Seasoned court watchers were no doubt surprised by the English High Court’s decision to overturn the British Home Secretary’s decision to proscribe Palestine Action. For anybody even casually familiar with British courts’ approach to national security-related matters, the odds of success were not good.

Palestine Action are described by their founders as “a direct action protest group aimed at preventing military targets in the UK from facilitating gross abuses of international law”. Their main targets have tended to be Elbit Systems, an Israeli arms manufacturer with premises in the UK; however, they have also targeted other businesses with supposed links to the Israeli weapons trade. Following a break-in at RAF Brize Norton in which Palestine Action activists spray-painted two aircraft, the government took the step of proscribing the group under Part II of the Terrorism Act 2000. Proscription triggers several specific criminal offences such as declaring support for a proscribed organisation, or wearing a uniform or displaying or publishing an image that could be supportive of such a group. This latter offence has seen thousands of people arrested as protests erupted across the UK in the wake of the ban.

The judgment (R(Ammori) v SSHD)  is certainly not a slam-dunk victory for Palestine Action and it is replete with extensive discussion condemning the actions of the group. And yet despite these admonishments, the judgment intimates at wider concerns as to the role of counter-terrorism legislation in liberal democracies, and indeed, the role of unfettered executive discretion more generally. In this regard, this is a judgment that is perhaps as striking for what it doesn’t say as for what it does and in an age of rising authoritarianism, we should listen carefully to the silence.

Soft Law in Hard Times

The Court found that the decision to ban Palestine Action was unlawful for two reasons: first, that the decision was not in alignment with the Home Secretary’s long-standing policy in respect of the power to proscribe; and secondly, that the decision to proscribe was a disproportionate interference with the right to freedom of expression and freedom of association under Article 10 and 11 ECHR respectively.

In relation to the first ground concerning the Home Secretary’s policy regarding proscribing organisations, the Court found that this policy contained five factors, all of which operated to constrain the Home Secretary’s discretion. A further, “other factors” clause must therefore also be interpreted in light of this constraining purpose of the policy. In this instance, the Home Secretary had used this “other factors” clause to expand her discretion by taking into account the “significant disruptive benefits” that proscription would have on Palestine Action’s activities.

This constraining aspect of the policy is evident from previous Home Secretaries’ refusal to proscribe certain organisations such as animal rights activists, notwithstanding the fact that they met the threshold definition of terrorism. The constraint can also be seen currently in the failure to proscribe any extremist Israeli settler organisations that meet the threshold, with the government preferring to use sanctions under the Sanctions and Anti-Money Laundering Act 2018 instead.

This part of the judgment concerning the constraining effect of the policy has been controversial, with one commentator suggesting that “it is axiomatic that the Home Secretary… would refer to the ability to rely on the 2000 Act offences as an operational measure in favour of proscription.” Such offences are, after all, the “raison d’etre” for the proscription power in the first place. Relatedly, if stating that the purpose of the policy is to “limit the discretionary power to proscribe”, this is improbable as it would “impermissibly fetter the Home Secretary’s discretion” to proscribe organisations. There is certainly legal merit to these perspectives; however, I believe that these views unduly downplay the scope of reliance upon illegitimate discretion in the field of counter-terrorism law.

I do not use the term “illegitimate” here lightly. In R v Gul, the UK Supreme Court was crystal-clear that relying upon prosecutorial discretion to temper the breadth of the section 1 definition could not justify the breadth of this definition. However, the Court also stated that in that case, it was unable to narrow this statutory definition itself and so it was up to Parliament.

Parliament, however, has failed to act to revise the definition. Not only this, successive governments have doubled down on decision-making discretion as a means to temper perverse applications of counter-terrorism powers. For instance, under Schedule 7 of the Terrorism Act 2000, the UK can examine and detain anybody without reasonable suspicion at ports and airports for the purpose of assessing whether they are involved in terrorist-related activity. In Miranda v SSHD—a case concerning the Edward Snowden leaks—the Court of Appeal issued a declaration of incompatibility under section 4 of the Human Rights Act 1998, finding that Schedule 7 did not afford sufficient protection to journalistic material and so contravened Article 10 ECHR. Rather than amend Schedule 7, the government merely amended the Code of Practice which officers exercising Schedule 7 powers ought to follow; i.e. they relied upon discretion to address the declaration of incompatibility, notwithstanding the Supreme Court’s statement in Gul that discretion cannot justify the breadth of section 1. This revised code of practice did not stop officers at St Pancras station, London, from detaining Ernest Moret, a French publisher, during the 2023 protests over President Macron’s pension reforms. The Met Police subsequently paid a “five-figure sum” to Moret to settle a claim for misfeasance in a public office and false imprisonment.

All this points to the increasingly prominent role that “soft law” sources like policies, codes of practice, and guidance now play in counter-terrorism law. This “soft law” exists on a sliding scale of hardness and my reading of the Ammori judgment is that the High Court is attempting to harden these sources into more tangible legal constraints.

But this can cut both ways and can also result in a conclusion favourable to the government.

For example, the High Court in Ammori returns to the theme of soft law and guidance later on in the judgment when they note that the police have received guidance concerning how they arrest individuals at protests for the section 13 offence of wearing clothing or displaying an article that gives rise to a reasonable suspicion that the person is a member or supporter of a proscribed organisation. Notably, this is a strict liability offence—the prosecution is not required to prove intention—meaning that it can have a significant effect on the right to freedom of expression and association as one may be prosecuted of the offence, even if they had no intention of supporting a proscribed organisation. In this circulated guidance regarding section 13, the police are advised that “being in support of de-proscribing Palestine Action would not necessarily be supporting Palestine Action”. However, this statement does not appear in the legislation; in fact as the legislation refers to a “reasonable suspicion,” it could be possible that displaying a placard opposing the proscription of Palestine Action is, in fact, an offence under Section 13.

