British and Overseas Judges: Hong Kong

Iain Duncan Smith Excerpts

Wednesday 30th March 2022 Westminster Hall

[Christina Rees (in the Chair)]

I remind Members that Erskine May states:

“Reflections on the judge’s character or motives cannot be made except on a—

substantive—

motion.”

I hope Members will bear that in mind when making their contributions. I call Sir Iain Duncan Smith to move the motion.

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

I beg to move,

That this House has considered the role of British and overseas judges in Hong Kong.

It is a pleasure and a privilege to serve under your stewardship, Ms Rees. Today’s debate was meant to be a demand from across parties that the Government should intervene and that British judges now serving in Hong Hong’s courts should withdraw. We have known for some time that the very presence of those judges has lent legitimacy to a brutal, totalitarian regime that has been prosecuting in Hong Kong against the Sino-British agreement terms and has been prosecuting people in Hong Kong whose only crime has been to cry out for freedom—the kind of freedom that we in this Chamber and in this country have taken for granted for years, and that we see the people in Ukraine fighting for. Meanwhile, in Hong Kong, British judges and lawyers have been serving in and around those courts and aiding them—not that they were setting out to do so, but their very presence has lent legitimacy.

However, just before I came in for this debate, I discovered that the Government have now agreed with us and wish the British judges to withdraw. Although that is not in the Government’s power, we have heard some interesting statements subsequently from the President of the Supreme Court. Will the Minister take this opportunity to intervene and make it clear what exactly the Government have said?

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

I thank my right hon. Friend for calling us all together on this very important issue and for inviting me to update colleagues by way of an intervention on the decision that has been made. It was laid in a written ministerial statement last night and published this morning. The statement is as follows:

“British judges have played an important role in supporting the judiciary in Hong Kong for many years. Since 1997 judges from other common law jurisdictions, including the UK, have sat on the Hong Kong Court of Final Appeal as part of the continuing commitment to safeguarding the rule of law.

However, since Beijing’s imposition of the National Security Law in 2020, our assessment of the legal environment in Hong Kong has been increasingly finely balanced. China has continued to use the National Security Law and its related institutions to undermine the fundamental rights and freedoms promised in the Joint Declaration. As National Security Law cases proceed through the Courts, we are seeing the implications of this sweeping legislation, including the chilling effect on freedom of expression, the stifling of opposition voices, and the criminalising of dissent.

Given this concerning downward trajectory, the Foreign Secretary has agreed with the Deputy Prime Minister and Lord Chancellor and the President of the UK Supreme Court Lord Reed, that the political and legal situation in Hong Kong has reached the point at which it is no longer tenable for serving UK judges to participate on the Court of Final Appeal. As such Lord Reed and Lord Hodge submitted their resignations to the Hong Kong authorities today. We are grateful for their service, and that of their predecessors.

The UK remains committed to stand up for the people of Hong Kong, to call out the violation of their rights and freedoms, and to hold China to their international obligations.”

[Sir Iain Duncan Smith]

I am grateful to the Minister for intervening on my opening remarks to make it clear what the Government have said, and I welcome that. We set up an organisation, the Inter-Parliamentary Alliance on China, a few years ago. It takes parliamentarians around the world from the left and right. There are 22 or 23 countries involved, from Japan to America, and we have all—as one voice throughout, and from all sides and from different parties—cried out for this for some time, so I unreservedly welcome today’s statement. I understand that my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland), who was himself Lord Chancellor, wants to intervene.

[Sir Robert Buckland (South Swindon) (Con)]

I am grateful for the work that my right hon. Friend has done. When I was Lord Chancellor, I worked with the then Foreign Secretary, who is now my successor, to agree a set of objective parameters that would be used in order to assess the situation in Hong Kong. That was done because we, unlike China, respect the independence of our judiciary. We respect judges’ right to sit in courts where they are not providing a veneer of respectability, but importantly, at the end of it all, the politics of the situation demanded that sort of objective test. It is a sad moment, but it is one that I am glad the Government have not flinched from, which is why I wholeheartedly support the decision made today. It is not just an important decision in legal terms; it is the United Kingdom sending a very clear message that we will not be party to giving regimes that are sliding into tyranny any shred of respectability whatever. That is why I welcome the statement today.

