The UK’s system of proscription, which operates under Part II of the Terrorism Act 2000, provides for a range of special counter-terrorism offences. These facilitate the criminalisation of anyone associating with a banned organisation in order to prevent that group from organising openly in society. The proscription of Palestine Action in July 2025 followed a break in at RAF Brize Norton, an embarrassing security lapse for the UK Government, which saw some of the group’s members spray paint military aircraft. This marks a new departure in UK counter-terrorism law, in which a direct-action protest group which primarily engages in property damage which disrupts military cooperation and the arms trade with Israel in order to highlight its “serious violations of international law”, is treated as a terrorist entity.

The powers of proscription within UK counter-terrorism law are exceptionally broadly drafted. They allow the Home Secretary to put before Parliament a ban on any group that she believes to be involved in terrorism. This is connected to a definition of terrorism which encompasses causing or threatening “serious damage to property” in a manner designed, amongst other ends, to influence government policy and to advance a political cause. By the letter of the statute, there is no need for a group to engage in or promote the terrorisation of significant sections of society through extreme uses of violence to be proscribed. The potential to apply the letter of this law to protest movements was acknowledged long before this case, but government ministers insisted that this flexibility was necessary to enable them to respond to emergent national security threats.

One of the leading members of the group, Huda Ammori, launched a legal challenge against the ban. The High Court’s judgment in R (Ammori) v Secretary of State for the Home Department, in February 2026, which found the ban to be unlawful, marked a notable success for Palestine Action. This decision, which demonstrated judicial disquiet with the breadth of discretion being asserted by the Executive and emphasised the consequences of proscription for Articles 10 and 11 ECHR, was covered on this blog here. The UK Government immediately appealed, and this week, a special five-judge panel of the Court of Appeal reversed the High Court’s decision. In this post, we consider the application of human rights standards in this judgment, the Court’s treatment of the justifications for the ban advanced by the UK Government and the judicial deference asserted towards national security assessments. Throughout this case, the Court creates an impression of judicial scrutiny, but one so lacking in substance as to embolden even more far reaching uses of executive powers in the future.

The “Balance” Between Rights and Security

Like almost all counter-terrorism measures, this case has been framed as a clash between rights and security. This is problematic, because the metaphor of balance evokes notions of common sense, recasting the exorbitant nature of the government’s discretionary powers as moderate and constrained. In so doing, it cedes a considerable amount of ground to the state, as the qualified rights at issue are contorted to accommodate security concerns. Moreover, focusing on rights arguments gives succour to suggestions that embedded human rights protections constitute a threat to the maintenance of security. The High Court was live to the risks of a judgment in which rights thwarted security claims; it looked beyond rights into the nature of the discretionary powers. The Court of Appeal promptly dismisses those concerns and devotes the weight of its analysis to rights issues.

The Court of Appeal’s judgment is beset with tensions when it comes to rights analysis. The Court is eager to say that the Home Secretary did conduct a proper evaluation of the rights issues at stake in a ban (at [78]). But the fact that any such consideration was cursory is underlined by the Home Secretary continuing to insist that there was no need to find that Article 10 and 11 are even engaged because of the operation of Article 17 “abuse of rights” provision. The Court ultimately has to inform the Home Secretary that Palestine Action’s aims, “such as opposing genocide, opposing Israel’s actions in Gaza, and support for Palestinians and the Palestinian cause”, are not “properly to be regarded” as abuses of the Convention’s protections (at [95]) and that the “rights of many peaceful and lawful protesters are affected by proscription” (at [96]). That this message still needs to be delivered by the Court reflects the extent to which the UK government’s assessment was skewed.

For the High Court (at [138]), the assessment of the proportionality of the state’s intervention into the operation of these rights was an exercise weighted in favour of the executive’s assessment; “the court must permit some latitude to the Home Secretary given that she has both political and practical responsibility to secure public safety”. But this did not preclude judicial oversight, or the conclusion (at [140]) that “the nature and scale of Palestine Action’s activities … has not yet reached the level, scale and persistence that would justify the application of the criminal law measures that are the consequence of proscription, and the very significant interference with Convention rights.”

For the Court of Appeal, however, the steer on these issues had been set by the UK Supreme Court in its ABJ decision, which came after the High Court’s decision in Ammori. Lord Reed had made it clear in ABJ that judicial oversight operated in a strictly curtailed manner when it came to banning groups (at [106]):

Deciding where and how to balance the value of freedom of expression against the need to combat terrorism is a highly sensitive matter falling primarily within the responsibility of the elected national authorities. Judicial supervision … has to respect the institutional expertise and constitutional legitimacy underlying the judgment made by those authorities by according them a correspondingly wide margin of appreciation.

