UK interference in Hong Kong's judicial appointments misguided

British Foreign Secretary Dominic Raab has said the UK is considering removing its judges from the Hong Kong Special Administrative Region's Court of Final Appeal, where they sit as nonpermanent judges, due to the UK's concerns about developments in the HKSAR, including the application of the new National Security Law.

He made the comment in the latest six-month Report on Hong Kong, prepared by the United Kingdom's Foreign, Commonwealth and Development Office and released on Nov 23.

It is worth taking time to consider what is being argued and what is being proposed.

First, though, a recurring problem with the UK office's more recent investigation and reporting should be noted, as well as subsequent post-colonial, lofty announcements. Actions have consequences. No one fails to understand, for example, that the US Constitution is a central legal response arising out of pivotal real life events－most of all the American Revolutionary War, which Britain lost in 1781 at the Battle of Yorktown.

Yet when the Foreign, Commonwealth and Development Office and UK politicians look at recent political-legal developments in Hong Kong, it is as if the insurrection that gathered terrifying pace in Hong Kong over the second half of 2019(and which so profoundly shaped later developments including the National Security Law) barely happened. Never mind that it threatened the constitutional foundations of the HKSAR and, less directly, those of the People's Republic of China.

Many, not least the HKSAR government, have provided detailed chapter and verse to put the record straight, but it seems to be almost a waste of time－so determined are UK narrative-shapers to stick with their gaze-averting," heroic freedom-loving democracy protesters" storyline. This is inexcusable. It prominently devalues the probity of the UK office reporting produced since those hugely disruptive events.

The UK continues, in its latest report, to argue speciously that the application of the National Security Law in the HKSAR is "a breach of the 1984 Sino-British Joint Declaration". The joint declaration is a key shaping document. It is not a constitutional, power-restricting document. The constitutional source documents conferring power to enact the National Security Law are the Chinese Constitution of 1982 and its progeny－the HKSAR Basic Law.

Let us return to this plan, or threat, indeed, to remove British judges from the Court of Final Appeal. It is notable that it is raised in the foreword of the latest FCDO report. The British foreign secretory says that he has begun consulting with Lord Reed, president of the UK Supreme Court, on "whether it continues to be appropriate for British judges to sit as nonpermanent judges on the Hong Kong Court of Final Appeal".

First, this move to consult on this topic looks to have been inserted into the foreword after the completion of the FCDO report itself. Whymight this have happened? One conceivable reason is that the UK government has decided it wishes to use this latest report to apply a fresh level of pressure on the HKSAR and Beijing. By adding this phrasing, it has opened a pathway, using the report, to influencing the UK Supreme Court in a way that suits a current political priority.

Why is this important? Well, it is widely understood (and claimed) that the UK judiciary enjoys exceptional independence from the executive government. And it is the UK Supreme Court that is ultimately tasked with managing judicial placements, including the placement of British judges on the Court of Final Appeal. Yet here we have the UK government－the executive－stepping in, in a hands-on way, to shape and control whether British judges remain as Court of Final Appeal judges.

A recent report in the Financial Times indicates that the UK judiciary understands what is happening. That paper said the secretory had acknowledged this was "a matter for the judiciary"－and also argued that the judges and politicians had a joint interest in the matter. Lord Reed, in fact, pushed back, saying that it was not clear what if any risks may materialize and that to pull out in such circumstances would deprive Hong Kong's independent judiciary of valuable support.

In brief, it seems that the British government has perceived an opportunity to apply more pressure in a major geopolitical contest and it wanted to signal what it might do. This has led to an attempt to persuade the UK judiciary to see this issue as a matter of joint interest.

Article 82 of the Basic Law provides that the HKSAR, through the Court of Final Appeal, "may as required invite judges from other common law jurisdictions" to sit on the court. Having distinguished offshore judges serve as nonpermanent judges on the court has clearly been positive for the HKSAR.

One outcome of this bluntly politicized episode, however, is that it has shone an active light on the question of when－and why－offshore Court of Final Appeal judges may one day not be required.

The author is a visiting professor at the law faculty of the University of Hong Kong.