The Chinese State attacks the Bar: A Call to Arms – Lord Sandhurst QC

31 March 2021 by

On 26 March, the Government of the People’s Republic of China announced sanctions against a number of British individuals and entities. Most publicity has been attracted by the inclusion of well-known politicians on the list. But the most sinister inclusion may be “Essex Court Chambers”. Whereas the sanctioning of a politician, who is unlikely to own property in China, is a largely symbolic gesture, the announcement in respect of the set of barrister’s chambers strikes at the heart of the English legal system and the services offered by English lawyers. It also has serious ramifications for all commercial transactions relating to China.

The decision against Essex Court Chambers is understood to be related to the fact that four individual members of those Chambers had together written an opinion concerning the treatment of the Uighur population in the Xinjiang Uighur Autonomous Region. It appears that that legal opinion was written pursuant to instructions received from the Global Legal Action Network. Each of the four barristers was thus providing independent legal advice for a client pursuant to their professional obligations and qualifications as members of the Bar of England and Wales subject to the regulatory supervision of the Bar Standards Board. According to the chambers’ website, my source for this material, none of those four barristers published that legal opinion.

So, for giving advice in accordance with the traditions and obligations of those who practice at the English Bar, they and others who practice from that address as members of those Chambers, have been made the subject of sanctions for what China has said was spreading “lies and disinformation”.

I leave aside here the obvious nonsense that for a lawyer in confidence to write an opinion for his client can conceivably be described in the English or any other language as spreading that material, whether it
be true or false. Equally obviously the Chinese government has failed to grasp that the barristers who wrote this opinion while belonging to a group of lawyers practising out of the same address and pooling resources such as library and secretarial facilities are nonetheless individuals who are not partners in a business or members of a firm or company running that business.

The sanctions not only ban those affected from entering China, Hong Kong and Macau and freezing any property they may have in China, but – far more importantly – prohibit all Chinese citizens and institutions “from doing business with” those on the sanctioned list. Seemingly this means that all Chinese clients are prohibited from instructing any barrister at Essex Court Chambers.

The 90 plus members of Essex Court Chambers, with which I have no association whatsoever, are among the leading international commercial lawyers in the English-speaking world. Each is a sole practitioner. Think of them as 90 business enterprises. The English commercial Bar if not pre- eminent is at the top of the commercial legal tree and is a critical part of the English commercial legal system which underpins the City of London and its trade and activities through the world.

The sanctions and these actions against these lawyers for doing their job must be seen as an outright attack on all who offer services whether as lawyers or arbitrators to businesses and individuals in China. For what it means is that if a lawyer advises someone in terms which are unappealing to the Chinese government and the recipient of that advice makes it public or the Chinese government otherwise takes a dislike to what is being done by the client that lawyer is at risk of similar future sanctions.

The ramifications affect all British companies who do business with Chinese clients. Typically, such contracts include provision for disputes to be resolved by arbitration, often within Hong Kong. Henceforth, the members of the sanctioned chambers are to be refused admission to the territory of Hong Kong and the whole of China. So, unless the Chinese clients agree to an arbitration outside China, for instance in Singapore, the British firm’s freedom of choice of advocates is now subject to Chinese Government vetting.

Today it is the members of Essex Court Chambers who are sanctioned. But tomorrow it might be Clifford Chance, Freshfields or some other major city law firm or Chambers of barristers which wittingly or otherwise offends the Chinese state. The Financial Times is right to say that ‘the situation underlines the increasingly difficult position for UK lawyers that are exposed to potentially lucrative arbitration work in China via Hong Kong’s legal system’.

That is the threat which the Chinese state has issued. Lest it be thought that I exaggerate, we need only to look at the attacks being mounted by the Chinese state on the major retail brands such as H&M, Nike, Burberry and others for having expressed concern at what is going on in the same cotton-growing Xinjiang autonomous region. According to the BBC, while H&M’s physical stores in China remain open, it is no longer possible to hail a taxi to the shops using an App and consumers cannot shop online. Burberry and other leading brands have lost China spokespeople. The Chinese state is driving its consumers to abandon those who offend it. In this country it has attacked lawyers, MPs and members of the House of Lords who have spoken out against what they believe to be happening in Xinjiang.

The Prime Minister at the weekend met the five parliamentarians at the weekend to show his support. He should now meet members of Essex Court and show his support for them.

The Lord Chancellor, as Secretary of State for Justice, and the Foreign Secretary in particular must see that steps are taken to protect our lawyers, our businesses and our private citizens, as well of course, as our representatives in Parliament. They must make it plain that threats and bullying will be resisted and treated with the contempt which they deserve.

The professions through the Bar Council and the Law Society must act also at once and involve the International Bar Association and the American Bar Association to ensure that lawyers everywhere act with solidarity. Essex Court Chambers cannot be left isolated. It would be intolerable if other chambers or law firms simply took over work which is transferred away from Essex Court. Urgent thought must be given to special codes of conduct to prevent that.

The commercial world must rapidly revise the basis on which it is prepared to contract with Chinese firms to insist on dispute mechanisms outside China if future contracts are to be made. Such policies will only be effective if other countries in the Western world are willing to join in a united stand on trading practices. Our legal profession must, therefore, receive every support from our Secretaries of State. Ambassadors in Washington and elsewhere must get to work to bring other countries on the side in making it plain that behaviour such as the Chinese state has manifested this week will not be tolerated and will be resisted.

Since 29 March, China’s mouthpiece Global Times has boasted on the web: 

A UK chambers’ removal of a legal opinion defaming Xinjiang shows China’s counter-sanctions are an effective deterrent against rumours.

These steps by the Chinese state foreshadow dangers for a much wider body than those immediately affected. They call for a concerted and strong response by lawyers and governments from all democratic state.  Individual sets of chambers, the commercial Bar and the Bar Council as a whole must press the Law Society and major firms to mount a co-ordinated response and take this forward through suitable national and international bodies

This is a call to arms which must not be ignored. We are all ‘Essex Court’ now.

Lord Sandhurst QC is former chair of the Bar Council who practised as Guy Mansfield QC. This article was originally posted in The Journal of the Society of Conservative Lawers

1 comment;


  1. Hilary Gray says:

    Hi Scott,
    Given the development of China’s power in the world, this piece by your old friend Guy Mansfield is fascinating, & I thought you might be interested.
    Hope all else is reasonable, & let’s hope our unlocking proceeds without too many hitches. Best to you Scott from HIlary

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: