House of Commons - Adjournment Debate: Proposals to implement Article 23 of the Basic Law in Hong Kong (Mr Howard Flight).

26 Nov 2002

Hong Kong Basic Law

1 pm

Mr. Howard Flight (Arundel and South Downs): I am grateful for the opportunity to focus on the Hong Kong Government’s proposals to implement article 23 of the Basic Law; those are important and controversial constitutional issues in Hong Kong. I have requested this Adjournment debate to raise the issues and concerns of many in Hong Kong. Also, I have the privilege of being joint chairman of the all-party House of Commons Hong Kong committee, which recently visited Hong Kong and engaged in extensive discussions with most of the key civil servants and politicians, and has since met Martin Lee.

The debate centres on whether the proposals are essentially a modernisation of archaic laws—which is, broadly, the Hong Kong Government’s argument—or whether they are a beginning of the application of mainland concepts of national security, under something of a disguise.

The background to article 23 is the Sino-British joint declaration, signed by the British and Chinese Governments in 1984, which is registered as an international treaty with the United Nations. That lays down that Hong Kong’s way of life and capitalist system should remain unchanged for 50 years post 1997, while the Hong Kong Government should remain fully autonomous except in the areas of foreign policy and national defence. The principles of the joint declaration form those of the Basic Law. The joint declaration, however, provided that

“the laws currently in force in Hong Kong”  should “remain basically unchanged”


and that

“rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be insured by the law in the Hong Kong Special Administrative Region.”

Article 23 was included in the Basic Law as something new and additional on the insistence of the mainland Government. There is an argument of principle that it is in breach of the provisions of the joint declaration, as it calls for the application to Hong Kong of legal concepts that are incompatible with the freedoms guaranteed by article 3(5) of the joint declaration. Article 23 states:

“The Hong Kong Special Administrative Region (SAR) shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government or theft of State secrets, to prohibit foreign political organisations or bodies from conducting political activities in the Region and to prohibit political organisations or bodies of the Region from establishing ties with foreign or political organisations or bodies”.

It is argued that the Hong Kong laws that would prohibit subversion against the mainland Central People’s Government could be contrary to the articles of the international covenant on civil and political rights relating to freedom of expression.

In June, matters came to a head when the Chinese Vice-Premier Qian Qichen was reported as saying that the Government of Hong Kong should get a move on with enacting article 23, but that the people of Hong  Kong should not worry about it and that it was not intended to restrict democratic rights in Hong Kong. He claimed, however, that it would be illegal for Falun Gong members to retain links with Falun Gong practitioners outside Hong Kong—that is, on the mainland.

The Hong Kong Secretary for Justice, Elsie Leung, has responded to comments made by the British Government by promising that there would be full public consultation—which is now taking place—before draft legislation was introduced; that any legislation would comply with the international covenant on economic, social and cultural rights and the international covenant on civil and political rights; that freedom of speech, association and religion would be upheld; and that legislation would not be aimed at imposing sanctions on any group such as Falun Gong. She also pointed out that the current criminal code could be amended to cover some of the elements outlined in article 23.

Hong Kong already has domestic legislation on treason, sedition, official secrets and activities, and ties with foreign political organisations. However, some of those provisions are clearly outdated and are also potentially very wide. There are no offences of secession or subversion in Hong Kong law. Before 1997, Governor Chris Patten attempted to introduce legislation in those areas, but those efforts foundered in the face of opposition. Although the Legislative Council passed a Bill before handover, it was not enacted by the incoming Administration.

The Hong Kong Government now intend to put draft legislation to the Legislative Council in the new year, with a view to its being enacted next summer. There has been a debate as to whether it should be a White Paper or a Blue Paper. It has ended up as a Blue Paper, though it seemed to us that more of a White Paper approach was being followed, in terms of consultation. A main concern is that the legislative proposals could potentially allow the Government to ban any organisation of which the Beijing Government disapprove, where provisions in the area are not even specifically required by article 23 of the Basic Law.

Few states have express laws against secession and many do not have laws against subversion. The mainland concept of national security is very different from what we are all used to in democratic countries. The deal agreed under the joint declaration was that the PRC concept of national security would not be applied to Hong Kong. Under the treason section, it appears that any business person who trades with Taiwan could risk prosecution if their products end up being used by Taiwan’s armed forces or otherwise to assist in Taiwan’s defence. There is also a proposal to contain and modernise the archaic offence of misprision of treason, that is, the failure to inform the authorities of treason being committed by someone else. The new treason offence would also apply to all persons who are voluntarily in the Hong Kong SAR, where it is questionable for treason laws to be applied to persons who are not citizens and owe Hong Kong no loyalty.

