Top judge: I decided to leave HK
Lord Reed says he was not put under any pressure by UK ministers
The UK’s two most senior judges have spoken for the first time about the decision they announced last week to resign as part-time judges of the Hong Kong Court of Final Appeal.
Lord Reed of Allermuir, president of the UK Supreme Court, said it was his decision to stand down. He was not put under any pressure by ministers in the UK government.
Reed and Lord Hodge, the court’s deputy president, were giving oral evidence this morning to the House of Lords constitution committee, as they do every year.
Earlier, there was a striking constitutional clash about the case known as Miller 2, the decision in 2019 that it was unlawful for parliament to be suspended for five weeks. I have written about that separately.
After Reed and Hodge had been answering questions for some two-and-a-half-hours, the Liberal Democrat peer Lord Thomas of Gresford QC suggested that their decision to leave the Hong Kong court had been met with widespread dismay in the former British colony. This was Reed’s response:
It was a matter of deep regret to me as well…
When the national security law came into force in the summer of 2020, I discussed the way forward with the lord chancellor and the foreign secretary.
All three [of us] were involved because our participation in Hong Kong was to implement an agreement that the government, particularly the lord chancellor, entered into in 1997 — and which Lord Falconer renewed in 2004 — under which Britain undertook to provide judges to the Court of Final Appeal in Hong Kong.
And the operation of the agreement obviously depended on two things. One was the government’s continued willingness to operate it. And secondly, the Supreme Court’s continued willingness to provide judges to serve under it.
Since effectively, either side — the government or the judiciary — could pull the rug on it, I and the two ministers thought that the best way forward was for us to jointly monitor what was going on in Hong Kong and have discussions of the implications periodically to decide where we stood. And we also agreed on criteria that we wanted to have in mind in monitoring what was developing.
And it was actually I who insisted that we have a criterion which wasn’t to do with the courts but was to do with society more generally.
To take an example, the courts in South Africa continued perfectly to apply the rule of law during the apartheid era. But I wouldn’t have wanted any Supreme Court justice to have been serving on the courts there, in that period, because the society was one in which our judges would just bring discredit on themselves if they manned one of the major institutions of government in that society. And we should guard against that possibility in relation to Hong Kong as well.
And so what happened thereafter was that we received briefings prepared by the Foreign Office on what was happening and we assessed what was going on against the criteria and formed a judgement as to whether we should carry on working there or not.
And, as everybody knows, there has been a gradual erosion in political freedom and consequently in freedom of speech in Hong Kong, which became progressively and noticeably worse in the latter part of last year and the early part of this year.
The courts themselves were continuing to operate in accordance with rule-of-law values — although they were under pressure and one can’t completely divorce what was going on in the courts from what was going on outside the courts.
Essentially what was going on outside the courts had two components. One was the use of powers conferred by the national security law to close down businesses and seize property. The other was the arrest of people on charges of having violated either the national security law or laws passed during the period of British rule — concerned with sedition, for example.
Once they were arrested, they were then being refused bail, essentially because of the gravity of the charge. If, for example, you are a shopkeeper who had posted on social media your criticism of the absence of a vaccination programme in Hong Kong, then you would find yourself arrested on a charge of sedition, refused bail — and you’re then liable to be detained in prison for the best part of the year, perhaps, before you come to trial.
In the light of the crackdown on freedoms to which we on the Supreme Court — and, indeed, our society — are committed, a stage was reached when we were in agreement that time had come for us to withdraw.
I was not under pressure from politicians. That’s a mistaken reading. There were some things published in Hong Kong which may have encouraged that misunderstanding. But I actually sought the meeting at which we took a decision because of my own concerns; and I found that ministers were of the same view.
There was no compromise of judicial independence… I felt the time had come when we had to call it a day in the interests of the values that we represent.
Reed was then asked about the other part-time members of the Hong Kong court, six of whom are former members of the UK Supreme Court or its predecessor.
They’re not in the same position, I think, as a serving judge exercising public power in the UK.
Lord Robertson of Port Ellen KT, a former Labour MP, asked Reed what he would have done if he had been in their position.
I personally would have felt that the time had come to leave, in any event. But because I am the president of the Supreme Court, my primary concern had to be the reputation of the Supreme Court — and that that institution behaving as it ought to in our constitution. And so my own views happened to coincide. But I’d formed the view that it was no longer in the interests of the Supreme Court — in fact, it was damaging the interests of the Supreme Court and the respect in which it’s held — for us to continue.
Hodge, who resigned at the same time, said it was of central importance that Reed and he were members of the Supreme Court, with public duties in the UK:
There have been two sides to this debate throughout. And the matter has been finely balanced for quite a long time. Clearly, the concerns about the removal of people’s freedoms in Hong Kong has been weighing very heavily on Robert [Reed] and me — and no doubt our colleagues who’ve remained.
But the other side of the coin is an equally real concern that we should do what we could, in difficult circumstances, to support the people of Hong Kong and support the able judges who are trying to uphold the rule of law in the way that we have traditionally understood it in this country and they continue to understand it that way.
So I think it’s a very finely balanced decision and I certainly wouldn’t treat my resignation as any implicit or explicit criticism of those who’ve reached a different view.
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