Introduction
The Supreme Court will hear the Home Secretary’s appeal in R (Ammori) v Secretary of State for the Home Department on 4 and 5 November 2026. The case concerns the Home Secretary’s June 2025 decision to proscribe Palestine Action under s.3 of the Terrorism Act 2000 (TA). Hundreds of prosecutions are currently pending in the criminal courts, and many more are in train. Protestors held signs or wore articles intending ‘to arouse reasonable suspicion’ that they supported Palestine Action, an offence under s.13 TA. If the proscription was unlawful these charges fall away.
The case tests the relationship between national security and judicial review. It asks whether the decision to proscribe Palestine Action was a breach of the Secretary of State’s duty to act in accordance with the European Convention of Human Rights. This is a UK law duty under s.6 of the Human Rights Act 1998.
This is the first part of a two-part blog which explains and critiques the Ammori decision. This first post explains the decisions of the Divisional Court (DC) and the Court of Appeal (CA). It is written to set the scene for the arguments we set out in part II, but also to inform public commentary on this high-profile, sensitive case. This Post is organised in five sections. In this section we set out the background to the decision. In the next section we clarify the significance of the Home Secretary’s policy for the decision of the Divisional Court. In Sections 3 and 4 we break down the approach to the balance struck between national security and freedom of expression in the DC and CA respectively. A final section concludes.
Palestine Action describes itself as a ‘direct action’ protest group. Broadly, it aims to mitigate what it regards as Israeli war crimes and genocide in Gaza. Initially its actions targeted facilities related to Elbit Systems. By the time it was proscribed, its activities had expanded to vandalising Jewish-owned businesses and charitable organisations that it claimed were connected to Israeli defence companies.
On the 20th of June 2025, Palestine Action released a video showing two people trespassing at RAF Brize Norton. It claimed to have defaced two military aeroplanes. That night the Home Secretary announced a decision to proscribe it. The government assessed that at least three actions involved sufficiently serious property damage to meet the definition of ‘terrorism’ under section 1 of the Act. An Order was laid before Parliament on the 30th of June 2025 under the Terrorism Act 2000. That order was approved on the 3 July, made on 4 July, and came into force on 5 July 2025.
Huda Ammori, described as a ‘founder’ of Palestine Action, lodged an urgent application for permission to pursue judicial review. In February 2026 the Divisional Court quashed the Home Secretary’s proscription order ([2026] EWHC 292 (Admin)). In June 2026 a five-judge Court of Appeal led by the Lady Chief Justice reversed that decision on both points. ([2026] EWCA Civ 721). The Court of Appeal was careful to present its judgment as an application of recent Supreme Court authority on proportionality in national security cases.
Policy
The Home Secretary exercised the power to proscribe Palestine Action further to ‘a long-standing policy… first stated in Parliament when the 2000 Act was before it as a Bill’ (DC at [37]). The policy specifies five factors the SoS must consider when deciding to proscribe a group. The Court determined that the Home Secretary failed to follow that policy, because she took account of a factor not listed there and which was inconsistent with the factors that were there. That factor was the desire to use proscription to enhance the ‘operational’ capabilities of the police to disrupt Palestine Action as an organisation, and to prevent them from persuading more people to engage in ‘serious high-level activity’ [39]. The Secretary of State considered that proscription provided ‘significant disruptive benefits beyond … current policing powers’ and was an ‘additional lever[] to disrupt [Palestine Action’s] operations’. On the evidence, this factor was ‘a key matter in favour of exercising the discretion to proscribe.’ (all at [88]).
Proscription under the TA is framed as a power, not a duty. It follows that Parliament did not intend that every group whose activities meet the definition of ‘terrorism’ should be proscribed under s.3 TA. The point of the policy was to guide that discretion. But the five factors that the Home Secretary had to consider were not exclusive: the policy also referred to ‘other factors.’ The Court ruled that these words did not authorise proscription on any basis – if they did then there would be little point specifying the first five factors. If the Home Secretary wanted to take account of other factors then these had to be of the same ‘nature’ as the first five: they must contribute to ‘the particular need to proscribe that organisation’ (DC at [91]). The court thought the fact that proscription would make it easier to police the group fell outside that limit in part because the same concern applied to ‘any organisation that could be proscribed’ [94].
