Earlier this year, Jimmy Lai, a pro-democracy advocate in Hong Kong and a critic of China, was sentenced to 20 years in prison after being convicted of colluding with foreign forces and publishing seditious material in violation of the Beijing-originated National Security Law of 2020. Attentive observers would have seen the writing on the wall for Lai in 2022, when British lawyer Tim Owen KC was not allowed to join the case in his defense.
In his fascinating article, Globetrotting Advocates: Foreign Barristers in Hong Kong Courts, Trevor T.W. Wan explores the history and practice of ad hoc admissions of foreign barristers to the courts of Hong Kong, and in so doing highlights the way in which the practice, once understood as a benefit to Hong Kong, is now seen as presenting an increasing threat to Beijing’s national security agenda.
After presenting a cogent and readable explanation of the technical aspects of the ad hoc admissions scheme, which is now enshrined in the Basic Law, Wan turns to an analysis of how the practice developed and why it has waxed and waned over time. The move to ad hoc admissions began in the 1960s, even though, as Wan explains, “it sounds rather counterintuitive to refer to English barristers as ‘foreign’ barristers at a time when Hong Kong was still a British dependent territory” (P. 880). There were antecedents under Empire, of course, when English barristers saw Hong Kong as a “layover in their intra-imperial practice” (P. 888), and the barristers practicing under criteria for general admission “barely had a practice in Hong Kong” (P. 889). But by the 1960s, the autochthonous Hong Kong bar had started to establish itself, with the territory’s first law school, at the University of Hong Kong, opening in 1969. The embrace of foreign lawyers was, in part, to “stimulate growth of the local Bar through cross-fertilization and competition” (P. 894), but in a manner that also resonates with Richard Abel’s theory of market control in the legal profession, as Wan makes clear (P. 885). Wan explains that the ad hoc admissions scheme “did not spring from a desire to bring in London silks” (P. 890), but rather to reduce their presence—though only so far as to ensure a workable balance between market control and market demand.
Wan’s historical exegesis helps to dispel the plausible assumption that ad hoc admissions were a late-stage attempt to maintain British engagement after the handover from the United Kingdom to China on July 1, 1997. But his careful empirical data also shows that admissions increased for about a decade after handover, as the Special Administrative Region saw benefits in the “maintenance of Hong Kong’s international reputation” (P. 895). Wan’s explanation for this post-handover shift rests in the claim that the logic of market control shifted to a new frame: the politics of foreignness itself.
As he makes clear, post-handover the politics of foreignness were intertwined with “derivative notions of professionalism, impartiality and independence” (P. 895), qualities which together served to maintain Hong Kong’s international reputation, to expand foreign and comparative law citations in court (and in subsequent judgments), and were thought to benefit the local bar through cross-fertilization and mentorship. In one case, the prosecution brought in British barrister David Perry KC to serve as an external prosecutor in “one of the most high-profile corruption trails in Hong Kong’s history” (P. 901). The Chief Judge of the High Court explained: “[T]he reputation and integrity of the executive branch of the Hong Kong [SAR] and its system of governance are at stake” (P. 901).
But as the shadow of the British empire receded, the looming presence of China cast new shade over Hong Kong. Applications since the 2010s have waned. There are various explanations, and Wan’s datasets show that the reasons for opposing (or denying) an application for ad hoc admission have clustered around the case’s lack of complexity, the presence of available local counsel, and the claim that the case would not have an impact on the development of local jurisprudence (P. 921). In this formulation, the rejection of foreign barristers aligns with some elements of the market control model.
Nevertheless, in his final section, Wan presents arguments that it is in fact a different politics of foreignness that has emerged as a driving force for the withering of the regime. New arguments are being presented that these foreign lawyers are a “colonial vestige” (P. 923) who “colonize” (P. 924) the legal system. Wan is skeptical of these claims, given the limited authority of any lawyer to do more than impact a judge’s thinking. And, a certain disingenuity seems to be at work: the government itself (the Department of Justice) retained a British KC in 2023 to oppose a judicial review challenge.
To return to Lai, the opposition by the government to Tim Owen KC’s application for ad hoc admission followed the traditional rationales listed above. The Chief Judge of the High Court did not agree, and the Secretary of Justice was forced to appeal to the Court of Final Appeal. On appeal, the Secretary raised the argument that any ad hoc admission in a National Security Law case would present a problem due to the barrister’s foreignness—and thus the possibility of external interference. The Court of Final Appeal disagreed. But an interpretation was sought by the government from the Standing Committee of the National People’s Congress (the Chinese legislature). The Standing Committee gave the authority to Hong Kong’s Chief Executive to make determinations on ad hoc admissions in national security cases. Tim Owen was not admitted. In Wan’s telling, “the ad hoc admissions regime is now seen as a potential threat to national security” (P. 928), and the admission of foreign barristers can no longer be left to “professional self-regulation and judicial discretion.” (P. 928)
Wan traces the move from a market perspective on foreign lawyers to a politicized set of assumptions about what foreignness implies. As a matter of broader literature, Wan situates his project in conversation with the burgeoning investigations into foreign judges, led by Anna Dziedzic, among others—an exciting and fruitful new area of scholarship. He also highlights the existence of transnational lawyering in Brunei, Fiji, Malaysia and Singapore, and I look forward to the (hinted-at) cross-jurisdictional study. Of course, questions of judicial cosmopolitanism, foreignness, legal transplants and borrowing have long intrigued legal scholars. In this article, there are many fascinating nuggets that touch on all of those topics – as well as extensive empirical work on the broader ad hoc admissions regime and the lawyers who have been admitted through it. It is a rich scholarly intervention with much to Like Lots!
