One of the fundamentals of living in society is that you are entitled to know whether something you might do is legal or not. How do you know? One starting point for individuals is the legal maxim 'Everything which is not forbidden is allowed'.
In modern criminal law, an act is criminal if it meets two essential criteria:
- The punishable conduct and its penalty must be defined in sufficiently exact terms. The definition will normally be set out in a statute or some other legal instrument of general application.
- The act must be defined as criminal at the time it is committed. The criminal law does not apply retroactively. So for example, it was not a crime to express support for Palestine Action before that body was proscribed as a terrorist organisation.
Following a recent decision by the executive branch of the British government, we can now add an exception to these criteria:
A crime is not a crime if it is committed by someone who is closely connected to the government at a senior level.
How have I reached this extraordinary conclusion?
In my recent post Auntie Claus and the moral imperative, I drew attention to the decision of the Irish author Sally Rooney to withdraw her books from sale in the UK on the basis that using the royalties to support Palestine Action would constitute criminal conduct. Last Thursday, on the social media platform known as X, and in response to her decision, an individual named Sarah Helm posted this tweet:
God help us authors who support Palestine and Palestine Action.
Who is Sarah Helm? She is a journalist and a published author of non-fiction works. She is also married to Jonathan Powell. Formerly Tony Blair's Chief of Staff, he is now the Prime Minister's National Security Adviser. Few people are more closely associated with the government's decision to proscribe Palestine Action. I would give a lot to know what the two of them have been saying to each other in private over the past few days.
Will Sarah Helm be charged with the offence of supporting a proscribed organisation, in common with about 3,000 other members of the public? No. On Friday, the Metropolitan Police investigated the matter. On Saturday, they stated:
The post was assessed by specialist officers and it was determined that it did not meet the criminal threshold. No further police action will be taken.
Apparently there was not enough evidence to show that the post was capable of encouraging support for a proscribed organisation.
And yet, it is clear from Sarah Helm's post that she supports Palestine Action and it is also clear that she has stated that publicly. Her statement could well encourage others to come out in support as well. The government has distanced itself from her remarks and has stressed that she holds no official government position. What makes her different from the other 3,000 members of the public? It can only be her (very close) personal connection to the National Security Adviser.
I was looking for parallel situations where the system protects its own. Donald Trump's abuse of his presidential powers in 2025 to pardon the rioters who stormed the Capitol on 6 January 2021 is a modern example.
Further back in time, I could not help recalling my impressions of a visit to the former Soviet Union in the years before it collapsed. I entered the Kremlin, an excessively opulent and enclosed area containing five palaces and four cathedrals, and formerly the residence of the Soviet government. I also walked round the outside, through drab streets filled with Russian nobodies living lives of ordinary hopelessness. The contrast was dramatic.
In the Soviet Union, the road to advancement was to join the ruling Communist Party and be appointed to a key administrative position in the bureaucracy which managed all aspects of life. Those in the 'nomenklatura' formed part of a privileged elite whose existence belied the communist ideal of an equal society.
Of course, today's UK is not yesterday's Soviet Union. And yet, the privileged treatment accorded to the wife of the National Security Adviser is one small step towards the Sovietisation of the UK governmental system.
Future protesters against the Israeli genocide in Palestine might want to adapt their placards. Do not say: 'I support Palestine action'. Do say: 'God help us ordinary people who support Palestine and Palestine Action'. See if that makes a difference to how you are treated.