Tomorrow at 10am we get the judgement in our appeal against the suspension of the Scottish judicial review of the proscription of Palestine Action. We cannot have won as the appeal – held by “urgent process” – was intended to allow a judicial review before the Supreme Court meets in the Ammori case on 4 November. That was possible if the court had decided immediately. The delay of over a fortnight already answers the question.
That is of a piece with the approach of the courts throughout, which has been to collude with the UK government in endless procedural delay to kick the Scottish judicial review into the long grass. It is now over a tear since we petitioned for judicial review, and although permission was granted it has never been heard.
The civil liberties of Scots are being grossly oppressed in Scotland, as many have been arrested for holding placards or wearing T shirts. We are supposed to be entitled to remedy from our own Scottish courts.
Article XIX of the Act of Union states that
“That the Court of Session or College of Justice do after the union and notwithstanding thereof, remain in all time coming within Scotland, as it is now constituted by the laws of that Kingdom, and that all inferior courts within the said limits do remain subordinate, as they are now, to the supreme courts of justice within the same, in all time coming; and that no causes in Scotland be cognizable by the courts of chancery, queen’s bench, common pleas, or by any 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.”
When we were given permission for judicial review, Lord Young ruled:
“I am satisfied that it is appropriate to grant permission for this judicial review to proceed in Scotland notwithstanding the existence of English proceedings which are at a more advanced stage. As a matter of principle, a petitioner who has standing and whose petition sets out arguments of sufficient merit to satisfy s27B(2)(b) of the 1988 Act should not be refused permission because of the existence of parallel proceedings in another UK jurisdiction. The petitioner claims that his legal rights have been illegally circumscribed by the 2025 Order.
He is entitled to look to the courts of his place of residence for a determination of that complaint. The cases of Cherry v Advocate General 2020 SC 37 and R (Miller) v Prime Minister [2019] EWHC 2381 support the petitioner’s argument that there is nothing inherently objectionable with proceedings on the same issue progressing through different jurisdictions within the UK at the same time. There is no suggestion that these proceedings are being advanced for an improper or abusive purpose such as a campaign to swamp the respondent with a multitude of proceedings. The possibility that any substantive hearing in this petition will require the adoption of closed material procedure is not a factor of any weight to the issue of permission. The necessary arrangements will be put in place if the closed material procedure is required.”
This is absolutely correct and compatible with the Treaty of Union. What is totally incompatible with either this ruling or with the Treaty of Union is Lord Young’s later decisions repeatedly to suspend the Scottish judicial review until after the English courts decide the issue, and the Supreme Court decides the English case.
This is the point many do not understand:
A Supreme Court ruling on an English case like the Ammori judicial review does not determine the position in Scotland. The Supreme Court can only decide the position in English law because only English law is before it. This is not controversial or contested as a constitutional point. But de facto the Scottish courts have always been content simply to accept English rulings, because the rights of Scotland under the Treaty of Union have never been respected in practice, in almost every area.
The Cherry and Miller cases were a breakthrough because they established that parallel judicial reviews can take place in England and Scotland and have equal weight before the Supreme Court. In that case the Scottish Court of Session ruled that Boris Johnson’s prorogation of parliament to implement Brexit was illegal. The English High Court said the courts could not intervene.
The Supreme Court looked at both judgements and agreed with the Scottish court, in a ruling binding in both England and Scotland because it considered both English and Scots law.
That is what we were trying to replicate over the proscription of Palestine Action, but we have been thwarted by the most pernicious Lawfare by the UK government, pursuing delay after delay, abetted by the cowardly Lord Young who ran away from and reversed his initial permission in the face of government pressure. He granted suspension after suspension, retreating into a rationale that a Scottish judicial review would be expensive and a drain on judicial resources.
We obtained an appeal by “urgent process” against the suspension. That appeal by “urgent process” was heard on 25 September. The judges appeared unsympathetic to us in the extreme. At the conclusion Lord Pentland said the three judges would reconvene in half an hour to give their judgement.
From the demeanour of the judges throughout the hearing, our legal team was convinced the judgement would go completely against us, as was I. To our surprise when they came back after half an hour they said they need longer to think, and they would bring in their judgement in a few days, specifically noting the urgency of the case.
I like to think that they are finding it really difficult to draft something that explains why they are abandoning the Treaty of Union. The right of a Scot to have the case heard by a Scottish court when their liberty is infringed by the Executive is not something that can be simply tossed away, without careful special pleading. Equally they have to explain why they are abandoning Cherry/Miller.
The whole handling of this case, and the deference being shown to the decisions of English courts, is yet more evidence that this pretended Union is a farce. We are a colony. It is time to move urgently for Independence.
We need help urgently as as our legal bills currently exceed the amount of money raised. I have put in money myself but I am now wiped out. Our state opponents have had our crowdfunder closed down, which is disgusting in the middle of a legal case, but reflects the world in 2026.
Other donation methods are currently still available even though the crowdjustice route has been closed.. Obviously we now need funds more than ever to carry on.
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