B
E
775
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6. We are left with a number of open questions for discussion at the meeting which are included in the list of points.
My own views are:
1
a) The Chinese must be told what we propose to do; after
the discussions last year we cannot get away without doing so;
b) We would probably be unwise to try to do without
legislation initially and only to enact it if the issuing of leases were challenged in the courts. Although tempting, I would expect that this would risk more embarrassment for the Chinese later. Never- theless, this appears to be the preferred approach of the Governor who can be expected to push it at tomorrow's meeting. His scenario would involve the granting of a first lease going beyond 1997 to an organisation which could clearly be identified with China. If this were taken up by the Chinese, the way would be open to grant similar leases to others.
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c) For similar reasons, I am doubtful about unpublicised
legislation (paragraph 2(e) of Mr Rushford's minute of 1 August). It would be unrealistic to expect that the issuing of leases would not lead to questions perhaps in Parliament which would show that legislation (which the press would call 'secret') had been passed. The result again would probably be greater, not less, embarrassment. If there is a question of UK legislation, the Attorney-General would have to be consulted as he would be expected to defend the law in question in the House of Commons.
d) In choosing between possible forms of lease, there is no
fully satisfactory proposal. The Attorney General of Hong Kong has explained the various options. Indeterminate leases would probably be unacceptable to the Chinese as implying indefinite continuation of the status quo. Leases for a fixed period would be variously less acceptable as a confidence-building measure (eg 25 years) or suspect to the Chinese (eg 75 years) as their length differed. Mr Griffiths has put forward the idea of a 'periodic tenancy'. This would be a periodic lease (say for one year) which would be renewable automatically each year unless either side terminated. In theory, this would have some advantages for the Chinese since, on the face of it, it would not imply any British assumption of post-1997 juris- diction. But it would be difficult to explain to them; and it is in any case doubtful whether it would be of much use as a confidence-building measure in Hong Kong.
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