The proposed new offence of secession includes extra-territorial jurisdiction powers, and could widen considerably the number of people who would not be admitted to Hong Kong or who might not be regarded as safe to enter Hong Kong. The proposed offence of sedition is broadly similar to the existing common law offence, but is arguably unnecessary, as the last prosecution was 50 years ago. The mainland Government have traditionally used the offence of subversion to persecute and suppress legitimate opposition. The Hong Kong Government’s proposals link the offence of subversion to overthrow by violence or serious unlawful means.

The Hong Kong Government are not proposing any extension to the law on relations with foreign political organisations. However, they propose a new mechanism for banning organisations affiliated with a mainland organisation that the central authorities have proscribed in accordance with national law, on the grounds that it would endanger national security. In that context, affiliated means connected. The key concern is that if such an organisation is proscribed on the mainland, Hong Kong is notified. There will inevitably be such evidence of past or present connections between such organisations that the Hong Kong Government are effectively obliged to ban them.

The general impression that the all-party committee formed from its visits was that there was certainly no malign intention by the Hong Kong Government, and that a great deal of what was being proposed was updating out-of-date law, but that it might have been better to use a White Bill. However, there are major constitutional issues to bottom that I certainly think have not been fully bottomed. In a sense, the constitutional challenge to the Hong Kong Government is to set out fully convincing arguments as to why the legislation would comply with the international covenant on economic, social and cultural rights, and the international covenant on civil and political rights, as they claim is the case. Also, they must demonstrate that we need not worry if the legislation did comply, as they would not be forced to ban organisations that were banned in the mainland. The system for appeals might be better left to the courts than dealt with under the new proposals.

Others want to speak, so I shall finish in a moment. I trust that the United Kingdom Government are well alive to the issues. The consultation in Hong Kong is open and public, but the constitutional issues raised have not yet been fully answered or bottomed.

1.10 pm

Mr. Ben Chapman (Wirral, South): I congratulate the hon. Member for Arundel and South Downs (Mr. Flight) on securing the debate, and thank him for giving me time to contribute. I speak as another co-chairman of the Hong Kong committee. Coincidentally, I am also the chairman of the all-party group on China. My hon. Friend the Member for Strathkelvin and Bearsden (Mr. Lyons), the hon. Member for Arundel and South Downs and I were privileged to be part of the delegation that recently visited Hong Kong, and I declare an interest in that regard.

Article 23 is important, but discussion of it must be taken in the context of the situation in Hong Kong and our relations with it as a whole. I hope that we might secure a longer debate on our relations with Hong Kong and, with others, I will try to set that in hand. The House has continuing responsibilities in relation to Hong Kong under the terms of the joint declaration, because of its intrinsic importance and our major investment and commercial, cultural and educational interests there. Also, we have an interest in the 3.4 million British passport holders in Hong Kong, especially the British nationals overseas.

Like everything else in Hong Kong, article 23 needs to be seen in relation to the “one nation, two systems” concept, and against the background of the maintenance of confidence—internal and external—which drives the Special Administrative Region. I fear that Qian Qichen’s comments do not seem entirely helpful when put in that context, or in the context of democratisation. The concept of Hong Kong’s being allowed to run its own affairs, save in relation to foreign policy and defence, has been nigh on meticulously maintained. The handover and subsequent events have gone at least as well as we might reasonably have hoped.

Hong Kong administrators often tell of the old days when, at the end of the United Kingdom working day, they received floods of telegrams of instruction from London on everything under the sun. Now they receive none from anywhere, and certainly not from Beijing.

I do not underestimate the difficulties that article 23 could involve and the importance of the issues that it covers. The hon. Member for Arundel and South Downs eruditely set those out. It is right that there are concerns. However, I found—I think that the rest of the delegation that recently visited Hong Kong agrees—that while in hindsight the Government of Hong Kong might reasonably have been best advised to publish a White Bill, they are still engaging in full consultation.

Enacting article 23 of the Basic Law is an imperative. It is not discretionary, although its timing is. I welcome the consultation. I am largely persuaded that the Government of the SAR are fully conscious of the need to maintain a separate regime and to be perceived as so doing. I am assured that the content of article 23 when enacted will be in accordance with international covenants on human rights, and will maintain the differences inherent in the concept of “one nation, two systems”. It is, after all, a matter of self-interest for them to do so.

However, other pressing issues face Hong Kong. It is in the economic doldrums, with a budgetary deficit. Its propensity to reinvent itself is challenged. We were told that, even on best forecasts, it would take until 2006–07 to balance the budget; that takes account of soccer betting and border crossing taxes—and people are discussing such issues as a profit tax, a sales tax and even a maids tax, but all of those factors need to be set against the background of the issue of confidence, both internal and external.

