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ecutive an appropriate latitude we see here how the judgment s legalism works to complement rather than counteract its deferential attitude towards the executive here and elsewhere as for example in that extraordinary statement that in all cases where proscription is under consideration the respective home secretary acts on rational grounds and in good faith the overriding message is that the home secretary is not only an elected politician but also a jolly good chap who s got a jolly difficult job to do and if some officious lawyer might think that such or such a decision was wrong that lawyer should observe the well established legal principle of not meddling with things that don t concern them clearly this line of argument says nothing about this proscription decision specifically but it s worse than that the real problem is that it says nothing about this decision that couldn t also be said about every other such decision including decisions as yet unmade which might be controversial in future this judgment sets a precedent in other words and in this respect it s a really woeful precedent despite its expert deployment of the forms and language of law the ac plainly does not see its role as upholding the principles of legality or any other principle that doesn t happen to coincide with the wishes of the executive whether 205 is even worse i ll let you decide it s certainly differently bad palestine action overtly promotes unlawful violence amounting to terrorism it is not as it claims a direct action civil disobedience protest group like the suffragettes operating transparently in the open it is a covert organisation that operates using secret cells to avoid the detection and prosecution of those using violence to destroy the property of third parties palestine action s activities have caused injury as well as property damage others have commented on the historical illiteracy of that reference to the suffragettes palestine action its actions and its claims are also characterised with a quite extraordinary degree of tendentiousness verging repeatedly on outright falsehood a corrected version of those sentences might read something like this palestine action overtly promotes unlawful violence against property amounting to terrorism as defined in the terrorism act 2000 albeit not as that word is generally understood it is not as it claims a direct action group and makes no claim to be a civil disobedience protest group like the suffragettes operating transparently in the open like the militant wing of the suffragettes it is a covert organisation within a broader movement that operates using secret cells to avoid the detection and prosecution of those using violence to destroy the property of third parties palestine action s activities have caused injury as well as on one occasion led to a charge of gbh without intent although the group s consistent focus is on property damage but the ac had a job to do and drawing the appropriate distinctions in this way wouldn t have helped do it what was at stake was the operative definition of the word violence and by extension the word terrorism it s true that the terrorism act breaks down the violence element of the offence into numerous possible elements including action involving serious damage to property there s no strictly legal obstacle to labelling a group terrorist on the basis of a campaign of sabotage say for instance forcibly disabling military equipment however the everyday meaning of words like these is also always in play an authoritative finding that palestine action was dedicated exclusively to property damage would not have been helpful to the government the high court judgment hadn t been much use it had expressed scepticism about whether it was appropriate to describe sabotage as non violent or as civil disobedience but it had also insisted on the distinction between direct action and terrorism and maintained with good reason that palestine action fell on the direct action side of the line the task the ac set itself in line with the third running theme of its judgment was to erase that line to assimilate the category of direct action to that of terrorism and thus delegitimate it validating the proscription of pa and facilitating future proscriptions of similar groups in that task i m afraid it s been almost entirely successful assisted by the approaches superficially opposed but in reality complementary of punctilious legalism and deference to government the legal vacuity of paragraph 180 and the strain put on most of the key terms in 205 are clear signs of a weak argument once they re pointed out but the argument is weak not invalid at the end of the day it s true that a borderline decision is still legally valid and that the home secretary had the power to proscribe as for individual proscriptions they re as legitimate as the courts say they are and the ac evidently doesn t have any problem with this one similarly whether a group should be proscribed only for recognisably terrorist actions it has committed or so as to disrupt a pattern of activity which might in future include terrorist acts is a question for the courts par excellence and the appeal court has duly answered it the fact that they ve answered it in a way that prioritises deference to the executive over the rule of law is a problem perhaps even an error but it s not an error of law it might be possible to relitigate the question of whether operational considerations can or should weigh in the balance of a decision to proscribe but the appeal court s position on that question is again weak rather than invalid and the high court had unfortunately made its position more vulnerable to counter argument by resting this part of its argument on an irrelevant distinction between factors that guide and restrict discretion lastly it is true that palestine action like many other groups have carried out acts that can be found to fall under the roomy umbrella definition of terrorism in the 2000 terrorism act and that they aren t a direct action civil disobedience protest group operating transparently in the open if only because that s a highly unlikely combination practically a contradiction in terms a case can be made for the legality of their proscription and duly has been with punctilious legalism consistent deference to the executive and dogged hostility to direct action and its exponents so it s going to be a tough decision to overturn it s likely to stand and to set a precedent which is very bad news and not only for palestine action next some concluding thoughts on the wider implications of the ac judgment share this print opens in new window print email a link to a friend opens in new window email share on x opens in new window x share on facebook opens in new window facebook like loading by phil posted in anti imperialist britain legal matter pinkoes zionism comments 0 palestine action at the court of appeal 3 of 5 20 june 2026 18 10 monday the 15th of june 2026 was a bad day not only for palestine action but for the palestine solidarity movement for protest and extra parliamentary politics generally and not least for the rule of law in britain in february the high court ruled that the proscription of palestine action as a terrorist group was unlawful on monday the court of appeal heard the government s appeal against that ruling and granted the appeal almost in its entirety you can download the judgment here punctilious