High Court Upholds Asset-Freezing Sanctions in Phillips v Secretary of State: Balancing Free Speech with National Security

Citation: [2024] EWHC 32 (Admin)
Judgment on

Introduction

In the case of Graham William Phillips v The Secretary of State for Foreign, Commonwealth and Development Affairs, the High Court addressed critical legal questions concerning the intersection of national security, free speech, and the permissibility under UK law to impose asset-freezing sanctions on an individual designated as part of a state’s propaganda apparatus. This case analysis elucidates the legal principles applied, drawing attention to the complex balance between individual rights and national security interests.

Key Facts

Graham William Phillips, the claimant, asserted that his journalistic activities in the Donbas region of Ukraine represented legitimate political expression. He contested the UK Government’s designation which froze his assets under the Russia (Sanctions) (EU Exit) Regulations 2019, asserting this was due to his political opinions expressed on social media.

Conversely, the defendant positioned Phillips as a propagandist for Russia, disseminating content that supported actions destabilizing Ukraine. Coupled with Russia’s military actions against Ukraine, Phillips’ activities were alleged to undermine Ukraine’s territorial integrity, sovereignty, and independence.

The court reviewed whether the Sanctions and Anti-Money Laundering Act 2018 permitted regulations affecting free speech, whether the 2019 Regulations sanctioned free speech, the lawfulness of asset-freeze as an interference with Phillips’ human rights, and the proportionality and justification of such a decision.

The case required the application of several key legal principles, among them:

  1. Principle of Legality: Central to this case’s premise, this principle requires that any statutory imposition that could restrict fundamental common law rights like free speech must be expressed in clear, explicit language. It became pivotal to determine whether the 2018 Act permitted regulations infringing on free speech and if this intention was manifest.

  2. ECHR Legality Requirement: The legal framework imposing sanctions must be adequately accessible and foreseeable, fulfilling the “prescribed by law” requirement under the ECHR, protecting against arbitrary state interference.

  3. Proportionality Test: Stemming from the landmark Bank Mellat case, the decision to maintain Phillips’ designation needed to meet proportionality requirements, assessing the legitimacy and importance of the national security objective, rational connection to that objective, the necessity of the sanctions as the least intrusive measure, and whether a fair balance was struck between the claimant’s rights and the public interest.

  4. Deference to the Executive: The court acknowledged that it must defer to the executive branch, especially in areas involving national security and foreign policy, where the executive is deemed to have particular expertise and institutional competence.

Outcomes

The High Court’s systematic analysis established that:

  • The 2018 Act allowed for regulations that could impact free speech, particularly under the operative framework for financial sanctions.
  • The 2019 Regulations did authorize the imposition of sanctions in response to free speech-related activities, aligning with pre-existing EU legislation objectives and actions.
  • The decision to maintain the claimant’s designation was justified and prescribed by law, having satisfied the legality requirement.
  • The proportionality assessment affirmed the decision’s legitimacy, supported by the aggregated impact of international sanctions aimed at Russian actions against Ukraine.

Conclusion

In upholding the asset-freezing sanctions against Graham William Phillips, Mr Justice Johnson navigated through a dense matrix of fundamental rights, statutory interpretation, and national security imperatives. This case underscored a critical point: while free speech is vehemently protected within the UK’s legal framework, actions bordering on state propaganda in a time of international conflict may justifiably be restricted. The decision affirms the UK’s commitment to balancing individual rights against collective security interests, provided there is a sufficient legal basis and proportionate justification for such infringements.