I publish below in full the Note we have submitted to Court today to re-establish the separate Scottish judicial review of the proscription of Palestine Action. Not only is the state doubling down on prosecution of pro-Palestine activists, a new National Security State Threats Bill is being fast tracked through parliament to extend the attack on free speech.
Under this bill receiving a benefit including “information” from a state entity designated as “hostile” by the Home Secretary will be a crime bringing up to 14 years in prison. So publishing casualty figures from Iranian sources, for example, will be terrorism. Publishing information about Ukrainian attacks on Russia will be illegal.
This is the relevant clause of the Bill. My emphasis:
17C Obtaining etc material benefits from a designated body
(1) A person commits an offence if—
(a) the person—
(i) obtains, accepts or retains a material benefit which is not an excluded benefit, or
(ii) obtains or accepts the provision of such a benefit to another person,
(b) the benefit is or was provided by or on behalf of a designated body, and
(c) the person knows, or having regard to other matters known to them ought reasonably to know, that the benefit is or was provided by or on behalf of a designated body.
(2) A person commits an offence if—
(a) the person agrees to accept—
(i) a material benefit which is not an excluded benefit, or
(ii) the provision of such a benefit to another person,
(b) the benefit is to be provided by or on behalf of a designated body, and
(c) the person knows, or having regard to other matters known to them ought reasonably to know, that the benefit is to be provided by or on behalf of a designated body.
(3) Material benefits may include financial benefits, anything which has the potential to result in a financial benefit, and information…
Please note there is specifically no public interest defence, no journalism defence and it is to be illegal to receive true information. It is not about the spread of disinformation, it is about the spread of information contrary to the British state narrative. Receiving information from a designated enemy of the UK is the offence, whether you publish it or not.
There in no modern precedent for this in peacetime. It is being forced through all its parliamentary stages – three readings, amendments and two Lords sittings – in a single day. I have repeatedly said that liberal democracy has collapsed. I do not need further proof.
Under the current legislation, yesterday prominent international lawyer Dan Kovalik was detained in Liverpool, his phone and laptop seized and he was questioned about his support for Palestine. Dan is a lawyer. He is entitled to lawyer/client confidentiality. His clients include the President of Colombia and other international figures. The UK is a rogue state.
The UK state is currently attempting to gaslight us with a concerted campaign of messaging about a few millions in aid to Gaza – much of which is concentrated on assisting ethnic cleansing by various medical and educational routes for people to leave Gaza. But with Labour Friends of Israel member Andy Burnham to take over as PM with former Chair of Labour Friends of Israel James Purnell as his Chief of Staff, support for the Genocide will continue unabated.
The absurd National Security (State Threats) Bill shows that attack on dissidents and free speech will continue at home too. The debanking by Lloyds of The Canary is another prong of the extraordinary destruction of civil liberty under New Labour.
So I am determined not to bow to the sisting of the Scottish judicial review and we have lodged a motion to “reclaim” or restart proceedings.
We have not yet reached the actual Scottish judicial review or had any chance to give the arguments we will use there. It is my intention that we will attack the proscription in the most fundamental way, making these points among others:
- There is an active obligation on states to do everything possible to stop a Genocide. By contrast, the UK has done everything in its power to facilitate Genocide, including protecting its supply chain.
- It is patently absurd to call a non violent direct action group a terrorist organisation
- The state should not be treated as neutral or infallible by the courts. The false narrative on Iraqi WMD, and the terrible deaths and destruction to which that narrative led, should be a warning the state can get it very wrong.
- As a former senior civil servant who was in the FCO during that period, I can testify to the pressures on civil servants and agencies to produce the evidence and policy recommendation that Ministers wish to hear
- The evidence base produced by JTAC to support the proscription recommendation was fundamentally untrue. The Filton jury proved that the Met Police and JTAC assertions of escalating violence, carrying weapons with intent to harm, did not happen as a matter of fact. The jury rejected the aggravated burglary and violent disorder.
- Only one Palestine Action activist has ever been convicted of an offence of violence, and there the jury specifically found no intent
- Lady Justice Carr in the Appeal Court judgement both relied on Sheriff McCormick’s sentencing remarks in the Thales case. But there were no convictions of violence in the Thales case. Sheriff McCormick misrepresented the evidence. Last week he the Sheriff Appeal Court in Scotland overturned his finding of anti-Israeli racism against Mick Napier of Scottish Palestine Solidarity Committee. The inaccurate and frothing remarks of one zionist Sheriff are not a basis for proscription.
- Lady Justice Carr ruled that the Home Secretary must be given “appropriate latitude” and a “wide margin of appreciation” in security cases. But the Home Secretary should not be idealised. They are a politician, and in this case a politician who is parti pris. Yvette Cooper is massively financed by the Zionist lobby. The courts should operate in the real world not in an idealised and unrealistic one.
Lady Carr’s judgement is entirely and directly predicated on the notion that in any conflict in law between the state and the citizen, special deference should always be given to the state as more noble and trustworthy. That reasoning is fundamentally flawed.
To get heard at all we have to roll back Lord Young’s extraordinary ruling that the English Court of Appeal judgement should be accepted as law in Scotland in the interests of “comity”. This overturns centuries of doctrine on the separate jurisdiction of Scotland going back to the Treaty of Union itself – though it does reflect what had in truth been the unchallenged though illegal practice of deference to England in such matters.
I live in Scotland and it is in Scotland that my human rights are being restricted, The English Court of Appeal simply has no jurisdiction over me or ability to cancel my right to a judicial review before the courts of my own jurisdiction in my own country, a review which crucially had already been granted on the merits of the case.
This is the Note we have entered in support of our Motion. Before you read it please understand that we cannot continue the case without funding. This is incredibly expensive, and we have been through months of lawfare where the UK government has continually stalled the action, increasing the costs until we have real difficulty continuing. Please speak to anyone you know who is sympathetic and has some financial ability to help. Over 1700 people have donated so far. Donation links at the end of the page.
