On 13 February 2026, the Divisional Court (Dame Victoria Sharp PKBD, Swift and Steyn JJ) upheld the judicial review brought against the proscription of Palestine Action under the Terrorism Act 2000: R (Ammori) v Home Secretary [2026] EWHC 292 (Admin).The Court dismissed two grounds: failing to give Palestine Action the opportunity to make representations (ground 8), and failing to have regard to relevant considerations (ground 5). The Court upheld two grounds: that the decision was in breach of the Home Secretary’s policy (ground 6), and that it amounted to an unjustified interference with Arts 10 and 11 ECHR (ground 2).

As the Home Secretary has announced that she will appeal the judgment to the Court of Appeal, it is timely to critically evaluate the Court’s holding on the grounds of review that were upheld. The Court’s treatment of ground 6 has been the subject of critique by Mark Elliott and Gabriel Tan (one of the co-authors of this piece) in their own blogs. This piece supplements those criticisms. We argue that, on the proper construction of the policy, the analysis in ground 6 was unconvincing and the decision to proscribe Palestine Action was not contrary to the policy.

Policy and the Proscription of Palestine Action

The Home Secretary ‘may’ proscribe an organisation if she believes that it is ‘concerned in terrorism’ (s 3). In addition to meeting the statutory test, the Home Secretary has discretion to proscribe the organisation. The Home Secretary has produced a policy paper, which relevantly states:

     What is a proscribed organisation?

     Under the Terrorism Act 2000, the Home Secretary may proscribe an organisation if they      believe it is concerned in terrorism, and it is proportionate to do.

     What determines whether proscription is proportionate?

     If the statutory test is met, the Home Secretary will consider whether to exercise their      discretion to proscribe the organisation.

    In considering whether to exercise this discretion, the Home Secretary will take into account     other factors including:

          [1] the nature and scale of the organisation’s activities

          [2] the specific threat that it poses to the UK

          [3] the specific threat that it poses to British Nationals overseas

          [4] the extent of the organisation’s presence in the UK

         [5] the need to support other members of the International community in the global fight          against terrorism. [numbers in square brackets added]

The Terrorism Act 2000 imposes sweeping consequences in relation to ‘proscribed organisations’. Once proscribed, it is an offence to belong, or profess to belong, to a proscribed organisation (s 11). It is an offence to invite support for a proscribed organisation, including expressing ‘an opinion or belief that is supportive of a proscribed organisation’ (s 12). It is an offence to wear any clothing in public or display any article in public in such a way ‘as to arouse reasonable suspicion that [the person] is a member or supporter of a proscribed organisation’ (s 13). The Divisional Court observed that ‘the very purpose of proscription is to put measures in place that are designed to ensure that an organisation ceases to exist’ ([135]).

The Divisional Court held in ground 6 that the Home Secretary’s approach when proscribing Palestine Action was not consistent with her policy ([89]). In the decision-making process, Counter Terrorism Policing produced a report that stated proscription would be advantageous because the offences in ss 11–13 could be used against any person supporting Palestine Action. The ‘significant disruptive benefits beyond the current policing powers being utilised to deal with’ Palestine Action were referred to in a note of the Proscription Review Group (‘PRG’) meeting. And in the ministerial submission, these matters were referred to as ‘additional levers to disrupt [Palestine Action’s] operations’. The Divisional Court found that the documents presented this factor as ‘a key matter in favour of exercising the discretion to proscribe’ ([89]).

The Divisional Court held that the words ‘other factors’ within the policy gives latitude to the Home Secretary but it is not unlimited ([90]) and the power of the Home Secretary to choose which matters are ‘other factors’ must be consistent with the purpose of the policy. The Court held that the ‘purpose of this policy is to limit use of the discretionary power to proscribe’ ([91]) and ‘that not all organisations that meet the concerned in terrorism requirement should be proscribed’ ([92]). Accordingly, any ‘other factor’ must be one that can ‘contribute to explain the particular need to proscribe that organisation above and beyond the necessary belief that the organisation is one that is concerned in terrorism’ ([91]).

The Court held that the operational consequences and advantages of proscription is not a factor consistent with the policy ([94]). This is ‘for the obvious reason that such consequences and advantages will apply equally to any organisation that could be proscribed – i.e. any and every organisation that meets the requirement to be an organisation concerned in terrorism’ ([94]). However, the Court emphasised that the operational consequences could be an ‘other factor’ if ‘in a particular case, by reason of an organisation’s structure, membership, activities or otherwise, the measures in the 2000 Act that are the consequences of proscription would be unusually effective’, but ‘that is not the present case’ because no such evidence exists so far as it concerns Palestine Action ([94]).

Furthermore, the Court recognised the general principle that a decision-maker who adopts a policy can disapply or modify it in a particular case but stated that such disapplication or modification ‘must be express and must be for a sufficient reason’ ([93]; see this post for the ‘good reason’ exception to the duty to comply with policy). In proscribing Palestine Action, the Home Secretary did not expressly indicate that she was disapplying or modifying her policy.

Critique of the Court’s judgment on ground 6

There are three reasons to doubt the Court’s conclusion on this ground.

