‘The Palestine Action ban risks being heavy-handed and counterproductive’

The Home Secretary’s decision to proscribe Palestine Action (PA) as a terrorist organisation has caused a lot of controversy.  But is the enforcement of one aspect of the ban – the prohibition on expressing views that support PA in a way that is reckless as to whether those hearing those views will be encouraged to support PA – now causing more problems than it is worth?

There is no doubt that PA met the legal test for proscription under sections 1 and 3 of the Terrorism Act 2000, on the basis of PA’s actions. Its actions included not just the well-publicised attack on RAF facilities at Brize Norton but also attacks on the defence industry, financial firms, charities, universities and government buildings: attacks which included the use of pyrotechnics endangering threats of serious violence against employees and bystanders.

The powers to proscribe under the Terrorism Act include cases where an organisation uses or threatens serious damage to property as a way of influencing the government or intimidating the public in order to advance a political objective.

Whether those powers go too far is a matter of opinion: but those on the left who say that they do go too far should reflect on how they would want to treat an organisation that, say, carried out serious damage to NHS property or medical device producers in support of a campaign to ban abortion.

READ MORE: NEC member challenges Starmer over Palestine Action ban

‘Pressure on a not always obvious distinction’

The main effect of proscription is to make it an offence to be a member of the organisation: it also criminalises conduct relating to meetings, flags and uniforms, support, and funding. But two particular effects have turned out to be more problematic in this case.

The first is the effect spelt out in section 12(1A) of the Terrorism Act.  That section makes it an offence to “express an opinion or belief that is supportive of a proscribed organisation” while being “reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation”. The second is section 13, which (among other things) makes it an offence to carry an item that gives rise to suspicion that you are a supporter of a proscribed organisation.

As it happens, the Court of Appeal has already decided (in a case called ABJ) that section 12(1A) is in principle a proportionate and lawful interference with the right to free expression set out in Article 10 of the European Convention on Human Rights and incorporated into UK law by the Human Rights Act 1998.

However, in this particular case, and given the widespread and passionate support for the Palestinian cause in current circumstances, the effect of proscribing PA has been to put a lot of pressure on the not always obvious distinction between supporting PA and the cause it claims to promote, and on the often tricky question of whether a someone who makes a supportive statement is being reckless as to whether it will encourage support for PA.

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‘Consequences that look ridiculous and heavy-handed’

That fact lies behind one of the only two grounds of challenge to the proscription decision accepted by the High Court as being arguable, namely one based on Article 10 ECHR (the other ground being a procedural issue).  (As a side note, anyone who claims that decisions of this kind show that there is no difference between Labour and the Tories/Reform should be reminded that under Labour there is no danger of leaving the ECHR or repealing the Human Rights Act.)

But quite apart from the legal issue, the practical difficulty with drawing fine lines of this kind in areas of hot public contention on the streets is that the police are not – and cannot be expected to be – always masters of subtlety or nuance.

So you end up with consequences that look ridiculous and heavy-handed: protesters being warned about (or even arrested for) slogans that support the Palestinian cause rather than PA; and a tendency to forget that a mere statement of support for PA is not enough to amount to an offence (as there also has to be recklessness as to whether it encourages support for PA).

Further, section 13 means that anyone – even an entirely non-violent elderly person – who carries a placard stating that they support PA commits an offence under terrorism legislation: and that section has led to over 500 arrests last weekend.

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‘When things are getting silly, time to change course’

What, then, should the government do about it?  One obvious course of action that should be considered is some clear guidance to the police (and to protestors) as to what the offence actually is. But as Lord Anderson KC (who is a leading public law barrister and expert on terrorism legislation) pointed out in the debate on the proscription of PA in the House of Lords, section 12(1A) is bound to cause problems when proscribing an organisation whose cause attracts wide public support even though its methods do not: as he put it, that feature takes the proscription of PA into “sensitive territory”. The same point applies to section 13.

So there is in my view a case for looking again at this consequence of a proscription decision. There may be sensible tweaks to be made to the text of section 12(1A) or 13.  There may also be a case for not extending the section 12(1A) or 13 prohibitions to all proscribed organisations, especially where the activity of the organisation (seriously harmful though it may be) is not centred around mass murder. A short Bill could be put through Parliament when it resumes next month to do either of those things.

Ultimately, any government needs to bear in mind the Monty Python law of politics: when things are getting silly, it is time to change course.

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