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(ii) If the need for such legislation is accepted, is
there any real doubt about the efficacy, for that purpose, of a prerogative Order in Council?
As I have said, my own inclination is that an Order in Council under the Foreign Jurisdiction Act 1890 would be required but I recognize that the weight of practice and (such as it is) authority is against me. A prerogative Order in Council would certainly be less awkward in political terms and I. do not think that there would be a serious risk of its being successfully challenged (or indeed challenged at all).
(iii) Could Mr. Griffiths's suggested device of a
periodic tenancy (expressed not to be terminable until some point after 1997) be employed without prior enabling legislation?
With some hesitation, I suggest that the answer to this is "no". or, at any rate, that there
must be a substantial doubt as to what the attitude of the courts would be in the absence of such legislation. This, of course, is not to deny that the risk may, even so, be worth taking if the prospect of challenge is assessed to be small and if it is considered that tenancies of this kind would indeed be attractive to would-be tenants. Again, this is not really a question for the lawyers to answer.
28 July, 1980
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H. STEEL