For many of the people caught up in Britain’s newest free-speech battleground, the issue is not abstract constitutional law but a personal risk of arrest. Thousands of mostly elderly protesters, many of them veterans of earlier radical causes, have been detained simply for holding signs supportive of Palestine Action since the group was banned, lawyers told the Supreme Court on Wednesday as a major challenge to that ban opened.
The case was brought by the group’s co-founder Huda Ammori. It is the first time the UK’s highest court has been asked to decide whether outlawing an organisation under terrorism legislation is compatible with freedom of speech and protest. Her legal team told the five justices that no other protest organisation had been treated in this way, and that the proscription had produced a “crisis of confidence” in the country’s anti-terrorism laws alongside what they described as unprecedented civil disobedience from people who are otherwise law-abiding.
The scale of that disobedience is visible in the numbers. Home Office figures seen by the BBC indicate more than 4,000 arrests so far at protests where people have held signs backing the group. Many demonstrators have been arrested more than once. Prosecutors have authorised 1,200 charges to date, and those trials are now in limbo until the outcome of the case is known. Twenty-seven protesters were arrested outside the Supreme Court itself on Wednesday while the hearing was under way, according to the Metropolitan Police.
For Ammori’s team, the human cost of the ban is also its strongest argument against it. Henry Blaxland KC told the court that, far from depriving Palestine Action of the “oxygen of publicity” or discrediting its brand, proscription had achieved the opposite. “All it’s done is to pour fuel on to a fire of one of the most publicly-contested issues of our time,” he said. “It was disproportionate to do that and in my submission completely unnecessary.”
The lawyers did not shy away from the group’s record. During exchanges that were at times tense with the judges, they accepted that Palestine Action could not be described as an ordinary, peaceful protest organisation. Its members have carried out “direct action” protests by occupying or vandalising firms linked to Israel’s military, and at least two break-ins at defence firms have been described in criminal courts as having caused millions of pounds in damage. One member has been convicted and jailed for fracturing a police officer’s back with a sledgehammer, though the court was told the group never advocated such violence.
What matters legally, Raza Husain KC argued for Ammori, is proportion. He asked the judges to set aside allegations of criminality, for which the state already has many powers, and instead consider whether labelling the whole group as terrorists was a step too far. “Palestine Action was proscribed on the basis of less than one per cent of its actions over five years assessed as falling within the outer limits of a definition of terrorism,” he said. The Home Secretary’s own experts, he added, had confirmed that the vast majority of the group’s direct action would not amount to terrorism, because property damage is typically minor. Common tactics, he said, include graffiti, petty vandalism, occupation and lock-ons. Only three of 385 incidents assessed by the Home Secretary were found to constitute an offence under the Terrorism Act.
Meanwhile, the case has drawn submissions from beyond the courtroom. Free speech campaigners told the court the ban interferes with the right to protest. But a coalition of Jewish groups argued in written submissions that Palestine Action is a “sinister” organisation intent on attacking its community’s interests. Adam Wagner KC, for those groups, said the Court of Appeal had rightly concluded that the group is violent and concerned in terrorism with a wide range of targets. Its activities, he wrote, are often covert, show no restraint or proportionality, and at the point of proscription it had an escalating trajectory of seriousness and an expanding focus. Its “crosshairs”, he said, had moved from Elbit, a defence firm with an Israeli parent company, to figures or institutions it deems “Zionist”. Because most British Jews and Jewish institutions have a connection with Israel, he argued, such a campaign in practice threatens the mainstream Jewish community.
The hearing continues on Thursday, with a judgment expected at a later date. For the 1,200 people facing charges, and the thousands more who have been arrested, the question of whether their protests were criminal will hang on what the justices decide.