TNAG-1333-FCO40-1765-Future-of-Hong-Kong-legislation-1985 — Page 266

CONFIDENTIAL

(a) The termination of sovereignty (paragraph 4(a)) in the ceded

territories could be made:

either:

(i) by a clause in the Act which would itself terminate UK

sovereignty over the ceded territories as from 1 July 1997:

(ii) by an enabling clause giving power to make an Order in Council

bringing into effect the termination of sovereignty from 1 July

1997.

The choice between options (i) and (ii) is essentially a matter of

parliamentary tactics. Option (ii) would leave a trigger mechani sm 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 territories,

disappear in 1997 anyway, and the remaining territory is not viable

on its own. But option (ii) would have some presentational

advantages, since the transfer of sovereignty is so far in the

future. But there is one important consideration: the Law Officers

have advised that, in order to make it possible to ratify the

agreement, an Order in Council, if option (ii) is followed, must not

be subject to either affirmative or negative Parliamentary

procedure. There could easily be pressure from Parliament to make it so subject, particularly as members might take the view that

Parliament should see the Basic Law before taking a final decision.

Although there are precedents (particularly in the case of Rhodesia)

for subordinate legislation on a transfer of sovereignty not to be

subject to further parliamentary consideration, these might not be

sufficient to persuade Parliament to allow the same power in this

Finally, the Chinese might look askance at our insisting on

leaving legislation until a later date. These considerations tend

to militate in favour of option (i). The only serious drawback of

this option is that the Government might be criticised for

legislating definitively so far in advance. On the other hand the

Government could argue plausibly that since the date is now clearly

defined, there is no reason not to legislate. On the whole option

(i) seems the better option.

case.

CONFIDENTIAL