House of Commons - The UK's relations with Hong Kong: 30 years after the Joint Declaration

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

5 Political and constitutional reform

Evolution of election procedures for the Chief Executive

43. The Sino-British Joint Declaration did not specify the precise procedures for electing Hong Kong's government after the handover of sovereignty, stipulating only that the Chief Executive would be "appointed by the Central People's Government on the basis of the results of elections or consultations to be held locally."[90] These procedures, including the goal of introducing universal suffrage, were subsequently established in Article 45 of the Basic Law, which states:

Annex I to the Basic Law provided a more detailed breakdown of the selection method for the Chief Executive, who would be elected every five years by a "broadly representative Election Committee".[92] This Committee initially had 400 members, doubling for the next election in 2002 and reaching 1200 for the 2012 elections. Its members are chosen by four main "sectors", each of which is comprised of numerous "sub-sectors": the industrial, commercial and financial sectors; the professions; labour, social services, religious and other sectors; and representatives of various political bodies including LegCo, District Councils and the Chinese National People's Congress.[93] In 2012, a total of 233,572 people across all sub-sectors were registered to elect representatives of the Election Committee,[94] giving about 3% of Hong Kong's 7.15 million people a direct say in determining the Committee's members.[95] The vast majority (over 200,000) of these individual voters were concentrated in the second sector, representing professions like accountancy, law and medicine.[96] In several other sub-sectors including finance, financial services, tourism and transport, companies rather than individuals voted for Election Committee members. In effect, this enabled major shareholders with business interests in several different industries to vote multiple times.[97] As a result of this structure, as well as the relative weight afforded to the different sub-sectors, the Committee has from the outset had a de facto "pro-Beijing" majority.[98] Although advocates of greater democratic reform won enough support, largely from the second sector, to stand as official candidates in 2007 and 2012, none has ever been elected to the Chief Executive position. The current Chief Executive, Leung Chun-ying, was elected by the Committee in 2012 with 689 votes.

44. Although the Basic Law acts as Hong Kong's mini-constitution, it is a Chinese law that can only be changed or amended by a decision of the National People's Congress in Beijing. In 2007, the Standing Committee of the National People's Congress adopted a decision on procedures for the election of the Chief Executive in 2012 and 2017, and for the election of Legislative Council (LegCo) members thereafter. It declared that the election of the Chief Executive in 2017 "may be implemented by the method of universal suffrage", and that after universal suffrage had been introduced for the Chief Executive, it could also be used to elect all members of LegCo.[99] The details of the electoral procedure were left open, to be decided by the NPC following several rounds of public consultation in Hong Kong. The proposed electoral package would then be presented to LegCo, requiring a two-thirds majority in order to pass. If LegCo were to reject the proposal, the election procedure would remain that used in 2012: selection by committee with no public vote.

45. In late 2013, the Hong Kong government launched a public consultation process on the 2017 Chief Executive elections, inviting submissions from stakeholders in Hong Kong about a range of specific issues including the potential size, composition and selection of the nominating committee; constituency sizes; makeup of constituencies and voting arrangements. From the outset many had low expectations of the consultation process, assuming that whatever its outcome, Beijing would not allow Hong Kong to have a fully democratic election in 2017. In 2013, law professor Benny Tai founded "Occupy Central with Love and Peace", a civil disobedience movement inspired by the "occupy" demonstrations in New York, London and elsewhere, promising to launch protests if the consultation process and subsequent NPC decision failed to deliver what the movement considered to be genuine democracy. In July 2014, before the NPC issued its decision on electoral procedures, Martin Lee QC and the Hon. Anson Chan told us that they expected Beijing to introduce strict controls on the nomination process for candidates.[100]

