Role of UK judges in Hong Kong appeal court comes under scrutiny

The role of British judges who sit on Hong Kong’s highest court has come under intensive scrutiny as the new, Beijing-enforced national security law transforms the former colony’s legal freedoms.

It is a long-established tradition that senior judges from the UK and other commonwealth states occasionally hear cases on Hong Kong’s court of final appeal – usually in the later stages of their careers or after they have retired.

The chairman of the UK’s parliamentary foreign affairs select committee, Tom Tugendhat MP, on Wednesday questioned whether they should continue to fulfil that role.

“How can they do that, how can they defend civil rights and commercial rights if they are being violated by the very law they are sent to uphold?” he asked.

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The website of Hong Kong’s court of final appeal lists 19 “non-permanent judges” who sit intermittently on the court. It includes some of the most distinguished British judges of recent years.

Among them are three former presidents of the UK’s supreme court: Lord Neuberger, Lord Phillips and Lady Hale. Lord Reed, the current president of the supreme court, is also on the panel.

The supreme court in Westminster said on Thursday that Lord Reed had not participated in any Hong Kong hearings for the past year and would not be sitting on any cases there this year. Lady Hale, who retired from the supreme court at the beginning of this year, has not yet heard any cases in Hong Kong.

Other British non-permanent judges on the Hong Kong court include: Lord Sumption, Lord Clarke, Lord Walker and Lord Collins, who are former supreme court justices, as well as Lord Millett and Lord Hoffman. Australian and Canadian judges are also non-permanent members.

Retired British judges also sit occasionally on higher appellate courts in the Gulf and other commonwealth jurisdictions, such the Cayman Islands and Gibraltar. They are highly sought-after because of the UK’s international legal reputation.

On Thursday, Hong Kong’s chief justice, Geoffrey Ma, said that judges appointed to cases under Hong Kong’s new national security law would only be appointed on the basis of judicial and professional qualities, rather than politics.

In a rare statement, Ma said assigning judges to cases would be the sole responsibility of the judiciary, seeking to allay fears that judges for national security cases would be picked by Hong Kong’s political leader, Carrie Lam.

Beijing directly imposed the contentious security legislation on Hong Kong on Tuesday, bypassing the city’s legislature and triggering concern over the erosion of freedoms in the former British colony.

Hong Kong’s independent judiciary, one of many freedoms guaranteed when it returned to Chinese rule in 1997, has long been considered key to its success as a global financial hub.

Hong Kong’s constitution, known as the Basic Law, enshrines the independence of the judiciary and states that judges may come from other common law jurisdictions.

Ma said: “Judges of foreign nationality are not excluded. They are expressly permitted to be appointed as judges in Hong Kong.”