TNAG-0944-FCO40-1163-Future-of-Hong-Kong-1980 — Page 162

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therefore no need for prior enabling legislation.

I think that Mr. Griffiths may well be right in his

analysis but I have doubts on two points:-

(a) If, as he says, the grant of a tenancy on

these terms "does not have implicit in it any assumption of post-1997 jurisdiction", would it serve the purpose for which it is intended? In other words, does it carry enough of an implica- tion that we are pledging our credit as to what the tenant's rights will be after 1997 to constitute any assurance to him? Having posed this question, I add that I recognize that it is not, strictly speaking, one for the lawyers to

answer.

(b) Is Mr. Griffiths right in assuming that his

Summary

proposal could be put into effect without prior enabling legislation? In so far as it purports to confer rights which operate after 1997, is it not open to the same objection of incompatibility with HM's limited jurisdiction (as reflected in the 1898 Order in Council) as applies to the grant of a post-1997 lease? Is there therefore, not a real risk that the courts either would hold the tenancy to be totally invalid or (and perhaps more likely) would construe it as a tenancy for a term certain (ie to the relevant date in 1997) but terminable before then either by the tenant giving due notice or by the landlord on one of the specified grounds?

In this minute I have touched on all the main points discussed

in Mr. Griffiths's Opinion but I think that, for present purposes,

there are only 3 questions on which I need trouble you for a view:-

(i) Can a post-1997 lease be safely granted without prior

enabling legislation?

I submit that Mr. Griffiths is right in advising that it cannoŤ.

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