CONFIDENTIAL
6. I note that the Hong Kong Law Officers appear to think that if leases extending begong 1 July 1997 are granted, their validity may be challenged in the Hong Kong courts. It is not clear to me why anybody should want to do this, but if they do, I should expect validity of the grants to be upheld, at any rate in the Judicial Committee of the Privy Council. If, contrary to my expectation, they are held to be invalid, then validating legislation could be enacted by the local legislature or by Order of Her Majesty in Council. In the absence of an adverse judgment in the courts, I should think it undesirable to legislate except to remove some impediment in the statute law of the colony and I trust that no such impediment exists. If, as
a matter of policy, it is decided to grant leases extending beyond
1 July 1997, it would in my view be much better to proceed on the basis that the Governor has the necessary powers already rather than grant him special powers. If he is doubtful about the Grown's powers under Article XIII(1) of the Letters Patent to grant such leases, the matter could perhaps be formally clarified by despatch, but I should see no necessity for this.
7. I need hardly say that there may be non-legal considerations, particularly those relating to the likely attitude of the Chinese Government, that may be highly germane to the whole question.
9 August 1978
AR Rushford
A.R.R.
Deputy Legal Adviser
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