The Palestine Action ban has been ruled unlawful

The court has proposed to quash the decision – though, as is often the way with these things, the proscription order remains in force pending further submissions on relief due by 20 February.

Regular readers will recall that when Cooper announced the proscription last June, I wrote about the impossible position it would create for universities caught between OfS freedom of speech guidance (which treats restrictions on speech as an absolute last resort) and Prevent duties (which require tackling “permissive environments” for radicalisation).

I described the interaction as an ouroboros – each framework pointing to the other for resolution without providing it.

The judgment doesn’t directly address that particular regulatory tangle, but it does rather demolish the basis on which the proscription was made in the first place.

The policy failure

The first ground on which the claimant succeeded is, in some ways, the more technically interesting. Under section 3(3) of the Terrorism Act 2000, even if the Home Secretary believes an organisation is “concerned in terrorism,” she has a discretion whether to actually proscribe it.

That discretion is governed by a long-standing policy – dating back to when the Act was passed – which sets out five factors to consider, including:

…the nature and scale of the organisation’s activities” and “the specific threat that it poses to the UK.

The purpose of the policy, the court found, is to limit use of the proscription power. Not every organisation that meets the “concerned in terrorism” threshold should be proscribed. The five factors are there to identify which ones warrant that extreme step.

When the Proscription Review Group considered Palestine Action in March 2025, and in the subsequent ministerial submissions, a recurring theme was what the documents called “significant disruptive benefits beyond the current policing powers” – namely, that proscription would bring into play the offences under sections 11-13 of the 2000 Act (membership, inviting support, wearing articles associated with the organisation) and would make it easier to prosecute property and funding offences.

The court’s response to this is elegant:

It is undeniable that the consequences of proscription are as described in the documents, are designed to disrupt proscribed organisations, and in the present case would have that effect on Palestine Action. But so far as concerns the lawful application of the Home Secretary’s policy on the use of the discretion to proscribe, that is not a relevant consideration.

Why not? Because those “operational benefits” apply equally to any organisation that could be proscribed – that is, any organisation that meets the “concerned in terrorism” requirement. They can’t be a distinguishing factor that justifies proscribing this particular organisation. To use them as such is to collapse the discretionary stage of the decision into the threshold stage. If the policy means anything, it means that meeting the terrorism threshold isn’t automatically enough.

As the court put it:

The purpose of this policy is that not all organisations that meet the concerned in terrorism requirement should be proscribed.

The Home Secretary had, in effect, treated the discretionary factors as an opportunity to list the advantages of proscription generally, rather than to identify what was specifically serious enough about Palestine Action to warrant it.

The proportionality failure

The second ground – that proscription breached Articles 10 and 11 of the European Convention on Human Rights – required the court to engage in a full proportionality analysis.

The court accepted, first, that the interference with Convention rights from proscription is “very significant.” The section 11 offence (belonging to a proscribed organisation) is a clear interference with freedom of association. The section 12 offences (inviting support, expressing supportive opinions, arranging meetings) significantly interfere with freedom of expression. These interferences apply to everyone – not just existing members but anyone who might wish to associate with or speak in support of the organisation.

The court also accepted that beyond the letter of the criminal offences, people will reasonably exercise self-restraint:

Since this is so, the interference with Convention rights in this case must be measured both by the restrictions required by the letter of the criminal offences; and by the further extent to which people will exercise self-restraint in terms of what they say and what they do.

So far, so concerning for the Home Secretary. But the court was careful not to accept everything in the claimant’s evidence about chilling effects.

On the mass arrests following proscription – where over 2,000 people were arrested, primarily for holding signs reading “I oppose Genocide, I support Palestine Action” – the court was unimpressed:

We attach little weight to this when it comes to assessing the extent of the interference with Convention rights in this case. All those holding such signs either did or ought to have realised that what they were doing was showing support for Palestine Action. It was or ought to have been obvious to all concerned that such ‘carefully worded’ placards were carefully worded only to the extent of sending the message that the person holding the placard was expressing support for Palestine Action. What happened on these occasions was not evidence of difficulty or uncertainty in respect of what actions could be taken following the proscription of Palestine Action. Rather, it was evidence of calculated action.

The court also noted approvingly the guidance issued to police forces by Counter Terrorism Policing, which included:

Be careful not to confuse supporting this proscribed organisation with protestors demonstrating general support for Palestine. The support must be directed towards the proscribed organisation itself… Saying ‘stop genocide, free Gaza’, or similar pro-Palestinian chants would not be supporting a proscribed organisation… Disagreeing with proscription is not supporting a proscribed organisation.

Nevertheless, when the court came to strike the balance, it found that proscription was disproportionate:

Considering in the round the evidence available to the Home Secretary when the decision to proscribe was made, 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.

