Senior UK ministers have warned that British judges sitting in Hong Kong should not lend “a veneer of legitimacy” to the region’s legal system if it is compromised by Beijing’s new security law.
Dominic Raab, foreign secretary, and Robert Buckland, justice secretary, have raised concerns about the risk of British judges facing “inappropriate pressure” while sitting on Hong Kong’s court of final appeal.
The ministers raised their issues in a letter to Robert Reed, president of the UK Supreme Court, following the imposition of a security crackdown on Hong Kong by Beijing.
British judges have worked in Hong Kong to support the “one country, two systems” framework agreed following the region’s handover from British to Chinese rule in 1997. Their presence on Hong Kong’s court of final appeal is intended to underpin the rule of law in the region.
Mr Raab and Mr Buckland have written to Lord Reed saying that the national security law imposed by Beijing on Hong Kong raises “important questions on the rule of law in Hong Kong and the continued presence of UK judges” in the region.
They acknowledged this was a matter for the judiciary, but said judges and politicians had a joint interest in “preserving and upholding the reputation of the UK’s world-leading judiciary” and respecting the 1984 Sino-British joint declaration that is meant to guarantee Hong Kong a level of autonomy for 50 years following the handover.
“We hope you will agree that it would not be in Hong Kong or the UK’s interest for the presence of UK judges on the CFA to give a veneer of legitimacy to the Hong Kong Courts” if they became compromised, it said.
The letter recognised that it was too early to judge whether Beijing had “substantively compromised” the independence of Hong Kong’s courts but asked Lord Reed to explain what would happen if it did.
Lord Reed has told colleagues that at present it would send a negative signal if British judges pulled out of Hong Kong and would deprive the independent judiciary in the region of valuable support.
He said it was not yet clear whether the risks identified by Mr Raab and Mr Buckland would come to pass and that in the meantime it would be wrong for British judges to be seen to be abandoning the people of Hong Kong.
Traditionally, two serving justices from the UK's Supreme Court sit on Hong Kong’s court of final appeal, plus several retired British judges.
Overseas judges come to Hong Kong — from countries also including Australia and Canada — and serve on a rotational basis on the court of final appeal for a month at a time.
Its website currently lists nine British judges as available to serve, including several ex-presidents of the UK’s Supreme Court such as Brenda Hale.
Any further resignations from Hong Kong’s court of final appeal could undermine its independent reputation outside China, and would alarm foreign companies in the region who rely on the legal system to ensure they can enforce contracts. James Spigelman, an Australian judge, resigned from the court in September.
China’s introduction of the national security law in Hong Kong in June chipped away at the legal firewall between the region and Beijing, both by allowing suspects in some cases to face trial on the mainland and by granting Carrie Lam, the city’s leader, the ability to appoint judges in certain cases. The communist party plays a direct role in the legal system in mainland China.
Hong Kong police have increased their arrests of political activists, including Joshua Wong, since the national security law was introduced. The local government and pro-Beijing groups have also targeted teachers, academics and journalists they perceive as disloyal to China.
The UK Foreign Office said allowing Ms Lam to appoint judges “risks undermining the independence of Hong Kong’s judiciary”.
The Hong Kong government responded by accusing the UK of making “sweeping attacks and groundless accusations”.
The Supreme Court said in a statement: “Lord Reed is currently scheduled to sit in Hong Kong in September 2021. As he said in July, the Supreme Court will continue to monitor and assess the position in Hong Kong in discussion with the UK government.”
Last month Lady Hale told a webinar organised by Prospect magazine that she would have a “serious moral question” if she was asked to sit in Hong Kong.
She said: “I have never sat and it has not been arranged at least for me to sit . . . when that happened I would have a serious moral question to ask myself.”
This article has been amended since first publication to make clear that ministers warned judges against lending a “veneer of legitimacy” to Hong Kong’s legal system if it became compromised, not “veneer of respectability” as originally stated
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