233: Proscription and Protest: The Palestine Action Decision

And also, of course, it's a decision of huge significance to the wider public, many of whom have been caught up in this decision. I'm sure our listeners are familiar with the background to this case, but just briefly, on the twentieth of june, members of Palestine Action broke into RAF Bryce Norton. They sprayed red paint into turbines of two of the aircraft there and attacked the aircrafts with crowbars and sprayed paint onto the runway symbolizing bloodshed.

Shortly thereafter, on the fifth of july, Palestine action were prescribed under the Terrorism Act. According to Amnesty International, as at the eleventh of december twenty twenty five, over two thousand seven hundred arrests have been carried out across the UK, many of those peacefully protesting against genocide in Gaza. Of those arrests, approximately two hundred and fifty four protesters have been charged.

The cost of the public purse has been estimated in the sum of ten million pounds, specifically for policing, and some juries now seem unwilling to convict members of Palestine Action. So with that background in mind, I'd like to welcome back our listeners after a short period of hibernation, and to welcome back John Metzer, fellow barrister at One Crown Office Row, to discuss this case.

So before we get into Palestine action specifically, John, can you explain the basis upon which organisations like these come to be prescribed under the Terrorism Act and the effect that prescription has?

And that creates a power given to the Home Secretary to prescribe an organisation if she believes the organisation is concerned in terrorism. And terrorism is also defined under the Act at Section One as the use or threat of action When that use or threat is designed to influence the government, or relevantly to intimidate the public or a section of the public. and is made for the purpose of advancing a political, religious, racial, or ideological cause.

and action is also defined as serious violence against a person and serious damage to property. There are other things as well, that that's what's relevant here.

And she said this had been increasing in frequency and severity since the start of twenty twenty four, which of course was shortly after the events of October the seventh and the conflict which followed. And the government said that the methods had become more aggressive

And the focus had been on the Elbit Systems UK, which is a defence company and a subsidy of Israel's largest military manufacturer, the Home Secretary pointed to an attack against a Jewish owned business in North London where the glass front of the building was smashed. and the building and floor defaced with red paint, including the slogan Drop Elbit.

out with a kind of list of other organisations. And what I found particularly interesting about how the claimants presented their own activities. To the divisional court and where they thought they sat. So this is discussed in paragraph 21 of the judgment, and there they

compare their actions to, for example, Gandhi's campaign against the Indian Salt Act, eighteen eighty two, or the civil rights movement in the United States of America in the fifties and sixties. I don't think any fair evaluation of their activities would suggest that that was true and of course the divisional court rejected that. quite strongly. But I do think there is a range of activities between, for example, the civil rights movement in the US and peaceful protests and sit ins.

acts of terror. And I think, you know, for a lot of our listeners who have been paying close attention to other political activities, for example those of Extinction Rebellion, where one could describe their targets and activities quite similarly. So, you know, not defence organizations and businesses, but fossil fuel companies and deliberately targeting organisations who associate with them, so museums, cultural organizations, etcetera, et cetera. And use kind of similarly

intimidatory tactics and criminal tactics to place pressure on those organizations to relinquish their links to, for example, the oil industry. I'm not defending those activities, but I do think it's interesting that the Palestine Action sought to kind of place themselves well beyond, I think, any kind of reasonable assessment of of what their activities actually were. What do you think, John?

embeds itself in civilian areas, that must be a relevant factor to how the war progressed. But in a sense that's by the by, because it's a choice for the government to make as to whether it considers this organisation to be a terrorist group or not. And no doubt you're right that it isn't of the same nature as an organisation like Al Qaeda. I would point out though that the Court, even though it finds that the prescription was unlawful and will go into the detail, the Court

is very heavily critical of Palestine action. It says that it's an organisation which what it refers to as direct action comprises for the most part various types of criminality, including acts of criminal damage.

and it rejected as false the contention that these were acts of protest in that tradition. It says the court said that the core hallmarks of civil disobedience, namely the objective of seeking a change in the law or government policy, an approach to law breaking that is characterized by restraint

and acceptance of the legal consequences of their actions are emphatically not the hallmarks of Palestine Actions campaign. And the court also notes that even though it's quite right to say that only a small number of instances of action by members of Palestine Action met the threshold for terrorism. It noted that those acts.

The organization did not distance itself from them, and it praised those who took part in them, and that seems to me to be of importance because if they had said, Look, we're mortified, this is not our house. We don't do this kind of thing. We believe in political protest. Then that would feel like a different situation. So I think what the court has said.

there is really interesting and we'll look at what it means because it seems to me that the court has then set out the ingredients of an organisation which is capable of being considered to be a terrorist organisation, even if it isn't the same as organizations which we consider to be classically terrorist in character. And so I think it's gonna be interesting to look at that when we look at the detail of the decision.

And when considering that question, the policy says that she will take into account other factors, including five factors in particular. One, the nature and scale of the organisation's activities. to the specific threat that it poses to the UK. three, the specific threat that it poses to British nationals overseas. four the extent of the organisation's presence in the UK and five the need to support other members of the international community in the global fight against terrorism.

