British and Overseas Judges: Hong Kong

Andy Slaughter Excerpts

Wednesday 30th March 2022 Westminster Hall

[Andy Slaughter (Hammersmith) (Lab)]

It is a pleasure to serve under your chairmanship, Ms Rees. You must be finding this an interesting debate; it is veering in slightly different directions from the form that Westminster Hall debates normally take, but we can adapt. It is good that the Government are keeping us on our toes with statements; I think the U-turn was announced a full 15 minutes before the debate started. I will abandon my speech and instead make just one or two brief points, which probably means I will go on for longer than I would have otherwise done.

I would say a word on behalf of the judges—not that they need me to say a word on their behalf, but they have been put in a difficult position. Two statements were issued—on 17 July 2020 and 27 August 2021—by the President of the UK Supreme Court. The first ended by saying:

“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.”

The 2021 statement made the judgment that:

“At this time, our shared assessment is that the judiciary in Hong Kong continues to act largely independently of government and their decisions continue to be consistent with the rule of law.”

Members may have disagreed with that assessment at that time, and I think we all disagree with it now—the actions of the Beijing Government have been something of a moving target—but the sitting Supreme Court judges have been placed in a difficult position. They have been waiting for a steer from the Foreign, Commonwealth and Development Office for some time. I say a steer; this is about the independence of the judiciary, and it is not for the Foreign Office to tell senior judges what to do. None the less, the opinion of the Government has been lacking for some time.

As my hon. Friend the Member for Hornsey and Wood Green (Catherine West) said, the Labour party has made its position clear, not just in debates, but in the statement made by the then shadow Foreign Secretary, my hon. Friend the Member for Wigan (Lisa Nandy), and the shadow Attorney General, Lord Falconer. The Government could perhaps have not left the decision until the eleventh hour.

[Sir Robert Buckland]

The hon. Gentleman is making an important point about the need for the Government not to direct judges, which would play entirely into the hands of China. We have an independent judiciary. Frankly, China does not respect the rule of law. That is why the Government’s position has been very carefully calibrated. Gently but firmly, I reject the contention that there was somehow benign neglect here. There was a very careful monitoring of the situation by me and the then Foreign Secretary, my right hon. Friend the Member for Esher and Walton (Dominic Raab)—precisely calibrated on respect for the independence of the judiciary, but also making sure there was a very clear political hand on the tiller when it came to the overall evidence and assessment of the situation, month by month.

[Andy Slaughter]

I entirely respect the right hon. and learned Gentleman’s opinion and his record as Lord Chancellor, but the issue could have been handled a little better. There were signals in those statements, at least on knowing the opinion. I entirely agree with him, obviously, that the last thing we want, either in relation to China or of itself, is for the Government to be banging the table and telling judges what to do, although they do seem to do that rather a lot—presumptions seem to be finding their way into legislation rather too often, in my view. Nevertheless, let us maintain today’s harmonious spirit. We will endeavour to do that.

I think it will be something of a relief to the Supreme Court that this statement has been made today. The question, as other hon. Members have already raised, is what the consequences will be. The Minister may want to clarify. As far as retired judges and practitioners are concerned, it will still be for them to make an individual decision. There may be views expressed by the Bar or other professional bodies, but I wonder whether the Government are going to go further and say what they would wish to see—there is no element of direction there; none is possible. Former Presidents of the Supreme Court and former judges of the Supreme Court sit. There are judges from other Commonwealth jurisdictions who are even more remote, but who I suspect would also take note of the decision that has been taken here. That will be an interesting point to look at.

