|
|
||||
|---|---|---|---|---|
| Volume 56 Number 6, February 28, 2026 | ARCHIVE | HOME | JBCENTRE | SUBSCRIBE |
People welcoming the news outside the High Court, London,
February 13, 2026
Paul Heron, solicitor at the Public Interest Law Centre (PILC), has published an analysis of the decision in the recent Palestine Action judgment. He writes:
"The Court allowed a challenge to the Home Secretary's decision to proscribe Palestine Action under the Terrorism Act 2000, finding the move unlawful and disproportionate. Yet", he says, "the victory, whilst extremely important, is partial and potentially very fragile. Palestine Action remains proscribed pending further order, and the Court accepted that a small number of its actions fell within the statutory definition of terrorism."
Paul Heron points out that "terrorism" is, under the Terrorism Act 2000, defined broadly, as the use or threat of action designed to influence the government for a political cause, involving serious violence or serious damage to property.
"The Home Secretary," he writes, "reached an 'unchallenged conclusion' that Palestine Action was concerned in terrorism. The claimant did not dispute that some activities could fall within broad definition of section 1 [where terrorism is defined]. Instead, the challenge focused on whether proscription, with its sweeping criminal consequences, was lawful and proportionate.
"The proscription order, approved by Parliament and in force from 5 July 2025, made it a criminal offence to: Belong or profess to belong to Palestine Action; Invite support for it; Express supportive opinions recklessly; Organise or address meetings connected to it. Thus, the order doesn't just ban specific acts of damage. They restrict people from organising, speaking, and associating under a political banner."
Of a number of grounds for the challenge to proscribing Palestine Action, the High Court considered four main grounds, ultimately ruling that the proscription of Palestine Action was unlawful on two of them.
Paul Heron explains: "The first successful ground of challenge concerned the Home Secretary's own policy on proscription. That policy states that proscription requires both a belief that the organisation is concerned in terrorism and that it is proportionate to proscribe. It also directs consideration of factors such as the nature and scale of activity and the threat posed to the UK.
"In deciding to ban the group, the Home Secretary argued that proscription would make it easier to prosecute supporters and give the authorities stronger powers to disrupt them. The Court said this went against the purpose of the policy, which was meant to limit when proscription could be used. It wasn't enough to say that a ban would be useful, there had to be clear reasons why it was truly necessary.
"In effect, the executive was caught using proscription as a tool of political convenience rather than necessity. The Court did not question Parliament's broad terrorism framework. Instead, it insisted that if the government promises restraint, it must demonstrate it."
The second successful ground was under the Human Rights Act 1998, and concerns the issue of freedom of expression and association..
Paul Heron explains: "The Court rejected the argument that Palestine Action's conduct was civil disobedience and confirmed that the HRA does necessarily protect violent or non-peaceful protest. However it accepted that a 'very small number' of the group's activities amounted to terrorism as defined in the Act.
"But the Court reframed the key issue. The interference to be justified was not the restriction on criminal damage. It was the criminalisation of peaceful protest and expression carried out under the Palestine Action banner."
In other words, the proscribing of Palestine Action, the judgment says, still seriously interferes with people's rights to free expression and protest under Articles 10 and 11 of the European Convention on Human Rights.
"The Court looked not just at the alleged offences," Paul Heron explains, "but also at the wider impact of proscription. It recognised that banning a group can create a 'chilling effect' meaning people may hold back from taking part in lawful political protest or speech because they fear being associated with a banned organisation or risking prosecution." This of course has been the effect of proscribing Palestine Action, in particular for the demand that the genocide in Palestine be ended, while the resistance has grown and mass arrests have taken place.
"Most importantly," says Paul Heron, "the Court found that the group's activities had not reached the level, seriousness, or sustained scale that would justify treating it as a terrorist organisation. The Court were of the view that ordinary criminal laws can already be used to prosecute any specific unlawful acts, a full ban was not considered necessary or proportionate."
Paul Heron affirms: "This distinction matters. Criminal law deals with individual offences. Proscription changes the legal consequences of simply being linked to a group, even in lawful activity."
In summing up, Heron offers a word of caution, in saying that "the judgment is not a sweeping denunciation of executive power. The Court attached 'real weight' to the Home Secretary's responsibility for public safety. It rejected a discrimination claim under Article 14. It did not disturb the assessment that some conduct met the statutory terrorism definition." And he underlines: "This is constitutional caution. The judiciary has drawn a line, but a very thin one."
From a public lawyering perspective, three dynamics stand out.
"First, the elasticity of terrorism law. It is a shifting sand. The statutory definition treats serious damage to property, when politically motivated, in much the same way as violence against people. That breadth allows militant protest to be recast as a matter of national security.
"Second, Government response intensified in the context of the Gaza war protests. Direct action against arms companies and supply chains received heightened scrutiny. Proscription indicated a shift toward treating such protest activity as a matter of national security.
"Third, the judiciary as a contradictory arena. The Court accepted part of the terrorism case but pushed back on its broader consequences. It upheld the right to organise and protest, while leaving the underlying counter-terrorism framework unchanged."
In dealing with the "chilling effect" of proscribing, the judgment recognises that proscription does not merely punish organisers. It deters students hosting meetings, trade unionists organising events, and activists expressing solidarity.
Paul Heron concludes, in raising the issue from the perspective of the peoples' movements: "But the big question remains: who defines terrorism, and how expansively? The Terrorism Act endures. The executive may reconsider or appeal. Parliament may legislate further. ... Litigation can expose overreach and defend political campaigning but it operates within legal boundaries shaped by the state and thus the establishment itself. Judgments like this can slow the machinery of bad law occasionally. It does not challenge or dismantle it."