TNAG-2687-FCO40-3889-Hong-Kong-Her-Majesty-s-Overseas-Civil-Service-(HMOCS)-poli-1993 — Page 143

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prohibited) to be held, by judicial construction, to be ultra vires." (de Smith's p.95). I submit that Regulation 17(1), in so far as it requires monthly basic pension payments to be converted into sterling

historical instead of current exchange rates, is ultra vires the enabling Act for the following reasons:

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(1) it conflicts with Section 11(4) of the Act, discriminates

against one group of pensioners and cannot fairly be regarded as incidental to, or consequent upon, those things which the Legislature has authorised;

(2) on the presumption that Parliament does not intend to

legislate in contravention of international obligations owed by the Government of the United Kingdom (de Smith's p. 100), the regulation violates the provision, quoted in paragraph 12 above, of the Public Officers' Pensions

Tanzania) Agreement 1976 (see paragraph 17(5) below).

Subordinate legislation may also be ultra vires if it is manifestly unreasonable. It has been explained that "there is no reason of principle why a manifestly unreasonable statutory instrument should not be held to be ultra vires on that ground alone, provided that the subject-matter of the grant of power is not so pregnant with 'policy' considerations as to render the application of such a standard inappropriate." (de Smith's p.354/5). In the leading case of Kruse v. Johnson (1898) 2QB 91, 99 (by-laws,, Lord Russell of Killowen C.J. said:

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"If, for instance, they were found to be partial and unequal in

their operation between different classes; if they were .manifestly unjust; if they disclosed bad faith; if they involved

such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires."

Regulation 17(1), in not protecting the HK basic pension against adverse exchange rate movements and by requiring monthly basic pension payments to be converted into sterling at historical instead of current exchange rates, is manifestly unreasonable for the following

reasons:

(1) it is contradictory in that a paper pension entitlement of

one amount is prescribed by the ODA through the Pensions (Increase) Annual Review Order and an actual payment of a much lesser amount is authorised under the regulation (see paragraph 7 above);

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(2) Hong Kong pensioners are treated unequally with their British

public service pensioner counterparts (and any overseas pensioners receiving pensions from former territories subject to a Public Officers' Agreement) in that their basic pensions have been reduced in recent years because of the adverse exchange rates between the HK dollar and sterling;

(3) the regulation for no good reason protects one part of the

Hong Kong pension against adverse exchange rate movements (the locally awarded increases) but not the other part (the basic pension);