The reason why the court thought it was unlawful not to follow the policy was because this was a breach of the Convention and hence of the Human Rights Act. It followed from the fact that the Home Secretary failed to follow her policy ‘that the interference with Convention rights consequent on proscription is not prescribed by law. This conclusion, without more, has the effect that the decision to proscribe Palestine Action was in breach of section 6 of the HRA.’ In this context, the words ‘prescribed by law’ do not refer to ‘law’ in the familiar sense of ‘legislation’ or ‘case law.’ As Lord Sumption said in Al-Waheed v. MOD, law has an ‘enlarged meaning which… extends to any body of rules which is enforceable, sufficiently specific, and operates within a framework of law, including public law’ ([2017] UKSC 2 at [106]). In other words, it is only lawful to delimit Convention rights if those limitations were expressed in a body of specific rules.
Unless a decision is prescribed by law in this sense, there is no need to decide whether a proper balance has been struck (R (Craig) v. HM Advocate [2022] UKSC 6 at [50]). Nevertheless, the Divisional Court still went on to conclude that the decision did not strike a fair balance between the public interest in national security, public order and public safety and the public interest in freedom of expression and freedom of assembly. That conclusion was strictly obiter: it is an epilogue to the technical reason for the decision. We only get to proportionality if the interference is prescribed by law and necessary in a democratic society.
The Court of Appeal thought the policy should be regarded as a public information document, ‘brief, unsophisticated and open-textured.’ It thought the Divisional Court had read it in an ‘excessively analytical’ way [82, 88]. The Divisional Court found that the policy limited the Home Secretary to consider only such of Palestine Action’s ‘activities’ as amounted to acts of ‘terrorism’ under s. 1 TA. The Court of Appeal disagreed. It thought all of the activities of an organisation, for instance how it raises funds or recruits new members, are lawfully relevant to a proscription decision – and hence to its proportionality. This is because proscription is fundamentally about assessing ‘the risk of future acts of terrorism’ [89].
One key difference between the two judgments is their approach to policy, and in particular, to how a policy can specify which factors lawfully count when assessing whether to proscribe an organisation. The Divisional Court was concerned with what the organisation had done. It thought this was a fact-based question that the Court should answer for itself. The Court of Appeal focused on what the organisation might do in the future. It thought this was a question about risk, which the government was best place to answer.
Proportionality in the Divisional Court
Ammori is important to the people who have been prosecuted for expressing support for Palestine Action. It is also important to national security lawyers for technical reasons. Its technical importance has to do with the way in which the courts approach the government’s duty to comply with the Convention under the Human Rights Act. Lawyers call this balancing exercise proportionality. Above, we explain why we think proportionality was strictly parenthetical to the reasoning of the Divisional Court. Nonetheless it was a key point of disagreement, and we think it will be the most important legal issue in the Supreme Court.
In Ammori, the Divisional Court concluded that the offences triggered by proscription under sections 11, 12 and 13 TA constitute ‘a very significant interference’ with the rights to freedom of expression and freedom of association under the Convention [105-106]. This interference included a chilling effect on others who would self-censor themselves for fear of violating the Act. The finding of a very significant interference was qualified by the finding that proscription of PA does not prohibit expressions of support for ‘the general Palestinian cause’ [DC 124].
But the fact that government action ‘interferes’ with a right is the beginning of the inquiry, not the end. As we say above, the court then considers whether the interference is necessary in a democratic society and prescribed by law. If it is, and the right is a qualified right, they assess the balance struck between that freedom, and the interest that qualifies the right. Freedom of expression is a qualified right, which means the interest in speaking freely is qualified by other public interests, including public safety and national security. The Divisional Court assessed the lawfulness of the balance struck using a four-stage test (DC [77]-[98]):
- Does the impugned measure aim to address a sufficiently important public aim to justify the interference with a protected Convention right?
- Is there a rational connection between that aim and the measure?
- Were there any less intrusive options available to the decisionmaker?
- Did the decision strike a fair balance between the public interest and the protected rights of those affected?
The first three steps were uncontroversial in the Divisional Court. It is possible to characterise the government’s objective narrowly or broadly. The Divisional Court thought the Home Secretary’s objective was ‘controlling terrorism’. It agreed this was important. But crucially it only thought that activities that constituted ‘terrorism’ under the definition in s. 1 of the Act were relevant to proportionality. It thought there was a rational connection between that objective and the decision to proscribe [DC 128-129]. It rejected three arguments that this could be done through less intrusive measures. The suggestion that civil injunctions should have been used was rejected as impractical and unprincipled: it meant the victims of PA’s attacks would bear the responsibility and cost. Asset freezes and criminal behaviour orders would not achieve the same objectives as proscription not least because PA was such a diffuse group. Relying on the ordinary criminal law was the equivalent of doing nothing [DC 131-134].
