SECRET
As I see it, the UK has a choice either -
7.
a)
b)
to put one or two specific propositions to the Chinese in the hope of obtaining their agreement to one of them; or
to act in a particular way without obtaining their agreement in the hope that they will acquiesce.
If the UK proceeds as at (a) and fails to secure Chinese agreement to any of its propositions, then the scope for subsequent action as at (b) may be seriously reduced - HMG have already had one rebuff and a second rebuff might put the UK in baulk.
8. I am not equipped to forecast what the Chinese might swallow and anyway it is not for lawyers to assess the degree to which the Chinese would tolerate the making of a change in UK municipal law to which they had not expressly signified their concurrence. My purely personal feeling is that it would be risky to ask the Chinese to agree in advance to specific legal propositions - my own guess is that HMG's best tack would be to take a suitable opportunity to elicit from the Chinese at ministerial level an indication that the expiration date of the lease of the New Territories is not significant because the Chinese do not draw a distinction between the New Territories and the rest of Hong Kong and, having done so, to make a Parliamentary statement followed by an Order in Council without doing anything more except perhaps to inform them simultaneously.
9. It is not my place to do more than draw attention to the possible ways in which the option of unilateral action might be exercised and you will understand that anything I have said in this letter is purely my own view, not having been endorsed by our HKGD, let alone FCO Ministers.
Yours
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Antony Rushfad
A R Rushford Deputy Legal Adviser
23 October 1981
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