CONFIDENTIAL
12118
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PROVIDING FOR THE TERMINATION OF SOVEREIGNTY BY SUBSEQUENT ORDER
IN COUNCIL, THOUGH NO COMMITMENTS WERE GIVEN ON THIS POINT. WE
HOPE THAT YOU WILL BE ABLE TO EXPLAIN TO THEM THE MAJOR
DIFFICULTIES WHICH, AFTER FURTHER CONSIDERATION OF PARLIAMENTARY
HANDLING, WE NOW SEE IN SUCH A COURSE. THE MAJOR ATTRACTION FOR
THEM IN USING THE ORDER IN COUNCIL PROCEDURE WAS THAT IT WOULD
THEORETICALLY BE OPEN TO A FUTURE GOVERNMENT TO WITHHOLD THE ORDER
IF THEY THOUGHT THAT THE CHINESE WERE NOT KEEPING TO THE AGREEMENT
IN FACT THERE WOULD BE SIMILAR THEORETICAL FREEDOMS IF WE TAKE
THE COURSE IN PARA 2(1), I.E. TERMINATION IN THE ACT ITSELF.
TERMINATION IN THE ACT WOULD NOT BE IRREVOCABLE IN THAT IT WOULD
STILL BE OPEN TO THE GOVERNMENT TO SEEK THE REPEAL OF THE ACT
IN PARLIAMENT BEFORE THE TERMINATION OF SOVEREIGNTY TOOK EFFECT.
IT HAS TO BE RECOGNISED, OF COURSE, THAT EITHER THIS COURSE, OR
THE COURSE OF REFUSING TO MAKE AN ORDER IN COUNCIL WOULD BE AN
EXTREMELY DRASTIC STEP. EITHER COULD BE CONTEMPLATED ONLY IF
THERE HAD BEEN A TOTAL BREAKDOWN IN THE IMPLEMENTATION OF THE
AGREEMENT. AND THE PRACTICAL SIGNIFICANCE OF SUCH A STEP WOULD
BE HIGHLY DOUBTFUL, GIVEN THE INEVITABILITY OF THE REVERSION OF
THE NEW TERRITORIES IN 1997.
NATIONALITY
WE
5. WE ARE ALL CLEAR THAT ALTHOUGH IT IS NOT NECESSARY FOR THE
BILL TO DEAL WITH NATIONALITY IN ORDER TO MAKE RATIFICATION
POSSIBLE IT WILL NOT IN PRACTICE BE DESIRABLE OR FEASIBLE TO PUT
FORWARD A BILL WHICH DOES NOT TOUCH ON NATIONALITY. THERE IS
HOWEVER NO DOUBT THAT NATIONALITY IS THE MOST CONTROVERSIAL
ASPECT OF THE AGREEMENT AND THE LEGISLATION, AND THERE IS A
DANGER THAT A CONTROVERSY OVER IT MIGHT DELAY RATIFICATION.
CANNOT AFFORD THIS, GIVEN THE TIME LIMIT SET FOR RATIFICATION.
THE CONCLUSION WE HAVE COME TO THEREFORE IS THAT WE SHALL NEED TO
INCLUDE IN THE LEGISLATION AN ENABLING CLAUSE ALLOWING AN ORDER
OR ORDERS IN COUNCIL TO BE MADE SUBSEQUENTLY TO ESTABLISH THE
REGULATIONS FOR THE NEW FORM OF NATIONALITY ENVISAGED, AND OF
COURSE TO MAKE PROVISION AGAINST STATELESSNESS IN THE CASE OF
THOSE WHO WOULD HAVE NO OTHER FORM OF NATIONALITY. THERE IS ROOM
FOR DISCUSSION ON THE FORM OF THIS ENABLING CLAUSE, WHICH MIGHT
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CONFIDENTIAL