Background
Huda Ammori, co-founder of Palestine Action, challenged the Home Secretary’s decision to proscribe Palestine Action as a terrorist organisation under sections 3 and Schedule 2 of the Terrorism Act 2000. The Proscription Decision was announced to Parliament on 23 June 2025 and came into force on 5 July 2025. Palestine Action had conducted a nationwide campaign of direct action, primarily targeting Elbit Systems UK and associated businesses, involving serious property damage using sledgehammers, covert cell-based operations, and an “Underground Manual” directing members to “disrupt, damage or destroy” targets “without restraint” while evading detection. Three specific incidents — at Thales SA in Glasgow (2022), Instro Precision in Kent (June 2024), and Elbit’s Bristol premises (August 2024) — were assessed as involving serious damage to property constituting terrorism under the 2000 Act.
The Divisional Court (Swift and Steyn JJ, presided over by the President of the King’s Bench Division) quashed the proscription on two grounds. First, it held that the Home Secretary had breached her own Proscription Policy by taking into account the “additional disruptive levers” that proscription would provide, which the court considered an impermissible factor (the Policy Ground). Second, applying the four-stage proportionality test from Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, the Divisional Court held that Palestine Action’s activities had not yet reached the level, scale, and persistence that would justify proscription and its significant interference with Convention rights (the Proportionality Ground). The Home Secretary was granted permission to appeal and the quashing order was stayed.
The appeal was heard by a five-judge panel — the Lady Chief Justice, the Master of the Rolls, Lord Justice Edis, Lord Justice Lewis, and Lady Justice Whipple — reflecting the case’s constitutional significance. Interveners included the UN Special Rapporteur on Counter-Terrorism, Amnesty International UK, and Liberty. Over 700 criminal cases under the 2000 Act relating to Palestine Action were pending in the courts of England and Wales, with parallel proceedings underway in Scotland.
The Court’s Holding
The Court of Appeal allowed the Home Secretary’s appeal in full and held that the Proscription Decision was lawful. On the Policy Ground, the court held that the Divisional Court had misread the purpose of the Proscription Policy: that policy was not designed to limit or constrain the factors available to the Home Secretary but to guide the exercise of a broad statutory discretion. The Home Secretary was fully entitled to weigh the operational benefits of proscription — including its capacity to disrupt Palestine Action’s covert network holistically as an organisation — when deciding whether to exercise her power under section 3 of the 2000 Act.
On proportionality, the court declined to review the Divisional Court’s analysis deferentially, instead conducting the Bank Mellat four-stage assessment afresh, consistent with Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30, given that this was a matter of major social and political significance. Having done so, the court held that the proscription was a justified and proportionate interference with the rights protected by Articles 10 and 11 of the ECHR. The court also rejected the Home Secretary’s argument that Article 17 ECHR (abuse of rights) operated to exclude Articles 10 and 11 from engagement entirely.
Striking the proportionality balance afresh, the court found that factors weighing against proscription — including the chilling effect on peaceful pro-Palestinian protest and the free speech rights of law-abiding supporters — were outweighed by countervailing considerations: Palestine Action was not engaged in the tradition of peaceful protest; it used weapons and caused serious property damage presenting real risks of personal injury; its campaign was escalating and unconstrained; it targeted lawful businesses including key national infrastructure and defence contractors supporting Ukraine, NATO, and the Five Eyes alliance; and proscription was necessary to degrade its covert, cell-based infrastructure and prevent terrorist financing. The court gave appropriate margin of appreciation to the Home Secretary, who had acted on expert advice from JTAC and possessed the requisite institutional competence and democratic accountability. Permission to cross-appeal on the Procedural Fairness and Discrimination Grounds was refused.
Key Takeaways
- The Home Secretary’s Proscription Policy does not limit or exhaustively define the factors she may weigh when deciding whether to proscribe; operational benefits of proscription — including holistic disruption of a covert terrorist network — are a permissible consideration.
- Where a case raises issues of major social and political significance, the Court of Appeal may apply the Bank Mellat proportionality test afresh rather than reviewing the lower court’s assessment on a deferential standard.
- States enjoy a wide margin of appreciation under Articles 10 and 11 ECHR when restricting indirect support for terrorism, and courts must give substantial weight to executive assessments on national security where the decision-maker has both expert advice and democratic accountability.
- Article 17 ECHR does not automatically strip Articles 10 and 11 protection from all expression of support for or association with a proscribed organisation; the proportionality framework under Articles 10(2) and 11(2) remains the applicable analytical tool.
- An organisation’s covert operational structure, escalating activities, breadth of targets, and published doctrine of destruction “without restraint” are highly material to the proportionality assessment on proscription, even where individual incidents of terrorism-level damage are relatively limited in number.
Why It Matters
This decision is a significant ruling on the constitutional boundaries of the executive’s proscription power under the Terrorism Act 2000. By reversing the Divisional Court and reinstating the proscription of Palestine Action, the Court of Appeal — sitting in an exceptionally senior five-judge constitution — has affirmed that courts must accord substantial deference to the Home Secretary’s security assessments and must not unduly narrow the range of factors she may weigh. The judgment provides important guidance on when and how courts should conduct a fresh proportionality assessment rather than reviewing the first-instance court’s reasoning, following the Supreme Court’s approach in Shvidler.
The ruling has immediate practical consequences: over 700 criminal cases pending in England and Wales arising from Palestine Action activities remain live, and parallel proceedings in Scotland will need to account for this decision. More broadly, the case clarifies the interaction between proscription, freedom of expression, and freedom of assembly in the context of domestic direct-action groups — territory that had not previously been tested at appellate level — and sets a high bar for challenging proscription decisions on proportionality grounds where the organisation concerned operates covertly and employs escalating, unconstrained tactics of property destruction.