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T Social Context of the Law Should UK Judges and Ex-Judges sit on the Hong Kong Court of Final
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
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.
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”.
Let me give you two opposing viewpoints on tonight’s topic: the first from Nathan Law, a leading democracy campaigner, who left for London because of the new law and was granted political asylum here in April 2021. He has called for the judges to quit. He said that the territory’s legal system has been “fundamentally undermined by the Chinese government’s steady suffocation of Hong Kong’s autonomy”. By serving in Hong Kong, British judges are therefore giving a veneer of credibility to a system which is now utterly lacking in legitimacy.
And against that, Lord Pannick, who often appears in Hong Kong courts, argues that the British judges should remain. He said the Hong Kong judiciary is doing all it can to maintain its independence. They want to be supported by lawyers and judges in this country, not abandoned.
And finally, a word from a man on the spot, Paul Harris, the chair of the Hong Kong Bar Association. He said: “The worst possible thing that could happen to us practising here in Hong Kong is if those overseas judges leave. I’m aware of the voices that are being raised in the United Kingdom, saying the judges should be withdrawn. I cannot emphasise too strongly how much I disagree with that, and how utterly damaging that would be.”
And so, ladies and gentlemen, on to tonight’s speakers. First, Master Falconer, Baron Falconer of Thoroton and Privy Counsellor. Charlie was called to the Bar in 1974, took silk in 1991, was created a life peer by the Prime Minister in 1997, and joined the government as Solicitor General. After a series of other government posts, he joined the Cabinet in 2003, becoming Secretary of State for Constitutional Affairs. He is currently the Shadow Attorney General.
David Neuberger, Baron Neuberger of Abbotsbury, holder of the Gold Bauhinia Star, Privy Counsellor, honorary fellow of the Royal Society, was also called to the Bar in 1974, took silk in 1987, became a High Court judge in 1996, Lord Justice of Appeal in 2004, and Lord of Appeal in Ordinary in 2007. Lord Neuberger was the youngest sitting Law Lord, but he didn’t stop there. He became Master of the Rolls in 2009, President of the Supreme Court in 2012 and non-permanent judge (NPJ) at the Hong Kong Court of Final Appeal in 2010. He was more or less forced to retire in 2017 from judging but is now very active as an arbitrator, and in many other roles, including his continuing membership of the Court of Final Appeal.
Please, can I call on you, Charlie, to start us off this evening?
Lord Falconer: I feel, although I think it is a very difficult decision, that it is wrong for the President of the UK Supreme Court, and the Deputy President of the Supreme Court, the two senior officeholders in the UK judicial system, to continue to sit in the Court of Final Appeal in Hong Kong. I think people such as David are in a different position: they no longer hold state judicial office, and it’s for them to make up their mind in relation to it. I feel, although I think it is a very difficult decision, that it is wrong for the President of the UK Supreme Court, and the Deputy President of the Supreme Court, the two senior officeholders in the UK judicial system, to continue to sit in the Court of Final Appeal in Hong Kong.
But I think it is wholly wrong for the UK state to give the appearance of endorsement to what is going on in Hong Kong and, in particular, the position of the rule of law. I have absolutely no quarrel with a number of the propositions that were advanced by both David Pannick and Paul Harris. Now, unquestionably, you would find the judges there doing their best and succeeding in deciding cases in an independent way and in accordance with the law.
If you went and spoke to the legal profession in Hong Kong, they are incredibly keen that the foreign judges continue to operate there. And the reason they are keen for it is because of the huge contributions that the foreign judges have made in relation to the development of jurisprudence in Hong Kong, and in providing solidarity to Hong Kong judges, who from time to time, like all judges, come under pressure from circumstance.
But the reason it is wrong for the present judges to continue to sit is because there is this gaping hole in the rule of law in Hong Kong, and that gaping hole is not explicit pressure on the judges; it is the obvious inimical approach that the Chinese government has started to take to the law. The National Security Law is absolutely the clearest and most glaring example of it. You have to take the National Security Law in full: it creates a number of offences, offences that we would regard as being pretty restrictive of people’s freedom of expression and freedom of protest. Those will be dealt with by the courts, and the courts will probably be compelled, as they have been in the last few months, to give effect to these draconian laws that would never be acceptable here.