I think that this situation is an exception and it is right that it is judged on the individual and particular facts as to the conduct of the Beijing Government. Generally speaking, however, the ability of senior UK judges to sit in other jurisdictions is something that we should be very proud of and, indeed, encourage. I suspect that the Government will wish to see more of that happening. It does happen in many circumstances that are controversial. I am thinking of judges sitting as the final court of appeal on capital cases from the Caribbean and other very controversial matters. No doubt some people would say that they should not do that and should not associate in that way, or that British judges have no locus in doing it. I think that, whether one looks at it in terms of soft power and the reputation of Britain abroad, or whether one looks at the experience that is gained by both sides, it is a positive thing, and the situation that we are discussing is, one hopes, the exception that proves that rule. There are particular circumstances in this situation that mean that it is right that certainly the President and Deputy President of the Supreme Court no longer sit in the court of final appeal.

I have had the opportunity to discuss this matter over the past few weeks with senior sitting and retired judges, but also with campaigners and human rights activists from Hong Kong, and I would like to say that their cogency, their bravery and their articulation of the view that, notwithstanding the arguments—there are arguments on both sides—it was wrong for UK judges to continue to sit there is something that we should respect. I have absolutely no doubt that, as far as they were possibly able to do so, the judges—whether sitting judges, retired judges or judges from other jurisdictions—were doing absolutely the best they could to uphold not just their independence but the rule of law when they were sitting in Hong Kong. But there is the issue of lending legitimacy to the Beijing regime and the way in which it has acted.

There is also the fact that we have moved on over the past two or three years, given not just the national security law but the intervention of the Executive. Frankly, the constant intervention by Beijing has now made the position untenable, so I am pleased that the UK Government have come to this conclusion. I am grateful, of course, for the 15 minutes’ notice before the start of this debate, and I will conclude my remarks there.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Foreign, Commonwealth and Development Affairs (Vicky Ford)]

It is an absolute pleasure to serve under your chairmanship, Ms Rees. I thank the many colleagues who have taken part in this debate, which has been slightly unusual. I start by saying how grateful I am to my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) for securing the debate and for all the work he has done on this subject.

The Minister for Asia and the Middle East, my right hon. Friend the Member for Cannock Chase (Amanda Milling), would have been delighted to take part, but she is currently travelling in the region on ministerial duties. Therefore, it is my pleasure to respond on behalf of the Government. I will try to respond to a number of the points that have been raised. I apologise, but I will take some time to do so.

Before I address the specific questions about foreign judges, I want to set out the Government’s current assessments of rights and freedoms in Hong Kong. I share the deep concerns expressed across Westminster Hall today. The situation is worse now than at any time since the handover. In 1984, the Sino-British joint declaration made it clear that Hong Kong’s high degree of autonomy, rights and freedoms would remain unchanged for 50 years from 1997. China undertook to uphold rights and freedoms, including freedom of speech, freedom of the press and freedom of assembly. It also agreed to keep in force the international covenant on civil and political rights, to maintain the independent judiciary and to maintain the rule of law. However, time and again it has reneged on that promise. The national security law imposed by Beijing in June 2020 is a clear and serious breach of the joint declaration. It has since been used to systematically restrict rights and freedoms—especially freedom of expression.

In March 2021, China further breached the joint declaration by introducing radical changes to Hong Kong’s electoral system, reducing the space for democracy. The UK believes China to be in an ongoing state of non-compliance with the joint declaration. Almost all of Hong Kong’s pro-democracy opposition are detained or arrested or have chosen to leave Hong Kong. As a result, the legislator has lost all meaningful opposition, as demonstrated by the outcome of the December 2021 legislative elections. That is part of a concerted campaign by the mainland Chinese and Hong Kong authorities to remove all dissent. They have conducted a targeted assault against civil society and against pro-democracy news outlets, such as Apple Daily and Stand News. Just this month, the authorities threatened the UK-based non-governmental organisation Hong Kong Watch in an apparent attempt to silence those who stand up for human rights. The Foreign Secretary made it clear at the time that attempts to silence democratic voices are unacceptable and will never succeed.

Turning to the role of judges, the chilling effect of the national security law is of deep concern, and the trajectory appears negative. It is against that increasingly worrying backdrop that the Foreign Secretary, the Deputy Prime Minister and Lord Reed, the President of the Supreme Court, have all decided that it is no longer tenable for serving UK judges to sit on the Hong Kong Court of Final Appeal.