Having conducted a confused analysis which combines elements of the “margin of appreciation” and “European consensus” from Strasbourg case law, the Court of Appeal effectively throws its hands up and declares that the Supreme Court has ceded everything beyond a notional role to the Home Secretary (at [116]):

The Home Secretary is thus better placed than the court to adjudicate the balance of the various rights and interests engaged in the context of national security. Whilst the court remains the ultimate arbiter, the Home Secretary should be accorded a wide margin of appreciation (or respect) in making her judgment about whether the objectives of the Proscription Decision are sufficiently important to justify the limitation of fundamental rights, whether there is a rational connection between the Proscription Decision and those objectives, whether a less intrusive measure could have been used, and whether a fair balance has been struck between the relevant ECHR rights of the individuals and others affected and the interests of the community, in so far as the balancing exercise involves bringing the public interest factors relied on by the Home Secretary into account.

Under those conditions, “ultimate arbiter” equates to legal fiction.

The Court of Appeal is left with the task of agreeing with the Home Secretary’s analysis that the group should be banned. It palpably struggles to provide a convincing argument as to why a ban represents a “fair balance” between the rights in question and the security interest asserted by the UK Government. The Court (at [149]) uses the following formulation to describe the activity of the group: “Palestine Action characterises itself as a non-violent ‘direct action protest group’ which follows in the footsteps of the suffragettes, and the campaigns against apartheid and the Iraq war”. It then goes on to dispute this with an account of the “panic” resultant from the use of pyrotechnics and smoke bombs (at [150]) and an Annex highlighting the use of sledgehammers and spray paint.

Direct action protest frequently involves undertaking criminal action as a way of drawing attention to what are perceived to be greater wrongs. But there is a qualitative distinction between the use of spray paint and smoke bombs to cause short-term panic and the use of indiscriminate gun and bomb attacks to cause terror. Counter-terrorism law has slipped its moorings. The Court has to perform the most dubious reconceptualization of historical campaigns of political violence to attempt to sustain its conclusion that nothing untoward is happening (at [205]):

It is, nonetheless, a fundamental mistake to overlook the fact that 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.

Suffragettes organised clandestinely, bombed the home of the Chancellor of the Exchequer and threw a hatchet at the Prime Minister in pursuit of the right to vote for women, but because these events could be managed without recourse to counter-terrorism measures, the Court of Appeal is either unaware of this foundational history or has opted to whitewash these activities to sustain its narrative.

Proscription vs The Ordinary Criminal Law

The casual disregard for the exceptionality of counter-terrorism law is further underlined by the Court of Appeal’s approach to a key element of the proportionality test— namely, whether any measures less intrusive than proscription were available to the government and the authorities to confront Palestine Action. On the face of it, the Court of Appeal appears to engage in an extensive and rigorous examination of whether “less intrusive measures could have been used”; however, this façade crumbles upon closer inspection.

It was submitted on behalf of Ammori that proscription was unnecessary as the ordinary criminal law was readily available. Indeed, the ordinary criminal law has been used extensively to prosecute members of Palestine Action. Despite this, the Court was highly dismissive of the idea that the ordinary criminal law was sufficient to confront Palestine Action, finding instead at [138] that, proscription would “be beneficial in haltering or hindering Palestine Action’s terrorist activities in a holistic way that could not be achieved otherwise under the existing legislation”.

At every opportunity, the Court of Appeal was keen to remind us of the utility of proscription to disrupt Palestine Action’s terrorist activity. Heavy emphasis therefore was placed on operational utility. But this is not the same as “necessity” and ECHR case law makes it clear that while “necessary” under the Convention does not mean “indispensable”, restrictions on freedom of expression and association must, nevertheless, address a “pressing social need” in the sense that any measure must be more than merely “admissible, ordinary, useful, reasonable, or desirable”. Yet the judgment makes no reflection on the notion of “pressing social need.” Instead the judgment also made clear that a significant margin of appreciation should be afforded to the Home Secretary in making this appraisal.

This conclusion regarding the operational effectiveness of proscription is aided and abetted by the Court’s earlier rejection in the judgment that the fact that only a very small number of Palestine Action’s actions met the definition of terrorism under section 1 of the 2000 Act. This point was pivotal to the High Court, noting that “the proscription decision was based on 385 actions committed over 5 years, only three of which were categorised as terrorist incidents” (at [148]). The Court also noted that the three terrorist incidents were not “disowned or condemned by Palestine Action” and despite this small number, the court, nevertheless, concluded at [163] that:

it was permissible for the Home Secretary (and, therefore, is permissible for us), in considering Palestine Action’s characteristics and activities, to consider the entirety of Palestine Action’s activities, not just its activities classified as terrorist.

The reason given for this was that:

whilst the purpose of proscription is to prevent acts of terrorism, in deciding whether to proscribe the Home Secretary must assess the risk of future acts of terrorism. All of an organisation’s activities, such as recruitment, fundraising, radicalisation and all terrorist and non-terrorist activities may be relevant to that assessment.

The judgment then meanders into a rumination of “the nature of Palestine Action”, rejecting the idea of it as a “transparent non-violent direct action protest group”. Instead, it finds that:

First, Palestine Action’s activities are planned and undertaken secretly with the objective of avoiding detection…Secondly, the members of Palestine Action do not vouch their sincerity by accepting the penalties imposed by the law. Thirdly, on a fair analysis, Palestine Action has little or nothing in common with the suffragettes or the anti-apartheid or Iran War protest groups.

