CA-2025-001983 - [2025] EWCA Civ 1311

An oral hearing was held before the Judge on 21 July 2025 to consider the application for permission to apply for judicial review. There were eight grounds (some were subdivided). The Secretary of State also contended that, as a matter of discretion, the court ought to refuse permission as there was an adequate and convenient remedy available, other than judicial review, namely an application for deproscription, with a right of appeal against refusal to deproscribe. That issue was dealt with as a preliminary issue.

In relation to the preliminary issue, the Judge made the following observations on the statutory scheme:

“30.

The following features of the statutory scheme should be noted at the outset:

(a)

The decision whether to proscribe is legally distinct from the decision whether to grant an application to deproscribe. The former is taken under s. 3(3)(a), the latter under s. 3(3)(b). Section 5(2) confers a right of appeal to POAC against the refusal of an application to deproscribe, not against the initial decision to proscribe.

(b)

An application to deproscribe will often be made some considerable time after proscription, on the basis that events have moved on. The argument will typically be that, whatever the position at the time of proscription, the organisation is no longer "concerned in terrorism". That was the basis for the appeals of the two organisations whose cases have come before POAC to date: see Lord Alton, [2] and [14]; Arumugam v Secretary of State for the Home Department (PC/06/2002, 21 June 2024), [4]-[8].

(c)

Although there is nothing to stop an organisation from applying for deproscription shortly after it is first proscribed, the initial decision to proscribe is temporally distinct from the decision to refuse an application to deproscribe. Once an application to deproscribe is made, the Secretary of State has 90 days in which to determine it. During this period, and then while any appeal to POAC is pending and unless and until a deproscription order is made, the organisation remains proscribed, with all the consequences I set out at [33]-[39] of my interim relief judgment.

(d)

The statute does not purport to oust judicial review of decisions to proscribe. As I pointed out at the permission hearing, a contrast may be drawn in this respect with the Sanctions and Anti-Money Laundering Act 2018. That Act confers power to designate individuals. A designated individual can request variation or revocation of the decision to designate him or her. Section 38 creates a right of appeal against a range of decisions to refuse applications to de-designate, but not against decisions to designate in the first instance. Section 39(5) provides: "A decision mentioned in sub-paragraph (i), (ii) or (iii) of section 38(1)(d) [i.e. a decision to designate in the first instance] may not be questioned by way of proceedings for judicial review (and nor may a decision to which section 38 applies)". This is an example of the language Parliament uses where it intends that the only route of challenge to an initial decision is by way of appeal against the refusal of an application to vary or revoke it. There is nothing similar in the 2000 Act. Richards J made this point at [71] of his judgment in the Kurdistan Workers' Party case (drawing a contrast with another statutory ouster in the Anti-Terrorism, Crime and Security Act 2001).

31.

These matters are not determinative of the alternative remedy submission (which, as Sir James submitted, goes to discretion rather than jurisdiction), but they are important in setting the context in which that submission falls to be considered.”

The Judge next considered the “test to be applied in assessing whether an alternative remedy is adequate” and said:

“32.

The authorities cited by Sir James make clear that the suitability of an alternative remedy depends on whether the remedy is "conveniently and effectively available": see Watch Tower, at [19]. The authorities make clear that the application of this test depends not only on the statutory context, but also on the circumstances of the individual case. Sir James for the Home Secretary did not demur and indeed accepted that, in a case where the illegality of a proscription order was clear, judicial review may well be appropriate.

33.

There are five factors that seem to me to be relevant. I consider them in turn, and cumulatively, before considering the impact of the judgment of Richards J in the Kurdistan Workers' Party case.”

The five factors identified by the Judge were these. The first was timing: a judicial review hearing could be heard relatively quickly and by the autumn of 2025. If an application for proscription were made, the Secretary of State would have up to 90 days to determine that application. Any appeal against a refusal would take time and would be unlikely to be heard until the middle of 2026.

Secondly, the Judge had regard to the detriment that would be suffered before a decision was reached if it was ultimately found that the decision to add Palestine Action to the list of organisations in Schedule 2 was unlawful. The detriment here would be the inhibitions on freedom of expression occurring during that period. Thirdly, the Judge considered the position in relation to criminal convictions. He referred to the fact that a successful appeal only had a prospective effect, that is, it only allowed an appeal against convictions relating to activity occurring on or after the date of the refusal of the application to deproscribe, as prescribed by section 7 of the Act. Further, he considered that it would be likely that a person charged with a criminal offence could raise, as a defence, the fact that the Order was unlawful and Palestine Action should not be treated as a proscribed organisation. He considered that “there was a strong public interest in allowing the legality of the order to be determined authoritatively as soon as possible. The obvious way to do that is in judicial review proceedings” (see [46]).

Fourthly, the Judge considered that the fact that POAC had a special constitution (being comprised of a judge, a lawyer, and a person expert in security matters) and that it could consider a wider range of material in closed proceedings was not sufficient to render an application to deproscribe and an appeal to POAC an adequate alternative remedy in the circumstances. Fifthly, the Judge did not consider that allowing judicial review rather than a deproscription would render the latter otiose or, as it was put, “a dead letter”. Many such applications would be based on arguments that, whatever the position in relation to the initial proscription, the organisation had now ceased to be involved in terrorism. Such cases would continue to be dealt with by means of an application to deproscribe the organisation. Finally, the Judge did not consider that the decision of Richards J. in the Kurdistan Workers’ Party required him to reach a different decision. Aspects of Richards J’s reasoning were no longer apposite, notably the fact that there was now a procedure for dealing with closed material in judicial review proceedings.

The Judge’s conclusion was that:

“68.

For these reasons, the preliminary issue is determined in the claimant's favour. An application to deproscribe, coupled with an appeal to POAC if the application is refused, is not a suitable alternative remedy in the circumstances of this case. The existence of this remedy is therefore not a proper basis for refusing permission or relief in the exercise of the court's discretion, in circumstances where Parliament has not ousted the judicial review jurisdiction in respect of decisions to proscribe under s. 3(3)(a) of the 2000 Act.”

The Judge granted permission to apply for judicial review on two grounds, namely grounds 2 and 8. Ground 2 was a claim that the Order was unlawful as it was a disproportionate interference with the right to freedom of expression and assembly protected by Articles 10 and 11 of the Convention. Ground 8 was a claim that the Secretary of State should have consulted Palestine Action before making the Order and a failure to do so was a breach of natural justice and Article 6 of the Convention. Permission was refused on two grounds, grounds 3 and 4 (whether the Secretary of State had erred in concluding that Palestine Action intended to influence the UK government and whether she had failed to make adequate inquiries). Ms Ammori does not seek permission to appeal in relation to those two grounds and it is not necessary to say anything further about those grounds. The Judge also refused permission on grounds 1, 5, 6 and 7 which are considered further below.