The White Paper

46. Concerns in Hong Kong about the prospects for democratic reform rose further in June 2014 with the publication of a White Paper by the Chinese State Council, entitled "The Practice of the 'One Country, Two Systems' Policy in the Hong Kong SAR." The paper re-iterated that Hong Kong enjoyed a high degree of autonomy. It also insisted, however, that this autonomy was not "an inherent power", but rather granted by the central leadership in Beijing and subject to its authorisation.[101] It sparked protests by the Hong Kong Bar Association, due to a line stressing that all those who "administrate" Hong Kong—which appeared to include judges and judicial personnel—must be patriots and "loyal to the country". Martin Lee, who was at the forefront of the lawyers' protests, told us that this constituted a direct threat to the independence of Hong Kong's judiciary.[102]

47. We heard a range of views on whether the White Paper marked a shift in or tightening of Beijing's policy towards Hong Kong. The "pan-democrat" legislators to whom we spoke characterised it as a warning from Beijing that Hong Kong's autonomy was contingent on Beijing's support and could be taken away if the Chinese government wished.[103] This position was shared by many who submitted written evidence.[104] Dr Margaret Ng, a prominent Hong Kong barrister and former legislator, wrote:

105

Jonathan Fenby, former editor of the South China Morning Post, said the White Paper formed part of a more general trend of Beijing asserting the prominence of "one country" over "two systems", in line with the broader evolution of President Xi's leadership of China.[106] Others, however, suggested that the furore over the White Paper was a matter of misunderstanding and poor communication between two very different legal systems, and that the White Paper did not mark any practical change in Beijing's attitude to "one country, two systems".[107]

48. The FCO's six-monthly report on Hong Kong covering January to June 2014 summarised the contents of the White Paper and described the debate it sparked in Hong Kong, but conspicuously avoided expressing a view on the substance of the paper.[108] The report covering the latter half of 2014 noted that debate over the White Paper had continued during the reporting period, but again did not take a position on the paper's contents.[109] This approach was criticised by Lord Patten, who told us that he thought the UK Government could have made clearer statements to the effect that the views expressed in the White Paper were "extremely unwise and not in line with what is meant by the rule of law."[110] In her written submission, Dr Ng said that the British Government had "either failed to understand" or "chosen not to understand" the real intent of the White Paper, which she argued was to tear up the Joint Declaration.[111] Dr Tim Summers also criticised the FCO's ambiguous response but from the opposite perspective, telling us that the Government was "fence-sitting" and should have said openly that the White Paper did not represent a change in Beijing's policy or a threat to judicial independence in Hong Kong.[112]

49. In its written evidence to this inquiry, the FCO "noted the assurances" by the Chinese and Hong Kong governments that the White Paper did not mark a change in policy, and stated: "It is the Government's assessment that the White Paper has not undermined judicial independence or breached the 1984 Sino-British Joint Declaration".[113] We judge that the White Paper did not breach the letter of the Joint Declaration, but neither was it wholly consistent with the spirit of the treaty. The alarm that the White Paper engendered should not be brushed aside. There is widespread concern in Hong Kong that Beijing is tightening its grip on Hong Kong's autonomy in ways both overt and subtle, and we consider that the White Paper constitutes further indication of that trend. This should have been more clearly acknowledged by the FCO in its statements on the White Paper and in the six-monthly reports.

The 31 August SCNPC decision on 2017 elections

50. On 31 August 2014, the Standing Committee of the National People's Congress (SCNPC) issued its decision on methods for electing the Chief Executive in 2017. It re-asserted that universal suffrage—allowing each individual to vote directly for his or her preferred candidate, choosing from a pre-determined list—would be introduced. It also, as expected, insisted on the role of a "broadly representative nominating committee", the composition and formation method of which would be "made in accordance with" that of the Election Committee that had selected the Chief Executive in 2012. The decision limited the number of candidates to two or three, each requiring the endorsement of more than half of all members of the nominating committee.[114] This provision represented a significant deviation from the 2012 arrangements, when a candidate required only 150 votes out of 1200 to gain official nomination. Due to this high threshold, any candidate advocating significant democratic reform would be unlikely to obtain enough support to stand for election, so long as the 2017 Election Committee retained the "pro-Beijing" majority of the 2012 Committee.