[Sir Iain Duncan Smith]

I am grateful to my right hon. and learned Friend. I know that he has privately been a big supporter of what we have been trying to do, so I appreciate his coming here now that he is no longer Lord Chancellor.

I simply say that this is a momentous decision, because right now in Ukraine—I referred to this earlier—we are seeing a totalitarian regime try to stamp out democracy and freedom in another country. In a funny sort of way, maybe we are seeing that the fight for freedom in Ukraine influences all of us to ensure that, whatever we do from the peaceful area that we live in, it does not allow other totalitarian regimes to have the legitimacy that would be given to them by our independent judiciary playing a part in Hong Kong and letting everybody believe that there is nothing wrong.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

The right hon. Gentleman knows that I have argued for this move for some time now. I am particularly pleased to welcome it, not least because the Lord President of the Supreme Court, Lord Reed, is somebody whom I have known and respected for many years. I never felt comfortable being on the other side of the argument to him, and we seem to have resolved that.

Does the right hon. Gentleman agree that this now requires a response not just here, but from all those who have perhaps taken some comfort from the presence of the British judiciary in Hong Kong? I think it was the Hong Kong Bar Association that said the presence of British judges was a “canary in the mineshaft.” That canary has well and truly fallen off its perch today, and those in Hong Kong who care about the rule of law have a responsibility to respond.

[Sir Iain Duncan Smith]

I am grateful for that intervention, because I had a meeting with the Bar Council about this issue. To be fair, its members understood the dilemma that they had. Bear in mind that Essex Court Chambers have been sanctioned by the Chinese Government, as have I and others present. I do not understand how it is viable any longer for those at the Bar to argue that they are not somehow changing, influencing or moderating what may be going on in Hong Kong.

I have in front of me the statement from the Lord President. I will not read it out, as that is for others to do. Now that he has made that statement—he was one of those who actually did service in Hong Kong, so it is an extra-powerful statement on that point—I would call on the Bar Council, barristers and other lawyers who work in corporate law, and who now have all their offices in Hong Kong, to very carefully think about their position. If the judiciary are moving, and if the Bar does too, what price their ability to lend legitimacy to an area that is essentially no longer operating seriously under common law?

[Catherine West (Hornsey and Wood Green) (Lab)]

That is a finely tuned decision on the Government’s part. Labour’s position has been clear for more than a year, since my predecessor, my hon. Friend the Member for Aberavon (Stephen Kinnock), made it clear that British judges were giving a sheen of legitimacy to what was going on in Hong Kong. I am an original member of Hong Kong Watch—like many other right hon. and hon. Members in this Chamber—and we have been worried for a number of years.

Despite being the shadow Minister, I do not intend to gloat over a U-turn or the Government caving in, but to put across a hint of sadness, because there is a sense that the withdrawal closes the door on a very civilised legal system that we consider to be the best in the world—it is shared by Australia, Canada and other places. It is sad to close the door on that level of standards and trust, and that will have a knock-on effect on the business community.

On balance, in the light of the Ukraine invasion in the last month, the judgment call is that this is no time to abstain, turn the other cheek or be neutral on things. We have to force partners and friends across the globe to make decisions. That may help to inch China towards making decisions on how it relates to Russia, and partners in the Indo-Pacific on how they approach this difficult time. The violence on our screens means that we cannot but make a decision; we cannot sit on the fence in these crucial days.

[Sir Iain Duncan Smith]

The hon. Lady is quite right. As I said earlier, the shockwaves from what is going on in Ukraine will wash around the world. Most of all, the important thing that that teaches us—and why I am doubly pleased that the Foreign Secretary has made the statement today—is that democracy, human rights and the rule of law are delicate. They do not exist by right; they exist only by human endeavour.

