TNAG-2334-FCO40-3397-Future-of-Hong-Kong-Crown-Proceedings-Ordinance-1991 — Page 34

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sovereignty by an imperial power in respect of a dependent territory, but from the mundane requirement of which government may be required to provide the revenue out of which any liability of the Crown is to be satisfied. As regards object (b), were we now to raise any question relating to

British forces, seen from here there is little doubt that it would be subject to lengthy delays while the Chinese consulted the Ministry of National Defence. They would be unlikely to be forthcoming and certainly not until such time as the defence lands issue was resolved, which we currently expect to take some considerable time.

as follows

(i)

(ii)

The options as regards consultation appears to be

-

Consult the Chinese, before the adaptation stage, on both elements of our proposal. If there was a good chance of engaging in a fruitful dialogue with the Chinese, there would be a lot to be said for doing this. Upon successful completion of consultation, amendments to the Crown Proceedings Ordinance could be enacted which would provide a good basis for midnight adaptation.

It would avoid the risk, inherent in a decision not to consult before amending, of provoking a double reaction from the Chinese : accusations of fait accompli now by removing the central government's immunity from suit in the local courts, and insisting at the adaptation stage on restoring that immunity. However, given the complexity and obscurity of the subject matter, consultation on it might delay the proposed enactments so that they could not be enacted before the adaptation stage. We would then have failed to secure the basis for adaptation that was our aim in choosing to consult. Also, if consultation was to be a long drawn out affair, we would reach a point in time where not much useful purpose would be served by the amendment enabling members of the British forces in Hong Kong to sue the Crown/UK here.

Consult the Chinese, before the adaptation stage, only on object (a) above, meanwhile proceeding with object (b) without consultation. If they asked why we were doing the latter, we would say that the relevant part of the Crown Proceedings Ordinance is not intended to survive 1997. The advantage of this option is that we would achieve object (b) early, for what that may be worth. Apart from this the pros and cons are the same as for option (i).

avail

CONFIDENTIAL