British and Overseas Judges: Hong Kong

Siobhain McDonagh Excerpts

Wednesday 30th March 2022 Westminster Hall

[Siobhain McDonagh (Mitcham and Morden) (Lab)]

Huge congratulations to the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) for all his leadership, time and commitment on this issue, and to all the other Members across the House who have made their views clear and put effort into encouraging the Government to take today’s decision.

I appreciate that it cannot have been easy. Any of us involved in human rights issues across the world are regularly frustrated with the response of the Foreign Office, because of the argument that staying there and arguing the case is better than walking away and standing up. I appreciate that the balance in that argument is a very fine one, but there must come a point at which carrying on in the hope of diplomacy is simply not the right answer.

I have a few simple points to put on the record today. We all know that the presence of overseas judges stretches back to a 1997 agreement, which aimed to maintain Hong Kong’s judiciary’s independence and credibility. However, the circumstances have changed.

The introduction of the Hong Kong national security law has undeniably restricted those rights and freedoms guaranteed to Hong Kong 25 years ago, and the legal system is unquestionably compromised. Now, the Hong Kong Secretary for Justice decides the charges in sensitive national security cases; there is a pre-vetted list of designated national security law judges; the Hong Kong Government decide on the judge; and everything is held closely to account by the pro-Beijing press.

Some people—with the best of intentions, I am sure—argue that overseas judges maintain influence, and that they have some kind of sway. However, in reality they are only able to preside over trials in the Court of Final Appeal, and given that they have no influence over the cases that come before that court, it is unlikely that they would ever have been chosen for a national security law case. In fact, we were still waiting for an overseas judge to participate in a case considered under the law, because the Hong Kong Chief Executive and National Security Commission were able to hand-pick them.

I am glad that the Government have agreed that the overseas judges’ presence on the grounds of influence was erroneous at best. The simple fact is that as long as overseas judges continued to serve in Hong Kong, they would have been providing unwitting support for the Chinese Government’s crushing of the city’s democracies, rights and freedoms. That is not just the view of the Members here today, or of the Government; Hong Kong’s Chief Executive, Carrie Lam, herself noted that foreign judges have helped

“maintain a high degree of confidence”

in Hong Kong’s legal system.

I am glad that the British Government share my concerns. After all, they have already introduced the new visa route for British nationals overseas, extended the arms embargo for exports to China to include Hong Kong, and suspended the UK’s extradition treaty with Hong Kong indefinitely. The concern was always apparent. However, when we consider the changes since those measures, the reality is that the situation in Hong Kong has not improved. The Chinese Government continue their clampdown on freedoms in the city, so the question had to be asked as to the difference made by continued support lent to the judicial system.

I recognise that there are difficult decisions to be made here. In theory, the question is whether it is better to be in the room or watching from outside. However, the longer we remained inside, the clearer it became that the ability to influence was close to redundant, and that our presence instead provided a veneer of legitimacy to a judicial system that had long since lost its democratic legitimacy.

I am glad that the Government have made their decision today. I hope that they will go further—that they listen to the amendment suggested by the right hon. Member for Chingford and Woodford Green on procuring items for the NHS, and extend the number of people to be sanctioned for their involvement in the genocide of the Uyghurs.