Provisional Legislative Council
Panel on Public Service
Establishment of a Review Board under Section 20(2) of the Public Service (Administration) Order 1997
This paper sets out the framework of our proposals to set up a Review Board under section 20(2) of the Public Service (Administration) Order 1997 ( " the Order " ). This section provides that " the Chief Executive may appoint a Review Board to advise him on such representations addressed to him relating to appointment, dismissal and discipline of public servants as he thinks fit " . Special emphasis is placed on the mechanism to refer representations to the Board and the Board's composition.
Existing Appeal Channels
2.At present, civil servants can make representations or submit petitions under different appeal channels -
Representations to the Chief Executive
- representations to the Chief Executive (Chief Executive)1 ;
- representations to the Public Service Commission (PSC)2 ;
- appeal channels on disciplinary matters for disciplined services provided by legislation;
- departmental complaint and grievance procedures.
3.All public servants have the right to make " representations of a public or private nature " to the Chief Executive. This is a continuation of their right to make representations, before 1 July 1997, to the former Governors of Hong Kong under the now lapsed Colonial Regulations.
4.Section 20(2) of the Order provides for the establishment of a Review Board to advise the Chief Executive on the handling of certain representations made to him. The establishment of the Review Board is something new. The rationale for this proposal is two-fold: first, to localise the final appeal authority3 , and secondly, to assure staff that their representations may, in certain specified circumstances, be reviewed by a party outside the Administration.
5.The Review Board should be accessible to all civil servants as it is to be established under the Order, which applies to all civil servants, including those who are currently outside the purview of the PSC (such as the Police, officers remunerated on salary below Master Pay Scale Point 26).
6.We need to consider the circumstances under which representations to the Chief Executive may be referred to the Review Board for advice and other operational details of the Board.
Existing representation handling procedures (without Review Board)
7.At the present moment, representations made to the Chief Executive are processed in accordance with procedures which are well-established and which applied to representations made to the former Governors. Specifically, representations against decisions on civil service matters made by a public officer other than the Chief Executive and the Chief Secretary for Administration (CS) are considered and acted upon by the CS and the Secretary for the Civil Service (SCS) under delegated authority. The Chief Executive retains authority to act and decide on representations against decisions made by the CS or by himself personally. In other words, the Chief Executive does not personally rule on each and every representation made to him. Due regard should be given to these existing procedures in designing the operation of the Review Board which is to advise on some of these representations.
8.In formulating the operational details of this Review Board, we should take into account the following -
PROPOSED REFERRAL MECHANISM
- The Review Board is not meant to duplicate, replace or change the nature of the existing appeal channels available to public servants (para. 2). It is a new body to advise the Chief Executive on certain representations made to him under an existing appeal channel, i.e. representations made under section 20(1) of the Order;
- As an advisory body, the Review Board should not undermine the authority of the Chief Executive as the Head of the Government to decide on representations;
- The Review Board can only consider and advise on representations relating to appointment (including promotion matters), dismissal and discipline of public servants;
- The Chief Executive is required by section 20(1) of the Order to consider and act upon representations " as public expediency and justice to the individual may require " . Accordingly, due regard should be given to the core principles of " public expediency and justice to the individual " when the Chief Executive considers whether or not to refer representations to the Review Board for advice;
- Section 20(2) of the Order does not oblige the Chief Executive to appoint a Review Board or to refer representations to the Review Board for advice. Whilst the Administration may specify the circumstances under which the Review Board may be appointed or when cases may be referred, legal advice is that the need to invoke the Review Board mechanism should be considered on a case by case basis at the discretion of the Chief Executive. The mechanism is not meant to be activated as a matter of course but only when the Chief Executive thinks fit; and
- There are well established procedures (para. 7) for the processing of representations made by public servants to the Chief Executive and these should be preserved as far as possible to provide continuity.
9.Taking into account the considerations in the preceding paragraphs, we propose the following mechanism for determining whether or not a representation made to the Chief Executive should be referred to the Review Board for advice-
Screening for " New Grounds'
- On receipt of a representation addressed to the Chief Executive, the Administration will first check if the representation relates to a decision concerning the appointment, dismissal and discipline of civil servants;
- As a next step, the Administration will check if a representation which fulfils the criterion in (a) above is one made against the personal decision of the Chief Executive. If yes, the representation will be referred straight to the Review Board for advice (in accordance with the principle of " justice to the individual " which calls for the review of a decision by a person/body other than the original decision maker). The decision which the CE subsequently makes with the advice of the Review Board will be final. If the officer chooses to appeal to the Chief Executive again, the Chief Executive is not obliged to refer the case to the Review Board a second time. He will do so only if there are " new grounds' to support referral (see para. 10).
