The UK's relations with Hong Kong: 30 years after the Joint Declaration - Foreign Affairs Contents

4  FCO monitoring of the Joint Declaration

The UK's ongoing obligations under the Joint Declaration

31. The Sino-British Joint Declaration is an international treaty, registered in 1985 with the United Nations. When it was signed, both the UK and China undertook to implement its provisions. The UK's specific obligation was to administer Hong Kong until the handover "with the object of maintaining and preserving its economic prosperity and social stability."[61] According to the FCO, this obligation was fulfilled when sovereignty over Hong Kong was transferred from Britain to China.[62] The majority of the treaty focuses on China's policies toward Hong Kong SAR, which may not be changed for 50 years following the handover of sovereignty. The FCO's position is that the UK retains a locus standi in ensuring that China, as a counter-signatory, continues to fulfil its obligation to maintain Hong Kong's "high degree of autonomy".[63] Thus although the Declaration did not confer any specific legal obligations on the UK toward Hong Kong after 1 July 1997, the FCO has consistently held that the UK has a "moral responsibility and a legal right" to monitor the ongoing implementation of the treaty.[64]

32. We were therefore concerned to hear comments made in December 2014 by Raymond Tam, Hong Kong's Secretary for Mainland and Constitutional Affairs, in response to a question in LegCo on the Joint Declaration. He said:

    The provisions of the Joint Declaration have been fully implemented, and its purpose and objectives have also been fully fulfilled. […] The United Kingdom has no sovereignty, jurisdiction or right of supervision over Hong Kong, and there is no such thing as "moral obligation".[65]

33. We put these comments to the FCO Minister of State, Hugo Swire, and were reassured to hear that the UK Government did not agree with them.[66] We note that Mr Swire raised this issue with the Chinese Foreign Minister and with the head of the Hong Kong and Macao Affairs Office in May 2014. In his foreword to the six-monthly report on Hong Kong covering July to December 2014, the Foreign Secretary wrote:

    Let me be unequivocal, as we have been, consistently, at all levels of Government: the Joint Declaration remains as valid today as when it was signed in good faith by Margaret Thatcher and Zhao Ziyang, and the UK's commitment to it is as strong as ever. It is a legally binding treaty, registered with the UN and as a co-signatory, we have a clear right to monitor and comment on its implementation, and we will continue to do so.[67]

34. The FCO has repeatedly said that the UK has both a moral responsibility and a legal right to monitor China's fulfilment of its obligations to Hong Kong under the Joint Declaration. We agree. The FCO should continue making this clear to the Chinese and Hong Kong authorities at every level. The Minister of State told us that President Xi will conduct a state visit to the UK in 2015. The Prime Minister should use that opportunity to emphasise both publicly and privately to President Xi that the UK is committed to this position, and takes seriously its monitoring of the implementation of the Joint Declaration.

The six-monthly reports

35. Since the handover of sovereignty in 1997, the FCO has monitored the implementation of the Joint Declaration primarily via its six-monthly reports on Hong Kong. In a Westminster Hall debate on 22 October 2014, the Minister of State said that the six-monthly reports are widely read by decision-makers in Hong Kong and Beijing.[68] The evidence we received supports this contention. Many of the witnesses to whom we spoke in Hong Kong, as well as a large number of the written submissions, showed detailed knowledge of the content and tone of the reports. The President of the Foreign Correspondents Club in Hong Kong also told us that UK statements on Hong Kong were widely reported there. He said:

    What I can say is that any time the UK Government issues any kind of language on Hong Kong, it gets reported everywhere—in all the print and broadcast media. People here are listening and looking for cues from London to see what the view is, and that gets reported extensively—and it will get spun extensively, depending on the media group involved and what their position is on these issues of pro-China, pro-democracy or whatever the rival camps are. Fundamentally, you are guaranteed a wider audience.[69]

The impact that the UK's statements can have in Hong Kong has also been made apparent to us by the extensive coverage of our inquiry in the Hong Kong media. It is therefore of utmost importance for the FCO to get the six-monthly reports right.

