TNAG-2433-FCO40-3535-Hong-Kong-Her-Majesty-s-Overseas-Civil-Service-(HMOCS)-and-t-1992 — Page 54

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to allow them to become pensionable even if first appointed after 1985. It can be argued that we should have

picked up this problem and issued a definitive statement that, even if they moved onto pensionable terms at the time

(1986) they would not be accepted as members of HMOCs. We

did not do so. Therefore the fact that the 1985 circular

does not apply to the Judiciary would give them reasonable

grounds to conclude that they could continue to apply for

the enrolment of officers in HMOCS. There is an additional

complication that in 1989, through administrative error, we

enrolled two members of the Judiciary in HMOCS, whom on the

basis of a 1985 cut-off date, we should not have.

Chances of judicial review

4.

We have consulted our Legal Consultant (Mr Fifoot).

Although Mr Fifoot has doubts about whether an application

for judicial review would succeed in this type of case, the present state of the law makes it difficult to say so with

assurance. Cases have been so wide-ranging as to make a categorical pronouncement unsafe. If judicial review was

sought, it would be on the grounds that contract judicial

officers had a reasonable expectation that they remained

eligible to apply to be members of HMOCS if they became

pensionable. If we were to apply the 1985 cut-off date now,

judicial officers could argue that their expectation had been defeated without their being given due warning.

view of the withdrawal by the Hong Kong Government of the

1985 notice, it would be very difficult for us to establish

that we had given the Judiciary due warning. The objective

in my submission of 30 June is to cut off current

expectations, notwithstanding that judicial officers could

still meet the pensionable qualifications. So long as we give a reasonable warning, there is no reason why we should

not do this.

In

JUDADN/2

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