I went through yesterday’s preliminary  hearing in the Scottish judicial review of the proscription of Palestine Action with a sense of mounting horror. We had the same judge as at the permission hearing, Lord Young. We had exactly the same arguments and the same case law being deployed again by the UK government as at the permission hearing. But there the sense of deja vu ended. The judge, Lord Young, appeared to be rowing backwards from his decision to grant the judicial review, as fast as he possibly could.

I may be wrong – we will have his decision in three hours time. I hope I am wrong. I quite often am wrong.

But every indication was that I am not wrong. English proceedings at an advanced stage seemed in his mind to have shifted, from an irrelevance in a different jurisdiction, to a fundamental reason not to proceed. The costs of holding a physical review, in terms of the actual pounds and pennies of having courts, had been dismissed contemptuously by Lord Young when advanced by the government as a reason not to hold a judicial review at the permission hearing.

Lord Young now himself raised the cost of a Scottish judicial review as a potential reason for not having one. Three times.

He also made plain from the outset that he was considering the Starmer regime motion for sisting (postponing in effect forever) the Scottish judicial review as a matter of case management, not as a matter of principle of whether the court had jurisdiction. For that reason, if he decided to sist he would not be contradicting his previous decision that the review could go ahead.

The solution was not openly to deny Scotland’s rights, but administrative delay. Forever.

The main obvious thing that had changed was not the government arguments, but the person making them. This hearing had itself been postponed almost three weeks to fit the diary of the Advocate General, Catherine Smith KC, who was representing the Starmer regime in person because – as the Government submission directly stated – of the great constitutional importance of the case.

Catherine Smith KC is political royalty. Daughter of former Labour leader the late John Smith and of Baroness Smith, sister of the BBC’s Washington correspondent Sarah Smith, sister in law of the son of former Secretary General of NATO Lord Robertson. I could go on.

She is also rubbish in court. She presented the government’s arguments much worse that they had originally been presented, with a really revolting mix of personal arrogance and profound lack of articulacy. She sometimes appeared unable to put a coherent sentence together, and on the rare occasions when she did so, we were generally left wondering in what way it linked to the last one. Lord Young frequently rescued her by expressing the idea she had been groping her way towards with all the alacrity of a blindfold person in handcuffs.

At one point Lord Young actually said to the Advocate General “You haven’t explained that very well”.

Nevertheless he took it that there was great force behind her arguments, now that it had been made very plain by the despatch of this august personage that London took this very seriously indeed, He gave every indication of a willingness to be herded. It merely made his life so difficult that they had despatched such an incompetent shepherd.

Very early in proceedings Lord Young had been at great pains to point out that his agreement that we had the right to a Scottish judicial review had always been subject to possible cancellation for reasons of “case management”. In principle there was a right to a Scottish judicial review. But there were practicalities of case management to consider, and one of those practicalities was the existence in England of the Ammori case which was now at a much more advanced stage, with the English Court of Appeal going to announce its decision on 15 June. It may then proceed to the UK Supreme Court which covers Scotland anyway.

In the course of the day Joanna Cherry pointed out that our Scottish judicial review had been due to happen back in March, and the reason it had been delayed was the UK government introducing “secret intelligence” evidence which had been heard in closed sessions. To “sist” or postpone the case until the end of UK proceedings meant to drop it forever. To do this on procedural grounds because of delays introduced by the government being reviewed would be unfair on the petitioner.

In the Cherry and Miller cases the UK Supreme Court had been faced with different decisions of the English and Scottish courts on the same issue. The English court could be wrong. Mr Murray as a resident of Scotland was entitled to the protection of the courts of his place of domicile. Scotland and England were separate jurisdictions with separate legal systems and separate legal traditions.

Catherine Smith for the Starmer regime took a hardline unionist position. It was undesirable for Palestine Action to be legal in Scotland and not in England, and she did not believe that such a position could be “competent” as terrorism was a reserved matter under the Scotland Act. She was very scathing about the evidence that, two months before the proscription, the Scottish CONTEST board (the official counter-terrorism strategy board of the Scottish government, which includes Police Scotland and the security services) had minuted that Palestine Action in Scotland “did not come close” to meeting the definition of a terrorist organisation. The Scottish board is a “local board” she said, which did not have access to all the intelligence available to the main counter terrorism bodies in London.

London sent a regime minister to overawe the court in Edinburgh and remind us of our position in the world. We have been telt.

The Starmer regime’s arguments were founded on “judicial comity”, which amounted to simply an argument that the judiciaries of the different jurisdictions of the United Kingdom should not disagree with each other, as expressed by the High Court of England in the “liberty case”. This was almost word for word the argument they had advance, and was the case they had advanced, at the permission hearing. Even Lord Young rather bridled at this.

“Are you saying I got this wrong” he asked?

“Yes” Smith replied.

There was so much more to report, but my current state of health doesn’t allow me to spend long days in court followed by long evenings writing up, and I suppose the decision today will overtake much of it. I paste below the original decision by Lord Young to grant the appeal – you will notice that is quite ringing declaration that citizens in Scotland are entitled to the protection of the Scottish courts, is indeed then undercut by a an escape route that issues of “case management” may make proceeding undesirable and are a different question.

I hope I am wrong, but I suspect that Lord Young will today rule that I was entitled to a judicial review but “case management” means it should be shelved in favour of the English case,

The one time I was actually furious during the proceedings yesterday was when Catherine Smith said that the Scottish judicial review should be closed down for reasons of cost, and specifically stated that the closed evidence sessions – on which I am given no information and I do not even know when they happen – are costing the court system £10,000 a day.

The UK government is introducing spurious and fake intelligence material, making who knows what allegations about Palestine Action, and the using the cost of fake intelligence hearings to close down scrutiny. It stinks.

We desperately need more money to continue this legal case. Each stage of hearing like this costs us about £30,000 and the eventual judicial review will cost much more.

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