Heavy Power

In 2004, the House of Lords allowed the appeal of nine foreign nationals against their indefinite detention under the Anti-Terrorism, Crime and Security Act 2001. In his opinion, Lord Hoffmann argued that ‘the real threat to the life of the nation … comes not from terrorism but from laws such as these.’

The home secretary, Yvette Cooper, announced this week that the UK government will move to proscribe the group Palestine Action under the Terrorism Act 2000, through an order laid before Parliament on 30 June. The decision follows an incident on 20 June, when members of Palestine Action entered RAF Brize Norton and sprayed red paint into the engines of two refuelling planes. It was one of many recent attempts by Palestine Action to disrupt British military support for the genocide in Gaza.

If Parliament votes in favour of proscription, it will be a criminal offence to belong to or show support for Palestine Action. Under the Terrorism Act, the home secretary is allowed to proscribe an organisation only if she ‘believes that it is concerned in terrorism’, which is defined as the use or threat of action designed to influence government or intimidate the public, including ‘serious violence against a person’ or ‘serious damage to property’.

The home secretary told the House of Commons that Palestine Action had committed ‘acts of serious damage to property with the aim of progressing its political cause and influencing the government’. Its targets included ‘key national infrastructure and defence firms’ and ‘its activity has increased in frequency and severity’ while costing millions of pounds. Palestine Action has recruited members, trained them, raised ‘considerable funds’ in donations and produced ‘practical guidance on how to carry out activity … as well as celebrating the perpetrators’. During Palestine Action’s ‘attack’ on the Thales factory in Glasgow in 2022, staff ‘feared for their safety’, Cooper said. She spoke of the group ‘demonstrating a willingness to use violence’ but stopped short of referring to the specific category of ‘serious violence’. Such activities, according to the home secretary, ‘meet the threshold set out … under the Terrorism Act 2000’.

Lord Hoffmann acknowledged the special national security expertise of governments. Cooper said that her decision had been assessed by a ‘wide range of experts from across government, the police and the security services’. Recognising such expertise, however, does not preclude independent scrutiny of the government’s decision, which is the reason the Terrorism Act established the Proscribed Organisations Appeals Commission (POAC).

In its first ruling, in 2007, the POAC was clear that lawful proscription requires ‘more than a suspicion or fear’ that an organisation ‘may be concerned in terrorism’. Yet the home secretary has not provided sufficient evidence to support her assessment. Direct action, like that at Brize Norton, has not previously been considered terrorism. Lord Falconer, a former justice secretary, told Sky News on Sunday that ‘that sort of demonstration wouldn’t justify proscription’, and even the prime minister described it as an ‘act of vandalism’ rather than terrorism. ‘There must be something else I don’t know about,’ Falconer said. But the government has made no reference to secret intelligence. Cooper said she would not comment on two actions that are sub judice, but news reporting does not suggest they were unusual.

No one would deny that Palestine Action’s activities have caused ‘serious damage to property’ or are designed to ‘influence the government’ for the ‘purpose of advancing a political cause’. But they fit with a long-standing tradition of anti-war protest and direct action at military sites – not to mention the more violent tactics of the suffragettes, to whom Cooper paid tribute in 2018. The nineteen-year encampment at Greenham Common caused significant disruption, with blockades and damage to property, but a clear distinction was made between terrorism and what the protesters were doing – some opponents of the peace camp objected to it for making the site more vulnerable to actual terrorists. In 2003, protesters damaged fuel tankers and trailers at a Royal Air Force base in an attempt to prevent war crimes in Iraq. The case reached the House of Lords, where one of the defendants was represented by Keir Starmer. The prosecution made no accusations of terrorism.

During a parliamentary debate on the Terrorism Bill in 2000, MPs asked whether the legislation could be used to proscribe Greenpeace as a terrorist organisation. The group had, in recent years, temporarily blocked nuclear warhead production at AWE Aldermaston, spray-painted a power station and destroyed a field of genetically modified maize. The home secretary, Jack Straw, replied that he ‘knew of no evidence whatever that Greenpeace is involved in any activity that would fall remotely under the scope of this measure’. Proscription was a ‘heavy power’ that would be used only when ‘absolutely necessary’, he said, and the Human Rights Act 1998 was a ‘profound safeguard’ against its disproportionate use.

The question of proportionality was conspicuous by its absence from Yvette Cooper’s statement this week. There is an array of criminal offences that already enables the government to respond to any illegal activity carried out by Palestine Action, even before any damage occurs. The National Security Act 2023 gives significant new protection to ‘critical infrastructure’, enabling defence locations to be assigned as ‘prohibited places’ which police are given extra powers to protect.

Proscribing the group, however, would give the government new powers to target its supporters who do not engage in the destruction of property, since it is a criminal offence to invite support for a proscribed organisation, or express an opinion or belief that is supportive of a proscribed organisation. Given the size of Palestine Action, as indicated by the home secretary, and the breadth of support so far expressed for it, proscribing it could lead to a significant proportion of civil society being criminalised, including MPs, journalists, NGOs and pro-Palestinian groups. Many may be caught up in terrorist offences unwittingly, by funding legal challenges, or running events questioning the legality of proscription.

This lack of proportionality also indicates how the decision could be detrimental to national security. Given the large numbers of people it is likely to turn into ‘terrorists’, proscribing Palestine Action could impose a significant burden on the state to increase its surveillance of citizens who pose no threat, at a time when MI5 claims already to have ‘one hell of a job on its hands’. Its undermining of civil society may also make it harder to hold the government accountable for the proper use of terrorism powers. On the current picture, the real threat to the life of the nation comes not from Palestine Action but from the home secretary’s attempt to proscribe it.