The Joint Declaration may have been concluded in 1984 but it was not until 1991 that agreement, or at least a first agreement, was reached between China and the UK on the composition of an altogether new entity, the Court of Final Appeal or ‘CFA’ for post–handover Hong Kong. It was to replace appeals to the Judicial Committee of the Privy Council from colonial Hong Kong. In that respect the new Hong Kong Special Administrative Region will begin where other former British colonies had evolved; the eventual abolition of appeals to the Privy Council when sufficient confidence in the local judiciary had been, or was felt to have been, achieved, or perhaps when national honour in some former colonies had demanded it. Barbados and Guyana have now joined Canada, New Zealand, Malaysia and Singapore, effectively Australia, and also India, Pakistan and Sri Lanka just to name a few prominent examples of jurisdictions which have abolished appeals to the Judicial Committee.

US, Finland and Ireland, in response to China’s National Security Law, suspended their extradition treaties with Hong Kong. France stated that it would not be ratifying an extradition treaty with Hong Kong. These suspensions ostensibly were intended to safeguard the rights of nationals (and others) in the suspending States. In some cases such as the UK the same act could constitute retorsion, meaning that it could have been intended as a patently lawful (albeit less than friendly) reaction to the National Security Law. Thus, a foreign State – albeit apparently not the UK which, as a party to the Sino–British Joint Declaration, had declared a breach of the Sino–British treaty – could still treat the National Security Law as Beijing’s lawful prerogative, or in any case may have no clear legal right to press, yet still react with a perfectly lawful act of its own to show its displeasure.

Part II begins with the UK’s failure to secure a role for the Hong Kong judiciary in relation to the 1984 Joint Declaration. Part I had discussed the idea during the negotiations of subjecting amendments to the Basic Law to the judgment of an ‘international commission’, where Geoffrey Howe had considered it to be a non-starter. Instead, there was an attempt to have the Basic Law’s terms dictated in detail by the terms of the Joint Declaration resulting in a short statement of China’s ‘basic policies’ in paragraph 3 in the main body of the Joint Declaration, a more detailed ‘elaboration’ of these in Annex I and a clause in paragraph 3 (paragraph 3(12)) stating that both these basic policies and their elaboration will ‘be stipulated’ in ‘a Basic Law’ and will remain unchanged for fifty years.

This book begins with the origins and negotiation of the Sino-British Joint Declaration then turns to the immediate aftermath following its signature on 19 December 1984 and entry into force on 27 May 1985. That aftermath was a period during which the colonial administration pushed actively for democratic reform, following the conclusion of the Sino-British Joint Declaration but before Hong Kong was handed over on 1 July 1997. I have endeavoured to let recently declassified files speak for themselves. The result is not always as focused as one might like. There is a higgledy-piggledy quality which is common in any protracted treaty negotiation. Plans had to change, new makeshift plans enacted and adaptation became both frequent and necessary. In all this, China’s negotiators might come across as certain and confident but this is only because, but for the occasional speaking role granted to them in the UK records, the files show little other than the silent, gleaming splendour of the national emblem above the Zhongnanhai’s South Gate. In stark contrast, doubt and frailty, even occasional bigotry at the rag end of colonialism, is laid bare in the files from the National Archives.

The repercussions of the passage and promulgation in Hong Kong of the 2020 National Security Law (NSL) have been global in reach. Hong Kong featured prominently as the Trump Administration in the United States and Beijing teetered on the brink of a new Cold War. The National Security Law marked also a downward spiral in Sino-British relations amidst a wider backlash from, amongst others, the ‘Five Eyes’ alliance nations, comprising the US, the UK, Canada, Australia and New Zealand. This chapter describes the controversy over the 2020 law and the Sino-British exchanges which took place around it, both before and after its passage.

The PRC’s foreign affairs power had, briefly, been described in the previous chapter, together with the power in the realm of defence. These powers impose together important and at times anxious limitations on Hong Kong’s autonomy, not just on Hong Kong’s external affairs and foreign treaty relations but also on the judicial function of the courts. In the ‘Twelve Points’ which became the Joint Declaration, the sixth was that Hong Kong will manage its own affairs except in defence and foreign affairs. That qualification is often forgotten or dismissed, but it cannot be so easily brushed aside.