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3229
Communications on this subject should
be addressed to
THE LEGAL SECRETARY
ATTORNEY GENERAL'S CHAMBERS
Our Ref: 400/79/177
SECRET
ATTORNEY GENERAL'S CHAMBERS,
LAW OFFICERS' DEPARTMENT,
HEROYAL COURTS OF JUSTICE,
LONDON, W.C.2.
JONA
2 JUL 1979
Dann Tory,
HONG KONG AR. RUSHFORD
118
IND
heroupe, 1979 дзоре,
See (ish)
Thank you for your letter of 18 June enclosing a draft Order in Council. There are two points on which I should like clarifica- tion before I submit it to the Attorney-General.
Clause 2 of your draft proceeds on the assumption that under the law of Hong Kong the grant of indeterminate leases is permissible. Your letter says nothing about the real property law of Hong Kong and I have no information about it. Could you confirm that there are no technical problems about the nature of this form of title.
I hope that I have understood the effect of your clause 3. To make laws for a territory and exercise executive authority for it is "administering" it, and the proposition in the clause seems to be somewhat circular i.e. Her Majesty can administer, in this sense, as long as she goes on administering. Therefore legislative and executive power in respect of the new territories would cease if Britain stopped providing them at any time before 1997; and at the other end of this time scale, there would be legislative and executive powers in the new territories after 1 July 1997 for so long as the Colonial authorities exercise them. Of course for the period up to July 1 1997 there is a basis in the lease for the provision in clause 3; but can the prerogative power be used (now in 1979) in anticipa- tion of events in 1997 (such as a new lease or sufferance of our continuation by the Chinese) to provide for the government of the new territories from the time when the lease ceases?
You ever,
Make
A R Rushford Esq CMG
Deputy Legal Adviser
Foreign and Commonwealth Office
Downing Street
London, SW1A 2AL
SECRET
MG de Winton
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