Category: National Security

Some preliminary thoughts on the Court of Appeal decision on Palestine Action

16th June 2026

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Why it is important to understand how (bad) law is structured

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Yesterday the Court of Appeal handed Palestine Action a heavy defeat, reversing a favourable High Court decision.

The Court of Appeal decision is here.

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This blog does not support Palestine Action or any other proscribed organisation, but this blog often looks at the use and misuse of terrorism and other coercive laws. And on the face of it, it does look like terrorism law is being misused, at least in respect of the mass arrests of people for merely holding signs expressing support for Palestine Action.

For hundreds, if not thousands, of people are facing criminal sanctions for a speech act: according to the judgment 2,000 have been arrested and “there are currently over 700 cases pending in the criminal courts of England and Wales, and many more at the pre-charge stage”. This would appear to be a ludicrous situation and not a use to which one would expect terrorism law to be put.

(Terrorism law is a special body of law, in addition to the general civil and criminal law of the land, which provides the state with powers, rights, and obligations for the particular purpose of dealing with terrorist threats.)

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On a preliminary reading of the judgment, and having watched (in a boon for the public understanding of law) the Court of Appeal’s decision on YouTube (watch here), these are some preliminary thoughts which this blog may develop further in another post.

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First, this decision is more in accordance with the deferent general policy of the courts on national security than the somewhat surprising High Court decision. In essence, Palestine Action were lucky at first instance and it was perhaps unrealistic to expect that luck to hold before the Court of Appeal.

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Second, the fundamental issue is that the restrictions on free expression (for expressing support for a proscribed organisation) is just one of many aspects of proscription. Proscription of an organisation confers on the state a whole range of powers, of which prohibiting expressions of support is just one. So if a proscription is quashed, then the state loses all these other powers.

This means that if a court holds that a proscription has a disproportionate impact on the free expression rights of individuals there is perhaps nothing a court can really do but quash the proscription for other purposes too. A court will be hesitant to do this.

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Third, if a court can somehow decide that free expression rights are not being disproportionately interfered with, it can avoid quashing the proscription. Here the Court of Appeal stated: “That said, however, as a matter of law, the Proscription Decision will not prevent public expressions of support for the Palestinian cause or opposition to Israel and to the Israeli Defence Force, or demonstrations targeted at Elbit.”

And so the Court of Appeal found that the impact on free expression of the proscription was not disproportionate. The problem was avoided.

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And this leads to the fourth point.

The real problem here is that section 12(1A) of the Terrorism Act 2000 (which was only added in 2019) should not be in the Terrorism Act at all.

Section 12(1A) of the Terrorism Act prohibiting support for proscribed organisations.

This prohibition on simply expressing an opinion is, of course, problematic generally.

But if a court quashes a proscription because the effects of the section 12(1A) prohibition is disproportionate then all the proscription powers go too.

A court will then strain, as it seems the Court of Appeal did here, to find that the proscription does not have a disproportionate effect.

From time to time a court, such as the High Court at first instance in this case, will quash such a proscription decision for its disproportionate effects on free expression, but such a quashing order is unlikely to survive appeal.

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Fifth, this appeal decision looks balanced in form (with lots of consideration of opposing factors) but in substance it seems fairly appeal-proof.

(And the current Supreme Court is also not likely to go against the government on national security.)

The Court of Appeal had what was a ‘strong’ bench, with the Chief Justice, the Master of the Rolls, the Vice President of the Court of Appeal Criminal Division, and two other senior appeal judges. Usually an appeal bench is of three judges, but here it is of five, and they were unanimous.

Unless this case goes to Strasbourg then this decision looks like the end of the road.

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And finally, the Court of Appeal in this case made, in passing, some ill-advised historical generalisations about the Suffragettes and other groups.

This historical dabbling will rile anyone with the relevant knowledge of history, and it should have been avoided by the judges, unless it was relevant to a question they had to decide. But to make such points for the purpose of illustration simply made the judges seem historically illiterate. The judges may well come to regret making those points.

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The curious section 3 of the new National Security Act

10th March 2026

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Hello and welcome to The Empty City blog, the new name of which is explained here.

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A broad and vague provision may be a cause for concern

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Last week I was asked to write a piece on the arrests of three individuals in respect of Chinese espionage. One of the individuals was noteworthy, partly because they are married to a member of parliament. It was quite a news event and the New Statesman wanted someone to explain the relevant law.