But more significant for the oppressive nature of the new criminal offences is Article 55, which allows something set up by the National Security Law called the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative regions – a government body, a body of the Chinese government. It allows them to exercise jurisdiction over a case concerning endangering national security. If the Office for Safeguarding National Security takes the view that “a serious situation occurs where the government of the region is unable to [effectively] enforce this law”, then they can determine what’s to be investigated. They can determine where it’s tried.
In effect, what’s happening is that the PRC has taken to itself the power to get ‘round the judges in Hong Kong. So if, even under this draconian law, convictions are not obtained, or investigations are not pursued, then the PRC can, in effect, choose who to investigate, choose how they’re tried, choose where they’re tried and choose what happens to them. You cannot have a system which purports to be the rule of law where there is a parallel system where the executive can do what it likes in relation to those who are its enemies.
In effect, what’s happening is that the PRC has taken to itself the power to get ‘round the judges in Hong Kong. So if, even under this draconian law, convictions are not obtained, or investigations are not pursued, then the PRC can, in effect, choose who to investigate, choose how they’re tried, choose where they’re tried and choose what happens to them.
This has also to be seen in the context of the way that the Chinese government have treated lawyers in England who have had the temerity to express views – entirely in accordance with the law in the UK – unfavourable to the Chinese government. They sanctioned a number of sets of solicitors and a set of chambers, because on the chambers’ website was an article by one of the members of chambers expressing critical views of the Chinese government’s record towards human rights. Sanctioning lawyers for doing that shows utter contempt for the law.
Plainly, I think David is right in his speech in 2017. And he put it incredibly well because what he said there was the critical reason for the apex judges being there. Of course, it’s hugely beneficial to Hong Kong to have judges of quality there. But much more important than the quality – because there are a lot of brave judges of huge quality within Hong Kong itself – is the “canaries in the mine” thing. Staying, and the British government saying that the apex judges can stay, is saying, the rule of law is fine. It most certainly is not fine, because there is this massive hole. And that is why I side – unfortunately for me, not with the legal community, not with the legal establishment in Hong Kong – with Nathan Law and what he said, which is that you should not be doing this.
I make it clear that for David, it’s a choice for him as an individual. For me, a big thing is the two apex judges, and they should not be lending their authority to what’s going on in Hong Kong. Master Treasurer: So, David, it looks as if the heat is off you. Charlie is really getting at our two Supreme Court justices. That’s where he’s directing the focus of his argument and now what do you say?
Lord Neuberger: I’d like to divide what I’ve got to say into three parts. First of all, the arguments as to why UK judges, ex-judges, shouldn’t be sitting in Hong Kong. Secondly, reasons why they should. And thirdly, the position of the Supreme Court Justices.
In Charlie and Lisa Nandy’s statement, the first observation concerned democracy. Democracy and the rule of law are quite independent of each other. Hong Kong under British rule provides a very good example. There was no democracy of any sort during our 155-year rule, save for a very pallid sort of democracy in the last year or two before we handed over to the PRC. There’s no doubt that Hong Kong had the rule of law since 1945. So, while there may have been a curtailment of democracy in Hong Kong, it doesn’t impinge on the rule of law.
Charlie has concentrated more on the substantive law. One has to be careful about that. No judge approves of every law which he or she has to apply. The fact that capital punishment existed in most Caribbean countries stopped me acting as a judge in the Privy Council on Caribbean capital cases. Of course, the law can become so bad in one’s view that one steps down. But there’s no reason to do that in Hong Kong at the moment.
What about the National Security Law? The Basic Law was approved years before the UK agreed that UK judges would be sitting in Hong Kong, and was part of the settlement, effectively, when Hong Kong started under PRC rule. Article 23 of the Basic Law provided that the Legislative Council of Hong Kong would enact a National Security Law. Although it was part of the settlement, even after 20 years, the Hong Kong legislative council failed to comply with it. So, it’s scarcely surprising that the PRC stepped in and passed it – especially after the violent demonstrations, the invasion of the Legislative Council, and the disruption to communications which was occurring.
