Why has the UK legal community been so quiet about the erosion of Hong Kong’s rule of law?

The English Common Law system, which underpins the rule of law in forty countries and territories, plays a central role in maintaining the UK’s status in the world as a model for open justice. In Hong Kong’s case, the Common Law has been inextricably linked with its historic success as a global financial and recognised international legal centre.

It is therefore saddening to witness the National Security Law not only being used by Beijing as a tool with which to punish pro-democracy activists, but as a means to undermine Hong Kong's legal system. Independent judges are being replaced with judges loyal to Chinese Communist Party thinking in National Security cases, jury trials are being scrapped in favour of carefully scripted proceedings, and bail is being unreasonably denied to defendants. 

The deterioration of the rule of law in Hong Kong was on display in the recent sentencing of nine senior pro-democracy activists for their participation in a peaceful protest in 2019, at which thousands of Hong Kongers attended.  The fact that senior barristers like Martin Lee and Margaret Ng could be handed lengthy suspended sentences of imprisonment and are now being investigated by the Hong Kong Bar Association, demonstrates how quickly and far things have declined.

With notable exceptions, including Baroness Helena Kennedy QC, Sir Geoffrey Nice QC, who were recently sanctioned by the Chinese Government for their human rights work standing up against the persecution of the Uyghurs, as well as people like Schona Jolly QC of the Bar Human Rights Committee, far too many in the British legal profession are unable or unwilling to speak out against Beijing and challenge the assault on Hong Kong’s legal system. 

Some have gone further and are actively defending the Hong Kong government. Jonathan Sumption recently penned an article for the Times which made the absurd claim that the National Security Law has ‘guarantees of human rights, including freedom of the press and the right to protest’. Others privately concede that they dare not publicly criticise the National Security Law for fear that they too will be banned from travelling and working in Hong Kong.

What explains the reluctance from some in the British legal community to stand up for Hong Kong’s autonomous legal system come?

As ever, the answer lies in the UK’s trade with China. The Office for National Statistics recorded that the total value of trade in services between the UK legal sector and China was worth £58 million in 2018.

Much of this comes in the form of training, dispute resolution work, commercial work, and occasional criminal work with individual practitioners such as Lord David Pannick QC and David Perry QC being handsomely rewarded in the past for their work on behalf of the Hong Kong Government.

The potential conflict of national interest presented by paid work for foreign governments by some of the UK’s leading lawmakers, judges, and lawyers was recently debated in the House of Lords with the Conduct Committee suggesting changes which would require peers to declare such work they undertake.

Speaking in the debate, Lord Pannick QC claimed that such changes would breach client confidentiality and were unnecessary as “when I sit in Blackstone Chambers drafting a legal advice, I am not working for a foreign power.”

Since 1989, the UK has been heavily involved in the training of Chinese lawyers and judges, with the aspirational hope of introducing Western judicial values. This was first, through the Lord Chancellor’s Training Scheme, and now through a £500,000 annual grant to the Great Britain-China Centre under which the UK Government has supported this work.

The Bar Council of England and Wales has its own training scheme when it comes to Chinese lawyers, working closely with China’s Ministry of Justice to allow junior lawyers to visit and train in the UK. By the Bar Council’s own admission, it has been involved with various initiatives with China over the years: including ‘hosting judicial delegations from China’ and offering ‘assistance for research and the drafting process for important legislation such as professional regulation, criminal law and procedure, arbitration law and contract law.’

In a recent submission to the House Lords International Relations and Defence Committee Inquiry into the UK’s security and trade relationship with China, the Bar Council described this training as providing ‘future monetary value’ for the Bar, encouraging the ‘promotion and protection of international standards and practices of the existing international rules-based order’, and ‘influencing PRC lawyers and thought leaders’.

This approach chimes with the philosophy behind the Cameron-Osborne ‘Golden Era’ of relations, which claimed that increasing trade with China would increase British influence over the Chinese Government and see an improvement in China’s record on human rights. Instead, we have seen Hong Kong’s autonomy dismantled, a million Uyghurs enslaved, the launching of a trade war against Australia, and rising aggression from the Chinese Communist Party to its neighbours in the Indo-Pacific region and Taiwan.

Such a naïve approach might be justified if the British legal community used these forums as opportunities to challenge Chinese judges and officials on human rights and the rule of law. However, when Judge Shen Hongyu, Justice of the Supreme People's Court of the People's Republic of China gave the key note speech at the UK-China Arbitration Summit in January, she was never challenged over China’s growing use of the death penalty, its prosecution of doctors who alerted the world to the COVID-19 pandemic, or the incarceration of over a million Uyghurs without so much as a trial. Rather Judge Shen was offered a platform to extol the virtues of China’s legal and political system uncontested, in the name of increasing business for UK legal firms in China.

Of course, the great irony which typifies the fallacy of this approach is that Essex Court Chambers, the key organiser of this summit, now finds itself subject to Chinese sanctions for giving a legal opinion on behalf of the World Uyghur Congress.

The crisis in Hong Kong has jolted many parliamentarians out of lethargy when it comes to the nature of the Chinese Communist Party and its willingness to break its word. Yet far too many in the UK legal community are wedded to the failed policies of the ‘Golden Era’ either being co-opted or shamefully cowed into silence by Beijing.

China’s breaches of the Sino-British Joint Declaration and its use of the draconian National Security Law is not just an assault of the freedoms of the people of Hong Kong, but a direct challenge to the city’s continued use of the Common Law System and the independent rule of law, without which foreign investors can have little confidence in continuing to trade there.

If British judges and lawyers are so easily willing to abandon defence of the rule of law and the Common Law System abroad, then one might fairly ask whether they will fight for it here at home?  

Sam Goodman, Hong Kong Watch’s Senior Policy Advisor