04 Jun 2021

UK judge steps down from Hong Kong's Court of Final Appeal

Baroness Hale takes unusual step of not seeking second term; says decision is unrelated to security law

Court of Final Appeal, Hong Kong Shutterstock; Simon Poon

Former UK Supreme Court judge Baroness Hale has revealed she will not seek a second term as a member of Hong Kong’s Court of Final Appeal (CFA) – a move she says was not prompted by China’s controversial national security law. 

The immediate past president of the UK Supreme Court revealed her decision to an online event held by the National Pro Bono Centre, according to the Law Society Gazette.

“It's not a comment on what's going on there because the other non-permanent judges are keeping a careful eye on how things are,” Hale said. “But they are all, with one exception, for the time being, carrying on because the Hong Kong people and the Hong Kong judiciary want them to carry on."

There have been calls for international judges to resign from the court, following last year's introduction of the national security law.

One of the court's members - former New South Wales chief justice James Spigelman - resigned in September 2020, citing concerns over the legislation to Australian media, although no formal reasons for his resignation were given. 

Hale said she couldn't "foresee a time when I would actually want to get on a plane to go to Hong Kong" and stressed her decision was a personal one, also noting that Hong Kong’s judiciary remained independent in observing the rule of law “at least as far as commercial law is concerned”. She added: “The jury is out, on how they will be able to operate the new national security law. There are all sorts of question marks up in the air.”

In April, Hong Kong Bar Association chair, Paul Harris SC, urged the remaining nine UK non-permanent judges, including the current Supreme Court president Lord Reed, and deputy president, Lord Hodge, to remain on the court.

That view, however, is not universal, with Gibson Dunn’s Lord Falconer QC – speaking in his capacity as shadow Attorney General – telling an Inner Temple event in May that UK judges sitting on the court should step down. 

Hale is the first non-permanent UK judge to serve a sole term on Hong Kong’s apex court. Her predecessor as Supreme Court president, Lord Neuberger, of One Essex Court, recently renewed his term, as did the 83-year-old Lord Walker of Gestingthorpe. Other former Supreme Court judges on the CFA include fellow former president Lord Phillips and Lord Sumption. 

Hale’s resignation, together with the death of Lord Millett, another UK judge on the CFA, leave two overseas vacancies to be filled, while the status of sitting judge, Lord Collins of Mapesbury – an arbitrator member of 24 Lincoln’s Inn Fields in London – is uncertain, given 24 Lincoln’s Inn Field's association with Essex Court Chambers, which was issued with sanctions by the Chinese government in March.

Beverly McLaughlin, a former chief justice of Canada, is also due to decide whether to renew her term, which, like Hale’s, ends on 30 July.  

Johnson Lam, currently vice-president of the Hong Kong Court of Appeal, is, however, expected to join the CFA as a permanent judge, subject to legislative approval, in July, filling the vacancy left by Andrew Cheung’s appointment as chief justice of Hong Kong.

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