Bring back sedition

An argument is raging over the proscription of the Palestine Action group as a terrorist organisation. On the one hand, defenders of the group argue that their actions were non-violent, amounting to nothing more than criminal damage and peaceful “direct action”. Terrorists, on this reading, are men with bombs, guns and knives, not kids who break into military bases with cans of spray paint. The other side of the argument points out that damage to military equipment threatens national security — if a hostile state sent individuals to wreck our fighter jets on the ground, it would be regarded as an act of war. Threats to the military, on this reading, are a red line and the government has to take a very hard stance against groups that target defence infrastructure. 

Two things can be true — Palestine Action are obviously not a terrorist organisation, but it is just as true that any group that attempts to sabotage the military must be banned, dismantled and harshly deterred. 

Modern governments are entangled in a tightening web of equalities and human rights law that increasingly floats free of the democratic and republican traditions that gave rise to it. If Britain is a free society, then attacks upon its army, and a refusal to participate through democratic avenues, are acts that do violence to the common good of all. A lack of reverence for the law and the sanctity of public institutions from attack represent a loss of common identity and civic responsibility. Human rights have become radically individualised claims asserted on behalf of private individuals, rather than the balance of duties, responsibilities and privileges enjoyed by free citizens living in common. 

Sedition allows us to make very clear distinctions between protest and sedition

In this context, states struggle to exert power legitimately in their own interest. As with France after the revolution, authority must be framed in terms of “public safety” — and it is perhaps no coincidence that political terror and public safety were born in the same instance from the revolution on behalf of the rights of man. In the 21st century, with rights culture again becoming an intractable barrier to a just and functional politics, governments are increasingly forced to create a kind of perpetual state of emergency; carving out an extra-legal space of action outside of otherwise restrictive frameworks. Counterterrorism legislation is the one method that the government turns to whether it is seeking to regulate the excesses of Islamic fundamentalism (through its Prevent programme), or cracking down on far-left activist groups trying to sabotage military equipment. 

The issue is not only that we are misapplying terrorism legislation, but that in doing so we are implicitly endorsing a model of the state acting on behalf of the safety of a passive public, rather than responding to attacks upon the law and the nation itself. 

There is another way. It feels significant that just as anti-terroism legislation was being implemented, the common law offence of sedition was being abolished. Sedition is a concept that dates back to the Roman Republic, referring to unlawful rebellion against legitimate authority. It has centuries of legal precedent and clear limits within English law, and extends beyond acts of violence to “an intention to bring into hatred or contempt, or to excite disaffection against the person of His Majesty, his heirs or successors, or the government and constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite His Majesty’s subjects to attempt otherwise than by lawful means, the alteration of any matter in Church or State by law established, or to incite any person to commit any crime in disturbance of the peace, or to raise discontent or disaffection amongst His Majesty’s subjects, or to promote feelings of ill-will and hostility between different classes of such subjects.” 

This has a far broader application, but a much more precise aim, than counterterrorism and hate speech laws. It doesn’t apply at all to acts and words, however extreme, aimed at anything other than the British state and its laws and institutions. Rather it acts as a kind of aggravating factor for those who seek to plan, incite or enact crimes for the purpose of subverting lawful authority or undermining the state. 

At its simplest, it is the crime of rebellion, and it allows us to make very clear distinctions between protest and sedition. A trade union that occupies a factory or intimidates strikebreakers may be engaging in extremely disruptive, even criminal protest, but it is not committing sedition. Nor does it apply to a peaceful protest group seeking to influence government policy. But a group, like Palestine Action, that engages in disruptive and criminal protest that targets national defence, and in its own words, seeks to “bypass our complicit government”, straightforwardly falls into the category of sedition. Not only that, but we can draw a very precise line where they cross from being a disruptive protest group that encourages lawlessness, to being a seditious organisation. Their primary aim — “direct action” against Israeli arms companies — is criminal but not seditious. Once they began targeting the RAF however, the interests of the British crown become directly involved, and a new, harsher legal response would be triggered.

Crucially the crime of sedition, unlike counterterrorism, can be prosecuted in an ordinary fashion by the CPS, rather than relying on ministers and parliament to make extremely politicised decisions about what is, and is not, terrorist activity. Moreover it allows far more finely grained regulation of incitement through the crime of seditious libel, with speech that incites rebellion subject to a well-understood common law offence with established checks and limits. This is the same legislation that was employed during the World Wars, and evolved alongside the emergence of universal suffrage, the rise of trade unions and expanding social freedoms. Sedition is a tried and tested standard whose loss has seen the rise of less accountable and more arbitrary laws that frequently intrude into areas untouched by the old laws.