Terror ban quashed

What does the High Court ruling mean for Palestine Action — and for us all?

Home Office lawyers were deeply concerned when they learned last week that Palestine Action had successfully challenged a banning order made in July by the former home secretary Yvette Cooper.

Their concern was not just that people might in future be free to express support for the group by holding up placards. It was not even that 2,000 protestors who had already been arrested by the police for doing just that might no longer face charges.

Quite apart from losing in the courts, Cooper’s successor Shabana Mahmood feared that the High Court’s reasoning would make it harder for the home secretary to proscribe terrorist organisations in the future.

In a statement to reporters, Mahmood disagreed with what she described as the notion that banning Palestine Action was disproportionate:

As a former lord chancellor, I have the deepest respect for our judiciary. Home secretaries must however retain the ability to take action to protect our national security and keep the public safe. I intend to fight this judgment in the Court of Appeal.

Cooper said she had relied on her advisers when she proscribed Palestine Action. “If you are given advice about potential risks of violence and risks to public safety,” she told Trevor Phillips on Sky News, “you have to take that advice very seriously.”

In order to understand why Cooper sounded so defensive and Mahmood appeared so angry, it’s important to understand what sort of organisation Palestine Action is.

Referring to its co-founder Huda Ammori in the 47-page judgment they delivered on Friday, Dame Victoria Sharp, Mr Justice Swift and Mrs Justice Steyn said:

The claimant in her case in these proceedings has sought to portray Palestine Action as a “non-violent” organisation. This is not a sustainable proposition…

It follows from what we have said that the picture the claimant seeks to paint of an ordinary protest group engaged in activities that fall within the well-established tradition of peaceful protest is not an accurate picture.

The judges added:

At its core, Palestine Action is an organisation that promotes its political cause through criminality and encouragement of criminality. A very small number of its actions have amounted to terrorist action within the definition at section 1(1) of the 2000 act.

The home secretary’s decision that Palestine Action is an organisation concerned in terrorism was “not challenged” by Ammori in these proceedings, the court added.

Grounds of appeal

As I explained last October, Ammori was allowed to bring her claim on four grounds. Two proved to be successful. They were:

1. The home secretary had breached her own policy (ground 6)

2. The ban was an unjustified interference with the rights to freedom of expression and assembly (ground 2)

It’s the first of these that has caused so much concern in the Home Office.

Home secretary’s policy

Under section 3 of the Terrorism Act 2000, the home secretary may proscribe an organisation if she believes it is concerned in terrorism.

You might think that’s all she needs to do. Unfortunately, it’s more complicated than that.

By saying the secretary of state “may” proscribe an organisation, parliament was giving the home secretary a choice: there may be operational reasons for not banning a particular group at a particular time.

When a minister is given a discretion by parliament, it is not uncommon for the minister to publish a policy setting out how the power will be exercised. That was done while the Terrorism Act was going through parliament and the proscription policy has remained largely unchanged for more than 25 years.

The reason for having a policy is so that people will know where they stand. There would be no point in having one if it could be changed without notice. So the courts will enforce a policy by granting judicial review if necessary. The minister must comply with the policy as well as the statute.

The Home Office policy paper currently says:

What is a proscribed organisation?

Under the Terrorism Act 2000, the home secretary may proscribe an organisation if [she] believe[s] it is concerned in terrorism and it is proportionate to do [so]…

After quoting the statutory definition of terrorism, it continues:

What determines whether proscription is proportionate?

If the statutory test is met, the home secretary will consider whether to exercise [her] discretion to proscribe the organisation. In considering whether to exercise this discretion, the home secretary will take into account other factors, including:

• the nature and scale of an organisation’s activities

• the specific threat that it poses to the UK

• the specific threat that it poses to British nationals overseas

• the extent of the organisation’s presence in the UK

• the need to support other members of the international community in the global fight against terrorism.

