Beijing stops short of blocking British KC
But Hong Kong expected to stop Tim Owen representing Jimmy Lai in court
China’s highest legislative body has stopped short of banning a British barrister from representing a high-profile defendant facing national security charges in Hong Kong.
In a ruling on Friday, the National People’s Congress standing committee in Beijing left the decision to the territory’s chief executive and other local officials. But reports today say the authorities in Hong Kong now plan to stop foreign lawyers appearing in national security cases ahead of of a long-awaited trial in the autumn.
The defendant is Jimmy Lai, founder of the popular Apple Daily newspaper which was closed by the Hong Kong authorities in 2021. In August 2020, the entrepreneur was arrested for alleged collusion with foreign forces, a crime under the national security law enacted that summer by China’s parliament.
Lai’s lawyers wanted to instruct Tim Owen KC, of Matrix Chambers in London, to lead his defence team. But that decision was challenged in the Hong Kong courts.
In October 2022, Hong Kong’s justice secretary Paul Lam and the local bar association argued that Lai, 75, did not need a British barrister to defend him because the issues involved in the case were not of unusual difficulty or complexity. That argument was dismissed by the High Court of Hong Kong. The court’s chief judge, Jeremy Poon, said that issues arising at the trial would be of great public importance:
They are clearly of such significance that warrant the admission of specialist counsel of the highest calibre to argue the case before the court… The construction exercise at the trial will most probably involve an in-depth and rigorous analysis of the intricate interplay between national security and the constitutional right to the freedom of expression, to ensure that a proportionate balance is drawn for safeguarding national security on the one hand and protecting the freedom of expression on the other.
An appeal was lodged by Lam, who argued that Owen had no experience of the national security law and its “unique social, political and constitutional context”. Dismissing the appeal with costs on 9 November, three senior judges said:
It is of vital importance in the early days of the national security law that our jurisprudence should be developed on solid foundations to reflect adherence to the rule of law in accordance with internationally adopted judicial standards. It would clearly be in the public interest to have the contribution of eminent jurists in developing our jurisprudence in the national security law…
Public perception of fairness in the trial is of vital importance to the administration of justice. The court must adopt a flexible and sensible approach to arrive at a decision that would best suit the public interest in this application.
Permission to appeal against that ruling was refused in December by an appeal committee of Hong Kong’s Court of Final Appeal.
Lai’s trial, before a panel of three judges, had been scheduled to open a month ago. In November, however, Hong Kong’s chief executive John Lee asked the standing committee of the National People’s Congress — the Chinese parliament — whether foreign lawyers should be allowed to appear in such cases.
Lee took the view that overseas counsel might not maintain the professional confidentiality of state and commercial secrets under the national security law. He told reporters in November there were “no means to ensure that [they have] not been coerced, compromised or in any way controlled by foreign governments, associations or persons”.
Defendants like Lai, he added, should instruct only barristers who were fully qualified to practise in Hong Kong.
Pending a response from the Chinese parliament, Lai’s trial was rescheduled for September 2023. In the meantime, Lai was sentenced to almost six years imprisonment for other offences. That followed a trial which the US State Department condemned as “grossly unjust”.
On Friday, Beijing announced that it would be for Lee as chief executive, or the committee on safeguarding national security which he chairs, to decide whether defendants in national security cases could be represented by foreign lawyers. Their decisions would not be open to judicial review.
Beijing’s announcement was based on article 47 of the national security law. This says:
The courts of the Hong Kong Special Administrative Region shall obtain a certificate from the chief executive to certify whether an act involves national security or whether the relevant evidence involves state secrets when such questions arise in the adjudication of a case. The certificate shall be binding on the courts.
Welcoming the decision in a late-night press conference on Friday, Lee said it was now clear that Hong Kong’s courts would have to obtain a certificate from him on whether cases involved national security interests, as stipulated under article 47 of the law, or approval from the safeguarding committee under another provision.
“The interpretation of article 47 does not create extra power for the chief executive in such certification, Lee said.
He stressed that the decision would not affect foreign lawyers in cases unrelated to national security.
“[They] are still welcome in Hong Kong, as these lawyers will not be affected by any such changes,” he said. “The affected scope is limited, as most cases in Hong Kong are not related to national security.”
