TNAG-0849-FCO40-1059-Future-of-Hong-Kong-New-Territories-leases-1979 — Page 140

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80

00 PEKING

GR 600

SECRET

FM FCO 041705Z MAY 1979

TO IMMEDIATE PEKING

TELEGRAM JUMBER 247 OF 4 MAY

FO HONG KONG

YOUR TELNO 407: NEW TERRITORIES LEASES

Акконо RECEIVED IN

DARK

INDEX

·8 MAY 1979

No 23.7

I M

1. TEXT OUR TELNO 34 SAVING TO HONG KONG OF 7 APRIL 1S AS FOLLOWS:

INFO SAVING TO PEKING

FOR GOVERNOR

YOUR LETTER OF 10 APRIL: NEW TERRITORIES LEASES

1. WE HAVE NOW TAKEN ADVICE ON POSSIBLE REWORDING OF THE PROPOSED

ORDER IN COUNCIL. IT HAS OF COURSE BEEN AGREED ALL ALONG THAT ANY FORMULATION WE USE MUST BE CONSISTENT WITH THE CHINESE VIEW ON THE FUTURE OF HONG KONG. OUR UNDERSTANDING OF THAT VIEW HAS BEEN CHANGED BY DENG'S REVELATION THAT HE ENVISAGES A SCENARIO UNDER

WHICH HONG KONG WOULD COME UNDER CHINESE SOVEREIGNTY WHILE CON-

TINUING TO FUNCTION MUCH AS AT PRESENT. AS YOU POINT OUT, THERE

ARE CONSIDERABLE PROBLEMS TO BE OVERCOME BEFORE SUCH A SCENARIO

COULD BE WORKABLE. NONETHELESS WE SHOULD TRY TO ADEVISE A WORDING

FOR THE NEW LEASES THAT WOULD ENABLE THEM TO CONTINUE IN FORCE IN

THE EVENT THAT SUCH A CHANGE DOES TAKE PLACE.

2. THE SIMPLEST SOLUTION WOULD BE TO OMIT THE PHRASE QUOTE FOR SO

LONG AS HER MAJESTY MIGHT ADMINISTER THESE TERRITORIES UNQUOTE FROM

CLAUSE 2. THIS PHRASE WAS ORIGINALLY INCLUDED TO REASSURE THE CHINESE

THAT WE DO NOT ASSUME THAT BRITISH RULE IN HONG KONG WOULD CONTINUE

FOR EVER. ITS OMISSION DOES NOT WEAKEN THE LEGAL VALIDITY OF THE

CLAUSE. BUT IF YOU FEEL IT NECESSARY TO INCLUDE SOME WORDING THAT IN

EFFECT MEANT THE SAME THING WITHOUT ACTUALLY MENTIONING BRITISH RULE,

THEN WE SUGGEST SUBSTITUTING QUOTE FOR SO LONG AS THIS ORDER IS IN

OPERATION UNQUOTE FOR THE PHRASE QUOTED ABOVE.

3. CLAUSE 3 IS MORE PROBLEMATICAL. WE HAVE NOT BEEN ABLE TO DEVISE

AN AMENDMENT THAT WILL DEAL EFFECTIVELY WITH THE POWER TO LEGISLATE

FOR AND ADMINISTER THE NEW TERRITORIES AFTER 1997 WITHOUT REFERRING

TO CONTINUING BRITISH ADMINISTRATION. THE CHOICE THEREFORE IS BETWEEN

RETAINING THIS CLAUSE AT THE RISK OF PROVOKING CHINESE OBJECTION, OR

OMITTING IT AT THE RISK OF HAVING YOUR POWER TO LEGISLATE FOR THE NEW

TERRITORIES AFTER 1997 CHALLENGED IN THE HONG KONG COURTS. GIVEN

THAT WE ARE ADVISED THAT SUCH A CHALLENGE IF MADE BEFORE 1997 WOULD

FAIL, AND THAT THE CLAUSE IS UNNECESSARY IN ORDER TO ENABLE US TO

ACHIEVE OUR PRIMARY PURPOSE OF ISSUING INDETERMINATE LEASES, WE

SUGGEST THAT IN THE NEW CIRCUMSTANCES THIS CLAUSE SHOULD BE DROPPED

ALTOGETHER, LEAVING THE QUESTION OF LEGISLATIVE AND EXECUTIVE POWERS

AFTER JUNE 1997 TO BE CONSIDERED IN THE LIGHT OF CONTEMPORARY CIRCUM-

STANCES WHEN THAT DATE APPROACHES.

4. THERE IS A FURTHER QUESTION OF TACTICS WHICH YOU MAY WISH TO

DISCUSS WITH MCLAREN AND SAMUEL. THE INITIATIVE NOW RESTS WITH THE

CHINESE TO RESUME THE WHOLE DISCUSSION ON THE LEASES AND IT SEEMS AS

WELL TO GIVE THEM A GOOD PERIOD FOR REFLECTION BEFORE STARTING TO

CONSIDER THE POSSIBILITY OF REOPENING DISCUSSION THROUGH OTHER CHANNELS (YOUR PARAGRAPH 16). HOWEVER, GIVEN THAT DENG'S OBJECTION

TO THE OFFENDING PHRASE IS IN THE RECORD FOR CHINESE OFFICIALDOM TO

SEE, IT MIGHT BE BEST TO KEEP OPEN THE OPTION OF SEEKING TO POINT

OUT TO THE CHINESE THAT THE PHRASE WAS INSERTED AS SOMETHING OF A

REASSURANCE TO THEM, RATHER THAN DECIDE NOW THAT WHEN THE SUBJECT IS

REOPENED WE WILL INDICATE OUR READINESS TO DROP IT.

SOSFCA

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