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

Sir James Eadie KC for the Secretary of State submitted that the purpose of judicial review is “to ensure that the rule of law is respected where no other procedure is suitable to achieve that objective”: R (Glencore Energy UK Ltd) v HMRC [2017] EWCA Civ 1716, [2017] 4 WLR 213, [55]. The existence of an alternative remedy is a discretionary bar to the grant of permission and/or relief, not a jurisdictional one: Sharma v Brown-Antoine [2006] UKPC 57, [2007] 1 WLR 780, [14(4)].

In R (Watch Tower Bible & Tract Society of Britain and others) v Charity Commission [2016] EWCA Civ 154, [2016] 1 WLR 2625, Lord Dyson MR (with whom McCombe and David Richards LJJ agreed on this point) said this at [19]:

“If other means of redress are ‘conveniently and effectively’ available to a party, they ought ordinarily to be used before resort to judicial review: per Lord Bingham of Cornhill in Kay v Lambeth London Borough Council [2006] 2 AC 465, para 30. It is only in a most exceptional case that a court will entertain an application for judicial review if other means of redress are conveniently and effectively available. This principle applies with particular force where Parliament has enacted a statutory scheme that enables persons against whom decisions are made and actions taken to refer the matter to a specialist tribunal... To allow a claim for judicial review to proceed in circumstances where there is a statutory procedure for contesting the decision risks undermining the will of Parliament.”

The same principle was affirmed by Lord Sales and Lord Stephens for a unanimous Supreme Court in Re McAleenon’s Application for Judicial Review [2024] UKSC 31, [2024] 3 WLR 803, at [51]:

“Where Parliament has enacted a statutory scheme for appeals in respect of certain decisions, an appeal will in ordinary circumstances be regarded as a suitable alternative remedy in relation to such decisions which ought to be pursued rather than having resort to judicial review: Glencore Energy, above, paras 55-58; Watch Tower Bible & Tract Society, above, para 19. Otherwise, use of judicial review would undermine the regime for challenging decisions which Parliament considers to be appropriate in that class of case”.

In the present case, Sir James submitted that there is a “convenient and effective” alternative remedy. Once proscribed, an organisation or “any person affected by the organisation’s proscription or by the treatment of the name as a name for the organisation” can make an application to the Secretary of State for, inter alia, an order under s. 3(3)(b) removing it from Sch. 2 (see ss. 4(1) and 4(2) of the 2000 Act). Regs 3 and 4 of the Proscribed Organisations (Applications for Deproscription etc.) Regulations 2006/2299 (“the 2006 Regulations”) set out in detail the information that should be provided with such an application. The Secretary of State must then determine that application within 90 days: reg. 7 of the 2006 Regulations. If the Secretary of State refuses, the applicant may appeal to POAC: s. 5(2) of the 2000 Act. POAC will allow the appeal if it considers that the decision to refuse was flawed when considered in the light of the principles applicable on an application for judicial review: s. 5(3) of the 2000 Act. Where it allows an appeal, it may make an order such that the Secretary of State must, as soon as reasonably practicable, lay an order/make an order in accordance with s.123(4) or (5) to remove the organisation from Sch. 2 (s.5(5)).

The legal logic of this regime is that, following proscription, it is for the Secretary of State to consider any application for deproscription and make a determination. Parliament has provided for that determination to be reviewed by POAC – no doubt because it will have been made on the basis of full submissions from the people affected. It also recognises the primacy that Parliament affords to the Secretary of State in matters relating to national security, ensuring the effectiveness of proscription decisions based on national security grounds by enabling such decisions to take effect before the right of appeal arises. The claimant’s attempt to challenge the proscription of PA by way of judicial review at this stage subverts this process.

The primacy of the statutory process created by ss. 4-5 of the 2000 Act was recognised by Richards J in R (Kurdistan Workers' Party) v. Secretary of State for the Home Department [2002] EWHC 644 (Admin), [70]-[92].

As to the adequacy of the POAC procedure, the Secretary of State makes the following further submissions.

First, the claimant’s grounds are all capable of being determined by POAC in a statutory appeal: Kurdistan Workers’ Party, [81]-[82]; and Secretary of State for the Home Department v Lord Alton [2008] EWCA Civ 443, [2008] 1 WLR 2341. By s. 5(3) of the 2000 Act, POAC is required to allow an appeal if it considers that the decision to refuse to deproscribe was flawed.

Secondly, POAC is a specialist tribunal with procedures designed specifically to deal with the determination of claims relating to proscription. In that context, Parliament has considered it necessary, as part of the overall detailed regime of proscription, to establish such a forum, and to designate it as the appropriate tribunal for the purposes of s. 7 of the Human Rights Act 1998 in relation to proceedings against the Secretary of State in respect of a refusal to deproscribe.

Thirdly, the claimant’s appeal against deproscription lies to POAC as of right. Unlike judicial review, there is no arguability threshold.

Fourthly, as a matter of principle, challenges relating to proscription may raise sensitivities relating to international relations. Information relating to international relations may be considered by POAC in CLOSED in circumstances where its disclosure would be damaging to the public interest: para. 5(2)(b) of Sch. 3 to the 2000 Act and rule 14(2)(c) of the Proscribed Organisations Appeal Commission (Procedure) Rules 2007 (“the POAC Procedure Rules”, SI 2007/1286). This is not possible in the High Court, even after the introduction of the 2013 Act, which provides for the withholding of national security sensitive information only: see s. 6(11) of the 2013 Act. Thus, in a case where sensitive material relating to international relations is in issue in a claim for judicial review of a proscription decision, it would be necessary for the Secretary of State to make a claim for public interest immunity over such material. This would be unsatisfactory.

Fifthly, the statutory procedures relating to POAC make express provision for the effect of a successful deproscription appeal on criminal convictions: see s. 7(1) of the 2000 Act.

Finally, in his oral submissions Sir James submitted that the whole procedure for applying for deproscription and for appealing against the refusal would become otiose if judicial review were available.