And, before we leap into action, we should wait and see what the Hong Kong authorities and the Hong Kong Courts actually do with this law. All countries, including the UK, have laws which protect national security. And those laws almost always include provisions which appear draconian at least to some people, and which can be misused or abused. But let’s wait and see if they are misused or abused.
Charlie concentrated in particular on the ability of the PRC effectively to bypass the Hong Kong judiciary on national security cases under Article 55 of the Security Law. Well, it can only do so in three types of circumstance. First, where the case is complex due to the involvement of a foreign country or external elements, which makes it difficult for a region of China – which is what Hong Kong is – to exercise jurisdiction. Secondly, where the government of Hong Kong is incapable of enforcing the law. And thirdly, where there is a major and imminent threat to national security. In those circumstances, what is effectively being said is that it must be handed over to the federal government, if you like, to the Chinese government.
Indeed, there has always been what I might call a ‘Beijing override’ in Hong Kong law. Article 158 of the Basic Law provides that the “National People’s Congress Standing Committee” can overrule the Court of Final Appeal. And the UK agreed to it, and it was the law when we agreed to UK judges sitting there. And we agreed to that, eight years after Tiananmen Square.
And, before we leap into action, we should wait and see what the Hong Kong authorities and the Hong Kong Courts actually do with this law. All countries, including the UK, have laws which protect national security. And those laws almost always include provisions which appear draconian at least to some people, and which can be misused or abused. But let’s wait and see if they are misused or abused.
What about the positive arguments in favour of staying as a Hong Kong judge? First of all, support for the rule of law in Hong Kong. The NPJs undoubtedly help to maintain the rule of law; they provide internal support for, and reinforce the credibility of, the Hong Kong judiciary. Support for the rule of law is vital for maintaining the Hong Kong constitution, in which the UK played such a part in setting up. It’s vital for the protecting the Basic Law – which sets out the rights of individuals in Hong Kong. And it’s vital for the extraordinary economic success of Hong Kong.
It would require a very clear case before UK judges should walk away from that, particularly UK judges. The UK was responsible for Hong Kong for over 150 years. But much more importantly, we have a substantial responsibility for the Basic Law. It seems to me extraordinary that at the first sound of gunfire, we should walk away. Our duty is surely to stay as long as we can to stand up for the values enshrined in the Basic Law, which is still very much alive and effective. Solicitors, barristers, business leaders – all have publicly said that they’re very keen to keep the overseas NPJs. They’re all groups of people who are dependent on the rule of law, who are supportive of the rule of law, and who know about the rule of law and circumstances in Hong Kong. And the Hong Kong judges are valued and respected colleagues whom we should be supporting as long as we can.
As for the argument that, by remaining, the NPJs are giving an unjustified impression of respectability to the Hong Kong judiciary: we’re only going to stay so long as the Hong Kong judiciary is truly independent. If we want to antagonise the PRC to the positive disadvantage of this country and of Hong Kong, and in a way that achieves nothing, then we should stand down.
Finally, I turn to the position of serving Supreme Court Justices. I accept that they are potentially in a different position. Unlike retired UK judges, they have a primary and overriding duty to the UK Supreme Court, and they are servants of the Crown. Nonetheless, subject to that, the arguments I’ve rehearsed apply with equal force to them.
It is not for me to tell UK Supreme Court judges what they should do, but the mere fact that some politicians and some journalists say that they should not be sitting in Hong Kong is not a good reason for them standing down. While judges should not ignore publicly expressed opinions, it’s part of their job to make right and unpopular decisions.
Master Treasurer: Ladies and gentlemen, you have been favoured with a marvellous and very generous demonstration by two legal titans. We’re enormously grateful to you both, David and Charlie; it was very good of you to give up your time to come along and address a topic which is so topical. And we’ve been much entertained and edified by what you’ve said. Thank you so much. My thanks also to Kate Peters, Rosie Humphrey and Henrietta Amodio for creating this evening and putting it together.
Guy Fetherstonhaugh QC
Master Treasurer
The Rt Hon Lord Neuberger of Abbotsbury The Rt Hon The Lord Falconer of Thoroton
For the full video recording of this discussion, including much further debate and responses to questions from the audience: innertemple.org.uk/hkjudges