So prescription would provide law enforcement with additional levers to disrupt Palestine Action's operations, critical infrastructure, operate overtly and use media platforms to project legitimacy and potentially radicalise people to its cause. So the divisional court essentially took issue with the Home Secretary taking into consideration that operational benefit. Can you explain, John, why they took issue with that?

The court said that the nature of this policy and its purpose is to limit use of the discretionary power to prescribe. And the court conceptualised those five factors as having that effect. And held in that context. that it was impermissible to consider that prescription would be advantageous because it would mean, as you explain, that relevant offences could be used against any person supporting the organisation, because that goes

outside how the policy is meant to apply and was not a relevant consideration. And so even though latitude is given to the Home Secretary to decide for herself which matters were appropriate, other factors, the court said The operational consequences and advantages of prescription is not a factor consistent with the policy for the obvious reasons that such consequences and advantages will apply equally to any organisation that could be prescribed.

to conceptualise this policy in quite the way that the court does, as being for the purpose of limiting the circumstances under which prescription would be prescribed. I think it's quite conceivable that the Court of Appeal will feel that really what this policy does is just encourages and invites the government to consider all the relevant factors, those that point in favour and those that might point against. And I'm not really sure that all of the five factors do have the limiting effect.

So it seems to me, for example, that the fifth factor, the need to support other members of the international community in the global fight against terrorism, I think that in theory, that factor could operate in a permissive way. So for example, let's say that there is an organisation which is very small in the UK and there isn't really much evidence that it poses a threat to British nationals.

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So I'm not really sure that the five factors are all have the purpose of limiting. I wonder if the Court of Appeal will see them more as simply being a list of factors which are all relevant. rather than all limiting. And so I think it could be and I would guess that the Court of Appeal will take the view that the approach to the policy was unduly rigid. Of course I may be completely wrong.

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it's one that on all of them can be weighed up and could be limiting. I think this is of a slightly different quality. So I'm more on the side of the divisional court. on this one. And I think it's well worth when reading your article, to also look at Daniela Locke's article where she looks at the language of the policy and looks more widely to parliamentary material to consider the purpose of the policy and and she comes down on the side of it.

being one that is necessarily designed to constrain the use of the Home Secretary's discretion. I think it's one that is wide open for discussion and I think, as you say, it certainly

um territory upon which the Court of Appeal might come to a different view. But yes, for what it's worth, I do agree with the divisional court that the operational consideration is of a different quality to that which is in the policy. But I think that the divisional court implicitly recognised that this is something that could go in the other direction.

under the banner of Palestine action, but are stopped from doing so. And these are the people that the court has in mind when it reaches the conclusion that it is disproportionate. to have prescribed Palestine action, the court found that deciding where the balance should be struck in this case is difficult. The court said to paraphrase that deciding where the balance should be struck in this case is difficult.

that the court should permit some latitude to the Home Secretary, given that she has both political and practical responsibility to secure public safety. Nevertheless, said the Court, we are satisfied that the decision to prescribe 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 of Section 11 of the 2000 Act.

aimed at the destruction of any of the rights and freedoms set forth herein, or at their limitation to a greater extent, than is provided for in the Convention. And of course the Convention provides for a number of rights, including the right to private life and we also have the first protocol and Article one of that provides for the right to property. And this isn't a really important part of

the ECHR, and I'm a big supporter of the ECHR, and it was framed after the Second World War essentially as a rejection of both fascism and communism. And it is designed with the thought in mind that a state shouldn't harbour the organizations which might be destructive to a liberal democracy. That's the idea behind Article seventeen. And I just wonder Given that the court has conceptualised Palestine actually in the way it has and has said that it's an organization that is

designed to carry out acts of criminality. And they also note that even though it was only a small number of acts that met the threshold for terrorism,

Palestine action had lauded those who took part in them rather than distancing themselves from them. I just wonder whether the Court of Appeal will think that enough attention was paid to Article seventeen here, because In the end, I think it could be that the Court of Appeal will wonder well, the people who want to engage in peaceful protests for entirely legitimate political debate reasons

Why does it need to be under the banner of this organization, given what the divisional court has said about the nature of this organization? And the court also noted that the impact of the prescription will not prevent continuing expressions of support through peaceful protests. for the Palestinian cause or to oppose actions taken by Israel or the Israel Defence Forces, it wouldn't prevent any or all demonstrations targeted at Elbit.

and it was not considered that particular forms of protest action were so closely or uniquely associated with Palestine action, that either undertaking such actions or advocating them could properly be considered to be support for Palestine action. And in that context, I wonder the finding that there would still be a very significant interference in Article ten and Article eleven.

whether the Court of Appeal will look at that and take a different view. And again, I should emphasise it's a carefully reasoned judgment by three very well respected judges. But I do wonder if on appeal it may be felt that when you consider the findings as to the nature of the organization, when you consider the findings as to the impact of prescription, and when you consider the question of whether

uh those people who would wish to engage in peaceful protest could do so under another banner, whether the Court of Appeal may take a different view as to whether prescription was disproportionate. And my guess is that they will. And again, I could be wrong.

