The proscription of Palestine Action as a case study of terrorism law

Why is the general criminal law not sufficient to deal with direct action groups?

Over at Prospect I have done a couple of posts about the proscription of Palestine Action. My latest post is here, which is based on a close reading of the disclosed MI5 assessment.

Writing about this is not because I have a particular interest in or knowledge of Palestine. Like many I support the ultimate goal of a two-state solution and the need for an immediate ceasefire in Gaza, but this is not a foreign policy blog.

For this blog the proscription of Palestine Action is of interest because of what it tells us about terrorism law (and constitutional law) of the United Kingdom. It is an important case study of how terrorism law can perhaps over-reach.

By way of background, terrorism law is a distinct body of law that provides legal powers and privileges to the state in addition to the general criminal and civil law of the land.

In essence: terrorism law is there for when the general criminal and civil law is not sufficient for dealing with certain situations.

Before 2000 terrorism law was special and explicitly temporary:

And it was on this special and temporary basis that the United Kingdom government dealt with the biggest terrorism threat of modern times: that which arose from the ‘Troubles’ in Northern Ireland.

But in 2000 this changed and terrorism law was placed on a permanent basis with a Terrorism Act.

And since then there were many other Acts:

One might think from their titles that the “Anti-terrorism” and “Counter Terrorism” Acts would cancel out the “Terrorism” Acts, leaving us with a balance of one or two.

But no, they are cumulative.

And the legislation has effectively created a security state within a state. There have also been statutes dealing with government surveillance and so on.

Terrorism law is now vast and complex, but it also can be rigid and clumsy.

And applying it to what can be better called a “direct action” group was perhaps not a wise move.

Because when a group is proscribed it has all sorts of other legal effects - including, since 2019, the criminalising of even expressing a supportive opinion.

And this is why we have ended up with what seems an absurd spectacle of mass arrests under terrorism law for people expressing opinions in support of a direct action group, while the actual organisers of the said direct actions are being dealt with primarily under general criminal law.

It even seems the police do not know what to actually do with their mass arrestees, with accounts of extended bail periods instead of any charging decisions.

The proscription is under legal challenge, and one gets a sense from the outside that the government fear that the proscription may be quashed in part or in full. We, of course, do not have the “closed” material which only a court can see, but the “open” material is flimsy stuff. The government is certainly trying to head the case off without a substantive hearing.

And it is difficult to see how it can be proportionate to criminalise hundreds of people for expressing an opinion in support of a direct action group which even MI5 admit is mainly engaged in conduct that is not terrorism. It is also hard to see what useful is added to the general criminal law by proscription in dealing with direct action activists.

That said, the courts are generally deferent to the executive and will usually regard the Home Secretary as being better placed than a judge in assessing national security measures. On balance the proscription is likely to survive legal challenge.

But as a worked example of terrorism law in practice this proscription may have the unwelcome effect of discrediting terrorism law, and that would not be a sensible or welcome outcome.