Following the transfer of its manufacturing base to booming Guangdong, Hong Kong has transmogrified itself into the ultimate professional service for China—a service that provides a gateway but which is also a massive quarry of unrivalled expertise, possibly the best in the world. Hong Kong and its expatriates have skills in financial services, the law—particularly commercial arbitration—banking, accountancy, information technology and so on. The difficulty is that more of those services and skills, with the possible exception of the law, are being provided in China. It has a talented people and is developing those services at a rapid rate.

The development of Shanghai may be considered complementary as well as competitive, but it could further restrict Hong Kong’s ability to transmogrify itself. It must be said that, when compared with that of China, Hong Kong’s economic performance currently looks weak. Property values have weakened massively and could be off their peak by 50 per cent. and more. Hong Kong, the icon of adaptation to free market forces may need to become—dare it be said?—more dirigiste. It may need to plan its future differently. In that context, it was interesting to see that the cyber port, developed at the Government’s initiative and with the Government’s backing, is heading in that direction by creating a new way forward for Hong Kong.

Perhaps the most important issue facing the SAR is that of democratisation. In my view, the present ministerial system is not sustainable in the long term, nor can it be regarded as other than a stage in the development of democracy in Hong Kong. Progress towards universal suffrage is inadequate. I accept that the Basic Law does not require that until 2007, but it is important that the debate starts now and that progress is made. Many voices in Hong Kong are calling for it—in and outside LegCo. Progress is, again, not least a matter of self-interest and the retention of confidence. It is for me vital not only for the general well-being of the people of Hong Kong, but also for its economy. I hope that the Hong Kong Government can be persuaded to move forward as soon as possible.

Ross Cranston (Dudley, North) rose—


Mr. Deputy Speaker (Mr. Edward O’Hara) : Order. For the Minister to be given an adequate chance to respond, I must call him no later than 13.20.

1.17 pm

Ross Cranston (Dudley, North): I thank the hon. Member for Arundel and South Downs (Mr. Flight). I wrote to him and he kindly offered me two minutes of his time.

I make a declaration of interest. I was recently a guest of the Special Administrative Region in Hong Kong.

I wish to make three brief points. First, I was impressed with the vigour of debate on article 23. Freedom of speech is very much alive in Hong Kong, which is good. Secondly, on the substance of the proposal, I was impressed with the professional job done in the consultation document. Indeed, as an aside, I would say that I am impressed with the civil servants I met there. The hon. Member for Arundel and South Downs and my hon. Friend the Member for Wirral, South (Mr. Chapman) both said that the debate has not been helped by the official comments, and concern has been expressed about whether there should be a draft Bill. As a lawyer, however, I am not especially shocked at the substance of the proposals—they include provisions on entering premises without a warrant and official secrets—as we have similar provisions in the UK.

That leads me to the third point. It seems to me that the concern is more about how the provisions will be used. At present, the Special Administrative Region is an open society with a rule of law. I was impressed by the quality of the Bar and the judiciary, which augurs well for the future of the rule of law. It is therefore important that Britain and other countries such as the United States should retain an interest in Hong Kong. Some people expressed concern that that interest was waning, and an assurance from the Minister that Her Majesty’s Government will retain their special interest in the region would be welcome.

1.20 pm

The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Bill Rammell) : I am grateful to the hon. Member for Arundel and South Downs (Mr. Flight), whom I congratulate on having called this debate. I am also genuinely pleased by the all-party group’s interest in Hong Kong, which gives people there a clear indication of the continuing Government and Parliamentary interest in their well-being.

As the new Minister with responsibility for Hong Kong, I am delighted that our relationship with the Hong Kong Special Administrative Region is so strong. There continue to be many high-level exchanges and three Cabinet Ministers have visited Hong Kong in the past five months alone. Hong Kong’s Chief Secretary was here in July and we were pleased to welcome Mr. Anthony Leung, Hong Kong’s distinguished Financial Secretary, here this week. I met him yesterday morning and I am pleased that he will meet my right hon. Friend the Chancellor of the Exchequer this afternoon. This debate has testified to the fact that Members of the House regularly visit Hong Kong, and Members of the Legislative Council also make the reverse journey to this country. I hope to visit Hong Kong early in the new year as part of a wider tour of China.

I want to take the opportunity afforded by this important Adjournment debate to get across the message that Hong Kong is a success story despite the current economic difficulties. It is important that that success is maintained as a result of the debate on article 23 and we must be conscious of the factors that have made Hong Kong successful, including the rule of law, guaranteed rights and fundamental freedoms, a level playing field for business, free flows of information and the efficient and effective market regulatory system. Those mechanisms have played a vital role in ensuring that Hong Kong maintains its position and develops as an international business hub. It is crucial that they are preserved when article 23 of the Basic Law is enacted.

