TNAG-1171-FCO40-1452-Future-of-Hong-Kong-1982 — Page 128

4. AS REGARDS THE LEGAL MEANS WHEREBY BRITISH ADMINISTRATION IN 'THE NEW TERRITORIES MIGHT BE MAINTAINED AFTER 1997, I WAS INTERESTED, AS WAS MURRAY MACLEHOSE, IN THE REFERENCE IN OPTIONS

A AND B OF ANNEX A TC THE POSSIBILITY OF EXERCISING FOREIGN JURISDICTION IN FORMER LEASED TERRITORIES" BY ORDER IN COUNCIL UNDER THE FOREIGN JURISDICTION ACT OF 1890. IT WOULD BE HELPFUL TO HAVE A MORE DETAILED ACCOUNT OF THE LEGAL ADVISER'S THINKING ON THIS. IF, AS I ASSUME, ARTICLE 1 IS THE KEY, COULD IT NOT BE USED TO VALIDATE THE CONTINUATION OF JURISDICTION IN THE WHOLE OF HONG KONG IN CIRCUMSTANCES WHERE H M G HAD ACKNOWLEDGED CHINESE SOVEREIGNTY BUT THE CHINESE GOVERNMENT HAD AGREED THAT BRITISH ADMINISTRATION SHOULD REMAIN FOR THE TIME BEING ?. ON THE OTHER HAND THE FOREIGN JURISDICTION ACT'S DATE IS AGAINST IT AND NOT ALL OF ITS PROVISIONS ARE ONES WHICH WE SHOULD WISH TO DRAW TO CHINESE ATTENTION.

5. FOR CONVENIENCE I AM SENDING A COPY OF THE FOREIGN JURISDICTION ACT BY BAG TO PEKING IN CASE YOU HAVE NOT ALREADY DONE SO.

6. IN AN IDEAL WORLD AN UNDERSTANDING THAT THE UK SHOULD CONTINUE TO ADMINISTER HONG KONG AFTER 1997 WOULD BE SEALED IN AN AGREEMENT SETTING OUT THE POWERS WHICH H M G WOULD RETAIN.

I DO NOT DOUBT (SUBJECT TO JOHN GRIFFITH'S VIEWS) THAT THE POWERS WE WOULD NEED TO RETAIN ARE BROADLY SPEAKING THE

ONES LISTED IN ANNEX B. BUT ANY ATTEMPT TO REACH AGREEMENT

WITH THE CHINESE ON SUCH A LIST WOULD SURELY RUN INTO DIFFICULTIES VERY QUICKLY. THEY MIGHT BE PREPARED TO ACQUIESE 1N THE CONTINUATION OF THE PRESENT ARRANGEMENTS FOR AN INDEFINITE

PERIOD. BUT IT SEEMS HIGHLY UNLIKELY THAT THEY WOULD WANT

A FORMAL AGREEMENT DELIMITING THE HKG'S RIGHTS IN HONG KONG

OR WOULD WISH TO SEE THESE SPELLED OUT IN A UK ACT OF

PARLIAMENT.

6. AGAINST THIS BACK GROUND MY COMMENTS ON THE OPTIONS LISTED

AT ANNEX A ARE:

OPTION A

THIS HAS PRESUMABLE BEEN INCLUDED BECAUSE OF THE POSSIBILITY

THAT THE CHINESE MIGHT FIND THE PROBLEM OF THE FUTURE SO

INTRACTABLE THAT THEY WILL WISH TO PUT OFF DEALING WITH IT INDEFINITELY. THIS NOW SEEMS LESS LIKELY IN VIEW OF THE

EVOLUTION IN CHINESE THINKING OVER THE PAST FEW MONTHS. THERE

IS CERTAINLY VERY LITTLE MERIT IN THE OPTION FROM THE HONG

KONG FOINT OF VIEW. THE ''AT BEST TEMPORARY'' ASSESSMENT

OF ITS EFFECT IS AN UNDERSTATEMENT.