Britain risks empowering Beijing through extradition reversal

Labour’s change in policy on UK extraditions to Hong Kong reveals a completely inconsistent approach to the UK’s policy on transnational repression, Interpol and extradition treaties.   

Last July, proposed changes to the UK’s Extradition Act 2003 were introduced in the House of Commons. The effect of these changes would be that the UK could extradite individuals to Hong Kong on a “case by case” basis. 

Only five years earlier, the UK had suspended extraditions to Hong Kong. Dominic Raab in July 2020 said the imposition of the new national security legislation [in Hong Kong] had “significantly changed key assumptions underpinning our extradition treaty arrangements with HK.” The new security law brought in by China criminalised anything considered as secession, which is breaking away from China, subversion, terrorism, and collusion with foreign or external forces. Another notable provision was that some trials would be heard behind closed doors. Raab said that he was particularly concerned that the new law also gave mainland Chinese authorities the ability to assume jurisdiction over certain cases and to try those cases in mainland Chinese courts. On this basis the government suspended the treaty “immediately and indefinitely”. He added that they would not consider reactivating those arrangements unless and until there were clear and robust safeguards which are able to prevent extradition from the UK from being misused under the new national security law. 

Labour said at the time it would support those changes, calling it a “step in the right direction”. Fast forward five years and now Labour is effectively proposing to allow extraditions to Hong Kong again. It does this at a time when the human rights situation continues to deteriorate; in 2024 further legislation was brought in to supplement the controversial national security law and there are numerous reports of a wide and brutal crackdown on dissent. 

The reason for the change is to remove Hong Kong as a designated category 2 territory in the UK’s Extradition Act because despite the suspension in 2020, the designation remained. This is probably the right thing to do. However, in the same letterproposing these changes, Dan Jarvis went on to propose that the UK cooperate with Hong Kong on the “case by case” basis as extradition was currently impossible “even if there were strong operational grounds to do so”.  This is not the right thing to do. 

China has significant control over Hong Kong and some of its worst actions have been the most recent. China now can extradite individuals from Hong Kong. Security forces in Hong Kong can influence judge selection to hear national security cases. Authorities have used the security law to try to eliminate all forms of political opposition and removed elected lawmakers for publicly opposing China’s control over Hong Kong. 

The human rights situation in mainland China is well-documented and remains dire. There are continual calls from the international community to end of the persecution of those who promote democratic values. China is one of the most flagrant perpetrators of transnational repression in the UK. And China’s reach extends far beyond those who actively challenge its values and ideologies. Chinese nationals – or even non-Chinese nationals but of Chinese heritage who simply have decided not to live in China – can become targets. Also, last July, Hong Kong issued an arrest warrant for 19 activists based overseas.

China is well known for its manipulation of Interpol and extradition requests to further its political aims. Therefore, the scope for abusive extradition requests is high. It is against this background that opening the pathway to extradition to Hong Kong is so dangerous. The only solution is for the extradition arrangements to remain suspended.

Dealing with requests on a “case by case basis” will not safeguard against abusive requests.  Dan Jarvis has also said “the government will never allow a situation where Hong Kongers or any other nationality is extradited for politically motivated purposes” adding that UK courts have “extensive powers” and could bar extradition if it is determined that a request is political. What this fails to consider is lack of transparency in anything China does and the difficulties that this will in turn present in extradition cases.  We are dealing with one of the most secretive organisations in the world. 

At the point a request is made, a government official will have to decide if the request meets certain criteria – and whether the request is politically motivated. If it does, then the request will be sent on to the courts. No government official is going to be able say with any degree of certainty that the request is or isn’t being made in good faith. How could they?  China - and by extension Hong Kong - will not allow independent monitoring of its affairs.   It is the extent of this secrecy which would make any extradition arrangement with Hong Kong unworkable. Extradition in this country relies on mutual trust with requesting states. Assurances from requesting states are also commonplace. How could our courts rely on assurances from the Hong Kong authorities? On this basis it seems likely that cases will get passed the government gateway and to the courts.  

How, then, is counsel supposed to persuade a UK Judge that that the requested person is a victim of persecution? If senior members of government and parliament cannot appreciate the extent of the threat posed by China, how are judges who have little or no knowledge of the workings of the CCP going to begin to understand or believe what counsel is telling them? Indeed, the sheer power, resource and determination of this regime to achieve its stated aims is astonishing. 

Lawyers and experts on the ground that would ordinarily assist in defence cases would not be forthcoming. This would make it difficult to show that the information the UK court is being presented with from the Hong Kong authorities is not true. Our system is not designed for dealing with such regimes.   

In fighting extradition requests from China, one is always is left with relying on circumstantial evidence to prove an ulterior motive: did the requested person ever publicly declare their affiliation with an opposition group; are the charges spurious financial charges; does the requested person officially live abroad? It is difficult enough to do this in circumstances where there is an obvious affiliation to an opposition group but what then about the small-time activist or innocent Hong Kong or Chinese national living in the UK who the Hong Kong authorities have decided they want back? 

If the UK is insistent on cosying up to China, it should not do this through extradition arrangements. The risk to these individuals is too great. Furthermore, suspending the existing arrangements in 2020 only to then change them back again with no basis for doing so makes us appear weak. 

Extradition is one of the best tools of transnational repression. It spreads fear and intimidates diaspora communities and in turn silences them. Cooperating with a regime that so famously exploits these systems is completely inconsistent with our policies on transnational repression, Interpol and extradition. We risk undermining own authority, and it would be a devastating blow to the monumental effort of the few in the UK that are truly standing up to this regime, and a betrayal to the 150,000 HK dissidents who fled HK and were accepted to this country in 2021. It would significant leap forward the CCP in its pursuit of furthering its “legal warfare”, meaning we are – once again – playing into the hands of the CCP. 

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