The Note published below addresses only the procedural question of lifting the sist and allowing the Scottish judicial review to proceed. It does not set out the full substantive case against the proscription of Palestine Action. That will be developed once the case is back before the Scottish courts. In summary, the Note argues:
- The English Court of Appeal has no jurisdiction to bind Scottish courts on matters of Scots law.
- The principle of “judicial comity” does not require Scottish courts to follow the English decision.
- The requirement under the Court of Session Rules for the “speedy determination” of judicial reviews has been ignored.
- The UK Government’s litigation strategy north and south of the border is inconsistent and designed to delay resolution.
- The proper course is for the Lord Ordinary to report the case to the Inner House so that Scotland’s highest civil court can determine the matter under Scots law.
The substantive arguments against the proscription itself — including the state’s obligation to prevent genocide, the flawed evidence base, and the improper deference shown to the Home Secretary — are set out above and will be developed fully in the restarted proceedings.
For ease of reading I have deleted many pages of footnotes from the Note.
PAPER APART FOR THE PETITIONER
1. THE PETITIONER’S MOTIONS
1.1 The petitioner moves the court:
(1) To recall the sist granted on 28 May 2026, in respect that the Court of Appeal handed
down its judgment in Ammori v SSHD (Appeal No. CA-2026-000583) on 15 June
2026 ([2026] EWCA Civ 721), and the question of onward appeal from that decision
was resolved as regards the Court of Appeal by that court refusing on 22 June 2026 the
applicant’s application made to it under CPR 52.3B (which application was opposed by
the Home Secretary) for permission to appeal to the UK Supreme Court.
(2) To invite the Lord Ordinary to report the whole cause to the Inner House for a ruling
under and in terms of rule 34.1(1) of the Rules of the Court.
2. RECALL OF THE SIST
2.1 On 28 May 2026 the court sisted this cause till such time as the Court of Appeal gave its
judgment in Ammori v SSHD (Appeal No. CA-2026-000583) “and the question of onward
appeal to the UK Supreme Court being resolved”. The court also adopted a fall-back
position of the sist being lifted by effluxion of time to 27 September 2026, if the question
of onward appeal to the UK Supreme Court had not been resolved by that date.
The non-applicability of forum non conveniens considerations in the present
case
2.2 There is no dispute that the Scots law principle of forum non conveniens (which was
subsequently imported into English law 1) may apply in public law cases. But in Tehrani
v Secretary of State for the Home Department [2006] UKHL 47, 2007 SC (HL) 1 Lord
Hope noted at para 59: that
“the plea of forum non conveniens can never be sustained unless the court is satisfied
that there is some other tribunal having competent jurisdiction in which the case may
be tried more suitably for the interests of the parties and for the ends of justice.”
2.3 But for a court to be able to uphold a plea of forum non conveniens it requires (1) that the
courts of England have jurisdiction to adjudicate over the matters at issue between the
parties in Scotland and (2) there is an identity between the parties in the different
litigations. Neither of these conditions apply in this case: the English courts have no
jurisdiction to determine any matters of Scots law (including whether Palestine Action has
lawfully been proscribed as a “terrorist organisation” as a matter of Scots law); and the
petitioner in these Scottish proceedings is different from the applicant in the English
proceedings.
2.4 The UK wide proscription of Palestine Action does not in any way change the fact that
Scotland and England remain wholly distinct legal jurisdiction whose systems of criminal
law, in particular, “are as distinct from each other as if they were two foreign countries”,
as Lord Hope put it in R v Manchester Stipendiary Magistrate, Ex p Granada Television
Ltd [2001] 1 AC 300, 304G—H.
2.5 And just why in the present case it be should thought in the interests of the parties who
have sought to support Palestine in Action Scotland, and who are facing (the threat of)
prosecution in Scotland by the Lord Advocate under Scots law that there cease to be any
consideration of the merits of the challenge under Scots law to the proscription of Palestine
Action as a terrorist organisation is not explained, whether by the UK government in
seeking the sist or by the Lord Ordinary in granting it.
The decision of the EWCA in R (Liberty) v. Prime Minister and the principle of
“judicial comity”
2.6 Because there is no identity between the applicant parties in the English and Scottish
judicial reviews and because these judicial review deal with different, and non-
overlapping, issues of law (respectively: whether or not Palestine Action has lawfully been
proscribed in England and Wales under English law; and whether or not Palestine Action
has lawfully been proscribed in Scotland under Scots law) the Advocate General could not
include a plea of forum non conveniens in her Answers.
2.7 Given that there was no identity of parties and no identity of issues the Advocate General
instead referred to and relied upon before this court a “soft law” principle of “judicial
comity”, relying heavily in this regard on observations from the Court of Appeal in England
and Wales in R (Liberty) v. Prime Minister [2019] EWCA Civ 1761 [2020] 1 WLR 1193
(Lord Burnett of Maldon CJ, Sir Terence Etherton MR, Dame Victoria Sharp P).
2.8 The issue of public law which was being discussed in R (Liberty) v. Prime Minister [2019]
EWCA Civ 1761 [2020] 1 WLR 1193 wasprecisely that raised and considered by the Inner
House in Vince v. Advocate General for Scotland [2019] CSIH 51, 202 SC 90. This was
whether the court could and should positively ordain the Prime Minister to carry out his
duties under Section 1(4) of the European Union (Withdrawal) (No 2) Act 2019 to “seek to
obtain from the European Council an extension of the period under Article 50(3) of the
Treaty on European Union ending at 11.00pm on 31 October 2019 by sending to the
President of the European Council a letter in the form set out in the Schedule to this Act
requesting an extension of that period to 11.00pm on 31 January 2020 in order to debate
and pass a Bill to implement the agreement between the United Kingdom and the
European Union under Article 50(2) of the Treaty on European Union’’.
2.9 But unlike the situation arising with the proscription of Palestine Action across the UK,
the issue of decision in Liberty/Vince had no direct implications for individuals’ civil
liberties, nor did it involve the criminalisation of conduct across the various legal system
within the UK.
2.10 By contrast, those who seek by their action in Scotland to support Palestine Action are
subject to Scots law, and would be liable to prosecution at the instance of the Lord
Advocate under Scots criminal law and procedure.
