A legal challenge to the ban on Palestine Action can go ahead next month after the court of appeal rejected the Home Office’s attempt to block the case.
In a blow to the government, on Friday, three judges, led by the lady chief justice, Sue Carr, upheld Mr Justice Chamberlain’s decision to grant the Palestine Action co-founder Huda Ammori a judicial review of the group’s proscription under the Terrorism Act.
The ban, the first on a direct action group, came into effect on 5 July, categorising it alongside the likes of Islamic State and National Action. Since then, more than 2,000 people have been arrested under the Terrorism Act for allegedly supporting Palestine Action, most for holding signs reading: “I oppose genocide, I support Palestine Action.”
As well as dismissing the Home Office’s appeal, Carr said the court of appeal was granting two further grounds on which to challenge the legality of the ban, in addition to the two already granted by Chamberlain.
Ammori said: “The court of appeal has rightly rejected [the former home secretary] Yvette Cooper’s attempt to block a legal review of her absurdly authoritarian ban – while granting us additional grounds on which to challenge it.
“This is a landmark victory: not only against one of the most extreme attacks on civil liberties in recent British history, but for the fundamental principle that government ministers can and must be held accountable when they act unlawfully.
“The government’s effort to avoid judicial scrutiny of its blatantly anti-democratic proscription – branding a protest group as ‘terrorists’ for the first time in British history – has backfired spectacularly, and we now head into the judicial review in November with an even stronger legal footing.”
The Home Office argued at last month’s appeal hearing that parliament had specified the route to challenge proscription, which was to apply to the home secretary, who has 90 days to make a decision, and then, if necessary, appeal to the Proscribed Organisations Appeal Commission (POAC). It described judicial review as “a remedy of last resort”.
But Carr and her fellow judges said the mechanism designated by parliament was intended to bring proscription of a group to an end rather than to challenge the lawfulness of the initial decision to ban it.
Echoing Chamberlain’s concerns about the position of those who have been arrested since the ban, Carr said in her written judgment that the process of appealing to POAC “does not provide for the removal of the consequences, including criminal convictions, where the [proscription] order was unlawful from its inception”.
“We consider that the fact that judicial review would be a more expeditious means of challenging the order, given the public importance of the issues raised, and, in particular, the fact that persons were facing convictions for acting in ways made criminal as a consequence of the order, justified using judicial review rather than the process of applying for an order to remove Palestine Action from the list of proscribed organisations,” she said.
“There is merit in ensuring that there is a swift method of authoritatively determining whether the order, and the proscription of Palestine Action, was lawful or unlawful.”
Chamberlain had granted Ammori permission for judicial review on the basis that it was reasonably arguable that the proscription order amounted to a disproportionate interference with the rights to freedom of speech and protest. The second ground he deemed arguable was that Cooper had breached a duty to consult by not consulting Palestine Action before proscribing it.
The further grounds that the court of appeal said could be argued at judicial review were whether the home secretary failed to have regard to domestic public law principles and whether she applied her own policy.
On the latter point, Ammori’s lawyers had argued at appeal that the home secretary failed to “adequately assess the proportionality of the proscription”. Documents released during the legal proceedings showed that, on the home secretary’s assessment, only three of the Palestine Action’s 385 actions would meet the statutory definition of terrorism.
A Home Office spokesperson said it would consider the implications of the court of appeal ruling, adding: “Palestine Action has conducted an escalating campaign. This has involved sustained criminal damage, including to Britain’s national security infrastructure, as well as intimidation, alleged violence and serious injuries.
“Palestine Action remain a proscribed group and those who support them will face the full force of the law. Everyone should remember: supporting Palestine and supporting a proscribed terrorist group are not the same thing.”
The high court hearing is scheduled for three days beginning on 25 November. It is the first time that an organisation banned under anti-terrorism law has been granted a court trial to challenge proscription.
