TNAG-1333-FCO40-1765-Future-of-Hong-Kong-legislation-1985 — Page 170

CONFIDENTIAL

12118

1

PROVIDING FOR THE TERMINATION OF SOVEREIGNTY BY SUBSEQUENT ORDER

IN COUNCIL, THOUGH NO COMMITMENTS WERE GIVEN ON THIS POINT. WE

HOPE THAT YOU WILL BE ABLE TO EXPLAIN TO THEM THE MAJOR

DIFFICULTIES WHICH, AFTER FURTHER CONSIDERATION OF PARLIAMENTARY

HANDLING, WE NOW SEE IN SUCH A COURSE. THE MAJOR ATTRACTION FOR

THEM IN USING THE ORDER IN COUNCIL PROCEDURE WAS THAT IT WOULD

THEORETICALLY BE OPEN TO A FUTURE GOVERNMENT TO WITHHOLD THE ORDER

IF THEY THOUGHT THAT THE CHINESE WERE NOT KEEPING TO THE AGREEMENT

IN FACT THERE WOULD BE SIMILAR THEORETICAL FREEDOMS IF WE TAKE

THE COURSE IN PARA 2(1), I.E. TERMINATION IN THE ACT ITSELF.

TERMINATION IN THE ACT WOULD NOT BE IRREVOCABLE IN THAT IT WOULD

STILL BE OPEN TO THE GOVERNMENT TO SEEK THE REPEAL OF THE ACT

IN PARLIAMENT BEFORE THE TERMINATION OF SOVEREIGNTY TOOK EFFECT.

IT HAS TO BE RECOGNISED, OF COURSE, THAT EITHER THIS COURSE, OR

THE COURSE OF REFUSING TO MAKE AN ORDER IN COUNCIL WOULD BE AN

EXTREMELY DRASTIC STEP. EITHER COULD BE CONTEMPLATED ONLY IF

THERE HAD BEEN A TOTAL BREAKDOWN IN THE IMPLEMENTATION OF THE

AGREEMENT. AND THE PRACTICAL SIGNIFICANCE OF SUCH A STEP WOULD

BE HIGHLY DOUBTFUL, GIVEN THE INEVITABILITY OF THE REVERSION OF

THE NEW TERRITORIES IN 1997.

NATIONALITY

WE

5. WE ARE ALL CLEAR THAT ALTHOUGH IT IS NOT NECESSARY FOR THE

BILL TO DEAL WITH NATIONALITY IN ORDER TO MAKE RATIFICATION

POSSIBLE IT WILL NOT IN PRACTICE BE DESIRABLE OR FEASIBLE TO PUT

FORWARD A BILL WHICH DOES NOT TOUCH ON NATIONALITY. THERE IS

HOWEVER NO DOUBT THAT NATIONALITY IS THE MOST CONTROVERSIAL

ASPECT OF THE AGREEMENT AND THE LEGISLATION, AND THERE IS A

DANGER THAT A CONTROVERSY OVER IT MIGHT DELAY RATIFICATION.

CANNOT AFFORD THIS, GIVEN THE TIME LIMIT SET FOR RATIFICATION.

THE CONCLUSION WE HAVE COME TO THEREFORE IS THAT WE SHALL NEED TO

INCLUDE IN THE LEGISLATION AN ENABLING CLAUSE ALLOWING AN ORDER

OR ORDERS IN COUNCIL TO BE MADE SUBSEQUENTLY TO ESTABLISH THE

REGULATIONS FOR THE NEW FORM OF NATIONALITY ENVISAGED, AND OF

COURSE TO MAKE PROVISION AGAINST STATELESSNESS IN THE CASE OF

THOSE WHO WOULD HAVE NO OTHER FORM OF NATIONALITY. THERE IS ROOM

FOR DISCUSSION ON THE FORM OF THIS ENABLING CLAUSE, WHICH MIGHT

2

CONFIDENTIAL