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

The first question is whether an application under section 4 of the Act to remove an organisation from the list in Schedule 2, coupled with the right of appeal to POAC under section 5 if the application is refused, was intended by Parliament to be the means of challenging the lawfulness of the exercise of the power provided by section 3(3)(a) to make an Order adding an organisation to the list in Schedule 2. That is a question of statutory interpretation, which requires consideration of the words used, read in context, and having regard to the underlying purpose of the statute and any legitimate aids to interpretation: see the authoritative observations of Lord Hodge in R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2022] AC 255 at [29] to [31]. It involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. As Lord Nicholls stated in R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] AC 349 at 396:

“…The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the "intention of Parliament" is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning "cannot be what Parliament intended", they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.”

For the reasons set out below, we consider that sections 4 and 5 are intended to enable a person to challenge the continued proscription of an organisation and to bring that proscription to an end. They are not, and are not intended as, a means of challenging the lawfulness of the initial decision to proscribe the organisation.

First, the provisions of the Act specifically distinguish between different decisions. Section 3(3)(a) of the Act confers a power to “add an organisation to Schedule 2”. Section 3(3)(b) provides a power to “remove an organisation from that Schedule”. An application under section 4(1) is expressed to be an application for an order “removing an organisation from that list” (i.e. an application requesting the exercise of the power conferred by section 3(3)(b) of the Act). Similarly, section 5 deals with the powers of POAC to “allow an appeal against a refusal to deproscribe an organisation”. As the Judge observed at [30], the “decision whether to proscribe is legally distinct from the decision whether to grant an application to deproscribe”.

Secondly, and most significantly, the process for deproscribing is not intended to remove the consequences of an initial, unlawful decision to proscribe an organisation. Section 7 of the Act makes it clear that there will be a right of appeal against a criminal conviction in respect of action occurring on or after a refusal to deproscribe (where POAC subsequently allows an appeal and Parliament approves a draft order providing for the removal of the organisation). It does not provide for the removal of the consequences, including criminal convictions, where the Order was unlawful from its inception. That is a strong indicator that the process for deproscribing was not intended as a means to remedy any of the consequences of an unlawful initial proscription.

Sir James submitted that the fact that persons would have been convicted of offences for actions occurring prior to a refusal of an application for deproscription was the result of a deliberate decision by Parliament. Those who engaged in action prohibited as a result of an order would be liable to conviction until the period when an application was refused but should have been granted.

We do not accept that, objectively construed, Parliament can be taken to have intended that persons should have criminal convictions recorded against them in such circumstances. The premise here is that an order was made adding an organisation to the list of proscribed organisations in Schedule 2 to the Act. As a result of that order, it became a criminal offence to be a member of, or support, or arrange funding for that organisation because it was a proscribed organisation. If the order was unlawful, the organisation should not have been proscribed (and, on judicial review, the order could be quashed and would be treated as never having produced legal effect). That would have the consequence that membership or support for that organisation would not be criminal. It is difficult to see why, if Parliament intended deproscription to be a means of challenging an initial decision to proscribe, it would leave in place the consequences of that initial (unlawful) order up to the date when the application for deproscription should have been granted, and only to remove the consequences of an unlawful initial decision to proscribe the organisation from that later date.

In our judgment, the process of applying for deproscription, and an appeal against a refusal, is intended to deal with another situation. It is most obviously, though not exclusively, a means of bringing proscription to an end when circumstances have changed. An organisation may well have been an appropriate candidate for inclusion in the list of proscribed organisations at the time when the order adding it to the list of such organisations was made. However, circumstances may change, and the organisation may cease at some stage to be involved in terrorism. That explains why an organisation or an affected person may wish to apply for an order removing the organisation from the list of proscribed organisations. That explains why convictions may only be challenged in respect of the period on and after the date at which it should have been recognised that the organisation should no longer be proscribed. It may be that an applicant may advance the fact that the organisation should not have been proscribed in the first place as a ground for deproscription. The application is, however, for an order removing the organisation from the list. It is not an application challenging the order adding the organisation to the list. Put simply, the process in section 4 and 5 is concerned with whether an organisation should continue to be proscribed. It is not intended to be a means of challenging the initial decision to proscribe and does not provide for the removal of the consequences of an initial decision to proscribe an organisation.

