‘I will pledge to uphold the independence of the judiciary,’ Alex Norris told the Labour party conference in Liverpool on Monday. Looking ahead to the oath of office he would be taking later in the week, the lord chancellor and justice secretary said that defending the rule of law was a constitutional duty that he took ‘with the utmost seriousness’.
What threats to the rule of law did he have in mind? Norris made no mention of his predecessor’s plans to limit jury trial. So it looks as if he is still not sure what concessions to make, despite his pleas for help in the Commons last month.
What other threats might Norris have been thinking of? Mass civil disobedience undermining criminal justice? In his own speech to the conference, his colleague Ed Miliband had made a striking declaration.
‘I want to say to the millions of people in this country, and indeed elsewhere, who have been moved and outraged by the plight of the Palestinian people: we hear you. You were right.’
Among the millions who he thought were right, the foreign secretary would presumably have included 82 people who had been arrested in Liverpool a day earlier for holding signs supporting Palestine Action. When the home secretary’s ban on the group was upheld on appeal in June, over 700 such cases were pending in the criminal courts of England and Wales, with ‘many more’, according to the lady chief justice, at the pre-charge stage. So it was not surprising that protesters who tracked Miliband down to a pizza restaurant in Liverpool on Sunday evening were trying to persuade him that Palestine Action should be deproscribed.
That is not up to him, of course: it is a matter for the home secretary and ultimately the prime minister. But if Miliband was speaking for the government when he said that people ‘outraged by the plight of the Palestine people’ were ‘right’, then ministers may have some difficult decisions to make.
We can be sure those who were outraged include protesters – more than 3,000 at the last count – who face charges under section 13 of the Terrorism Act 2000. That makes it an offence for a person to carry or display an article in a public place in such a way as to arouse reasonable suspicion that the person is a supporter of a proscribed organisation.
Whether their prosecutions will go ahead must depend on whether banning Palestine Action was lawful. In the summer, five senior appeal judges said it was. But five judges of even greater seniority have agreed to hear an appeal next month by the co-founder of Palestine Action, Huda Ammori.
At issue before the Supreme Court will be the question of proportionality. Was the ban on Palestine Action a proportionate interference with the rights to freedom of expression and freedom of assembly? Was it ‘necessary in a democratic society, in the interests of national security’, or some other legitimate aim specified in the human rights convention?
Despite Miliband’s concerns, we can be sure that the home secretary will argue that the Court of Appeal was correct to say that the proscription decision struck a fair balance. When the ban was overturned by the High Court in February, Shabana Mahmood was deeply concerned that the decision would make it harder to proscribe terrorist organisations in the future.
Throughout this case, I have wondered whether the prospect of criminalising thousands of well-meaning individuals and clogging up the criminal justice system might influence the courts. That concern may be countered by whatever intelligence material is provided by the home secretary when the Supreme Court goes into closed session towards the end of the two-day hearing.
If Ammori wins her appeal, the government will have to act more proportionately when imposing future bans. But what if the justices decide that the ban was lawful and proportionate – that the protesters could have expressed their ‘outrage’ by simply leaving the last word off the slogan ‘I support Palestine Action’?
Miliband’s support would surely ring hollow unless ministers lifted the threat of prosecution. The director of public prosecutions has a statutory power to discontinue cases, though he might need some convincing that it would be in the public interest to do so merely because of a political pledge. The attorney general might feel more comfortable about using similar powers she has to enter a nolle prosequi in thousands of cases. But that won’t help anyone who may already have pleaded guilty. Perhaps legislation would be needed.
The one thing we can be sure of is that the Supreme Court will take no notice of Miliband’s apparent enthusiasm for one side of the argument – the anti-government side, as it happens. In future, though, perhaps the foreign secretary should also pledge to defend the independence of the judiciary.
joshua@rozenberg.net
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