The Palestine Action Judgment and the Limits of Proscription Power

The High Court has ruled that the Home Secretary acted unlawfully and disproportionately in proscribing Palestine Action under the Terrorism Act 2000, yet the organisation remains proscribed pending appeal, leaving police, prosecutors and defendants operating inside a narrow and unstable constitutional corridor.

Police vans were stationed along the Strand outside the Royal Courts of Justice as supporters gathered with placards declaring support for Palestine Action. Officers had prepared to arrest. By late morning, the arrests did not come.

Inside, the Administrative Court delivered a judgment that is legally precise and politically combustible. The court held that the decision to proscribe Palestine Action was unlawful because the Home Secretary misapplied her own published policy and because the resulting interference with Articles 10 and 11 rights was disproportionate.

The ruling does not vindicate the group’s conduct. It disciplines the state’s method.

The Statutory Framework: What Proscription Actually Does

The Terrorism Act 2000 confers upon the Home Secretary the power to proscribe an organisation if she believes it is “concerned in terrorism.” That threshold is broad. It captures direct involvement, preparation, promotion, and encouragement.

Proscription is not merely declaratory. It triggers a cascade of criminal liability.

Section 11 criminalises membership. Section 12 criminalises inviting support and, in certain circumstances, expressing support recklessly. Section 13 criminalises the wearing or display of articles that arouse reasonable suspicion of support. The offences apply to any person, not only core activists.

The Act requires parliamentary approval through affirmative resolution. Parliament endorsed the proscription. That endorsement, however, does not insulate the decision from judicial review if the decision-making process itself is unlawful.

Two layers therefore exist: the statutory threshold of being “concerned in terrorism,” and the discretionary decision whether to deploy proscription. It is the second layer that fractured.

The Policy Constraint and Ground 6

The Home Office operates under a published proscription policy. The policy narrows discretion by identifying factors to consider, including the nature and scale of activities and additional contextual considerations.

The High Court found that the Home Secretary treated the generic disruptive benefits of proscription — the ability to use sections 11 to 13 as additional levers — as a decisive factor. The court concluded that this use was inconsistent with the constraining purpose of the policy.

The logic is constitutional rather than ideological. If the power is justified by the fact that the power is severe, the policy ceases to function as a constraint. The executive cannot justify invoking exceptional criminal consequences merely because those consequences are operationally useful.

This finding grounded Ground 6. It is orthodox public law. A minister who adopts a self binding policy must apply it lawfully.

Proportionality Under the Human Rights Act

The claimant also succeeded on Ground 2. The court applied the familiar four stage proportionality test: legitimate aim, rational connection, necessity, and fair balance.

The legitimate aim — protection of public safety and prevention of terrorism — was not contested. Nor was the rational connection between proscription and disruption.

The analysis turned on necessity and fair balance.

The court described the interference with Articles 10 and 11 as “very significant.” Proscription criminalises expressive and associative conduct beyond the organisation’s core actors. It carries stigma and practical exclusion. It chills speech and assembly not abstractly but structurally.

Even accepting that a very small number of actions could meet the statutory definition of terrorism, the court concluded that the draconian downstream consequences of proscription tipped the balance. The decision was disproportionate.

The court did not hold that the statutory offences themselves are uncertain or invalid. It rejected that ground. The Terrorism Act remains intact. The unlawfulness lay in the application.

Reaction: Vindication and Defiance

Political reaction followed immediately.

Huda Ammori, co-founder of Palestine Action, wrote on X:

“BREAKING: WE WON. The High Court ruled the Palestine Action ban is unlawful as it is disproportionate to free speech and the Home Secretary breached her own policy. The court ordered the ban be quashed.”

She added:

“This victory was won by the people… The ban was always unjust, now it is proven to also be unlawful.”

The language reflects political triumph. The legal position is narrower. The court proposed a quashing order, subject to submissions on relief. The order remains operative pending appeal.

The Home Secretary, Shabana Mahmood, responded:

“The Court acknowledged that Palestine Action has carried out acts of terrorism. It concluded that its actions are not consistent with democratic values and the rule of law. Supporting the Palestinian cause is not the same as supporting Palestine Action. The Government’s proscription followed a rigorous process, endorsed by Parliament. I will fight this judgment in the Court of Appeal.”

Momentum called for the government to abandon its appeal and demanded an inquiry. Other commentators argued that proscription elevated the group’s visibility.

The political field is divided. The legal field is more disciplined.

Operational Limbo

The order remains in force. That fact defines the present instability.

Police must decide whether to enforce an order the High Court has declared unlawful and disproportionate. Prosecutors must assess whether to continue cases that could collapse if the decision is ultimately quashed.

If the quashing order is treated as void ab initio, the legal basis for prosecutions predicated solely on proscription may evaporate. If relief is stayed pending appeal, enforcement continues under appellate supervision.

Section 31(2A) of the Senior Courts Act allows a court to withhold relief if it is highly likely the outcome would have been the same absent the error. The High Court refused to apply that provision, describing the policy breach as significant. That refusal is now a focal point.

Appeal Modelling

The government’s appeal will likely advance three principal arguments.

First, institutional deference. Ministers carry political responsibility for national security. Appeal courts are cautious about substituting their own proportionality balance for executive assessment.

Second, policy interpretation. The Home Office will argue that operational effectiveness is a legitimate contextual factor within the policy framework and that the High Court interpreted the policy too restrictively.

Third, remedy. Even if errors occurred, the government may argue that relief should be stayed to avoid legal chaos in live prosecutions and to respect parliamentary endorsement.

The counterpoint is procedural fidelity. Self binding policy is not ornamental. Judicial review exists precisely to enforce legal constraints on discretionary power. The High Court’s reasoning is rooted in orthodox doctrine rather than political sympathy.

A Constitutional Moment

This case is not reducible to slogans on placards or hashtags on social media. It is about the architecture of executive power under terrorism legislation and the judiciary’s role in maintaining its boundaries.

The High Court did not sanitise conduct. It held that the state misapplied a severe instrument.

Until the Court of Appeal rules, Britain occupies a narrow constitutional space: a group ruled unlawfully proscribed yet still proscribed; expressive conduct technically criminal yet selectively unenforced; prosecutions proceeding beneath the shadow of potential invalidation.

Judgments sometimes clarify. This one has illuminated the mechanics of power and exposed the tension between national security discretion and rights based legality.

The final word now rests with the appellate court.