TNAG-1172-FCO40-1453-Future-of-Hong-Kong-1982 — Page 41

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FUTURE OF HONG KONG : LEGAL IMPLICATIONS

1.

2.

Thank you for your minute of 22 June.

My guess is that on any reasonably satisfactory and foreseeable scenario we will probably be left with the need for an Act of Parliament. Only under options A and B could we resort to an Order in Council, but I am not sure whether these are still serious runners.

3. It seems from your paragraph 1(c) that we are both thinking on much the same lines.

4.

I was interested to see the papers to which you refer in your paragraph 1(c) They reveal further good examples of how important it will be for us to secure at the outset some agreement with the Chinese to the effect that all discussions, negotiations, or whatever we choose to call them, about the future of Hong Kong are without prejudice to the current position of either side with regard to territorial sovereignty over Hong Kong (a sovereignty "umbrella"), although it could be added that this is not intended in any way to pre-judge the outcome of the negotiations. There would still be a need for this even if we ourselves decided at an early stage to go only for some option which would involve our recognition, on entry into force of the agreement, of Chinese sovereignty over the whole of Hong Kong. Of course a sovereignty umbrella would not be included in the text of any such agreement or any draft of it - indeed it would be wholly inconsistent with that kind of agreement. But even in that sort of situation we must cater for the possibility that the negotiations might break down, or that ratification of the agreement might not be forthcoming, eg if our own Parliament refused to enact the necessary enabling legislation. If, for whatever reason, the agreement failed to enter into force it would thereafter be highly damaging to our legal position on sovereignty over Hong Kong if we had, during the negotiating process and without any sovereignty umbrella, given or accepted texts which spoke of our recognising Chinese sovereignty, or of flying the Chinese flag in Hong Kong (in such a way as to be a symbol of territorial sovereignty), or of giving the Chinese part of the Hong Kong Government's revenues and taxes, or of allowing them to have some kind of governmental presence in Hong Kong (other than by way of some kind of diplomatic or consular representation).

5. Your paragraph 1(d) represents what has always been my understanding too. With respect, the question of policy and tactics

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