The key technical point has to do with what counts as a fair balance. This final part of the proportionality test is a relative latecomer to UK law. It was added in Bank Mellat [2013] UKSC 39, another case where the claimant persuaded a court that its designation as a threat to national security was unlawful. The Court in Ammori found that it should give ‘some latitude’ to the Home Secretary given her political and practical responsibility for public safety. However, it was premature to proscribe Palestine Action as their terrorist acts – those which crossed the section 1 threshold – had ‘not yet reached the level, scale and persistence that would justify the application of criminal measures that are the consequence of proscription, and the very significant interference with convention rights consequent on those measures.’ [DC 138-140]. The proscription decision was therefore a disproportionate interference with protected rights, and unlawful. Illegal protests could be dealt with through the criminal law, including those few actions that did amount to terrorist action for the purposes of section 1 TA. Those offences carried significant punishment, including sentences up to life imprisonment for the single count of section 18 grievous bodily harm.
We should be clear about whose rights were in play here. The court was not concerned with the rights of those activists who would engage in illegal protest activity of the kind that gave rise to proscription. Nor was it concerned with the rights of those who subsequently chose to engage in civil disobedience to protest the proscription decision itself, inviting arrest under section 13. Little weight attached to those individuals as they were deliberately inviting arrest [118]. The Divisional Court instead found the interference ‘applies to everyone, anyone who might wish to associate with Palestine Action, and not just those who, at the point of proscription, were members or supporters’ [105]. The courts rejected the suggestion that supporting the wider Palestinian cause or opposing Israeli actions and organisations would be interfered with to any serious extent [116-124].
Proportionality in the Court of Appeal.
The Court of Appeal strongly disagreed with the Divisional Court’s approach. It underlined that the Divisional Court had not mentioned the recent decision of the Supreme Court in Shvidler [2025] UKSC 30, which has an important bearing on the proportionality test. Shvidler concerned sanctions against a Soviet-born businessman following Russia’s 2022 invasion of Ukraine. The majority held that the court must make its own assessment of proportionality, is not bound by a rationality standard when so doing and can find a measure disproportionate, even where the decision-maker considered everything relevant and acted rationally (Shvidler [120-122]). The Shvidler methodology may be summarised as follows:
- Establish an appropriate ‘margin of appreciation’.
- Apply the four-stage balancing test set down in Bank Mellat, with the ‘margin of appreciation’ factored in at each stage.
The Supreme Court in Shvidler highlighted dicta that the government’s view must be granted a wide margin of appreciation at all four stages of the proportionality test, including the summative ‘fair balancing’ stage (at [120]). In Part II, we will say a little more about the technical meaning of the margin of appreciation. For present purposes, suffice to say that it refers to the weight or respect granted to the government’s decision. The appropriate degree of respect in the balancing stage varies with ‘the importance of the right, the degree of interference and the extent to which the courts are more or less well placed to adjudicate’ ([124] – see also Lord Carlile’s Case [2014] UKSC 60). But the majority also emphasised that the government has no special claim to assess the impact of a measure on the individual complainant – the Court must do that for itself [126].
The Court of Appeal began with the calibration of the margin of appreciation. In the Court of Appeal’s view, proscription is a not a punishment but a preventative measure. It demands an assessment of the risk posed by the organisation in the future. It is therefore an area in which a large margin of appreciation must be afforded the government. The Court cited authority from a range of cases, including Shvidler, U3 [2025] UKSC 19 and ABJ [2026] UKSC 8, and instructed itself that the appropriate margin is determined by the importance of the right interfered with, the degree of interference, and the extent to which the courts are best placed to adjudicate the balance on grounds of institutional expertise and democratic accountability – which it found the Home Secretary has and courts do not [CA 105, 107, 116]. The Court decided the Home Secretary enjoys a ‘wide margin of appreciation (or respect) in making her judgment on the importance of the objectives, the rationality of the connection between them and proscription, whether less intrusive measures could apply, and whether a fair balance has been struck insofar as the public interest factors are concerned’ – all four stages of the Bank Mellat test [CA 116].
