What is the meaning of support?

What does it mean when a government makes support for an organisation unlawful? Support is what a rank-and-file member of a party provides for its leader when they donate money to the cause, when they vote for that leader, when they tell their friends that she is the best candidate. But it can also be something much vaguer. The problem with the interpretation of the verb ‘support’ by the police and courts in Britain today is that the state accepts no limit to its meaning. Since October 2023, the police and the Crown Prosecution Service have held that anyone expressing support for any act of resistance to Israel is thereby expressing support for Hamas, indirectly supporting the group by supporting activities that Hamas would also be expected to support.

In May 2024 activists in London unfurled a banner showing a giant dove carrying a key and flying through a breach in Israel’s apartheid wall. A police officer noticed that the dove was flying in what he described as ‘a clear blue sky with no clouds’. In the images of the Hamas attack on 7 October, he thought to himself, there were no clouds. The banner, he concluded, was supportive of what had been done on that day and therefore of Hamas itself. Four protesters were arrested, interviewed, held under police bail, and spent months threatened by prosecution under Section 13 of the Terrorism Act 2000 before the police decided to take no further action. Being investigated for terrorism offences isn’t a small matter, even if the police eventually drop the case. Most employers would expect an employee under investigation for such a serious charge to disclose it; many would see the mere fact of arrest on terror charges as grounds for dismissal.

With the proscription of Palestine Action early in July, the question of what support for a terrorist group means has become urgent. Very few people in Britain supported al-Qaida; many more support the disabling of factories that supply arms to Gaza. Protests were held in many places on 19 July to challenge the treatment of Palestine Action. More than a hundred people were arrested for showing support for the group. In Glasgow, a man was arrested for holding two pieces of A3 paper, the top one bearing the words ‘Genocide in Palestine,’ the lower one ‘time to take action.’ A week earlier, on 12 July, an 80-year-old retired teacher was arrested on terrorism charges after holding a placard at a demonstration in Cardiff. She was held by the police for 27 hours, according to the Guardian, her house searched and nineteen articles removed.

The proscription of Palestine Action was first challenged in the High Court on 4 July, through an application for an interim injunction to prevent the ban from taking effect. After that application failed, the group’s lawyers issued an appeal which was heard at 10 p.m. that same evening, with the Appeal Court judges galloping through their decision not to uphold the injunction. Blinne Ní Ghrálaigh KC, who represented Huda Ammori, one of the founders of Palestine Action, complained about ‘the broadness of the way with which the proscription regime will apply’. She returned to a question that had been raised in the High Court that morning: after Palestine Action was proscribed, would the lawyers representing its members have become terrorists? Mr Justice Chamberlain had asked the lawyers representing the home secretary, Yvette Cooper, this question. They replied that they were ‘not there to give legal advice’.

The only definite limit to the meaning of ‘support’ is stated in Section 10 of the Terrorism Act, which gives protesters immunity from prosecution for anything done in relation to an application to have a group’s proscription lifted. There are questions about this exception (it is unclear, for example, whether it would apply to judicial review proceedings). But the general intention of the Act’s drafters is clear: they wanted those who supported terrorist groups to be given long jail terms; they wanted those who campaigned against proscription to remain free. But this is another line that the police are now crossing. Among those arrested in London on 19 July were protesters carrying placards which read ‘Ban Starmer not Palestine Action’, although saying that Palestine Action should not be banned is the one speech act the Act expressly permits.

Earlier in July, a Kent police officer in body armour told a protester who had written on a piece of cardboard the words ‘Israel is committing Genocide’ that such signs were now contrary to anti-terror law. Reading from his phone, the officer said that by displaying the sign the protester had expressed a belief supportive of a proscribed group. When challenged, he said: ‘Mentioning freedom of Gaza, Israel, genocide, all of that all comes under proscribed groups, which are terror groups that have been dictated by the government.’ He insisted on taking the protester’s name, in order to begin an investigation under the Terrorism Act. During the oral exchanges in the Palestine Action judicial review, Mr Justice Chamberlain tried to minimise the incident, saying that a lone officer had misunderstood the law. But after the officer was criticised in the press, his force supported him, claiming that the poster gave rise to a ‘reasonable suspicion that an individual is a member or supporter of a proscribed organisation such as Palestine Action’ – even though the poster did not mention the group, and did not propose direct action, or indeed any action at all.

