5Hong Kong
The standing and importance of the Joint Declaration
78.On 19 December 1984, the governments of the UK and the People’s Republic of China signed the Sino-British Joint Declaration. The Joint Declaration paved the way for the handover of Hong Kong to Chinese sovereignty on 1 July 1997, establishing principles under which Hong Kong would be governed as a Special Administrative Region (SAR) of China. Although the Joint Declaration stated that Hong Kong SAR would be “directly under the authority of the Central People’s Government” of China, it also established that the SAR would “enjoy a high degree of autonomy, except in foreign and defence affairs” and be “vested with executive, legislative and independent judicial power”. The treaty declared that the social and economic systems of Hong Kong would remain unchanged for 50 years following the handover, as would its existing rights, freedoms and “life-style”. Hong Kong would retain its own currency, and autonomy over customs, taxation, and the maintenance of cultural and economic relations with third states and authorities. The concept of Hong Kong being part of China while preserving its autonomy is known as “One Country, Two Systems”. The provisions of the Joint Declaration are enshrined in Hong Kong’s Basic Law, and since 1997 the UK has monitored its implementation via Six-Monthly Reports presented to Parliament by the Foreign Secretary.
79.The FCO said in its written submission to this inquiry that the Joint Declaration “remains as valid today as it did when it was signed over thirty years ago”, and that “[i]n response to challenges from some Chinese officials about the status of the Joint Declaration, we have been unequivocal about our position both publicly and privately with the Chinese Government”.159 One such challenge came at the time of the 20th anniversary of the Hong Kong handover in response to remarks by then-Foreign Secretary Boris Johnson. A Chinese Foreign Ministry spokesman said “the arrangements during the transitional period prescribed in the Sino-British Joint Declaration are now history and of no practical significance, nor are they binding on the Chinese central government’s administration of the Hong Kong SAR.”160 A Chinese Foreign Ministry official a week later reportedly clarified that China had “never denied the fact that the joint declaration is a treaty”, and said the joint declaration is “not without binding effect”.161
80.The Chinese government maintains that it continues to uphold “One Country, Two Systems” and the Basic Law. However, in response to the September 2018 Six-Monthly Report, the Chinese Ministry of Foreign Affairs commented:
It is ridiculous for the UK to pose itself as a supervisor and make irresponsible remarks on Hong Kong affairs. The Chinese side can by no means accept that. China has stressed many times that Hong Kong affairs fall within China’s domestic affairs, which brook no interference from any foreign country. The so-called “responsibility” that the British side claimed for Hong Kong does not exist. We are strongly dissatisfied with and firmly opposed to the British government regularly issuing the so-called biannual report on Hong Kong and making presumptuous remarks on Hong Kong affairs.162
81.We asked witnesses about the standing of the Joint Declaration. Lord Patten, the last British Governor of Hong Kong, told us “One Country, Two Systems” had been a “brilliant way” of resolving China and the UK’s political considerations in the lead-up to the handover. He said that in the first decade after the handover, China had “rowed back” on some commitments on democratic reform but that “Hong Kong still had a great sense of citizenship and still had a good balance between economic and political freedom.”163 Professor Sebastian Veg, of the School of Advanced Studies in the Social Sciences (EHESS), Paris, cautioned, however, that the letter of the Joint Declaration does not provide a firm basis for action in support of Hong Kong’s autonomy, because the assurances enshrined in the declaration “are very weak”, and because it does not specify a dispute-resolution mechanism.164
82.This caveat notwithstanding, we were told by a number of our interlocutors in Hong Kong that, even though the UK may have few legally binding means to enforce proper adherence to the Joint Declaration, it remains important for the UK to speak up, privately and publicly, in defence of the autonomy promised to Hong Kong. Back in London, Lord Patten told us that the implementation of the Joint Declaration, as a UN-registered treaty, is an important indicator of China’s attitude to the rules-based international system, and that “if you cannot believe that the Chinese will keep their word on the Joint Declaration and that particular treaty, why should you believe that they will keep their word on other things?”165 Hong Kong Watch made a similar comment.166 In oral evidence, the Minister emphasised that the Joint Declaration is a “legally binding treaty … registered with the UN”, and said that the Government “take very seriously our duty to uphold the faithful implementation of that deal”.167
