British and Overseas Judges: Hong Kong

Robert Buckland Excerpts

Wednesday 30th March 2022 Westminster Hall

[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.

--- Later in debate ---

[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.