Disclaimer! This is me, David Chapman, with no legal training, trying to make sense of what has gone on. I will come back to edit it as I understand things better.
This is one of my Lift the Ban posts
The 'Open Judgment' of the court which undertook the Judicial Review of the Proscription of Palestine Action.
Content
There are 150 numbered paragraphs in the judgment, divided as follows:
Part A 'Introduction' (paragraphs 2-46) sets the context, subdivided:
(i) The decision, the claim and the proceedings Paragraphs 2 - 8
(ii) The power to proscribe under the 2000 Act and the consequences of proscription Paragraphs 9- 14
(iii) Palestine Action Paragraphs 15 - 30
(iv) The Home Secretary’s decision to proscribe Paragraphs 31 - 46
Part B. Decision (paragraphs 47 - 145) addressing each of the four grounds for the review:
(1) Ground 8. Procedural Fairness. Paras 47 - 67 This ground was rejected by the judges
(2) Ground 5. Failure to consider relevant matters. Paras 68 - 71 This ground was rejected by the judges
(3) Ground 6. The decision to proscribe was contrary to the Home Secretary’s own policy. Paras 72 - 96 This ground was accepted by the judges
(4) Ground 2. Conventions rights Paras 97 - 145 This ground was accepted by the judges. Discussion subdivided as follows:
(i) The claimant’s case Paras 97 - 98
(ii) Is proscription a specific measure or a general one? Paras 99 - 102
(iii) The interference with Convention rights consequent on the offences in the 2000 Act. Paras 103 - 106
(iv) Preliminary matters Paras 107 - 115
(v) The claimant’s evidence in this case Paras 116 - 124
(vi) Is the interference prescribed by law? Paras 125 - 127
(vii) The importance of the objective Para 128
(viii) Rational connection between proscription and the legitimate aims Para 129
(ix) Less intrusive measures Paras 130 - 134
(x) Has a fair balance been struck? Paras 135 - 142
(xi) Article 14 Paras 143 - 145
Part C. Section 31(2A) of the Senior Courts Act 1981 (Paragraphs 146 - 149)
If I understand it right, this was an argument made by the Home Secretary that even if the court upheld Ground 6 (or any of the other grounds, except Ground 2), it didn't matter because it wouldn't have affected the decision to proscribe. The judges didn't agree with the Home Secretary on this point.
Part D. Disposal Just one paragraph, paragraph 150, which says:
"For the reasons given above, Grounds 5 and 8 of the claim fail and are dismissed, but the claimant succeeds on Grounds 6 and 2 of her claim. To this extent the claimant’s claim is allowed. Subject to any further representations on relief, we propose to make an order quashing the Home Secretary’s decision to proscribe Palestine Action."
However, the Home Secretary asked to be allowed to appeal, the court has allowed the appeal to proceed, and the judges have said that the proscription should remain in place until the outcome of the appeal (see Case number: AC-2025-LON-002122). So at the time of writing (26 Feb 2026), Palestine Action remains proscribed.
Some observations
1 The objectivity of the judgement.
I was expecting a legal judgment to come across as cold and impartial. I was thinking in terms of academic writing for which you are not supposed to use the first person and write instead in the passive voice. It is often in reality a pretence, but the idea is that you are presenting facts which are objectively true and independent of the author. But that was not how it came across in the judgment. For one thing the first person is used throughout ('we' appears 52 times).
For example paragraph 57
On consideration of the detail in this case, we do not accept the claimant’s submission that fairness required the Home Secretary to give Palestine Action notice that she was minded to exercise her power to proscribe, to provide such reasons as she could, and to permit Palestine Action to have the opportunity to make representations.
OK, as I said, even in academic writing the absence of the author is often a pretence and I guess it is the judgment of the judges, so maybe this is just my ignorance of how courts work.
But there was something else in there which I find more worrying. In places the writing comes across to me as 'taking sides'.
Take, for example, Paragraph 23:
23 The core hallmarks of civil disobedience, namely the objective of seeking a change in the law or government policy, an approach to law breaking that is characterised by restraint and acceptance of the legal consequences of their actions, are emphatically not the hallmarks of Palestine Action’s campaign. Its campaign is intended to close down the operations of a company pursuing a lawful business. The campaign has not been pursued with restraint. The wide range of targets is significant. It lays bare that Palestine Action’s campaign and pursuit of criminal damage is designed to intimidate the persons and businesses targeted so they end their commercial relationships with Elbit. Palestine Action is not engaged in any exercise of persuasion, or at least not the type of persuasion that is consistent with democratic values and the rule of law.
(Emphasis added.)
My point is that 'emphatically' and 'lays bare' are things you say to convince someone, not just to describe something.
2 Why did they uphold the review?
As I explain above, I don't see the judgement as an 'objective' conclusion from the evidence. To be fair, I don't think absolute objectivity is possible, and maybe that is never what judges do. Perhaps they use their judgement... But also, as a number of people have observed, the conclusion almost appears, in footballing terms, to come "against the run of play". In much of the discussion their dislike of us lot, Palestine Action and those of us who joined the 'Lift the ban' campaign, is palpable. So why did they find in favour of two of the grounds? I've seen two explanations.
Craig Murray has a sinister reading: he argues that they have set things up for the Home Secretary to win the appeal. He argues that they pack the judgement with reasons for not uphold the review, and then find in favour on the thinest of grounds which will easily be rejected on appeal.
One of the members of Huda's legal team, however, in a presentation to us 'Lift the ban' activists, has a different take which I find more convincing from my reading of the judgement. This is that while it is true that they, the judges don't like us and don't approve of the either Palestine Action or the Lift the Ban campaign, nevertheless they believe in international law and at a time when many countries are trampling over human rights embedded in international agreements like the ECHR they felt that is was important to put a marker down. You can see from the paragraph count above that their biggest concern addressed the ground that the proscription of Palestine Action interferred excessively with the human rights enshrined in Articles 10 and 11. They argued that even though three of the actions of Palestine Action had been terrorism in the definition of 2000 Terrorism Act, those crimes could be prosecuted in other ways and that proscribing Palestine Action had a disproportionate consequence on the human rights of other people. There is a lot of space given over to addressing this question of proportionality in the context of ground 2. While I applaud that, to my mind it provides an interesting contrast with another question of proportionality in the judgement, which I address in a separate post.
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