The latest six-monthly Report on Hong Kong (to June, this year) prepared by the Foreign, Commonwealth and Development Office (FCDO) in the UK has very recently been released. According to Reuters and several other major dailies, the British Foreign Secretary Dominic Raab said that the UK was considering removing its judges from the Court of Final Appeal (where they sit as non-permanent judges) due to UK concerns about developments in the HKSAR, including the application of the new National Security Law (NSL).

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

First, though, we need to note a deep recurring problem with the more recent FCDO investigation and reporting — and 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 the UK lost in 1781, at the Battle of Yorktown. Yet when the FCDO and UK politicians look at recent political-legal developments in Hong Kong, it is as if the insurrection which gathered terrifying pace in Hong Kong over the second half of 2019 (and which so profoundly shaped later developments including the NSL) barely happened. Never mind that it threatened the constitutional foundations of the HKSAR and, less directly, those of the PRC.

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 FCDO reporting produced since those hugely disruptive events.

Note, when Britain encountered significant protester disruption of newspaper deliveries for a short time in September this year, the UK government swiftly proposed a series of drastic criminal law reforms to punish such wrongdoers severely in future. The protests involved were a mere shadow of what Hong Kong went through in 2019. (See, “British denounce UK radicals but not HK’s”, China Daily, September 1, 2020.)

The UK continues, in this latest report, to argue speciously that the application of the NSL in the HKSAR is “a breach of the 1984 Sino-British Joint Declaration” (JD). The JD is a key precursor, shaping document. It is not a constitutional, power restricting document. The constitutional source documents conferring power to enact the NSL are the Chinese Constitution of 1982 and its progeny— the HKSAR Basic Law.

Moreover, Whitehall disregards international legal judgments (for example over Diego Garcia) when this suits the UK (See, “Has the British government read the Basic Law?” China Daily, June 11, 2020.). And then there is the enhancement (for Hong Kong applicants) of residence rights for British National (Overseas) passport holders, which contravenes a prior international agreement.

But let us return to this plan, or threat, indeed, to remove British Judges from the CFA. It is notable that it is raised in the Foreword of the latest FCDO Report. The British Foreign Minister explains 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 non-permanent 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. Why might this have happened? One conceivable reason is that the UK government has decided they wish to use this latest FCDO Report to apply a fresh level of pressure on the HKSAR and Beijing. By adding this phrasing, they have 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, which is ultimately tasked with managing judicial placements, including the placement of British judges on the CFA. Yet here we have the UK government — the Executive — stepping in, in a hands-on way, to shape and control, as much as they can, whether British judges remain as CFA judges.

A recent report in the Financial Times confirms that the UK judiciary understands what is happening. That paper noted how the Minister acknowledged this was “a matter for the Judiciary” — and also argued that the judges and politicians had a joint interest in this 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 they wanted to signal what they might do. This has led to an attempt to persuade the UK judiciary to see this issue as a matter of joint interest.

Think about this a little more. Here we have a far off, former colonial power working to influence its own judiciary in order to better control who should or should not sit on Hong Kong’s highest court, today. There is a piquant colonial whiff in the air. Moreover, it is implicit that Mr Raab and colleagues presume the British system remains superior to what they assume to be a still less-developed Hong Kong. This is one key aspect which gives this warning robust political impact, seen from their standpoint.

Yet all this also makes one ask, how reliable is this haughty British government and how long should the staffing of the CFA be left subject to shifting British political priorities?

Article 82 of the Basic Law provides that the HKSAR through the CFA “may as required invite judges from other common law jurisdictions” to sit on the CFA. Having distinguished offshore judges serve as non-permanent judges on the CFA 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 CFA judges may, one day, not be required. 

The author is a visiting professor at the Law Faculty of the University of Hong Kong.

The views do not necessarily reflect those of China Daily.