Friday briefing: ​The court case trying to stop Palestine Action being designated a terrorist group

The Guardian

a day ago

Good morning. On Wednesday, MPs including home secretary Yvette Cooper wore sashes to celebrate the legacy of the Suffragettes, whose methods included arson attacks, non-lethal bombings, and disabling railway lines. Then many of them voted to make wearing a Palestine Action t-shirt punishable by up to six months in prison, and membership of the group liable for a sentence of up to 14 years.
The legislation is the result of Cooper's decision to proscribe Palestine Action. Today, the high court will hear a case brought by co-founder Huda Ammori asking for a temporary block on the order. If it fails, a group which pursues disruptive direct action aimed at buildings, equipment, and institutions rather than violence will be designated a terrorist entity for the first time.
Cooper says that Palestine Action must be banned because it attacks the UK's defence industry, which is 'vital to the nation's national security'. For today's newsletter, I spoke to Martha Spurrier, a human rights barrister and former director of Liberty, about a new frontier in the UK's view of the line between disruptive protest and menacing force.
This is my last newsletter for a while – I'm going on paternity leave, ahead of the imminent arrival of our, er, second edition. Aamna will be with you from Monday, and I'll be back in the autumn. Here are the headlines.
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UK politics | Rachel Reeves said she is 'cracking on with the job' of chancellor after her she was seen visibly distressed in the Commons on Wednesday. Speaking after a public show of unity alongside Keir Starmer at the launch of the NHS 10-year plan, she said she had been upset over a 'personal issue'.
Yvette Cooper announced the decision to proscribe Palestine Action a few days after activists from the group broke into RAF Brize Norton and spray painted two military planes red.
The home secretary called that incident 'disgraceful', and said it was part of a 'long history' of criminal damage that has 'increased in frequency and severity'. She said that the attacks had done millions of pounds worth of damage and sparked panic among bystanders, who had been 'subjected to violence'. But she did not suggest that Palestine Action is a group devoted to violence as the mechanism for securing its political aims, because it isn't.
The proscription order was voted through parliament this week – but doesn't come into force until Saturday. Here's what you need to know.
What's at stake in today's hearing?
At the high court today, Huda Ammori will seek an interim order from the judge on the case, Martin Chamberlain, preventing Cooper's decision from taking effect until a court makes a decision on a judicial review. It is not a full examination of the substantive issues raised by the case, Martha Spurrier said. 'It will probably be focused on questions of process: does the complainant understand why the order was made? Has she been given the underlying evidence and the reasons? Has the process been fair, and have the right people been consulted?
'Part of it will be about creating the legal mood music for the judge,' she added. 'This has all happened very fast, and the level of the debate has not really been proportionate to the seriousness and novelty of the change, and so they will hope that the judge will find it more attractive to press pause and ventilate the issues thoroughly in court in a few weeks time.'
The government, for its part, is likely to argue that the threat posed by Palestine Action is so serious and immediate that the UK's national security requires an instant response. If they succeed, the order will take effect on Saturday and place Palestine Action alongside the likes of Islamic State, al-Qaida, and the neo-Nazi group National Action.
Here are some of the consequences. (For more detail, see Netpol's useful breakdown.)
Membership or encouraging others to support the group will become a criminal offence, punishable by up to 14 years in prison. Informal expressions of support, including through clothes and banners, will become a criminal offence that could attract a six-month prison sentence. (None of this would apply retrospectively, and challenging or protesting the ban itself would still be allowed.)
Organising or attending meetings of as few as three people would be banned along with fundraising or providing logistical support. Payment platforms would face investigation if they facilitated donations.
Intelligence services and police would not be granted new powers of surveillance and infiltration directly, but proscription would likely increase resources flowing to monitoring suspected members of the group and might strengthen the case for warrants.
Can the proscripton order still be overturned if the government wins today?
If the government prevails, that is not the end of the story – but the route to overturning the ban becomes significantly harder. 'The minute the order is effective it is strengthened by being the status quo,' Spurrier said. 'The deference shown to the government on national security issues is enormous.'
Should the case enter the appeals process, the first route is to the home secretary, whose view seems fairly predictable. After that it enters the legal system – but rather than being heard in open court, the case might end up in closed hearings, where Palestine Action would be represented by special advocates under severe limits on what they can share with their clients.
For that to happen, the government would have to demonstrate that it has evidence which presents a national security risk to share publicly. If they succeed, the challenge for Palestine Action becomes incredibly steep, because they will only hear the parts of the case against them that have been agreed by the court not to present a national security risk.
'You can't answer the specific allegations, whether by saying I wasn't there on that date, or if you think our modus operandi is X or Y I can prove that it's not,' Spurrier said. 'It's the special advocate's job to make the strongest case they can in the absence of their client being able to give them instructions – but fundamentally they are working with both hands tied behind their back.'
Is this a new frontier in the definition of terrorism?
In the 1990s, Greenpeace was involved in a number of radical direct actions, like occupying the Brent Spar oil platform so it couldn't be disposed of in the sea, and destroying a field of genetically-modified maize. When the terrorism bill under which the Palestine Action decision has been made was going through parliament in 1999, Jack Straw, the home secretary at the time, dealt with the question of whether Greenpeace could be caught in the definition.
'I make it clear that the new definition will not catch the vast majority of so-called domestic activist groups,' Straw said. 'To respond to a recent example, I know of no evidence whatever that Greenpeace is involved in any activity that would fall remotely under the scope of this measure.'
'I don't think there's any evidence that parliament's intention was that groups like this would be caught by the definition of the terrorism act,' Spurrier said. 'This is the first time where the primary accusation is of property damage and not harm to people.'
That obviously opens the way to wider applications in an era where direct action – often over the climate crisis – has become a major political issue, she added. 'It's really unclear to me what the principled distinction would be if Just Stop Oil began another wave of damage to property. There would surely be at the very least a political conversation about whether they should be proscribed.'
Crucially, there are already plenty of laws in place for which members of groups like Palestine Action can be prosecuted for criminal damage – and which do not involve imposing the draconian restrictions of proscription. That is part of a wider political shift in the definition of acceptable protest, Spurrier said.
'I remember giving evidence to MPs about this a few years ago – and it was so noticeable that the fault line, which had always been peaceful or not peaceful, had moved – and suddenly it was disruptive or not disruptive. I had MPs saying to me that if it got in the way of the school run surely it should be banned. So there has been a paradigm shift.'
What will it mean in practice?
If the ban goes ahead, 'I don't expect you'll see white grannies being carted away for carrying a Palestine Action sign,' Spurrier said. 'They will be astute in who they arrest and who they prosecute. But you will see communities of colour bearing the brunt of it in the way they always do. And there will be a chilling effect – people who can't afford to be arrested because they will lose their job or they are just frightened by the prospect, simply won't show up.'
There are reasons to worry about the broader consequences, including how the ban might interact with a bill going through parliament seeking to criminalise face coverings at protests and expanding the use of facial recognition. It might also lead to children being referred to the authorities under the Prevent scheme if they tell a teacher that their parents support the group, Spurrier said. 'There are so many pieces of architecture that can sweep people up for things that aren't criminal acts but speak to some kind of intention – and then you're in the dragnet.'
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With all that in mind, it may seem extraordinary that the legislation passed the House of Commons this week by 385 votes to 26. 'I was really disappointed,' Spurrier said. 'But, whether you're talking about protest or asylum or criminal justice, the prevailing view is that a hardened anti-rights, anti-rule of law stance is almost a centrist position. So I was surprised that the numbers were quite so low. But I was never under the illusion that it would meet with serious resistance.'
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