The home secretary’s decision to ban Palestine Action was lawful, the court of appeal has ruled.
A five-strong panel, including the two most senior judges in England and Wales, overturned February’s decision of the high court that the proscription of the direct action group, the first to be banned under the Terrorism Act, was wrong.
The court of appeal’s decision will come as a relief to the government whose ban attracted widespread condemnation as well as a civil disobedience campaign defying proscription, during which more than 3,000 people have been arrested. But the Palestine Action cofounder, Huda Ammori, who brought the challenge to the ban, said she would “fight this all the way”, signaling that the legal battle was not over yet.
On Monday, the lady chief justice, Sue Carr, reading the decision of the judges, who included the master of the rolls, Geoffrey Vos, said the high court had “materially understated” the latitude that the home secretary had when reaching proscription decisions.
In her written judgment, she said: “The future threats and risks posed to third party individuals and property by Palestine Action are perhaps the most important factors to weigh in the balance. In that connection, it is important to understand that the home secretary is in the best position to assess those future threats and risks. She is advised by experts in anti-terrorism …
“When the severity of the effects of proscription on the article 10 [freedom of expression] and 11 [freedom of assembly”] rights of individuals are balanced against the importance of the objectives of protecting national security and the rights and freedoms of others, affording an appropriate margin of appreciation to the home secretary’s decision, we find that the latter in this case outweighed the former.”
From 5 July last year, being a member of – or showing support for – the group became an offence punishable by up to 14 years in prison. Most of the arrests since proscription were for holding placards saying: “I oppose genocide, I support Palestine Action” amid a campaign led by Defend Our Juries.
More than 700 people have been charged under section 13 of the Terrorism Act, under which they face a maximum of six months in prison. Their cases had been paused while awaiting the decision of the court of appeal.
Carr accepted that law-abiding citizens – not the placard-holders – might be subject to a “chilling effect” and “deterred from assembling lawfully or making their strongly held anti-Israel and pro-Palestinian views public for fear of their actions being construed as support for Palestine Action”.
However, she added, under the law, proscription would “not prevent public expressions of support for the Palestinian cause or opposition to Israel and to the Israel Defense Forces, or demonstrations targeted at Elbit”. Four Palestine Action activists were jailed on Friday for breaking into a factory of the Israel-based defence firm near Bristol.
Responding to Monday’s judgment, Liberty, Human Rights Watch, Amnesty International UK and Greenpeace were among NGOs that criticised what they said was a misuse of counter-terrorism powers and the impact it would have on the right to protest.
Ammori said: “We will fight this all the way. We will seek permission to appeal to the supreme court and, if need be, take this to the European court of human rights. We are confident we will ultimately succeed because criminalising peaceful political protest in this way is a flagrant violation of our fundamental rights and freedoms in Britain, protected in the Human Rights Act, which enshrines the European convention on human rights.
“We will not stop fighting to overturn one of the most extreme attacks on free speech and the right to protest in modern British history. This unprecedented abuse of power has devastated the lives of thousands of people while silencing dissent over Israel’s slaughter of the Palestinian people during the genocide, when that dissent could not be more urgent.”
The judges acknowledged that the proscription of Palestine Action was controversial, adding: “We recognise too that Palestine Action is supported by many otherwise law-abiding citizens, and that it is engaged in peaceful as well as non-peaceful protest. It is, nonetheless, a fundamental mistake to overlook the fact that Palestine Action overtly promotes unlawful violence amounting to terrorism.
“It is not, as it claims, a direct action civil disobedience protest group like the suffragettes operating transparently in the open. It is a covert organisation that operates using secret cells to avoid the detection and prosecution of those using violence to destroy the property of third parties. Palestine Action’s activities have caused injury as well as property damage.”
