Palestine Action, Proscription and Proportionality
The tensions between anti-terrorism law and civil liberties are well known. The UK government’s decision to proscribe the organisation Palestine Action has brought this tension back into the public eye. The proscription order means that people are criminalised not just for expressing support for terrorist acts, but for expressing support for the proscribed organisation. As a result, the summer has seen large numbers of arrests at protests against the proscription order. Over 500 people were reportedly arrested at a protest in London on 9 August. Aside from the scale of the arrests, media commentary has highlighted that some of those arrested are pensioners wishing to express their opposition to the war in Gaza and support for Palestine.
The decision has proven to be controversial due to the far-reaching effects in curbing speech and because the organisation is, critics argue, different from other proscribed groups. Whether the decision pushes anti-terrorism law too far and violates freedom of expression will be assessed by the courts at a later date. If the decision survives a legal challenge, it could pave the way for proscription to be used in relation to a broader range of groups in future.
Palestine Action
The organisation Palestine Action was founded in 2020 to “take direct action against Israel’s arms trade in Britain” (in the words of a co-founder). The Home Secretary told the House of Commons that since its formation the organisation has “orchestrated a nationwide campaign of direct criminal action against businesses and institutions, including key national infrastructure and defence firms.” The potential for its proscription had been on the government’s radar for some time, with one 2024 report recommending that the government “keep under review the question of whether Palestine Action meets the criteria for proscription as a terrorist entity”. However, other reports reveal that earlier this year government had been advised by experts that proscription of a direct action group would be “unprecedented”.
The catalyst for change appears to have been an incident at Brize Norton in Oxfordshire, in which people connected with the Palestine Action sprayed red paint on two RAF aircrafts on 20 June 2025. The Home Secretary announced the decision to proscribe on 23 June 2025. The order was laid before Parliament on 30 June, which proscribed Palestine Action along with two other organisations (the Maniacs Murder Cult and the Russian Imperial Movement). The order was approved by the House of Commons by a vote on 2 July and the House of Lords on 3 July. The Administrative Court and Court of Appeal rejected an interim relief application to suspend the order until a later date, and the proscription order came into force on 5 July. The court has granted permission for a legal challenge to be heard, in which the court will consider whether the order violates Articles 10 and 11 of the ECHR and duties of procedural fairness.
The threshold for proscription
The proscription order was made under s 3 of the Terrorism Act 2000, which gives the minister a power to proscribe an organisation where she believes that it is concerned with terrorism. The government’s case for proscription has largely been advanced in terms of damage to property. Announcing the initial decision to proscribe, the Home Secretary stated that Palestine Action “has committed acts of serious damage to property with the aim of progressing its political cause and influencing the Government”. The government provided various other examples which are said to have caused millions of pounds of damage to property. The organisation is also said to have an “underground manual” on how to carry out such attacks. In advancing the case for proscription, the attacks on property have been said to have caused employees of the targeted companies to fear for their safety. Activists associated with the organisation have also been charged with offences such as actual bodily harm and grievous bodily harm.
Critics of the order argue that Palestine Action is different from proscribed organisations that threaten violence to other individuals, and that activities that target property (while criminal) are better characterised as direct action rather than terrorism. The argument runs that those involved in damage to property can be punished under the general criminal laws, which should provide a deterrent to others. Some critics argue that the order is a reaction to the prospect of juries not convicting organisation members on criminal damage charges, so that proscription then enables the authorities to rely on more far-reaching legal controls. A further concern is that the decision sets a precedent, so that similar orders may be used in relation to other direct action groups in the future.
Whatever the public understanding of the term, the legal definition of terrorism is not limited to actions that threaten violence against individuals, and can be applied to direct action groups. Under the Terrorism Act 2000, terrorism can include actions (or the threat of action) involving “serious damage to property” or “a serious risk to the health or safety of the public or a section of the public” – as long as the other legal requirements are met: that the action aims to influence government and pursues a political, religious, racial or ideological cause. Critics of anti-terrorism laws have long argued that such a broad definition can apply to a wide range of groups and restrict fundamental rights. The proscription of Palestine Action provides a concrete example which highlights the gap (in some people’s eyes at least) between the public understanding of a terrorist organisation and the more far-reaching legal definition.
Proportionality of proscription
Even if an organisation meets the legal definitions to qualify for proscription, that does not exhaust the legal analysis. A key question is whether proscription is truly necessary and proportionate given the nature of the activities and the threat posed. The question is difficult to assess as the government does not publicly release evidence and intelligence of potential terrorist threats. To justify the proscription, Home Secretary Yvette Cooper has stated that she had received “disturbing information” about “ideas and planning for future attacks”, which she claimed could not be disclosed due to ongoing criminal proceedings. In the parliamentary debate on the proscription order, Lord Carlile stated that “we have to be responsible and take it that there is an intelligence case behind what is proposed”. Such arguments invite the public to accept the case for proscription as a matter of trust. However, people may be wary of accepting assertions and demands for trust, given that such arguments can be used to avoid accountability or mask abuses of power.
