Keir Starmer’s government seems remarkably inconsistent about those it deems to be terrorist organisations. Was it wise to treat Palestine Action in the same way as Hamas?
On Tuesday, the prime minister made it clear that the UK would recognise a Palestinian state in September whether or not Hamas released the hostages it has been holding for nearly 22 months – even though, as leading lawyers and parliamentarians explained in a letter to his attorney general this week, Palestine does not satisfy the requirements of international law for recognition as a state.
The obliteration of Israel and its replacement by a state of Palestine was a declared objective of Hamas when it invaded its neighbour on 7 October 2023, kidnapping 240 hostages and murdering more than 1,200 civilians. So an internationally acknowledged terrorist organisation now has a further incentive to continue holding hostages.
On Wednesday, the government was told by a High Court judge that it will have to go to court in November and defend its proscription of Palestine Action, the protest group whose designation as an organisation ‘concerned in terrorism’ is now open to question. In saying that, I am not expressing support for Palestine Action. Indeed, to do so recklessly would be a criminal offence punishable with up to 14 years’ imprisonment.
Though Mr Justice Chamberlain has now twice refused to lift the ban pending a ruling on its lawfulness, he delivered two important rulings against the government on Wednesday. The first was that Palestine Action did not need to take the statutory route to deproscription, which allows the secretary of state 90 days to consider an application followed by an appeal to a specialist tribunal.
Under the procedure ministers had argued for, the case would not be listed until the middle of next year. By contrast, a judicial review hearing could be scheduled in the autumn. Parliament had not ousted judicial review for cases such as this and the statutory process was not a suitable alternative remedy in these circumstances.
Granting one of Palestine Action’s founders permission to proceed, Chamberlain ruled that two of her eight grounds were arguable. The first was that proscription unlawfully interfered with the rights of Huda Ammori (pictured) and those of her supporters to freedom of expression and freedom of assembly, under articles 10 and 11 of the human rights convention. The second arguable ground was that the home secretary had been under a duty to consult Palestine Action before making a proscription order.
When Palestine Action had tried to stop the ban coming into force four weeks ago, Chamberlain had thought the human rights argument raised a serious issue to be tried. He now considered it ‘reasonably arguable that the proscription order amounts to a disproportionate interference with the article 10 and 11 rights of the claimant and others’.
One consequence of the challenge is that the government has been forced to disclose internal documents summarising discussions on whether to ban Palestine Action. Proscription was seen by officials as the only way to prevent widespread but fragmented criminal damage.
As reported by the BBC, some advisers thought the ban would be read as ‘evidence of bias against the British Muslim community in favour of British Jews and Israel more broadly’. Foreign Office officials said that ‘Palestine Action’s activity is largely viewed by international partners as activism and not extremism or terrorism’.
That’s understandable because the legal definition of terrorism is wider than its colloquial meaning. It includes ‘serious damage to property’ that is intended to advance a political cause by influencing the government. Violence towards individuals is not an essential component – although a Home Office minister told peers last week that members of Palestine Action had used ‘serious violence’ against individuals responding to attacks on premises.
But the gulf between what protesters regard as activism and what ministers define as terrorism has now led to the unintended consequences that Chamberlain foresaw in his judgment of 4 July. People holding up signs that say ‘Free Gaza’ or ‘Free Palestine’ have been stopped and questioned, even though those slogans are not, in themselves, unlawful. Reports of police conduct, said Chamberlain, ‘are liable to have a chilling effect on those wishing to express legitimate political views’.
There were numerous examples of the police taking action in cases where the line between legitimate and proscribed speech was difficult to draw, the judge added. ‘This shows that the proscription order is likely to give rise to a substantial interference with rights guaranteed by the common law and by articles 10 and 11.’