That brings me to the key element in Britain’s relationship with Hong Kong—our responsibilities under the Sino-British joint declaration on Hong Kong. The declaration provides that Hong Kong should have a high degree of autonomy from mainland China, except in foreign affairs and defence matters. It states that basic rights and freedoms shall be ensured by law in the Hong Kong SAR, and we have followed affairs closely since the handover. My right hon. Friend the Foreign Secretary reports twice yearly on the implementation of the joint declaration. Where we have had concerns that its principles might conceivably be undermined, we have raised them with the SAR Government or with Beijing.

Overall, as my right hon. Friend’s bi-annual reports have made clear, our assessment of the “one country, two systems” principle remains broadly positive. Hong Kong has generally remained free to exercise its autonomy in all relevant regards, as promised under the joint declaration. However, as debate on the issue has developed, we have noted strong concerns among many sectors of Hong Kong society about the SAR Government’s proposals for legislation to meet its obligations under article 23 of the Basic Law. As some hon. Members have clarified—I am grateful to them for doing so—such legislation has been foreshadowed for some time, and the Basic Law says that the SAR shall enact legislation. Nevertheless, it is undoubtedly the most sensitive legislation that the SAR has had to enact since the handover.

We have closely followed the matter from the outset, and my right hon. Friend the Foreign Secretary raised article 23 as a general issue with the Chinese Vice-Premier and the Hong Kong Chief Executive during a visit to Hong Kong in July, before the SAR issued its consultation document. Subsequently, my right hon. Friend the Lord Chancellor discussed the proposals in some detail during a visit to Hong Kong in October, and yesterday I had the opportunity to raise some of those issues with the Hong Kong Financial Secretary.

As a result, on 18 November I issued a public statement welcoming the wide consultation process undertaken by the SAR Government. I made it clear that as a cosignatory to the joint declaration, we had a responsibility to ensure that the rights and freedoms enshrined in the joint declaration were maintained. I went on to say that any new legislation must be compatible with those rights and freedoms and with maintaining Hong Kong’s autonomy.

A key concern that has been raised through the process is the proposal to ban organisations in Hong Kong affiliated with mainland organisations proscribed on the mainland on national security grounds. The hon. Member for Arundel and South Downs referred to that matter. We note that the consultation document says that the Hong Kong Secretary for Security would have discretion not to follow suit. However, there remains a concern that the integrity and independence of Hong Kong’s legal system, which are key factors in the region’s continuing success, might be compromised by the proposal. We hope and have made it clear that the SAR Government will consider the issue carefully as they draft the legislation in detail.

The hon. Gentleman mentioned Falun Gong and I know that other hon. Members are also concerned about the impact of that provision on that organisation. The Hong Kong Secretary of Justice has said that the proposals are not aimed at particular groups, but we hope that the draft of the Bill will give us the fundamental reassurance that we need.

Concerns have also been expressed about the impact of the proposals for the media. All hon. Members will agree that a free press is one of Hong Kong’s distinctive strengths. Freedom of expression is certainly provided for in the joint declaration and any action that diminishes press freedom would not be in the interests of the people of Hong Kong.

We have highlighted other concerns and we hope that the SAR Government will consider them carefully. They have indicated that they are willing, in principle, to be flexible on at least some of those areas. We warmly welcome that fact.

We are listening to some of the strongest critics of the SAR Government proposals. Last week, the Foreign Secretary and I met Martin Lee, the chairman of the Hong Kong Democratic party. We listened to his concerns, told him that we were following the case carefully and assured him of the importance that we attach to the issue.

This has been an important debate. The proposals show the complexities that arise from Hong Kong’s special status under the “one country, two systems” principle. We welcome the SAR Government’s assurances that the legislation will be compatible with the international covenant on civil and political rights and that on economic, social and cultural rights, to which Hong Kong is party. That is a vital point, but the test will come with the precise wording of the proposed legislation, without which it is impossible to determine whether there is any conflict with the two United Nations human rights covenants.

Calls have been made for a “white Bill” to set out the detailed legislative proposals before the draft legislation is introduced into the legislative council. Given the intense interest in the proposals, we hope that the SAR Government will provide for full and genuine public consultation on the detailed legislation, whether through a “white Bill” or through some other mechanism. I made that point to the Financial Secretary yesterday.

We have also encouraged the SAR Government to start consultations on other outstanding elements of the basic law. I agree that the ultimate aim is to bring forward democracy, but until that happens it is crucial that the SAR Government should go the extra mile and ensure that no rights and freedoms are eroded in Hong Kong.

In conclusion, people hold contradictory views. Sometimes, we are told that the Government speak out too much on such issues and, on other occasions, we are told that we speak out too little. We will continue to put forward our views on areas of concern in the interests of and as a friend of Hong Kong. Article 23 must be enacted by the SAR Government, but it must be done in such a way as to preserve the tremendous success story of Hong Kong as an international city. We hope that its enactment will contribute to that success.