Hong Kong’s government will be able to bar foreign lawyers from working on national security cases under new legislation, sparking fears about the integrity of the city’s legal system just as the government seeks to restore its international reputation.
Hong Kong’s leader, former top police officer John Lee, can ban foreign lawyers on national security grounds under a legal amendment approved unanimously on Wednesday by the Legislative Council, the city’s legislature, which is dominated by pro-Beijing loyalists.
Overseas lawyers “may pose national security risks” when practising or acting as barristers in national security cases, Hong Kong officials had argued in a submission to the legislature.
The move to limit foreign lawyers, while widely anticipated, will send a chill through Hong Kong’s legal community. The city’s internationally recognised common law system is central to its claim as a global financial hub, and overseas nationals have long held prominent positions in its legal community. Foreign judges and lawyers qualified to practise abroad routinely sit on the territory’s top courts and participate in civil and criminal cases.
The amendment “has gone way overboard on national security interests”, said a foreign lawyer with more than two decades of experience in Hong Kong. “International lawyers will ask why the Hong Kong government has taken a sledgehammer to crack a small nut.”
The change came after Hong Kong’s government fought to block jailed media mogul Jimmy Lai from hiring British barrister Timothy Owen to defend him in a national security case.
Hong Kong’s apex court in November overturned a government appeal, ruling in favour of Lai, who faces charges of foreign collusion in relation to his ownership of the now-defunct pro-democracy Apple Daily newspaper. He has pleaded not guilty.
The city’s government retaliated and asked China’s top legislative body to intervene. Beijing responded by ruling that Hong Kong’s leader could determine the participation of foreigners in such cases.
Hong Kong has been seeking to salvage its international standing following an exodus of investors and residents under three years of tough pandemic controls and a crackdown on the territory’s civic freedoms following pro-democracy protests in 2019. Beijing responded in 2020 by imposing a sweeping national security law on the territory under which defendants face up to life in prison.
Paul Lam, Hong Kong’s justice minister, insisted there was still a “real chance” for foreign lawyers to participate in some national security cases, and that the power to ban them was “not unique to Hong Kong”. The chief executive already has the power to appoint judges to hear national security cases, in which defendants are not guaranteed a jury trial.
“Our system, even under our amendment, is very, very liberal,” Lam added.
But legal experts and analysts said most foreign lawyers were likely to be excluded from security cases, raising concerns that the amendment would undercut the international business community’s confidence in Hong Kong’s legal system.
Bing Ling, a Chinese law expert and professor at the University of Sydney, said that while other countries prohibited foreign lawyers from working on national security cases, Hong Kong’s multinational legal community helped the territory maintain a connection to other common law countries.
“The door is not entirely closed to foreign lawyers participating, but . . . the prospect of foreign lawyers participating in national security cases would not be very good,” said Ling. “This is very unfortunate.”