The Standing Committee of the National People’s Congress (NPCSC) adopted the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) on June 30, 2020, and the Hong Kong Special Administrative Region promulgated it later that day. The NSL was based on the “Decision of the NPC on Establishing and Improving the Legal System and Enforcement Mechanisms for Safeguarding National Security in the HKSAR”, dated May 28, 2020.

The following day, July 1, the United Kingdom’s foreign, commonwealth and development affairs secretary, Dominic Raab, made an emergency statement in the House of Commons (the House). He announced that the NPCSC had “adopted a wide-ranging national security law for Hong Kong”, adding, “We have carefully assessed the legislation” (no mean feat, given it was barely a day old). He called the NSL’s adoption “a grave and deeply disturbing step”, and comprehensively traduced it.

As the NSL’s fifth anniversary approaches, Raab’s criticisms can now, with the benefit of hindsight, be fully tested. Although people familiar with Hong Kong’s situation recognized at the time that his critique was unfair, the overall picture is now far clearer. Even in 2020, his comments were compromised by his reliance on the Sino-British Joint Declaration (JD) of 1984, which had been subsumed into the Hong Kong Basic Law of 1990.

Raab’s primary errors can be neatly parceled into five discrete categories:

1. NSL’s legality

In a superficial swipe, Raab impugned the NSL’s legal standing. He claimed the Basic Law (itself a national law) only allowed Beijing to “impose laws in a very limited number of cases, such as for the purposes of defense, foreign affairs, or in exceptional circumstances in which the NPC declares a state of war or a state of emergency”. He claimed that “None of those exceptions apply here”, and that the NSL “violates” Hong Kong’s “autonomy”. The NSL’s enactment also constituted a “serious breach of the Joint Declaration” (not appreciating that, as the Basic Law’s precursor, it had become a historical relic).

However, these assessments were deeply flawed. Not only is national security an integral facet of the country’s defense needs, but the JD said nothing specific about national security. When the JD was negotiated, there was never any suggestion from the British side that Hong Kong would be denied the laws it required to protect itself from national security threats. Under the Chinese Constitution, national security is always a responsibility of the country as a whole, and falls outside Hong Kong’s (Basic Law guaranteed) “high degree of autonomy” (Art.2).

2. Basic Law, Art.23

Raab asserted that the enactment of the NSL was “in direct conflict with Article 23 of China’s own Basic Law for Hong Kong, which affirms that Hong Kong should bring forward its own national security legislation”. This might have sounded plausible to anybody unfamiliar with Hong Kong’s development, particularly as Article 23 required Hong Kong to enact the necessary national security laws.

However, although, under the Basic Law, the NPC entrusted Hong Kong with the responsibility for enacting national security legislation (Art.23), this was only as its agent. As Hong Kong, by 2019, had been unable to act, with disastrous consequences, the NPCSC was constitutionally obligated to step in. After all, the lacuna that existed in Hong Kong’s national security arrangements threatened not only Hong Kong but also the entire country (as the mobs made clear in 2019 by, for example, their violent demands for Hong Kong independence, their calls for foreign intervention, their attacks on China’s representative offices and symbols, and their assaults on Chinese people from elsewhere in the country).

As Raab must have known, Hong Kong’s attempts in 2003 to enact the national security laws were thwarted by anti-China forces, encouraged by people in the UK, including the former governor, Chris Patten. The insurrection that ensued in 2019 sought to wreck the “one country, two systems” policy (for which both the JD and its successor, the Basic Law, provided). It was, therefore, wholly mischievous of Raab to claim that the Article 23 route should have been followed when it had already been blocked by forces hostile to China.

 Although there are undoubtedly still officials with Raabian mindsets embedded inside the Foreign Office, they cannot be allowed to poison its periodic reports any longer. Lammy now has the chance to let everybody know that Hong Kong’s national security arrangements have ensured the survival of the “one country, two systems” policy and that Raab was talking through his hat, and he will hopefully grab it with both hands

3. International Covenant on Civil and Political Rights

Although Raab correctly told the House that the International Covenant on Civil and Political Rights (ICCPR) is applicable in Hong Kong through the Basic Law (Art.39), he wrongly claimed it was violated by the NSL. If, as he said, the NSL had been “carefully assessed”, he would have known that the ICCPR is incorporated into it (which is rare, if not unprecedented, in the national security laws of other jurisdictions, and certainly was not the case when Raab’s own government enacted the UK’s National Security Act in 2023).  