The court noted that for the three incidents assessed as amounting to terrorism (Glasgow 2022, Kent 2024, Bristol 2024), the ordinary criminal law was available to prosecute – criminal damage (up to 10 years), aggravated burglary (up to life), violent disorder (up to 5 years), GBH with intent (up to life). Those weren’t hypothetical – they were the actual charges brought.

Not civil disobedience

One thing the court was emphatic about – Palestine Action’s activities don’t constitute “civil disobedience” in any recognised sense. The claimant had sought to portray the organisation as in the tradition of Gandhi’s campaign against the Salt Act or the US civil rights movement.

The court was having none of it:

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 characterised by restraint and acceptance of the legal consequences of their actions, are emphatically not the hallmarks of Palestine Action’s campaign.

The court went through the “Underground Manual” published on Palestine Action’s website, which encourages readers to form covert “cells,” take security precautions to avoid detection, and be “creative” in causing damage:

If your inexperienced it’s best to start simple and build your way up. Dream up crazy ideas in your cell, remember that your action is to destrupt, damage or destroy your target.

The court observed:

It contains an unmistakable invitation to individuals to group together to commit acts of criminal damage. This is not limited to symbolic acts. Palestine Action encourages those who read the Underground Manual to ‘be creative’ and to ‘disrupt damage or destroy’ targets without restraint.

So the judgment isn’t a vindication of Palestine Action’s methods. The court accepted that the organisation had committed acts meeting the definition of terrorism, that it encouraged further such acts, and that it had “lauded those who took part in those actions.” What the court found was that this hadn’t yet reached the threshold where the extreme measure of proscription was proportionate.

What happens now

The proscription order technically remains in force pending submissions on relief. But assuming the court follows through on its proposal to quash the decision, universities and SUs will find themselves back where they were before June 2025 – which is to say, still navigating the tension between freedom of speech obligations and Prevent duties, but without the additional layer of proscription offences to worry about.

Does that make things simpler? Not really. The underlying ouroboros I described last June remains unresolved. OfS guidance still tells universities to facilitate speech unless there’s a clear breach of law. Prevent guidance still tells them to tackle “permissive environments.” Neither explains what happens when those duties point in opposite directions.

What the judgment does provide is some useful clarity about the boundaries of lawful expression in this area – boundaries that were always there but became obscured by the proscription. Supporting the Palestinian cause isn’t the same as supporting Palestine Action. Protesting against Elbit isn’t the same as supporting Palestine Action. Disagreeing with proscription isn’t the same as supporting a proscribed organisation. The police guidance quoted in the judgment makes this clear, and presumably will continue to apply to general pro-Palestinian activism.

The court also firmly rejected the Home Secretary’s argument that Article 17 of the Convention (which prevents people from relying on Convention rights to destroy those same rights) applied to all expression of support for Palestine Action. That argument, had it succeeded, would have placed any supporter outside the protection of Articles 10 and 11 entirely.

The court found this “inconsistent with” Strasbourg authority and noted that the case was:

…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… and who wished to engage in peaceful protests under the banner of Palestine Action.

The politics

Cooper announced the proscription three days after Palestine Action activists broke into RAF Brize Norton and spray-painted military planes. The timing was not coincidental. The ministerial submissions show the proscription had been under consideration since December 2024, but it was the Brize Norton incident that triggered the final decision.

The judgment is obviously silent on whether the Home Secretary might now seek to proscribe Palestine Action again, this time with a decision that properly applies the policy and can be justified as proportionate. The court’s finding that the nature and scale of terrorist activity hadn’t “yet” reached the required threshold rather implies that it might do so in future.

And the finding on the policy ground – that operational benefits of proscription can’t be a distinguishing factor – doesn’t prevent the Home Secretary from relying on factors that are specific to Palestine Action.

Whether this government wants another fight over Palestine Action is a different question. The proscription was always controversial – Liberty and Amnesty intervened in the case precisely because of its implications for protest rights more broadly. The judgment’s observation that “the first time a direct action group of this sort would be proscribed alongside organisations like ISIS and al-Qaeda” was significant has now been vindicated by the court’s finding that it wasn’t justified.

In the meantime, the approximately 2,000 people arrested at protests following proscription will presumably be watching with interest to see what happens to any charges still pending. The offences they were arrested for – primarily under section 13 of the 2000 Act – only exist because of a proscription that has now been found unlawful.

And for universities and SUs that spent the past eight months trying to work out how to handle Palestine solidarity societies, events discussing direct action, and the now-familiar tension between facilitating speech and preventing radicalisation? Welcome back to the ouroboros. It never really went away.