51. We received a considerable volume of evidence arguing that the SCNPC's decision was too restrictive and was not in line with how Beijing's 2007 promise of universal suffrage was generally understood in Hong Kong. Anson Chan's Hong Kong 2020 organisation said the decision gave Beijing "carte blanche to rig the outcome", while one former legislator called it "a travesty… not even a half-way house to universal suffrage."[115] Professor Simon Young and Democratic Party leader Emily Lau told us that the proposals were more conservative and restrictive than people in Hong Kong, including the Hong Kong government, had expected.[116] Many pro-democratic witnesses described Beijing's commitment to universal suffrage in Hong Kong as a "promise" that had been broken by the SCNPC's decision.[117]

52. We also received some evidence disagreeing with this point of view.[118] Those who took this stance asserted that the SCNPC decision was fully compliant with the letter of Article 45 of the Basic Law, which does stipulate a role for a "broadly representative nominating committee."[119] But, as Dr Tim Summers told us, the "broken promise" narrative was very strong in Hong Kong, and had developed quickly.[120] It was clear from this debate that the ambiguity built in to both the Joint Declaration and the Basic Law has facilitated the development of very divergent interpretations and expectations of the constitutional reform process in Hong Kong.

THE UK'S RESPONSE TO THE SCNPC DECISION

53. This divergence of expectations was also reflected in the evidence we received from British witnesses about the UK's position on the pace of constitutional reform. Lord Patten said that the pace of democratisation in Hong Kong to date had been slower than anyone in the UK had expected at the time of the handover.[121] Our predecessor Committees also repeatedly argued for a faster pace of democratic reform. In 1998, 2000 and 2006, they recommended that universal suffrage should be introduced in Hong Kong as soon as possible, and asked the FCO to urge the governments of Hong Kong and China to take significant steps toward that goal.[122] However, former FCO officials who had been involved in negotiating the Joint Declaration indicated that the UK Government had not envisaged that Hong Kong would necessarily enjoy a fully free and democratic political system 18 years after the handover.[123] Asked for his views on the pace of reform, the Minister of State told us that he thought the process of democratisation would be a "slow, tortuous path".[124]

54. On 4 September 2014, the FCO released a statement responding to the SCNPC decision, "welcoming" the commitment to universal suffrage. Although the statement recognised that the terms of the decision would "disappoint those who [were] arguing for a more open nomination process", it insisted that the detail of constitutional reform should be decided by the governments of Hong Kong and China, as well as the people of Hong Kong, in line with the Basic Law.[125] The statement said it was important that the people of Hong Kong have a "genuine choice and a real stake in the outcome" of the Chief Executive elections, but did not indicate whether the FCO considered the SCNPC decision to offer either genuine choice or a real stake for voters. By contrast, the US State Department used stronger language in expressing its views on the SCNPC's decision. US Assistant Secretary for East Asian and Pacific Affairs Daniel Russel told the Senate subcommittee on East Asian and Pacific Affairs that the US government had been "disappointed" with the 31 August decision, adding that the decision "could and should have gone much further" in allowing a more open nomination process.[126]

55. The vast majority of submissions we received criticised the perceived meekness of the UK's response to the SCNPC decision, and called on the UK to stand up to Beijing to support greater democratic reform in Hong Kong.[127] Human Rights Watch called the FCO's statement of 4 September "embarrassingly weak", saying it was "palpably obvious" that the decision did not offer genuine choice to the people of Hong Kong.[128]

56. We invited the Minister of State and FCO officials to clarify how they defined the terms "genuine choice", "real stake in the outcome" and "universal suffrage", but found their responses evasive.[129] The Minister told us that, in his view:

130

After several rounds of questioning Stephen Lillie, Director of Asia Pacific at the FCO, admitted that the FCO does consider the terms of the SCNPC decision to offer "genuine choice" to the people of Hong Kong.[131] In his foreword to the six-monthly report covering July to December 2014, the Foreign Secretary wrote that the parameters of the decision were "clearly more restrictive than many anticipated", but said he believes "that there remains space within them for a meaningful step forward for democracy."[132]