Indeed, the NSL (Art.4) provides that “Human rights shall be respected and protected in safeguarding national security in the Hong Kong Special Administrative Region.” It further stipulates that the rights and freedoms which residents enjoy under the ICCPR and the International Covenant on Economic, Social and Cultural Rights “shall be protected in accordance with the law”. In other words, unlike in the UK, fair-trial guarantees lie at the heart of Hong Kong’s national security arrangements.

Although Raab deliberately denied the House this crucial information, there is no reason why his successor, David Lammy, should not now set the record straight (and he will hopefully be eager to do so).    

4. Venue of trials

It was no surprise that Raab sensationalized the NSL’s provision on trial venues (Art.55), as this is common in circles hostile to China. If problems arise affecting the conduct of a national security trial, the NSL enables it, in strictly defined circumstances, to be conducted in a safe place outside Hong Kong. However, this can only ever occur if a foreign country or external elements create difficulties (such as intimidation of judges), if a serious situation arises (such as violent disorder), or if a major and imminent threat to national security arises (such as a foreign invasion).

Without this provision, it might not be possible to try national security suspects at all, meaning they would escape justice for grave crimes. Whether or not Raab wanted this was unclear, but he told the House it should be “particularly concerned by the wide-ranging ability of the mainland authorities to take jurisdiction over certain cases”, and then to “try those cases in the Chinese courts”. If any of his listeners were alarmed by this prospect, their minds have now been put at rest.

After almost five years, not a single national security trial has had to be moved outside Hong Kong. As always, the Chinese mainland’s enforcement authorities have exercised the greatest restraint whenever national security issues arise. For example, even when sinister attempts were made by external forces to pervert the course of public justice in the trial of national security suspect Jimmy Lai Chee-ying, by using extrajudicial means (including pressuring the authorities to abort the trial and threatening the Judiciary), the trial proceeded as planned in Hong Kong.  

After Raab irresponsibly stoked fears in 2020 about trials being conducted elsewhere, Lammy will presumably be delighted to let everybody know that they have not materialized.  

5. Judicial independence

When Raab announced that the NSL had violated Hong Kong’s “independent judicial authority”, he hit a new low. He told the House that the new mechanism whereby the chief executive designated judges to handle national security trials “risks undermining the independence of Hong Kong’s Judiciary”. As insiders knew, and as time has proved, this was poppycock.

The designated judges, drawn from the ranks of the existing Judiciary, have all been people of great integrity who have faithfully observed their judicial oath, which requires them to “safeguard the law and administer justice without fear or favor, self-interest or deceit”. It is the Judiciary itself that decides which of the designated judges handle what cases, not the chief executive, and the judges discharge their responsibilities in the traditional way, seeking just outcomes. Indeed, the chief justice, Andrew Cheung Kui-nung, explained recently that judicial independence “exists as a fact”, and has not been “affected” by the NSL. This undoubtedly helps to explain why Hong Kong was ranked 23rd in the World Justice Project’s Rule of Law Index 2024 (released in October), out of the 142 jurisdictions surveyed (ahead of the United States, at 26th).

Now that Raab’s reckless propagandizing has been so effectively debunked, Lammy should be eager to tell the world the truth.  

When the UK’s Foreign Office issues its next six-monthly report on Hong Kong (it has churned them out since 1997, although their reliability became deeply compromised in the Raab era), Lammy will have a golden opportunity to explain that Raab’s fears were illusory. Although there are undoubtedly still officials with Raabian mindsets embedded inside the Foreign Office, they cannot be allowed to poison its periodic reports any longer. Lammy now has the chance to let everybody know that Hong Kong’s national security arrangements have ensured the survival of the “one country, two systems” policy and that Raab was talking through his hat, and he will hopefully grab it with both hands.    

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The views do not necessarily reflect those of China Daily.