On March 30, 2022, when the president of the United Kingdom’s Supreme Court, Lord (Robert) Reed, resigned as a nonpermanent judge of the Hong Kong Court of Final Appeal (CFA), together with his deputy, Lord (Patrick) Hodge, he left in a blaze of publicity.
Having originally been appointed in 2017 for a three-year term, he accepted a second term in 2020, which would have expired in 2023. Although he could have departed quietly next year, just as his predecessor, Baroness (Brenda) Hale, did in 2021, when her term ended, he milked the event for all it was worth. Although this delighted Britain’s rabid anti-China politicians, like the former Conservative Party leader, Sir Iain Duncan Smith, who said recently that the city’s judges no longer reach decisions “without fear or favor”, it disappointed his former colleagues, whom he left in the lurch.
There was, however, little surprise when Reed revealed that his decision to quit was taken after discussions with government ministers, including the justice secretary and lord chancellor, Dominic Raab, a long-standing critic of Hong Kong’s legal arrangements, and the foreign secretary, Liz Truss, who believes China-baiting is the key to her advancement. Having said the government agreed with his decision, Reed declared that “judges of the Supreme Court cannot continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom and freedom of expression”. This, of course, was extraordinary, given that those rights are guaranteed in Hong Kong by both the Basic Law and the International Covenant on Civil and Political Rights, and that it is the independent Judiciary that continues to uphold them.
Although Reed insisted that the decision was his and his alone, this was not how Truss saw things. On April 1, she told the South China Morning Post that “we have been forced to conclude that their role is no longer tenable and have withdrawn support for British judges sitting on Hong Kong’s top court”. Once Truss had “withdrawn” the government’s support, Reed, who only eight months previously had indicated that he had no intention of resigning, had no option but to throw in the towel, taking Hodge with him.
Given their hostility toward China, Truss and Raab were ecstatic when Reed made his move, treating it like manna from heaven. Whereas Truss announced that she “welcomes and wholeheartedly supports” the withdrawal of the two judges, given that the “situation has reached a tipping point”, Raab declared that the situation in Hong Kong “has shifted too far from the freedoms we hold dear”. Their joy, however, was short-lived, and the CFA’s 10 other overseas judges, including two former UK Supreme Court presidents, Lords (Nicholas) Phillips and (David) Neuberger, announced they would be staying.
In a joint statement, Phillips and Neuberger, together with Lords (Leonard) Hoffmann, (Lawrence) Collins and (Jonathan) Sumption, declared that, at “a critical time in the history of Hong Kong, it is more than ever important to support the work of its appellate courts in their task of maintaining the rule of law and reviewing the acts of the executive”. Although it is unclear to what extent this put a dampener on their celebrations, it will, at the very least, have given Truss, Raab and Reed pause for thought, and rightly so.
What, however, must have hit them like a punch in the face was the news that, at the very time they were pontificating about Hong Kong, everything in their own garden was far from rosy. On June 7, 2022, the All-Party Parliamentary Group on Democracy and the Constitution (APPG) published its eagerly awaited report on judicial independence in the UK, and it does not make for happy reading. It found that, over the last two years, the Supreme Court, on Reed’s watch, had delivered seven public law judgments in which it departed from its previous authorities and assumed positions “more palatable” to the government. It called this an “unprecedented” amount, and noted that it “may have given the impression that the Supreme Court has been influenced by ministerial pressure”. This is clearly a very grave allegation, and one which Reed, who claims not to have faced ministerial pressure over Hong Kong, can hardly ignore.
The APPG is a cross-party group of parliamentarians chaired by a senior Labour member of parliament, Geraint Davies, with a Conservative peer, Lord (Edward) Garnier QC, a former law officer, as a deputy chairman, and it concluded that ministers have acted improperly by questioning the legitimacy of judges when they do not get their way. It heard evidence from various witnesses, including former senior government lawyers, although, intriguingly, Raab’s Ministry of Justice failed to respond to an invitation to give evidence. It accused ministers of acting in a “constitutionally unhelpful and inappropriate” manner, to which the government has yet to provide a detailed response.
Although the Constitutional Reform Act (2005) requires ministers to “uphold the independence of the judiciary” (Sect.3), which includes proactively maintaining judicial independence, this has not, it seems, been happening. The APPG highlights various examples, including the notorious occasion in 2016 when, after the media accused the Judiciary of being “enemies of the people” over a Brexit judgment it disliked, the then-justice secretary and lord chancellor, Liz Truss, failed to spring to its defense, something that still rankles in judicial circles. Indeed, the inquiry quotes the former lord chief justice of England and Wales, Lord (Igor) Judge, as saying that Truss’ “failure to come to the defense of the Judiciary for nearly 48 hours — and her lukewarm response when she did — means if she were taken to court she would likely be found to have acted unlawfully”. For his part, Raab, the inquiry noted, weighed in with a nasty slur about “unelected judges”, and this unsavory episode provides a context for the pair’s recent assault on the rule of law in Hong Kong.
