TNAG-1166-FCO40-1446-Future-of-Hong-Kong-1982 — Page 21

SIR IAN SINCLAIR

FUTURE OF HONG KONG

copied to

Mr Burrow's

MAR 040/1

SECRET

Сс

2.982

Anter

Mr Clift, HKGD

Mr Freeland "Mr Morris, HKGD

44A

a7412

Mr Steel (Law Officers'

*C.

Dept. A-G's Chambers).

8/28/2 12

حلامة

25

HRK 04/1

76

+(17)

We spoke on 26 January about my minute of that date to

Mr Clift (copied to you).

2.

HKL 040/1

(97) 1978.

I was glad to learn that you share my view (originally expressed in my minute of 17 August 1978, of which I attach a copy of the relevant page) that the Crown is free to grant leases in the New Territories of any duration even if they would not expire until after 30 June 1997.

3. You also agreed that it would be useful to clarify the powers of the Crown by means of an amendment to Article XIII of the Hong Kong Letters Patent, so as to rebut any contrary arguments that might be hooked on to the word "lawfully" in paragraph (1) and the reference to "laws" in paragraph (4).

4. I offered to provide the first draft of a suitable amend- ment and accordingly now attach it.

HECK 040/1 (5) 1979

5. In his letter reference 400/79/177 of 16 July 1979 Mr de Winton said that the Attorney-General saw no objection in principle to a draft provision for inclusion in an Order in Council giving power to the Governor to grant indeterminate leases. My impression is that the Attorney-General was not concerned about clarification or variation of the municipal law concerning leases although he did not favour another draft provision for inclusion in the Order purporting to provide for the administration of the New Territories after 30 June 1997. The Governor insisted on putting both ideas to the PRC in 1979 but, as one would have expected, they were turned down. On 18 July 1980 Mr Steel and I met with Mr Griffiths (Attorney- General of Hong Kong) to discuss leases (minutes of 1 August 1980 and Mr Steel's letter of 6 August 1980 refer). We failed to reach complete agreement but it was I believe generally HKK04/1

right

accepted that any deficiency in the Crown's power to grant leases could be put by a UK Order in Council or Letters Patent. 1980 My separate minute to Mr Clift of 1 August 1980 indicates that the (UK) Attorney-General is not claiming to be consulted but would need to be consulted if the FCO wanted him to defend

1980. a piece of UK legislation in the House of Commons.

6. You expressed the view that it might now help to resolve the impasse by going ahead with a suitable amendment of Article XIII (which would operate in municipal law but would have no effect in international law). If, as one might hope, the PRC allowed the amendment to pass without any adverse reaction, this might give a useful indication of their likely reaction to a later amendment of the 1898 Order so as to allow UK administration of the New Territories to continue after 30 June 1997.

28 January 1982

D WA

A.R.R

A R Rushford

Deputy Legal Adviser