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25 November 2020

UK judiciary reviews historic role sitting in Hong Kong's highest court

'Chilling effect' of new security law prompts UK foreign secretary to moot court boycott

By Ben Rigby

The anti-National Security Law protest in Hong Kong on 24 May

The anti-National Security Law protest in Hong Kong on 24 May PaulWong/Shutterstock

Should British judges continue to sit in Hong Kong’s highest court? That was the question posed by UK foreign secretary Dominic Raab this week in his department’s most recent review of developments in the former British colony.

In his foreword to the report on the Special Administrative Region (SAR), Raab worte: 'This has been, and continues to be, the most concerning period in Hong Kong’s post-handover history,' citing the 'chilling effect' of Hong Kong’s national security law.

He added: 'I have begun consultations with Lord Reed, President of the UK Supreme Court, concerning when to review whether it continues to be appropriate for British judges to sit as non-permanent judges on the Hong Kong Court of Final Appeal (CFA).'

In a letter to Reed, Raab, and justice secretary Robert Buckland QC, said they hoped he agreed it would not be either in Hong Kong’s or the UK’s interests for UK judges to give 'a veneer of legitimacy' to the Hong Kong courts, should their independence be compromised. 

Several retired British judges including former Supreme Court presidents Baroness Hale, Lord Neuberger and Lord Philips are among nine non-permanent judges on Hong Kong’s highest appellate court where Lord Reed also presides as one of two sitting judges.

Lord Hodge, the newest UK member of the CFA, is due to be confirmed by Hong Kong’s legislature, all of whose pro-democracy members resigned earlier this month in protest at the expulsion of four of Hong Kong's most prominent campaigners, including legal services representative Dennis Kwok.

In September, former New South Wales chief justice James Spigelman resigned his post, reportedly over concerns about the new national security law. It had come into force at 11pm on 30 June, sparking protests from the UK, the US and other leading democracies.

Hong Kong Watch’s policy director, Johnny Patterson, said Raab’s comments were “a sign that the world recognises that rule of law is under pressure”; however, a retired former Hong Kong attorney general, Michael Thomas QC, warned against a boycott in a letter to The Times.

Pro-Chinese media, noted Thomas, had sniped at the local judiciary who were attempting to maintain linkage between the SAR’s common law system and international businesses. Removal of the UK judges would, he said, be a 'spectacular own goal'. ‘Given China is the offender there can be no logic in penalising Hong Kong,' he argued.

Noting that Reed was scheduled to sit in Hong Kong in September next year, the Supreme Court said it would “continue to monitor and assess the position … in discussion with the UK government”.

Hong Kong government sources, meanwhile, accused Raab of making “sweeping attacks and groundless accusations”.

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