On 23 June 2025 the Home Secretary, Yvette Cooper, announced in Parliament that she had “decided to proscribe Palestine Action under section 3 of the Terrorism Act 2000.”
Section 3 of the 2000 Act gives the Home Secretary the power to proscribe an organisation by laying before Parliament an order to add the organisation to the list of proscribed organisations in Schedule 2. Members of Parliament are invited to vote on the order before such proscription comes into force as secondary legislation. There are currently 81 organisations that are proscribed under this legislation (and a further 14 organisations from Northern Ireland which are proscribed under separate legislation).
Al Qai’da, Ansar al-Sunna, ISIS, Boko Haram, the Wagner Group, and the most recent addition to Schedule 2, Terrorgram, are amongst the groups which are proscribed because they are “concerned in terrorism”. The statutory definition of being concerned in terrorism includes committing and participating in acts of terrorism, preparing for terrorism and promoting terrorism.
Al Qai’da, Ansar al-Sunna, Boko Haram, and the Wagner Group openly pursue militant violence. They recruit fighters to participate in intrastate conflicts (or, non-international armed conflicts) and are credibly implicated in numerous instances of unlawful killing, arbitrary detention and torture. Terrorgram is a transnational collective of online spaces which “inspired” a young man to shoot and kill two people outside an LGBTQ+ bar in Bratislava, Slovenia, has been connected to a knife attack at a mosque in Türkiye, and whose leaders have been charged in US federal courts with openly soliciting the murder of public officials.
Palestine Action describe themselves as:
[A] direct-action movement committed to ending global participation in Israel’s genocidal and apartheid regime. Using disruptive tactics, Palestine Action targets corporate enablers of the Israeli military-industrial complex and seeks to make it impossible for these companies to profit from the oppression of Palestinians.
Palestine Action exclusively target property and assets – their actions include spraying red paint on the exterior of buildings that house banks and investment firms which provide financing to weapons manufacturers, breaking into a military base to spray-paint the engines of RAF planes, and breaking into and causing criminal damage to weapons manufacturers – most notoriously, Elbit Systems, an Israel-based international military technology company with facilities across the UK.
Proscription makes it a “terror offence” to be a member of Palestine Action as well as to express any form of support for the group, wear or display articles of clothing or any other item that may arouse reasonable suspicion that you are a supporter of Palestine Action, and provide funding to, or receive training from, Palestine Action. It also makes it an offence to participate in or prepare for any “terrorist acts”, which may now include participating in direct action in the manner or style that Palestine Action may undertake, even if under another name. Convictions for these terror offences are subject to specific sentencing powers which carry substantial custodial sentences. For example, a conviction for encouraging terrorism or disseminating terrorist publications where no specific intent has been proven could carry a sentence of between 7 to 9 years’ custody.
This post does not focus on assessing the substantive grounds which can be relied on to challenge the lawfulness of Yvette Cooper’s decision-making in seeking to proscribe Palestine Action. Instead, it focuses on the constitutional implications of the decision to proscribe Palestine Action. In short, I argue that the Home Secretary’s decision collapses the distinction between violence against the person and violence against property. This represents a seismic break with constitutional norms regarding how the state regulates the fundamental rights to freedom of thought and conscience, freedom of expression, and the right to freedom of assembly. The decision is a chilling example of executive power being wielded to coercively constrain personal and collective liberties in the UK.
What is Terrorism?
The term “terrorism” is defined within section 1(2) of the Act as any action which:
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person’s life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
It must also be the case that “the use or threat of such action is designed to influence the government […] or to intimidate the public […] and use or threat is made for the purpose of advancing a political, religious, racial or ideological cause”.
“Serious” is not a defined term within the legislation. However, on an ordinary reading, and in line with the criminal law more broadly, seriousness is a measure of the gravity of the harm which results (or is likely to result) when a person or group carries out an act of terrorism. This assessment of the actual or potential harm which may result from a particular action is a necessary pre-condition to defining the actions listed within s.1 as terrorism.
In R (David Miranda) v the Secretary of State for the Home Department and others [2016] EWCA Civ 6, the Court of Appeal held that actions falling within section 1(2)(a) and (b) are defined “exclusively by reference to the nature of the action itself”. The Court also held that “it is not an ordinary use of language to describe a person as being ‘involved’ in violence or damage to property if he is not aware that he is being so involved,” thus terrorism under s.1(2)(a) and (b) requires a “mental element” (Richards LJ at [54]-[55]).
The question thus becomes what type of intentional harm is “serious” enough to amount to terrorism?