Underpinning those freedoms is our concept of independent judicial oversight. We may argue with judges, and we may get angry with them here in Parliament, but an independent judiciary is required to oversee the very workings of a democracy, as well as its freedoms, which will sometimes be taken away from people. That is why it is so important today that we send out the signal that when a Government dismisses those freedoms and natural rights, what is left is oppression and brutality. I believe that our judiciary has finally recognised that operating in isolation from the terrible new laws bearing down on people’s human rights in such countries is not feasible.

I had prepared a speech calling on the Government to do exactly what they did just before I began speaking. As a politician, that would not normally stop me making the speech for the sake of it, but I will restrain myself.

[Afzal Khan (Manchester, Gorton) (Lab)]

I thank the right hon. Gentleman for his tireless work on human rights throughout this period. Although I welcome the Government’s statement, I think it has come a little late; the Labour party has been calling for action for more than a year. The fact remains that the deterioration of Hong Kong’s legal system means that lending it a false veneer of respectability is just not acceptable. China shows no signs of slowing down its blatant attacks on human rights and freedoms, be it in Hong Kong or in its genocidal campaign in Xinjiang.

Does the right hon. Gentleman agree that the Government should show more commitment by sanctioning the Chinese officials who are responsible for such human rights abuses, including Carrie Lam and Chen Quanguo? Will the Minister, when she speaks, confirm the precise amount of remuneration the UK Supreme Court has received in the last year for serving there?

[Sir Iain Duncan Smith]

In this very Chamber, I and others from the APPG on Magnitsky sanctions called on the Government to sanction more people. The hon. Gentleman has listed two people who are responsible for the abuses now in Xinjiang and what I believe to be a genocide. He will note that I have tabled an amendment, which has been signed by many Conservative Members, to today’s Health and Care Bill—the only reason I did so was to send a signal to the Government—saying that we want the NHS no longer to procure a single item that could possibly come from an area that uses forced or slave labour. The fact that we say we are doing that, and now know from reports that we are buying such equipment, is anathema, and we need to end that as well.

I agree with him that there is more to be done but steps by Government are welcome. This is one step in the right direction; the President of the Supreme Court has made a matching step. I hope to hear from the Bar Council and others that they will step up.

[Jim Shannon (Strangford) (DUP)]

I thank the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) for all he has done. Today has been another step in the programme of how to combat Chinese aggression. As chair of the all-party parliamentary group for international freedom of religion or belief, I concur with the right hon. Gentleman and understand, as we all do, the importance of freedom of religious views in China, for the Falun Gong, the Christians and the Uyghurs.

I noted that the right hon. Gentleman had tabled that amendment. I have asked questions on that matter before, because it is wrong that the NHS should buy any product of slave labour. We welcome the process, and I see what the Minister has said today as a proactive response. The Government have responded to the hard work. Let us be thankful for where we are going and that we are now on the same page working together. That is the message we should send, and the House should endorse that. I am sorry I was longer in my intervention than I wished to be. I just want to commend the right hon. Gentleman.

[Sir Iain Duncan Smith]

The length of the intervention matches the exceptional nature of where we are. Normally, one would make a speech asking for the Government to do something, but they have done it before I asked for it. To that extent, I am sure the Chair will give leeway to the hon. Member for Strangford (Jim Shannon).

I conclude by saying that I unreservedly welcome the statement from the Government and the action today. I unreservedly welcome the statement from the President of the Supreme Court. I hope that others involved in the oversight of law, such as the Bar Council and the Law Society, will respond in terms to what is happening, not stay as outliers, and recognise the important and vital position of independence of the courts and those who practise in them and ply their trade. I say that as someone with a son who is a criminal barrister. The job is to represent people in a free and liberal society that understands the human rights of those who may be prosecuted.

