Two British judges sitting on Hong Kong’s highest court have resigned, citing the national security law and an erosion of political freedom.

Lord Robert Reed and Lord Patrick Hodge.
Lord Robert Reed (left) and Lord Patrick Hodge. Photo: UK Supreme court.

Court of Final Appeal judges Right Honourable Lord Robert Reed and the Right Honourable Lord Patrick Hodge submitted their resignations on Wednesday with immediate effect.

“The courts in Hong Kong continue to be internationally respected for their commitment to the rule of law,” a statement from Lord Reed, who is president of the UK Supreme Court, said.

“Nevertheless, I have concluded, in agreement with the government, that the judges of the Supreme Court cannot continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression, to which the Justices of the Supreme Court are deeply committed.”

basic law
Basic Law. File photo: GovHK.

The resignations come months after Lord Reed said he was “closely monitoring and assessing developments in Hong Kong” with the UK government. Last August, he said their shared assessment was that Hong Kong’s judiciary “continues to act largely independently of government and their decisions continue to be consistent with the rule of law.”

‘Important contribution’

Since Hong Kong’s return to China in 1997, the UK has provided two serving judges from the House of Lords – the upper house of the UK parliament – to the city’s top court.

Lord Reed, who was appointed a Justice of the UK’s Supreme Court in 2011 before becoming president in 2020, has served as a non-permanent judge at the Court of Final Appeal since 2017.

Lord Hodge was appointed a justice of the UK’s Supreme Court in 2013 and assumed the position of deputy president in 2018. He began serving in Hong Kong’s Court of Final Appeal last year.

British judges have made an “important contribution” to cases concerned with protests and free speech, according to a July 2020 statement from the UK Supreme Court. Reed was among the judges who dismissed former pro-democracy lawmaker “Long Hair” Leung Kwok-hung’s appeal over snatching an official’s files at the Legislative Council in 2016.

Andrew Cheung, Chief Justice of the Court of Final Appeal, said during the opening of the legal year in January that the presence of foreign judges indicated confidence in Hong Kong’s judiciary.

Chief Justice Andrew Cheung meeting the press during after the opening ceremony of the legal year in 2022.
Chief Justice Andrew Cheung meeting the press during after the opening ceremony of the legal year in 2022. Photo: Hillary Leung/HKFP

After his speech, he told reporters: “I do not agree that the foreign judges, foreign NPJs are losing confidence in judicial independence in Hong Kong. If you look at these objective facts, I would say rather the reverse.”

Excluding Lord Reed and Lord Hodge, the Court of Final Appeal currently has 14 non-permanent judges. Four are from Hong Kong, while ten are overseas judges from common law jurisdictions Australia and Canada.

‘Systematic erosion of liberty and democracy’

Britain’s Deputy Prime Minister Dominic Raab, Foreign Secretary Liz Truss and Reed released a joint statement supporting the judges’ withdrawal, saying that China’s central government has used the national security law to undermine rights and freedoms in the city.

“We have seen a systematic erosion of liberty and democracy in Hong Kong. Since the National Security Law was imposed, authorities have cracked down on free speech, the free press and free association,” Truss said.

“The situation has reached a tipping point where it is no longer tenable for British judges to sit on Hong Kong’s leading court, and would risk legitimising oppression,” she said, adding, “I welcome and wholeheartedly support the decision to withdraw British judges from the court.”

The national security law was passed by Beijing’s top legislature in 2020, a response to large-scale protests and unrest that broke out in Hong Kong the year before.

Scores of pro-democracy activists have been arrested under the law. Civil society groups and independent news outlets have also disbanded, citing the legislation that critics say has been weaponised to suppress opposition in the city. Authorities, however, maintain that the law has restored order in Hong Kong.

Raab, who is also Justice Secretary and Lord Chancellor, said that “the situation in Hong Kong… has shifted too far from the freedoms that we hold dear – making free expression and honest critique of the state a criminal offence.”

He thanked British judges “for being a bastion of international rule of law in Hong Kong over the past 25 years.”

Brian Davidson, the British Consul-General to Hong Kong and Macao, said British judges have played a “key role” in supporting judiciary independence in the city.

“But following the introduction of the national security law, established rights and freedoms are now sadly deteriorating, meaning Her Majesty’s Government can no longer endorse serving judges on the Court of Final Appeal here,” Davidson said.

‘Deep regret’

The Law Society of Hong Kong called the resignations a “matter of deep regret,” appealing to the UK judges to “reverse course” and for other non-permanent judges to continue serving the court.

“Unfair and unfounded accusations… against the judicial system of Hong Kong have no place in the discussion about the rule of law and judicial independence,” Chan Chak-ming, president of the Law Society, wrote in a statement.

“The rule of law and judicial independence in HK are being upheld,” the statement continued, saying they were “guaranteed under the Basic Law” and that “the process of the court in
Hong Kong is open and transparent and due process always observed.”

Correction 31/3: An earlier version of this article wrongly stated that Lord Hodge heard two national security cases last November. He in fact heard two non-security law cases that month.

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Hillary Leung is a journalist at Hong Kong Free Press, where she reports on local politics and social issues, and assists with editing. Since joining in late 2021, she has covered the Covid-19 pandemic, political court cases including the 47 democrats national security trial, and challenges faced by minority communities.

Born and raised in Hong Kong, Hillary completed her undergraduate degree in journalism and sociology at the University of Hong Kong. She worked at TIME Magazine in 2019, where she wrote about Asia and overnight US news before turning her focus to the protests that began that summer. At Coconuts Hong Kong, she covered general news and wrote features, including about a Black Lives Matter march that drew controversy amid the local pro-democracy movement and two sisters who were born to a domestic worker and lived undocumented for 30 years in Hong Kong.