TNAG-0849-FCO40-1059-Future-of-Hong-Kong-New-Territories-leases-1979 — Page 22

GPS 360A

SECRET

SECRET

FM FCO 281832Z JUNE 1979

TO IMMEDIATE HONG KONG

TELEGRAM NUMBER 454 OF 28 JUNE

INFO ROUTINE TO PEKING.

FOR GOVERNOR AND CORTAZZI FROM MCLAREN.

HIER OO/!

IND

- 2 JUL 1979

DESK OF

по

122.21

See (124)

1463

NEW TERRITORIES LEASES,

1.

RUSHFORD AND I HAVE DISCUSSED THE LATEST VERSION OF THE DRAFT ORDER IN COUNCIL WITH DE WINTON OF THE LAW OFFICERS DEPARTMENT, WHO WILL HAVE TO ADVISE THE ATTORNEY GENERAL ON THIS QUESTION. DE WINTON IS CONCERNED WHETHER THE PREROGATIVE POWER CAN BE USED NOW, AND

IN ANTICIPATION OF FUTURE EVENTS, TO PROVIDE FOR THE GOVERNMENT OF THE NEW TERRITORIES FROM THE TIME WHEN THE LEASE EXPIRES, RUSHFORD IS CONFIDENT THAT DE WINTON'S DOUBTS ON THIS SCORE CAN BE REMOVED.

2.

THERE IS A DRAFTING PROBLEM OVER THE SAVING CLAUSE. THIS IS INTENDED TO PROTECT THE RIGHTS OF THE CROWN IN THE NEW TERRITORIES UNDER THE 1898 TREATY. HOWEVER, THE INCLUSION OF THE PHRASE ''SUBJECT TO THE PROVISIONS OF THIS ORDER'' COULD BE CONSTRUED, WHEN READ TOGETHER WITH CLAUSE 3, AS AN INDICATION THAT THOSE RIGHTS COULD TERMINATE BEFORE 1997 AS WELL AS AFTER THAT DATE. WE HAVE THOUGHT OF TWO POSSIBLE WAYS OF GETTING ROUND THIS DIFFICULTY:-

(A) TO SUBSTITUTE THE FOLLOWING FOR THE EXISTING CLAUSE 4:- QUOTE: THE PROVISIONS OF THIS ORDER SHALL BE WITHOUT PREJUDICE TO THE CONTINUED OPERATION OF THE ORDER OF HER MAJESTY IN COUNCIL MADE IN RESPECT OF THE NEW TERRITORIES ON 20 NOVEMBER 1893 FOR THE TERM REFERRED TO THEREIN. UNQUOTE.

(B) TO AMEND THE END OF CLAUSE 3 TO READ: QUOTE: FOR SO LONG AFTER 30 JUNE 1997 AS HER MAJESTY ADMINISTERS THOSE TERRITORIES. UNQUOTE.

(A) IS INELEGANT BUT. APPEARS TO DO THE JOB. (B) IS PROBABLY TOO EXPLICIT TO BE ACCEPTABLE TO THE CHINESE.

SEORET

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