Liberty fought tyranny in the High Court in London last week, in what I believe is one of the most important cases of our time. The problems were simple. Is it permissible to publicly disagree with the British government’s foreign policy?
If not, how much do you have to disagree to get in trouble? And can you be severely punished without due process?
I have a strong personal interest in this, as I often (almost always) disagree with British foreign policy. This often seems to be made by bomb-loving teenagers who have never looked at a map, opened a history book, or taken a proper trip.
These are undoubtedly huge problems for any country. Regardless of anything else, if foreign policy cannot be criticized, how long will it take before domestic policy is similarly protected?
Yet this titanic and principled battle has taken place almost unnoticed in one of the smaller courtrooms of the Royal Courts of Justice.
The case dates back to July 2022, when the Foreign Office imposed sanctions on a video blogger named Graham Phillips (pictured), a British citizen and former civil servant living in Russian-occupied eastern Ukraine.
Liberty fought tyranny in the High Court in London last week, in what I believe is one of the most important cases of our time. The problems were simple. Is it permissible to publicly disagree with the British government’s foreign policy?
The case dates back to July 2022, when the State Department imposed sanctions on a video blogger named Graham Phillips, a British citizen and former civil servant living in Russian-occupied eastern Ukraine.
Mr Phillips, described in Parliament as a ‘pro-Russian propagandist’, was subject to an ‘asset freeze’ and is challenging the sanctions decision.
Although most people will find his views abhorrent and that he has behaved badly in other ways, as the great US Supreme Court Justice Felix Frankfurter once said: ‘The guarantees of liberty have often been forged in controversies involving not very nice people were involved.’
The High Court heard how sanctions mean Phillips is ‘experiencing hardship’. He cannot be paid for his work, nor for his mortgage on a house in London, nor for his council tax. Although he can apply for permits for this, he refuses on principle to live according to government permission.
Does the power of the government violate the right to free speech?
Unable to afford a lawyer, Joshua Hitchens (no relation to me) believes the principles behind the case are so important that he took the case for free.
During last week’s two-day hearing before Judge Swift, State Department lawyers argued that certain material produced by Mr. Phillips, which was widely shared on social media, was prepared in collaboration with Russia. They also pointed to an interview with Aiden Aslin, a British citizen who was captured by the Russians after traveling to Ukraine to join the fight against Russia.
Joshua Hitchens told the court that the British government’s action was an unlawful infringement of the right to freedom of expression.
He argued that it is an unprecedented power with serious consequences for freedom of expression and that the sanctions cannot fulfill their stated purpose of “preventing Russian attempts to destabilize Ukraine and undermine its territorial integrity, sovereignty and independence” . argued that Russia’s 2019 (sanctions) regulations specified a wide range of activities. This could include speech or communication, such as propaganda or disinformation, that supported Russian war objectives.
Joshua Hitchens pleaded for freedom, with a lone lawyer to help him. On the other side was a large and expensive State Department team led by a leading QC, Maya Lester. Behind her sat three other lawyers, supported by half a dozen assistants and paralegals.
Graham Phillips (accompanied at one point by a black and white cat) watched via video link from his home somewhere in Russian-occupied eastern Ukraine.
His lawyer had a simple but big point. Does the British government have the power it used to punish Mr Phillips? And if so, is that power legal, or does it violate fundamental rights to freedom of expression? The sanctions against him are a punishment, a “draconian measure that prevents someone from living their life.”
They punish Mr Phillips, it was argued, for exercising his freedom of speech and discourage him and others from exercising that right in the future. It is impossible to know, Mr. Phillips’ lawyer argued, whether such rules will be applied to others in the future. There’s also no telling when they might end if implemented. They cannot be compared to a fine or a prison sentence that, once paid or served, is over.
Mrs. Lester had many minor points. She argued that the expression of support for (‘glorifying’) the Russian invasion, of which Mr Phillips is accused, was itself a kind of material aid to Russia or harm to Ukraine.
She did not accept the position of Mr Phillips’ lawyer that the expression of an individual opinion was completely different from the expression of propaganda for a fee from an official broadcaster or a pro-government newspaper. This was related to Mr. Phillips’ views on Ukrainian military action in the eastern districts, and his attacks on neo-Nazis in Ukraine.
Mr. Phillips is also accused of being present at battles and watching them from the Russian side.
Well, this is certainly unusual. But during the Spanish Civil War of the 1930s, in which Britain did not directly participate, British journalists reported on it, both from the government and the rebels.
The BBC has reported on the neo-Nazis in Ukraine, who are very numerous. And Russian-speaking Ukrainian citizens have suffered at the hands of Ukrainian forces.
Ms. Lester is clearly a fine lawyer with a brilliant mind, but does she know much about the history of Ukraine? Is there anyone in the FO? What did they think they were doing when they sanctioned Mr. Phillips, who is probably unknown to anyone important in Moscow?
I may not agree with him, but Mr Phillips has the right to disagree
Ms Lester argues that he has received payments from Russian state broadcaster RT (which very few people watch), but does not mention anything very recent.
The real point of the case, in which judgment has been postponed until a later date, is this: if a British subject chooses to say things that could be said to ‘destabilize’ or otherwise upset the Republic of Ukraine , what exactly?
If Britain were at war with Russia in alliance with Ukraine, such statements could undoubtedly be regarded as a kind of treason.
But Britain, for whatever reason, did not declare war on Russia. The British government supports Ukraine and even I, who think this policy is insane, deplore the Russian invasion of Ukraine.
But Graham Phillips has the right to disagree with the British government and with me.
Maybe we don’t like this, or we don’t like him. But if the British government has the power to ruin people’s lives just because they disagree with their views, or because they sympathize with a country it doesn’t like, then we are not free and our own cause is tainted .
We should all be extremely grateful to attorney Joshua Hitchens for taking on this unpopular case.
In the long run, our freedom depends on people like him.