TNAG-1333-FCO40-1765-Future-of-Hong-Kong-legislation-1985 — Page 276

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(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.

not

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

be subject to either affirmative or negative Parliamentary

procedure. There could easily be pressure from Parliament to make

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)

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

case. 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.

it

+

(b) Nationality, as argued above, could be dealt with by an enabling

clause allowing later subordinate legislation. Provisions on nationality are usually set out in detail in Independence Acts. But

/in

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