TNAG-1039-FCO40-1289-Future-of-Hong-Kong-1981 — Page 58

01-405 7641 Ext.

3229

Communications on this subject should

be addressed to

THE LEGAL Secretary

ATTORNEY General's Chambers

SECRET

.

Enter

179

AKK 04011

ATTORNEY GENERAL'S CHAMBERS,

LAW OFFICERS' DEPARTMENT,

ROYAL Courts of JUSTICE,

LONDON, W.C.2.

Our Ref: 400/79/177

...

лю

5.8

4. R. RUSHFORD P

28 July, 1981

See

215).

My

لملك

Tay

HONG KONG AND NEW TERRITORIES LEASES

1.

Thank you for your letter of 6th July. We have discussed and I have now consulted the Attorney-General.

2. His view is that the mere deletion from Article 1 of the

1898 Order of the four words "and for the term" would not be a

safe way of achieving the objective described in paragraph 5 of your letter. Especially when one bears in mind that the amended Order would still contain its original preamble, and in particular the second recital, there is a real risk that the courts would

decline to construe this limited amendment as constituting the Act of State that would be involved in the assertion of a temporally- unlimited jurisdiction over the New Territories. Alternatively, there is a risk that, if the courts were minded to treat the

deletion of the four words as an Act of State by which a new jurisdiction was being asserted, they might construe it as

amounting to a total and permanent annexation of the New Territories - which is presumably not at all what we want.

3. You say in paragraph 6 of your letter that you could easily devise other possible means of amending or replacing the 1898 Order. The Attorney-General would, of course, be willing to advise on

any particular formula that was put to him but, since so much depends on the facts of the political situation, he does not think

SECRET

/that