TNAG-1333-FCO40-1765-Future-of-Hong-Kong-legislation-1985 — Page 282

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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 TETRITORIES 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 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.

(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 THE CYPRUS ACT 1960 THIS WAS LEFT

TO BE DONE BY ORDER IN COUNCIL, SUBJECT ONLY TO ANNULMENT

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CONFIDENTIAL