2.11 It is therefore necessary – as a matter of legal certainty – for the position in Scots law
to be authoritatively determined. As we have seen this can only be done by a Scottish court,
and not by any court sitting within the English legal system, including the UK Supreme
Court sitting in an English appeal, even where (which is not guaranteed) it has allowed
intervention from parties from other parts of the United Kingdom. This is because Article
XIX of the Acts of Union 1707 provides, as a fundamental condition of the Union between
Scotland and England that
“no Causes in Scotland be cognoscible by the Courts of Chancery, Queens-Bench,
Common-Pleas, or any other Court in Westminster-hall; and that the said Courts, or
any other of the like Nature, after the Union, shall have no Power to cognosce, review,
or alter the Acts or Sentences of the Judicatures within Scotland, or stop the Execution
of the same.”
2.12 Accordingly, no court in England and Wales has jurisdiction to pronounce orders
which purport to extend to the realm of Scotland. This extends (as Lord Mansfield –
speaking against the background of the terms of the Acts of Union of which he would have
been well aware and to which he would have been particularly sensitive, being himself a
Scot raised in Scone in Perthshire – confirmed) to the writ of habeas corpus:
“to foreign dominions, which belong to a prince who succeeds to the throne of England,
this Court has no power to send any writ of any kind. We cannot send a habeas corpus
to Scotland”
2.13 In claiming in Liberty in a judgment handed down on 22 October 2019 that it is “wrong
as a matter of principle for litigants to press for determination of issues which are already
being litigated in another jurisdiction within the United Kingdom in public law cases”, the
Court of Appeal seems to have invented or newly minted constitutional principle. This
was not a constitutional claim which appears to have been known to, or applied by, the
very same (formally Divisional) Court (Lord Burnett of Maldon CJ, Sir Terence Etherton
MR, Dame Victoria Sharp P) in its judgment handed down just six week before on 11
September 2019 in Miller v. Prime Minister [2019] EWHC 2381 (QB).
2.14 In Miller – despite the fact that the Scottish proceedings of challenging the prorogation
of Parliament had already been raised and determined at first instance in Cherry v.
Advocate General for Scotland [2019] CSOH 70, 2020 SC 13, and this decision of the Lord
Ordinary was already known to be on appeal to the Inner House, before the English court
even heard argument – Lord Burnett of Maldon CJ, Sir Terence Etherton MR, Dame
Victoria Sharp P sitting as a Divisional Court did not – whether on grounds of judicial
comity or forum non conveniens – decline to hear the case, and allow the Scottish litigation
to take its course. Instead, they decided to hear the case as a matter of English law and
hand down its judgment, noting as follows (at paras 1-2):
“1. …. The main issue we have to decide is whether the decision of the Prime Minister
to seek the prorogation of Parliament is justiciable (is capable of challenge) in Her
Majesty’s courts or whether it is an exclusively political matter.
We heard argument on Thursday 5 September and the following morning gave our
decision. We concluded that the decision of the Prime Minister was not justiciable. It
is not a matter for the courts.
In formal terms we granted permission to apply for judicial review but dismissed the
claim. We acceded to an application that any appeal from our order could leap-frog to
the Supreme Court pursuant to section 12(3A)(c) of the Administration of Justice Act
1969 should leave to appeal be granted.
“2. Parallel proceedings were progressing in Scotland. They had been issued long
before the order to prorogue Parliament had been made in the context of a growing
concern that the Prime Minister might secure prorogation either side of the date
appointed by statute for the departure of the United Kingdom from the European
Union, currently 31 October 2019. Their focus changed following the prorogation
order.
On Wednesday 4 September Lord Doherty sitting in the Outer House of the Court of
Session dismissed the claim. He too concluded that this was not a matter for the courts.
An appeal is proceeding in the Inner House of the Court of Session. We have had the
advantage of reading Lord Doherty’s judgment.”
2.15 In sum, the discussion, observations and decision of the EWCA in R (Liberty) v. Prime
Minister concerning the principle of “judicial comity” is simply not a reliable guide to how
that concept might be applied within the context of the UK constitution, and in particular
as regards parallel litigations being pursued occurring at the same time north and south of
the border. It should be treated with extreme caution. To quote the Advocate General’s
own words in relation to Cherry and Miller litigations concerning the prorogation of
Parliament:
“Those cases arose during an exceptional period on matters of critical and immediate
national importance and must be viewed in that context.”
2.16 Precisely the same (if not more so) can be said of the Vince and Liberty litigations. The
Liberty decision is in any event readily distinguishable from the present proceedings. It
does not establish any general approach to be followed by this court. It certainly does not
give an authoritative or accurate account of the principle of judicial comity, certainly as it
might be prayed in aid within the UK.
The decision of the UKSC in Jwanczuk
2.17 Instead, the more authoritative and most recent discussion of that principle of judicial
comity in the decision of the UK Supreme Court in R (Jwanczuk) v Secretary of State for
Work and Pensions [2025] UKSC 42 [2026] AC 699. As the UK Supreme Court notes in
its judgment (at para 61 – emphasis added):
“[A]s a matter of practice based on comity and good sense, rather than on legal rules
of precedent, decisions of any of the appellate courts of England and Wales, Northern
Ireland or Scotland will be treated as having persuasive authority when a similar legal
point arises in one of the other jurisdictions. The weight which is attached to them will
generally depend, in the first place, on how convincing the reasoning is found to be.
Where practical problems are liable to result if the earlier decision is not followed,
those will also be a relevant consideration. …. The question which arises in this appeal
is whether greater weight should be given to a decision, and if so, how much weight,
where it concerns the interpretation or application of a statutory provision which
applies in more than one jurisdiction, or where, as in the present appeal, distinct but
identical statutory provisions apply in different jurisdictions”.
2.18 The UKSC Jwanczuk decision was handed down on 20 November 2025. It therefore
postdated both the Court of Appeal in Liberty and the order of 16 May 2025 of
Chamberlain J in R (Juliette Poynter and others) v the Secretary of State for Work and
Pensions to stay an English JR pending a decision (then at avizandum) of the Lord
Ordinary, Lady Hood, in Fanning v Secretary of State for Work and Pensions [2025]
CSOH 50, 2025 SLT 787. Jwanczuk was therefore a UKSC decision in a case to which
the UK Government was a party and it had been decided well before the sist hearing.
