Palestine Action's Legal Fight
Nothing in this newsletter is intended to show support for Palestine Action.
That disclaimer is now necessary in every piece related to the group after they were designated as a terrorist organisation by the Home Secretary's proscription order at the weekend.
A number of MPs voted against the statutory instrument, and some protesters took to the streets to demonstrate against the decision even after the Order came into force.
29 people were arrested as a result of that protest including an 83-year-old retired priest, which should tell you everything you need to know about the decision.
Palestine Action went to court to request interim relief, and although we know the outcome, both the grounds and judgment are worth exploring in some detail.
Such a judicial review requires a balance to be struck between the public interest in the minister’s order being allowed to stand and there being a serious triable issue that demands relief be granted.
The first ground that was advanced by Palestine Action was that the Order was ultra vires because while the definition within the Terrorism Act includes serious damage to property, that did not permit the Home Secretary to proscribe a civil disobedience network.
However, the judge found that there was nothing within the legislation to support that contention and, as I have discussed in this newsletter, the definition of terrorism is worryingly broad.
As such, there was no triable issue.
Similarly, the argument that Palestine Action was not an organisation because there is no hierarchical structure was rejected because this too is not a requirement within the legislation.
It was also argued that they should not be proscribed because they were only trying to disrupt corporate supply chains rather than influence the policies of the national government.
However, this was rejected as non-triable because the suggestion was not supported by Palestine Action’s public statements or their recent activities at RAF Brize Norton.
On five of the grounds, the judge decided that in the absence of evidence from the Home Secretary, no conclusion could be drawn.
These included whether the Home Secretary was influenced by irrelevant considerations such as the campaigning of the Israel lobby in the UK as well as the arms manufacturers who had been directly affected, namely Elbit Systems.
In fact, the only ground where it was held that there was a triable issue was the argument that there had been a breach of Article 10 and Article 11 of the European Convention on Human Rights (the right to freedom of expression and freedom of association, respectively).
Again, it was clear that any court would also have to take into account any evidence from the Home Secretary, but the judge was confident in saying that this question was at least triable.
Having assessed all the grounds, it was then necessary to balance that triable issue against the public interest in the Order not being stayed.
Overall, given the issues of national security at stake and based on the limited evidence that the Home Secretary did provide in public statements like the Explanatory Memorandum to the SI, the judge declined to give interim relief.
An appeal was then heard by the Court of Appeal the very same day, but it was decided that the case did not meet the criteria of having a realistic prospect of success or there being any other reason why interim relief should be granted.
Palestine Action were given permission to appeal to the Supreme Court, but the Court of Appeal declined a stay on the Order in the meantime, and so the legislation came into force at the weekend.
These decisions should not come as a surprise.
While the proscription order is undeniably controversial, it was passed by a majority in the House of Commons and the House of Lords and addresses a sensitive aspect of public policy.
The minister has responsibilities under the legislation and acts on the basis of evidence, so it would truly require something extraordinary for a stay to be granted in the absence of a full trial of the facts.
This, however, is not the end of the road for Palestine Action.
They can request that the Home Secretary remove them from the list and if, as is likely, that is rejected, then they can appeal to the Proscribed Organisations Appeal Commission.
The chances are that this will lead to a lengthy court battle, but it will at least force the Home Secretary to be accountable for her decision.
This week on the podcast, the Supreme Court considered a case arising from the Grenfell Tower fire as developers argued over who should be responsible for the cost of repairs to other faulty buildings.
Episode link: https://uklawweekly.com/2025-uksc-21/
Make a difference today,
Marcus