The Inner Temple Yearbook 2021–2022
Should UK Judges and Ex-Judges Be Sitting in Hong Kong?
SOCIAL CONTEXT OF THE LAW:
SHOULD UK JUDGES AND EX-JUDGES BE SITTING IN HONG KONG? From a panel discussion between The Rt Hon Lord Neuberger of Abbotsbury and Master Charles Falconer, moderated by Master Treasurer and delivered via Webinar on Thursday 6 May 2021
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Master Treasurer: Should UK judges and ex-judges be sitting in Hong Kong? Let me start with a very quick pen sketch to set the scene. On 8 September 1997, the then Lord Chancellor, Master Irvine, and the Chief Justice of Hong Kong agreed that the House of Lords would provide two serving Law Lords to sit on the newly created Court of Final Appeal as part of the UK’s continuing commitment to safeguarding the rule of law in Hong Kong. And we move forward 20 years. Lord Neuberger, then the President of the United Kingdom Supreme Court and a sitting judge on the Hong Kong Court of Final Appeal, was reported as saying the time could come when it would be right for all foreign judges to quit the Hong Kong bench. Giving a speech in 2017, he suggested that the foreign judges were “canaries in the mine”. As long as they are happy to serve on the court, then you can safely assume that all is well with judicial independence and impartiality in Hong Kong. But if they start to leave in droves, that would represent a serious alarm call.
The foreign judges were “canaries in the mine”. As long as they are happy to serve on the court, then you can safely assume that all is well with judicial independence and impartiality in Hong Kong. But if they start to leave in droves, that would represent a serious alarm call.
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On to 30 June 2020. The law of the People’s Republic of China (PRC) on safeguarding national security in the Hong Kong Special Administrative Region was enacted, introducing crimes of subversion, secession, terrorism and collusion with foreign powers. This is said to be a breach of Article 23 of the Basic Law, which provides for Hong Kong to bring forward its own national security legislation, which had been tried, but failed, in 2003. Foreign judges are not permitted to hear cases arising under the new law. Master Reid, the president of the UK Supreme Court, said, “[The new law] contains a number of provisions which give rise to concerns. Its effect will depend upon how it is applied in practice. Undoubtedly the judges of the Court of Final Appeal will do their utmost to uphold the guarantee in the Basic Law that the courts of the Hong Kong Special Administrative Regions shall exercise judicial power independently, free from any interference.” The Supreme Court, continued Lord Reid, supports the judges of Hong Kong in their commitment to safeguard judicial independence and the rule of law. It will continue to assess the position in Hong Kong as it develops in discussion with the UK government. Whether judges of the Supreme Court can continue to serve as judges in Hong Kong will depend on whether such service remains compatible with judicial independence and the rule of law. On to this year: on 11 March 2021, Lisa Nandy, the Shadow Foreign Secretary, and one of tonight’s speakers, Lord Falconer, the Shadow Attorney General, called for the UK judges to withdraw, in recognition that the rule of law was endangered by Beijing’s crackdown on democracy. They said that “while it had been hoped that the continuing role of UK judges could help preserve judicial independence and the rule of law in the face of the actions of the Chinese government and Hong Kong authorities, the sustained campaign to undermine democracy has fundamentally changed the context”.
