AC-2025-LON-002122 - [2025] EWHC 2013 (Admin)

Sir James placed heavy emphasis on the fact that Parliament had created a bespoke tribunal, POAC, with a special constitution and unique procedural rules, to hear challenges of this kind.

In my judgment, however, this point has relatively little force in the present context for three reasons. First, it is necessary to unpack what is meant by “challenges of this kind”. As noted above, Parliament created an appellate route to POAC for challenges to refusals of applications to deproscribe. It could have ousted, but did not oust, judicial review of the initial decision to proscribe. It may have proceeded on the assumption that applications to deproscribe would typically be made on the basis that, at the time of the application, the organisation in question is no longer concerned in terrorism, rather than on the basis that the initial decision to proscribe was unlawful.

Secondly, and in any event, the availability of a closed material procedure under the 2013 Act marks a significant difference between the position as it was at the time of the Kurdistan Workers’ Party case and the present day. In that case, Richards J identified two respects in which POAC was “at a clear advantage over the Administrative Court”: first, the availability of a closed material procedure with special advocates representing the interests of the excluded party in the CLOSED part of the proceedings; and secondly, the ability to receive certain kinds of evidence which were ordinarily inadmissible.

On the law as it then stood, Richards J speculated at [76] that the court “might be able to devise something equivalent to the closed material procedure”, but said that “it would be far less satisfactory to go down that route than to utilise the POAC procedure already carefully formulated for the purpose”. At [77], he addressed the suggestion that the provisions governing the inadmissibility of intercept evidence could be read down to achieve compatibility with the ECHR. This, he said, was “at best very uncertain and would again be a less satisfactory route than reliance on the clear and general exception under s.18(1)(f) [of the Regulation of Investigatory Powers Act 2000] in respect of any proceedings before POAC or any proceedings arising out of proceedings before POAC”.

The position has moved on. Since the date of Richards J’s decision, the 2013 Act, taken together with CPR Part 82, makes available in High Court proceedings a closed material procedure with special advocates, which is in most respects similar to that applicable in POAC; and Sch. 3 to the Investigatory Powers Act 2016 makes intercept evidence (which is inadmissible in most other proceedings) admissible in proceedings in which a declaration under s. 6 of the 2013 Act has been made. This means that the two main advantages of POAC over the High Court identified by Richards J have now largely disappeared.

I accept that there is still a difference between the closed material procedure in POAC and that available in the High Court under the 2013 Act. In POAC, CLOSED material may be withheld on the ground that its disclosure would be contrary to “the interests of national security, the international relations of the United Kingdom or the detection and prevention of crime, or in any other circumstances where disclosure is contrary to the public interest” (see r. 4 of the POAC Procedure Rules). By contrast, in proceedings under the 2013 Act in the High Court, CLOSED material may only be withheld on the ground that its disclosure would be contrary to the interests of national security (s. 6(11) of the 2013 Act). The significance of this difference should not, however, be overstated.

In most cases where an organisation is proscribed under the 2000 Act, the material which the Home Secretary seeks to withhold will be material whose disclosure would be damaging to the interests of national security, even if it would also be damaging to some other public interest. In the present case, I have already made a declaration under s. 6 of the 2013 Act and given limited permission to withhold sensitive information under s. 8. If there had been material whose disclosure was damaging to another public interest, but not to the interests of national security, the Home Secretary would have had to issue a public immunity certificate. She has not. It cannot be entirely ruled out that such a certificate might become necessary at a later stage. At the present moment, however, this is a speculative possibility and, even if it were to eventuate, there is no reason to suppose that the material in question would be of central importance to the case. This minor difference between the closed material procedures available in the High Court and POAC does not justify the weight that Sir James sought to place on it.

There is, of course, a difference in constitution between the High Court and POAC. The former consists only of judges, though in a case such as this it is possible that any substantive hearing would be heard before a Divisional Court. The latter typically sits as a panel consisting of a judge, a lawyer and a member with expertise in security and intelligence matters. This difference is not, however, sufficient on its own, to render the High Court an inappropriate forum for the resolution of the issues likely to arise in a challenge to the lawfulness of the order. Judges sitting in the High Court regularly resolve issues relating to the legality and proportionality of measures designed to address terrorism when considering Terrorism Prevention and Investigation Measures, financial restrictions and sanctions.

Finally, Richards J placed some reliance on the fact that POAC had been designated as the appropriate tribunal for the purposes of s. 7 of the HRA: see the Proscribed Organisations Appeal Commission (Human Rights Act Proceedings) Rules 2001 (SI 2001/127). However, an examination of the terms of those rules seems to me to support the opposite conclusion. They designate POAC as the appropriate tribunal only for proceedings under s. 7(1) of the HRA against the Secretary of State “in respect of a refusal by him to exercise his power under section 3(3)(b) of the Terrorism Act 2000 to remove an organisation from Schedule 2 to that Act”.

On its face, that does not cover human rights claims arising from the initial decision to proscribe under s. 3(3)(a). If that is right, claims for human rights damages flowing from the initial decision to proscribe, like other human rights claims flowing from public decisions where quashing is sought, should be brought in judicial review proceedings under s. 31(4) of the Senior Courts Act 1981.