TNAG-0753-FCO40-957-Future-of-Hong-Kong-1978 — Page 31

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HONG KONG: LEASES IN THE NEW TERRITORIES

Note of conclusions reached by Mr Hobley and Mr Rushford on 16 November 1978

1.

As a matter of municipal law, the problem caused by the fact that leases of Crown land in the New Territories are due to expire in June 1997 could be dealt with by converting such leases into leases for 75 years, such as are granted in the rest of the Colony.

2. Doing this would not require any legislation.

3. The problem could also be dealt with by converting such leases into indeterminate leases, but this would require legislation, since indeterminate leases are unknown to the

common law.

4. Legislation for the purpose could be enacted by the Hong Kong legislature.

5. Neither solution would require the agreement or consent of the authorities of the Republic of China. There may well be a political case for acting without consultation with them, so as not to put them to the embarrassment of having to agree in advance to whatever measures were adopted.

There is some risk that the action taken might be challenged in Hong Kong, but if necessary it would easily be validated by Order in Council.

6.

Since what can be done by the Hong Kong legislature can also be done by Her Majesty in Council, provision for indeterminate leases could be made by Order in Council.

7.

8.

It is very unusual for Her Majesty in Council to legislate for Hong Kong on a matter within the competence of the Hong Kong legislature. An Order in Council providing for indeterminate leases would cast doubt on the power of the Hong Kong Government and Legislature to provide for other matters in relation to the New Territories. Such an Order in Council would therefore need to contain saving provisions to guard against this.

9. Since thought has been given to the possible desirability of providing for indeterminate leases by Order in Council, a draft Order for this purpose is attached.

10.

It has been suggested that provision should be made by Order in Council concerning the powers of the Hong Kong legislature to make laws for the New Territories after June 1997, assuming the UK remains responsible for their administration.

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