White Flag Judgments: Palestine Action, Protest and the UK Courts

The justice system of the United Kingdom, represented by stout cathedral structures and solemn rituals, tends to resemble a casino rather than a priestly haven of solemn judgment. It’s the justice of the punt, the throw of the dice, not the fairness of judicial deliberation, that prevails. That, at least, has been the prevailing view of Richard Ingrams, a co-founder of Britain’s rapier satirical publication Private Eye.

Since the decision by Home Secretary Yvette Cooper to ban Palestine Action in 2025, some 3,000 people have been arrested for doing such unthreatening things as holding placards with the following words: “I oppose genocide. I support Palestine Action.” Over 700 of these, according to Human Rights Watch, “are pending in the courts of England and Wales, with many more at the recharges stage.” This, in a country where free speech is said to be a verdant forest, and the right to protest a sacred right.

In the middle of last month, the Court of Appeal quashed the decision of the High Court regarding the proscription of Palestine Action which had been made under section 3 and schedule 2 of the Terrorism Act 2000. Palestine Action, 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”, had made its stock and trade targeting Israeli arms manufacturers such as Elbit Systems and businesses with links to the Israeli arms trade. The proscription followed the group’s break-in at RAF Brize Norton, where two aircraft were spray painted. In the proscribed list, which includes such violent luminaries as Boko Haram and Islamic State, Palestine Action is hysterically assessed as an entity that “prepares for terrorism” and “promotes and encourages terrorism.” Its attacks had included “targets affecting UK national security, and the impact on innocent members of the public.”

Co-founder of Palestine Action, Huda Ammori, challenged the lawfulness of the proscription in the High Court in November 2025, claiming, along with the intervening parties Liberty and Amnesty International UK, that it had involved a disproportionate use of counter-terrorism powers. Initially, Ammori scored a resounding success, all the more remarkable given the persistent record of courts in Britain to side with the national security apparatus.

The Divisional Court held in February 2026 in R (Ammori)v Secretary of State for the Home Department that the Home Secretary’s approach on proscription had failed to follow her own long-standing proscription policy. These involved five factors intended to constrain the office holder’s discretion. The resort to “other factors” would have to be read with that constraining purpose in mind.

The Court also found that a fair balance between the rights of individuals to free speech (Article 10 of the European Convention of Human Rights) and freedom of assembly under Article 11 of the ECHR as against the national security and protection of the rights of others (Articles 10.2 and 11.2 of the ECHR) had not been struck. In applying the test of proportionality to the decision the Court held that “the nature and scale of Palestine Action’s activities, so far as they [comprised] acts of terrorism, [had] not yet reached the level, scale and persistence that would justify the application of the criminal law measures that are a consequence of proscription, and the very significant interference with Convention rights consequent on those measures.”

The government of Sir Keir “Human Rights” Starmer was never going to let things stand, nor should not be forgotten that the High Court decision was hardly brimming with praise for the actions of Palestine Action. The definition of terrorism in UK counter-terrorism legislation is intentionally outrageous in its broadness, encompassing causing or threatening “serious damage to property” that would suggest an intention to influence government policy and advance a political case. The High Court did, at least, note that the act of proscription was based on 385 actions committed over 5 years, of which only three were deemed “terrorist incidents”.

Back to the casino of justice the case went. On June 15, the Court of Appeal handed down its quashing judgment. The national security state could again rejoice at this grand exhibition of judicial abdication before the alleged, and unfounded wisdom, of executive power. The judges found, for instance, that the Home Secretary had, in fact, conducted a proper evaluation of the rights issue in considering the banning of Palestine Action. This analysis was shallow at best, given the Home Secretary’s continual insistence that neither Article 10 nor 11 off the ECHR applied in the case. Article 17 of the Convention – the prohibition of an abuse of rights – was what counted in her mind.

The Court of Appeal went so far as to admit that the rights of those holding placards opposing genocide and supporting the Palestinian cause “may be affected by proscription, because they may be dissuaded by it from exercising their lawful individual rights to free speech and freedom of assembly.” The Home Secretary had been wrong to assume that Article 10 and 11 rights were not engaged, or that no test of proportionality was required. The court even conceded that the ban was “highly controversial” and possibly even “borderline”. But in their own assessment on proportionality, the judges felt reluctant to challenge the vast, self-evident wisdom of the executive, given that the Home Secretary was “invested with the statutory and constitutional authority to make proscription decisions to protect the public where national security is at stake.” It was not for the court to “take over the function of the primary decision-maker, least of all in a case such as this.” Such proscription decisions were part of national security, an area that no UK judges would have thought inappropriate to scrutinise before the Human Rights Act 1998. (How mothballed can judges be?)

The logic of this abysmal abdication before power was guided by the views of Lord Robert Reed made in the UK Supreme Court decision of ABJ, which was decided in February this year: “Although a strict approach is generally taken to restrictions on political speech, the European Court has recognised that states must enjoy a wider margin of appreciation when countering terrorism”. In a rather conflating, muddled manner, Lord Reed thought judicial supervision, be it by UK courts applying the Human Rights Act or the European court applying the ECHR, had “to respect the institutional expertise and constitutional legitimacy underlying the judgment made by those authorities by according them a correspondingly wide margin of appreciation.” This is what surrender by the wigged classes looks like.

The Court of Appeal also decided to make much of the fact that Palestine Action had committed three deemed “terrorist incidents” over three years, a mere 0.78% of its list of actions. With disapproval, they noted the organisation had not “disowned or condemned” such actions. It was therefore “permissible for the Home Secretary (and, therefore, is permissible for us), in considering Palestine Action’s characteristics and activities, not just its activities classified as terrorist.” The rationale for this bumbling reasoning was that proscription was preventative: the Home Secretary had to “assess the risk of future acts of terrorism. All of an organisation’s activities, such as recruitment, fundraising, radicalisation and all terrorist and non-terrorist activities may be relevant to that assessment.”

Veering off into the feral undergrowth of the bizarre, the appeals court also considered the allegedly more sinister nature of the group, mangling the history of British protest along the way. Its activities had been “planned and undertaken secretly with the objective of avoiding detection.” Its members had not shown “sincerity by accepting” the imposed penalties. But most of all, “on a fair analysis, Palestine Action has little or nothing in common with the suffragettes or the anti-apartheid or Iraq War protest groups.”

With this sort of fair analysis, one rooted in a distorted reading of history, a horrendous refusal to consider a flawed, executive assessment of protest activities, and a general concession to an anti-democratic temper, the only thing left to do is exactly what the suffragettes, anti-apartheid activists, and previous anti-war activists did: break the law with courage and clog the prisons with effect.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He currently lectures at RMIT University. Email: [email protected]