What the High Court’s Palestine Action Ruling Reveals About the UK’s Terrorism Laws

Last week, the High Court ruled that the proscription of Palestine Action was unlawful.

The judgment provides helpful insight into some of the thornier issues posed by how proscription – and the counter-terror regime more widely – currently operates.

What the judgment didn’t say is also revealing: it was accepted that three of Palestine Action’s activities met the statutory threshold for terrorism (a low bar, as we outline below) but that this was not enough to warrant using the draconian and rights-restrictive power of proscription, given 99% of their actions did not meet the definition of terrorism.

But, while the judgment is an important victory (for now, Government intends to appeal) the court did not specify what proportion of technically-terrorist actions would warrant use of counter-terror powers.

Why is direct action being treated as terrorism?

The relevant part of the terrorism definition is an act (or threat of an act) involving serious damage to property, that is designed to influence a government in order to advance a political, religious, racial, or ideological cause.

This potentially captures a huge range of activities, from toppling the Colston statue at a Black Lives Matter protest to filling US bomber engines with nuts and bolts at RAF Fairford to protest the Iraq War. What’s key is these types of protest or direct action activities have (rightly) never been treated as terrorism in the UK, despite potentially being technically terrorist according to our statutory definition.

The definition set out in the Terrorism Act 2000 is intentionally overbroad. It was designed to capture more behaviour than just terrorism. This overbreadth was pitched to parliamentarians as acceptable because Ministers, police, and prosecutors had exercised their discretion well in the past. If they didn’t in future, the new Human Rights Act (which came into force that same year) would fix it. During the Terrorism Bill’s Second Reading in 1999, then-Home Secretary Jack Straw stated:

“[W]e have put in place another profound safeguard against the disproportionate use of the powers that we are discussing, and that is the Human Rights Act 1998 […]

Leaving aside whether or not successive Governments will have the same concern to balance liberty and the fight against terrorism as this Government have, the Human Rights Act will provide powerful control over the use of the powers that are set out in the Bill.”

The High Court has done exactly what Jack Straw had promised it would.

What did the High Court say?

There are three key points in the judgment:

• The Home Secretary did not follow her own policy, the purpose of which is that “not all organisations that meet the concerned in terrorism requirement should be proscribed”. This is hugely important in the context of the definition’s overbreadth; considering a vast amount of activity potentially falls under the definition, the Home Secretary needs to choose when to target something as terrorism.
• Proscription involved a significant interference with the rights to freedom of expression and association via “the restriction on actions comprising peaceful protest […] under the Palestine Action banner”. The fact that this is a direct action protest group is highly relevant.
• Of hundreds of Palestine Action activities, only three met the definition of terrorism and as such had “not yet reached the level, scale and persistence that would justify” proscription and “the very significant interference with Convention rights consequent on those measures” when the ordinary criminal law was available to deal with those three events.

Overall, the court decided that proscription was disproportionate and unlawful, breaching Articles 10 and 11. Their characterisation of the Home Secrtary’s own policy is crucial: she did not articulate, via the policy, the particular need to proscribe Palestine Action above and beyond just the belief that they were concerned in terrorism.

What we’re calling for

The judgment is an important check on Government overreach. But if the Home Secretary had followed her own policy, the court may have come to a different conclusion.

So where does this leave direct action and protest groups?

It is still unclear when direct action that targets property wouldn’t fall under the terror definition. And it’s still unclear at what point it would become proportionate to target these groups using counter-terror powers. We want to see these lines clarified by amending the terrorism definition itself so that it only catches the kinds of actions and behaviour it actually seeks to target.

We can do this by specifying what kind of property damage amounts to terrorism: when it creates a serious risk to life, national security, or the health and safety of the public or a section of the public, or when it uses arson, explosives, or firearms.

This would enable current and future governments to uphold their duty to safeguard the public and national security, while protecting peoples’ rights and preventing the kind of overreach we saw with Palestine Action.