What matters for our discussion is the Court’s reliance on guidance as a means of constraining police discretion, concluding that “police forces have guidance that provides information necessary for them to act appropriately and to apply the relevant offences under the 2000 Act correctly.” The court has crystallised this guidance into a norm capable of shaping the court’s interpretation which, in this instance, points in favour of the state. So on the one hand, if one is to contend that the Court was incorrect in applying an overly rigid policy to constrain the discretion of the Home Secretary, consistency demands that the Court should not have relied on guidance to justify constraining police discretion and so the court should re-examine the degree to which the risk of individuals being wrongly identified by the police and prosecuted for section 13 offences is compatible with Article 10 and 11 ECHR.

All of this reliance on soft law demonstrates the UK’s “good chaps” approach to counter-terrorism and, indeed, executive and political power more generally. Vast conferrals of discretionary power on decision-makers are viewed as fine because we can trust the individual characters, traditional practices, and general norms guiding the behaviour of officials to act as a sufficient constraint and prevent abuse of power. It follows that legislative constraints on such powers are unnecessary. However, this “good chaps” theory has been put under severe strain in recent years due to Brexit and, indeed ”Partygate” during the Covid-19 pandemic. The hardening of soft law seen in the Ammori judgment therefore hints at an increasing scepticism on the Court’s part that we can, in fact, trust the good chaps.

Deference should be Earned

This suspicion is further compounded by the notable absence from the judgment of any detailed consideration of the notion of deference to the executive’s assessment of Palestine Action. One would have expected some engagement with deference in the context of a proportionality assessment as to the balance to be struck between the government’s stated legitimate aim and the affected rights in question. This is particularly surprising in a judgment concerning matters of national security. The word “deference” is not used once in the judgment; the closest we get to any consideration of something akin to deference is at paragraph 128 where the Court notes that:

“the court must permit some latitude to the Home Secretary given that she has both political and practical responsibility to secure public safety”.

Despite this acknowledgement the Court found that:

“At its core, ‘Palestine Action is an organisation that promotes its political cause through criminality and encouragement of criminality. A very small number of its actions have amounted to terrorist action within the definition at Section 1(1) of the 2000 Act. For these actions, the ordinary criminal law is available to prosecute those concerns.“

For this reason therefore, the Court found the ban disproportionate.

Deference should not be automatic; it must be earned and the manner in which the decision to proscribe Palestine Action was taken is undeserving of deference. The Home Secretary heavily suggested to the press, including briefing certain outlets, that Palestine Action was funded by Iran; however, no evidence of this was presented to the Court to corroborate this claim. Nor was the manner in which Parliament was asked to review the decision to ban Palestine Action above the board either. The proscription order was lumped in with two other groups: Maniac Murders Cult and the neo-Nazi Russian Imperial Movement. Any MP or peer voting against the proscription of Palestine Action therefore was also required to vote against banning these two groups.

The government’s conduct therefore surrounding the proscription of Palestine Action was unscrupulous and showed a disregard for parliament and, indeed, wider democratic norms concerning candour in public office. None of this, however, expressly features in the Ammori judgment. However, failure to engage in detail with the notion of deference heavily suggests that the Home Secretary’s decision was not one meriting deference. My reading of this judgment is that there is a latent concern at the breadth of discretionary powers afforded to decision-makers such as the executive, police, and Crown Prosecution Service by the UK’s counter-terrorism apparatus. I share these concerns which are only further compounded by recent changes made to public order legislation which strictly curtail the right to protest, as well as further plans to allow protests be banned on the basis of their “cumulative impact”.

Ultimately, this is a judgment where the Court carried out the kind of close scrutiny that Parliament ought to have done, and, indeed the UK’s Independent Reviewer of Terrorism Legislation ought to have done. On the contrary, the UK’s Reviewer Jonathan Hall endorsed the Home Secretary’s decision to proscribe Palestine Action. Human rights concerns are almost wholly absent from this piece with the Independent Reviewer instead stating that he  is ‘unconvinced’ of the chilling effect of such bans. His lack of concern stands in stark contrast to his international colleagues such as UN Special Rapporteur on Counter-Terrorism and Human Rights Ben Saul who directly intervened in the case to argue that the ban was disproportionate.

In an age of democratic backsliding and rising authoritarianism, we should all be deeply concerned as to the possibility of abuse of discretionary power. The Ammori judgment can be viewed as a court attempting to rein in some of these excesses but it also reveals the High Court’s isolation—an isolation which could be increased if the judgment is overturned on appeal. The reliance on soft law reveals the Ammori judgment’s weakness. Most soft law instruments such as policies and guidance can be changed without any parliamentary input. They are thus at the whim of the executive. And so a court judgment reliant on the interpretation of policy can also be overturned as easily. The human rights part of the judgment is therefore on much more entrenched legal grounds, based as it is upon the Human Rights Act 1998 and ECHR. However, this entrenchment is accompanied by increased political controversy as it runs the risk of placing UK membership of the ECHR once again high on the political agenda. Ultimately, democracy and human rights require more than just lawyers and faith in the good chaps to protect it. It requires those who are democratically elected to be democrats and actually value democracy.