Role of UK judges on the Hong Kong Court of Final Appeal
Statement from the President of the UK Supreme Court, The Right Hon Lord Reed of Allermuir
17 July 2020
Until the return of Hong Kong by the UK to China in 1997, Hong Kong's final appeal court was the Judicial Committee of the Privy Council in London, whose judges were the members of the Appellate Committee of the House of Lords. Following the Handover, the final appeal court became the Hong Kong Court of Final Appeal. Article 82 of the Hong Kong Basic Law provides that 'the power of final adjudication of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal of the Region, which may as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal'.
At the time of the Handover, the then Lord Chancellor (the Rt Hon Lord Irvine of Lairg) and the Chief Justice of Hong Kong (the Hon Andrew Li) agreed that the House of Lords would provide two serving Law Lords to sit on the newly created Hong Kong Court of Final Appeal, as part of the UK's continuing commitment to safeguarding the rule of law in Hong Kong. Details of this agreement were announced by Lord Irvine in Hong Kong on 8 September 1997.
Ever since, two serving judges of the House of Lords and, since its establishment in 2009, the UK Supreme Court, have been provided in accordance with that agreement. They have made an important contribution to the work of the Court of Final Appeal, not only in civil and commercial cases, but also in cases concerned with rights of protest and free speech. Serving judges do not receive any additional remuneration for their work in Hong Kong, but a fee is paid to the Supreme Court. The Court of Final Appeal also includes retired judges from the UK and from other common law jurisdictions, including Australia and Canada.
Currently, I am the only serving judge provided under the agreement, as the other serving judge, Lady Hale, retired from the Supreme Court earlier this year and has not yet been replaced on the Hong Kong court. No serving UK judge has been scheduled to sit in Hong Kong this year.
The new security law contains a number of provisions which give rise to concerns. Its effect will depend upon how it is applied in practice. That remains to be seen. Undoubtedly, the judges of the Court of Final Appeal will do their utmost to uphold the guarantee in Article 85 of the Hong Kong Basic Law that 'the Courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference.' As the Chief Justice of Hong Kong, the Hon Geoffrey Ma, recently said: 'The independence of the Judiciary and the rule of law are cornerstones of the Hong Kong community, and they are guaranteed under the Basic Law. It remains the mission and the constitutional duty of the Hong Kong Judiciary to maintain and protect them.'
The Supreme Court supports the judges of Hong Kong in their commitment to safeguard judicial independence and the rule of law. It will continue to assess the position in Hong Kong as it develops, in discussion with the UK Government. Whether judges of the Supreme Court can continue to serve as judges in Hong Kong will depend on whether such service remains compatible with judicial independence and the rule of law.
For more information, or if you have any questions, please contact a member of the UK Supreme Court press office:
Sophia Linehan-Biggs - Joint Head of Communications (Monday to Wednesday)
020 7960 1887
Janet Coull Trisic - Joint Head of Communications (Wednesday to Friday)
020 7960 1887
Rebecca Lowson - Media and Communications Manager
020 7960 1894