The High Court has ruled that the government’s decision to proscribe Palestine Action under the Terrorism Act 2000 was unlawful, holding that the decision contravenes the government’s own policy on proscription as well as breaching the fundamental rights of freedom of expression and freedom of assembly. This post examines the legal reasoning that led the court to those conclusions.
In R (Ammori) v Secretary of State for the Home Department [2026] EWHC 292 (Admin), the High Court has held that the Home Secretary’s decision to proscribe Palestine Action under the Terrorism Act 2000 was unlawful (albeit that, at the time of writing, no quashing order had been issued). The power to proscribe arises under section 3 of the Act only if the Secretary of State believes that the relevant organisation is ‘concerned in terrorism’ — which, according to section 1, includes action involving ‘serious damage to property’ provided such action (or its threat) is designed (among other things) to influence the government or an international governmental organisation and is ‘for the purpose of advancing a political, religious, racial or ideological cause’. The decision to proscribe Palestine Action — made after activists broke into an airbase and damaged planes by spraying them with paint — resulted in hundreds of arrests of people who protested against the ban by expressing support for the organisation, ‘inviting support’ for a proscribed organisation itself being an offence under section 12 of the Act.
Just because a Minister has a power to do something does not mean they have to do it. Thus, as the High Court explained, the fact that the Secretary of State decides that the threshold conditions for proscription are met is distinct from the decision whether the organisation should in fact be proscribed. The focus of the High Court’s judgment was on the latter issue: that is, whether the Secretary of State had lawfully exercised her discretion to proscribe. Four grounds of challenge were raised by the claimant, one of which, alleging a failure to take account of relevant considerations, was unsuccessful and received little attention in the judgment; it will not be discussed further here.
Of the remaining three grounds, a second also failed. It concerned the claimant’s argument that it had been unlawful for the Secretary of State to proscribe Palestine Action without first affording the organisation an opportunity to make representations. The right to do so, when a government decision is in the offing that stands to impact one’s rights or interests, is deeply embedded at common law, and is a basic tenet of procedural fairness. Thus, in Bank Mellat v HM Treasury (No.2) [2013] UKSC 39, [2014] AC 700, the Supreme Court held that it was unlawful to direct UK businesses to have no dealings with an Iranian bank without first giving the latter an opportunity to respond to the concerns underpinning the direction. That conclusion was reached by the Supreme Court in light of the facts that the bank was the target of the direction, that the impact on the bank would be very substantial, and that the bank would potentially have been in a position to dispute the concerns.
However, in Ammori, the High Court held that the Bank Mellatt case was not directly on point: even though both cases arose in a security-related context, the power that had been exercised in Bank Mellatt ‘could arise in a range of circumstances not just circumstances touching on national security’. Moreover, the court considered imposing a duty to consult organisations before proscribing them would be practically difficult (eg they might have no or only a limited presence in the UK) and that providing them with information to which they could respond might be incompatible with the public interest. There is no doubt some force in those points. But it is unclear why they should have the effect of universally displacing any duty of procedural fairness in the context of proscription rather than just displacing it in particular cases (eg where an organisation cannot practically be consulted) or informing the onerousness of the duty (eg by modulating the amount of information that needs to be shared if the duty is to be fulfilled).
The challenge succeeded on two grounds. First, the court held that the Secretary of State had failed to apply her own policy on proscription. (It is important to note — bearing in mind the criticism this judgment is likely to attract — that this ground of challenge lies purely at domestic law, and has nothing to do with the European Convention on Human Rights or the Human Rights Act 1998.) The Secretary of State’s policy concerned the circumstances in which an organisation that can be proscribed (because it meets the threshold criteria in the Act) should be proscribed in exercise of the Secretary of State’s discretion. The policy said that in deciding whether it would be proportionate for the Secretary of State to proscribe an organisation, she would take into account ‘other factors’ (which presumably means factors other than the fact of the threshold conditions being met) ‘including’ the organisation’s size, the threat it poses to the UK and to British nationals overseas, the extent of its presence in the UK and the need to support other States in the ‘global fight against terrorism’.
The use of the word ‘including’ makes it clear that the Secretary of State was not necessarily confined to considering only the explicitly stated factors — and indeed she did not consider herself to be so confined. One prominent additional factor taken account of by the Secretary of State — which, the court said, may have been the ‘central consideration’ underpinning the proscription decision — was that by triggering criminal offences such as ‘inviting support’, proscription would carry ‘significant disruptive benefits’ with respect to Palestine Action. But, said the court, absent exceptional circumstances that did not apply here, proscription would always have such disruptive effects. This meant that such effects could not constitute a relevant factor under the policy. Any such factors, said the court, had to support the purpose of the policy, which was to inform proscription decisions recognising that ‘not all organisations that meet the concerned in terrorism requirement should be proscribed’. The disruptive effect of proscription could not advance such a policy given that it would normally support the proscription of any organisation meeting the threshold criteria.
