This post responds to important issues raised by Dane Luo and Gabriel Tan with regard to one of the grounds upheld by the Divisional Court in the judicial review of Palestine Action’s proscription (R (Ammori) v Home Secretary [2026] EWHC 292 (Admin)). The ground was upheld on the basis that the Home Secretary’s proscription decision considered the operational advantages of Palestine Action’s proscription inconsistently with the government’s own proscription policy. The policy refers to factors for the Home Secretary to consider in deciding whether to proscribe an organisation concerned in terrorism and is referred to in this policy paper. A central premise on which the Court’s reasoning hangs is that the policy’s purpose is to impose a limitation on the government’s discretion to proscribe organisations meeting the statutory threshold for being concerned in terrorism under the Terrorism Act 2000.

Luo and Tan argue there are three key reasons to ‘doubt’ the Court’s conclusion, with respect to whether that limitation exists and whether, to the extent that it does, the government’s decision was inconsistent with it. While acknowledging that the Divisional Court’s reasoning would have ideally involved fuller explanations in parts, this post defends its conclusion with respect to both issues. The post argues that there is important context surrounding the power not engaged with by Luo and Tan – such as the role of the policy as an assurance made to Parliament – that helps explain why the policy should be seen to impose a limitation and why the Home Secretary’s decision was not consistent with it.

a. The Divisional Court’s Reasoning and its Limitations

The Divisional Court’s reasoning starts with an analysis of the government’s proscription policy, which is ‘long-standing’ and was ‘first stated in Parliament when the 2000 Act was before it as a Bill’ [37]. The policy document summarising the policy states that ‘[i]f 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’ five factors, amongst them the ‘nature and scale of the organisation’s activities’ and the ‘specific threat that it poses to the UK’.

The Divisional Court’s starting point is that the policy’s purpose is ‘clearly to constrain use of the discretion so that not all organisations that meet the concerned in terrorism requirement will be proscribed’ [83] and therefore to ‘limit use of the discretionary power to proscribe’ [91]. This because ‘[e]ach of the five factors stated on the face of the policy has that effect’ [91]. In this way, the policy is an ‘additional qualitative threshold to the use of the power to proscribe’ [84].

The next step in the Court’s reasoning is that any other factor considered by the Home Secretary must be ‘of the same nature’ and ‘contribute to explain the particular need to proscribe the organisation above and beyond the necessary belief that the organisation is one that is concerned in terrorism’ [91]. The Court reasoned that a consideration of operational consequences is in principle compatible with explaining a particular need to proscribe. This is ‘if in a particular case’, by ‘reason of an organisation’s structure, membership, activities or otherwise’, the Terrorism Act 2000’s measures which are the consequence of proscription would be ‘unusually effective’. The Court then stated that there was ‘no such evidence’ to the Home Secretary’s consideration of the operational consequences of proscribing Palestine Action, as detailed from [31] – [46] of the ruling, had taken this form [94]. Moreover, it could not be said that the Home Secretary’s consideration of operational advantages has been an ‘important matter… if not the central consideration’ in the Home Secretary’s exercise of discretion [94]. Therefore, for the Court, the Home Secretary’s decision had not been compatible with the policy’s limitation. 

With respect to this reasoning, Luo and Tan’s analysis raises important questions and exposes areas which will hopefully receive fuller explanation in due course. Notably, in defending the policy’s limitation below, the post brings in context not explicitly cited by the Divisional Court itself in its reasoning. The precise standards set for considering an operational advantage consistently with the limitation could have been set out in clearer detail. 

