Hong Kong: Court of Final Appeal (Hansard, 28 June 1995)

§ The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey)
My Lords, this is a good agreement, entirely in accordance with the Sino-British Joint Declaration and the Basic Law. It provides for a proper Court of Final Appeal to he ready to start work on 1st July 1997. It also safeguards the rule of law in Hong Kong through 1997. We now look to Hong Kong's Legislative Council to support it.

§ Lord Willoughby de Broke
My Lords, I thank my noble friend the Minister for that very encouraging reply. Can she elaborate a little, in particular as regards the liability of the future government of the Hong Kong special autonomous region? Will that government he accountable at law, hearing in mind that Article 19 of the Basic Law which refers to acts of state will he included in the court of appeal Bill? Can she say whether that provision could possibly he interpreted as making that future government immune from prosecution by their members?

§ Baroness Chalker of Wallasey
My Lords, the Basic Law does not give either the Hong Kong Government or the Chinese Government the power to avoid the court's jurisdiction at will. It would he for the courts of the Hong Kong special administrative region to decide what is or is not an act of state.

§ Baroness Blackstone
My Lords, will the Minister confirm that the latest agreement is that the court will only he set up after 1997, despite the agreement in the joint liaison group as recently as 1991 that it would he set up before 1997's surrender? What has happened to the policy that it was critical that the Court of Final Appeal he set up and running and an established part of Hong Kong's legal system before 1997?

§ Baroness Chalker of Wallasey
My Lords, it is important to understand that the aim of the 1991 agreement was to prevent a judicial vacuum in Hong Kong in 1997 by establishing a proper Court of Final Appeal before 1st July 1997 in a way that would enable it to continue after 1997. As we know, hack in 1991, the Legislative Council voted against implementing the 1991 agreement. That is why the Hong Kong Government were unable to set up the court in 1992 or 1993 as originally planned. But by this year, China no longer believed that it was feasible to set up the court before 1997. So we were faced with the need to find a way to ensure the continuity of law in Hong Kong and to secure the principles at the heart of the 1991 agreement. The 1995 agreement does just that.
The LegCo members have a clear choice. They can either pass the Bill and ensure that a proper Court of Final Appeal is set up on 1st July 1997, or they can reject it and ensure that Hong Kong has a judicial vacuum in 1997 until the special administrative region government sets up 753 a Court of Final Appeal at a time and on a basis about which there could be no certainty. I hope and I am sure that the whole House hopes that LegCo will support the Bill unamended and that enactment in the present Session will be in the very best interests of Hong Kong.

§ Baroness Blackstone
My Lords, I am sorry to press the Minister, but is it the UK Government's view that it was not feasible to set up the Court of Final Appeal before July 1997?

§ Baroness Chalker of Wallasey
My Lords, I have already answered that question. Perhaps the noble Baroness was not listening. Will she please listen? It is no secret whatever that the United Kingdom Government would have preferred to set up the court before the handover, but that China no longer believed it feasible to set up the court before 1997. So we had to find a way to ensure the continuity of law in Hong Kong, to secure the principles at the heart of the 1991 agreement. The agreement does just that. I am sure that when the noble Baroness reads what I have said in answer to her questions, she will see the sense of my remarks.

§ Lord Avebury
My Lords, would the noble Baroness at least acknowledge that there is a substantial body of opinion among the elected members of the Legislative Council which holds that the agreement is not consistent with the Joint Declaration and the Basic Law? Will she accept that the particular quarrel that they have with the agreement is that acts of state are to be defined by the Chinese Government, thereby giving that government immunity from proceedings in the courts of Hong Kong over a wide range of public activities?

§ Baroness Chalker of Wallasey
My Lords, of course I know what Mr. Martin Lee has said. But that is not the case. The position is exactly as I have just explained to the noble Baroness.

§ Baroness Dunn
My Lords, I have come from Hong Kong. Will the Minister accept that the agreement on the Court of Final Appeal and the Court of Final Appeal Bill has been warmly welcomed by the Chief Justice, the local and international business community, our major trading partners and, through an independent poll, the majority of Hong Kong people? People see it as a sensible and workable arrangement and feel that a major uncertainty about the continuity of Hong Kong's judicial system has been removed.

§ Baroness Chalker of Wallasey
My Lords, I am indebted to the noble Baroness for those words. She knows better than any of us the great difficulty in which Hong Kong was placed by the refusal of China to implement the 1991 agreement. I am relieved and pleased to see that we now have an agreement which will be in the interests of all the people of Hong Kong and to have her confirmation of that today in your Lordships' House.

§ Lord Elton
My Lords, is my noble friend aware that many of us, in the past, have had some reservations about the conduct of policy in the area, principally because it could leave the people of Hong Kong exposed without an independent Court of Final Appeal? Will she accept that 754 we are very glad indeed to have the opportunity to congratulate the Government on having pulled off that agreement in very difficult circumstances?

§ Baroness Chalker of Wallasey
My Lords, I am indebted to my noble friend. From my discussions in Hong Kong just three weeks ago, I can say that the agreement is good news for Hong Kong and for the rule of law. It is also to be hoped that LegCo will understand that it is the best way of resolving the matter; but it is of course up to LegCo. I repeat what I said earlier in answer to the noble Baroness—we hope that LegCo will support the Bill unamended, because it is in the interests of all Hong Kong people. Amendment will be inconsistent with our international obligations and therefore unacceptable. We do not want a judicial vacuum. We want this matter cleared up for the sake of all the people of Hong Kong.