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Hong Kong Courts: British Judges

Volume 811: debated on Monday 22 March 2021


Asked by

To ask Her Majesty’s Government what assessment they have made of role of British judges in courts in Hong Kong; and what plans they have to prevent judges from participating in those courts.

My Lords, British judges have played an important role in supporting the independence of Hong Kong’s judiciary for many years. We want and hope for this to continue. However, the national security law poses real questions for the rule of law in Hong Kong and the protection of fundamental rights and freedoms promised by China in the joint declaration. The UK judiciary is of course independent of government and it is for it to make an assessment of the issue. It is right that the Supreme Court continues to assess the situation in Hong Kong in discussion with Her Majesty’s Government.

My Lords, I thank the Minister for his reply, but is it not time that Her Majesty’s Government make their position clear on this and take further action? Is it not wrong on many levels that British judges are active in Hong Kong, giving a veneer of respectability to wholly draconian laws which effectively stifle freedom of speech, freedom of assembly and free and fair elections?

My Lords, let me assure the noble Lord that, as I said in my original Answer, we are working closely with the Supreme Court. The noble and learned Lord, Lord Reed, has already made it clear that he is co-ordinating his response in consultation with the Government. The important assessment to be made is in relation to the issue of judicial independence, as guaranteed by Hong Kong Basic Law, and the rule of law. This is under active consideration by the Supreme Court in consultation with the Government.

My Lords, I declare my interest as a vice-chairman of the All-Party Parliamentary Group on Hong Kong. I am sure that many will have read this morning’s disturbing story in the Daily Telegraph that BNO passport holders who apply for UK visas may be at risk of having their pensions withheld. That perhaps illustrates the current regime’s contempt for established law. What steps have the UK Government taken in response to this and any other recent developments in Hong Kong?

My noble friend is right to draw attention to this worrying development whereby the Mandatory Provident Fund Schemes Authority will no longer accept BNO passports. It is yet further evidence of the challenges which continue to be experienced in Hong Kong. The Government have acted by providing new immigration routes to BNO holders to the UK. We have suspended the extradition treaty with Hong Kong and put in place an arms embargo. We continue to call out, as we did on 13 March through my right honourable friend the Foreign Secretary, breaches of the joint declaration.

My Lords, I last appeared in the Court of Final Appeal in Hong Kong two weeks ago. It was a remote appearance. It was 2 am, but the court seemed to me to be as independent as it has been since 1997. Will the Minister recognise that the judges in Hong Kong are doing everything in their capacity to maintain their independence and that they and the independent Bar in Hong Kong are very keen that the judges of this jurisdiction continue to support them and do not abandon them?

My Lords, the noble Lord speaks with great insight on this matter, and I agree with him. That is why it is right that the Supreme Court makes a decision, but it is also right that it does so while consulting Her Majesty’s Government. We pride ourselves on the strength of the independence of the judiciary. I hope that the authorities in Hong Kong do the same.

My Lords, in the face of China’s serial breaches of the 1984 Sino-British joint declaration, we have honoured our obligations and not done China’s work for it. Is there not now a case for us to remain on that high ground and respect the wish of the Hong Kong legal community for distinguished judges to continue their work in the Court of Final Appeal, upholding the rule of law, until such time as the Chinese make their task impossible?

My Lords, briefly put, I totally agree with the noble Lord. As I said in response to the noble Lord, Lord Pannick, our judges play an important role in Hong Kong and it is important that the final decision on them continuing in that role lies with the Supreme Court.

My Lords, the judges have been termed the canaries in the coalmine. The noble Lord indicated that he fears it will not be long before their position may become untenable. What conversations on this matter have been held with the other common law countries, including Australia and Canada, from where the other judges come?

My Lords, the noble Baroness is right to draw attention to the importance of the diversity of the judiciary in Hong Kong. I assure her that we co-ordinate with international partners, not just on this but on a number of matters relating to Hong Kong. As I have said, on the specific issue of UK judges, we are of course working very closely with the Supreme Court, in particular with the noble and learned Lord, Lord Reed, its president.

My Lords, I suppose the issue is whether the presence of British judges legitimises a political and legal system which is compromised as a consequence of the Chinese Government’s changes to Hong Kong law. On 12 March, the spokesperson for the noble and learned Lord, Lord Reed, said that the Supreme Court had been

“in close contact with the British foreign secretary and lord chancellor on matters for some time, and is reviewing with them the operation of the agreement”.

What has changed since 12 March? Are we likely to hear from the Lord Chancellor and the Government about a change in the role of British judges in Hong Kong?

My Lords, I will not prejudge any announcement. It is important that we co-ordinate very closely with the Supreme Court. As the noble Lord will be aware, the role of the judges in Hong Kong is very much enshrined in basic Hong Kong law, under Articles 19 and 85, which guarantee their independence and freedom from interference. Those are important criteria and I am sure that, as I have already said, the Supreme Court is considering its position on this.

My Lords, does my noble friend agree that the rule of law and the permanent and non-permanent judges in Hong Kong deserve all the support we can give them, and that the British and Commonwealth judges should stay, unless the independence of the judiciary is compromised by, for example, its being asked to enforce laws that were no longer in accordance with the rule of law, or it is undermined altogether? As my noble friend is well aware, I have been critical of the PRC’s activities in breach of the rule of law and human rights, but will he accept that the removal of the non-resident judiciary would only please Beijing and damage the rule of law?

I agree with my noble and learned friend, and other noble Lords who have spoken on this Question, that our judges, as well as those from other countries, play an important role in upholding the independence of the judiciary, which should continue to be free from any interference. As I have said, their role is enshrined in basic Hong Kong law and it is important that the Supreme Court makes the ultimate decision on the continuation of that role.

My Lords, I refer to my entries in the register and my former position as a non-permanent judge of Hong Kong’s Court of Final Appeal, and my engagements to establish, and then become, respectively, president and Chief Justice of the commercial courts in Qatar and Kazakhstan, both of which are modelled on our commercial court and have former senior British judges on the Bench. I also refer to the article by Lord Sumption in the Times and the article in the South China Morning Post. In view of the answers that he has already given, do the Minister and the Foreign Office appreciate that the reputation of justice and judges in this country is enhanced by judges performing the roles to which I referred? If our Government are seen to be interfering with the appointment of British judges who do this work, especially where, in Lord Sumption’s apt words,

“In reality they are demands that judges should participate in a political boycott designed to put pressure on the Chinese Government to change its position on democracy”,

then this will not continue.

My Lords, I agree with the noble and learned Lord and recognise the important insight and experience that he brings to this debate. Equally, as I have already indicated in my previous answers, the Government are very clear that the independence of judges operating within Hong Kong must be free of political interference. However, it is right that we continue to work with the Supreme Court on its determination of that position. We call upon the Hong Kong authorities to respect the principle of these two aspects, which is enshrined within basic Hong Kong law.