b. Additional context strengthening the case for a limitation

Luo and Tan emphasise that nothing in the explicit text of the policy paper limited the factors that the Home Secretary could have considered in the discretionary stage. This is clear from the policy referring to ‘other factors, including…’ when listing the five factors. It is in line with Mark Elliott’s position and does not in itself challenge the Divisional Court’s perspective because, as Luo and Tan go on to recognise, the ‘other factors’ must be ‘read in context’ (citing Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, [18]). Luo and Tan refer to two features of the policy document as relevant context. The first is the three preceding paragraphs in the policy document, which refer to the statutory definitions of an organisation being concerned in terrorism and terrorism itself. For Luo and Tan, these paragraphs mean that 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 authors then highlight that operational consequences fall within the broad berth of ‘other factors’ and are not those that go to whether the organisation itself is concerned in terrorism or actions that concern terrorism. This point does not challenge the Divisional Court, as the policy is only meant to apply to those organisations that already meet the statutory definitions for being concerned in terrorism, as the Court emphasises itself at [83].

Luo and Tan then point to a second context which is that the policy appears in the policy document under a heading referring to proscription being ‘proportionate’. The authors state that proportionality was considered by the Court to be an ‘additional qualitive threshold’ to use the proscription power (though this is how the Court described the policy at [84]). The authors add that considering proportionality will necessarily involve considering proscription’s impact and if the focus is ‘on preventing future terrorist acts’ then effectiveness of operational consequences is ‘highly relevant’ as one factor ‘going into whether proscription is proportionate’.

One issue with this interpretation of the policy document heading is that it does not engage with the reasoning of the Court as to what a proportionality assessment means in relation to the policy from [72] to [82]. It is given a specific meaning distinct from a Bank Mellat proportionality assessment or a more general proportionality assessment as you might find with respect to certain ECHR rights. The Court interpreted the policy’s requirement to proscribe an organisation only if proportionate at [80]. For the Court it meant the Home Secretary must approach the exercise of her discretion ‘comprehensively’. This means ‘to appreciate the likely consequences of proscribing Palestine Action on its members/supporters and others; to understand the nature and significance of Palestine Action by reference to the five stated factors and/or other relevant considerations; and then to assess the need for proscription’.

The wording of the proportionality assessment here certainly doesn’t preclude an assessment of generic operational advantages. However, it is not so clear that such considerations would be a required consideration for the proportionality assessment, as seems to be asserted by Luo and Tan. To the extent that the operational advantages are more generic, they apply to proscription cases generally and so do not seem particularly helpful for assessing a need for proscription in a particular case. Moreover, it is significant that the consideration of ‘consequences’ here is explicitly framed with respect to its ‘members/supporters and others’ rather than the public as a whole (which is more likely to be affected by a terrorism threat and therefore reap the benefit of generic operational advantages). This supports the idea that the proportionality assessment required here is narrower and not focused on preventing terrorist acts. To the extent this is the case, it is likely linked to the fact that crucially, as we will see below, the general advantages of proscription for combatting terrorism were already factored in during the creation of proscription powers under the Terrorism Act. It was precisely these advantages that were seen to justify establishing these powers as permanent and able to be applied anywhere, after they were originally only meant to be temporary and limited to Northern Irish groups.

i. The policy as an assurance to Parliament

The process of creating permanent proscription powers is additional context pertaining to the policy not engaged with by Luo and Tan but which provides further support for the Divisional Court’s conclusion. In referring to the policy, Luo and Tan refer only to this policy paper on the government website. However, as referenced by the Court at [72], the policy existed before its being placed in the document, having been first stated as assurances to Parliament during its scrutiny of the Terrorism Bill. As stressed by the Divisional Court, the policy has ‘remained in materially the same form since’ [72]. The policy was first referred in the House of Commons’ Second Reading of the Terrorism Bill by the Minister of State for Home Affairs at the time, Charles Clarke MP. Following MPs repeatedly expressing concerns about extending the proscription powers due to their breadth, Clarke stated the following:

We are considering which international groups it might be appropriate to add, taking into account such factors as the nature and scale of the group’s activities, the specific threat that they pose to UK and British nationals abroad, the extent of their presence in the UK, and the need to support other members of the international community in the global fight against terrorism. However, I emphasise that proscription is a heavy power; it will be used only when absolutely necessary. It is part of the balance that I mentioned earlier. [HC Deb (14 December 1999) Vol 341 col 227(Charles Clarke MP)]