2.19 The Advocate General appears to have referred this court, very much in passing, only
to paragraph 100 of the Jwanczuk UKSC decision. This is where the UK Supreme Court
observed that “pragmatic good sense, is generally for the appellate courts of the United
Kingdom to treat each other’s decisions on the interpretation of legislation with great
respect, since it is undesirable that there should be conflicting decisions on the
construction of provisions which are intended to apply in the same way in more than one
jurisdiction”.
2.20 But it is clear from the Jwanczuk UKSC decision read as a whole that these remarks
in paragraph 100 were never intended to be read in isolation. They are immediately
followed paragraph 101 where the UK Supreme Court in Jwanczuk states unequivocally
that “however, appellate courts should not regard themselves as being under an obligation
to follow decisions which they consider to be wrong. They do not require to identify some
other compelling reason for departing from a wrong decision. They do not have to identify
exceptional circumstances. It is better that they should explain clearly why they consider
the decision to be incorrect, give what they consider to be the correct decision, and grant
leave to appeal to this court so that the difference of views can be resolved without undue
delay”.
2.21 Because this court appears not to have been referred fully to the UKSC decision in
Jwanczuk as a whole there is a danger that this court made its decision to grant the
Advocate General’s motion per incuriam inadvertently misdirecting itself in law (notably
in the court’s observation that “where the identical matter extending to Scotland has been
argued and determined by a competent court in the UK, it is contrary to the principle of
comity for this court to seek to re-litigate that issue”). That would appear to be an
allusion to what was said in paragraphs 28-29 in R (Liberty) v. Prime Minister [2019]
EWCA Civ 1761 [2020] 1 WLR 1193. But what is said there is not consistent with what the
UK Supreme Court overall says in Jwanczuk.
2.22 The decision of the UK Supreme Court in Jwanczuk, a case in which the UK
Government (of which she is a member) was a party, was clearly central to the question of
the weight that should be afforded in the present case to this claimed principle of judicial
comity. In their jointly authored judgment in Jwanczuk the UK Supreme Court held that
the Court of Appeal of England and Wales (Underhill, Elisabeth Laing and Falk LJJ in
[2023] EWCA Civ 1156 [2024] KB 275) had misunderstood and misapplied the principle
of judicial comity when the Court of Appeal dismissed the Secretary of State’s appeal.
Arguably too judges of the Court of Appeal of England and Wales in in R (Liberty) v. Prime
Minister [2019] EWCA Civ 1761 [2020] 1 WLR 1193 also failed properly to understand,
expound and apply the principle of judicial comity in that case.
2.23 The Court of Appeal of England and Wales in Jwanczuk wrongly thought that the
principle of judicial comity across the UK required the English courts to follow the decision
of the Court of Appeal in Northern Ireland in O’Donnell v Department for Communities
[2020] NICA 36 [2021] NI 490. Despite the judges of the Court of Appeal of England
and Wales holding and expressing some doubts about the correctness of that NICA
decision, the English court held that the NICA interpretation was to be followed in England
and Wales, because the EWCA judges were unable to say that the NICA decision was
“clearly wrong” or that there were other “compelling reasons” to depart from it.
2.24 In their jointly authored opinion in Jwanczuk Lord Reed and Lady Simler instead
confirmed (at § 92) that
“a decision of an appellate court in one part of the United Kingdom on the decision of
an appellate court in a different part of the United Kingdom is not a matter governed
by the law of precedent”
and (at § 94) that in the different jurisdictions of the United Kingdom, in relation to
“legislation which applies across the United Kingdom (or Great Britain, as the case may
be) … it is even more important that statutory provisions should be interpreted
correctly than that they should be interpreted consistently”.
Their judgment further noted (at §§ 66, 67, 98, 101, 102) that
“66. … [C]onsiderations of comity and practicality strongly encourage the adoption of
a common approach, but the Scottish and English courts will nevertheless diverge
where they are unable to accept the correctness of each other’s decisions. The adoption
of this approach has not caused practical problems in the administration of the
criminal law …
67. … When it comes to questions of civil law, any differences between the approaches
adopted by the intermediate appellate courts to legislation which applies across the
United Kingdom can normally be resolved by an appeal to the Supreme Court. Indeed,
the resolution of such differences is one of the justifications for the Supreme Court’s
existence. […]
98. … It cannot any longer be assumed that similarly worded legislation enacted in
different parts of the United Kingdom should necessarily be treated in the same way.
There are different legislative and executive bodies, which may be acting for different
reasons, and on the basis of different background material.
Issues of justification under the Human Rights Act 1998, in particular, generally
depend on judgements about legislative choices made in the light of conditions in the
jurisdiction to which the legislation applies, and the constitutional arrangements in
place in that jurisdiction. […]
100. … [I]t appears to us that the best approach, as a matter of pragmatic good sense,
is generally for the appellate courts of the United Kingdom to treat each other’s
decisions on the interpretation of legislation with great respect, since it is undesirable
that there should be conflicting decisions on the construction of provisions which are
intended to apply in the same way in more than one jurisdiction. As we have indicated,
it may be appropriate to attach particular weight to another court’s view of the
meaning of statutory language where it is difficult to say with any confidence that one
interpretation is correct and another is wrong. Somewhat less weight may attach to
another court’s interpretation of a similar but different provision.
101 However, appellate courts should not regard themselves as being under an
obligation to follow decisions which they consider to be wrong. They do not require
to identify some other compelling reason for departing from a wrong decision. They
do not have to identify exceptional circumstances.
It is better that they should explain clearly why they consider the decision to be
incorrect, give what they consider to be the correct decision, and grant leave to appeal
to this court so that the difference of views can be resolved without undue delay”
(emphasis added).
