We Have to Remain Vigilant & Continue the Protests - the Court of Appeal under Reactionary ‘Justice’ Lady Carr May Reverse the Decision
Palestine Action co-founder: 'Today is just an incredible victory'
The decision of the High Court to declare that the proscription of Palestine Action as a ‘terrorist’ group is unlawful is a sweet victory. It is made even sweeter by the dishonesty and hypocrisy of this corrupt ‘Labour’ government which prefers paedophiles to anti-genocide activists.
However we should not be complacent. The decision is extremely problematic. The arguments that the three judges – Dames Victoria Sharp & Karen Steyn & Jonathan Swift - the most reactionary, pro-Zionist and security minded of the High Court, based their decision on, are extremely feeble and in places obscure and contradictory.
In paragraph 29 of the judgement they argue that Palestine Action is a violent group.
In paragraph 34 they repeat the lie, which the jury did not uphold, regarding the Bristol attack on Elbit, that
during
the attack two responding police officers and a security guard were assaulted
and suffered injuries. One police officer had been assaulted with a
sledgehammer and sustained a serious back injury
Contrary to the misinformation of the prostitute press, the police officer in question did not suffer a serious back injury. That these reactionary bewigged fools got this wrong suggests that this judgment may not last very long.
In paras. 43 and 45 they cite with approval the unanimous view of the Proscription Review Group that ‘the discretionary considerations weigh in favour of proscription’ and that Palestine Action was a terrorist group.
In para. 57 these judges rejected the proposition that
Palestine Action victory
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.
This despite the fact that the Israeli Embassy and Elbit had been consulted. In para 88 the court found that:
The
submission for the claimant has emphasised that only three of Palestine
Action’s many actions were assessed to amount to acts of terrorism. That is so,
but we are satisfied the Home Secretary was entitled to attach significant
weight to any act occurring in the United Kingdom that came within the section
1 definition of terrorism.
We should bear in mind that the ‘definition of terrorism’ in the Terrorism Act 2000 is so wide that you could drive a coach and horses through it. Virtually any group could be proscribed if the government was set on it. The definition has been repeatedly criticized, not least by the Independent Reviewer of Terrorism Legislation David Anderson QC who spoke of ‘the extreme breadth of the definition of terrorism in UK law.’
Anderson went on to point out (3.2(e)) in his 2011 Report that
Actions may constitute terrorism even when they might otherwise constitute lawful hostilities under international humanitarian law (e.g. acts of violent rebellion against oppressive governments, even where targeting only military objectives and minimising civilian casualties).
Anderson observed (3.5) that:
The
most striking feature of the TA 2000 definition is the fact that terrorist
action is ―equally criminal whether it is intended to take place in the UK or
elsewhere‖. This far exceeds the limited extraterritorial effect required by
the EU Framework Decision and by the 16 international conventions and protocols
that were concluded between 1963 and 2005 to address specific activities linked
to terrorism. The effect is to extend the label of terrorism to violent actions
directed against any regime in the world, however unsavoury or opposed to UK interests
that regime may be, and however praiseworthy the objective of the ‘terrorists’
may appear.
In 3.9 Anderson recommended ‘shrinking the definition of terrorism’
As presently drafted, the definition is so broad as to criminalise certain acts carried out overseas that constitute lawful hostilities under international humanitarian law. Examples include UN-sanctioned use of force and acts of violent rebellion against oppressive governments, even where such acts target only military objectives and minimise civilian casualties. The broad criminalisation could have implications also for extradition, given that by UNSCR 1373 (2001) para 3(g), claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists.
The High Court found that:
It
is undeniable that the consequences of proscription are as described in the
documents, are designed to disrupt proscribed organisations, and in the present
case would have that effect on Palestine Action. But so far as concerns the
lawful application of the Home Secretary’s policy on the use of the discretion
to proscribe, that is not a relevant consideration. That is so notwithstanding
that on a proper construction of the policy the Home Secretary does have
latitude to decide for herself which matters are appropriate “other factors”
Paragraph 90 is all but incomprehensible.
The conclusion in para. 95 that
The
consequence and conclusion of this point is that, notwithstanding the latitude
that the policy provides, the Home Secretary’s decision to proscribe Palestine
Action was not consistent with her policy. The closed material does not affect
our conclusion on this ground.