In this passage, the fact that Clarke referred to the factors before immediately going on to emphasise that proscription is a ‘heavy power’ which will only be used when ‘absolutely necessary’ is significant. It is evidence of a direct link being presented to Parliament ahead of MPs voting on proscription powers between the policy (albeit not articulated in its full form here) and the limited use of those powers. See also the quote below from Lord Bassam of Brighton, then Parliamentary Under-Secretary of the Home Office, during the House of Lords’ Committee scrutiny of the Bill. Before going to list the policy’s factors, he stated that:

It has to be said that it would be excessive to proscribe every organisation in the world that is concerned with terrorism. However, I can give the noble Lord sonic [sic] idea of the factors that will be taken into account, which are fairly obvious. [HL Deb (16 May 2000) Vol 613 col 252 (Lord Bassam of Brighton)]

Lord Bassam’s framing here positions the policy as a form of mitigation against the excess of the proscription power. As the policy is presented to Parliament here, it was clearly meant to have a limiting effect on the discretion to proscribe as part of an assurance that the proscription powers, despite being broad in statute, would be curbed in practice.

ii. The limitation as useful for the government

That the policy would have this limiting role is also consistent with recognised needs to limit the proscription power so that the Government did not have to apply it to all organisations concerned in terrorism, as recognised in the Government Consultation Paper published in December 1998. As previously highlighted by the former Independent Reviewer of Terrorism Legislation, Lord Anderson, the Consultation Paper shows that just before passing the Terrorism Act 2000, the Government had been ‘in two minds’ about whether to extend  proscription power (para 3.46). Such powers had originally been introduced by the Prevention of Terrorism (Temporary Provisions) Act 1974 as temporary emergency measures only to be applied to Northern Irish groups. In the lead up to drafting the Terrorism Bill, the Consultation Paper stated that the Government considered the matter as to whether to make this power permanent and to extend it to non-Northen Irish groups to be ‘finely balanced’ (para 4.17).

The Paper referred to advantages of a ‘wider provision’ being able to ‘deter international groups’ (para 4.14). Here it is made clear that it was the generic operational advantages of proscription which partly justified the expansion of the powers in the first place. Then the Paper also referred to the ‘attendant difficulties’ of extending proscription powers (para 4.16). These included that the ‘potential scope of the list’ of proscribed groups would be ‘very wide’ with ‘literally scores of groups’ being ‘possible candidates’ for proscription (para 4.16).  This long-standing concern with the breadth of the power further supports the idea that the policy was meant to have a limiting effect, to assist the government in managing what could be an unwieldy power without such a limitation.

c. The policy document’s form is compatible with a limitation

The authors make three further arguments with regard to the policy document’s form to show that the purpose of the policy does not impose a limit on the Home Secretary’s discretion. First, they contend that the policy seeks to balance different sets of competing interests – as did the Tesco Stores policy – and so is unlikely to be ‘uniformly concerned with one interest over the other’ and have an overall purpose. Second, this view is further supported by the format of the policy document appearing ‘akin to an information brochure’, which makes it improbable that the purpose was to ‘inherently’ limit the discretion to proscribe. The third point is that the phrase ‘other factors including’ cannot ‘possibly evince an intention to fetter the factors that can be considered’ and it was ‘wrong to reason based on the ejusdem generis canon’ which ‘operates to ensure that a general word will not render specific words meaningless’. Such an approach is less appropriate in policy interpretation (rather than statutory). The ‘better view’ is that the five factors listed were ‘no more than examples’ of ‘other factors’ and give a ‘flavour of relevant considerations’ rather than to ‘fetter the discretion of the Home Secretary’.

