Palestine Action Supreme Court Hearing Day 1

Former Ambassador, Human Rights Activist

It was a remarkably mild early November morning at 6am as I left the Chelsea Cloisters apartments to get the tube to Westminster and the Supreme Court. I had been worried because I had forgotten to pack my thermal underwear.

I had queued overnight for the Assange hearings, the Salmond trial and the ICJ Genocide case – the latter in minus 5 degrees at The Hague – and thermals were an essential part of the kit. On the first night for the Assange hearings, at Woolwich Crown Court, I stood for seven hours in freezing drizzle with Patrick Henningsen and Randy Credico. Immediately that first day in court finished, I headed to Mountain Warehouse to buy a large, warm, waterproof jacket.

I found the one I wanted which was on sale, and tried it on. I then took it to the counter and explained to the young lady that it was labeled XXL, but I couldn’t get the zip to do up. She looked at me coolly and replied “fat people don’t climb mountains”.

My ego somehow survived, and now as I approached the Supreme Court I saw the flashing orange lights of three trucks parked outside, and hear the ringing metallic sound of crews putting up metal crowd barriers around the building. I had slightly worried I was late for the queue, but there was only one tall young man sitting on the benches outside. He was a journalism student from City University, and neither of us having anything else to do, he interviewed me.

There were three men in sleeping bags along the front of the court building, one right across the door. We speculated as to whether the were part of the queue or simply homeless. As barriers were clamped into place behind us, we worried where the front of the queue was meant to be. I approached the hi-viz wearing man who looked in charge. He had long hair and beard and a friendly open face. He wore a builder’s helmet, presumably in case the Supreme Court somehow fell on top of him.

“Do you know what the system is for installing these barriers?” I asked,

“I’d be pretty bad at my job if I didn’t”, he replied.

I explained we were the queue. He laughed and said we were fine where we were. About five minutes later the crew left with two and three quarters trucks still full of barriers, presumably to cordon off somewhere else. Their work was inexplicably pointless – they had created narrow a pen on the pavement behind us, which led nowhere, finished twenty yards from the court entrance and left a thirty yard gap anybody could walk past to the court on the West side.

I pointed out to Tony this seemed strangely pointless and he said its purpose might become clear later. It didn’t, Nobody ever entered the pen and it didn’t stop anyone going anywhere.

His name, incidentally, probably wasn’t Tony. I introduced myself but he didn’t volunteer a name so I didn’t press him.

At 7.30am a young lady arrived. She was pleasant and joined our conversation but again did not give her name. She worked for a Westminster lobbying company, so I would assume was in the Israeli interest. It was 8.45am before a real queue began to gather. Public information had been that doors would open at 9am and they did, but we were kept standing outside until after 10am.

There was then a great disappointment as an official arrived and told us no members of the public would be admitted to the courtroom. Court No 1, he explained, has no public gallery and all the rows of benches would be fully occupied by the legal teams. The public would be allowed into an overspill Court No3, where screens were set up.

This was very annoying. It was also later plainly observable on the screens that the official explanation of no seats being available was untrue. Exactly the same thing had happened at the High Court hearing. I have no doubt that “security” was the motivation, and having designated Palestine Action supporters are terrorists, they were determined to treat any of the public interested in the case as potential terrorists.

The building is a very late flowering of Victorian medieval revivalist architecture and was originally Middlesex County Council. When the Supreme Court was established a quarter century ago, it was converted to the purpose, the county of Middlesex itself having essentially already been abolished. It is rather a good building, which is important as a close neighbour to Westminster Abbey. Unfortunately the principle of open justice had not been applied in its conversion to the creation of public galleries.

Today was the last gasp of the UK legal system in challenging the legality of the proscription of Palestine Action, in the case brought by its founder Huda Ammori. This judicial review had proceeded through the High Court, which found the proscription unlawful, and Appeal Court, which found it lawful. As the process went through these courts, the grounds for permitted appeal were whittled down until only one was allowed: whether the effect of the proscription on Article X and XI rights (freedom of speech and freedom of assembly) were disproportionate in terms of what was necessary to protect the public from the terrorist organisation.

Articles X and XI are from the European Convention on Human Rights, enshrined into UK law by the Human Rights Act.

In the Supreme Court they do not wear old horsehair wigs and gowns, including the judges. This felt rather strange as such costume had been worn at all the prior stages. The five judges were situated on a curved dais, with the lines of lawyers below them.

One problem with not being in the courtroom was that, every time a judge spoke, the camera immediately cut to that judge in close up. The judges all looked extremely similar – white men aged about sixty in suits and ties. It was very difficult to tell in close-up which judge was which. Some of the identifications in this account are therefore almost certainly wrong, but not deliberate.

When you think about it, in our society the difficulty of telling Supreme Court judges physically apart is possibly a problem?

Raza Hussain KC opened for Huda Ammori. Raza seemed a much more imposing figure without his wig and gown, and spoke with a force and fluency that I had not really seen in full flow in the earlier hearings.

His first point may have been excellent but as the screens in Court Number 3 had no sound for the first five minutes I did not catch it. We therefore join him at point number 2.

2) Hussain said that Palestine Action was not a terrorist group, but a protest group that takes direct action. He said it could only be caught by stretching the outer limits of the definition of terrorism in the Terrorism Act, a definition which the Supreme Court had already described in an earlier case as “striking in its breadth”.

3) Hussain said that according to the Home Secretary herself, the vast majority of Palestine Action’s activities did not fall within the definition of terrorism. Only 3 actions out of 385 were so described. Yet these three were used to make all fall as terrorism.