Accordingly, this is not a case where Parliament has established a statutory procedure for challenging an order adding an organisation to the list of proscribed organisations. For these reasons, which are reflected in the Judge’s observations on the features of the statutory scheme at [30] of his judgment, an application for deproscription is not an alternative remedy to judicial review of a decision to proscribe.

If we are wrong about that, we have considered whether the Judge was correct to conclude that the availability of an application to deproscribe, and an appeal against refusal, was not an adequate alternative remedy in this particular case. On this basis, the application to deproscribe, with the right of appeal against a refusal, is to be treated as an available alternative remedy, and the question is whether the Judge was entitled to find that it was not an adequate alternative remedy in the circumstances of this case.

We consider that, on the facts of this case, the Judge was entitled to conclude that that remedy was not adequate in the circumstances. We consider that the fact that judicial review would be a more expeditious means of challenging the order, given the public importance of the issues raised, and, in particular, the fact that persons were facing convictions for acting in ways made criminal as a consequence of the Order, justified using judicial review rather than the process of applying for an order to remove Palestine Action from the list of proscribed organisations. That is particularly the case as, we are told, a number of persons have been charged and face criminal convictions for actions taken in support of Palestine Action. There is merit in ensuring that there is a swift method of authoritatively determining whether the Order, and the proscription of Palestine Action, was lawful or unlawful. The Judge was entitled to conclude for those reasons that judicial review would, exceptionally, be appropriate even if an application for deproscription, with a right of appeal to POAC if the application were refused, was intended to be a means of challenging the making of an order. Furthermore, the Judge was entitled to form the view that he did that the advantages of the different constitution of POAC and its (slightly) wider powers to consider closed material did not outweigh that consideration. Nor would the judgment render sections 4 and 5 otiose or a “dead letter”. As a minimum, that process would be used where it was contended that a proscribed organisation had ceased to be involved in terrorism and should be desproscribed.

There are two further matters upon which we would make certain observations. First, the third of the five factors which the Judge considered were relevant in deciding how he should exercise his discretion in assessing the suggested availability of an alternative remedy was described as “criminal cases”. The Judge said:-

“44.

It is a premise of the Home Secretary’s “alternative remedy” argument that there are two routes by which the proscription can be challenged: (i) judicial review or (ii) application for deproscription followed by appeal to POAC. This leaves out of account a third possible route. Those charged with criminal offences under the 2000 Act in respect of alleged support for PA may seek to challenge the validity of the proscription order by way of defence to their criminal proceedings. On the face of it, since the order is secondary legislation, it seems likely that they would be entitled to do so, applying the principles set out by the House of Lords in Boddington v British Transport Police [1999] 2 AC 143.

“45.

As a matter of principle, it seems likely that the defence could include the incompatibility of the order with Articles 10 and 11 ECHR: see e.g. RR v Secretary of State for Work and Pensions [2019] UKSC 52, [2019] 1 WLR 6430. Sir James would not be drawn on whether such a defence would be open to defendants in criminal proceedings, but suggested no plausible reason why not.”

In his oral submissions Sir James developed the Secretary of State’s position beyond the way it had appeared to the Judge. He sought to argue that the rule in Boddington does not enable a challenge to a decision made under powers conferred in primary legislation where that decision results in an amendment to primary legislation which creates the relevant offence. In this case the consequence of the exercise of the power is to amend Schedule 2, which is primary legislation. The Secretary of State, therefore, does now seek to suggest a “plausible reason” why the suggested unlawfulness of the proscription order is not a defence to criminal proceedings. She submits that it would not be open to the defendants and criticises the judge’s suggestion that it might be as “very obviously wrong”.

Boddington did indeedconcern a byelaw, but it also concerned an administrative decision. That decision was a decision to post notices throughout all the trains operated on the railway so that they gave rise to a complete ban on smoking. The byelaw only created a criminal offence (so far as relevant) where such notices had been posted, and the defendant smoked nonetheless.

Lord Irvine LC records the dispute at 151F in this way:

“It is not suggested that byelaw 20 was itself ultra vires the powers which the primary legislation conferred upon the British Railways Board. Objection is, however, made to the administrative decision by which no smoking notices came to be displayed on the trains.”