2.25 What may properly be drawn from the UKSC decision in Jwanczuk is that it is
fundamentally important for the proper functioning of the multi-jurisdictional
constitutional polity of the United Kingdom that the primary appellate courts within each
of those jurisdictions are confident in their ability and constitutional duty to make their
own decisions – independently of what other appellate courts may have decided – on what
is the correct interpretation in and for their particular territorial jurisdiction, even of
statutory provisions which are common across the UK. They must not consider themselves
to be bound by the decisions made in another jurisdiction.
2.26 In Marshall v. Caulfield [2004] EWCA Civ 422 [2004] ICR 1502 (in a decision upheld
by the UKSC in Jwanczuk) the late Laws LJ, made the point that even where the
substantive statutory law is identical north and south of the border even first instance
courts and tribunals are not bound by decisions of the Scottish courts (whether the Inner
House or indeed in employment the Employment Appeal Tribunal when sitting as a
Scottish court north of the border). He stated (at §§ 32-33):
“Now, statutory provisions which give dominion to courts in one jurisdiction
(international or otherwise) over courts in another are apt, here at least, to father
constitutional tensions.
But it is at least clear, and here is the point on this part of the case, that it would be a
constitutional solecism of some magnitude to suggest that by force of the common law
of precedent any court of England and Wales is in the strict sense bound by decisions
of any court whose jurisdiction runs in Scotland only or—most assuredly—vice versa.
Comity and practicality are another thing altogether. They exert a wholly legitimate
pressure. Mr Hogarth’s argument on this part of the case is thus in my judgment
mistaken. The EAT here was not obliged by law to follow the Court of Session. And
this court certainly is not”.
2.27 The fact that Scotland and England remain different legal systems, means that the
decision of the courts in England are of comparative law interest only and in no sense
constitute any form of binding authority on Scottish courts, no matter how low in the
hierarchy of courts the Scottish court or tribunal might be, or high within the English legal
system the English court decision at issue might be. Indeed as Lord Neuberger observed
in Willers v Joyce and another (No 2) [2016] UKSC 44 [2018] AC 843 at paragraph 22:
“22. …. The traditional view in Scotland has been that, subject to some possible
exceptions, judgments of the House of Lords in English appeals are at most highly
persuasive rather than strictly binding”.
2.28 And this position has, of course, been statutorily reaffirmed by the Westminster
Parliament in relation to decision of the UK Supreme Court when it provides in Section 41
of the Constitutional Reform Act 2005, so far as relevant, as follows
“41. Relation to other courts etc
(1) Nothing in this Part [3 concerning the UK Supreme Court] is to affect the
distinctions between the separate legal systems of the parts of the United Kingdom.
(2) A decision of the [UK] Supreme Court on appeal from a court of any part of the
United Kingdom, other than a decision on a devolution matter, is to be regarded as the
decision of a court of that part of the United Kingdom.”
“Speedy determination” as the “key principle” in judicial review procedure in
Scotland
2.29 Further and in any event, the court appears to have granted the Advocate General’s
motion for a sist in these judicial review proceedings on the understanding that “a sist of
proceedings, whether on an agreed or opposed basis, is a regular feature of litigation”,
without having been referred to the relevant Rules of Court set out in Chapter 58 which
contain the principles which are applicable specifically to judicial review applications, as a
distinct form of recourse to the courts in public law matters.
2.30 Rule of Court 58.11(2) specifies that
“when permission is granted, the Lord Ordinary must make such orders for further
procedure as are appropriate for the speedy determination of the petition” (emphasis
added).
2.31 “Speedy determination” is the key principle for judicial review procedure.4 The aim is
“to focus the issues so that the court can reach a decision upon them, in the interests of
sound administration and in the public interest, as soon as possible”5 (emphasis added).
2.32 The only express mention of the possibility of the court pronouncing a sist within the
context of Chapter 58 judicial review procedure is within the context of the pre-permission
procedure for intimation, service and advertisement of the petition, the lodging of answers
and relevant documents, and notification of intention to contest. Rule 58.4(5)(h) allows
that the court might sist the cause for legal aid, but only, per Rule of Court 58.4(4), after
having “regard to the need for the speedy determination of the petition” (emphasis
added).
2.33 Rule 58.12(2) again specifies that “at the procedural hearing the Lord Ordinary may
make such order for further procedure as is appropriate for the speedy determination of
the petition and in particular may make any of the orders listed in rule 58.11(2)” (emphasis
added).
2.34 Yet Rule of Court 58.11(2) does not list the sisting of the cause as being a possible option
in terms of the court’s procedure in judicial review application where permission has been
granted.
2.35 In this, the judicial review rules are to be contrasted with various Rules of Court
applying to procedures other than judicial review, where express provision is made
regarding the possibility of the court pronouncing a sist.
Where was the legal foundation in the Rules of Court for the court pronouncing
the sist of 28 May 2026?
2.36 Against the general principle of statutorily construction that expressio unius est
exclusio alterius it is unclear just what was the legal basis upon which the Advocate
General for Scotland relied as giving this court the power to pronounce a sist in these post-
permission judicial review proceedings, given that the possibility of pronouncing a sist is
not listed among the particular orders which may be pronounced by the court in relation
to the speedy determination of a judicial review petition once permission has been granted
for it to process,7 and there is nothing in the Rules of Court applicable to judicial review
procedure which would allow for it.
2.37 The Advocate General therefore has this further question to answer in these
proceedings: why, when seeking a sist of these post-permission judicial review
proceedings, did the Advocate General fail to identify to the court any specific Rule of Court
on which she relied as the source of a power to sist and made no reference to principle of
“speedy determination” which applies to the procedure to be adopted in judicial review
application, both before (per Rule of Court 58.4(4)) and after permission has been granted
(Rules of Court 58.11(2) and 58.12(2))?
Sist is ex facie not conducive to “the speedy determination” of the judicial review
petition.
2.38 Whatever the presumed legal basis upon which the sist was founded and pronounced,
it clear that ex facie the 28 May 2026 order for sist does not constitute “an order for further
procedure which is “appropriate for the speedy determination of the petition.”
The court’s past interlocutors to be construed and applied consistently with the
requirement for “speedy determination” of this judicial review petition.
