Parliament must have the final say on Palestine Action

The UK government’s decision to proscribe anti-Israel activists Palestine Action under the Terrorism Act 2000 has been declared unlawful by the High Court.

Following a judicial review brought by the group’s co-founder, Huda Ammori, three High Court judges ruled last week that Palestine Action’s proscription interfered with the right to freedom of speech and to freedom of assembly. The judges accepted that Palestine Action ‘promotes its political cause through criminality and encouragement of criminality’, and that ‘a small number of its activities amounted to acts of terrorism’. But they concluded that its activities have ‘not yet reached the level, scale and persistence to warrant proscription [as terrorist activities]’. As it stands, the judges say the ban will remain in place until a further hearing.

This is a significant blow for the government. Former home secretary Yvette Cooper had originally proscribed Palestine Action in late June last year. It had come to national prominence after members broke into RAF Brize Norton and caused millions of pounds worth of damage to a fighter jet. Its activists had been linked to similar incidents, including an attack on the Thales defence factory in Glasgow, which caused around £1million worth of damage to equipment used in submarine construction. Palestine Action members were also investigated for racially aggravated criminal damage following attacks on a Jewish-owned business. There is little doubt that it is a vile group that mistakes its bigotry for a righteous cause. And given some of its activities, it is hardly surprising that the High Court accepted home secretary Shabana Mahmood’s view that the group had been involved in activities that could be classified as terrorism.

Yet, as I wrote on spiked at the time, the organisation should still not have been proscribed under the Terrorism Act. Proscription ought to be reserved for the most dangerous groups. Here anti-terror legislation has been used as means to suppress free speech.

After all, the proscription of Palestine Action has meant that people risked arrest merely for expressing support – which is precisely what has happened, with hundreds of Palestine Action-sympathising protesters, often of pensionable age, rounded up by police. The proscription has not only a violated free expression, it has also proven unworkable. The police were never going to be able to arrest and detain every single person who held up a sign at a demo.

But overturning the ban through the courts raises the problem of judicial overreach. After all, the question of whether Palestine Action should be proscribed is, at heart, a question of political judgement. In the past, the judiciary would have recognised this. It would have accepted that matters of national security were better left to ministers accountable to parliament and, ultimately, to voters. And it would surely have noted that when legislation on whether to ban Palestine Action was put before MPs last year, it passed by 385 votes to 26.

But the balance of power and responsibilities between parliament and the judiciary has long since shifted. Through the growth of judicial review and the expansion of rights-based activism, the courts now play a far more intrusive role in politics. In the words of former Supreme Court justice Lord Sumption, Britain has endured the expansion of ‘law’s empire’.

This is certainly true in the case of Palestine Action. The statutory test for proscription has two elements: the organisation must be concerned in terrorism, and the home secretary must decide that proscription is appropriate. The Home Office even created its own detailed proscription policy, which lists the criteria for ‘What determines whether proscription is proportionate?’. In the case of Palestine Action, the High Court used the government’s own policy against it, claiming that the activists’ activities do not reach the required threshold. And so we have the spectacle of a minister and parliament being prevented by a court from making a decision on national security.

It seems that politicians, through detailed policies like that for proscription, are creating more and more opportunities for legal challenges. As the High Court noted, the detailed proscription policy was designed to ‘limit use of the discretionary power to proscribe’ by requiring particular factors to be taken into account. The government’s failure to to tick every one of its own boxes paved the way for the overturning of the Palestine Action ban.

If we are serious about parliamentary sovereignty, we must reduce the fetters on political decision-making. Of course, there is a theoretical danger of executive overreach. But that is not our present reality. Instead we face a system in which almost every controversial decision can be paralysed by litigation, with judges drawn ever deeper into political territory.

The Palestine Action ban is misguided. But if it is to be finally undone, it should be undone by ministers and MPs – not by the High Court.

Luke Gittos is a spiked columnist and author. His most recent book is Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, which is published by Zero Books. Order it here.