As is my general approach, I did not mention the individuals or comment on the potential merits of any legal aspect of the case. The individuals are presumed to be innocent until proven guilty, and the recent history of espionage arrests indicate that there is a fair chance the cases go no further. The job of the responsible legal commentator in such circumstances is only to set out the applicable law.

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I assumed this would be straightforward: an exposition of section 1 of the new National Security Act 2023, which more-or-less replaced the old (and infamous) section 1 of the Official Secrets Act 1911.

But when I looked at the Metropolitan Police press release (always look at original documents when you can, rather than relying on reportage) I noticed something curious.

The arrests were not under section 1 of the new Act.

The arrests were instead under section 3 of the new Act.

Three people arrested under National Security Act Three people have been arrested as part of a Counter Terrorism Policing investigation into suspected National Security Act offences. The men [A-C] were arrested on Wednesday, 4 March on suspicion of assisting a foreign intelligence service, contrary to section 3 of the National Security Act, 2023. The country to which the investigation relates is China.

With emphasis added:

“Three people arrested under National Security Act

“Three people have been arrested as part of a Counter Terrorism Policing investigation into suspected National Security Act offences.

“The men [A-C] were arrested on Wednesday, 4 March on suspicion of assisting a foreign intelligence service, contrary to section 3 of the National Security Act, 2023. The country to which the investigation relates is China.”

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Section 3 of the new Act is in respect of “Assisting a foreign intelligence service” as opposed to section 1 which is in respect of “Obtaining or disclosing protected information”.

It is a fascinating provision, which you should read in full. In essence it provides for two similarly worded but significantly different offences.

First section 3(1):

“(1) A person commits an offence if the person—

“(a) engages in conduct of any kind, and

“(b) intends that conduct to materially assist a foreign intelligence service in carrying out UK-related activities.”

And then section 3(2) (emphasis added):

“(2) A person commits an offence if the person—

“(a) engages in conduct that is likely to materially assist a foreign intelligence service in carrying out UK-related activities, and

“(b) knows, or having regard to other matters known to them ought reasonably to know, that their conduct is likely to materially assist a foreign intelligence service in carrying out UK-related activities.”

Section 3(3) then provides (emphasis added):

“Conduct that may be likely to materially assist a foreign intelligence service includes providing, or providing access to, information, goods, services or financial benefits (whether directly or indirectly).”

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The section 3(1) offence is an “intention” offence.

If you look carefully, however, you will notice something which is not there. The person does not actually need to communicate anything to the foreign intelligence service. The person merely has to engage in “conduct of any kind” – even if not communicated.

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The section 3(2) offence is not an “intention” offence.

Here, the person does not even need to intend to assist foreign intelligence service. Indeed, the foreign intelligence service may not even be aware of it.

The conduct only needs to be “likely” to assist, regardless of intention.

They do not even need to know they are doing it, but “ought reasonably to know”.

And again there does not need to be any communication with the foreign intelligence service – the foreign intelligence service may not even be aware of it.

On the face of it, the section 3(2) offence would cover a hobbyist following foreign affairs or even a journalist, “indirectly” providing access to information on (say) their website or reportage, even if they do not intend to assist a foreign intelligence agency, but in the opinion of the courts “ought” to have known that it would assist a foreign intelligence agency.

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There are some statutory defences to the section 3(2) offence, listed at section 3(7), but these are strictly limited in scope.

Perhaps there are provisions elsewhere in this complex legislation which mitigate the potential effect of this provision – and if so I will update this page.

Perhaps the the courts will anxiously scrutinise any application of the section 3(2) offence when it impacts upon freedom of expression and the right to share and impart information on matters of topical and public interest.

(Ho ho.)

Perhaps there is nothing to worry about.

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But.

Section 3(2) is a broad and vague provision.

One can see why the government and the security services want a broad “conduct” approach which would capture any imaginative ploy used by the culpable.

But in doing this there is a risk – as elsewhere with terrorism and national security legislation – that the prosecutorial convenience of the government and the security services is at the expense of clarity and free expression rights.

It will be interesting to see how this section 3(2) offence is used in practice.

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This post is also cross posted at The Empty City substack, which is run in parallel with this blog.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.