2.39 What this means is that – in the event of any ambiguity in the wording of the
interlocutor pronouncing the sist – the court is obliged under and in term of Rule of Court
58.11(2) to adopt and apply any possible interpretation of that order which shortens the
period of the sist, over any alternative reading which might lengthen it. This is an
application of the general rule of construction in favour of validity.
2.40 Any alternative reading (even if a possible reading) which would result in the sist being
in place for a longer rather than a shorter period cannot – consistently with the court’s
duty to ensure the speedy determination of this petition for judicial review – be adopted
by the court.
2.41 A final resolution of this issue as to whether or not this decision is going to be
considered by the UK Supreme Court would have been if the Court of Appeal had given its
permission to appeal against its decision (such as was done by it in Benkharbouche v.
Embassy of the Republic of Sudan [2017] UKSC 62 [2019] AC 777 granting the Secretary
of State for Foreign and Commonwealth Affairs’ application to it for PTA to the UKSC8).
We would then all know, for certain, that the case was going to the UK Supreme Court for
its consideration and determination.
2.42 But that is not what has happened in this case. Instead, it is common ground that the
Court of Appeal summarily refused on the papers filed on Monday 22 June 2026, the
applicant’s application for permission to appeal to the UK Supreme Court. As far as the
Court of Appeal is concerned the question of appeal to the UKSC has resolved by it. So
what we can say is that the Court of Appeal is now functus.
2.43 As we have noted, in order to have been properly and lawfully pronounced by the
court, the court’s interlocutor of 28 May 2026 imposing a sist has to be read in a manner
which is compatible with the principle of speedy determination of this judicial review
application.
2.44 It is wholly compatible with the wording of the court’s interlocutor of 28 May 2026 –
and one which is consistent with the speedy determination requirement – for the court to
find that on the fact of this case the sist conditions have been purified and therefore the
sist has fallen.
2.45 This is because the Court of Appeal duly gave its judgment in Ammori v SSHD on 15
June 2026 [2026] EWCA Civ 721 and one week later, on 22 June 2026, duly resolved, as
far as it is concerned, the question of onward appeal from this judgment to the UK
Supreme Court by refusing such permission to appeal.
2.46 It is presumed that the Advocate General will say that an alternative reading of the
court’s interlocutor is to be preferred, which involves the procedure in this judicial review
being paused until and the question of whether or not there was going to be onward appeal
to the UK Supreme Court has been resolved by the UK Supreme Court.
2.47 It is open to the “disappointed would-be appellant” in the English proceedings within
28 days of the Court of Appeal’s refusal to make an application direct to the UK Supreme
Court for its permission to appeal against the Court of Appeal judgment. And the UK
Supreme Court typically takes 6 to 8 months – and sometimes as much as a year – before
giving its decision on whether or not to grant such permission to appeal. These are
significant delays.
2.48 This would not be compatible with the “speedy determination” principle and is
therefore not a reading of the interlocutor one which it is open to the court to prefer over
the petitioner’s reading of it.
The UK Government’s position before the courts north and south of the border
is incompatible with the requirements of “speedy determination”
2.49 In any event, one may question the Advocate General as to what the UK Government’s
true position on this matter of the need for speedy determination of these Scottish
proceeding.
2.50 The litigation strategy from the UK Government as represented by the Advocate
General to date in these Scottish proceedings has appeared to be one of “kicking the can
down the road”, as far as the court will allow it. But that is simply not compatible with the
“speedy determination” principle which applies in these Scottish judicial review
proceedings.
2.51 The UK Government appears to want to treat these judicial review proceedings as if
they were a commercial litigation. It is submitted that its adopted litigation strategy runs
contrary to its constitutional responsibility of seeking clarity and a final authoritative
ruling from the courts on the crucial issue of public law, constitutional law and Convention
rights raised by these applications. The approach taken by the UK Government both in
the English proceedings (and in the Scottish proceedings) to date is frankly impossible to
reconcile with the (now canonical) observations of Lord Walker of Gestingthorpe
(dissenting on the result) in Belize Alliance of Conservation v Department of Environment
[2004] UKPC 6 [2004] Env. LR 38 at para 86 that
“it is now clear that proceedings for judicial review should not be conducted in the
same manner as hard-fought commercial litigation.
A respondent authority owes a duty to the court to cooperate and to make candid
disclosure, by way of affidavit, of the relevant facts and (so far as they are not apparent
from contemporaneous documents which have been disclosed) the reasoning behind
the decision challenged in the judicial review” (emphasis added).
2.52 In the English judicial review proceedings south of the border the UK Government has
to date adopted an approach of alternatively seeking to impede delay the English judicial
review proceeding or demanding the expedition on the part of the applicant (for example
in seeking PTA from the EWCA) as it suits their litigation strategy. Thus:
– the UK Government first of all opposed permission being granted to the applicant in
the English proceedings: R (Ammori) v. Home Department [2025] EWHC 2013
(Admin) (per Chamberlain J. judgment handed down on 30 July 2025)
– the UK Government then unsuccessfully appealed against the grant of permission to
take the judicial review: R (Ammori) v. Home Department [2025] EWCA Civ 1311
[2026] WLR 1000 (per Lady Carr CJ, Lewis LJ, and Edis LJ judgment handed down
on 17 October 2025.
– the UK Government lost in the substantive hearing of the judicial review application
before the Divisional Court: R (Ammori) v. Home Department [2026] EWHC 292
(Admin) [2026] HRLR 9 (per Dame Victoria Sharp President of the King’s Bench
Division, Swift J and Steyn J handed down on 13 February 2026.
– the UK Government then sought and obtained an expedited hearing of its appeal to the
Court of Appeal with hearing dates between 28 to 30 April 2026.
– as noted above some 6 week later, on 15 June 2026 a 5 judge Court of Appeal (Lady
Carr CJ, Sir Geoffrey Vos MR, Edis LJ Vice President of the Criminal Division of the
Court of Appeal, Lewis LJ and Whipple LJ handed down its decision upholding the Uk
Government appeal.