57. We agree with the FCO that the specific details of constitutional reform are for the governments of China and Hong Kong to decide together with the people of Hong Kong, but the UK can and should take a position on the overall pace and degree of democratic reform. We consider that the FCO has stopped some way short of expressing a clear view. Compared with previous selection methods for the Chief Executive, allowing every eligible Hong Kong citizen to cast a vote is an important step forward. We acknowledge that the precise meaning of the term "universal suffrage" is a matter for interpretation, and Article 45 of the Basic Law clearly states that the nominating committee must play a role in selecting candidates for election to the position of Chief Executive. But the people of Hong Kong cannot have confidence in a nominating committee with such a limited and unrepresentative composition, especially when candidates must secure the support of over half its members. We do not consider that the terms of the 31 August SCNPC decision offer "genuine choice" in any meaningful sense of the phrase, nor do we consider the decision consistent with the principle that Hong Kong should enjoy a high degree of autonomy. If the FCO is content with the SCNPC decision, it should make its views plain and avoid misleading language.

Student protests and Occupy Central

58. On 22 September 2014, the Hong Kong Federation of Students (HKFS) launched a week-long boycott of classes to protest against the 31 August SCNPC decision on electoral reform. This protest gathered momentum so quickly that Occupy Central announced that it would launch its own planned demonstration on Friday 28 September, rather than on 1 October as originally planned. This immediately brought tens of thousands of people to the streets. Later that evening, riot police fired tear gas on the protesters in an attempt to disperse the crowds. The numbers of protesters continued to grow, reaching well over 100,000 during the first few days of October before beginning to dwindle.[133] By Monday 6 October the crowds had reduced enough to allow many schools and offices to re-open, although the campaign continued.

59. Throughout the rest of October and most of November, hundreds of demonstrators remained camped out in makeshift tent cities on several key thoroughfares on Hong Kong Island and in Mong Kok. Formal talks between the Hong Kong government and five HKFS leaders took place on 21 October, but were widely seen as unsuccessful. Although public support for the protests was initially high, polls suggested that by the end of November a majority of Hong Kong people wanted the campaign to end.[134] Several businesses and groups also won court injunctions requiring the demonstrators to move, although they refused to comply. From 26 November onwards, police began to clear out the major protest sites in line with the injunctions, beginning with Mong Kok. Hundreds of people were arrested over the following weeks—some more than once—although almost all were released without charge within the mandated 48-hour period. By the end of December all major protest sites had been cleared by the police, bringing the campaign to an end. However, there are likely to be more demonstrations in the coming months as debate over the electoral proposals continues. The first major rally since the end of the Occupy Campaign took place on 1 February, although turnout—estimated to have been between 8,000 and 13,000, depending on the source—was lower than organisers had anticipated.[135] One of the leaders of the HKFS, Yvonne Leung, told us that her organisation is likely to stage further protests when the electoral package is sent to LegCo for consideration (expected to take place in summer 2015).[136]

THE UK GOVERNMENT RESPONSE TO THE PROTESTS

60. The FCO issued a number of press releases and a written ministerial statement during the peak of the Occupy campaign in late September and early October, all of which contained the same messages, often repeated verbatim: that the FCO was monitoring the situation closely, that it was important to preserve the rights of Hong Kong people to demonstrate peacefully in accordance with the law, and that all parties should engage constructively in dialogue.[137] The same statements about the protests, using identical language, were repeated in Parliament.[138] On 22 October, Richard Graham MP secured a Westminster Hall debate on Hong Kong, during which many members expressed concern about the protests and the prospects for democratic reform. Mr Graham also asked the Minister of State to explain why it took so long for the Government to produce a written ministerial statement setting out the Government's position on the protests.[139] In response, Mr Swire said that the UK had been "addressing this all year", and added that the UK was monitoring events closely and was "raising Hong Kong at senior levels through official channels in Beijing, Hong Kong and London".[140]Mr Swire delivered the same message again on 2 December, in response to an Emergency Debate on China's decision to bar us from entering Hong Kong in connection with this inquiry.[141]

