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[THE EARL OF Caithness] established in Hong Kong. It is a key element in providing for Hong Kong's continued judicial independence.
The court's establishment could of course have been left until 1997, with the present arrangements for appeals to the Privy Council continuing until then. However, it is the view of the Hong Kong Government, and one which we fully support, that there is considerable advantage in setting up the court before 1997 so that it can establish working practices and gain experience while Hong Kong is still under British administration. It is also crucial that the court is established in accordance with the Basic Law so that it can continue to function without any disruption through 1997.
The noble Lord, Lord Wyatt, appeared to argue that the agreement reached with the Chinese and Joint Liaison Group on the membership of the Court of Final Appeal contravenes the Basic Law and Joint Declaration. Let me make it absolutely clear that we do not accept that view. I am grateful to my noble friend Lord Geddes for his support.
After the most careful consideration we are satisfied that the agreement is consistent with both the Joint Declaration and the Basic Law. Indeed, if we were not we could not possibly have signed the agreement. We do not consider that the wording of the Joint Declaration or the Basic Law gives the court unfettered discretion to invite as many visiting judges as it wishes.
I am aware of the view that the phrase “as required" in paragraph 4 of Section 3 of Annex 1 of the Joint Declaration may be interpreted to mean as the Court of Final Appeal may itself think fit. We disagree. If that had been the intention of the drafters they could have said so. Rather, as the Attorney- General of Hong Kong has pointed out, the Joint Declaration and Basic Law state that the court may "as required" invite such judges. That is clearly intended as an objective test, as the Chinese language text makes clear, depending on the needs of each case. Some critics have used the argument that Britain and China have stitched up a deal without consulting Hong Kong. They are obviously unaware of the true situation. The agreement reached on the Court of Final Appeal was made with the approval of the Hong Kong Government, their Executive Council and the Hong Kong judiciary.
The legal profession was consulted on the outline proposals for establishing the court in 1987 and in early 1988, before beginning negotiations with the Chinese Government. During the lengthy negotiation process the views of a wide range of people in Hong Kong, including the legal profession, were consulted. Some have argued that the Court of Final Appeal drawn mainly from the existing Court of Appeal in Hong Kong will not have the ability or international repute of the Privy Council.
Clearly a reputation takes time to acquire. That is another argument for the Court of Final Appeal's early establishment. There will be some cases where specific skills or expertise are required which are not available in Hong Kong. That is why provision is
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!made for overseas judges to sit on the Court of Final Appeal. However, it should be noted that in 1990 the percentage of Hong Kong judgments overturned by the Privy Council was much lower than in the case of judgments passed in English courts. That is a good indication of the quality of Hong Kong's judiciary, in which we have full confidence, and there is no soundly based reason for others not to share it.
The noble Lord, Lord Bonham-Carter, will be interested to learn that the Government of Hong Kong are now preparing legislation to establish the Court of Final Appeal in accordance with the agreement reached with the Chinese. That will cover far more than just the membership issue. When it is ready members of the Legislative Council in Hong Kong (and Hong Kong people generally) will have an opportunity to consider the agreement reached with the Chinese in the round. I believe that they will find that it contains satisfactory assurances about 'the independence of the Hong Kong judiciary after 1997.
I accept that the agreement on the Court of Final Appeal is not ideal. No agreement that is the product of three years' negotiation ever will be. But I hope that members of LEGCO will concentrate on the essential point. So let me make it clear: the choice in practice lies between having a Court of Final Appeal established in Hong Kong well before 1997, on the lines agreed with the Chinese, or having no Court of Final Appeal in Hong Kong before 1997. To reject the legislation will effectively prevent the
the court's establishment before 1997. That would cause unnecessary uncertainty for Hong Kong's judicial system after 1997.
My noble friend Lord Geddes raised the question of nationality and some very technical points. I can assure him that paragraphs 233 and 234 of the Joint Declaration are still valid. Perhaps he will allow me to write to him on the other points that he raised.
All noble Lords who have spoken in this debate are at one in agreeing that the issues of democracy and the administration of justice are vital to Hong Kong's continued success. I am glad that the noble Lord has given us the opportunity to debate them today. They are part of the much larger task of managing change in Hong Kong so that its development-political, economic and social-can be sustained up to 1997 and beyond. The Joint Declaration is the essential framework for this.
The Hong Kong Government already have a high degree of autonomy in running their own affairs except in the fields of foreign affairs and defence. The Hong Kong Government play a full part in deciding policy on Hong Kong's relations with China, and Hong Kong Government representatives take part in the Sino-British Joint Liaison Group, whose task it is to prepare for the smooth transition in 1997. We maintain the closest contact with the Governor of Hong Kong, who was in London last week. I, too, look forward to his joining us as a Member of this House; I know that we shall benefit from his great knowledge and experience of Hong Kong. I shall be in Hong Kong for the second time this year next month for an extended visit. Ministers also meet regularly
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