[Andy Slaughter]

That is clear from the Minister’s statement. What is the Government’s message to retired judges and practitioners who continue to work in the Hong Kong courts?

[Vicky Ford]

I thank the hon. Member for his intervention. It is for UK and foreign retired judges to make their own decisions about whether to remain sitting. However, it is important to remember that the national security law is not aligned with UK values. As cases under that law proceed through the courts, judges will increasingly be required to enforce Beijing’s laws—not laws aligned with the UK.

I thank Lord Reed and Lord Hodge for their work. They have submitted their resignations today and they are effective immediately. I agree with the Opposition spokesman, the spokesman for the SNP and so many others across this House that this is a sad reflection of how far the political and legal situation in Hong Kong has deteriorated.

I put it on the record that British judges have played an important role in supporting the judiciary in Hong Kong since the handover. There is no legal requirement for the UK Supreme Court or the UK Government to uphold the agreement that the UK would provide two serving judges, but they have since been provided. It was a part of the UK’s continuing commitment to safeguard the rule of law in Hong Kong. However, the UK Government have said for some time that our support for the presence of UK sitting judges in the Court of Final Appeal was finely balanced. Since it came into place, it has been very clear that the national security law violates Hong Kong’s high degree of autonomy, which was provided for in the joint declaration.

I thank every single Member in this House—across the House—for their support for the decision that has been made by the Foreign Secretary, the Lord Chancellor and the judges. In particular, I thank the former Lord Chancellor, my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland), for coming here today, and for his wise words about the importance of the independence of the judiciary. However, the decision to withdraw sitting UK judges from the Hong Kong Court of Final Appeal should not be misconstrued as a weakened UK commitment. We absolutely remain committed to the people of Hong Kong, and will continue to call out violations of their rights and freedoms and hold China to its international obligations.

As hon. Members will recall, the UK Government responded quickly and decisively to the enactment of the national security law. That included introducing a new immigration path for British nationals overseas, suspending our extradition treaty with Hong Kong and extending our arms embargo on mainland China to cover Hong Kong. The visa route for BNOs opened on 31 January 2021, and by the end of the year there were almost 104,000 applications. On 24 February, my right hon. Friend the Home Secretary announced changes to the BNO route to enable individuals aged 18 or over but who were born after 1 July 1997 and have at least one BNO parent to apply to the route independently of their BNO parent.

We have also co-ordinated action with international partners to hold China to account, including through our presidency of the G7. In December, we released two critical joint statements with G7 partners and the Foreign Ministers of Australia, Canada, New Zealand and the United States, following Hong Kong’s Legislative Council elections. In February, we co-led a media freedom coalition statement, signed by 21 international partners, which called out attacks on media and press freedoms, including closure of Stand News and the associated arrests of journalists. Earlier this month, we used the latest session of the United Nations Human Rights Council to call out China’s systematic undermining of rights and freedoms in Hong Kong. We remain in regular contact with our international partners about Hong Kong and continue to work intensively on the world stage to hold China to its international obligations.

The hon. Members for Manchester, Gorton (Afzal Khan), Mitcham and Morden (Siobhain McDonagh), Strangford (Jim Shannon) and others mentioned the situation in Xinjiang. The evidence of the scale and severity of human rights violations being perpetrated in Xinjiang against the Uyghur Muslims is far-reaching and paints a truly harrowing picture. The UK Government have led international efforts to hold China to account for its human rights violations in Xinjiang, as well as in Hong Kong, and earlier this month the Foreign Secretary again reiterated our deep concerns about the situation in Xinjiang in her personal address to the UN Human Rights Council.

The hon. Member for Hornsey and Wood Green asked about sanctions. On 22 March, the former Foreign Secretary announced that under the UK’s global human rights sanctions agreement, the UK posed asset freezes and travel bans against four Chinese Government officials, as well as an asset freeze against one entity responsible for enforcing repressive security policies across many areas of Xinjiang.