Politicians banned Palestine Action. Any decision to unban will be theirs too

Palestine Action is bringing its case to the Supreme Court. (Someone in the scheduling office has a sense of timing: the hearings are on Wednesday 4 November and Thursday 5 November – closing just in time for Guy Fawkes Night.) Wherever you stand on Israel and Palestine, the decision last year to proscribe Palestine Action as a terrorist organisation has been a heroic own goal for the government. A little-known group has become a national cause.

There have been nearly 4,000 arrests during protests against the ban. For months, I’ve been trying to get the answer to two questions. How was the decision made? And if it were to be reversed, how might that happen? Ahead of next week’s hearing, I read over the court documents from the case when it first went before the High Court (Palestine Action won; the home secretary’s decision was overruled) and then the Court of Appeal (the decision was reversed; Palestine Action lost, the judges backed the government).

Here are a few notes. The court papers don’t much dispute the facts, but rather examine the political judgment. (The courts don’t buy the argument that Palestine Action was a Gandhian civil disobedience group: among other direct action, it organised violent attacks on an Israeli defence company, its suppliers and aircraft at RAF Brize Norton, which caused criminal damage and injury; the security services were warning that the organisation was a growing threat to property and life.)

The courts don’t really get into the widely shared view that it seemed eccentric – to put it mildly – to proscribe Palestine Action but not Iran’s Islamic Revolutionary Guard Corps. At the heart of the case is the question of whether Yvette Cooper, home secretary at the time of the ban, struck the right balance between national security and citizens’ rights – the rights to freedom of speech and freedom of assembly. How was the decision made?

Without much consideration, it appears, for the rights of free expression and freedom of association. • The process: those advising the home secretary to proscribe – and apparently they all did – were Counter Terrorism Policing, the Joint Terrorism Analysis Centre, the Foreign, Commonwealth and Development Office and the Ministry of Housing, Communities and Local Government. Who spoke up for freedom of expression and assembly in that process?

How much of a chance did Cooper have of weighing those rights without an institutional voice speaking for them? (The housing ministry contributed a community impact report.) • Proscription v protest: they should have known they had a problem. When Cooper set out the case for proscription, she went out of her way to say that peaceful protest on behalf of Palestinians, against the Israeli government and demanding change of the UK government must be allowed to continue.

“The right of peaceful protest is a cornerstone of our democracy,” she said. “That right will be unaffected.” But it was bound to be affected. The Terrorism Act makes it an offence not only to belong to the organisation but also to “profess to belong”; it’s an offence to express an opinion or belief that is supportive of the organisation or might encourage someone to support it; and it’s an offence to “wear any clothing in public or display any article” that is supportive.

Hence, wearing a T-shirt or holding up a piece of paper that says “I support Palestine Action – Stop the Genocide” is met with arrest. Proscription was, in part, an attempt to change public perceptions: one of the aims of the Proscription Review Group was to “discredit [Palestine Action’s] brand”. How did they think proscription was not going to run into the rights of free speech and assembly? How might the ban be reversed? There are three ways the proscription of Palestine Action could be overturned: • The Supreme Court hears the case and overrules the Court of Appeal.

Unlikely, but who knows? You can’t prejudge the judges. • The organisation is deproscribed by the Proscribed Organisations Appeal Commission, but that only happens when the circumstances have really changed. That is not likely to be the case for a while. • The third route is a political decision. And here’s the point. Whatever the legal process, this case was – and will be – a matter of political judgment. The decision rests with the home secretary, who has the power to proscribe but no duty to do so.

The question that runs through the High Court and appeal court documents is not whether Yvette Cooper had the right to proscribe Palestine Action – she did – but whether she was right to do so. Did she use her discretion? Did she strike the right balance? Most likely, the court process is going to take this question back to where it started – with politicians being asked to make a call. So far, Andy Burnham’s government and Shabana Mahmood, the current home secretary, have gone along with Cooper’s decision, perhaps hoping that the Supreme Court will make the decision for them.

I suspect it won’t. The government will be left insisting it had the right to make the decision, even if it was the wrong one. Somehow they’ll have to fix it. This is what politicians are for – matters of judgment. Related articles: ‘We are running out of options’: could British students take to the streets? Data centre protesters fear hollow promise of protection gives AI firms a ‘golden ticket’ Promises and compromises It’s been a busy week at the ballot box – and a good one.

The people have had a better week than the populists in Serbia and Brazil. (Let’s not tempt fate by calling it too soon on the matter of US democracy: the midterms are on Tuesday.) In Israel, the election results have been messy and uncertain, but the turnout was huge and the number of votes cast by the country’s Arab citizens was historic. It’s the “dawn of a revolution”, says Avraham Burg, the former speaker of the Knesset, writing for The Observer this weekend .

“Something in the Israeli understanding of citizenship has changed irrevocably. Hundreds of thousands of people who had grown accustomed to being treated as guests in their own country have decided to behave as its rightful owners. They have stopped asking for a seat at the table because they have understood that the table belongs to them too.” The question he put in the piece he wrote the morning after the election has been on my mind all week: we say we want our politicians to keep their promises, but the only way forward for Israel is for politicians like Gadi Eisenkot to break them and strike a compromise on working with the Arab Israeli parties.

A matter for political judgment. The human experiment Patricia Clarke, The Observer ’s technology editor, who reports on AI for us, has spent more than a year looking into how chatbots respond when we share our darkest thoughts with them – anxiety, depression, talk of suicide, violence and murder. What she’s found is frightening . OpenAI’s safety unit is the definition of too little, too late. In a Ted talk last year, Sam Altman, the boss of the tech firm, explained his theory about how best to roll out its ChatGPT tool.

Patricia writes: “The way to build safer AI systems, he argued, was to release them into the world and make improvements along the way – an ‘iterative process of deploying them to the world, getting feedback, while the stakes are relatively low’.” The technologists are relying on a feedback loop, and 1.2 billion people and counting are part of the trial. The courts have caught up with social media – ie Meta – a decade after problems connected to poor mental health started to surface.

As Bill Gates put it in an interview we did last week, it was “wildly after the fact”. The courts, he added, would be a weird way to put in safeguards against AI. It’s going to take governments to step in. Matters for political judgment. Photograph by Guy Smallman/Getty Images Justice Courts Protest Palestine Action