Is inexplicable. The arguments used are torturous.
Nowhere in their judgment do the 3 judges even mention the fact that Palestine Action is a direct action not a terrorist group because they unquestioningly adopt the definition of terrorism as applying to non-terrorist groups (in the common understanding of the term).
As regards the right to freedom of speech and association under Articles 10 and 11 of the European Convention on Human Rights they find in para. 106 that offences under sections 12(1), 1A and 3 of the Terrorism Act 2000 ‘comprise a very significant interference with the right to free speech.’ This is not in line with previous Court of Appeal decisions in for example Chaudry.
In para. 109 the High Court argues that what needs to be justified is not Palestine Action’s destruction of property.
Rather,
what needs to be justified is the restriction on actions comprising peaceful
protest, consistent with Convention rights, under the Palestine Action banner.
On the face of it the statement in para. 114 that
Freedom
of political debate, which is at the very core of the concept of a democratic
society, also includes the free expression by prohibited organisations of their
views, provided that these do not contain public incitement to commit terrorist
offences, or condone the use of violence
seems contrary to existing judicial interpretations of case law. It will be interesting to see if this is upheld by the Court of Appeal. I suspect it won’t be upheld.
Likewise the statement in para. 115 that
this
case is primarily concerned with the rights of individuals who have not acted
unlawfully either before or since proscription, who would have wanted to
express support for and associate with Palestine Action – whose stated aim is
“to stop genocide and other atrocity crimes by causing disruption to corporate
actors who aid, abet, facilitate and profit from those crimes” – and who wished
to engage in peaceful protests under the banner of Palestine Action, but are
stopped from doing so. It cannot sensibly be said that such persons are seeking
to deflect the article 10 and 11 rights from their real purpose by employing
them for ends contrary to Convention values. Nor could that be suggested in
respect of others, such as journalists, academics and civil society
organisations who are conscientiously seeking to abide by the law, and whose
rights are impacted. The Home Secretary’s article 17 submission fails.
This too is novel. The whole point of proscription has previously been that all the activities of proscribed groups are forbidden.
Yet in para. 118 the High Court goes on to say of the demonstrations that followed the proscription that:
Immediately
following the proscription decision there were large protests. More than 2,000
people at these protests were arrested, primarily on suspicion of committing
the offence under section 13 of the 2000 Act. The vast majority of those
arrested had chosen to hold signs which read, “I oppose Genocide, I support
Palestine Action”. We attach little weight to this when it comes to assessing
the extent of the interference with Convention rights in this case. All those holding
such signs either did or ought to have realised that what they were doing was
showing support for Palestine Action. It was or ought to have been obvious to
all concerned that such “carefully worded” placards were carefully worded only
to the extent of sending the message that the person holding the placard was
expressing support for Palestine Action.
This appears to contradict the previous paragraphs of the judgement. And likewise in paras. 123 and 124 the court declares, in respect of journalists, academics and campaigning groups that the pressure to self censor and
the
interference with article 10 and 11 rights is very significant. Nevertheless,
there is a general correlation between the proscription of Palestine Action and
the interference insofar as the adverse impacts are generally limited to those
who have or would support Palestine Action and do not have any widespread or
general impact on expressions of support for the general Palestinian cause.
Yet in para. 125 the High Court finds that ‘the interference with Convention rights consequent on proscription is not prescribed by law.’
In para. 136, as part of its ‘balancing assessment’ the court finds that
We
do not consider that the proscription of Palestine Action is likely to result
in any general impact on expressions of support for the Palestinian cause or
even opposition to Elbit. This provides some support for a conclusion that the
proscription was proportionate.
This despite the police’s repeated interpretation of proscription as doing exactly this.
In paras. 137 and 138 the court attacks Palestine Action as a violent, terrorist organization.
In paras. 141 and 142 the court rejects the view of the UN Special Raporteur
that
a “consensus” existed in international law to the effect that the actions of
Palestine Action assessed as amounting to terrorism within the definition at
section 1(1) of the 2000 Act did not in fact amount to terrorism.