The process for proscription
If the public cannot fully assess the claims made by government, then they need to be confident that the process for proscription includes to safeguards to ensure the measure is proportionate. One such safeguard is parliamentary approval. Both chambers of Parliament voted and debated an order that collectively proscribed Palestine Action, the Maniacs Murder Cult and the Russian Imperial Movement. Past proscriptions orders have also included multiple organisations, and such a practice may reflect the ideological neutrality of proscription. However, critics of the process argue that the activities of Palestine Action are distinct from the other two groups and therefore warranted separate consideration. Requiring a vote on the three organisations together was seen by some to be a sleight of hand to stop people from voting against the measure. Whatever the appeal of such a process, I doubt separate consideration would have made any practical difference to the outcome. The House of Lords got to consider Palestine Action separately in a motion to “regret” its proscription, but that motion was clearly defeated.
Another feature of the process was its speed. The proscription order came into effect within two weeks of the government’s initial announcement. An expedited process is generally warranted for proscription orders, as advance notice would allow the organisation to take steps to reduce the effectiveness of the measure. However, that also means there is limited time for scrutiny or for opponents to mobilise support. A further issue with the process was pointed out by Lord Beamish in the House of Lords, that the intelligence to support proscription had not been shared with the Intelligence and Security Committee in advance. The Committee would have been able to scrutinise the evidence without disclosing it to the public. The government also declined to share details of advice from the Proscription Review Group with the House of Lords Secondary Legislation Scrutiny Committee. Had the government been more willing to share information with parliamentarians, that should have provided some further reassurance about the necessity of the measure. Instead, parliamentary approval (while important) had limited effectiveness as safeguard to assess the proportionality of the measure.
The breadth of the restrictions
The third (and possibly most striking) issue is the sheer breadth of the restrictions that result from proscription. Once an organisation is proscribed, it is an offence to belong or profess to belong to it. It is a criminal offence to invite support for such an organisation. In 2019, a further offence was introduced where a person expresses “an opinion or belief that is supportive of a proscribed organisation” where the speaker is reckless as to whether the audience “will be encouraged to support a proscribed organisation”. There are further offences for those that organise or address meetings to encourage support or to further the activities of a proscribed organisation. These offences are punishable by up to 14 years in prison. It is also a strict liability offence (punishable by up to 6 months in prison) for a person to wear an item of clothing or display an article “in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”. According to media reports, most of the arrests at the recent protests against the proscription order were for the display of signs (maybe as it is easier to establish such a strict liability offence).
These various restrictions make it harder for the organisation to recruit members, provide criminal liability for lower levels of support that would not otherwise fall foul of the law, and stop such the organisation being seen as legitimate. The offences have been considered by the domestic courts on several occasions (see ABJ, Pwr and Choudary) and have been found to be proportionate restrictions on Article 10 of the ECHR. Even if the offences are compatible with the ECHR, the far-reaching restrictions that flow from proscription are relevant when deciding if a particular proscription order is itself a proportionate restriction on fundamental rights.
Free speech and the chilling effect
The offences of expressing support and displaying an article can be particularly problematic for free speech. In an earlier case, the Court of Appeal emphasised the limits of the “expressing support” offence, stating that an expression of support for an organisation is different from the expression of an “opinion or belief that is shared by the organisation”. In practice, however, the two may be harder to separate. A person might speak supportively of a proscribed organisation as a shorthand way to express solidarity with its cause, without wishing to endorse the means employed by the organisation. Where there is limited evidence disclosed to support a proscription order, such statements of solidarity seem more likely (as people may not have full knowledge about its methods or of the degree of a threat posed by its activities). While this does not matter when deciding if an offence is committed (as long as the mens rea is met), the point shows how the proscription order may restrict messages that primarily aim to express support for a political cause rather than encourage participation in unlawful activities.
While some hope that police and prosecutorial discretion will be exercised to avoid an overly broad application, such an approach will not address the chilling effect of the law (as a speaker will not know when such discretion will be exercised in their favour). The police also face a challenging task in exercising that discretion, with a judge noting that they “have the unenviable task of distinguishing between those seeking to express support for PA without saying so in terms and those whose intention is simply to call for action of one kind or another in relation to the situation in Palestine.” That means the discretion may be exercised by police more restrictively than anticipated, as evidenced when a protestor was warned that she may be arrested after holding a Palestinian flag and signs with the words “Free Gaza” and “Israel is committing genocide”.
Aside from the direct offences, the proscription order can have knock-on effects elsewhere. Under the Online Safety Act 2023, social media companies are under a duty to prevent users encountering content where the company has reasonable grounds to think it constitutes a terrorism offence (such as expressing support for a proscribed organisation). Given the limited time and information for social media moderators to assess the legality of the content, there is a risk of over-removals, including some political speech and borderline cases. The point here is not the effectiveness of social media regulation, but that proscription triggers other controls on expression that should be factored into the proportionality assessment.
The power to proscribe an organisation is far-reaching, imposes significant limits on expression rights and should require a very high threshold to be met before it is exercised. The example of Palestine Action raises questions about the boundaries of the legal definition of terrorism, how that definition fits with the public perception of what terrorism means and the extent to which those not directly involved in the organisation’s activities should be held liable for speaking and protesting.