Proportionality

When Ammori brought her challenge last year, both she and the home secretary relied on the definition of proportionality given by the Supreme Court more than 12 years ago in a case known as Bank Mellat (No 2). But they were wrong to use that test, as the High Court tried to explain:

Overall, we consider that the better approach is that the requirement in the policy to proscribe an organisation only if it is “proportionate” required the home secretary to approach the exercise of her discretion comprehensively: to appreciate the likely consequences of proscribing Palestine Action on its members/supporters and others; to understand the nature and significance of Palestine Action by reference to the five stated factors and/or other relevant considerations; and then to assess the need for proscription.

Cooper’s advisers had told her that proscribing Palestine Action would provide “significant disruptive benefits beyond the current policing powers” because it would mean that members and supporters could be arrested.

This was not one of the five factors listed in the policy paper. It was something new. The word “including” meant that new factors could be added. But, as a matter of principle, they had to be “consistent with the policy” — “of the same nature” as the other five factors in the policy.

In the courts’ view, a home secretary couldn’t just rely on the need to disrupt the activities of a terrorist organisation. “The factor must contribute to explain the particular need to proscribe that organisation above and beyond the necessary belief that the organisation is one that is concerned in terrorism.”

Even though the home secretary had some latitude, the ban on Palestine Action was not consistent with her policy. It would therefore be quashed, the High Court ruled.

Sharp and her colleagues had anticipated the Home Office criticism of their decision:

This conclusion may appear to rest on a very narrow basis — the home secretary had, after all, formed the belief that Palestine Action is an organisation concerned in terrorism and in these proceedings the claimant does not challenge that decision. However, this conclusion is a direct and necessary consequence of the policy the home secretary has applied to the exercise of her discretion to proscribe such organisations. The purpose of the policy is that not all organisations that meet the “concerned-in-terrorism” requirement should be proscribed.

Human rights

The court then dealt with Ammori’s claim that proscription of Palestine Action restricted its supporters’ rights of protest.

Freedom of expression and freedom of assembly are protected by articles 10 and 11 of the human rights convention. But those articles include exceptions for restrictions that are “prescribed by law” and meet other requirements. Not surprisingly, there is no protection for violent or non-peaceful protest.

Because the home secretary had failed to apply her policy properly, her interference with the claimant’s human rights was not prescribed by law. That, in itself, amounted to a breach of the Human Rights Act.

The court went on to consider whether the restrictions were “necessary” — whether a fair balance had been struck between the decision to proscribe and the “very significant interference with convention rights” involved.

This was a “substantial interference that required justification, the court said. But, it continued,

real weight must attach to the fact that Palestine Action has organised and undertaken actions amounting to terrorism as defined at section 1(1) of the 2000 Act. Those actions are small in number but they are still significant and it is also significant that these actions have happened in the United Kingdom.

There is, obviously, a heightened public interest in eliminating the risk of any action amounting to terrorism as defined in the 2000 act within the United Kingdom. Any such action is the antithesis to the notion of a democratic society that is the foundation of the European Convention on Human Rights.

It is significant that Palestine Action has not suggested that its actions that have been assessed to comprise terrorism were either a mistake or an aberration. Rather, Palestine Action has lauded those who took part in those actions.

It is, further, significant that the contents of the Underground Manual provide good evidence of Palestine Action’s continuing intention to promote the use of violence regardless of the risk that this will result in serious damage to property or serious violence against members of the public.

Deciding where the balance should be struck was difficult, the judges said:

When striking the balance between issues such as these the court must permit some latitude to the home secretary, given that she has both political and practical responsibility to secure public safety. Nevertheless, we are satisfied that the decision to proscribe Palestine Action was disproportionate.

At its core, Palestine Action is an organisation that promotes its political cause through criminality and encouragement of criminality. A very small number of its actions have amounted to terrorist action within the definition at section 1(1)of the 2000 Act.

For those actions, regardless of proscription, the criminal law is available to prosecute those concerned. If those involved are convicted they face the prospect of significant punishment, which would serve as a significant deterrent to others…

Considering in the round the evidence available to the home secretary when the decision to proscribe was made, the nature and scale of Palestine Action’s activities, so far as they comprise acts of terrorism, has not yet reached the level, scale and persistence that would justify the application of the criminal law measures that are the consequence of proscription, and the very significant interference with convention rights consequent on those measures.

