The proscription of Palestine Action; purported misuse of the Terrorism Act; and impact on freedom of expression.

Preamble

This article will discuss the context from which the proscription of Palestine Action arose; the sources from which the executive and Parliament draw authority to make said proscription; the purported misuse of the Terrorism Act; how terrorism is or should be defined; consequences for fundamental rights with reference to the ECHR; and a discussion the tension between Parliamentary sovereignty and the rule of law.

Context

In protest against the ongoing conflict in Gaza, Palestine Action activists climbed onto the roof of an Israeli defence contractor in Meridian Business Park, Leicester¹. They occupied the premises for six days, resulting in a total of 10 arrests. These arrests were propagated under s.1 of the Criminal Damage Act 1971. Accessory to these charges, the activists were accused of aggravated trespass; however, all were acquitted after the trial judge instructed the jury to consider the common law defence of necessity, and statutory qualification under s.5(2)(b) of the Criminal Damage Act itself².

More significantly, in June of 2025, members of Palestine Action gained access to RAF Brize Norton, spray painting the engines of two Royal Air Force planes with red paint, causing an estimated 7 million pounds worth of damage³. Norton was targeted due to the fact that the base is used to send flights to RAF Akrotiri in Cyprus, where reconnaissance flights over the Gaza Strip are facilitated⁴. Consequently, it was revealed that the precise jets targeted had not been used in the war in Gaza, but had been utilised in British air attacks in Yemen, Iraq, and Syria⁵.

The Home Office announced that it intended to proscribe Palestine Action as a terrorist organisation under the powers conferred on the Home Secretary within the Terrorism Act 2006. On the 2nd of July, the House of Commons voted 385-26 in favour of proscription, amending Schedule 2 of the Terrorism Act to include Palestine action, along with two other groups⁶. Since the 5th of July 2025, it has been an offence to be a member; to fundraise; wear or display items giving reasonable suspicion of membership; or to express an opinion or belief supportive of Palestine Action, and in doing so, is reckless as to whether a person to whom the expression is directed will be encouraged to support it⁷.

Offences under the Terrorism Act carry serious criminal weight; the maximum penalty for conviction under s.11 is imprisonment for a term not exceeding 14 years⁸. The Metropolitan Police confirmed that 890 arrests were made at the demonstration in central London last weekend, most being substantiated under s.13 of the Terrorism Act, for displaying ‘articles’ in support of the proscribed organisation⁹.

Constitutional Basis and Interpretation

As a matter of cardinal British constitutionalism, Parliament is sovereign; ‘free to make or unmake any law, whatever’¹⁰. To make use of the conventional adage, it would be within Parliament’s legal competence to ban smoking on the streets of Paris. The UK adopts a monist constitutional position, which means that any international treaties signed do not produce direct effect in domestic law¹¹. The only reason the ECHR has any effect on UK law is due to the Human Rights Act 1998 giving it effect.

This notion extends further to interpretation and definition. Parliament is free to define anything in any way it wishes, and often statutes contain a section dedicated to defining and guiding how words used throughout the statute should be interpreted. Definitions range from comically obvious to complex, to definitions that glaringly run counter to any feasible construing of the words they seek to define. The most apt example is s.6 of the Interpretation Act 1978, wherein Parliament provides that ‘In any Act, unless the contrary intention appears, words importing the masculine gender include the feminine’.

The result of the aforementioned constitutional reality means that – legally – Parliament can define certain kinds of conduct as terrorism if they wish to do so, even if said conduct has never been considered terrorism through any typical, conventional, or colloquial use of the word.

Alleged Misuse of the Legislation

The government has been met with heavy criticism from prominent organisations, namely, the United Nations Human Rights Commissioner, who conveyed “serious concerns” that anti-terrorism legislation is being “misused” against conduct that is “not terrorist in nature”¹².

S.1(1) of the Terrorism Act establishes the prerequisites in order for an act to be considered terrorism. Firstly, the action must fall within a behaviour contained in s.1(2), secondly, the behaviour must be designed to influence the government or to intimidate the public or a section of the public; thirdly, the behaviour must be made for the purpose of advancing a political, religious, racial, or ideological cause.

