Beyond section 13: will the government dig itself out of its Palestine Action hole?
What appears to be missing from much reporting on this ridiculous hole the government has dug for themselves into over the proscription of Palestine Action is that, actually, there is still a way to dig themselves out of that hole they’ve dug themselves, though with the very kind of assistance of the 474 people heroic enough — and I call them heroes entirey unironically — to be arrested yesterday for unveiling placards nominally in support of Palestine Action .
To recap, 477 people yesterday, and a few previously, have been arrested under suspicion of an offence under section 13 of the Terrorism Act 2000, the key bit of which reads thus [1]
This looks clear cut enough. Palestine Action is now proscribed, and people are holding placard in which they state their support for it.
But, importantly, section 117 of the Act sets out that the police cannot bring these charges other than with the consent of the Director Of Public Prosecutions (DPP). The key bit of that is as follows:
It feels to me that the DPP, Stephen Parkinson, may look at the 474 arrests and say to himself something like:
You know what, we can’t prosecute the lot, and it makes no sense to do so because they are clearly opposing the proscription, not supporting the proscribed organisation, whatever the placards say.
And if Labour is sensible, they’ll have the Attorney General, Richard Hermer, on the phone to the DPP today saying something like:
Stephen, if you decide that prosecution is not in the public interest, that’s cool with me, mate……and if you could also knock out some guidance notes like Keir Starmer used to do when he was DPP, balancing the law against intent and even assessing the role of sarcasm etc, thatd be grand. That one he did on section 127 of the Communcations Act 2003, to stop people being charged when what they did was just a bit of a joke, was really well done and may act as a model.
Now, it’s not clear that Hermer will do anything like this. It looks like he’s already consented to prosecution of three people under section 117, but it;s hard to say whether he just saw this as a bit of admin, whether he consciously thought this would act as deterrent, or whether he genuinely believes everyone holding a placard deserves the punishment set out in statute for the offence of supporting a procribed organisation.
But 474 is a lot more than 3.
This is mass civil disobedience of the type normatively validated in Habermas’ shoud-be-seminal 1985 essay ‘Civil disobedience as litmus Test for the democratic constitutional state’, and should, across any vaguely sensible government, give pause for thought, and allow the DPP to draw back from a series of automatic consents to prosecution.
In turn, this would lead to Chief Constables choosing not to arrange mass arrests, on the basis that charges will not be made, as is their policing prerogative, as well as to the dropping of charges of the three heroic trailblazers.
Alternatively, Keir Starmer as PM, not as DPP may be too stupid, and may not even have read the vital Habermas. Even now, I’d like to think he and his government is not that far gone, but I respect the views that say it is (views expressed in my cackhanded version of this post on Bluesky)
We’ll see.
For avoidance of doubt, I do not support Palestine Action. I do think the 474 people who did-but-didn’t say they did are heroes of civil disobedience, and that their acceptance of arrest and possible punishment may make it all a bit better in the longer term.
Notes
[1] An earlier version of this referred to section 12 as the most likley offence for posecution, but in fact it is section 13, with a lower penalty but still requiring DPP consent. Thanks to Phil Edwards on Bluesky for pointing this out. I feel like a clot because David Renton had already identified section 13 as the charging offence already considered, in his London Review of Books artiblc publsished before this week’s event.
Here is section 12 for reference;
