TNAG-0944-FCO40-1163-Future-of-Hong-Kong-1980 — Page 160

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(iii) While the assertion of the extended

jurisdiction (ie the act of State) could no doubt be made by a prerogative Order in Council, I am uneasy about the assumption that the exercise of the extended jurisdiction - which would be made either by a general amendment to the 1898 Order or by the enactment of provisions dealing specifically with the grant of post-1997 leases could also properly be effected by a prerogative Order. I think that it is at least arguable that we ought, in those circum- stances, to rely on the Foreign Jurisdiction Act 1890, ie to proceed by an Order in Council which would be a statutory instrument. This, indeed, seems to be the logical corollary of what is said - and I agree with it in the last paragraph of the relevant part of Mr. Griffithis Opinion. But I claim no confidence at all about this. Our practice in respect of New Territories points the other way but it is highly anomalous: see the analysis on page 26 of Roberts-Wray which, with respect, do not find intellectually convincing. But what I do accept is that the legal efficacy of the Order in Council would not be open to successful challenge in any Hong Kong or UK court, irrespective of its form.

I

SECTION II

The so-called "lease" from China

I agree that, in purely legal terms, this is a red herring and

that HMG's position in respect of the New Territories is not that of

an ordinary lessee under the law of landlord and tenant. I there-

fore agree that the ordinary rules about theeffect of a lessee

purporting to grant a greater term by way of sub-lease than he himself

posseses would have no application. But I further agree that

arguments based on these rules could well be trotted out to damaging

effect, if we did purport to grant leases, unsupported by legislation,

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