Notwithstanding s.1(2)(b) the section is uncontroversial. S.1(2)(b) states that an action will satisfy the requirement for terrorism (provided that s.1(1)(b) and s.1(1)(c) are satisfied) if it involves “serious damage to property”. In application to Palestine Action’s case, the Home Secretary’s designation of the group as a terrorist organisation is grounded. It is reasonable to assert that 7 million pounds worth of damage would satisfy the requirement that the damage be serious.

The way in which the Terrorism Act was applied is prima facie unambiguously standard. What, therefore, makes the proscription of Palestine Action so contentious?

What is Terrorism?

As this article previously discussed, the way in which Parliament defines (or often doesn’t) the words in legislation can depart significantly from the plain and ordinary meaning typically ascribed to the words.

The controversial element around this case should not be the proscription of Palestine Action, but the wording of the statute, namely s.1(2)(b). What Palestine Action seems to have participated in is commonly known as ‘direct action protest’¹³. Some prominent examples include Martin Luther King Jr., who used direct action tactics such as boycotts in his fight for civil liberties¹⁴. King felt that direct action should “create such a crisis and foster such a tension”¹⁵ as to elicit a response.

More applicable to Palestine Action’s method is the method adopted by Mahatma Gandhi. Gandhi’s most famous action, the Salt March, culminated in an attempted mass trespass into a government-owned Salt Works¹⁶. The attempt was unquestionably illegal, but no one has ever suggested it was terrorism.

Ghandi’s methods of non-violent protest have been utilised internationally. Anti-nuclear protesters illegally broke into nuclear submarine factories in Connecticut¹⁷, in some instances pouring paint over the submarines, with similar protests occurring in the UK¹⁸. The individuals involved were charged and prosecuted accordingly; however, it was never suggested or alleged that what they did was an act of terrorism.

This apparent absurdity is best illustrated through the tort of defamation. Until Parliament outlined what it defined as terrorism, a person convicted of criminal damage (such as the actions of Palestine Action activists) could have successfully sued anyone labelling them as a terrorist for libel (see Jameel v Wall Street Journal; Al-Fagih v Saudi Research & Marketing).

Direct action has been a crucial underpinning throughout our history in achieving social change and creating a more equitable society. It is not known when the direct action protests began (some estimates suggest the early 20th century), but what is clear, however, is that it has never been labelled as terrorism under any definition.

The controversy, therefore, arises from Parliament’s consequential departure from the conventionally accepted definition of terrorism, and the implications that it may produce henceafter.

Consequences for the Rights to Freedom of Expression and Assembly

Specifically in relation to the proscription order placed on Palestine Action, persons publicly expressing similar sentiments to the group in calling for the prevention of disregard for international law by the Israeli government are now liable to face police arrest, scrutiny, and restrictions on their activities, under the assertion of being a suspected supporter of the group.

Some examples of said restrictions can be derived from Laura Murton¹⁹, who was threatened with arrest under the Terrorism Act for displaying signs saying “free Gaza” and “Israel is committing a genocide”. Another example can be seen when protesters near a BAE Systems factory in Lancashire were asked to remove ‘Free Palestine’ shirts on the basis that they might violate the proscription order²⁰.

On a more macro level, the designation of a non-violent organisation as a proscribed terrorist group is alarming. The implications of being labelled as a terrorist are crippling. Job prospects, ability to exercise freedom of movement, failure of disclosure checks, enhanced surveillance, and extradition risks²¹.

How can s.1(2)(b) be reconciled with the ECHR?

ECHR Articles 10 and 11 confer individuals a right to freedom of expression and assembly, respectively. Both rights are – of course – qualified, which means that the right can be interfered with on the basis that a member state does so under certain conditions. All of these conditions need not be discussed in depth; however, it is of note that if a state is to interfere with a qualified right, it must do so ‘proportionally’. The test for proportionality is threefold and outlined in Bank Mellat v HM Treasury: rational connection; least intrusive available means; fair balance between competing rights. Such a test is to be completed by the judiciary, not Parliament (R(Daly) v Secretary of State).

