Proscription of Palestine Action ruled unlawful

Today the Divisional Court handed down its judgment in the judicial review challenge to the Home Secretary’s decision to proscribe Palestine Action as a terrorist organisation. 

The three judge court upheld two grounds of the claim. 

Firstly, the decision was not consistent with the Home Secretary’s policy on proscription. 

The policy required the Home Secretary, when deciding whether to exercise the discretion to proscribe, to take into account into account “other factors including [1] the nature and scale of the organisation’s activities, [2] the specific threat it poses to the UK” and three other factors. 

The Home Secretary took into account the view that proscription would be advantageous, for example because it would mean the offences at s.11-13 of the 2000 Act could be used against people supporting Palestine Action, and would provide “significant disruptive benefits”. The Court held that, for the purposes of the policy, this was not a relevant consideration. The purpose of the policy is to limit the use of the discretionary power, and any “other factors” must be of the same nature. They must contribute to the particular need to proscribe the organization above and beyond the necessary belief that the organization is one that is concerned in terrorism. The operational advantage, relied on by the Home Secretary, would apply equally to any organization that could be proscribed, so it is inconsistent with the purpose of the policy (§89- 95).  

Secondly, the decision breached articles 10 and 11 ECHR. 

The Court held that this was not an ab ante challenge to the compatibility of the Terrorism Acts, or any of the provisions in those Acts, with Convention rights. The decision was not a general measure, albeit that it had to be approved by Parliament by affirmative resolution. It is a challenge to a specific, executive decision. 

The Court noted that ECHR rights do not afford any protection to violent or non-peaceful protest. But what needs to be justified is not the restrictions on violence committed by a few members of Palestine Action; it is restriction on peaceful protest, under the Palestine Action banner. That is: 

“this case is primarily concerned with the rights of individuals who have not acted unlawfully either before or since proscription, who would have wanted to express support for and associate with Palestine Action – whose stated aim is “to stop genocide and other atrocity crimes by causing disruption to corporate actors who aid, abet, facilitate and profit from those crimes” – and who wished to engage in peaceful protests under the banner of Palestine Action, but are stopped from doing so.” §115. 

The Court decided that the interference with article 10 and article 11 is very significant. The reasoning to support that, included: 

• The criminal law consequences of proscription are very significant.
• The ‘chilling effect’ is relevant: that is, the “the fact of proscription and the heavy penalties for the offences under the 2000 Act will mean that it is reasonable to expect people to be risk averse, to adjust their behaviour and to avoid doing things that run any significant risk that they might commit any of those criminal offences”: §121.
• Some weight attaches to the position of journalists and academics, who will want to err on the side of caution of what they report. But “all ought to… understand that journalists’ opinions and preferences are not per se aligned to the news events they report” §123. The implication is that a journalist does not commit an offence under s.12 of the Terrorism Act 2000 of expressing support for a proscribed organisation, by reporting or teaching what others say about it. The court accepted that s.12 offences could cause genuine problems for organisations campaigning against the fact of proscription and the use of the power to proscribe: §123.  
• The Court held the “interference with article 11 rights is stark: the very purpose of proscription is to put measures in place that are designed to ensure that an organisation ceases to exist.” §135
• However, little weight was given to the impact on those arrested for holding ‘I Support Palestine Action’ banners, because they knew or ought to have known they were supporting a proscribed organization. The fact that police made errors, arresting people for action which was not in fact criminal, was also not considered relevant: §118-120. The Court did “not consider that the proscription of Palestine Action is likely to result in any general impact on expressions of support for the Palestinian cause.” §136. 

The Court rejected the Claimant’s argument that there was a less intrusive measure that did not unacceptably compromise the achievement of the objective pursued.  

However, it held that the measure was disproportionate, and a fair balance had not been struck. Only a very small number of the organisation’s actions amounted to terrorism within the definition in the TA 2000. The criminal law was in any event available to prosecute those actions, and other criminal acts of the Palestine Action members.  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.” §140. 

The court dismissed two other grounds, regarding procedural unfairness and failure to have regard to relevant considerations.

Further submissions will be made about remedy. 

Adam Straw KC and Rabah Kherbane acted for the Intervener, the UN Special Rapporteur on Counter-Terrorism and Human Rights, instructed by Daniel Machover of Hickman & Rose solicitors.