You might think that supporting a group would require making some positive statement about it likely to result in those who heard it aiding its aims. But the legislation requires only that someone is ‘reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate’ terrorist acts. The senior judiciary have found that many kinds of speech can be deemed supportive. In the 2024 criminal case of ABJ, the defendant was accused of making remarks supportive of Hamas. The case was appealed to the Crown Court, which held that support could be ‘tangible or practical’, or it could be neither of these things; it could be criminal even if it was ‘indirect support’ or ‘intellectual support’, or if the speaker had no idea ‘which kind of support the audience may be encouraged to offer’. (Permission to appeal was granted and the case is waiting to be heard in the Supreme Court.) The judges declined to limit the range of speech capable of being relabelled as support for a proscribed group. They wouldn’t even say that support required some words of approval. Whether this was the court’s intention or not, the practical meaning of its decision was that anything can be classed as support. ‘When I use a word,’ Humpty Dumpty said, ‘it means just what I choose it to mean – neither more nor less.’

On 21 July, a second round of court hearings began concerning Palestine Action: an application for a judicial review of the government’s decision to proscribe the group. Both sides had reason to be cautious about the prospects of victory. Over the last thirty years, there have been a series of cases in which the judiciary has asserted our legal system’s deep support for freedom of expression. In the 1994 case of R v. Central Independent Television plc, which concerned a family’s right to be protected from the broadcast of a documentary after the father had been convicted of indecency involving young boys, Lord Justice Hoffman said that if freedom of expression limited itself to what judges thought was responsible comment, it would be no freedom at all. He said that, in law, ‘there is no question of balancing freedom of speech against other interests. It is a trump card which always wins.’ Again, in the 2008 case of Animal Defenders International, which dealt with the right of an animal rights campaign to broadcast a political film advertising its views, Lord Bingham held that ‘freedom of thought and expression is an essential condition of an intellectually healthy society. The free communication of information, opinions and argument about the laws which a state should enact and the policies its government at all levels should pursue is an essential condition of truly democratic government.’ It would be possible to fill a short book with similar judicial dicta asserting the common law’s support for free speech. Judges understand that the proscription of Palestine Action crosses a new threshold. In the injunction proceedings, Mr Justice Chamberlain accepted that PA had not committed violence against any person or endangered life or created a risk to health or safety, but nevertheless refused to issue an injunction.

Palestine Action stands out from the more than eighty groups proscribed under the Terrorism Act 2000. Most of them are active overseas (including Hamas and the PKK). Fourteen of the proscribed organisations were active in Northern Ireland. A small number of the proscribed groups – on my reading, two after you take account of aliases – have operated in Britain. Those groups, the sole precedents for Palestine Action’s proscription, are the Islamist group al-Muhajiroun and the neo-Nazi group National Action. There is no doubt that National Action was a terror group: its members attempted to kill the Labour MP for West Lancashire, Rosie Cooper. After the murder in 2016 of the Labour MP Jo Cox, the group tweeted: ‘Only 649 MPs to go’. It did not merely carry out violent acts, it glorified in violence and wanted people to be afraid of it. Members of al-Muhajiroun have similarly shown their support for violence, by taking part in wars fought by Islamic State and filming themselves participating in the murder of hostages in Syria.