prior to that date. So y you don't have to associate yourself with Palestine action to do so, albeit of course, you know, since twenty twenty we have the Israel Gaza War, which has obviously changed things. But I think that the divisional court do grapple with this.

at paragraph one one seven that you referred to, John. So I do think that has formed part of their reasoning. So I'd be interested to see Felly mae'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd

the comments that the divisional court have at one one five, one two one and one two two, essentially they say people can still ostensibly protest as long as they don't associate with Palestine action. But what they do is say that there has been and will continue to be, not their words, but a chilling effect.

on those who have been associated with the group or loosely associated with the group or from those who feel like they could be even if they've had nothing to do with it. And I think one of the issues that the divisional court highlight is that academics, members of the wider public will feel not able to speak up on political issues that they feel keenly about because they're worried about falling within the wider remit of this prescription. And so

I think that was kind of the central point for the divisional court. But I agree. I think this is one where it is a very finely balanced decision. The divisional court recognized that. And although they pay lip service to, I think, affording latitude to the political judgment of the home secretary, I think where it is such a finely balanced and difficult decision. to make. My view is that historically courts in those circumstances have stepped away from imposing their own

view on those things, especially where it's difficult. So I think that could be a kind of more meta or first principles way that the Court of Appeal find against them on that. I don't know what you think.

Now of course I was wrong about that. I may be wrong again. And as you say, the Court of Appeal may say that the divisional court demonstrates its consideration of these factors and comes down on one side and decides not to interfere with that. On balance, I think though they are more likely to take the view that the reasoning is vulnerable for the reasons that we've discussed. It will be really interesting to look at

how they decide it because this is a fascinating case. It touches of course on pressing matters of current affairs, but also it goes to the heart of legitimate protest and where the line is between legitimate and illegitimate protest, which is a question that I think has troubled societies for

that could be used to achieve the operational objectives that the Home Secretary was so concerned about when exercising her discretion under the policy. This is mentioned in the divisional courts decision at one hundred three nine and elsewhere, namely that when recognizing the activities of Palestine action and those associated with it are very broad, there were a a handful of very alarming

significant acts of violence and intimidation and criminal behaviour. In those circumstances, wouldn't it be better to use the criminal law to prosecute those who engaged in those activities rather than prescribe an organisation and run the risk that a number of peaceful protesters and other people that clearly fall on the other side of the line don't get caught up in. I I wonder if that might be a better emphasis for the Court of Appeal and for argument before the Court of Appeal.

A criminal law, of course, can deal with crimes which have been committed and also preparation to commit offences in some circumstances, although I'd imagine that's going to be hard to prove. So I think that the government could make the case that criminal law is essentially a reactive measure. of course you can argue also has a deterrent effect, but I think that it would be argued by the government's lawyers.

That when you're dealing with an organization highly motivated by its political cause, the question of whether the use of the criminal law is going to actually have a deterrent effect. on acts that constitute criminality and/or terrorism is doubtful because it could even be felt that people would not be put off.

And then you also have the fact that the criminal process is lengthy and it takes a while for cases to come to trial. So you're quite right. The Court of Appeal might well say that this alternative option means that the measure is disproportionate, but I'm not sure it's clear cut because I think that it could be that the Court of Appeal says that it was reasonable for the government to consider that the criminal law isn't adequate.

when you consider the evidence relied on for the events which have already taken place, coupled with the continued motivation. And I've said this already, but I do think it's significant.

that Palestine action lauded rather than condemned the acts found to have constituted terrorism. Who knows? I think you're absolutely right to focus on that as being a likely key area because It could be that the Court of Appeal says the divisional court carefully considered this and the reasoning is perfectly adequate to answer why they found it to be disproportionate.

I think that the Court of Appeal may more likely say that the government had reasons why it felt the criminal law wouldn't suffice. It was pursuing a legitimate aim. and it was within the range of reasonable options and therefore when you consider the margin of discretion it wasn't disproportionate and I'll be really interested to see what the outcome is on this and really interested to discuss it with you further.

sympathies. So I'm sure that if this issue becomes more prominent that those are also factors that the government may point to in terms of how effective the criminal law is as a tool to meet their objective. So what next? We're in a funny situation, aren't we? Because Shabana Mahmoud has been given permission to appeal as of last week. So we know that an appeal is is happening.

I suspect the Court of Appeal will want to deal with this quite quickly because the quashing order of the divisional court has been stayed pending that appeal. And operationally in the meantime, although the Metropolitan Police have said they'd stop arresting people, they haven't released anyone in prison. So we're i in limbo, aren't we, un until we get um the decision at least of the Court of Appeal.

you know, it could well be that the divisional court decision is upheld or it could be overturned. But either way, clarity would be really helpful so that the police know where they stand and the police have decided essentially they've gone for a kind of halfway house.

And I think that it would help everyone to know what the position is. So I don't know what the timetable will be, but I would guess the Court of Appeal would want to hand down the decision as soon as it can and before the end of the year would be my guess.