Opinion | FS James Cleverly: Support British judges not criminal fugitives

By Grenville Cross

In 2022, when James Cleverly was appointed the United Kingdom's foreign secretary, some thought he could master his portfolio. Although his two predecessors, Dominic Raab and Liz Truss, had fallen down on the job, there were hopes he was cut from better cloth. Whereas Raab was removed from office after he bungled the Afghanistan crisis in 2021, Truss' blunders are legendary. They include her announcement in 2022 that two Russian regions were not Russian, and informing Britons, in violation of British law, they could "absolutely" go to fight in Ukraine if they wanted.

Anybody hoping for a classier act from Cleverly will, however, have been disappointed. On July 3, when it was announced that Hong Kong authorities had issued arrest warrants for eight individuals living abroad suspected of national security violations, his knee-jerk reaction was disappointing. Although some of the suspects, three of whom are UK-based, have sought to undermine the rule of law in Hong Kong by intimidating its judges (and prosecutors), Cleverly rushed to their defense.

Some of the fugitives have openly campaigned for the Five Eyes governments to harm the Hong Kong judiciary by imposing punitive sanctions on its judges, which should be intolerable in any civilized society. Their call, which may be seen as an attempt to pervert the course of public justice, has, at least in part, been heeded. On May 11, the US Congressional-Executive Commission on China (CECC), having received testimony from two of them, Kevin Yam Kin-fung and Anna Kwok Fung-yee, requested US President Joe Biden to sanction 29 of Hong Kong's judges, including at least three British nationals.

If Cleverly was a believer in the rule of law, his duty was clear. He should have denounced those in the UK and elsewhere who are threatening the Hong Kong judiciary, condemned the CECC for trying to harm British nationals, and supported the Police Force's efforts to bring the culprits to justice.

Instead of which, Cleverly, in response to the arrest warrants, chose to stand foursquare with those responsible for the intimidation, and not with its victims. Thus, on July 3, he said, "We will not tolerate any attempts by China to intimidate and silence individuals in the UK and overseas." In other words, he disregarded how the individuals in question have themselves been trying to harm Hong Kong's officials, including its judges.

What makes Cleverly's response especially reprehensible is that some of the judges who have been threatened, or are liable to be threatened in future, are, as full British nationals, entitled to the protection of the British state. Let history record that, when they needed him, Cleverly failed to support his fellow countrymen, notwithstanding their exemplary contributions to upholding the rule of law in Hong Kong in courts at all levels.

In the Hong Kong Court of Final Appeal (HKCFA), six eminent British jurists, previously members of the UK Supreme Court, currently serve as nonpermanent judges (lords Hoffmann, Phillips, Neuberger, Walker, Collins and Sumption). There are, moreover, other Hong Kong-based British passport holders serving in the courts at various levels, who are making a sterling contribution to the city's jurisprudence. Although the exact numbers are unknown (only the chief justice of the HKCFA and the chief judge of the High Court are required by the Basic Law to be Chinese nationals), the number is certainly not insignificant, and Britons serve in the HKCFA and the High Court, and probably also in the lower courts.

Although the UK Foreign Office's responsibilities include "supporting British nationals around the world", Cleverly is clearly not discharging his mandate insofar as the British judges in Hong Kong are concerned. When, on July 3, his deputy, Anne-Marie Trevelyan, was asked in Parliament about the situation of the eight criminal suspects, she said, "We will do all we can to ensure their safety," which wholly missed the point.

Instead of focusing on the safety of British judges in Hong Kong, Cleverly and Trevelyan seem more concerned about the welfare of those who have threatened them, which must be a new low for British foreign policy.

If, therefore, China now concludes that Cleverly's failure to protect British judges from potential harm over their service in Hong Kong is indicative of his desire (and that of his Five Eyes partners) to destabilize the city, he should not be surprised, and he will have only himself to blame.

As if this was not sufficiently worrying, it also emerged on July 3 that Cleverly was ignorant of the terms of the Sino-British Joint Declaration (1984), which he referenced. His pronouncements strongly suggested he had not read it, or, if he had, had not understood it. He declared, "We strongly object to the national security law that China imposed on Hong Kong, including its extraterritorial reach, in breach of the legally binding Sino-British Joint Declaration."

This showed he was wholly unaware that the Joint Declaration said nothing whatsoever about national security legislation, and nor could it have. In China, as in the UK, national security is entirely a matter for the country itself, and this is why it formed no part of the Joint Declaration. It stated unequivocally that defense affairs (of which national security is an integral part), together with foreign affairs, "are the responsibilities of the Central People's Government", and this could not be clearer.

Before Cleverly blunders again, the UK consul general in Hong Kong, Brian Davidson, who must be apoplectic over the foreign secretary's bungling, will hopefully put him straight. If he does not, Cleverly risks going down in history as the foreign secretary who was even worse than Raab and Truss. If that prospect does not bring him to his senses, he truly is a lost cause.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The article is first published in China Daily.