Alun Gibbs, 19 March 2026 8 mins read
Protests are never very comfortable. They may be disruptive, awkward and costly. In a democracy they also pose difficult foundational questions as they imply that change (sometimes quite radical change) is required and that this can be achieved only by a recourse to measures and methods which lie outside the usual democratic political processes, often for a variety of complex reasons. At the same time for a democratic state the fact of protest is not necessarily an indication of the failure of the political but can be a sign of the vitality and health of the constitutional life of a state â free expression and assembly are core rights which are invoked and ought to be upheld by protest.
In legitimate protest we glimpse the foundational engagement of our political association â popular causes â that foster a sense of common ground; so many constitutional states often forge their first breath within the ferment of protest and in the UK we can come face to face with the historical contingency of our freedom (Chartism, suffrage, employment rights and equality) by reflecting on the history of protest and its milestones. Protest then is paradoxical in character â it can emerge out of the feelings of rage at the political democratic process for its failures to address a burning concern, but it is also the sign of life, health and perhaps progress within a democratic political community.
The paradox facing the state around protest finds its way into the legal architecture as the fair balance between the state as the âpolicerâ of law and order and the state as âguarantorâ of the civil rights of freedom of association and assembly. How do we expect the balance to be struck was one of the key issues and concerns surrounding the decision of the High Court (13 Feb 2026) in the high-profile Palestine Action case.
In the early hours of 20 June 2025 several activists of Palestine Action, a direct-action protest group founded in 2020, broke into the RAF base at Brize Norten and spray painted two aircraft causing serious damage. In response, the Home Secretary decided to proscribe the organisation under the Terrorism Act 2000 as âconcerned in terrorismâ.
A terrorist organisation is defined as one that engages in, prepares, promotes or encourages terrorism, which in turn requires (1) a serious violation against a person, serious damage to property (as in this case), or similar, or the threat thereof; (2) which is designed to influence the government or intimidate the public; (3) for the purpose of advancing a political, religious, racial or ideological cause. Most of the 84 organisations so far proscribed under the Act are extremist organisations engaged in high levels of violence, typically Islamist extremists and white supremacists, and indisputably terrorist. There was significant outcry that the activities of Palestine Action should be aligned to those of such terrorist organisations.
The government decision seemed to be a reaction to the Brize Norten incident, but Palestine Action had been on its radar since 2024. There had been an escalating series of incidents targeting arms manufacturers in the UK linked to Isreal, such as Thales, a French space and defence corporation, and Elbit Systems, Israelâs largest armament company, each time involving serious damage to property.
As consequence of the groupâs proscription (ban), it also became a criminal offence to offer or express opinion in support of it. In the months that followed more than 2000 supporters had been arrested for holding banners in support of Palestine Action, attracting the attention of media both in this country and around the world and prompting concern as to the health of the right to protest in the UK.
Huda Ammori, one of the founders of Palestine Action, brought a challenge against the governmentâs decision to ban the organisation. The High Court decision constitutes the opening salvo in what is likely to attract further litigation. It decided that the Home Secretaryâs determination was unlawful but declined to quash the order â meaning that Palestine Action remains banned (presumably pending the outcome of further legal action). It leaves things in legal limbo, especially for those that have already been arrested.
Taking the activities of Palestine Action as a whole and including the most violent and high-profile instances met the threshold of the statutory test for proscription. The court also noted that Palestine Action was not engaged in civil disobedience, as set out in Cuadrilla Bowland Limited v Persons Unknown (2020), given that the activities of the group were unrestrained, dangerous and criminal in nature. So, the outcome of this case is not a vindication of Palestine Action or its methods.
Even though the statutory terrorism test was met, it does not necessarily mean that Palestine Action should have been proscribed. The âpolicyâ, devised by the Secretary of State, is to determine whether it is proportionate and necessary to proscribe the organisation. As the High Court explained, the core of the policy for exercising her discretion is that ânot all organisations that meet the concerned terrorism requirement should be proscribed.â
The court found that the reason behind the proscription was to subject Palestine Action to the criminal consequences of the proscription which would be severe enough to disrupt or prevent the group from continuing. As these consequences would always and inevitably be the effect of proscription this could not, in the court’s view, be considered a relevant factor within the policy.
If this seems like rather a narrow basis to hold that the determination was unlawful, the court was somewhat more expansive in the consideration of the proportionality of proscription in relation to Article 10 and 11 rights in the Human Rights Act 1998, freedom of association and freedom of assembly. Once proscription has taken place there is obviously a considerable interference with Articles 10 and 11 rights given that it prevents any further protest, activity or support.
On this point the court considered that the activities of Palestine Action had ânot yet reached the level, scale and persistence that would justify the application of the criminal law measures that are the consequence of proscriptionâ – even though the court acknowledged that Palestine Action had been involved in unrestrained and disproportionate criminal activity, and not civil disobedience. In other words, even if the Home Secretary had followed her policy on proscription, it would still fail the proportionality test when it came to the rights protected by the HRA.
Usually on national security issues, such as this, the court would adopt a more deferential attitude to the view of the executive on where the balance lies. Thus, it is important that – in terms of the wider architecture of protest and civil liberties – the court adopted an independent view regarding the fair balance, given that proscription can (as in this case) have a significant impact on the enjoyment of convention rights. How far this analysis of the balance will be upheld in subsequent litigation remains to be seen.
In this wider sense the ruling can be viewed as taking a tentative step to protect this understanding of the place of protest by recognising that the law ought to adopt a sceptical attitude to powers of proscription. It set a reasonably questioning approach for the executive to show that a fair balance is in fact attained when it comes to the limitations of rights of freedom of assembly and association. It is only right that the courts should be willing to check the powers of the executive in this way so that anti-terrorism legislation cannot be used to unlawfully suppress the conduct of political debate and the legitimate rights associated with it.
At the heart of this debate about civil disobedience and protest we see the contours of a much more deep-seated issue of constitutional life. The authority of the state is not something that exists independently of the individualâs moral perspective. Rather, it is also grounded in the willingness of the state to protect the capacity and exercise of personal moral judgment. Any claim that the State has the right to command, and that citizens have a duty to obey, ultimately rests on creating a space for moral judgements in relation to the law as part and parcel of the wider claim of the law that it rests on reason rather than simply an act of will. This principle implies that the moral autonomy of judgement is not external to law but internal to it. The very idea that a law can bind us presupposes that we are the kind of agents who can understand, interpret, and morally assess reasons for compliance. A citizen is not merely a passive recipient of commands but an active participant in determining whether those commands carry legitimate authority and is not simply an act of coercion. The place of protest and its legal protection is one such constitutional space that serves this purpose within constitutional life and as such infringements on it must be viewed critically and limitations on it examined cautiously. It is within this wider spirit that we must look at the current case regarding the proscription of Palestine Action.