Who governs Britain? For a long time the conventional wisdom was that “advisers advise, ministers decide”. But while that might have been true in the 20th century, much has changed since. And after Friday’s High Court judgment, which ruled the proscription of Palestine Action to be unlawful, it seems we now live in an era where ministers advise, and judges decide.
That doctrine seems clear in Friday’s judgment, provided after the court was asked to decide whether the then Home Secretary, Yvette Cooper, behaved properly and lawfully when she proscribed Palestine Action in June last year.
Cooper took this decision having received supportive evidence and advice from Counterterrorism police, the Joint Terrorism Analysis Centre and the Proscription Review Group. Having considered this evidence, the Home Secretary proscribed Palestine Action, a decision which she announced by making a statement to Parliament in which she said that, following the “disgraceful attack on Brize Norton”, and “a long history of unacceptable criminal damage committed by Palestine Action”, which had “increased in frequency and severity since the start of 2024”, while “its methods” had “become more aggressive, with its members demonstrating a willingness to use violence”, and her conclusion that the group’s activities met “the threshold in the statutory tests established under the Terrorism Act 2000”, she had taken the decision to proscribe it. A formal order to proscribe the organisation (and two others) was laid before Parliament on the 30th June, and approved by the Commons on the 2nd July, followed by the Lords on the 3rd July.
The process was followed. So what is the High Court’s objection? The relevant law, the 2000 Terrorism Act, essentially asks two questions:
- Has the organisation participated in terrorism?
- Is it “proportionate” to proscribe the organisation?
It is not in dispute that Palestine Action have committed acts of terrorism — their own submission to the court “emphasised that only three of Palestine Action’s many actions were assessed to amount to acts of terrorism”. The court, similarly, stated that “Palestine Action has organised and undertaken actions amounting to terrorism”.
So what was in dispute is whether the Home Secretary’s decision was “proportionate”. Proportionate is defined as the Home Secretary taking into account “other factors”, including:
- the nature and scale of an organisation’s activities
- the specific threat that it poses to the UK
- the specific threat that it poses to British nationals overseas
- the extent of the organisation’s presence in the UK
- the need to support other members of the international community in the global fight against terrorism
This is the point at which, frankly, the court departs from reality. They explain their view, that “the purpose of the policy is clearly to constrain use of the discretion so that not all organisation that meet the concerned in terrorism requirement will be proscribed”. That is to say that they interpret the goal of policy being to limit the Home Secretary’s right to proscribe terrorist organisations, rather than the fairly obvious interpretation that the Secretary of State is simply supposed to consider certain matters before using their extensive powers to proscribe.
The court goes even further, stating that the “purpose of this policy is to limit use of the discretionary power to proscribe. Each of the five factors stated on the face of the policy has that effect[my italics]”. It seems beyond the judges’ imagination that the “nature and scale” of a terrorist organisation, “the specific threat” it poses to this country or its citizens, or “the extent of” its presence here might make a proscription more likely rather than less. In this curious interpretation, only arguments against proscription could be considered during the “proportionate” test.
Even worse, the judges seem, to this author, to be troublingly naive about how national policy must be determined. They objected to the Home Secretary being of the opinion that proscribing Palestine Action would be “advantageous” — that is to say that there would be benefits to the country’s order and security were the organisation banned. It is, of course, right and proper that the Home Secretary considers such matters. Indeed one might consider that a Home Secretary who did not take such matters into account would be derelict in their duty. On this basis, the court allowed Palestine Action’s claim, concluding that Cooper had not applied the policy correctly.
If this were not bad enough they also allowed the challenge on a second ground, that proscribing Palestine Action was contrary to the Human Rights Act — specifically that it violated Article 10 (Freedom of Expression) and Article 11 (Freedom of Assembly and Association). This is even odder. The point, quite obviously, of proscribing a terrorist organisation is to limit the freedom of expression, assembly and association of its members and supporters. It would be futile otherwise. Indeed, even the court seemed to accept this, noting that “the very purpose of proscription is to put measures in place that are designed to ensure that an organisation ceases to exist”.
Judicial review itself is used far too widely. Its scope should be limited
The government will be appealing, but as things stand we are left with a judgment which, if upheld, would make it much harder for Home Secretaries to proscribe terrorist organisations. The “proportionate” test would become a tool for limiting proscriptions, and the very purpose of the proscription regime would be under constant challenge by banned groups arguing that their Human Rights are being violated.
Whatever one’s view of this particular group, if we are to have a country which functions, and is governable, then decisions made by Secretaries of State and voted for by parliament should not face this kind of imperious challenge by the courts. Judicial review itself is used far too widely. Its scope should be limited, so that we again have a country where ministers decide.