Lord Irvine explained the scope of Mr Boddington’s defence at pages 151G-152C. Mr Boddington submitted that the decision to post notices in all train carriages, thereby prohibiting smoking, exceeded the powers conferred by the relevant statute. That conferred a power to regulate the use of the railways and the complete prohibition on smoking went beyond permissible regulation. He submitted that the unlawfulness of the decision to post the notices had the effect of nullifying it so that the byelaw had not been properly brought into operation. That, he said, gave him a defence to the offence with which he was charged. Lord Irvine, however, considered that the defence raised “the question of the extent to which a defendant to a criminal charge may defend himself by pointing to the unlawfulness of subordinate legislation, or an administrative act made under that legislation, the breach of which is alleged to constitute his offence”. All members of the House of Lords considered that the notice was valid as the power to regulate the use of railways permitted the train operator to prohibit smoking. Their Lordships also considered that as a matter of general principle a defendant could raise the validity of subordinate legislation or an administrative act as a defence, subject to consideration of the particular statutory context to determine whether Parliament had legislated to preclude such challenges being made (see per Lord Irvine at 160B-D, per Lord Browne-Wilkinson at164D-E, per Lord Slynn at 164E-G, Lord Steyn at 173F-H, Lord Hoffman agreed with the speeches of Lord Irvine and Lord Steyn).

Turning to the distinction advanced by Sir James, there is a difference between primary and secondary legislation in that the court cannot entertain a challenge to the validity of the former (as opposed to a challenge to its suggested meaning or its compatibility with the Convention). However, in this case there is no challenge to the provisions of the Act. The difference relied upon by Sir James is not therefore a relevant difference. The challenge here is to the decision made by the Secretary of State to make secondary legislation, namely the Order, following the affirmative resolution procedure. The fact that the effect of this secondary legislation was to amend primary legislation does not mean that the decision is immune from challenge by judicial review. It is not suggested that it does. The Secretary of State has still not therefore identified a plausible reason why a defence could not be advanced in the criminal courts based on the suggested unlawfulness of her decision-making.

It is not necessary for us in this case to determine whether the approach in Boddington would enable challenges to subordinate legislation of the present kind in criminal proceedings. The arguments here will concern the question of whether the Order was a disproportionate interference with the rights guaranteed by Article 10 and 11 of the Convention or involved a failure to consult prior to making the Order. That may require extensive evidence. We heard argument about the importance of the different approaches to closed material in POAC and in the Administrative Court in judicial review cases. What is clear is that the criminal court cannot, in reaching a decision, rely on material which is not disclosed to a defendant and, generally, the public. Boddington is silent on this factor. We do not need to determine whether such factors are sufficient to distinguish this case from the situation in Boddington. If public law challenges to the Secretary of State’s decision are raised, the courts where they arise will have to decide how to deal with them. We have not heard full argument about the reach of the Boddington principle in this situation and it would be wrong for us to rule on the issue.

As we have said, however, the Judge was entitled to give weight to the impact of these issues on criminal proceedings as a relevant factor. Whatever may be the right approach to their determination in criminal cases, it is clearly preferable that the lawfulness or otherwise of the Secretary of State’s decision should be determined in proceedings which can be conducted expeditiously and which are well-suited to the task. Whatever the outcome, a ruling by the Administrative Court will, as a minimum, lend clarity to the criminal proceedings. If the Order is quashed, the criminal proceedings will end. If not, it is likely to be difficult to argue in the criminal courts that the Order was unlawful. Whether a finding of lawfulness in the Administrative Court would be strictly binding on the question or not, the criminal courts will attach considerable weight to it. This is why the Judge said:-

“46.

If the legality of the proscription order can properly be raised by way of defence to criminal proceedings, that would open up the spectre of different and possibly conflicting decisions on that issue in Magistrates’ Courts across England and Wales or before different judges or juries in the Crown Court. That would be a recipe for chaos. To avoid it, there is 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.”

The Secretary of State in her written submissions to this court said:-

“44.

Accordingly, not only was the lower court’s approach here very obviously wrong – and on the issue which is pivotal to the rationale of its conclusion - but it also creates the very ‘recipe for chaos’ it purports to guard against: first, it stands as High Court authority for the proposition that there can be a Boddington defence to any criminal prosecution for a proscription offence; and secondly, it adds to that ‘chaos’ by providing for two tribunals (the High Court and POAC) which are both said to be capable of finally resolving the question in issue here, namely the lawfulness of the organisation’s proscription. (There is nothing to prevent any person affected by Palestine Action’s proscription from applying for its deproscription at any time during this judicial review.)”