83.The UK also has responsibilities towards British citizens facing persecution, such as Lee Po, a Hong Kong-based bookseller who in 2015 “was ‘involuntarily removed’ to mainland China from Hong Kong without any due process under Hong Kong SAR law”.168
Hong Kong’s autonomy
84.Witnesses told us of concerns about Hong Kong’s autonomy. Professor Veg told us “I would not say that China has openly breached the text of the Joint Declaration or the Basic Law, but it has, as you say, watered down, tried to circumvent and tried to change the meaning of various commitments”.169 Specific concerns he raised included intervention from Beijing on the exercise of the rule of law in Hong Kong; the elaboration by Beijing of a concept of “comprehensive jurisdiction”; the banning of the Hong Kong National Party under the Societies Ordinance; and the use and adjudication of the Public Order Ordinance.170 Lord Patten told us that the Chinese government’s crackdown in Hong Kong mirrored Xi Jinping’s approach to governance on the mainland: “The United Front became more active, the Joint Liaison Office became more active and there was a general tightening of control over all those aspects of Hong Kong’s system … [T]he rule of law, free speech—all the freedoms we associate with pluralism.”171
85.Professor Tsang told us that the people of Hong Kong did not have confidence in its autonomy being maintained, with more people, particularly younger people, looking to emigrate from Hong Kong that at any time since 1997.172 This is the result of a tightening of control which Hong Kong Watch told us was “breaking the Basic Law in word and spirit and thus violat[ing] the Sino-British Joint Declaration”.173 Human Rights Watch told us that civil liberties in Hong Kong “are increasingly being undermined by the growing interference of the central government”, and “[o]pposition political parties and their supporters [are facing] greater harassment from authorities”.174 The Hong Kong Civil Hub told us that the Chinese government is using Hong Kong as a “testing ground” for what it calls China’s “sharp power”, using different tools to “pressurise, neutralise, weaken or silence any constraining power [on Chinese Communist rule] that is still active in Hong Kong”.175
86.In the Government’s most recent Six-Monthly Report on Hong Kong, the Foreign Secretary concluded that “most provisions of the Joint Declaration are being implemented faithfully, and that ‘One Country, Two Systems’ generally continues to function well”. He was concerned, however, “about continued pressure on Hong Kong’s high degree of autonomy and on the rights and freedoms guaranteed by the Joint Declaration and enshrined in the Basic Law.176 He highlighted in particular the rejection of pro-democracy activist Agnes Chow’s nomination for a Legislative Council by-election, a ruling of the High Court that said that Returning Officers have substantive powers to block prospective candidates if they are believed not to be sincere in their pledge to uphold the Basic Law; the imposition of a custodial sentence on two former pro-democracy legislators; and growing concern about freedom of expression.177 The Joint Committee on Human Rights’s recent inquiry into human rights protections in international agreements also received several submissions stating concerns about the degree of protection of human rights offered by the Joint Declaration and about the adequacy of enforcement of the Joint Declaration.178
China’s central government and Hong Kong’s rule of law
87.Among nearly all the people we spoke to in Hong Kong, there was agreement that confidence in the rule of law is essential to Hong Kong’s future as a free society and dynamic economy. Hong Kong’s judges are appointed by the Chief Executive based on recommendations from a panel comprising the Justice Secretary, current judges and lawyers, and members of the public. This, combined with the use of common law in the British tradition, as distinct from the civil law of mainland China, has traditionally given the judiciary considerable independence from Beijing. Hong Kong also appoints foreign judges, including British judges (most recently Baroness Hale), to sit on its Court of Final Appeal. However, the Standing Committee of the Chinese National People’s Congress has the power to interpret Hong Kong’s Basic Law, and the Hong Kong judiciary must take its interpretations into account. There have only been five such interpretations issued since the handover.
