‘Not consistent’: why the high court ruled the Palestine Action ban unlawful

Key passages from judgment in challenge brought by Huda Ammori, which failed on two grounds but succeeded on two

Huda Ammori, one of the co-founders of Palestine Action, has successfully challenged a decision by the UK government to ban the group under the Terrorism Act 2000. The high court allowed or accepted Ammori’s claim on two grounds and dismissed it on two others. However, the judges made it clear that the ban remained in place for now, and the government will appeal.

The Metropolitan police indicated officers were unlikely to arrest people simply for showing support for Palestine Action until the legal situation was clarified.

Here are the key passages from Friday’s judgment.

Breach of policy – allowed

“The home secretary’s approach to ‘other factors’ was not consistent with her policy.”

Under Home Office policy, organisations can be banned, or proscribed, only if this is proportionate. Such decisions have to take account of five factors, including the nature and scale of the organisation’s activities and the specific threat they pose.

Breach of human rights – allowed

“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.”

Ammori’s lawyers successfully argued that the decision to proscribe Palestine Action violated freedom of expression, freedom of assembly set out in the European convention on human rights.

Procedural fairness – dismissed

“We do not accept the claimant’s submission that fairness required the home secretary to give Palestine Action notice that she was minded to exercise her power to proscribe, to provide such reasons as she could, and to permit Palestine Action to have the opportunity to make representations …

“The likely practical difficulties that would be consequent upon any general obligation to give prior notice and invite representations points only to the conclusion that no such obligation arises.”

The court upheld the home secretary’s decision not to consult Palestine Action on the decision to proscribe, citing security issues and the impracticality of doing so.

Failure to consider relevant matters – dismissed

Ammori argued that in banning Palestine Action, the home secretary had failed to consider other issues, including the group’s aim of preventing genocide. This was dismissed by the court.

The court said: “It is not a ground of challenge of any substance. It is obvious from the ministerial submissions that when taking her decision, the home secretary was well aware of the reasons Palestine Action relied on as justifying its campaign of direct action including damage to property.”

Disproportionate

“We are satisfied that the decision to proscribe Palestine Action was disproportionate. At its core, Palestine Action is an organisation that promotes its political cause through criminality and encouragement of criminality. A very small number of its actions have amounted to terrorist action within the definition at section 1(1) of the 2000 Act.”

The court said most of Palestine Action’s illegal activities could be dealt with under criminal law, and that the nature and scale of its activities did not justify proscription.

Inconsistent with policy

“As regards ‘other factors’ the theme [of the decision] was that proscription would be advantageous because it would mean that the offences at sections 11 to 13 of the 2000 Act could be used against any person supporting Palestine Action.”

This additional operational issue about supporters that was inconsistent with Home Office policy went beyond the five factors Mahmood had to consider.

The court added: “The operational consequences and advantages of proscription is not a factor consistent with the policy for the obvious reason that such consequences and advantages will apply equally to any organisation that could be proscribed – ie any and every organisation that meets the requirement to be an organisation concerned in terrorism.”

Nature of Palestine Action’s activities

“The core hallmarks of civil disobedience … are emphatically not the hallmarks of Palestine Action’s campaign.

“Through [its] Underground Manual, Palestine Action encourages its members and others who align with it to plan and cause damage to property. There is no suggestion of restraint or proportionality. On the contrary, and entirely consistent with its objectives, Palestine Action encourages the causing of more, rather than less harm.”

Though not a ground for appeal, the court rejected Palestine Action’s claim that it was engaged in civil disobedience.

Proscription to be quashed?

“Grounds 5 and 8 of the claim fail and are dismissed, but the claimant succeeds on grounds 6 and 2 of her claim. To this extent the claimant’s claim is allowed. Subject to any further representations on relief, we propose to make an order quashing the home secretary’s decision to proscribe Palestine Action.”

But the court made clear that the proscription order would remain in place until appeals were submitted on 20 February.