4) Unlike other proscribed organisations, the objectives of Palestine Action were in line with the principles of liberal democracy. They simply wished to impede genocide and war crimes.

5) Contrary to the Appeal Court judgement, Palestine Action did fall within the tradition of other direct action groups, such as the suffragettes, environmentalist and animal rights groups, which were not treated as terrorist.

6) Important civil society groups such as Amnesty, Liberty and PEN, and international organisations had expressed opposition to the proscription

7) Proscription of Palestine Action had wider effects on public confidence in the proscription regime itself, and in the Terrorism Act. There was public revulsion at the arrest of over 4,000 for supporting Palestine Action, many of them elderly and distinguished.

8) Proscription of Palestine Action was prone to upset the court’s judgements in many other compatibility cases over the years. (A compatibility case tasts whether a law is compatible with the Human Rights Act). The decision on proportionality of the effect on civil liberties must itself depend on whether the anterior exercise of the proscription power itself was proportionate to the alleged threat.

If an elderly and distinguished person arrested for expressing non violent support for Palestine Action were to win a case against their arrest at the European Court of Human Rights in Strasbourg (he gave the example of an 81 year old female Christian ex-magistrate arrested at a vigil at a Truro church), that could strike down all the Supreme Court’s previous decisions on Section 13 of the Terrorism Act (expressing support for a terrorist organisation) where other, real terrorist organisations were concerned.

This last was a very good argument I had never heard before, and one tailored to meet the sensibilities of a court with no interest in civil liberties. Maintaining this absurd proscription could ultimately result by the law of unitended consequences to more freedom of speech, not less).

Lord Sales now interrupted from the judicial bench to ask whether Hussain’s description of just three terrorist incidents included that at RAF Brize Norton.

Raza Hussain replied that incident did not meet the bar of Terrorism. It should rather be seen in the light of the famous Margaret Jones case, which was not assessed by anybody to be terrorism. The anti-militarist tradition is not terrorist.

Lord Sale then asked whether the proportionality exercise should not be conducted  by this court on the facts as of now, as opposed to the facts at the initial hearing. Hussain replied that Lord Justice Lewis had ruled at an earlier stage that material that had happened after the initial Divisional (High) Court ruling was not admissible.  Lord Stepehns aske why the Court of Appeal had made this ruling.

There was a hiatus as everybody in court went through sheaves of papers looking for the answer to this question, but nobody seemed able to find one.

Lord Sales asked why Hussain said Brize Norton was not a terrorist attack. Raza Hussain re[lied that it was the Secretary of State’s judgement it was not a terrorist attack. He suggested the government lawyers might explain that. Lord Sales said he was asking Hussain why he would say it was not terrorism. Hussain replied because of the limited amount of damage done, and because of the Jones case.

Lord Stephens then interjected that RAF planes had been damaged. Why was that not terrorism? Raza Hussain said that was a precise comparison to the Jones case which was judged not terrorism. The Jones case involved attempted arson at RAF Fairford. The Brize Norton case was merely spraying paint.

Lord Briggs said that surely the seriousness of damage depended on what the paint was sprayed upon? There was a difference between psraying paint on a railing and spraying paint on a Van Gogh. Lord Sales then asked why it was not for the Supreme Court, rather than the Secretary of State, to decide whether Brize Norton was terrorism?

James Eadie KC for the government intervened to say that the extent of the damage at Brize Norton was the disputed subject of a current criminal trial. But there were other factors to be considered in determining whether an incident was terrorism.

Lord Sales said Raza Hussain appeared to accept it was for this court to determine whether Brize Norton was terrorism.

Raza Hussain suggested that whether one individual act was characterised as terrorism was not determinative of the proportionality of the interference with Article X and XI rights. The definition of terrorism in UK legislation is very broad. The power to proscribe is very broad. The effects of proscription are very severe. The “guardrails” provided by the Convention rights were therefore very necessary.

He outlined the draconian powers of the act, in empowering the police to arrest people on suspicion of supporting Palestine Action, and criminalising speech which could lead somebody else to support Palestine Action, irrespective of whether that was the intention of the speaker.

Lord Stephens asked whether speaking against the proscription of Palestine Action, rather than in support of Palestine Action as such would be an offence. Raza Hussain replied that people are being arrested for doing exactly that.

Lord Sales asked whether, if he wrote a judgement opposing the proscription of Palestine Action, that would itself be an offence. Raza Hussain replied that on the ground people were being arrested for just opposing proscription, as well as those being arrested specifically for supporting Palestine Action.

Lord Briggs said that people opposing proscription were not necessarily supporting Palestine Action, and therefore there was no offence. Raza Hussain said that it was an offence under the Act to make a statement that gave rise to a suspicion of supporting Palestine Action. People opposing proscription were being arrested for that. These offences carried up to 14 years in jail.

Lord Reid said that if an academic published “I understand why Hamas (also a proscribed organisation) did what they did”, that would not be actionable.

Raza Hussain said people simply do not know what they may or may not say. There is no clear line. That is precisely the chilling effect on free speech.

I must break now to go back into court on the morning of day 2. I will continue this account afterwards. Production of Day 1 was delayed because, when I got back to Chelsea Cloisters last night, my room had been broken into. This was done with force, the door jamb split apart. Nothing was taken from my room, including cash on the table nor my laptop. I reported to the front desk who came and took photos, but they have to apply to an outside security company for the CCTV footage.

OK, back to court.

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