Indeed, as Davies explained: “Our inquiry found that independence has been under attack from ministers and in the media with their questions about the impartiality of judges risking undermining public confidence in the law itself.” If this is true, and the five-member panel, that included Lord (John) Hendy QC, was unanimous, it means that the very government that has been trying to harm Hong Kong and its Judiciary is also attempting to undermine its own Judiciary, thereby indicating its contempt for the rule of law in both jurisdictions. Although, when Reed resigned, the chief justice, Andrew Cheung Kui-nung, immediately announced that the Judiciary’s commitment to upholding the rule of law was “wholly unaffected”, Reed’s response to the inquiry’s findings is still awaited.
There has, of course, never been any serious suggestion that judges in Hong Kong have been “under attack from ministers”, and the inquiry’s conclusion that this is happening in the UK will hopefully galvanize Reed. Indeed, given his noisy posturing over Hong Kong, he now has far stronger grounds for resigning from the Supreme Court than he ever had for abandoning the CFA, and he will hopefully take a stand. As for Truss and Raab, always so vocal about judicial affairs in Hong Kong, their silence is deafening, even though their own Judiciary is being endangered by their own government.
Whereas, traditionally, the Judiciary’s interests in the UK have been safeguarded by senior legal officials inside the government, notably the lord chancellor and the attorney general, this, says the inquiry, is no longer happening. Although the lord chancellorship was traditionally “viewed as a constitutional safeguard to our independent judiciary”, this is no longer the case, and the post is now seen as “a steppingstone by ambitious politicians with an average tenure of just 1.4 years”. Those appointed nowadays have little or no legal experience, let alone stature, with Raab and Truss being obvious examples. What this means, said the inquiry, is that there is nobody to speak up for the judges when ministers act inappropriately, or when there are media misrepresentations, and this has left them unprotected. The APPG, therefore, has called for clear criteria to be issued on the appointment of law ministers, and this clearly makes sense. After all, positions like these should be occupied by legal heavyweights, not by party hacks or third-raters on the make.
Another major problem, said the inquiry, has been that ministers have conflated “decisions with political consequences” with “political decisions”, thereby “giving the misleading impression that judges are stepping outside their constitutional bounds”. This has been compounded by the failure of justice secretaries, like Raab and Truss, to issue any clarifications, presumably because the distinction eludes them. This, unsurprisingly, has impacted on judicial morale, and the inquiry, citing a 2020 survey, noted that 94 percent of judges were either “concerned” or “extremely concerned” about the government’s conduct toward the Judiciary.
Having observed that “the rule of law has been broken at No 10”, a reference to the “Partygate” scandal over which the prime minister, Boris Johnson, presided at his Downing Street residence, Geraint Davies concluded that “the case for a safeguarded and impartial Judiciary is of critical importance to protect our fundamental values of democracy, rights and the rule of law from erosion in the future”. He presumably has in mind the sort of constitutional underpinning that exists in Hong Kong, where the Basic Law provides that the “courts shall exercise judicial power independently, free from any interference” (Art.85). If, therefore, Raab, Truss and Reed are willing to follow up on the APPG’s report, and to take firm steps to ensure that British judges enjoy the same protections as do their counterparts in Hong Kong, some good may yet come from this devastating report.
However, the signs are far from reassuring. Since the APPG’s report was issued, Raab and Truss, always eager to pontificate about legal affairs in Hong Kong, have been uncharacteristically silent about this homegrown scandal. They will, nonetheless, hopefully endorse the recommendation that there should be statutory guidance for ministers on their constitutional duty to uphold judicial independence, something that, fortunately, is not required in Hong Kong, where the independence of the Judiciary is a given, and acknowledged by everybody in government.
Quite clearly, the APPG has identified real problems, and these require rectification. Whereas Reed must decide how best to protect his judges and lift their morale, Raab should attempt to make his fellow ministers understand that the Judiciary is a sacred institution, not a political punchbag. As for Truss, after a series of excruciating gaffes over the Ukraine situation, she is now a national embarrassment, and, having messed up as both justice secretary and foreign secretary, the less she says about anything the better, particularly Hong Kong.
If those who live in glass houses should not throw stones, it follows that people whose own Judiciary is endangered should not be trying to undermine a Judiciary elsewhere, particularly when it is successfully upholding the rule of law.
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.
HONG KONG NEWS