, 'Judicial Review of Administrative Action') questions. whether this position still obtains since the Superannuation Act 1972. I have not looked into this point. On the other hand, where the pension is specifically granted by statute, a person may apparently be able to establish his rights by declaration. It occurs to me to wonder whether, if the Pensions Ordinance in Hong Kong were to apply to the HMOCS or if a new Ordinance were to be required in order to provide the necessary lump sum for the HMOCS, this would amount to granting a pension by statute for these purposes, I think it would.
6. A declaration to declare the rights of public employees has been granted in a number of cases. One advantage of a declaration from the applicant's point of view is that it will lie against the Crown, whereas the prerogative orders of mandamus, certiorari or prohibition will not lie directly against the Crown. They will lie however, against officers or Ministers of the Crown in respect of the performance of their duties or the exercise of their powers. The weakness of a declaration is that it simply declares the legal position. The Crown remains immune from the execution or enforcement of judgments. Compliance of judgments given against the Crown is left to the Crown's good faith. I will be happy to look at the other remedies open to the HMOCS Association if we gather that that it is going to plump for a remedy other than a declaration.
AE1ABW
Shelagh Broths
S Brooks
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