British Totalitarianism

Since my an hour and a half long interrogation at Gatwick Airport last October, there have been a number of developments which only serve to reinforce my initial reaction, which is that Britain and Europe are sliding into totalitarianism.

First, I am not the only political commentator to have been treated in this way.  My friend Vanessa Beeley was, as I now learn, also subjected to the same treatment, in 2021, as was Kit Klarenberg of The Gray Zone in May.  Both Vanessa and Kit are British, like me, and yet we have been treated under legislation (the 2019 Counter-Terrorism and Border Security Act) designed to prevent hostile persons entering British territory.  The unspoken implication is that these supposedly hostile actors are not British citizens, whence the fact that the legislation applies only at points of entry into the UK. 

But the fact that the legislation creates a special legal regime which is in force only at borders, where normal rights are suspended, only emphasises the fact that this legislation creates lawlessness – a point I made in my first article on the subject.  It would not be possible to seize our computers and detain us in this way anywhere else on British territory.  Yet special regimes are the very opposite of the rule of law: as the seminal English constitutionalist, A. V. Dicey, defined it, "We mean [by the rule of law], in the first place, that no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.” (my emphasis).

Second, the seizure and retention of the material copied from my computer (of which I was deprived for three weeks, even though I depend on it every day for my work) was reviewed by two judges six months after the event.  This delay was itself a serious procedural infraction: the police are supposed to apply within seven days, not six months, for the right to keep such material. 

Worse, the reasons given by the two judges for keeping the material on my computer, again underline the illegality of the regime created by this 2019 Act (and incidentally also by the 2000 Terrorism Act which was used to detain a French publisher at St Pancras International station in April).  The judges both concluded that I was not accused or even suspected of anything, but that retention of material was still justified.

The first judge, Rt. Hon. Lord Menzies, wrote this: 

“The reason which has been advanced for the retention of this material is not that Mr Laughland has been engaged in interference activity directed by, or otherwise linked to, the Russian state.  It is that he may be linked to individuals who may have been so engaged. Nobody has accused Mr Laughland of anything, far less found him guilty of anything.  His reputation is not tarnished by the decision to retain the copied material and this decision should not be taken as a conclusion that he poses a risk to national security.  No such finding is to be implied in this decision.”

To be sure, it is comforting for me to have these words in black and white from a very senior judge.  (Lord Menzies sits on the Supreme Courts of Scotland.). But their implications for the rule of law are horrendous.  The conclusion is that a person who is neither accused nor even suspected of anything may have his private material seized, outside the normal framework of law which would prevent such seizure. 

Secondly, these special powers are exercised, as in my case, for reasons of pure fishing. The judge’s reasoning contains two uses of the conditional mood: I “may be” linked to people who “may have been” engaged in interference activity.  Leaving aside the fact that anyone “may be” linked to people who “may have” done something – such reasoning is the very opposite of the stability and certainty we require from the rule of law – it is not even clear what a “link” is.  And what is “interference activity”?  What law does this come under?  None of this is defined.  (I do not believe I have any links to anyone in this category.)

The second judicial ruling on my case only confirmed the first.  In the ruling on appeal, the Rt. Hon. Sir Brian Leveson repeated that I am not suspected or accused of anything. 

“It is no part of the argument that Mr Laughland has been engaged in interference activity directed by, or otherwise linked to, the Russian state.  It is that the material seized might reasonably reveal links to persons who might so be involved.  There is absolutely no finding express or implied that Mr Laughland himself poses a risk or threat to national security.”

Again: confirmation of my personal innocence – and of the fact that I am not even accused of anything - but also of the justification for the retention of my material on the basis of two hypothetical “mights”.  The material has been seized to find out information – “the material seized might reasonably reveal links to persons who might so be involved.”  In a normal state of law, a person’s property cannot be seized in this way.  As it happens, it seems that the material seized did not reveal any such “links”, because I have heard nothing back from the British authorities and have travelled on several occasions to the UK now without any problem.

Finally, it transpires that the totality of Britain’s terrorism legislation is subject to review by an independent lawyer, and has been since 2019.  His role is, in my view, similar to that of the two judges who reviewed my own case – to provide the impression that these abusive powers can and are being overseen by judges.  Jonathan Hall KC’s existence came to my attention when he published his report into the case of the French publisher Ernest Moret, detained and arrested at St Pancras station after getting off a Eurostar train from Paris in April.  Moret’s case gained international attention, unlike mine, because he is left-wing and gained support from left-wing MEPs. 

Hall concludes that the powers given to the police were abused in Moret’s case. The police evidently suspected him of being a left-wing agitator: he had been involved in violent protests against pension reform in France.  “Schedule 7,” he writes – this is the part of the 2000 Act used against Moret – “should not be used for the purpose of public order policing.” 

Oddly, the Independent Reviewer’s remit does not extend to the 2019 Counter-Terrorism and Border Security Act used against me, Vanessa Beeley and Kit Klarenberg.  So it does not appear to be under the same regime as other parts of terrorism legislation. Instead, that role is performed by the Judicial Commissioner of the Investigatory Powers Commissioner’s Office – the two judges who reviewed my case. 

Although Jonathan Hall KC is critical of the way the powers were used against Moret, unlike my two judges, it will be interesting to see whether his recommendations have any effect.  I very much doubt it.  In any case, he proposes only a change to the Code of Practice, not to the law itself. 

My fear is that his recommendations will be ignored and that these illegal and totalitarian regimes will remain in place.  The system is broken and probably beyond repair.  Our institutions do not work and are instead a grotesque caricature of themselves. 

That this should occur in a country which not only remains under the aegis of the European Court of Human Rights, but which has even integrated the European Convention into its own domestic law, is only proof of what Edmund Burke foresaw in 1790 – that “the rights of man” are nothing but “chaff and rags and paltry blurred shreds of paper”, bogus rights which in fact open the path to dictatorship.