The first argument here is questionable given how pervasive policies are which seek to balance competing interests, and which also have an overall purpose. The second argument is also undermined by the fact that the policy existed before the policy document. The third argument appears to elide the idea of the policy limiting discretion with the policy limiting which factors can be considered. As mentioned above, the Divisional Court accepted that the policy does not limit other factors being considered, but emphasises that where additional factors are considered, they must be considered in a manner consistent with the purpose of the policy being to limit the discretion to proscribe organisations concerned in terrorism at [90]. Moreover, the policy’s limitation is already by its nature unlikely to give rise to a fettering of discretion given that it is open to modification and disapplication where this is done expressly and for a sufficient reason, as acknowledged by the Divisional Court at [93].

d. The Home Secretary’s consideration of operational advantages was inconsistent with the limitation  

The third key argument Luo and Tan advance is that the Home Secretary did decide on Palestine Action’s proscription in a manner consistent with the policy, through an analysis of the particular operational advantages of proscribing Palestine Action. They point to two sources of evidence for this. The first is the Proscription Review Group (PRG) advice referred to in the ministerial submission dated 26 March 2025 and set out in [41]-[43] of the ruling. Under the heading ‘[o]perational impact’, the advice stated that proscribing Palestine Action would provide a means to disrupt Palestine Action’s ‘operations and critical infrastructure’, its ability to ‘operate overtly and use media platforms to project legitimacy and potentially radicalise people to its cause’. The advice added that without proscription, there was an ‘ongoing risk that [Palestine Action] radicalises more people to join and participate in acts of terrorism’. Moreover, targeted financial sanctions would not provide a ‘sufficient level of disruption’. The authors argue these references show the advice to the Home Secretary was focused on the benefits to proscribing Palestine Action specifically.

The second set of evidence is the Home Secretary’s statement to Parliament referred to in [3] in which she provides details of the Palestine Action’s activities – referred to by the authors as specific characteristics of Palestine Action – such of its member becoming more violent and demonstrating a willingness to use violence and the group’s ‘Underground Manual’ and online presence was helping to recruit and train members across the UK to engage in criminal activity. By articulating these details and then stating that proscription will enable law enforcement to disrupt the ‘escalating activities of this serious group’ the Home Secretary was, according to the authors, articulating her view that the proscription would be ‘uniquely effective to address the specific threats’ she perceived PA posed, thereby consider operational advantages in a manner consistent with the policy.

It is true that there is evidence with both sets of evidence establishing that the Home Secretary’s consideration of operational advantages reached a level of specificity that took the analysis beyond merely assessing consequences and advantages that apply equally to any organisation that could be proscribed. However, the Court’s bar for assessing operational consequences consistently with the policy requires more than this. It requires an assessment of operational consequences which considers how the organisation’s particular features would make the consequences of proscription ‘unusually effective’ [94].

No doubt some would object to the idea that this could be a legitimate bar for the policy’s limitation to set, as this could limit the discretion to use proscription powers only when the use of the powers would be considered unusually effective. However, such a high bar is consistent with a power that will only be used when ‘absolutely necessary’, as was emphasised to Parliament in the quote above. That the Court would enforce this bar is also consistent with applying ‘anxious scrutiny’ as required in cases involving fundamental human rights. It is also consistent with the Court of Appeal’s dictum in Secretary of State for the Home Department v Lord Alton of Liverpool and others [2008] EWCA Civ 443 which upheld ‘intense and detailed’ judicial scrutiny by the Proscribed Organisations Appeals Commission with respect to proscription-related decisions in light of ‘significant interference with human rights’ being at issue [43].

