LegCo Panel on Public Service
Meeting on 24 February 1997
Regulations on the Appointment, Removal and Discipline
of Civil Servants after 1997

Introduction

The Letters Patent (LP) and Colonial Regulations (CRs) presently provide the legal authority for the administration of the Civil Service. Both will lapse on 30 June 1997. The Administration has been considering how best to replace them on 1 July 1997.

Background

2. The administration of the Civil Service, including the appointment, removal and discipline of civil servants, is provided for in the LP, CRs and Civil Service Regulations (CSRs). The LP and CRs constitute imperial legislation and will lapse on 1 July 1997. CSRs are administrative rules made by the Secretary for the Civil Service under delegated authority and will continue after 30 June 1997.

3. LP XIV and XVI provide for the appointment and dismissal of public officers respectively. The CRs are in two parts and deal in some detail with the management of the public service. Part I deals with personnel matters whereas Part II deals with financial matters which have been covered by the Public Finance Ordinance. (Copies of the LP and Part I of the CRs are at Annexes A and B.) Many of the provisions of the CRs have been ‘localised’ as CSRs which, as explained in paragraph 2 above, will continue after 30 June 1997. However, the source authority to appoint, remove and discipline civil servants is not contained in CSRs, nor are the detailed disciplinary procedures which apply to the majority of civil servants. It is these provisions that we need to provide for continuity.

4. The right of civil servants to petition the Governor, the Secretary of State and The Queen under CRs 68-70 will also lapse after 30 June 1997. Although Article 48(13) (Annex C) of the Basic Law already provides a general right for residents of the Special Administrative Region to petition the Chief Executive, we are considering with staff side representatives suggestions for an appeal process for civil servants.

Legal Considerations

5. The LP and CRs are imperial legislation made under the Royal Prerogative1 . It is therefore not feasible to replace them by mirror arrangements.

6. We have identified two options as possible means of providing for the continuation of the present arrangements after the transfer of sovereignty :

  1. to enact public service legislation, i.e. an ordinance and subsidiary legislation; or
  2. to use the powers given to the Chief Executive under BL 48(4) to issue executive orders.

Both would ensure that the final authority for the administration of the civil service should lie in Hong Kong.

Preferred Option

7. At present the Governor exercises the power vested in him under the LP and CRs to administer the civil service. Given that the Chief Executive is empowered under BL 48(4) and 48(7) (Annex C) to issue executive orders and to appoint or remove holders of public office in accordance with legal procedures, and that these provisions, according to legal advice, could be used to replace the present authorities for the appointment, removal and discipline of public officers, we propose to pursue the option of executive orders under BL 48(4). A list of the articles of the LP and CRs to be included in the proposed executive orders is at Annex D.

Appeal Channel

8. Staff associations have expressed concern about replacing the right to petition or make representations to the Secretary of State and The Queen as set out in CRs 69 and 702 . We have identified two possible options for an appeal channel :

  1. to establish an appeal mechanism under the umbrella of the Public Service Commission or some variation of this; or
  2. to replace the present right of appeal to the Governor under CR 68 by appeal to the Chief Executive.

9. A proposal for an appeal mechanism as at paragraph 8(a) was put forward following discussions in the Senior Civil Service Council and with the Public Service Commission. This would provide for the establishment of a Review Board to consider appeals involving appointments, promotions and disciplinary issues. The proposed Review Board would be advisory to the Chief Executive. A major drawback of this proposal is that some officers, principally police officers, would not have access to the Review Board because they are outside the ambit of the Public Service Commission.

10. Alternatively, although CRs 69 and 70 will lapse, it has always been intended that the right of officers to make representations to the Governor under CR 68 should be replaced by a similar right of appeal to the Chief Executive. This would be in addition to the general right of persons living in the Hong Kong Special Administrative Region to petition the Chief Executive under BL 48(13) and could be done by revising CSR 4863 .

11. We consider the option at paragraph 8(b) above an appropriate immediate solution to provide a post June 1997 channel of appeal. As a longer term measure, we shall further explore the option at paragraph 8(a) to establish a body to advise the Chief Executive on appeal cases.

Way Forward

14. We are consulting the Chief Executive (Designate) on our proposal to issue executive order. We shall finalise the proposed arrangements and prepare for their implementation on 1 July 1997 taking into account comments received.

Civil Service Branch
February 1997
(lpps242)

1 -- The royal prerogative is the theoretical right of the sovereign to exercise power without being subject to any restrictions. These powers were challenged in 17th century England by Parliament. The power for the sovereign to make laws in respect of the UK has been removed for a long time. The power to regulate colonial civil services is another aspect of the royal prerogative. The Governor of Hong Kong exercises prerogative powers under the Letters Patent to administer the Civil Service. These powers cannot be carried forward after 30 June 1997.
2 -- During 1990-96, there were a total of six petitions to the Secretary of State or The Queen by Hong Kong Civil Servants. All of them were rejected.
3 -- CSR 486 states that "Any officer has the right to address the Secretary of State, if he thinks proper; in which case he must transmit such communication, unsealed and in triplicate, to the Governor, requesting him to forward it in due course to the Secretary of State."

Last Updated on 21 August 1998