Background

Before Palestine Action was banned, the group was assessed by the Joint Terrorism Analysis Centre at MI5. A report by JTAC, as the centre is called, concluded that Palestine Action was an organisation concerned in terrorism, as defined by the Terrorism Act 2000.

The High Court summarised JTAC’s findings:

1. Although most of its activity could not be classified as terrorism within the definition in section 1 of the 2000 Act, JTAC assessed that Palestine Action had “commit[ted] or participate[d] in acts of terrorism” to the extent of the attacks at Thales, Glasgow, on 1 June 2022, at Instro Precision (a subsidiary of Elbit) in Kent on 17 June 2024, and at Elbit in Bristol on 6 August 2024. JTAC noted that those participating in the Bristol attack had “entered the [Elbit] warehouse, using weapons including sledgehammers, axes and whips” and “during the attack two responding police officers and a security guard were assaulted and suffered injuries. One police officer had been assaulted with a sledgehammer and sustained a serious back injury”;

2. Palestine Action prepared for terrorism by publishing the Underground Manual which JTAC concluded provided “… practical advice and advocates for serious property damage” and could “increase the capability of cells to conduct actions constituting preparation for terrorism”;

3. Palestine Action promoted or encouraged terrorism because it had “publicised the 6 August terrorist attack [at Elbit in Bristol] and celebrated its perpetrators” — referring to them as the “Filton 18” and “as political prisoners” — and encouraged the public to send messages of support to them. JTAC noted that Palestine Action had not published video footage of the assaults that had occurred, only of the damage to property “consistent with its previous practice”. JTAC also stated that Palestine Action had “shared media relating to further incidents of property damage which JTAC assesses to have been carried out in accordance with [Palestine Action’s] political cause”;

4. Palestine Action continued to conduct direct action activities and in the next 12 months “… will conduct further activity constituting serious property damage in an act of terrorism”.

Analysis

Home Office sources were concerned that the court’s approach to proportionality would make it harder for the home secretary to take account of factors supporting proscription. Sources were particularly anxious about the last sentence of the following passage, believing it meant the home secretary could not rely on evidence in support of a ban:

Any decision-maker who adopts a policy for a particular purpose is at liberty to disapply or modify that policy in a particular case, but any such disapplication or modification must be express and must be for a sufficient reason.

In this case, the home secretary’s approach was to apply the policy… without modification.

The operational consequences and advantages of proscription is not a factor consistent with the policy for the obvious reason that such consequences and advantages will apply equally to any organisation that could be proscribed…

They hoped the Court of Appeal would take a different approach.

Mark Elliott, professor of public law at the University of Cambridge, thought that was possible:

The secretary of state’s policy concerned the circumstances in which an organisation that can be proscribed (because it meets the threshold criteria in the act) should be proscribed in exercise of the secretary of state’s discretion…

The use of the word “including” [in the list of proportionality factors] makes it clear that the secretary of state was not necessarily confined to considering only the explicitly stated factors — and indeed she did not consider herself to be so confined. One prominent additional factor taken account of by the secretary of state — which, the court said, may have been the “central consideration” underpinning the proscription decision — was that by triggering criminal offences such as “inviting support”, proscription would carry “significant disruptive benefits” with respect to Palestine Action. But, said the court, absent exceptional circumstances that did not apply here, proscription would always have such disruptive effects.

This meant that such effects could not constitute a relevant factor under the policy. Any such factors, said the court, had to support the purpose of the policy, which was to inform proscription decisions recognising that “not all organisations that meet the concerned in terrorism requirement should be proscribed”. The disruptive effect of proscription could not advance such a policy given that it would normally support the proscription of any organisation meeting the threshold criteria.

The logic of the court’s analysis here is certainly neat, but it rests on what might be considered a narrow or rigid reading of the policy. Indeed, the court itself accepted that its conclusion on this point “may appear to rest on a very narrow basis”.