1. The text of the policy does not support the limitation

In dealing with a ground of review about non-compliance with policy, the Court must decide the true construction of the policy. Policies are ‘interpreted objectively in accordance with the language used, read as always in its proper context’ (Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, [18]) and so the Court must begin with the text.

Nothing in the explicit text of the policy paper limited the factors that the Home Secretary could have considered in the discretionary stage. The plain and ordinary meaning of the words ‘other factors, including’ clearly envisages that the five listed factors are not exhaustive (as the Court itself acknowledges at [74] and [90]). Although the word ‘including’ can sometimes operate to enlarge, the word operates here to merely give examples of ‘other factors’.

The words ‘other factors’ must be read in context. They follow from the three preceding paragraphs, which defined ‘terrorism’ in the proscription context and set out the statutory definition in s 3(5) for an organisation that ‘is concerned in terrorism’. The references to ‘other factors’ can only sensibly mean matters that are not merely about meeting the statutory definition or the meaning of terrorism. The operational consequences of proscription fall within the broad, but clear, berth of ‘other factors’. They are not matters that go to whether the organisation itself is concerned in terrorism or action that can constitute ‘terrorism’ under the Act.

Context further points against the type of limitation identified by the Court existing in the policy. The words ‘other factors including’ appear under a heading about proscription being ‘proportionate’, which also appears in the first paragraph. Proportionality was considered by the Court as an ‘additional qualitative threshold’ to use the proscription power ([84]). The notion of proportionality necessarily involves the Home Secretary considering the impact that proscription will have. If the focus is on preventing future terrorist acts, then it would be open to the Home Secretary to compare what would likely happen if Palestine Action was proscribed, against what would happen if it was not. Here, the effectiveness or operational consequences of proscription is highly relevant as one factor going to whether proscription is proportionate. Indeed, as one of us has argued, a failure to consider this as a relevant factor within the proportionality balance could well constitute a failure to take into account a relevant consideration.

2. The purpose of the policy does not impose a limitation

The Court does not rely on the text but rather the ‘purpose of the policy’, which the Court says is to ‘limit use of the discretionary power to proscribe’ ([91]). This ‘purpose of the policy’ is a conclusion drawn based on an inference from the policy as a whole.

The first observation that should be made is to ask whether it was truly necessary for the Court to have identified a purpose of the discretion segment, much less an overarching ‘purpose’, for the policy. It is now trite that interpretation of a policy document, like any other legal document, is a matter for the courts. But high authority has confirmed that policies cannot be treated as ‘analogous in its nature or purpose to a statute or a contract (Tesco Stores at [19]). In Tesco Stores, Lord Reed explained that development plans in the planning context are ‘full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another’. The same may be said of the policy paper in the present context. The nature of the policy governing the Home Secretary’s discretion will naturally pull in different directions, given it seeks to balance different sets of competing interests. Just as it would be strange (and indeed wrong) to identify a local authority’s development plan’s purpose as ‘uniformly’ seeking to ‘limit the exercise of discretion to grant planning permission’, it would be peculiar for a document like the Home Secretary’s policy in this context, which balances different interests, to be identified as uniformly concerned with one interest over another or to limit the exercise of discretion to proscribe. That provides an important starting point to be sceptical of the Court’s conclusion that the policy intends to limit the Home Secretary’s discretion to proscribe.

Turning to the actual language, read as a whole, a striking feature of the policy paper is the extent to which it seeks to inform the general public on the topic of proscription. This makes the paper different to, for example, an internal memorandum directed to departmental staff. Most of the paper is devoted to listing out the various groups or organisations that are proscribed in the past and summarising the government’s reasons for each proscription. Put another way, it does not read so much like a policy document but appears more akin to an information brochure. If it were not described as a ‘Policy paper’ at the top of the website, one would be mistaken if they thought it was merely a webpage on www.gov.uk or information sheet that provided basic information about proscription and the basis for proscribing organisations in the past. It is improbable that its purpose therefore was to inherently ‘limit the discretionary power to proscribe’ ([91]).

The Court explains that the five factors stated in the policy has the ‘effect’ of setting this purpose. But those five factors are listed after the words ‘other factors including’ in the proviso. As explained above, this cannot possibly evince an intention to fetter the factors that can be considered. Moreover, it would be wrong to reason based on the ejusdem generis canon, which operates to ensure that a general word will not render specific words meaningless. That canon may be apt in statutory interpretation, but it does not operate neatly in the interpretation of policies which, unlike statutes, sometimes exist to merely provide guidance or suggestions. The better view is that the five factors listed in the policy paper were no more than examples of ‘other factors’, giving a flavour of relevant considerations, rather than to fetter the discretion of the Home Secretary. This is another distinct sense in which, in addition to the Court’s decision to identify a ‘purpose’ for the policy in the first place, the Court wrongly treated the interpretation of policy here as an exercise in statutory interpretation.