The cumulative effect of this ahistorical narrative is to construct a perception of Palestine Action as extensively engaged in terroristic activity and proscription was necessary to disrupt this activity, notwithstanding the fact that only 0.78% of its activities met the definition of terrorism on the basis that they constituted serious damage to property. This 0.78% figure is, according to the Court, irrelevant and, accordingly, proscription is proportionate.

Diminishing Legal and Political Accountability

There is an irony in the Court of Appeal minimising its scrutiny role so severely on grounds which include the government’s “democratic” competence, given the lack of regard the ruling shows for democratic scrutiny and political accountability more broadly and which leaves the ruling undermining both legal and political accountability in the national security domain.

First, the Court dismisses as irrelevant the severe obstruction to meaningful parliamentary scrutiny of the proscription of Palestine Action. The proscription measure had been placed in an unamendable order with Palestine Action lumped with other obviously dangerous organisations. This meant that parliamentarians could only vote against proscribing Palestine Action if they were prepared to assist overtly violent organisations in avoiding proscription. The Court of Appeal holds the door clearly open for future parliamentary obstruction in this area by emphasising this kind of antidemocratic behaviour on the part of the government should make no difference in determining the level of judicial deference that should be afforded it (at [108]).

Second, underpinning the deep deference in the ruling is a rejection of the democratically-assigned role to judges with regards to proscription as well as national security powers more broadly in recent decades. During legislative scrutiny of the Terrorism Bill introducing permanent proscription powers, the Government assured Parliament not only that proscription decisions would only be made in highly exceptional circumstances but that any proscription decision would be “subject to proper judicial adjudication” (Column 156) and “tested through the judicial process” (Column 225).

Indeed, such assurances formed part of many made from this period onwards, where Parliament consented to legislating for evermore broad new terrorism powers post 9/11, under the proviso that courts would be responsible for ensuring such powers would not be abused. From judicial authorisation of bulk surveillance warrants, to judicial review of Terrorism Prevention and Investigatory Measures to judicial permission required for Temporary Exclusion Orders, Parliament has explicitly authorised the inclusion of judicial oversight across the national security state. It is precisely this judicialisation of national security oversight which was used to justify lancing the heart of natural justice in the UK through allowing the expansion of secret courts, to empower judges to pick apart the details of security sensitive evidence.

Yet, the continual democratic mandating of judges to play this integral role in national security matters goes entirely unacknowledged in the Court of Appeal’s articulation of its constitutional role, instead judicial institutional competence is presented as essentially absent in this domain.

Third, as the analysis above makes clear, the ruling is in essence a rejection of the role democratically assigned to the judiciary by the Human Rights Act 1998. As we have seen, not only are national security questions to be ceded to government due its unquestioned competence, but the Court of Appeal upholds such as a wide latitude to be afforded to the government on the fair balance of rights, the court’s is confined to that of ‘rubber stamp’ (to borrow the language of the powerful dissent of Lord Leggatt in Shvidler precisely in rejecting the Supreme Court’s wide latitude approach to proportionality now emulated by the Court of Appeal ([256])

In this way, the Court of Appeal’s contribution to diminishing legal accountability with respect to national security not only leaves us with broad powers evermore untethered to the legal constraints Parliament was promised but is built on a logic that undermines political accountability in this context.

What’s more, this has occurred at a time when alarm bells have recently been rung regarding threats to such political accountability, with senior political figures previously linked to the Intelligence and Committee having released a report detailing repeated government obstruction of scrutiny work.

A Constitutionally Concerning Future

In the conclusion of its judgment, the Court of Appeal states this (at [207]):

Ultimately, we have had to balance the free speech and freedom of assembly rights of individuals against the rights of third parties and the national security of the communities of the United Kingdom. We have done so by applying well-established legal principles, allowing the appropriate latitude to the decision that Parliament entrusted the Home Secretary to make. The Home Secretary had both the institutional competence and the democratic accountability to make that decision.

In other words, while the ban might have been a “highly controversial” decision (at [204]) and maybe “borderline” (at [108]), we are told that Parliament has given wide powers to the Home Secretary, and the Court is simply recognising that reality. No mention is made of its long held constitutional role with regards to rights, or its democratically-assigned role with respect to so many national security powers, including proscription.

The result of the ruling, and its lop-sided account of the separation of powers, is to remove meaningful legal constraint on the Home Secretary’s capacity to proscribe a group for operational effectiveness reasons, even if that group only has minimal engagement with activities that satisfy the definition of terrorism, as well as with respect to invasive national security powers more broadly. Not only this, but by so flippantly dismissing the role of Parliament in assigning the judiciary reviewing powers, and scrutinising the Home Secretary’s proscription decision, the Court of Appeal has sanctioned the erosion of legislative guardrails from the proscription process and national security decision-making as a whole. Once again, the UK has placed its faith in its “good chaps” to exercise their broad discretionary powers with restraint. Such blind faith is not merely misguided, it is fundamentally at odds with essential constitutional principles such as the rule of law and separation of powers.