– once the EWCA judgment was handed down the UK Government then immediately
filed a motion with the Court of Appeal requiring that the applicant apply to that court
for permission to appeal to the UK Supreme Court by 22 June 2026 (i.e. just seven
days of that court’s substantive decision upholding the UK Government appeal
– an application for permission to appeal to the UK Supreme Court was duly put before
the Court of Appeal by the applicant on 22 June 2026. But the UK Government then
opposed the grant of permission, which was then refused by the Court of Appeal.
2.53 Had the concern of the UK Government truly been for there to be a final authoritative
decision applicable across the UK on the lawfulness of the proscription of Palestine Action
it would have supported the applicant’s PTA application. As we have seen from what
happened in Benkharbouche v. Embassy of the Republic of Sudan [2017] UKSC 62 [2019]
AC 777 Such support from the UK Government would have rendered it far more likely that
the Court of Appeal would grant permission to appeal to the UK Supreme Court.
Inconsistency in the UK Government’s position depending on whether facing
courts north and south of the border
2.54 Given its decision to oppose PTA before the Court of Appeal it may reasonably be
anticipated (for the sake of consistency if nothing else) that the UK Government will also
oppose any application for PTA made by the applicant direct to the UK Supreme Court.
2.55 The Advocate General can and should be asked by the court to confirm to it just what
the UK Government’s position is on this matter.
2.56 But it all rather looks as if the UK Government in the English proceedings is seeking
to delay (and indeed bring an end to this case at the level of the Court of Appeal decision
without further consideration by the UK Supreme Court.
2.57 The underlying claim and thrust of the position of the UK Government north and
south of the border is in fact contradictory and impossible to reconcile.
2.58 In the Scottish proceedings, the UK Government position as represented by the
Advocate General has been that the present proceedings should really be paused, until the
UK Supreme Court has given permission to appeal and then it can authoritatively
determine for the whole of the UK the legal issues raised by these challenges..
2.59 But in the English proceedings, the UK Government is actively seeking to stop the case
going on to the UK Supreme Court.
2.60 Such opportunistic “cakeism” being demonstrated by the UK Government depending
on which side of the border it is being called to account, is not a position which this court
should tolerate or permit to continue.
Conclusion on first part of the motion
2.61 The petitioner therefore renews the first part of his motion and moves this court, for
all the reason set out above, formally to lift the sist which was imposed on these
proceedings on 28 May 2026.
3. FURTHER PROCEDURE – REPORT TO THE INNER HOUSE
3.1 The Advocate General appears to be proceeding on the basis or assumption that if the UK
Supreme Court on an appeal from the Court of Appeal of England and Wales upholds the
lawfulness under English law of its proscription as a terrorist organisation in England and
Wales, this this ruling will apply equally to and for Scotland (and to and for Northern
Ireland).
3.2 And if the UK Supreme Court says that Palestine Action cannot properly be proscribed
under English law then – on the Advocate General’s analysis at least – it must follow it
cannot have been properly proscribed under Scots law or under Northern Irish law, again
on the assumption there are no principles specific to English law, Scots law or Northern
Irish law that might allow for a different approach on this issue to be taken across the
internal national jurisdictions of the UK.
3.3 But as we have seen from the UKSC decision in Jwanczuk that is to approach matters from
completely the wrong way round. What Jwanczuk tells is that the courts in each of the
jurisdictions of the UK have to reach their decision independently of how courts in other
UK jurisdictions have reached them.
3.4 One of the central planks offered by the Home Secretary in justification of her decision to
proscribe Palestine Action as a terrorist organisation was an incident in Scotland in June
2022. In her written statement to the House of Commons made on 23 June 2025 (over 3
years after the Glasgow incident) she said this of it:
“During Palestine Action’s attack against the Thales defence factory in Glasgow in
2022, the group caused over a million pounds worth of damage including to parts
essential to submarines.
The Sheriff, in passing custodial sentences for the attackers’ violent crimes, spoke of
the panic among staff who feared for their safety as pyrotechnics and smoke bombs
were thrown in the area where they were evacuating.
He further recorded the extent of damage to legitimate business activities which
included ‘matters of nationwide security’ and disputed the groups’ claims its actions
were non-violent.”
3.5 But it is important to bear in mind that in the English proceedings no challenge is made to
the Home Secretary’s statement made in justification for the order at issue that what
occurred during a protest incident at Thales SA, in Glasgow on 1 June 2022 constituted
acts of terrorism on the basis that they involved the use or threat of action which was said
to “serious damage” to, and only to property and was “designed to influence a government
to advance a political, religious or ideological cause” such as to fall within the ambit of
section 1 of the Terrorism Act 2000.
3.6 Because the Claimant’s application for permission for judicial review on this was refused
in the Administrative Court below (see R (Ammori) v Home Secretary [2025] EWHC 2013
(Admin) at [77]-[80]), the retrospective characterisation of what is said to have happened
in Glasgow on 1 June 2022 at Thales SA as “terrorism” is not a matter which can be
disputed in the English proceedings. Indeed the Court of Appeal (in its judgment at para
150) relies heavily on what it understands from the sentencing sheriff’s reported remarks
as happened in Glasgow on 1 June 2022 in support of its finding in favour of the lawfulness
of the Home Secretary proscription of Palestine Action as a terrorist organisation.
3.7 This is a matter which can however usefully and properly be examined in the present
Scottish proceedings. A court in Scotland is in far better position to understand and
situate the circumstances of the June 2022 protest action at Thales SA in Glasgow in
respect of which the five individuals charged all pled guilty to charges of breach of the
peace. Two of these five also pled guilty to “damaging property” in gluing their hands to
the edge of the roof. And one of the five, in addition, pled guilty to behaving in a threatening
or abusive manner when police arrive to de-bond her hands from the roof when she was
obstructive and required to be restrained using leg restraints. The first four accused were
sentenced by the Sheriff to serve a total of 12 months incarceration and the fifth who
resisted arrest received a total sentence of 14 months imprisonment.