The first two stages were treated briefly by the Court of Appeal. The CA agreed with the DC that the government’s objective was important. But it made it clear that the ‘objective’ was not ‘controlling terrorism’ but the ‘interests of national security’, and ‘the protection of the rights and freedoms of others: those targeted and impacted by Palestine Action)’ [119-120]. This is significant. Recall that the Divisional Court framed the Home Secretary’s objective as ‘controlling terrorism’ [128]. The Court of Appeal made it clear – correctly – that this part of the assessment is anchored in the Convention. The question is whether the government’s objective is sufficiently closely related to the interests specified in the Convention, which include national security.
The rational connection to that objective was also uncontroversial [121-123] and the Court of Appeal broadly agreed with the Divisional Court on less intrusive means. It added that proscription is a pre-emptive tool [136], that the Home Secretary had considered lesser measures, and her conclusion on the effectiveness of those alternatives deserved deference. That was not important, because on the Court of Appeal’s own assessment there were no less-intrusive measures available that met the objective. [141]
Turning to the critical fourth step, the Court considered factors for and against proscription. In light of the stark approach to the first three questions, and the strict connection to the Convention, these factors come across as quite sundry. the Court of Appeal began by setting out ‘basic parameters’ [144]. It agreed with the Divisional Court that Palestine Action was not engaged in the tradition of civil disobedience on conscientious grounds and cannot be characterised as a non-violent ‘direct action protest group’ in the tradition of the suffragettes and the campaigns against apartheid and the Iraq war [CA 150, DC 29-30]. (As Conor Gearty observed, the suffragettes did engage in acts of terrorism on the terms of the Terrorism Act and the state responded in kind: ee ‘The Suffragette Movement and Civil Liberties’ [2025] 84 (3) CLJ 602-629).
Addressing ‘factors against’, the court accepted that there would be a significant number of people who would be dissuaded against expressing support for Palestine or opposition to Israel, the IDF, or Elbit systems—even though those people would be doing so on the basis of a misapprehension of the law [CA 153]. There would be some people who wished to support PA as an organisation whose rights would be interfered with [CA 154]. It also noted that there had been a limited number of terrorist activities, that proscription may be regarded by some as heavy-handed, and that most proscribed organisations primarily seek to do violence to people, not to things [155].
In favour of proscription, the Court emphasised that the aim was both to prevent further terrorist actions, and to protect the rights of those affected by such actions. It restated its findings concerning the nature of Palestine Action as a ‘covert organisation that has revealed little about itself in these proceedings’. The Underground Manual shows that its methodology is to operate in a cellular structure to make operatives difficult to detect [160]. It sought, again, to distinguish Palestine Action from the suffragettes. Its whole purpose was damage to Elbit and other companies lawfully operating in the UK, and the entirety of its operations and characteristics could lawfully be taken into consideration.
Next, the threat posed by PA was considered, with emphasis on policing and security reports presented to the Home Secretary that assessed that PA would continue to engage in terrorist actions causing serious damage and intended to escalate the campaign [CA 167, 169], relevant factors that were expressly listed in the proscription policy. Third, the benefits of proscription were considered, which primarily meant operational benefits. Proscription would impact PA’s recruitment, finances, and technical security measures, all of which are otherwise hard to police [172]. Looking at all the materials, the Court of Appeal satisfied itself that proscription was a justified and proportionate interference with ECHR rights [175].
There are several key distinctions between the two courts, besides their stance on the importance of ‘other factors.’ As we say above, the Divisional Court’s approach was mainly concerned with what Palestine Action had done, while the Court of Appeal was more broadly concerned with what it might do [CA 178]. The action at RAF Brize Norton in June 2025, which served as the trigger for proscription, was an important example. The Court had heard argument as to whether throwing paint on surveillance aircraft was an act of terrorism. It ultimately found that, on its approach, it was unnecessary to decide that question – the damage to military aircraft underlined the escalating strategy of PA and showed how it threated the interests of UK national security [179]. For the Divisional Court, only three ‘terrorist’ incidents (meeting s.1 TA’s definition) counted in favour. For the Court of Appeal, a much longer list of factors went on to the scale on the side of proscription.
Conclusion
The point of this Part is to explain, and to clarify, the differences between the Divisional Court and the Court of Appeal in the Ammori litigation. The two key issues – policy and proportionality – are connected, but separate. In Part 2, we will explain why we disagree with the approach of both the Divisional Court and the Court of Appeal on each of these issues.
(Suggested citation: B. Keenan and E. Smith, ‘Proscription, Proportion, and Palestine Action – Part 1’, U.K. Const. L. Blog (2nd November 2026) (available at https://ukconstitutionallaw.org/))
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