The news in early January 2021 that Hong Kong had hired a British Queen's Counsel to prosecute pro-democracy activists has brought with it a variety of reactions including outrage. Politicians in the United Kingdom have been among those who have challenged and criticised Barrister David Perry’s decision to act on behalf of the Hong Kong government in its prosecution of Jimmy Lai and eight other pro-democracy activists. Perry has previously acted and advised courts in Hong Kong.
The case against the activists revolves around anti-government protests in August 2019. The government has accused protestors of taking part in an illegal assembly and choosing to ignore police orders. The nine defendants are therefore jointly charged with two offences - arranging an unlawful assembly and deliberately taking part in an illegal assembly.
The crackdown on dissent in Hong Kong has worsened recently with China imposing a National Security Law on the territory. Implemented on 30 June 2020, the law tightens the restrictions on freedom of speech, freedom of the press, and also limits academic freedom. It is the vagueness and broadness of the law which has resulted in the backlash by human rights organisations and governments, as under its provisions almost anything can be labelled as a threat to national security.
Since its formation, it has resulted in dozens of arrests. For instance, in January 2021, over fifty people, predominantly pro-democracy lawyers, campaigners, and politicians were arrested in morning raids under this new legislation. In a joint statement, foreign ministers of the UK, Australia, the United States, and Canada stated their concern over the implementation of the National Security Law, which, they fear "is being used to eliminate dissent and opposing political views”. They called “on the Hong Kong and Chinese central authorities to respect the legally guaranteed rights and freedoms of the people of Hong Kong without fear of arrest and detention”.
The National Security Law raises questions about when the law stops being a tool for justice and becomes a tool of oppression for halting oppositional forces. Tom Tugendhhat, Chair of the Conservative China Research Group, voiced his concerns, stating “we are beyond the point when we can ignore the question and the implications for everyone working in the legal process”.
Moreover, with restrictions tightening, is it right that the English Bar continues to allow lawyers to practice in Hong Kong? Some argue it is morally incomprehensible to continue allowing British barristers to work in Hong Kong on an ad-hoc basis due to mounting human rights violations and the clampdown on free speech. On 5 February 2021 Hong Kong’s Education Bureau implemented new restrictions regarding how schools teach children about their responsibilities under the National Security Law and apply its key principles across a range of subjects from biology to general studies. Pro-Beijing politicians have targeted “liberal studies” in particular. Authorities were pressured to enforce these changes after widespread claims during the 2019 Hong Kong protests that teachers had radicalised their pupils,
The discussion of whether David Perry was right to take the case has become one chiefly focused on morals; however, it remains a vital question whether barristers can and should reject cases due to the moral values of their client. The history of the law and of the Bar has proven otherwise, as the duty to provide legal representation to any client, if availability and expertise permit, is central to the legal profession. As Barrister Marc Beaumont claimed, judges could not decide upon morality, as “if it was open to a barrister to do that, he would never act for a serial criminal, someone accused of a particularly horrific murder or series of murders, or even a clearly guilty and notorious war criminal such as one of the defendants at the Nuremberg Trials”.
This "cab rank" system ensures that barristers have to take work they are offered provided it is within their expertise and they are free to do so. Without the "cab rank" rule in the UK, those accused of the most violent crimes could struggle to gain legal representation. Consequently, defenders of David Perry’s decision to act on the case are claiming that as he is a part-time member of the Hong Kong Bar, he is required to take cases when he is asked to. This has been exemplified by his involvement in a variety of high-profile cases in Hong Kong in the past. Furthermore, barristers working overseas usually require permission from the High Court before they can practice on an ad-hoc basis.
On the other hand, Charlie Falconer, the British shadow attorney general has highlighted that he believes although the decision was “his choice... he has made the wrong choice”. Other critics have evidenced their disbelief, including Oliver Lewis, a barrister at Doughty Street Chambers, who claimed that Perry was “bringing the bar into disrepute” by taking a case which prosecuted offences “under a law that has been condemned by international human rights bodies”. However, only a week after taking the role of prosecutor, David Perry withdrew from prosecuting the pro-democracy activists due to the pressure and criticism that ensued after his decision to take the case was announced. Therefore, there is a point of contention over whether barristers can be blamed for taking cases which are deemed immoral to represent as the right to representation is central to the legal system upheld in the UK.
There has also been fierce debate concerning whether British judges should continue to serve on a non-permanent basis on the Hong Kong Court of Final Appeal. There are still 10 non-permanent overseas judges sitting on the Court, many of whom have articulated their own reservations about serving on the Hong Kong bench. However, it is not just the law towards protesters and activists that has changed but the National Security Law also means that judges can be removed from their post if they “make any statement or behave in any manner endangering national security during the term in office”. Therefore, fears are rising concerning judges' ability to remain independent given the implementation of this new law which prevents criticism of the Chinese Communist Party (CCP).
The English Bar now has a vital decision to make over whether it can continue working in Hong Kong despite growing human rights violations and censorship. Lord Adonis, Head of the No 10 Policy Unit during Tony Blair’s term as Prime Minister, commented made his position clear by stating: “David Perry is right to stand down. British barristers should not become part of the repressive apparatus of President Xi’s dictatorship”.