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

At [62]-[69] of my interim relief judgment, I set out five difficulties faced by the claimant in advancing ground 1. In his skeleton argument for the permission hearing, Mr Husain made clear that this ground is now advanced as an allegation that the proscription power was used for an improper purpose (rather than that the order was ultra vires). The argument, set out at para. 21, is that I should consider the following question:

“Did Parliament intend that the Home Secretary should be permitted to exercise her conferred power for the purpose of proscribing an organisation that satisfied the section 1 TA definition, but:

(i)

whom the Home Secretary accepts does not advocate violence;

(ii)

the vast majority of whose actions were assessed by JTAC [the Joint Terrorism Analysis Centre] and PRG [the Proscription Review Group] to be lawful;

(iii)

whose protests are directed at preventing acts widely recognised as atrocity crimes and breaches of international law (including by the Foreign Secretary himself;

(iv)

which enjoys widespread and justifiable popular support;

(v)

where proscription would cause support for those lawful actions to be punishable by up to 14 years’ imprisonment;

(vi)

where ‘civil disobedience on conscientious grounds has a long and honourable history in this country’ (Fn: R v Jones (Margaret) [2006] UKHL 16, [2007] 1 AC 136, [89]); and

(vii)

as this Court appeared to accept, where proscription may have adverse consequences ‘for public confidence in the regime of the 2000 Act’ (interim relief judgment, [53])?”

At the permission hearing, Mr Husain indicated that he no longer relies on statements made in Parliament in support of this ground.

In my judgment, the points Mr Husain makes in para. 21 of his skeleton argument are all ones that can be made under ground 2. They are all, in reality, reasons for saying that the proscription order gives rise to a disproportionate interference with the Article 10 and 11 rights of the claimant and others. As elucidated in the skeleton argument for permission and at the permission hearing, however, ground 1 alleges not that the proscription order was disproportionate, but that it was made for an “improper purpose”. I do not consider that this point is arguable. As I said at [64] of my interim relief judgment, the starting point is that:

“An action done for the purposes set out in s. 1(1)(b) and (c) constitutes terrorism if it involves serious damage to property even if it does not involve violence against any person or endanger life or create a risk to health or safety… [T]his definition of ‘terrorism’ makes the statutory concept wider than the colloquial meaning of the word.”

I accept that it is possible to envisage a case where the Home Secretary exercises the proscription power in respect of an organisation which falls within the four corners of the statutory definition, but for a purpose which is not the statutory purpose. That would be the case if, for example, the decision-maker acted “for some extraneous purpose, such as to quell political views with which she disagrees” (see [68] of my interim relief judgment). But I do not see how the Home Secretary can be said to have acted for an improper purpose simply because (on the claimant’s case) she has exercised the power to proscribe an organisation which does not advocate violence against persons, but does engage in other conduct which satisfies the statutory definition of terrorism.

That argument would have the same effect as the ultra vires argument which Mr Husain made originally (see para. 65 of the original Statement of Facts and Grounds) but now disavows. It is not reasonably arguable for the reasons I gave at [65] of my interim relief judgment.

Ground 1 is not reasonably arguable.