3.8 Much was made by the Home Secretary and by the courts in England and Wales that the
sheriff mentioned in his remarks the setting off of “pyrotechnics including smoke bombs”
at the start of what turned out to be a day long occupation of the premises. The sheriff
noted in his sentencing that “in one criminal justice social work report it is said that ‘the
offence is non-violent in nature and was planned as well as intended to cause disruption’”.
He then comments in passing that “throwing pyrotechnics into areas where people are
being evacuated could hardly be described as non-violent”.
3.9 But the reality is that fireworks are not firearms. The throwing of smoke bombs was
charged as and only as “breach of the peace”. None of the individual was charged with any
form of terrorism offences. The justification for the Home Secretary to found on the
circumstances of this case as a primary basis for the proscription in Scotland, as well as
the rest of the UK, of Palestine Action can therefore usefully be considered and determined
by the courts in Scotland in the present proceedings.
3.10 The UK Supreme Court indeed welcomes the opportunity of being able to hear at the
same appeals from the decisions of the (intermediate) appellate courts in relation to
legislation which applies across the United Kingdom. The resolution of any differences in
approach as between the Scottish and English intermediate appellate court is indeed said
in Jwanczuk one of the justifications for the UK Supreme Court’s existence.
3.11 What hearing appeals from Scotland and from England together means is that the UK
Supreme Court to get the benefit of the views of experienced appellate judges from both
sides of the border: see for example: R (Cart) v. Upper Tribunal [2011] UKSC 28/Eba v.
Advocate General for Scotland [2011] UKSC 29; and Cherry v. Advocate General for
Scotland/Miller v. Prime Minister [2019] UKSC
3.12 This course of hearing Scottish and English appeal together ensures, too, that a final
authoritative ruling can be handed down by the UK Supreme Court which unequivocally
applies to both sides of the border and thereby enhances and achieves the legal certainty
required to ensure compatibility with and respect for the Convention rights of all those
many individuals, north and south of the border, affected (including in relation to its
chilling effect) by the decision of the Home Secretary to list Palestine Action as a proscribed
terrorist organisation.
3.13 Against that background it is clear that the proper course to be followed in this case is
for the Lord Ordinary to report this case to the Inner House.
3.14 Accordingly, once the sist has been lifted in accordance with the first part of this
motion, the petitioner moves that the court – acting under and in terms of Rule of Court
34.1(1) – report the cause as a whole to the Inner House for its ruling on the substance of
this judicial review challenge.
3.15 Rule of Court 34.3(2) provides that “[t]he decision of the Inner House on a report to it
under rule 34.1(1) shall be final”: qv Davidson v. Scottish Ministers (No 3): incidental
application re Leave to appeal to House of Lords, 2005 1 SC (HL) 1 at §13.
3.16 This means that any decision of the Inner House, on the court’s Chapter 34 report to
it, is habile to be appealed to the UK Supreme Court (see subsection 40(2)(a) of the Court
of Session Act 1988), provided that the necessary permission to appeal has been granted
by the appropriate court (subsections 40(1) and/or 40(3) of the Court of Session Act 1988).
3.17 The petitioner submits that, instead of considering the petition and answers at a
substantive hearing and reaching his own determination on it, the option of reporting the
case to the Inner House is the most appropriate procedure to be adopted by the court in
all the circumstances of this case.
3.18 If this proposed course of action is followed then it will at least allow the possibility of:
the Inner House making a decision on the Scottish challenge; and then for the UK Supreme
Court to have the benefit of the decision of two appellate courts, respectively determining
under Scots law and separately under English law, the lawfulness of the proscription of
Palestine Action. The UK Supreme Court will then be able to determine this matter finally
and most importantly authoritatively both in and for Scotland, and in and for England and
Wales.
3.19 Any suggested alternative course which may be anticipated from the Advocate General
on behalf of the UK Government – for example that the present proceedings remain sisted
pending the determination by the UK Supreme Court of any appeal against the decision of
the Court of Appeal of England and Wales, leaving the petitioner with the possibility simply
of applying to intervene in any English appeal in the UK Supreme Court – would be wholly
unsatisfactory for at least the following reasons, among others:
(1) Any resulting decision of the UK Supreme Court in a solely English appeal would not
be binding as a matter of precedent in and for Scotland
(2) The UK Supreme Court might choose to deny outright any application for the
petitioners to intervene
(3) Even if the UK Supreme Court allowed the possibility for an intervention by the
petitioner, that court might determine that it will allow limited intervention only on
particular aspects or arguments, rather than the full range of the argument which the
petitioner might wish to present
(4) Any arguments which the UK Supreme Court might allow to be heard from the
petitioner, would be considered and determined against a background of there being
no independent Scottish court consideration of these arguments.
(5) It is particularly important for the UK Supreme Court to hear the views of the Scottish
courts because one of the main justifications on which the Court of Appeal of England
and Wales relied upon in deciding that Palestine Action was engaging in and
advocating for terrorism is a decision and sentencing remarks of a sheriff in a
criminal case at Glasgow Sheriff Court and how the Scottish authorities (the police
the Crown and the sheriff) dealt with it (Ammori, [2026] EWCA Civ 721 paras 53,
150). Therefore, it is crucial that there is a complete and full understanding of the full
details and circumstances of that decision (and all other Scotland related decisions),
which only the Inner House can bring.
3.20 Accordingly the petitioner renews the second part of his motion and once more invites
the Lord Ordinary to report the whole cause to the Inner House for a ruling under and in
terms of rule 34.1(1) of the Rules of the Court.
4. CONCLUSION
4.1 The petitioner in the present proceedings – and the applicant in the English proceedings –
hold the common position that the UK Supreme Court should be afforded the last and
authoritative word on the lawfulness under Scots law and under English law of the
proscription of Palestine Action in Scotland and separately in England and Wales.
4.2 This aim can only be achieved by the court following the course of action which the
petitioner urges on the court.
4.3 The UK Government’s position by contrast seems to be one of impeding or delaying the
final authoritative resolution of these matters, whether in Scotland or in England and
Wales. That course should not be permitted it by this court.
4.4 In all these circumstances the petitioner renews his motion as enrolled and moves the
court to grant both parts of that motion.
AIDAN O’NEILL KC
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