- For a representation which fulfils (a) but is not made against the personal decision of the Chief Executive, the case would not be referred to the Review Board as a matter of course. This is because the existing procedures (para. 7) already provides for the case to be reviewed and decided upon by a person other than the original decision-maker. The case will be referred to the Review Board only if there are " new grounds' to support referral (see para. 10). The Review Board will then consider the representation and advise whoever is currently vested with the authority to deal with the representation (can be SCS, CS or the Chief Executive).
10.The " new grounds' referred to in para. 9(b) and (c) above can include " new evidence " , " new arguments', and/or " new circumstances' that are provided for the first time by the officer making the representations or are identified by the authority screening the representations for referral to the Review Board. To ensure that the screening for " new grounds' is conducted in a fair and impartial manner, we propose that it should be taken up by a panel of three members who are themselves members of the Review Board. Members may serve on the screening panel by rotation.
When will the referral mechanism be invoked?
11.At the present moment, an officer who is aggrieved can make complaints under all the existing appeal channels in parallel or in a random order. This may lead to confusion in the decision-making process.
12.Legal advice is that whilst the Order has not explicitly accorded precedence to a decision made by the Chief Executive under section 20(1) of the Order, common sense dictates that a petitioner should first exhaust other available appeal channels before approaching the Chief Executive who is at the very top of the hierarchy of the Hong Kong Special Administrative Region Government. Legal advice has also confirmed that a decision made by the Chief Executive under section 20 of the Order should take precedence over any decision of any appeal channel provided for under a statute. It therefore makes good sense for us to take the opportunity to encourage officers to exhaust other appeal channels first before making a representation to the Chief Executive. To achieve this purpose, we propose to invoke the screening and referral mechanism in paragraph 9(c) above only when the representations in question are made to the Chief Executive after other appeal channels, if any, available to the officer have been exhausted. If those channels have not been exhausted, the screening and referral mechanism will not be invoked and the Chief Executive (or CS/SCS acting under delegated authority) will proceed to consider and act on the representation direct.
COMPOSITION AND PROPOSED FRAMEWORK OF THE REVIEW BOARD
13.We propose that the Board should comprise the following members to be appointed by the Chief Executive -
- a Chairman
- two members from a list of individuals or categories of persons nominated by the Staff Side
- four other members
14.The proposal builds on ideas floated during our previous discussions with the Staff Side of the Senior Civil Service Council on the establishment of a review mechanism under the auspices of the PSC.
15.The proposed framework of the Review Board is set out at Annex A.
CONSULTATION WITH THE PUBLIC SERVICE COMMISSION
16.The PSC generally supports the proposed screening mechanism for referral of representations to the Review Board and the proposed operational framework. On the Board's composition, the Commission believes that in order to preserve the status of the Review Board as an advisory body independent from the PSC, serving PSC members should not be appointed to the Board. As the Commission may have useful experience and expertise to share with the Review Board on the handling of cases concerning appointment, dismissal and discipline, the Commission could be invited by the Review Board to give its input on individual representations concerning subject matters on which PSC has previously tendered its advice.
17.We will be consulting the Staff Sides of the central consultative councils on our proposals shortly, with a view to implementing the proposals in 1998.
Civil Service Bureau
17 December 1997
1. Section 20(1) of the Order stipulates that " every officer who has any representations of a public or private nature to make to the Government of HKSAR should address them to the Chief Executive. The Chief Executive shall consider and act upon each representation as public expediency and justice to the individual may require " .
2. Section 6(1)(c), read together with CSR 493, provides that an officer may make representation to the PSC for matters falling under the PSC's purview and in which the officer has a direct and definable interest. The PSC shall advise the Chief Executive on these representations.
3. Under the lapsed Colonial Regulations, a public servant was given an avenue to appeal to the Secretary of State for Foreign and Commonwealth Affairs and the Queen in the United Kingdom, in addition to an appeal to the Governor.