The logic of the court’s analysis here is certainly neat, but it rests on what might be considered a narrow or rigid reading of the policy. Indeed, the court itself accepted that its conclusion on this point ‘may appear to rest on a very narrow basis’. On the court’s own reasoning, its conclusion would be open to challenge if the government were able to show on appeal that there were particular benefits that would flow from disruption to Palestine Action beyond the default benefits that attend the proscription of any organisation meeting the threshold criteria. More generally, the court’s characterisation of the purpose of the policy — which then determines that the ‘other factor’ relied on by the Secretary of State runs counter to that purpose — does an awful lot of work in the court’s reasoning process. The court goes as far as to say that the purpose of the policy is ‘to limit use of the discretionary power to proscribe’: an conclusion that appears to be based on an inference from the policy, rather than on anything explicitly stated in it. The court’s approach to characterising the purpose of the policy will no doubt feature heavily in any appeal against this judgment.
The second successful challenge concerned Articles 10 and 11 of the European Convention on Human Rights, which respectively concern freedom of expression and freedom of assembly (and hence the right to protest), and which are given effect in UK law by the Human Rights Act 1998. Those provisions of the Convention prohibit disproportionate restrictions of the relevant rights. Among other things, that means that any limitations must be ‘prescribed by law’ — a condition that was not met because proscription had taken place in breach of the Secretary of State’s own policy, and which, the court said, had the effect ‘without more’ of making the proscription decision unlawful as a matter of domestic law. Nevertheless, the court went on to consider the other elements of the proportionality test, devoting particular attention to the question of whether a ‘fair balance’ had been struck between the legitimate objective served by proscription (including the protection of the rights and freedoms of others and the protection of national security) and the impact on relevant rights of proscription. This is the element of the proportionality test that invites the greatest controversy about the respective roles of courts and government decision-makers, given that it ultimately amounts to a value judgement about the relative importance of competing incommensurable claims.
Applying the fair balance test, the court held that proscription ‘entailed a very significant interference with Convention rights’ — including the criminalisation of expressions of support for Palestine Action and the resultant chilling effects on freedom of speech and the right to protest — that required a commensurately weighty justification. That said, the court did not sugar-coat its evaluation of Palestine Action: ‘[r]eal weight’ had to be attached to the fact that it has ‘organised and undertaken actions amounting to terrorism’ as defined by the Terrorism Act; that such actions had taken place in the UK; and that the organisation had ‘not suggested that its actions that have been assessed to comprise terrorism were either a mistake or an aberration’, instead ‘laud[ing] those who took part in those actions’. Moreover, the court said that deciding what amounted to a fair balance was ‘difficult’ and that when striking that balance ‘the court must permit some latitude to the Home Secretary given that she has both political and practical responsibility to secure public safety’. Nevertheless, the court concluded that the Secretary of State had failed to strike a fair balance and that the decision to proscribe was therefore disproportionate: even though, ‘[a]t its core, Palestine Action is an organisation that promotes its political cause through criminality and encouragement of criminality’, the court was ultimately persuaded by the fact that only ‘[a] very small number of its actions have amounted to terrorist action’ within the statutory definition.
Given the tenor of some recent case law, particularly at Supreme Court level, the High Court’s approach here is arguably surprising. Whereas the Supreme Court has recently sometimes tended to pay lip only service to the need for courts to form their own view on questions of proportionality, thereby yielding an approach that is in practice highlighy deferential to the government, the High Court’s approach in Ammori arguably falls into the opposing trap. While acknowledging the need to accord ‘latitude’ to the Secretary of State, given the nature of the decision in play, the court makes little, if any, effort to show its working in this respect, raising the question whether anything more than lip service is being paid to the need for appropriate weight or respect to be ascribed to the judgement formed by the Secretary of State about how the competing rights and interests in play should be balanced against one another. This is not to suggest that the High Court necessarily reached the wrong conclusion when it applied the fair balance test: but it could certainly have done more to attempt to convince that it reached the right one. The Home Secretary has already indicated that she will challenge the High Court’s decision; doubtless the argument that that court failed to ascribe appropriate respect to her political judgement will be front and centre in any such appeal.
Public Law for Everyone 