In proscribing Palestine Action the Home Secretary is seeking to cast vandalism, criminal damage and direct action as acts of terrorism in a context where the other aspects of the definition are met. There need not be evidence that such vandalism, criminal damage and direct action has posed or will pose any harm to life and safety. It seems enough, on her approach, that it costs millions of pounds worth of damage. In effect, this decision attempts to lower the threshold of what amounts to “serious” harm. The proscription of Palestine Action therefore involves a subtle but significant shifting of the legal understanding of terrorism. Prior to the Home Secretary’s decision to proscribe Palestine Action, no organisation, movement or group has ever been proscribed solely on the basis that they carry out actions which cause serious damage to property under s.1(2)(b) of the Terrorism Act.
This decision is already being challenged by way of judicial review, and may subsequently be challenged by way of an appeal to the Proscribed Organisations Appeal Commission (“POAC”). In defending such challenges, the Home Secretary will have to advance an argument that the threshold of “serious” damage to property can be met even when the harm caused does not endanger life or risk causing serious violence to individuals.
The Explanatory Memorandum to the Order to proscribe Palestine Action suggests that the nature and extent of the damage caused to property by the group is serious enough to amount to terrorism. While the Home Secretary’s statement to Parliament did refer to instances of members of the public fearing for their safety as a result of direct actions carried out by the group, the degree of harm caused to those people remains uncertain.
The leading Court of Appeal judgment which addresses questions around the lawfulness of the Home Secretary’s decisions to proscribe organisations is Secretary of State for the Home Department v Lord Alton of Liverpool and others [2008] EWCA Civ 443. This case was concerned with the lawfulness of the Home Secretary’s decision to continue proscribing an organisation (the People’s Mojahedeen Organisation of Iran (the “PMOI”)) on the basis that the PMOI, which the Home Secretary accepted was an organisation that was not currently committing or promoting acts of terrorism, remained “otherwise concerned in terrorism” (under s.3(5)(d) of the Act). Crucially, the Court accepted that when reviewing the lawfulness of the Home Secretary’s decision-making in respect of proscription, it is right for POAC to subject the decision to intense scrutiny due to the fact that the decision affects fundamental human rights (Lord Philips at [46]).
Terrorism Without the Terror
There is no international consensus on the exact meaning of terrorism. Indeed, Alex Schmid, who has researched the definition of terrorism for many decades, argues that acts of terrorism have more in common with war crimes than violent extremism. For decades, scholars of terrorism have considered that terrorism is unique in that its “political effectiveness […] is determined by the psychological effects of violence on audiences”; “terror […] is a state of mind, characterised by intensive fear of a threatening danger on an individual level and by a climate of fear on the collective level.”
This is in line with the context in which terrorism legislation and counter-terrorism policy has developed in the UK. The first pieces of legislation which addressed terrorism in the UK were passed in a context where acts of terrorism had led to hundreds of fatalities across Northern Ireland and Great Britain. The first statutory definition of terrorism was contained within the Detention of Terrorists (Northern Ireland) Order 1972. It defined terrorism as “the use of violence for political ends [including] any use of violence for the purpose of putting the public or any section of the public in fear.”
Sir Charles Haddon-Cave (LJ), during his time as Senior Presiding Judge for England and Wales, wrote an essay titled, “The Conduct of Terrorism Trials in England and Wales.” He considered the elements that need to be proved in a terrorism trial – the first one being: “an actual or contemplated use or threat of action involving serious violence against a person, endangering a person’s life or creating a serious risk to the health and safety of the public or a section of the pubic.” He went on to list some offences which may fall within this category. In respect of offences under the Criminal Damage Act 1971, he limited this to offences under s.1(2) endangering life by damaging property.
The legal understanding of terrorism in the UK – starting with the first statutory definition of terrorism and up until the enactment of the Terrorism Act 2000 and the Terrorism Act 2006 – has focused on specific types of violence which threaten or cause serious harm to life and safety.
In light of the fact that no government has previously sought to proscribe an organisation on the basis of its actions which cause “serious damage to property”, there is no case law which considers what types of serious damage to property under s.1(2)(b) are sufficiently serious to amount to terrorism.
Indeed, the most commonly prosecuted terrorism offences are offences under ss.11 and s.12 the Terrorism Act 2000 (membership of a proscribed organisation and support for a proscribed organisation), and ss.5 and 6 of the Terrorism Act 2006 (preparation for acts of terrorism and providing and receiving training). A review of the reported case law (usually, appeals following conviction) in respect of these offences reveals that convictions for terrorism have, up until now, been confined to participation in or support for terrorist activities which are overtly connected to militant violence (support for groups such as, Al-Qaeda, Jabhat al-Nusra, ISIS, the IRA and the PKK).
