Yesterday, the High Court allowed Palestine Action to challenge the Home Secretary’s decision to ban it. Since its proscription, under terrorism legislation, it has been an offence to be a member of the group, or to invite support for it.

There is absolutely no need for peaceful protestors to associate themselves with a group concerned in unlawful acts

While it was not a final determination, the High Court hearing was revealing. Mr Justice Chamberlain’s decision followed judicial consideration of a file of ‘closed material’ – evidence not disclosed to the claimant – and an open hearing which was reported in the press

The judge ruled that Palestine Action could proceed to bring a judicial review; but only on two specific grounds: a human rights claim under the European Convention on Human Rights (ECHR), and an argument that the Home Secretary should have consulted the group before issuing the proscription order.

The court rejected the claimant’s remaining six grounds as not reasonably arguable and the ban on the group will remain in force in the interim.

During the most recent proceedings the court was told that more than 170 people had been arrested since the ban on Palestine Action took effect, and that the police had been somewhat overzealous in their enforcement efforts.

In particular, it was said that a man in Leeds had been detained for holding up a copy of an article in Private Eye that had lampooned the ban, and that others had been arrested for what was described as a seated, silent protest. The issues around freedom of expression, peaceful  assembly and association, under the ECHR, are likely to found the main basis of Palestine Action’s grounds of action when the full case is heard in the autumn.

The discussion surrounding the proscription of Palestine Action is often framed through the lens of freedom of speech. Arguably, that should not be seen as the central issue. In a debate in the House of Lords last week, the security minister, Lord Hanson, explained very concisely  the rationale for the proscription order against Palestine Action:

‘Palestine Action has perpetrated attacks in which it has forced entry onto premises armed with weapons and smashed up property, and members of the organisation have used serious violence against responding individuals.’

The Terrorism Act 2000 allows the Home Secretary to proscribe a group if she believes it is ‘concerned in terrorism.’ The legislation defines terrorism to include not only violence against individuals intended to influence the government or intimidate the public (or a section of the public), but also actions involving serious damage to property. Palestine Action is the first group to be proscribed based on that part of the definition.

When Yvette Cooper informed Parliament of her intention to ban Palestine Action, members of the group had just broken into RAF Brize Norton in the early hours of 20 June and caused damage to aircraft –  with repair costs estimated at up to £7 million.

Cooper also emphasised that this was not the first time members of the group had taken direct action against targets affecting UK national security. Previous incidents attributed to the group included attacks on Thales in Glasgow, Instro Precision in Kent, and Elbit Systems UK in Bristol. The Glasgow attack reportedly caused significant financial damage to components essential for submarines and seriously alarmed staff who were present at the time.

Cooper said that in late 2023, Palestine Action released what it called The Underground Manual. The document encouraged the formation of cells, offered practical guidance on how to carry out actions against private companies and government buildings on behalf of Palestine Action. It linked to a website featuring a map of specific targets across the UK.

These activities are not just expressions of free speech and go rather further than simple public disorder. Rather, they fall much more within the realm of violent direct action.

It is said that the proscription of Palestine Action could have a chilling effect on other people who wish simply to engage in peaceful protest against the war in Gaza. Whatever your views on the conflict, it is evident that people should be free to support Palestinian rights and self-determination.

Yet there are ways to do this without being a member of or a supporter of a group like Palestine Action. The Home Secretary makes a reasonable point when she argues that we should not conflate its activities with reasonable pro-Palestinian advocacy. There is absolutely no need for peaceful protestors to associate themselves with a group concerned in unlawful acts involving violence.

I have previously argued that, if anything, the police have been unusually lenient in policing pro-Palestine protests, allowing frequent, thinly veiled calls for the destruction of Israel – such as the now-apparently normalized chant, ‘from the river to the sea.’ Those who have witnessed the frequent marches in London might reasonably conclude that protesters – at least those simply calling for freedom for Palestine and an end to the war in Gaza – should have little to fear from the Metropolitan Police, provided that constables are properly briefed about the extent of the order banning Palestine Action.

With Keir Starmer now expected to recognise a Palestinian state in September, tensions over the Israel–Gaza conflict will likely remain high when the case returns to court in November.

Given the public evidence now available, it seems hard to argue that proscription of Palestine Action was not a legitimate response to their recent activities. Damage to national security infrastructure – such as aircraft and submarine components – is among the gravest forms of property damage imaginable, and should clearly be seen as ‘serious’ for the purpose of the terrorism legislation.

The decision to hold a full hearing  is likely to be seen as a blow to the Home Secretary. Clearly, the High Court will have to carefully consider the claimant’s submissions under the ECHR. But it would be particularly unfortunate if it reached the view that human rights laws could allow those who engage in, or support, violent and destructive activity to act with impunity.