OFTHEAS
This opinion is a synthesis of the previous opinion by the folicitor General, Mr. Thornton (at H.3), after taking into account the comments of Mr. Rushforth (at 201) and of
Mr. Hobley. I have indicated those areas where my opinion differs
from theirs.
It also deals in Section IV with an alternative possibility not previously canvassed, namely to issue a periodic tenancy incorporating in its terms a curb on Government's power to terminate prior to, say, 2010 save for a defined reason. an indeterminate lease or one to, say, 2010, such a tenancy in my opinion would not require enabling legislation.
Unlike
I have covered a wider area than the present problem requires so that the Opinion may serve if necessary as a reference
in the future.
SECTION I
Power to enact laws or grant leases for N.T. effective post 1997
CONCLUSION
I advise that the Crown is entitled by Order in Council or U.K. Statute to take for itself powers over the N.T. extending beyond the period (until 1997) mentioned in the Convention with the Emperor of China and incorporated into the New Territories Order in Council 1898. But such a prerogative or legislative act would be required before any action could lawfully be taken affecting the post 1997 position, including for instance, the grant of a lease dated post 1997; a local Ordinance would not suffice. Such U.K. legislation could not successfully be challenged in the Courts.
REASONING
Legislative Powers
The power to legislate over a territory springs from the Royal Prerogative, which is manifested either by Order in Council or by Letters Patent. Historically each has been used to set up