Introduction
The trial of British citizen Jimmy Lai was criticised by the last Government, and by the international community, as a politically motivated show trial. Former Foreign Secretary David Cameron called for the prosecution of Lai to be dropped and for the immediate release of the political dissident, who became a full British citizen in 1994 and has never held a Chinese a passport. Rishi Sunak’s Government condemned both Lai’s trial and Hong Kong’s National Security Law of 2020 (NSL) as being in clear breach of the Sino-British Joint Declaration of 1984 (the Joint Declaration).
Lai’s case, and the situation of Hong Kong more broadly, raises important constitutional questions, though, about the duties that the UK owes to its citizens abroad who are charged with criminal offences. Of specific concern is the protection of British citizens’ human rights and the extent to which the UK is prepared to uphold its obligations under international law. By reason of Britain’s colonial legacy in Hong Kong, it may be argued that Lai’s case is exceptional and justifies special interventionist measures. Irrespective of this, the approach to this matter has expressive implications for the balance of the UK’s foreign policy in safeguarding its citizens’ human rights against the erosion of those same rights by China.
The case of Jimmy Lai – detention and trial of a British citizen abroad
Lai’s story is a quintessential rags to riches tale. Born in China one year before the founding of the People’s Republic, he worked as a child labourer to support his younger siblings during Mao’s catastrophic Great Leap Forward. While working as a railway porter at aged 9, he was tipped with a half-eaten chocolate bar. Lai asked the man who had given him the chocolate where he was from. Tasting something so delicious which heralded from Hong Kong, Lai concluded that “the city must be heaven, because I’ve never tasted anything like that”. At 12, he stowed away in a boat from the Mainland to Hong Kong, and it was there that he went on to build the world’s first fast-fashion empire, Giordano, which he launched in 1981. By 2008, his net worth was estimated to be $1.2 billion.
The Tiananmen Square Massacre of 4 June 1989 was a watershed moment for Lai. He donated more than $US100,000 to the student movement and his factories printed t-shirts of student protestors. The incident compelled his pivot into media, and he subsequently launched Next Magazine and the tabloid newspaper, Apple Daily. In addition to salacious celebrity gossip, Apple Daily was unafraid to criticise the Central Government, including during the 2019 protests, when the paper adopted a stringently dissident position. In June 2021, Apple Daily was raided by the Hong Kong Police, who seized documents, froze its accounts and arrested its executives. The paper subsequently closed. In relation to his public criticisms of the pro-Beijing camp, Lai was charged under Hong Kong’s National Security Law with collusion with foreign forces, as well as with sedition under Colonial era laws. In addition, Lai is serving prison sentences in a maximum security facility for unauthorised assembly and fraud. Though initially granted bail on the NSL charges, under s42 of the NSL, the presumption in favour of bail was reversed and Lai was subsequently re-detained in December 2020 while awaiting his NSL trial, scheduled to begin in December 2023. He has been in detention since that time. The trial itself remains ongoing, and if convicted, Lai faces a life sentence. Given that until May of this year the conviction rate under the NSL was 100%, unless a solution is found, it may be that Lai will live out his final days behind bars. Less than two weeks ago the court dismissed Lai’s submission that there was no case to answer and adjourned the trial until November.
Legal implications – detention of British citizens abroad
The charges, processes of the trial and incarceration of Lai have been vehemently criticised by the UN, Amnesty, and Human Rights Watch. British Consular officials do have discretion to offer support where British citizens are detained abroad, although it has been held that, applying the ECHR, there is no legal obligation to intervene in a specific way that a detained person may request. As a matter of policy, the support offered to British citizens is relatively limited, including in Hong Kong, and Consular officials cannot be compelled by law to intervene beyond this policy, even where fundamental human rights are at stake. This policy is justified on principles of sovereignty and the idea that one state party does not have the right to intervene in the enforcement of the criminal laws of another. Still, it has been argued that the limited support offered to British nationals detained abroad may operate in breach of Britian’s obligations under international law.
Both the UK and Hong Kong are party to the International Convention on Civil and Political Rights which guarantees the protection of rights such as free expression, freedom of the press and free association. These are some of the rights alleged to be violated in Lai’s prosecution. Hong Kong’s Basic Law entrenches these rights into Hong Kong law, and Article 4 of the NSL itself is said to guarantee the same. Perhaps more significantly, it is strongly arguable that derogation by Hong Kong of these rights, against not only its own citizens, but British citizens, is a fundamental violation of the Joint Declaration – an international treaty held by the UN freely entered into between the two states.
The Joint Declaration does not contain any provisions for breach of the Treaty, however, applying the Vienna Convention on the Law of Treaties, the remedy for breach would likely entitle UK suspension or termination of all or part of the Treaty. So far, the UK has not taken this course of action. Instead, it has opted for a decidedly less robust approach, and has said that “As a co-signatory of the Sino-British Joint Declaration, the UK will continue to speak out when China breaches its legally binding agreements and when it breaks its promises to the people of Hong Kong.”
Political implications – a diplomatic solution?
As Lai’s case demonstrates, China’s ongoing breaches of the Joint Declaration go beyond its internal domestic affairs. The issue is one of a British citizen’s rights being violated in contravention of a treaty which both state parties have voluntarily agreed to. Still, rather than there being any legal solution, any resolution will more likely come about via diplomatic channels. To this end, akin to comparable deals which have led to the release of citizens facing charges in foreign jurisdictions, the new Labour Government may take this opportunity to stake out the limits which it is prepared to defend in terms of the human rights of its citizens. Any negotiations may be grounded in British constitutional principles such as the rule of law, democracy and good governance.
For example, the negotiation of the recent release of Julian Assange is understood as likely originating in the change of government in Australia in 2022. Similarly, US President Biden is said to be “pushing hard” for the release of Wall Street Journal Journalist, Evan Gershovik, convicted in Russia. However, unlike the diplomatic solution successfully reached for the release of British-Iranian Nazanin Zaghari-Ratcliffe, so far both the previous and current Governments appear to have been relatively passive is working towards a comparable solution for Lai. It is not clear whether the difference in approach stems from any concerns as to the impact that this would have for British-Chinese relations. However, at a time when Keir Starmer is yet to release key details of his Government’s China policy, this case may provide the new Government with an opportunity to make clear how it will strike a balance between the protection of its own citizens’ human rights as against its economic and political interests. This could be an easy win for the Starmer Government; given the previous Conservative Government’s championing of Hong Konger’s rights and freedoms, any diplomatic initiative is likely to be met with cross-bench support. Ultimately, Jimmy Lai’s case is not just an issue of protecting of the rights of a specific individual, it is an issue of the role that Labour is prepared to take as a global leader in upholding principles of democratic good governance.
Jane Richards.
Jane Richards is a lecturer in international human rights and criminal law at the University of York. She is a fellow at the Centre for Criminology at the University of Hong Kong.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.