88.In evidence to this inquiry, Professor Veg, Hong Kong Watch and the Hong Kong Civil Hub drew our attention to an interpretation of the Basic Law by the NPC Standing Committee in November 2016, which they considered exceptional. The case surrounded the invalidation of the oaths of office of two pro-democracy lawmakers, who had modified their oaths during the swearing-in ceremony as a sign of dissent towards Beijing. When their case was taken to judicial review in Hong Kong, the Standing Committee issued an interpretation of Article 104 of the Basic Law, specifying the requirements that had to be met for an oath to be valid.179 In terms of the rule of law, the point at issue in this matter is not the specific question of whether a modified oath is valid. Lord Patten told us that, on being asked about the swearing-in controversy, he had observed: “Well, you couldn’t do it in the House of Commons, so why am I supposed to support it in Hong Kong?”180 Instead, the particular concern about this interpretation was the manner in which it had been made. Professor Veg emphasised that this was only the second time that an interpretation had been issued without being solicited by a Hong Kong court, and the first time that one had been issued during an ongoing trial.181 He explained the significance: “Basically, something that was conceived as a supreme court mechanism is stepping in to preclude the outcome of a court case that is ongoing at a lower level. That is something that we can safely say is not within the spirit of the Basic Law, although it is not against the letter of the Basic Law.182
89.Since the 2016 interpretation, a number of issues have given rise to concern about the potential for intervention by the Chinese government in the rule of law in Hong Kong, including several ongoing cases and disputes relating to candidates’ eligibility for office; the possible enacting of new national security laws; a legal dispute over the co-location of Chinese officials at a new high-speed rail terminus; and the bringing forward of legislation for extradition, including to the Chinese mainland. In the 2019 World Justice Project Rule of Law Index, Hong Kong was ranked 16th out of 126 countries surveyed, unchanged from 2018.183 The Minister told us that he had raised concerns about the rule of law with Hong Kong Chief Secretary Matthew Cheung during a visit there in November 2018. However, he assessed that “[d]espite the recent challenges, I believe that the rule of law remains robust”.184
90.For many observers, confidence in the current operation of the rule of law is not matched by confidence in its future. As the FCO noted in its Six-Monthly Report, a Reuters article in March 2018 carried anonymous quotes from Hong Kong judges who believed that interpretations from the Standing Committee were likely to restrict their freedom of action. One judge reportedly said “There is a marked climate of unease among my peers” that “wasn’t there a few years ago”.185 In our conversations in Hong Kong, we gained a similar impression: informed interlocutors expressed confidence in the current state of the rule of law, but expressed a growing fear about its future.
Hong Kong independence activists and the SAR’s response
91.A small number of pro-democracy political leaders and activists support independence for Hong Kong. The Hong Kong government stated in March 2016 that “Any suggestion that Hong Kong should be independent or any movement to advocate such ‘independence’ is against the Basic Law, and will undermine the stability and prosperity of Hong Kong and impair the interest of the general public”.186 In August 2016, Hong Kong’s first major pro-independence rally was held, organised by the Hong Kong National Party (HKNP). Following the rally, a Chinese central government spokesperson was reported as saying that advocating Hong Kong independence is “firmly opposed by all Chinese people”, and “a serious violation of the country’s constitution, Hong Kong’s Basic Law and the relevant existing laws”.187
92.On 24 September 2018, the Hong Kong Government announced that the HKNP was to be banned under the Societies Ordinance, citing a threat to national security.188 The FCO had previously told us in its written submission that the Government “has made clear that we do not see independence as a realistic option for Hong Kong and that ‘One Country, Two Systems’ is the best system and we hope it can continue long into the future.”189 The Foreign Secretary told us that the banning of the HKNP “gives rise to concerns about the rights and freedoms protected by the Joint Declaration”, but was not a breach of the Joint Declaration itself. However, he said the Government “[does] not accept the argument that it is “unconstitutional” to express support for, or advocate, changing the constitutional order”, and noted that the Hong Kong people’s freedom of expression is protected by the Basic Law, the Hong Kong Bill of Rights, the Joint Declaration and the International Covenant on Civil and Political Rights. The Foreign Secretary said the Government has raised concerns over this matter with “senior members” of the Hong Kong government, including the Chief Secretary.190
93.In October 2018, the Hong Kong Government refused a visa renewal for the Financial Times’ Asia editor Victor Mallet, a decision seen as being motivated by Mr Mallet’s chairing of a discussion meeting with HKNP leader Andy Chan in August.191 The Foreign Secretary told us that he had publicly called on the Hong Kong authorities to reconsider their decision; that the UK Consul General had sought an explanation for the refusal; and that Mark Field visited Hong Kong in November and raised the UK’s concerns with Chief Secretary Matthew Cheung, noting that the decision risked undermining business confidence.192 The American Chamber of Commerce in Hong Kong and the British Chamber both expressed concerns about the decision.193
94.The Sino-British Joint Declaration on Hong Kong is a legally binding international treaty registered at the United Nations. Its validity and implementation are of deep importance both to UK national interests and to the health of the rules-based international system. China’s adherence to the letter and spirit of the Joint Declaration is a key test of the sincerity of its commitment to global governance. We are therefore deeply concerned by the evidence that Hong Kong’s autonomy is at risk, especially in the area of the rule of law, which is the lifeblood of Hong Kong’s future as a vibrant economy and society.
