TNAG-1172-FCO40-1453-Future-of-Hong-Kong-1982 — Page 88

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Mr Clift

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FUTURE OF HONG KONG: LEGAL IMPLICATIONS

1.

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Paragraph 3 of Mr McLaren's teleletter of 14 May refers to the draft minute enclosed with your letter to him of 30 April, headed "Future of Hong Kong: Legal Implications". Neither the Legal Adviser nor I wrote that draft minute, although you did show it to us and we concurred in it. Its reference to "more general statements" was inserted by Hong Kong and General Department and I must leave it to you to say, if you wish, what statements you had in mind.

2.

The Foreign Jurisdiction Act 1890 was suggested by my predecessor as a possible vehicle for use in connection with two of the least satisfactory options. Section 1 of the Act reads:-

'It is and shall be lawful for Her Majesty the Queen to hold, exercise, and enjoy any jurisdiction which Her Majesty now has or may at any time hereafter have within a foreign country in the same and as ample a manner as if Her Majesty had acquired that jurisdiction by the cession or conquest of territory.'

3.

The Foreign Jurisdiction Acts 1890 and 1913 were designed to deal with the situation where appreciable numbers of British and other European subjects lived in foreign countries where the local laws and legal systems were considered to fall below civilised standards, but where the local government was prepared to allow us to exercise jurisdiction within its territory over our own people and sometimes over other Europeans, but not over the whole population. They were neither designed nor used to enable HMG to conduct the exclusive internal and external government of the territory. Orders under the Acts were made to albw extra- territorial jurisdiction to be exercised in Abyssinia, China, Egypt, Ethiopia, Korea, Morocco, Persia and the Persian Gulf. I think I am right in saying that the last China Order was made in 1925. The Chinese may remember it, and might not be altogether flattered by a suggestion that we should revive the practice. The Acts fell into disuse after the Persian Gulf states (where they were last used) found this form of "neo-colonialism" no longer acceptable. question not only their appropriateness now, but also whether, given the purpose for which they were designed, it would even be intra vires to use them as envisaged. We could be in some difficulty with the Joint Committee on Statutory Instruments if we did. This would be so whether we sought to act in relation only to the Leased Territories or to the whole of Hong Kong.

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