I end by saying that, in a way, this is an emotional moment, because we have campaigned for this for so long. We have taken testimony in the Inter-Parliamentary Alliance on China and Hong Kong Watch from so many who have fled Hong Kong and are now here, because they are unable to live in freedom in Hong Kong, under the rules of an international treaty signed by the British and Chinese Governments at the time. The trashing of that, the ending of those rights, the disabusing nature of the Government’s behaviour, prompts us to ask, how can common law exist in a country that does not believe in the rights and freedoms of individuals? What Ukraine shows us is that freedom has to be fought for, nurtured and protected. Today, I believe, is a step in that direction, and I congratulate the Government.

--- Later in debate ---

[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.

[Sir Iain Duncan Smith]

Following on from what the hon. Member for Hornsey and Wood Green (Catherine West) said, however, while welcoming all those sanctions, the problem is that we have sanctioned fewer people than the United States and other countries. I urge the Minister to take back to the Department what we have already said in the all-party parliamentary group and what has been said elsewhere here today. We are behind the curve on this now. These people are abusive and are responsible for the literally deathly imposition of slave labour and genocide. Can she please now catch up with the United States?

[Vicky Ford]

I thank my right hon. Friend for that intervention. I will certainly take that away. I noted his point regarding the Health and Care Bill, and I know that no one in this House supports the use of forced labour, particularly in creating goods for the NHS. We are fully committed to ensuring that that does not happen and will set out this afternoon further measures that we are intending to take on that issue.

--- Later in debate ---

[Sir Iain Duncan Smith]

Normally, to get up with almost half an hour left in which to summarise a debate would be a sheer joy for a parliamentarian or politician. [Laughter.] However, I will not take the full time on this one.

I will simply conclude by saying that today is a remarkable day. It may not be a day that people will discuss in the bars and the pubs across the country, because many of them probably do not understand or have not heard much about the issue, but it is something that we, as democrats and politicians, know about. We should be celebrating the fact that the UK Government have acted, as a result of the continual campaigning by many of us in this area—from Hong Kong Watch to IPAC, and others—for an end to the superficial legitimacy that our judiciary had been lending to a regime that had been breaking, and is breaking, many of the rules regarding human rights, the rule of law and democracy, not just in Hong Kong but more widely across China.

In my last few remarks, I want to remind everybody what this matter is all about. It is not really just about judges agreeing not to serve in Hong Kong in a common law system that has become debauched, and it is not just that those judges have taken a self-denying ordinance. It is about something much more important—shedding light on the single fact that we are seeing, as I said earlier, literally being fought out in Ukraine. For too long, we have felt that we must accommodate totalitarian regimes that have no regard whatever for the basic things that we believe in and that make us who we are: that sense of human rights, the rule of law and democracy, without which this place could not exist, and this country and so many other countries in the west could not exist in the shape that we do.

The reality, writ large, is that we now have to end that accommodation with the Chinese Government. Our dependency on them allows and fuels them to continue to believe that their form of government and their concept of the ending of these rights is the right way to go and the natural order. Democracy, the rule of law, the independent judiciary and human rights are delicate flowers; they cannot be maintained unless we fight for them, talk about and believe in them, and unless, when people end them, we ostracise them and tell them they are wrong.

I thank the Government for moving on this issue, and the President of the Supreme Court for accepting independently that judges will not serve. Following many comments on the subject, it is important for others who ply their trade in the same courts to think again about what they do. I call on the Bar Council to recommend, as has the President of the Supreme Court, that its members think carefully about adding legitimacy to these courts in Hong Kong. I know it is complicated, but I also call on the Law Society to make a strong statement about the limits of action that lawyers in Hong Kong, representing companies, should take in the pursuit of commercial interests.

Today is not the end, and, as has been said before, it is not the beginning of the end, but it may just become the end of the beginning. The action that we take today may stave off future violent invasions that could come from a country that believes it has impunity. Today we have sent a signal that freedom matters and that people’s freedoms, above all else, are critical to the very way we live our lives. On that basis, I thank the Government for having moved on this matter.

Question put and agreed to.

Resolved,

That this House has considered the role of British and overseas judges in Hong Kong.