Additionally, POAC has had to address questions about the nature and type of activities that an organisation must be evidenced to either be carrying out or be “concerned with” in order to justify their continued proscription (see Lord Alton of Liverpool & others (in the matter of the People’s Mojahedeen Organisation of Iran) v the Secretary of State for the Home Department PC/02/2006; and Arumugam and Others v Secretary of State for the Home Department PC/04/2019).
In seeking to evidence that the relevant organisations were engaged in “terrorist activities” in these cases, the Home Secretary relied on examples of their involvement in bombings which led to civilian fatalities and targeted assassinations (POAC Alton judgment at [166]-[178]), their operations manufacturing IEDs for use in the course of attacks on civilians, and alleged attempts to use hand grenades on public transport (POAC Arumugram judgement at [35]). Significantly, there was no suggestion in these cases by the Home Secretary (and therefore no consideration given to the point by the tribunal) that any other non-violent/non-military actions by the relevant groups could be relied on to bring them within the statutory definition of engaging in terrorism or being concerned in terrorism.
The case law illustrates that, at least in practice, the understanding of “terrorism” in England and Wales has historically had a strong nexus with actions which involve or threaten serious violence against civilians. Overwhelmingly, counter-terrorism policy has focused on tackling serious militant violence which endangers or actually harms life, or the type of violence which terrorises the public.
The PMOI is an Iranian political organisation which had participated in the Iranian revolution and very shortly after the regime of Ayatollah Khomeini was established, came into violent conflict with the new regime, and moved into exile in Iraq. For many years, the PMOI had kept “a formidable arsenal of weapons including tanks and rocket launchers”, and participated in the Iran-Iraq war, fighting alongside the Iraqi armed forces. By 2003, the PMOI had “dissolved all its operational units”, renounced terrorism and sought to transform into a “secular, democratic movement intent upon the peaceful overthrow of the present undemocratic regime in Iran, to which end they sought the support of international governments.”
In the Alton case, POAC had to consider whether the PMOI could still reasonably be considered to be “concerned in terrorism” for the purpose of proscription after the organisation had publicly abandoned all military activities and actions and surrendered its arsenal. POAC ultimately determined that even an organisation which has previously engaged in militant violence and now retains a body of supporters but does not have any military capability or any evidence of, for example, attempts to acquire weapons or train members in terrorist activity cannot reasonably be said to be concerned in terrorism merely because it might become involved in terrorist activity at some future date (see paras [125]-[128] of the PMOI/Lord Alton case).
The term terrorism is similarly deployed in the Arumugam case: to refer broadly to violent military actions, including, for example, “involvement in political assassination, killing of civilians, use of suicide bombers, and recruitment of child soldiers” (Arumugam and Others v Secretary of State for the Home Department PC/04/2019 at [31] and [46]-[48]).
Implications for Civil Liberties When Direct Action Becomes Terrorism
Direct action, as many have already pointed out, is a long-standing form of protest and political action. The Suffragettes are probably the most famous (and widely celebrated) actionists of British political history. They participated in campaigns of window smashing and even arson which aimed to harm property and never people. In the context of anti-war protests, Daniella Lock reminds us that, “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.” In 2017, two protesters broke into BAE Warton carrying “a list of the serial codes of fighter jets worth over £1bn and a prepared statement explaining their intent to disarm them.” They were charged with low-level criminal damage. Other protest groups, such as Extinction Rebellion, have carried out remarkably similar direct actions, causing serious damage to the exterior of major banks and government buildings. Many such activists have faced criminal convictions, but there has never been any suggestion that their protest tactics amount to terrorism.
The UK’s leading civil liberties and human rights organisations immediately responded to the Home Secretary’s announcement of her intention to proscribe Palestine Action raising serious concerns that this proscription may amount to “unlawful interference with the fundamental rights of freedom of expression, association and peaceful assembly,” pointing out in particular that proscription may be unlawful for lack of proportionality. The Quakers wrote to the Home Secretary highlighting the obvious and critical difference between nonviolent disruption and actions that threaten or inflict harm on people – vandalism should not be labelled as terrorism, they insist.
The steady expansion of coercive policing powers in respect of dissent and protest has been a feature of the legislative agenda of successive governments for at least a decade. The current government has introduced yet another bill to Parliament – the Crime and Policing Bill – which further criminalises well-protected elements of the right to protest, including the right to privacy at protests (which is often implicated by protesters wearing face coverings). The UN’s Human Rights Committee has previously expressed concerns about the use of surveillance powers at (as well as before and after) protests by police around the country, including mass surveillance and facial recognition technologies.
