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UK-Hong Kong relationship and the Hong Kong National Security Law

Hong Kong was a British colony from 1842 until the UK transferred sovereignty over Hong Kong to the People’s Republic of China in 1997, after which it became a Special Administrative Region of China. In preparation of the handover, in 1984 Great Britain and China agreed the Joint Declaration on the Question of Hong Kong (Joint Declaration).

Joint Declaration

The Joint Declaration states that the Hong Kong Special Administrative Region (SAR) will be directly under the authority of the People’s Republic of China but will enjoy a “high degree of autonomy” and its social and economic systems and lifestyle will remain unchanged for fifty years.

However, in recent years there has been growing concern the principle ‘One Country, Two Systems’, in which Hong Kong is part of China but has separate legal and economic systems, is being steadily eroded. The UK Government has catalogued such fears in its six-monthly reports on Hong Kong, as has the Foreign Affairs Committee in reports on Hong Kong and China (PDF) in 2015 and 2019.

The Joint Declaration is a legally binding treaty, but it contains no enforcement provisions.

National security law

China was alarmed by the mass protests in 2014 and 2019 in Hong Kong that brought hundreds of thousands of pro-democracy supporters out on the streets, and the success of pro-democracy politicians in the island’s 2019 local elections.

In June 2020, the Chinese Government introduced a new national security law in Hong Kong. The legislation criminalises any act of:

  • secession – breaking away from the country;
  • subversion – undermining the power or authority of the central government;
  • terrorism – using violence or intimidation against people; and
  • collusion with foreign or external forces.

The law established a new Beijing-led security office in Hong Kong, with its own law enforcement personnel – neither of which would come under the local authority’s jurisdiction. Hong Kong’s political leader, Chief Executive Carrie Lam, now has the power to appoint judges to hear national security cases. Beijing will also have power over how the law should be interpreted, rather than any Hong Kong judicial or policy body. If the law conflicts with any Hong Kong law, the Beijing law takes priority.

The National Security Law also states it applies to anyone regardless of where they live in the world or if they are a citizen and/or resident of Hong Kong.

UK response

The UK Government have said that the National Security Law is a “clear and serious violation” of the Joint Declaration.

The UK Government has responded with three main actions since the National Security Law was passed in Hong Kong.

First, it suspended the UK’s extradition treaty with Hong Kong.

Second, it extended the embargo on certain military items already imposed on mainland China (in response to the 1989 Tiananmen Square repression), to Hong Kong. It had already in June 2019 restricted the sale of crowd control equipment to Hong Kong.

Third, it announced it would open a new visa route to people from Hong Kong who have British National (Overseas) – ‘BN(O)’ – status and their close family members. The Hong Kong British National (Overseas) visa launched on 31 January 2021. There were 103,900 applications for the visa in 2021 according to Home Office statistics.

China’s response to criticism

In May 2020, China’s Embassy in the UK put out a statement on Hong Kong’s national security legislation saying it is “purely China’s internal affair, which no foreign country has the right to interfere in”.

It described the 2019 protests as “increasingly rampant activities by the “Hong Kong independence” elements, and radical and separatist force”, and that there was “escalating violence and terrorist activities”.

The statement also said the “One Country, Two Systems” and the “high degree of autonomy” envisaged under the system had been “implemented faithfully” since Hong Kong’s handover.

UK Judges on the Hong Kong Court of Final Appeal

Historical context – Commonwealth appeals 

When Hong Kong was a British Overseas Territory, its final court of appeal was the Judicial Committee of the Privy Council (JCPC). This arrangement was the norm for many, but not all, Commonwealth jurisdictions. To this day, the JCPC remains the final court of appeal for all three Crown Dependencies (Jersey, Guernsey and the Isle of Man), some British Overseas Territories (including Bermuda), some independent realms (including Jamaica), and some independent republics (including Trinidad and Tobago). 

The judges that serve on the JCPC are predominantly the permanent justices of the UK Supreme Court, though they are often supplemented by senior UK judges and occasionally senior judges from the relevant Commonwealth jurisdiction(s). 

The creation of the Final Court of Appeal 

Following the formation of the Hong Kong Special Administrative Region in 1997, the JCPC’s jurisdiction in relation to Hong Kong ended. In its place, the Hong Kong Court of Final Appeal (HKCFA) was created. 

In accordance with the law of Hong Kong, the HKCFA has a varied membership. The Court currently has 20 judges. There are four permanent appointees, including the Chief Justice and three other justices. There are then judges appointed on renewable fixed-terms. Four of these are from Hong Kong, but 12 others are judges who serve or served predominantly in other common law jurisdictions. 

Currently, the HKCFA includes judges otherwise or previously based in the UK, Australia and Canada. In the past, it has also included justices from New Zealand. 

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