LegCo Panel on Public Service
Meeting on 18 December 1996
Judicial Review by
the Association of Expatriate Civil Servants
on the Localisation Policy of the Civil Service

Introduction

This note informs Members of the judgment handed down on 22 November 1996 by the Court of Appeal on the appeal by the Association of Expatriate Civil Servants (AECS) and cross appeal by the Government on various government measures to implement the localisation policy in the civil service.

Background

2. We last briefed Members on 22 January 1996 regarding the judicial review sought by the AECS on the various arrangements for overseas agreement officers to transfer to agreement terms on locally modelled conditions of service, and the judgment handed down by the High Court on 31 October 1995.

The Appeal and Cross Appeal

3. Subsequently, the AECS appealed against most of the decisions upheld in the High Court judgment, covering a total of 13 matters. The Government also decided to cross appeal on two matters in respect of the restriction on transferees further to transfer to permanent and pensionable (P&P) terms.

4. The appeal and cross appeal were heard by the Court of Appeal, comprising Justices of Appeal Bokhary, Mortimer and Ching, in September and November 1996. The Court of Appeal handed down its judgment on 22 November 1996.

Outcome of Appeal

Appeal Matters Upheld

5. Out of the 13 matters under appeal by AECS, the Court of Appeal upheld the following four matters -

  1. Meaning of "permanent resident" under the transfer arrangements
  2. Deduction of length of transferees’ agreements by previous extensions
  3. Opening up arrangements
  4. Succession Posts Scheme of the Legal Department

Appeal Matters not Susceptible to Judicial Review

6. The following two matters were ruled as not susceptible of judicial review at this time-

  1. Definition of "local" in the Common Terms proposals
  2. Language requirement for appointment on new P&P terms in the Common Terms proposals

Appeal Matters judged as Unlawful

7. The following seven matters were ruled as unlawful -

  1. Requirement for transferees to take all accrued leave before transfer
  2. Restriction on promotion for transferees before transfer under the modified transfer arrangements
  3. Chinese language requirement for transfer under the transitional transfer arrangements
  4. Requirement for transferees to transfer at a lower rank while continuing to draw salary and benefits at original rank during the first contract under the modified transfer arrangements
  5. Restriction on promotion for transferees after transfer during the first contract under the modified transfer arrangements
  6. Chinese language requirement for transfer under the opening up arrangements
  7. Promotion ceilings for overseas Administrative Officers to the ranks of Administrative Officer Staff Grade A (AOSGA) and Administrative Officer Staff Grade B1 (AOSGB1)

Cross Appeal Matters

8. Of the two matters under cross appeal by the Government, the Court of Appeal has ruled them both as unlawful -

  1. Restriction on transferees further to transfer to P&P terms under the transitional transfer arrangements
  2. Same restriction under the opening up arrangements

9. A copy of the judgement of the Court of Appeal - which runs to 65 pages - has been given to Clerk to the Panel, for Members‘ references.

Implications

10. It is pertinent to note that the Court of Appeal, in handing down its judgment, stated at the outset there was no suggestion that localisation was in itself unlawful. The Court of Appeal also acknowledged that the Government had acted in good faith throughout. In addition, the Court of Appeal upheld the opening up arrangements currently in place for renewal of agreements and transfer of overseas agreement officers who are permanent residents to locally modelled conditions of service.

Way Forward

11. We are now studying the judgment in detail and examining its implications in consultation with our legal advisers, before formulating and proposing the next course of action. The deadline for application to appeal to Privy Council has been extended to 21 December 1996.

12. We remain committed to the localisation policy. We will carefully consider the interestsof all concerned in proposing any course of action.

13. The subject officer for this paper is Michael V Stone, Deputy Secretary for the Civil Service (1) Ag. Telephone No. 2810 2531.

Civil Service Branch
13 December 1996

Last Updated on 21 August 1998