in its application of relevant legal arguments to the facts of the case the judgment was nevertheless dominated by an extraordinary level of deference to the executive and an equally pronounced hostility to palestine action and direct action more generally sadly this threefold combination chapter and verse legality in analysis while interpretation is steered by deference to the executive and hostility to palestine action will make this judgment extraordinarily hard to overturn even given a sympathetic court and the current supreme court emphatically is not a sympathetic court but to say that the judgment looks lawyer proof is not to say that it s beyond criticism in this series of posts i m looking at the high court s original ruling the appeal court s ruling on the policy ground did the home secretary exceed her powers the appeal court s ruling on the human rights ground was there an impermissible interference with human rights the themes and attitudes that run through the appeal court ruling where it all leaves us part 3 the human rights ground on the human rights ground of appeal the ac has a rare word of criticism for the home secretary the article 10 and 11 rights of many peaceful and lawful protesters are affected by proscription the home secretary was wrong to argue that article 17 meant either that no article 10 and 11 rights of individuals were engaged or that the proportionality balance did not need to be undertaken at all however where the high court concluded that her invocation of article 17 signified that the home secretary had not taken article 10 and 11 rights into account the ac does something much more adventurous it conducts a proportionality balanc ing exercise of its own then asks whether the home secretary s original ruling can plausibly be assumed to be consistent with such an exercise the conclusion spoiler is that any infringement on article 10 and 11 rights should be considered to be justifiable and rather than being taken to undermine the government s case the home secretary s invocation of article 17 can be politely ignored a cynic might say that the appeal court does the home secretary s homework for her before giving her a passing mark and declaring itself satisfied that it s the kind of homework that she might have done if she d got round to it this is the largest single section of the judgment 92 paragraphs 91 182 it s thorough you have to give it that it opens with six paragraphs on bank mellat proportionality and fourteen on the margin of appreciation the entire discussion of the policy ground had only taken 21 paragraphs 70 90 bank mellat proportionality is an approach to assessing the proportionality of a measure to the problem it addresses taking into account the negative side effects it may cause the idea is to replace a more or less intuitive and value laden assessment of proportionality with a set of tests that can be applied with greater consistency the high court stated that it had not applied the bank mellat tests but that its conclusions would have been the same if it had done in this case the tests were i whether the objectives of the proscription decision were sufficiently important to justify the limitation of fundamental article 10 and 11 rights ii whether the proscription decision was rationally connected to those objectives iii whether a less intrusive measure could have been used instead of the proscription decision and iv whether balancing the severity of the effects of the proscription decision on the rights of those affected by it against the importance of the objective of the proscription decision to the extent that the proscription decision will contribute to the achievement of those objectives the former outweighs the latter these it seems fair to say are tests designed not to be too difficult to pass the answers to the first and second tests are highly likely to be affirmative while the third relies for any force it has on a sceptical attitude towards the evidence furnished by members of government by the time the crucial fourth test is considered the decision maker s mind is likely to have been primed to consider the measure in question as important rationally justifiable and lacking any adequate substitute as for the margin of appreciation this is or at least began life as a term of art in european convention of human rights jurisprudence for the discussion of this point i am indebted to this blog post from 2013 by mark elliott where a breach of convention rights has been identified the european court may in some situations defer on democratic grounds to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the convention lord hope in the 2000 case kebilene out of respect both for national democracy and for the greater competence of domestic courts to address local conditions we might think that the margin of appreciation had no application to domestic jurisprudence lord laws described it in 2009 as having a close affinity to the margin of discretion or deference now a less favoured expression which our courts will pay to the judgment of public decision makers in matters of discretion or policy but took care to distinguish the two when the appeal court asserts that the home secretary should be accorded a wide margin of appreciation or respect in making her judgment it s possible that it s simply using the newer language to evoke an old habit of deference in 2013 however mr justice sales who is now lord sales and deputy president of the supreme court put forward a more ambitious reading of the margin of appreciation which extended its scope to any judgment engaging echr rights where the ecthr applies the margin of appreciation so as to conclude that a state has not violated a convention right when it acts in a particular way the necessary corollary is that the convention rights of the individual applicant did not extend to a right to require the state to refrain from acting in that way i do not think it is easy to separate out the content of the rights from the application of the margin of appreciation according to sales rather than being kept in reserve to be invoked as and when a country s rights discourse diverges sufficiently from the echr the margin of appreciation should be read back into echr rights themselves which will consequently lose much or all of their peremptory force in elliott s words the margin of appreciation in its entirety is hard wired into the convention rights such that a domestic court applying those rights would have no choice but to give parliament or the executive the full benefit of the margin of appreciation it s very possible that this is the sense in which the ac is using the term margin of appreciation as implying that deference to the executive is mandatory when considering echr rights certainly the ac s proportionality balance exercise is an object lesson in giving the executive a wide margin a discussion of possible alternative civil remedies in the context of the third bank mellat test is brought to a halt with the bluff assertion that the home secretary cannot be expected to abrogate her undoubted powers of proscription in the face of terrorist activity on the basis that she could instead promote civil self help remedies for private parties to pursue not much point having powers of proscription if you never use em eh as for whether general criminal law might be adequate we are told with seeming approval that t he home secretary su...
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