It is true that the policy was written on the footing that ‘not all organisations that meet the concerned in terrorism requirement should be proscribed’ ([92]). This much is clear from the additional requirement of proportionality. Indeed, the word ‘may’ in the first paragraph could well suggest that the Home Secretary has a further discretion, even after satisfying herself that the statutory test is met and proscription is proportionate. But it is hard to see how recognising the limitation identified by the Court is a ‘direct and necessary consequence’ of this footing. The footing is fulfilled by requiring the Home Secretary to conduct a proportionality analysis and consider discretionary factors. Provided the matter is rationally relevant to the proportionality analysis and wider discretionary factors, there is no need, and indeed the Court is not entitled, to read in a further limit.

3. The Home Secretary did consider the particular advantages of proscription on Palestine Action

Even if the Court was right in its conclusion that the consequences of proscription can only be taken into account if they would be unusually effective, a closer analysis shows that the Home Secretary did consider there were particular operational consequences that would flow from disrupting Palestine Action beyond the default benefits that attend the proscription of any organisation meeting the threshold criteria (cf [94]).

In the ministerial submission dated 26 March 2025 (a document the Court itself took into account in concluding the Home Secretary failed to show ‘unusual effectiveness’: see [89] and [94]), the Home Secretary was informed (at paragraphs 30 and 32, which is set out at [43] of the judgment) that proscription gave ‘additional levers to disrupt’ Palestine Action’s ‘operations and critical infrastructure, [ability to] operate overtly and use media platforms to project legitimacy and potentially radicalise people to its cause’ and, without proscription, there is an ‘ongoing risk that [Palestine Action] radicalises more people to join and participate in acts of terrorism’. The advice to the Home Secretary was therefore focused on the benefits to proscribing Palestine Action specifically, not just to any organisation concerned in terrorism. The advice was couched in terms of Palestine Action’s activities and the risk that the PRG believed it posed. Indeed, the ministerial submission reasoned that ‘targeted financial sanctions…would not provide a sufficient level of disruption’ and that the full force of proscription was necessary.

In her statement to the House of Commons on 23 June 2025 (set out at [3] of the judgment), the Home Secretary stated that Palestine Action’s ‘activity has increased in frequency and severity since the start of 2024 and its methods have become more aggressive, with its members demonstrating a willingness to use violence’ (which she provided supporting examples of). She explained how ‘The Underground Manual’ ‘encourages its members to undertake operational security measures to protect the covert nature of their activity’, and how the organisation’s online presence has enabled it to ‘galvanise support, recruit and train members across the UK to take part in criminal activity and raise considerable funds through online donations’. After setting out these specific characteristics of Palestine Action, she stated ‘[w]hat [proscription] will do is to enable law enforcement to effectively disrupt the escalating actions of this serious group’ (emphasis added). Read in the context of the whole statement, the Home Secretary was articulating her view that the consequences of proscription would be uniquely effective to address the specific threats that she perceived were posed by Palestine Action.

This makes the Court’s conclusion at [94] that there was no evidence that, in the case of Palestine Action, ‘by reason of [that] organisation’s structure, membership, activities or otherwise, the measures in the 2000 Act that are the consequences of proscription would be unusually effective’ untenable. The advice to the Home Secretary about the benefits of proscription was not general in nature. It was specific and tailored about how the operational consequences of proscription were needed to effectively disrupt Palestine Action. And the Home Secretary’s statement explained how the consequences of proscription were effective for Palestine Action’s activities specifically. Unless the Court was insisting on the existence of clearer, specific and more direct evidence, it does seem that at least some evidence was available.

Conclusion

One would think that the raison d’etre of the Home Secretary proscribing an organisation is precisely because they want the sweeping operational consequences of the Terrorism Act to attach to that organisation; that they would naturally have thought carefully about how those consequences could, not just disrupt any future terrorist activity, but affect peoples’ rights to freedom of expression and association.

It seems that the Divisional Court now expects the Home Secretary not to mention or give weight to the operational consequences specifically provided for under the Act, unless, by some special reason, the operational consequences would be unusually effective. But its reasoning on ground 6 is unconvincing. Such a limit does not appear from the text, nor is it clear that it was the purpose of the policy (if even necessary to identify such a purpose) to impose such a limit. It is more likely that the purpose of the policy paper was to guide the exercise of discretion, rather than fetter it. In any case, it does appear that the Home Secretary considered how the operational consequences would affect Palestine Action specifically given its escalating activities, covert operations, and effective social media following.

The better view is that the decision to proscribe Palestine Action was not contrary to the policy paper. Given that the Divisional Court held against the Home Secretary on two grounds, showing error on ground 6 alone would not be sufficient for the Home Secretary to succeed on appeal, but nonetheless it remains a crucial starting point to any such challenge.

Dane Luo is the Farthing Scholar in Administrative Law at Pembroke College, University of Oxford.

Gabriel Tan is an MPhil in Law student at the University of Oxford and a future trainee barrister at Matrix Chambers.

(Suggested citation: D. Luo and G. Tan, ‘Non-Textual, Purposive Limits on Policy? The Divisional Court’s Errors on the Home Secretary’s Proscription Policy in the Palestine Action Judgment’, U.K. Const. L. Blog (18th February 2026) (available at https://ukconstitutionallaw.org/))

---