A spokesman for the Beijing standing committee’s legal affairs commission said: “There will not be an undermining of Hong Kong’s high degree of autonomy.”
In Hong Kong, a local lawyer described the ruling as a “clever” decision that avoided overruling the territory’s courts.
A detailed analysis by the South China Morning Post summed up the range of views expressed by experts in Hong Kong:
Pro-establishment figures argued the ruling showed Beijing’s wishes to minimise the impact brought to the city’s judicial system, but some legal academics warned that it was no different from giving the government carte blanche to dictate terms.
Hong Kong response
Yesterday, Hong Kong’s justice minister mounted what was seen as a vigorous defence of the Beijing decision. Lam, who had opposed Owen’s application for permission to represent Lai, said that granting Hong Kong’s chief executive a conclusive say on whether overseas lawyers could take part in national security trials would not usurp the function of the courts or undermine the rule of law.
The executive branch was in a “better position” than the judiciary to decide such matters, Lam reportedly said on Saturday, arguing that overseas lawyers without any “substantial connection” should be banned from taking on cases involving national security.
This morning, the South China Morning Post reported that the authorities in Hong Kong were planning to pass a legislative amendment “in months” that would prevent Owen from defending Lai at his trial.
Under the proposed legal changes, overseas counsel not qualified to practise in Hong Kong would no longer be entitled to apply for ad hoc admission to participate in cases involving national security.
“The government will not rush it through as it respects lawmakers’ input. It hopes to get the amendment bill passed in months,” [a] source said, adding the matter was set to be resolved by the time Lai’s case was heard in September.
China appears to have avoided the international criticism that would have resulted from a blanket ban on foreign lawyers appearing in Hong Kong national security cases. At the same time Beijing’s supporters have welcomed a ruling that they see as guarding against the risk of interference by foreign interests in Hong Kong’s affairs.
The justice secretary went out of his way to stress that foreign lawyers could still apply for permission to visit Hong Kong and represent parties in cases that do not involve national security. But in the light of Lam’s reported remarks and today’s media briefing, the chances that Lai will be represented at his trial by the counsel of his choice now seem vanishingly slim.
In Joshua’s so helpful analysis of this case I have been struck especially by the following:
. the (apparent ) integrity and steadfastness of the most senior judiciary;
. the troubling interplay between the executive and the judiciary and its threat to the principle of the separation of the powers, where the executive appears to be asserting its final “say” over the judiciary in a way that Dominic Raab would give his eye teeth for;
and: the (again apparently) parochial line taken by the local bar association.
Harking back to the UK’s own recent frictions as with the - as I maintain- perverse and self serving prorogation of Parliament by Boris Johnson, that is just the kind of issue ripe for challenge in the interests of maintaining judicial integrity as mentioned above and of guarding against fickle and convenient sidestepping of laws inconvenient to the government of the day.
From time to time the system’s philosophical health REQUIRES the availability of challenge and, if appropriate, court rulings which may indeed be exasperating for the executive. Were it to pay greater heed to wiser legal and other counsel before striving to enact challengeable and unworthy law, then that need might well arise less often.
I remember vividly the likes of the Narey Review (pace, Sir Martin) where in his remit had been firmly lodged the aim of removing “rubbing points” between criminal justice agencies and, indeed, between those scrutinising and challenging proposed changes to laws or practice from whichever (honourable) source. A system without those “rubbing points” -on the contrary- would have been NO system AT ALL.
In fact and to his credit Martin had resisted the hope- perhaps even the expectation- that he would merely “ink in” the already “pencilled” conclusions, such as the old, hoary and unsustainable chestnut that defence solicitors and barristers had been prolonging cases for greater financial gain. The converse had been and remains the case where quick “turnover” of cases is the only route to continued financial viability with legally aided cases.
There was much of Martin’s Review where the Law Society disagreed with his conclusions but nonetheless we gave him full credit for his independence of mind. How do I know? As then Vice-Chair of its Criminal Law Committee, I had been up to my armpits in our response. Yes, the Review had been initiated by Michael Howard, but it might just as well have been the “brainchild” of later administrations with the same or remarkably similar conclusions “pencilled in”.
In summary, it may be later than we think in preserving the integrity of OUR OWN system and in Hong Kong and China the lesson for us is indelibly stamped.