36. According to the FCO, the purpose of the reports is "to keep Parliament informed of major developments in Hong Kong, in particular regarding the implementation of the Sino-British Joint Declaration and the operation of the 'one country, two systems' model."[70] They told us that the reports aim to provide a "narrative" of developments during the reporting period, and to establish the UK position on any significant issues of interest or concern.[71] The reports are drafted by FCO officials in the Consulate-General in Hong Kong and revised together with the China Department in London.[72] The Foreign Secretary then writes a short foreword, typically no longer than two pages, before presenting the report to Parliament.

37. The six-monthly reports have never identified a breach of the Joint Declaration. The reports have consistently concluded that "one country, two systems" continues to work well, although the most recent report acknowledged that it had been "put to perhaps the most serious test since the handover" during the period from July to December 2014.[73] The reports typically cover topics including the independence of the judiciary, the rule of law, basic rights and freedoms such as freedom of the press and of assembly. They also detail political, economic and constitutional developments during the reporting period. The reports have been used to express concern about various issues and developments, most strongly in 2002 and 2003 in relation to proposed national security legislation under Article 23 of the Basic Law, which, if passed, could have significantly restricted freedom of speech and the press.[74] The Foreign Secretary's foreword is intended to provide "the main political opinion" expressed in the report.[75] The foreword, however, is often identical in content and phrasing to the conclusions stated throughout the main body of the report, and usually offers little extra insight into the UK Government's position.

38. On the whole, the assessment of our witnesses was that the reports could do better, particularly in relation to establishing the UK position on events of interest or concern. This was not a unanimous view—the Hong Kong Association called the reports a "useful compendium of developments"[76]—but a significant majority of the evidence we received ranged from mildly to strongly critical. Some witnesses, particularly academics and analysts, thought that the reports were broadly accurate in their description of events in Hong Kong, but that they lacked analysis and opinion. Duncan Innes-Ker, an analyst at the Economist Intelligence Unit, said he thought the six-monthly reports gave "broad" and "deep" coverage, but that they did not always reflect accurately "a full sense of the feelings on the ground."[77] He described the reports as "a repetition of fact, rather than an expression of opinion."[78] Similarly, Dr Malte Kaeding, Lecturer in International Politics at the University of Surrey and an expert on Hong Kong, said the reports provided a good overview of events, but lacked context and did not make linkages between the individual issues and events described in the narrative.[79] Atypically among the interlocutors in Hong Kong to whom we spoke via video-link, the Chairman of the Hong Kong Democratic Foundation expressed admiration for the depth of China-related knowledge displayed by FCO officials working on the reports, even though he did not always agree with their view. He said:

    We know—we have links with your consulate general in Hong Kong—almost everyone who wrote the six-monthly report and we know that both former and current officials working in the Foreign and Commonwealth Office are sinologists. They have deep knowledge of China [...] Because of their deep knowledge, of course their judgment could be slightly different from Hong Kong and from people who are not sinologists […] I know that they have Hong Kong's best interests at heart. There are people who have a different opinion—that is normal in a democratic society—but personally, I trust their judgment, because they can tell me things I don't know. The Foreign Affairs Committee might blame them or say, "They are not doing their job," but in our opinion they are doing the best they can to preserve not just you but us, and they are trying to best serve China's interests too.[80]

This was, however, an unusually sympathetic evaluation of both the content of the six-monthly reports and of the FCO's judgment in responding to developments in Hong Kong.