61. Many of our witnesses were highly critical of the UK Government's response to the Occupy protests, saying that it had not gone far enough in supporting the demonstrators. Lord Patten said that the Government's failure to give the protesters the "support they think they deserve" had potentially made the debate more difficult to resolve, by making the protesters feel as though they were backed into a corner.[142] Democratic Party leader Emily Lau, Civic Party leader Alan Leung, activist Avery Ng and student leader Yvonne Leung all told us they felt the UK Government had a special responsibility to speak up for democracy in Hong Kong, but said it was not honouring that responsibility.[143] This message was also delivered by two representatives of a small group of student demonstrators who camped in front of the UK Consulate-General in Hong Kong throughout the protests, asking the UK to take stronger action to support the pro-democratic movement.[144]

62. This was not, however, a unanimous view. Some academics and business leaders said that the UK Government had largely struck the correct balance in responding to the protests, particularly given Beijing's sensitivity toward what it perceives as interference by a former colonial power.[145] Dr Tim Summers, for example, emphasised that it was not the UK's place to become too involved in local debates so long as the Joint Declaration had not been breached.[146] Duncan Innes-Ker, an analyst at the Economist Intelligence Unit, and Lord Powell of Bayswater, representing the Hong Kong Association, suggested that more vocal UK Government support for the protests would have little effect, and might make the Chinese government less rather than more inclined to offer compromises on the electoral process.[147] Professor Simon Young, a Hong Kong-based lawyer and academic, said that it was "probably wise not to say too much" in support of the protesters, given the Chinese government's allegations of foreign involvement in the demonstrations.[148] FCO officials implied that they had taken into account this consideration in formulating the FCO's response to the protests.[149] They also told us that the FCO was not prepared to support all of the protesters' demands, as some groups (including the Hong Kong Federation of Students) had called for the resignation of Chief Executive C Y Leung.[150]

63. The FCO and UK Government had to strike a careful tone in responding to the recent protest movement in Hong Kong, taking into account the potential unintended effects their statements might have had on a volatile situation. On the whole we consider the FCO's response to have been appropriate and well-balanced, and we especially welcome their support for the right of Hong Kong people to demonstrate peacefully. At the same time, we acknowledge that many of the demonstrators were disappointed by what they perceived as equivocal language and a lack of support from the UK.

Prospects for electoral reform in 2017 and thereafter

64. On 7 January 2015 the Hong Kong government announced the launch of a second round of public consultation on aspects of the 2017 electoral package. The consultation document included questions relating to the specific composition of the nominating committee, as well as a proposal for the introduction of a two-stage process for nominating candidates for Chief Executive (potentially with a lower threshold of entry than that needed for the final nomination phase). The Minister of State and FCO officials were positive about the potential for this round of consultation to produce a compromise solution that would "improve" the level of democracy on offer for the 2017 election.[151] The FCO reiterated this stance in the six-monthly report covering July to December 2014, stating that it continued to take the view that there was scope within the parameters of the SCNPC decision "for a consensus that will deliver a meaningful advance for democracy in Hong Kong, consistent with the Basic Law and the long-standing wishes of the Hong Kong people."[152]

65. In our judgment, this confidence may be misplaced. Professor Simon Young told us in December that he thought there was still scope to develop arrangements consistent with the idea of universal suffrage, but said his position was probably a minority view and would require both sides to be willing to compromise.[153] Emily Lau, leader of the Democratic Party in LegCo, meanwhile said that her party intended to boycott the consultation as they believed it would not lead to anything meaningful.[154] The consultation document published by the Hong Kong government was considered quite conservative, signalling the authorities' unwillingness to consider significant reforms that might win over the "pan-democrats".[155] The document emphasised that any reforms to the nominating committee would need to obtain widespread support from the mostly "pro-Beijing" sub-sectors already represented, indicating that proposals to make the committee more representative could be rejected due to lack of support from those invested in the maintenance of the status quo.[156] A poll of 1,018 people conducted by the University of Hong Kong in January 2015 showed that 35% were unhappy with the proposals laid out in the document (versus 22% who said they were satisfied). 43% of respondents said that the proposals would mean "fake universal suffrage."[157] Another poll commissioned by the South China Morning Post, the largest English-language newspaper in Hong Kong, showed approximately 46% of the 907 respondents wanting LegCo to reject the electoral proposal.[158] At the time of this report's consideration, there is considerable doubt as to whether the proposals will be passed.

