TNAG-1039-FCO40-1289-Future-of-Hong-Kong-1981 — Page 182

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SECRET

шикосо 1

'Phone No. 233 5994

Foreign and Commonwealth Office

RECEIVED 63 PORO. 51 08 JUL 1981

H Steel Esq CMG OBE.

Law Officer's Dept

PA

RE

STRY

on Token

448 15/0

Attorney General's Chambers Royal Courts of Justice

Strand WC2A 2LL

9

My dear Henry

HONG KONG AND NEW TERRITORIES LEASES

London SW1A 2AH

6 July 1981

See

158

все зуб

Bil

Je?.?.

774

040%,

Please refer to your letter ref 400/79/177 of 6 August 1980 where I believe our correspondence on this topic rests.

2. A few weeks ago I had another look at the 1898 Order (copy enclosed). It seemed to me that the words that give rise in municipal law to the Governor's difficulties over granting leases expressed to expire or capable of extension after 30 June 1997 are "and for the term" in Article 1. I therefore suggested that the minimum amendment to the law of Hong Kong that might overcome the legal difficulty might simply be to delete these four words from the 1898Order by means of an amending Order.

3. One would hope that the making of the amending Order might follow some sort of an understanding between the UK and China about the continuance of UK administration after 30 June 1898-1997 (or at any rate the grant of leases running after 30 June 1997) concerning which a public announcement had been made.

If so,

a reference to the announcement might be recited in the amending Order so as to demonstrate that HMG were not acting unilaterally. There is obviously a risk however that HMG might not be able to refer publicly to an understanding with China although they would no doubt have done everything possible to secure some form of Chinese acquiescence or concurrence.

4. In any case, any amending legislation must leave no room for argument in the Hong Kong courts on the question whether or not the Governor is precluded from granting leases running (or capable of running) after 30 June 1997.

5. My question is whether HMG and the Governor could, as a matter of municipal law, rely on the amendment I have suggested as leaving them free to provide for leases running after 30 June 1997 and indeed for the continuance of British administration after that date if colonial government has not been terminated beforehand.

6. I could of course easily devise other possible means of amending or replacing the 1898 Order but there does not seem much point in doing so until the horizon is clearer.

SECRET

/ 7.