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Will Lady Hale and Lord Sumption keep sitting as judges in Hong Kong in wake of new China security law?

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Senior legal figures have expressed concerns

Lady Hale and Lord Sumption

Lady Hale and Lord Sumption are among the UK judges who could be forced to step down from Hong Kong’s highest bench following China’s new national security law.

The Beijing-enforced security measure, aimed at restricting opposition to the ruling communist regime, has raised concerns over the independence of UK judges sitting on the Hong Kong Court of Final Appeal.

The security law, which has been criticised for clamping down on protest and freedom of speech since implemented last month, was directly imposed onto Hong Kong without consultation from the city-state’s legislature. Critics argue that China’s controversial law breaches the long-standing ‘one country, two systems’ principle established following the British colony handover in 1997.

It’s a long-established tradition that non-permanent senior judges from the UK and other commonwealth states sit on Hong Kong’s highest court, alongside permanent judges from the territory. The ten judges from the UK include president and former presidents of the Supreme Court, Lord Reed, Lord Neuberger and Lady Hale. Also sitting on the panel is former UK Supreme Court judge Lord Sumption.

According to the new security law, judges will be removed from their post if they make “any statement or behave in any manner endangering national security during the term in office”.

Although it remains to be seen what the new law means for the non-permanent UK judges, several senior legal figures have shared their concerns about Hong Kong’s independent judiciary. Such independence, enshrined by the city-state’s constitution, known as the Basic Law, is one of the many post-handover freedoms which has long been considered integral to its standing as a global financial hub.

For Lord Mackay of Clashfern, who was Lord Chancellor for ten years in the run-up to the 1997 handover, this raises worry about judges’ role in the former British colony.

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Speaking to The Times, he said, “their position could soon become untenable because we cannot ensure that they will be allowed to remain independent”. He continued: “It will be very difficult for them if they are in a position where they had to come to a decision that in their view wasn’t right.”

Meanwhile, Lord Falconer of Thoroton, the Shadow Attorney-General, said that “it is very difficult to see the judges going on for any longer on the court — unless Hong Kong’s democracy movement wants them to stay”.

According to Lord Patten of Barnes, Hong Kong’s last colonial governor before the handover, the security law “blurs the line between the executive and judiciary”. He argues that it allows Carrie Lam, Hong Kong’s chief executive, to decide which judges sit in national security law cases and whether certain security hearings should be held privately. It also allows Beijing authorities to transfer Hong Kong court cases to be heard in mainland China, he told the newspaper.

Patten also suggested UK judges look “very hard” at what Chinese authorities are proposing, adding “what the Chinese have said so far is that security law supersedes the Basic Law. I’m not sure how far that goes but it raises all sorts of practical issues for the British judges”.

This follows comments made by Tom Tugendhat, chairman of the UK’s parliamentary foreign affairs select committee, who questioned whether UK judges should continue in their Hong Kong roles. Speaking to The Guardian, he asked: “How can they do that, how can they defend civil rights and commercial rights if they are being violated by the very law they are sent to uphold?”

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12 Comments

illiterate peasant, PhD

Singapore is a quasi-authoritarian state, and it’s a fantastically successful economic hub. I imagine Hong Kong will see a broadly similar situation emerge over the next fifty years. Having the Chinese government extend the same kind of wide ranging powers that it enjoys in the rest of its territory will have no impact on Hong Kong’s reputation as a place to do business; it’ll just become a place in which one has to do business at the pleasure of the Chinese government, without criticising the Chinese government.

The only reason people in Western countries actually have a problem with this is because they retain some atavistic Reagan/Thatcher-era paradigm about the Cold War, and thus conceptualise China as the new USSR, and thus something to oppose at every turn. As a corollary of this, Britain is still perceived to be a beacon of democracy and hope, and therefore has a responsibility to maintain that democracy elsewhere, especially when the nasty Chinese try to muscle in on Freedom™. In reality, a majority of Western countries are dystopian nightmares that could probably learn something from the way that China, or Singapore, is run. A bridge, or railway, that would take several decades to build in the UK would take a few months in China. There’s a reason everybody, of any political persuasion, is filled with an overwhelming sense of pessimism and decay when they consider the future of the countries in which we live.

(11)(59)

Brutus

Sic semper tyrannis

(8)(1)

Mussolini made the trains run on time

Yeah I’m sure the Uyghurs are having a great time with all their nice shiny bridges ..,

(21)(1)

Anon

How many people die building said bridge?

And there is your answer for which side is worth fighting for.

(4)(0)

Anonymous

The common law system that was left behind in 1997 has been corrupted for authoritarian purposes.

Having foreign supreme court justices sitting in is a high honour for a legal system, not an automatic right. The HK legal system lost this entitlement the day china tossed all the toys out of the pram and installed non-justiciable backdoors to constitutional constraints on government power.

(16)(3)

Mark

No mention of Lady Hale as the Beyoncé of law. I’m disappointed….People may start to take Legal Cheek seriously rather then a place where we can have a laugh in the comments.

(3)(1)

3PQE

Can someone remind me who voted for Christ Patten as the governor of Hong Kong? and the governors before him?

(3)(18)

Anon

Someone remind me, who voted to imprison and exterminate Uyghurs?

(5)(0)

Anon

Xi Jinping was elected by the National People’s Congress, so at least a couple thousand people nominally voted for him. Zero people voted for Chris Patten in Hong Kong.

(2)(20)

CYLeung

Why don’t we have a vote between Patten and Xi for HK now?

(4)(0)

Anon

As the UK’s extremist ideological regime is denying an ethnic group a vote between rule from London or Edinburgh, I am not sure what your point is.

dim maybe

I live and work in HK. I am not on fantastic money by anybody’s standards.

My view is the UK judges should continue to sit until the first of them comes out to say they have been pressured to deliver a particular judgement. When that happens they all should withdraw. Requires “balls” on their part and I am far from convinced senior succesful lawyers have such. In the interim, monitor if the UK /overseas judge is in a minority of one or even two. If more than once, they should be withdrawn.

HK is not a happy place. Please do not disclose my details, email address or ISP number under any circumstances.

(1)(0)

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