To the extent that considering an organisation’s particular features with respect to a proscription’s unusual effectiveness must form part of an assessment of operational advantages which is consistent with the government’s policy, the evidence cited by Luo and Tan does not meet this bar. With regard to the first set of evidence, the PRG advice, its crux seems to be that proscription would assist in Palestine Action being able to operate openly including through relying on media platforms. This is a generic analysis, given how many organisations ‘concerned in terrorism’ are likely to be engaged in the same activity. Importantly, for activities to meet the legal definition of terrorism under section 1 of the Terrorism Act 2000, they have to have public-facing elements i.e. be operating ‘openly’ in some way. These are that the activities are ‘designed to influence’ the government or international government organisations or ‘to intimidate the public or a section of the public’ and involve the ‘use or threat’ which is ‘made for the purpose of advancing’ a political, religious, racial or ideological cause. It may be that an organisation can be concerned in this kind of activity to meet these criteria without always operating openly in the way described by the PRG, but it seems probable that many organisations meeting these criteria would, or that it would at least not be unusual for them to operate in this way. Given that the advice was referring to features of Palestine Action’s operations which are fairly common, this cautions against the idea that the PRG’s analysis was considering Palestine Action’s particular features in a manner which considered proscription to be unusually effective in this context, as the Court required. If the particular features were considered in this way, further evidence would be needed than that provided by the Home Secretary.

Similar issues can be raised with the second set of evidence. As with the reference to Palestine Action’s online presence, the other activities mentioned – in the form of training and willingness to use violence – seem like common ones across the kinds of organisations that might meet the statutory definition of being concerned in terrorism, that would be hard to assess in a manner to consider unusual effectiveness of proscription in that context. It may be that the type of escalation described is more specific to the group, though the logical connection between escalation and proscription being unusually effective is not made explicit by the Home Secretary and is thin due to the statement not making clear whether the escalation referred to the organisation’s activities in general or terrorist activities.

There is another reason which is tentatively suggested here for doubting that the Home Secretary did conduct a more particular assessment of proscribing Palestine Action, in the way the Court seems to have required. This is that, on the face of it, it is unlikely that a reasonable assessment of the particular features of Palestine Action as a whole could have led to a consideration of proscription being ‘unusually effective’ due to those features. Key such features the Home Secretary knew about Palestine Action at the time of proscription – such as its high levels of support in the UK and ‘very small’ number of its activities considered to meet the statutory definition of terrorism [138] – would more likely have pointed to operational disadvantages of proscription due to the likelihood of public backlash. Such an assessment seems to have been vindicated following the proscription decision – which appears to have had more than a ‘Streisand effect’ than causing disruption to the group. Thousands having been willing to face criminal charges to protest the proscription, costing approximately £10million to police and some juries are now seemingly unwilling to convict Palestine Action members. Rather than Palestine Action, it is the police who seem to have been most disrupted. The Metropolitan Police has now made a statement it will no longer be making immediate arrests of those seen to express support for the group.  Notably, the policy does not require a reasonable assessment insofar as it does not explicitly refer to a reasonableness standard (though the Court does refer to Wednesbury principles applying with respect to considering other factors at [90]). In any case, the point here is not that the features of Palestine Action referred to above should have forced a specific conclusion on the part of the Home Secretary. Rather, it is that these likely operational disadvantages – linked to key particular features of Palestine Action known by the Home Secretary before proscription – gives further indication that the Home Secretary was not linking the group’s particular features to an assessment of proscription’s unusual effectiveness.

Concluding Remarks

This post has argued that while the Divisional Court could have been clearer in its reasoning and provided fuller explanations in parts, its conclusions with respect to the Home Secretary’s proscription policy and whether it was applied were justified considering important context surrounding the power. This context includes the role of the policy as an assurance to Parliament and protection against the overuse of a broad power clearly designed to be selectively applied.  This is important background to the proscription powers that hopefully will be acknowledged further in the appeals going forward.

The author would like to offer warm thanks to Professor Colin Murray, Dr Leah Trueblood and Paul F. Scott for hugely helpful comments on the piece.

(Suggested citation: D. Lock, ‘In Defence of the Divisional Court’s Palestine Action Ruling’, U.K. Const. L. Blog (2nd March 2026) (available at https://ukconstitutionallaw.org/))