TNAG-2433-FCO40-3535-Hong-Kong-Her-Majesty-s-Overseas-Civil-Service-(HMOCS)-and-t-1992 — Page 55

CONFIDENTIAL

Argument and Recommendation

5.

Whether an individual is accepted for enrolment as a

member of HMOCS is a matter for the Secretary of State.

There is no doubt that, if the Secretary of State wished, he

could refuse to consider applications from the judicial

officers concerned. But past practice in Hong Kong has

been to accept application. The main arguments for and

against refusing applications from the Judiciary in future

without warning are as follows:

For

It could make matters marginally less difficult with the

Treasury if we exclude the 40 or so who may decide to become

members of HMOCS.

-

The compensation proposals were not designed for a quick

profit but to recompense for real or anticipated loss of

career under the Crown. This does not readily apply to

these officers who have been aware since 1984 of the

prospect of a change in sovereignty.

Against

- If reasonable expectations of eligibility for, and

enrolment in HMOCS are defeated without notice the judicial officers concerned will create a rumpus. They could no

doubt mobilise vocal support here: the Court of Final

Appeal argument has alerted people to the need to retain a

strong expatriate element on the Hong Kong bench. This

would detract from what we hope will be viewed in Parliament as a fair package. The package will not be well received by

HMOCS and the fewer fronts we have to fight the better.

- We could not rule out a judicial review of our handling of

this issue. If it did come to judicial review, the courts

would have grounds for criticising us for changing our

policy without consultation and without notice.

-

The additional cost of allowing in say, 40 more judicial

JUDADN/3

CONFIDENTIAL