However, a purported failing of the proportionality test does not mean that courts will seek to overrule the interference. Often, the judiciary has shown great deference to Parliamentary judgment, as a democratically elected legislature. Examples of this notion can be derived from R (Animal Defenders International) v Secretary of State. Summing up the facts, Animal Defenders International (ADI) sought to challenge S.321 (the blanket ban on political advertising in broadcast media) of the Communications Act 2003.

If the court in this instance were to have applied the proportionality, ADI could have made a strong claim that the prohibition of their advertising was disproportionate under the test outlined in Bank Mellat. There exists a blanket ban on political advertisements in the broadcast media, but not other forms of media, thus suggesting a lack of rational connection. The ban certainly did not employ the least intrusive means to achieve its purported goal, as the blanket ban applies all the time, not just during elections or campaigns. Finally, S.321 seems to fall short of striking a fair balance between the rights of ADI to broadcast their message; ADI is not a political party and therefore is not entitled to PPBs or PEBs.

However, this did not prevent the House of Lords from ruling against Animal Defenders International unanimously (5:0). Why? The Court expressed its willingness to show deference to Parliamentary judgment. The ban had widespread concordant support in the Commons, and therefore, the Court seemed willing to exercise its discretion to defer judgment.

In the context of Palestine Action’s proscription, Chamberlain J granted permission for judicial review on two grounds: its worrying implications on freedom of expression, and the failure of the Home Office to consult Palestine Action prior to proscription²².

Parliamentary Sovereignty and the Rule of Law

As this article has already articulated, the governing principle of the United Kingdom’s unwritten constitution is that Parliament is sovereign. The judiciary has, however, subtly (or not so subtly; see: Jackson v Attorney General) exhibited a willingness to qualify this principle, weighing up other constitutional underpinnings, namely the rule of law and protection of fundamental rights.

An example of this balancing act is exemplified in Evans v Attorney General. The case concerned the Attorney General’s attempt to block the release of the “black spider memos” (letters sent by the Prince of Wales to government ministers), despite the Upper Tribunal ordering disclosure under the Freedom of Information Act 2000. S.53 of the Act appeared to allow the Attorney General to issue a “veto” certificate overriding the judicial decision. The majority judgment, led by Lord Neuberger, refused to uphold the veto, holding that if Parliament is to undermine the rule of law – namely that decisions of courts are binding – it must be ‘crystal clear’ when doing so, despite the veto seemingly being unambigious.

This swathe of judicial exhibition of power reached its peak in Jackson v Attorney General, through the judgments of Lord Steyn and Hope. Lord Steyn opined in obiter about how the “classic account” given by Dicey is “out of date in the modern United Kingdom”. Steyn draws attention to the reality that the principle of Parliamentary sovereignty was created and instilled by judges, and therefore “it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism”.

Lord Hope echoed a similar sentiment, stating that “Parliamentary sovereignty is no longer […] absolute”, in that “the principle is being qualified”. Hope goes further, scathingly expressing how “the rule of law […] is the ultimate controlling factor on which our constitution is based”.

This overt articulation of the principle of legality was trailblazing; the court said the quiet part out loud. The decision was met with ineluctable criticism from lawyers and politicians as a result, nevertheless, the sentiment of the judges was clear.

This considered, the issue regarding Palestine Action’s proscription raises an interesting conundrum for the judiciary to consider. Time will tell whether the courts will again defer to legislative supremacy or whether the principle of legality and protection of fundamental rights will compel a more interventionist stance.

Conclusion

The crux of the issue is far broader than the proscription of Palestine Action. The issue pertains to the poorly drafted and thought-out domestic anti-terrorism legislation. Despite it being constitutionally open to Parliament to define ‘terrorism’ in any way it pleases, when its definition results in a potentially flagrant violation of individual rights, namely one’s right to freedom of expression and assembly, it is cause for concern.

At the time of writing, the decision regarding whether the proscription of Palestine Action should be overturned is still ongoing, and it is possible that the decision may turn on points of law far removed from the intrinsic issue the litigation arose from. What seems poignant, however, is that a decision to proscribe a non-violent organisation articulating broadly shared concerns about the conflict in Gaza is a minacious attack on individual rights, an attack which must be considered with the utmost seriousness.