39. A large proportion of those to whom we spoke had more negative views on the reports, criticising them for failing to convey an accurate sense of public opinion in Hong Kong, and also for their neutral tone. Asked for his opinion on the reports, former Governor of Hong Kong Lord Patten said:

    Well, words like "bland" and "anodyne" come to mind, but they probably overdo the excitement and aggressiveness of the reports. On the day that the sans-culottes stormed the Bastille, Louis XVI wrote in his diary, "Rien",[81] and you get a slight feeling of that when you read these six-monthly reports, which must have been written thousands of miles away from Hong Kong.[82]

The "pan-democrat" legislators to whom we spoke were highly critical of the reports, saying that they failed to convey the extent to which people in Hong Kong are worried about the perceived erosion of Hong Kong's autonomy. Emily Lau, leader of the Democratic Party, said that the reports were "very weak" and "not really stating things as they are".[83] Alan Leong, leader of the Civic Party, told us that the six-monthly reports "should reflect more accurately on what happened during the past six months and give a clearer and unequivocal view of what you had observed, instead of dodging the issue and beating about the bush."[84] Democratic activist Avery Ng called the reports "weak" and disappointing.[85] Student protesters added a slightly different perspective, saying the reports were inaccurate because they described only the opinions of legislators and ignored the views of young people without political affiliation.[86] Anson Chan's Hong Kong 2020 organisation also accused the reports of "over reliance on bland rehearsal of public pronouncements by Hong Kong and Chinese Government officials" and of failing to include authoritative public opinion surveys.[87]

40. Dr Tim Summers, an analyst with Chatham House and former FCO official, also said that the reports did not always express the UK position clearly enough on issues relating to the Joint Declaration.[88] Unlike the many pro-democratic witnesses who accused the FCO of taking a timid approach in order to avoid angering Beijing, Dr Summers suggested that the relative blandness of the reports reflected the FCO's desire to avoid angering Hong Kong's pro-democratic activists. Speaking about a controversial White Paper published in June 2014 by the Chinese State Council, which in his judgement contains no cause for concern, he said:

    The six-monthly report for the first half of [2014] really sat on the fence on the White Paper and I don't think they needed to sit on the fence on that. The Government could and should have come to a view […] I guess the politics are the issue, and the concern not to speak out in a way that might be criticised by pro-democracy protestors, hence the fence-sitting.[89]

41. According to the FCO, the purpose of the six-monthly reports is twofold: to provide a narrative of events, and to serve as the main platform for the UK Government to express its views on developments in Hong Kong. People in Hong Kong, China and elsewhere look to the reports to ascertain the UK Government's position on important and controversial issues. The reports thus speak to several different audiences at once and we acknowledge that they must tread a narrow path. However, we consider the reports unsatisfying, even within these constraints.

42. We consider that the six-monthly reports offer comprehensive if somewhat bland narratives of events, but they fall some way short of indicating the UK's position on developments in Hong Kong. We recommend that the reports be restructured to include less ambiguous conclusions, supported by more in-depth analysis of the political, social and economic implications of the events they describe. We also recommend that the Foreign Secretary express more clearly the UK's views on developments during the relevant reporting period, in his foreword to each report.

61   Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong, para 4 Back

62   Q334 Back

63   Q334 Back

64   Q333 Back

65   Hong Kong Government News, "LCQ5: The Joint Declaration on the Question of Hong Kong", Press Release, 17 December 2014 Back

66   Qq335-337 Back

67   Foreign and Commonwealth Office, The Six-monthly Report on Hong Kong: 1 July to 31 December 2014, February 2015, p 2 Back

68   HC Deb, 22 October 2014, col 294WH Back

69   Q154 Back

70   Foreign and Commonwealth Office (HNG 0748) para 8 Back

71   Foreign and Commonwealth Office (HNG 0748) para 9 Back

72   Q346 Back

73   Foreign and Commonwealth Office, The Six-monthly Report on Hong Kong: 1 July to 31 December 2014, February 2015, p 28 Back

74   The legislation was withdrawn in 2003 after mass protests, and has not been re-introduced to date. Back

75   Q347 Back

76   Hong Kong Association (HNG 0738) para 4 Back

77   Q258 Back

78   Q259 Back

79   Q29 Back

80   Q167 Back

81   Meaning "nothing", in French Back

82   Q11 Back

83   Q209 Back

84   Q219 Back

85   Q240 Back

86   Q123 Back

87   Hong Kong 2020 (HNG 0490) para 1.1 Back

88   Q236 Back

89   Q237 Back

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© Parliamentary copyright 2015
Prepared 6 March 2015