Recent events in England now reveal the practical difference between terrorists and protesters. It would seem that terrorists peacefully hold placards and get immediately arrested, while protesters wear black uniforms and balaclavas and disrupt infrastructure and do not get arrested.
How did we get into this mess? How have we placed ourselves in the position where terrorism legislation is used to detain and prosecute peaceful protesters, while those adopting the terror tactics of private armies seem to be free to do as they wish?
The reason is that for some time British politicians have not taken terrorism legislation seriously, and that ministers have got into the habit of misusing terror laws for easy targets.
The low point, of course, was the proscription of Palestine Action, which meant that any person even expressing support for this group became criminalised. The activists of Palestine Action were already being prosecuted under the general criminal law for criminal damage and other offences. There was no obvious reason to invoke terrorism law for their direct actions, as the law was already sufficient.
Proscription has legal effects further up and down the chain. There are useful powers triggered by proscription in respect of addressing funding and organisational arrangements of supposed terror groups. But the law extends to those merely expressing support, giving the police powers to arrest and the courts to convict for what are essentially speech-acts.
Even the courts have no consistent approach to how to deal with this application of terrorism law. At first instance, the usually deferent High Court found against the government’s proscription of Palestine Action.
And then, in an unimpressive Court of Appeal decision, appeal judges ruled that the proscription was lawful, in part on the unconvincing ground that those arrested could protest about other things if they wanted. The Supreme Court has now decided to sort out this legal confusion, and the most senior justices will soon hear a further appeal.
While the state has been in a tangle over criminalising peaceful protesters, a more sinister phenomenon has been developing, both online and now on the streets. There is now coordinated preparation for large groups of intimidatingly clad men to be directed to particular situations. These are not and logically cannot be spontaneous demonstrations. The uniform and disguises by themselves point to planning in advance.
Last week such “stop the boats” groups appeared in Dover and Portsmouth. The police, who are adept at exercising their discretion in arresting scores of peaceful protesters under terror laws, appear to have not known anything in advance and were thereby taken by surprise. The gangs sought to cause disruption and to block ports.
Not long ago, Just Stop Oil activists were given long sentences for simply discussing blocking infrastructure. In contrast, the balaclava-wearing gangs now do much the same with apparent impunity. One could almost call it two-tier justice.
Presumably the state and its security services will now play catch-up with this new, emerging threat. Perhaps these new groupings will soon be infiltrated and placed under surveillance like previous clandestine groups. Maybe everything shortly will be alright. Maybe terror laws will be used for this new terror.
But the very fact these private armies have developed while ministers and the police have been criminalising peaceful protesters under terrorism laws indicates warped political and operational priorities. Anti-terrorism is topsy-turvy because ministers and the police prefer easy targets under sweeping laws which seem even to confuse judges.
Terrorism law is the special body of law which gives the state extra powers beyond the general law of the land. It should be used sparingly and with deliberation. Indeed, such laws used only to be enacted on a temporary basis, even against the IRA. But now terrorism law is used casually and, as we can now see, inefficiently. And so we have the sights of mass arrests for holding up signs, and also of no arrests for those in political uniforms causing havoc.
