Proscription, Protest and Power: the Palestine Action Judgment

Paul Heron, solicitor at PILC, brings an analysis of the decision in the recent Palestine Action Judgement.

In R (Huda Ammori) v Secretary of State for the Home Department, the Divisional Court has delivered one of the most politically significant public law rulings in recent years. 

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 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. 

For movement lawyers, the case is a study in state overreach and further illustrates the elasticity of 'terrorism' definition as a political and legal category.

The Legal Framework

Under section 3 of the Terrorism Act 2000, the Home Secretary may proscribe an organisation if she believes it is ‘concerned in terrorism’. The definition of terrorism is defined broadly, that is 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 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. 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.

Ground 6: The State Bound by Its Own Policy

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 Court concluded at para 95: 

'The consequence and conclusion of this point is that, notwithstanding the latitude that the policy provides, the Home Secretary’s decision to proscribe Palestine Action was not consistent with her policy.'

Ground 2: Freedom of Expression and Association

The second successful ground was under the Human Rights Act 1998.

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.

Even if you ignore any non-peaceful actions, banning (proscribing) Palestine Action would still seriously interfere 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, 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.

Most importantly, 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.

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.

Deference and Its Limits

Caution, 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.

For now, Palestine Action remains proscribed pending further argument and the possibility of appeal. 

This is constitutional caution. The judiciary has drawn a line, but a very thin one.

Conclusion

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.

The most significant aspect of the judgment may be its recognition of chilling effect. Proscription does not merely punish organisers. It deters students hosting meetings, trade unionists organising events, and activists expressing solidarity. It shifts the risk calculus of dissent.

The Court has said that on the reasoning advanced, proscription was unlawful and disproportionate. It has affirmed that sweeping criminalisation of political association demands rigorous justification. It has signalled that the threshold for proscription requires scale and persistence beyond isolated acts.

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.

For movements, the lesson is clear. 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.