Over the past two years in particular, the blurred lines between public order policing and counter-terrorism policing has had a particularly coercive impact on those who participate in Palestine solidarity protests and direct actions. Westminster Magistrates court has become a familiar site of contention, where citizens who engaged in protest now face charges ranging from supporting a terrorist organisation (under s.12 of the TA 2000) to wearing items of clothing or displaying articles “in such a way as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation” (s.13 of the TA 2000, which is a strict liability offence).
The trend towards heavy-handed policing and criminalisation of protest is not new (see, for example, the practices of the Metropolitan Police’s “Special Demonstrations Squad” that are still being investigated and uncovered by the Under Cover Policing Inquiry). Still, our collective understanding of political violence that is so harmful that it should be considered terrorism has not included damage to property alone.
The Home Secretary’s decision to proscribe Palestine Action on the basis that their activities fulfil the definition of “serious damage to property” under s.1(2)(b) of the 2000 Act lowers the threshold of seriousness that needs to be crossed before the state can legally ban all manner of disruptive political protest.
It is acknowledged that, at least in respect of the right to freedom of assembly, the current case law is relatively clear: where protestors cause serious damage to property, their actions may not fall within the ambit of “peaceful” or “non-violent” protest and therefore may not be protected by Article 11. See, for example, the Court of Appeal’s decision in the Attorney General’s Reference on a point of law No.1 [2022] EWCA Crim 1259, at [87]-[89], following the Home Secretary’s reference in respect of the extent to which the ECHR sanctions the use of violence against property during protest. Notably, the Court of Appeal in this case did not accept that the case law of the European Court of Human Rights (“ECtHR”) drew any distinction between violence to the person and damage to property in the context of protests ([90]).
Nevertheless, the Court of Appeal’s decision was confined to the issue of the proportionality of convictions for criminal damage in the context of protest.
The Court considered that in some instances of criminal damage, “the Strasbourg case law suggests that there would need to be a case-specific assessment of the proportionality of conviction at least in connection with public property” [116]. In short, the fact that criminal damage may not be protected under Article 11 would not justify re-casting it as terrorism.
Finally, the Court of Appeal acknowledged that the common law has “always been sensitive to the position of protesters when it comes to both prosecution and sentencing. Lord Hoffman distilled the principles in R v Jones (Margaret) [2007] 1 AC 161 at [89]:
[C]ivil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the lawbreakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account. The conditional discharges ordered by the magistrates in the cases which came before them exemplifies their sensitivity to these conventions.
Importantly, and more broadly, even if the protections afforded under the ECHR do not always extend to forms of expression, speech, or resistance which cause serious criminal damage, the criminal law in England and Wales clearly distinguishes between acts which amount to violence against the person – which carry significantly more serious sentences and forms of punishment – and acts of violence which amount to criminal damage and destruction of property. This would seem to reflect a moral distinction between actions which cause harm to other humans and actions which cause harm to property.
The Home Secretary’s use of terrorism legislation to control the ways in which Palestine Action expresses dissent to an ongoing war is an attempt to collapse that distinction. In a country where lay magistrates and juries apply the criminal law every day, up and down the country, citizens will soon be directed by judges and prosecutors that causing serious criminal damage in the context of civil disobedience and conscientious objection to war and violence is an act of terrorism, when it is committed under the name of Palestine Action. This will undoubtedly and ultimately shift our collective understanding of how free we are to oppose the decisions our government makes.
Conclusion
For now, this will only apply to direct actions carried out by Palestine Action. Jurors and members of the public will rightly ask the question: what makes Palestine Action’s form of protest through criminal damage different to the type of criminal damage which Extinction Rebellion and Just Stop Oil have carried out?
A constitutional right to dissent becomes a theoretical right if the practical avenues for expressing dissent are criminalised. The legal distinction between civil disobedience which does not cause harm to, or threaten harm to, life or safety and political violence which has the explicit aim of causing serious harm or threatening serious harm to life is critical to our participation in democratic life.
The Home Secretary’s decision to proscribe Palestine Action is the first step in stripping away a long-standing collective right to disruptive but not deadly dissent.
Nour Haidar is a barrister at 7BR
(Suggested citation: N. Haidar, ‘Home Secretary vs Palestine Action: The Constitutional Implications of Widening the Legal Understanding of Terrorism’, U.K. Const. L. Blog (8th July 2025) (available at https://ukconstitutionallaw.org/))
