TNAG-1333-FCO40-1765-Future-of-Hong-Kong-legislation-1985 — Page 246

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4.

The major points to be resolved relate to (a) and (b). The termination of sovereignty in the ceded territories could

be made either:

(i)

(ii)

5.

by a clause in the Act which would itself terminate

UK sovereignty over the ceded territories as from

1 July 1997; or

by an enabling clause giving power to make an

Order in Council bringing into effect the

termination of sovereignty from 1 July 1997.

The choise between options (i) and (ii) is essentially

a matter of parliamentary tactics, on which I should greatly

value your advice. My first instinct, as I explained at OD(K),

was to favour option (ii). On further reflection I have come

to favour option (i), for the reasons set out below.

6.

Option (ii) would leave a trigger mechanism in our

hands in the form of the Order in Council to bring into effect

the termination of sovereignty which would not be made until

nearer to 1997. This would however be of little practical use

as a deterrent to the Chinese: our rights on the leased terri-

tories disappear in 1997 anyway, and the remaining territory is not viable on its own. It can be argued that option (ii) would have some presentational advantages, since the transfer of sovereignty is so far in the future. It would, for example,

leave the final decision to be taken after the Chinese have

published their Basic Law for Hong Kong. But there is one

important consideration pointing in the other direction. The Attorney General has advised us to the effect that, if option (ii) is followed, and if ratification is to precede the making

of the Order in Council, the latter must not be subject to

either affirmative or negative Parliamentary procedure. My feeling, on which I should value your view, is that there could

well be pressure from Parliament to make it so subject, particu-

larly as members might take the view that Parliament should see

the Basic Law before taking a final decision. There are precedents (particularly in the case of Rhodesia) for subordinate

/legislation

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