The two grounds on which the application succeeded were
Ground
6: that the decision to seek the Order proscribing Palestine Action was made by
the Home Secretary in breach of her own policy on when she would exercise her
discretion to seek an order proscribing an organisation; and
Ground
2: that the decision to seek proscription was contrary to the Human Rights Act
1998 (the HRA) because it amounted to an unjustified interference with the
rights protected by the European Convention on Human Rights (the Convention)
under article 10 of the Convention, to freedom of expression and under article
11 of the Convention, to freedom of association and peaceful assembly; and
further, amounted to discrimination contrary to article 14 of the Convention.
In para. 149 the High Court holds that Ground 6 is the strongest yet it makes it clear that the Home Secretary can simply rewrite the policy and then decide to proscribe Palestine Action without considering the usefulness of the criminal sanctions that result.
Nonetheless the deproscription of Palestine Action is welcome although the Court resiled from implementing it immediately. The question is why. If the proscription is unlawful why not quash it immediately?
It is difficult to argue with Craig Murray’s ‘Postpone the Celebrations’ blog article. He argues that these three, right-wing judges have deliberately set up their judgement to fail. This is possible. The judgement overall, finding that Palestine Action is a violent, terrorist group, does not make one optimistic.
The irony is that on the very day that Yvette Cooper proposed proscribing Palestine Action she was dressed in the colours of the Suffragettes. Never was there a more shameless hypocrite. If any group could be described as 'terrorists' it was the Suffragettes. But Cooper was happy to bask in their reflected glory.
We should consider the circumstances surrounding this case. At the very last minute Judge Chamberlain, who was relatively liberal, was replaced by three right-wing, security minded judges. This was despite Chamberlain having stated that he would be in charge of the case.
The Ministry of Justice intervened to get Chamberlain replaced and Victoria Sharp, President of the King’s Bench Division obliged. However this was so ham fisted that they found themselves in a dilemma. They could not be seen to override both Chamberlain’s original referral and the decision of the Court of Appeal to extend the grounds of the judicial review application.
In other words this judgement is a face-saving exercise and the three judges scrabbled to find reasons to oppose the proscription whilst producing an error ridden ruling.
What matters though is what the Palestine solidarity movement does. We cannot afford to rely on the whims of reactionary ruling class judges who are playing word games.
The proscription of Palestine Action is still operating. The Metropolitan Police have stated that they aren’t going to arrest people now but merely take their details down for possible future prosecutions but all that that will do is delay future prosecutions.
It is essential that we act as if there had not been a victory at the High Court. The kernel of the court’s decision was that Palestine Action remains a violent, terrorist organization. Nothing has changed in that regard. I agree with Craig Murray that this is a problematic judgement from judges who have given the most tenuous reasons for not upholding the proscription.
The mass defiance actions must continue and if anything, now that there is no longer fear of arrest, be increased.
We should call on Palestine Solidarity Campaign and Stop the War Coalition to abandon their normal timid approaches and openly support the mass defiance actions. The proscription regime must be broken as part of the campaign to repeal the Terrorism Act 2000, which has nothing to do with terrorism and everything to do with an attack on our right to organize and freedom of speech.
Of course this victory would never have happened but for the direct action movement, led by Defend Our Juries, a liberal pacifist group. This judgement does nothing to make the idea that a direction action group is a terrorist group illegitimate and untenable. DOJ should be congratulated and in particular Tim Crosland, the former government lawyer who was arrested by the Metropolitan Police on ‘terrorism’ charges and faces 14 years imprisonment.
The Metropolitan Police and its Zionist Commissioner Mark Rowley behaved like the Gestapo trampling on the most basic of rights, for example getting Zoom to take down a webinar on vague allegations of ‘terrorism’.
We should have nothing but contempt for those who claim to be our friends but who did everything they could to undermine our solidarity. I refer in particular to Phil Bevin, an ex-member of Jeremy Corbyn’s staff, who went so far as to allege that Tim Crosland was a police/state agent.
The Stalinist 'Right to Protest Ltd' sought the approval of the Police for their posters!
Also included in this is the so-called Right to Protest Ltd., a front for a tiny Maoist group, the CPGB-ML led by Joti Brar which explicitly called on people not to hold placards supporting Palestine Action. They even got the Police to approve the wording of their own placards. So much for their pretence at being revolutionary.
Phil Bevin’s insinuations that Tim Crosland was a state asset and infiltrator should be treated with contempt. If anyone is likely to be a state asset and acting as an intelligence cut-out it is Bevin himself.
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