On the court’s own reasoning, its conclusion would be open to challenge if the government were able to show on appeal that there were particular benefits that would flow from disruption to Palestine Action beyond the default benefits that attend the proscription of any organisation meeting the threshold criteria.

More generally, the court’s characterisation of the purpose of the policy — which then determines that the “other factor” relied on by the secretary of state runs counter to that purpose — does an awful lot of work in the court’s reasoning process. The court goes as far as to say that the purpose of the policy is “to limit use of the discretionary power to proscribe”: a conclusion that appears to be based on an inference from the policy, rather than on anything explicitly stated in it.

The court’s approach to characterising the purpose of the policy will no doubt feature heavily in any appeal against this judgment.

What happens next?

Scotland Yard took an unusually nuanced position. It said:

From a Metropolitan Police perspective, officers will continue to identify offences where support for Palestine Action is being expressed, but they will focus on gathering evidence of those offences and the people involved to provide opportunities for enforcement at a later date, rather than making arrests at the time.

This is the most proportionate approach we can take, acknowledging the decision reached by the court while recognising that proceedings are not yet fully concluded.

This approach relates solely to the expression of support for Palestine Action. We will continue to intervene and make arrests where we see people crossing the line from lawful protest to intimidate, to damage property, to use violence, to stir up racial hatred or to commit other offences.

The home secretary is seeking to appeal. In the meantime, I would expect her officials to start drafting a new proscription policy. That can’t affect the current case. But if government loses its appeal and the home secretary still wants to proscribe Palestine Action, she could presumably make a fresh decision based on the policy in force at the time. A new policy could meet her concerns about other groups that pose a threat to national security.

In the last paragraph of their written ruling, the judges said:

Subject to any further representations on relief, we propose to make an order quashing the home secretary’s decision to proscribe Palestine Action.

That order has not yet been made. Sharp asked the parties last Friday for written submission on its terms. These must be in by this Friday. In the meantime, the proscription order remains in force.

Ammori can be expected to argue that Palestine Action should be deproscribed while the courts deal with Shabana Mahmood’s proposed appeal. Home Office lawyers will say that the balance of convenience favours keeping the ban in place while the issue is still under consideration by the courts.

I would expect the High Court to maintain the ban on the understanding that the appeal will be heard without delay. Given that this would be an appeal against the decision of a court headed by the president of the King’s Bench division, it seems likely that the lady chief justice will sit, together with two senior colleagues.

Comment

Palestine Action claims to be a non-violent organisation. It would have us believe that its members have merely caused criminal damage running into millions of pounds.

In fact, it is a terrorist organisation. That’s the government’s view of Palestine Action, as it explains in its policy paper. According to the High Court, only “a very small number of its actions have amounted to terrorist action” as defined by parliament. But just as a person who commits a criminal offence is a criminal, an organisation that carries out terrorist acts is a terrorist organisation. And inviting support for a terrorist organisation is rightly a terrorist offence. So is displaying a sign that says “I support Palestine Action”.

Some of the 2,000 people arrested for that offence may be well-meaning folk who simply wanted to express an opinion. They would no doubt reject any suggestion that they were being used as stooges by a well-funded international terror group.

Those who want to see the proscription lifted may see the High Court’s judgment as a way of getting these defendants off the hook — and perhaps even avoiding the pressure of 2,000 prosecutions on a criminal justice system that is already struggling to cope.

But only last week the director of public prosecutions Stephen Parkinson explained how these cases would be managed if the proscription of Palestine Action was upheld by the courts:

It’s our responsibility to enforce the law and it’s the responsibility of the courts, obviously, to then deal with those cases. And we will rise to the challenge. It may be that we can deal with them in batches, because the same issues will arise in every case, and so we won’t have to have 2,000 separate trials. We will certainly try to manage the process in a way which is fair to defendants but also secures effective justice.

Everyone should respect attempts by the courts to do justice between citizen and state, to ensure that ministers keep within their powers and that our long-established rights are maintained.

But we must never surrender to those who — in the words of the Terrorism Act — use serious violence against a person or cause serious damage to property to influence the government for the purpose of advancing a political, religious, racial or ideological cause.