Palestine Action is not a terror organisation, as Mr Justice Chamberlain accepted in the injunction proceedings, in the ‘colloquial’ meaning of the term. That observation, from which the courts have so far declined to draw any conclusions, is likely to be central to future hearings. Proscription does significant damage to the freedom of expression of members of Palestine Action. Among other penalties, any funds held by a terrorist can be frozen; a bank cannot provide services to a terrorist; police can search, fingerprint and photograph a terror suspect without consent. The criminal offences created by the Terrorism Act 2000 outlaw both membership of a proscribed group and support for it. The principal issue in the judicial review was whether proscription was a proportionate restriction of the freedom of expression of members of Palestine Action. The court’s concession that the group’s members are not terrorists in the ordinary sense of the term is significant and its importance will increase: any finding that proscription is proportionate will be hard to sustain at future appeals, as the examples of excessive policing are likely to increase. It is obvious that when groups act violently towards people, with the intention of causing fear to those who know of their acts, that a restriction on their speech is a more justifiable infringement of their rights. If members of a group have always refrained from acts of violence against people, restriction on their speech by criminalising members, with a possible sentence of fourteen years in prison for membership alone, is harder to justify.

One of the reasons Palestine Action has generated such a wave of support is because politicians and judges have over the last few years repeatedly increased the repressive powers of the state. The Police, Crime, Sentencing and Courts Act 2022 gave police wide powers to put conditions on protest marches. The Public Order Act 2023 criminalised ‘locking on’ and enabled magistrates to make Serious Disruption Prevention Orders banning people from attending demonstrations. Last year climate campaigners who blocked the M25 were given prison terms of four and five years. The government is now pushing through Parliament a Crime and Policing Bill which will prevent demonstrators from protecting their identity at protests, as well as outlawing pyrotechnics on marches and protesting near a place of worship.

The proscription of Palestine Action is both the most egregious of these measures and an incentive to other institutions to take similarly repressive action. Two days after the judicial review, the courts heard another case concerning pro-Palestinian activism. Cambridge University applied to the High Court for a one-year extension to an order banning staff and students from protesting in certain places owned by the university. It justified the injunction by raising the threat of further protests, which it said would take the form of ‘direct action’, redefining this as any form of campaigning that ‘seeks to hinder, impede or prevent another person from carrying out a lawful activity on their land’. It invoked the ‘continuing threat’ posed by Palestine Action, which might ‘embolden groups such as Cambridge for Palestine to take direct action’ on university property. Other documents in the litigation accuse Cambridge of accelerating the manufacturing of spare parts for the F-35 fighter jet being used by Israeli forces in the bombing of Gaza through a collaboration with BAE Systems, and criticise the university for developing hybrid forms of propulsion for drones with Boeing’s Phantom Works, a supplier to the Israeli army, allowing the drones to carry heavier payloads and fly for longer. 

The injunction succeeded – over the last eighteen months the courts have granted every university request for an injunction or possession order – which means that Cambridge can enforce any breach through proceedings carrying a sentence of up to two years in prison. The university cited one student at a graduation ceremony who, instead of collecting their degree, carried a Palestinian flag and made a speech objecting to the university’s complicity in the genocide in Gaza, briefly disrupting proceedings. An academic institution that responds to reasonable criticisms by asking the courts to imprison the students who make them has made itself a supporter of authoritarianism.

At a further hearing on 30 July, Mr Justice Chamberlain gave permission for the judicial review claim to proceed to a further hearing, to take place over eight days in the autumn. Proscription, the judge held, ‘will have an impact on the claimant’s and others’ freedom of expression and freedom to protest on an issue of particular importance. I consider it reasonably arguable that the proscription order amounts to a disproportionate interference with the Article 10 and 11 rights [in the Human Rights Act] of the claimant and others.’ Chamberlain’s decision has not suspended proscription, or limited the police’s interpretation of it in the interim. Whichever side loses the judicial review will appeal, and given the public importance of the issue, both the Court of Appeal and the Supreme Court are likely to grant permission. If Palestine Action loses in the domestic courts, an application to the European Court of Human Rights also seems inevitable.

This is not yet an authoritarian country. For the time being, Britain remains part of an international human rights infrastructure which stands above our judges. So long as we remain part of that system, the autocrats in Downing Street and elsewhere will need to proceed with caution.

30 July