95.The Chinese government, the UK Government and witnesses to this inquiry have reaffirmed the importance of “One Country, Two Systems”. But we fear that Hong Kong is in reality moving towards “One Country, One and a Half Systems”. We also believe that the Chinese government’s approach to Hong Kong is moving closer to “One Country, One System” than it is to maintaining its treaty commitments under the Joint Declaration.
96.The apparent targeting by the Hong Kong authorities not only of independence advocates but journalists who give them a hearing, and the use of the Societies Ordinance to ban the Hong Kong National Party, is a matter of deep concern. We believe in the principle of One Country, Two Systems, and the UK Government has the right to say that independence is not a realistic option for Hong Kong. But citizens of a free society have the right to express their views freely. If the Hong Kong authorities’ approach to the independence movement were to be replicated more broadly, this would be a very grave threat to the autonomy promised to Hong Kong under the Joint Declaration.
97.We support the FCO’s efforts, recognising the UK’s commitments under international law, in drawing attention to threats to Hong Kong’s autonomy, including via the Six-Monthly Reports to Parliament. We urge the Government to continue to raise these concerns both publicly and privately with the Hong Kong authorities. The Government should commit to including the topic of Hong Kong on the agenda for every Ministerial visit to China—whichever Department the Minister represents—and for every Ministerial-level Chinese visit to the UK.
160 Foreign Ministry Spokesperson Lu Kang’s Regular Press Conference on June 30, 2017, Ministry of Foreign Affairs of the People’s Republic of China
161 Joyce Ng, Beijing says Sino-British treaty on Hong Kong handover still binding but does not allow UK to interfere, South China Morning Post, 8 July 2017 .
162 Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on September 7, 2018, Ministry of Foreign Affairs of the People’s Republic of China
176 Six-Monthly Report on Hong Kong: 1 January to 30 June 2018, Deposited in Parliament by the Secretary of State for Foreign and Commonwealth Affairs, September 2018
177 Six-Monthly Report on Hong Kong: 1 January to 30 June 2018, Deposited in Parliament by the Secretary of State for Foreign and Commonwealth Affairs, September 2018
178 Joint Committee on Human Rights, Human Rights Protections in International Agreements, Seventeenth Report of Session 2017–19, HC 1833, 12 March 2019, paragraphs 71–75
179 Interpretation of Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China by the Standing Committee of the National People’s Congress (Adopted by the Standing Committee of the Twelfth National People’s Congress at its Twenty-fourth Session on 7 November 2016)
182 See Q129. In a speech to the Foreign Correspondents’ Association of Hong Kong in 2018, Philip Dykes SC, Head of the Hong Kong Bar Association, reflected: “The interpretation was, in my view, a way of securing a preferred outcome with no risk of a possible embarrassing divergence of views from a judge. The real risk to Hong Kong now is that individuals and bodies will make clear their preferred outcome in legal matters involving the Basic Law in the confident expectation that the Standing Committee will chime in with a convenient interpretation that accords with that preference.” See https://www.youtube.com/watch?v=l6S3vDMbuSw
185 Hong Kong’s judges voice fears over China influence in judiciary, Reuters, 15 March 2018
186 Hong Kong SAR Government statement, 30 March 2016
187 Phila Siu, Beijing slams creation of Hong Kong independence party, saying it endangers national security, South China Morning Post, 30 March 2016. The Chinese Ambassador to the UK also wrote an op-ed for the Daily Telegraph arguing that no country would “permit indulgence towards attempts that openly betray and insult one’s own country and nation”. See The Daily Telegraph Publishes A Signed Article by Ambassador Liu Xiaoming Entitled “Oath-deniers are violating Hong Kong’s law”, Chinese Embassy in the UK, 21 November 2016
188 Gov’t orders group banned, Hong Kong SAR Government, 24 September 2018
190 Letter from the Foreign Secretary to the Chair, 4 December 2018
191 Financial Times journalist’s visa renewal denied by Hong Kong, Financial Times, 7 October 2018
192 Letter from the Foreign Secretary to the Chair, 4 December 2018
193 See American Chamber of Commerce in Hong Kong, AmCham statement regarding the non-renewal of FT Editor Victor Mallet’s visa, 8 October 2018 and British Chamber of Commerce in Hong Kong, Statement Regarding the Non-renewal of Victor Mallet’s Work Visa, 12 October 2018
Published: 4 April 2019