66. The FCO has not made any official statement urging LegCo to pass the electoral package for 2017. However, the Minister of State seemed to take this position in evidence to the Committee. He said:

status quo

159

Later, the Minister added that many "pan-democratic" legislators privately recognise "that something is better than nothing", and that although the proposals "may not be pure or perfect", they did represent "a genuine improvement on the status quo."[160] This statement was reported in the South China Morning Post as a clear endorsement of the reform proposals.[161] In his foreword to the six-monthly report for July to December 2014, the Foreign Secretary similarly appeared to imply that the "pan-democrats" should accept the electoral package, stating:

162

The FCO repeatedly emphasised to us that it viewed the electoral package for 2017 as part of a longer-term process toward greater democracy rather than as a "final destination",[163] although neither the Hong Kong government nor Beijing have thus far outlined concrete plans to implement further reform after 2020.[164] The Minister also suggested that the UK was bringing different groups together in the Consulate-General in Hong Kong to discuss political and constitutional issues.[165] He later added that the UK was good at "bringing people together to get them to discuss matters" and that this was a role the UK continued to play.[166]

67. We were surprised that the Minister of State said the UK was bringing different sides of Hong Kong's constitutional debate together in the Consulate-General. If this is the case, in its response to this report the FCO should list the groups or individuals who attended these discussions and explain why it considers this to be an advisable role for the UK to play. We broadly agree with the Minister of State's view that even gradual progress toward more democratic electoral arrangements is preferable to the status quo. Should the current electoral proposals stand, we recommend that the FCO press the authorities in Hong Kong and Beijing to lay out specific proposals and a timetable for further democratic reform after 2017 and 2020.

90 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 3.4 Back

91 The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, Chapter IV, Article 45 Back

92 The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, Annex I, Article 1 Back

93 In 2012, there were a total of 38 sub-sectors. Each has its own method for nominating and selecting members of the Election Committee. Many, although not all, sub-sectors correspond to the "functional constituencies" that currently elect half of the members of LegCo (the other half are currently elected directly in geographical constituencies). Back

94 Electoral Affairs Commission of the Hong Kong Special Administrative Region, "Report on the 2012 Chief Executive Election," Appendix II: 2011 Election Committee subsector elections - breakdown of voters for Election Committee subsectors, 8 June 2012, p. 108 Back

95 Hong Kong Special Administrative Region Government, "Hong Kong: the facts - Population factsheet", accessed 10 February 2015 Back

96 Electoral Affairs Commission of the Hong Kong Special Administrative Region, "Report on the 2012 Chief Executive Election," Appendix II: 2011 Election Committee subsector elections - breakdown of voters for Election Committee subsectors, 8 June 2012, p. 108 Back

97 Jacky Wong, "How Hong Kong's Chief Executive is elected", Wall Street Journal, 17 October 2014 Back

98 Asia Public Affairs and Social Services Society, University of Manchester (HNG 0549) paras 20-21 and 25-26; Margaret Ng (HNG 0477) para 12; Tony Cheung, "Hong Kong's candidate nominating system out of balance, says Beijing scholar", South China Morning Post, 31 August 2014 Back

99 Decision of the Standing Committee of the National people's Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region and for Forming the legislative Council of the Hong Kong Special Administrative Region in the Year 2012 and on Issues Relating to Universal Suffrage, 29 December 2007 Back

100 Oral evidence taken on 16 July 2014, HC (2014 - 15) 575, Q3 [The Hon Anson Chan] Back

101 State Council of the People's Republic of China, "The Practice of the "One Country, Two Systems" Policy in the Hong Kong Special Administrative Region", Beijing, June 2014 Back