Since Palestine Action (PA) was proscribed by the British government earlier this month, a series of protests have highlighted the injustice of that decision. In a democracy, we expect public opinion to prevail over — and shape — government policy. In Britain, 55 percent of people oppose Israel’s war on Gaza, a conflict only 15 percent of us support. Nearly half the population believes that Israel’s actions amount to genocide. Still, we supply weapons to Israel, including components for that country’s F-35 jets, a policy recently upheld by the High Court as lawful.

On 4 July, there were 29 arrests of campaigners holding placards that declared — in identical wording — their opposition to genocide and support for PA. One of those arrested was Sue Parfitt, an 83-year-old priest. Those held were then charged under Section 13 of the Terrorism Act 2000, which, among other things, prohibits campaigners from ‘display[ing] an article’ that indicates their support for a proscribed group. The maximum sentence is six months in prison.

Further arrests under Section 13 were made the following weekend, as 42 people were held in London, 13 in Cardiff, 16 in Manchester, and one in Leeds. On this occasion, protestors were more eager to test the boundaries of what constitutes support under the Act: in Scotland, one campaigner was arrested for wearing a t-shirt which read, ‘Genocide in Palestine. Time to take action’, with the words ‘Palestine’ and ‘Action’ in a larger-sized font.

The next PA court case is due to be heard in the High Court next week. Those who support the organisation have good reason to believe they can win — either in the High Court or at a subsequent hearing.

One reason for optimism is that senior judges have associated themselves with free speech in recent decades. Under John Major’s government, and the liberal senior judiciary at that time (Lords Bingham, Hoffman, Lord Justice Brooke), a series of decisions showed respect for free speech, which is the ‘trump card which always wins’. After Brexit was passed, attempts were made to protect the rights established in the European Convention on Human Rights by relabelling the right to a fair trial and free speech as fundamental principles of our common law. Although that move has not been sustained, it was a genuine matter of consideration in the mid-2010s. More recently, several judges have associated themselves with the push to protect racist, transphobic, and far-right forms of expression. But this requires the courts to say that all speech should be free, and it is hard to sustain that claim without also protecting PA and other forms of pro-Palestinian speech.

Furthermore, at the two hearings which have so far considered PA’s proscription, judges have conceded that the decision to ban PA crosses lines previously uncrossed. At the first round of court proceedings, in the High Court on 4 July, Mr Justice Chamberlain accepted that PA had not participated in ‘violence against any person or endanger[ed] life or create[d] a risk to health or safety’. The problem for PA, Chamberlain pointed out, was that the legislation permitting the Home Secretary to proscribe organisations as terrorists goes far beyond the popular usage of the word ‘terrorist’ in ‘colloquial’ contexts. Section 1 of the Terrorism Act 2000, introduced by Tony Blair’s New Labour government in the aftermath of 9/11, permits ministers to ban groups who do not cause fear but merely take part in ‘serious damage to property’.

Chamberlain’s decision to refuse an injunction at the first hearing, while accepting that there might be a case for judicial review, sets up the central issue for the next hearing. Given the court’s acceptance that PA does not cause fear to anyone, is the decision to proscribe them a ‘disproportionate’ attack on their right to freedom of expression?

I have cited some reasons for optimism, but there is also a case for caution. The senior judiciary has moved to the right since Lady Hale stood down as President of the Supreme Court in 2000. Under Lord Reed, the judges have tried to limit political challenges, and that message has been taken up enthusiastically by the High Court. There are only around 100 High Court judges, and almost all of those who hear security cases have a long history of deciding in favour of the government.

The PA litigation occurs in the context of the increasing criminalisation of environmental protestors, the jailing of people for between four and five years for blocking the M25, the denial of historic defences which used to be available to campaigners using criminal damage as form of political expression, and Labour’s Crime and Policing Bill, with its provisions to limit masking on protests, climbing on memorials, and protests near places of worship. This government hates demonstrators of all sorts, and judges have never been our allies.

When the last injunction hearing relating to PA took place at the Court of Appeal on 4 July, the judges took a hostile view of those who were likely to face criminal charges because of the PA proscription. All that will be prohibited, the judges held, is the deliberate action of criminals. ‘If the harm envisaged is to occur, the claimant or others will have deliberately chosen to express their support for a proscribed organisation.’ Should the state throw the book at protesters, in other words, they deserve it. Whatever the identity of the judges who hear the next case, they can be confident that if they decide it in favour of the government, the Court of Appeal will not overturn their decision on appeal. That said, there are appeal stages above even that Court, and routes to take the case to the House of Lords and the European Court of Human Rights.

The court case is likely to involve a clash between two competing principles. One is the idea that the law should have integrity, be consistent, and protect the rights that it is supposed to guard. If those concepts are heard and engaged with, PA should win. The other perspective is that the law, as many legal academics have argued, has a sophisticated veneer and the rights of minorities are heard, but ignored. In the words of one commentator, Morton Horowitz, the law ‘creates formal equality but it promotes substantive inequality by creating a consciousness that radically separates law from politics, means from ends, processes from outcomes. By promoting procedural justice it enables the shrewd, the calculating, and the wealthy to manipulate its forms to their own advantage.’ Horowitz was portraying the law as an agent of capital, but in cases like that of PA — which are about the boundaries of state power — the courts most often protect the decisions of ministers.

Given that the state has proscribed PA by law, its members have no choice but to fight on that terrain. Whichever side wins, this will not be the end of the matter. If PA loses, as mentioned, they have the right of appeal. If the government does, it might appeal or rerun the litigation by proscribing greater authority, such as adding PA to the proscribed list through a statute rather than secondary legislation. (A model here might be the long-running refusal of the courts to accept laws preventing local government from boycotting unjust states; decisions which previous governments have accepted with singular bad grace.)

Activists would be wise to assume that the issue will not be finally resolved next week. Rather, it will be something that continues to be before the courts, in one form or another, for as long as Yvette Cooper remains Home Secretary.

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