We would make the following observations about the suggested consequences of the Judge’s approach. The Judge’s decision does not “stand as High Court authority for the proposition that there can be a Boddingtondefence to any criminal prosecution for a proscription offence”. He said only that “[o]n the face of it, since the order is secondary legislation, it seems likely that they would be entitled” to raise such a such a defence. That cannot be characterised as a finding that, in law, it is capable of being raised as a defence. His approach was the same as ours above, namely to say that, whether there is merit in the defence or not, it is likely that it will be advanced in multiple cases and in multiple criminal courts, and perhaps in multiple different ways. That will create “chaos” which can be avoided by an early and authoritative decision about the lawfulness of the Order. Nor is it clear how the Secretary of State proposes to avoid the situation described by the Judge if her preferred course for the resolution of the lawfulness of her decision is followed. As we have explained, the Secretary of State has not, in our judgment, identified any basis for concluding that a defence may not be raised, following the approach in Boddington where the lawfulness of a decision has not been authoritatively decided. The criminal court will have to consider the evidence and legal submissions and determine whether any defence is made out. We do not know what, if any, closed material was relied upon by the Secretary of State in making the deproscription decision. If there was any, this may give rise to a difficult issue for the criminal courts to resolve, for the reasons explained above. Its resolution may delay proceedings and produce different outcomes in different courts. We consider that the criticism of the use made by the Judge of the possibility of defences being raised in criminal courts, relying on the approach in Boddington, was not made out.

The second issue concerns the decision of Richards J. in the Kurdish Workers’ Party case. There, Richards J. refused permission to apply for judicial review of decisions adding certain organisations, including the Kurdish Workers’ Party, to Schedule 2. The decision is not binding on us as it is a decision on permission (albeit one that was fully argued) and is a decision of the High Court. Nonetheless, the reasoning deserves consideration.

In each case, the organisation (or an individual) applied for judicial review of the order adding it to the list of proscribed organisations. Richards J. considered it “plain that Parliament, although not seeking to exclude the possibility of judicial review, intended POAC to be the forum of first resort for the determination of claims relating to the lawfulness of proscription” (see [75]). For the reasons given above, we disagree with that analysis of the provisions of the Act. We consider that a different conclusion is to be drawn from the wording of the Act. We note, in particular, that Richards J. did not at this stage of his judgment consider the inferences to be drawn from section 7 of the Act.

Richards J. gave a number of reasons why he considered that an application for deproscription, with an appeal to POAC if the application was refused, was intended as a means of challenging the initial decision. First, he referred to the fact that POAC was a specialist tribunal designed to deal with proscription claims in a context heavily laden with national security. Like the Judge we consider that matters have moved on since the judgment of Richards J. In particular, there is now a closed material procedure which enables the Administrative Court to deal with national security issues. We do not consider that the constitution of POAC, nor the limited circumstances where POAC may receive closed material but the Administrative Court would not, justify treating an application for deproscription, coupled with a right of appeal, as an available remedy for challenging the lawfulness of the initial decision to add an organisation to the list of proscribed organisations. Nor, if it were an available remedy, do those factors outweigh the other factors which render it justifiable to seek judicial review in the present case.

Next Richards J. referred to the fact that POAC has been designated as the appropriate tribunal for the purposes of section 7 of the HRA in respect of a refusal to deproscribe. That factor is at best neutral. An applicant cannot challenge the decision to proscribe in POAC (and POAC is not designated as the appropriate tribunal for challenges to such decisions). At most, an applicant can apply for an organisation’s name to be removed from the list of proscribed organisations and can seek to rely, in its grounds for doing so, on the fact that the organisation should not have been proscribed in the first place. If those grounds are raised, POAC could deal with them. That fact, however, says little, if anything, about whether an application to deproscribe, coupled with an appeal against a refusal, is an available, or an adequate, remedy for challenging a decision or Order adding an organisation to the list of proscribed organisations.

Having concluded that an application to deproscribe was an available remedy, Richards J. considered whether it would be adequate in the circumstances of the case. In that regard, it is important to note that Richards J. did refer in this context to the difference in remedies available in the Administrative Court and POAC. In particular he noted that POAC did not have any power to quash the initial Order proscribing an organisation. He noted that that meant that the proscription of the organisation remained valid until the date of an order removing the organisation from the list of proscribed organisations (or the date when an application was refused where POAC considered that it should not have been refused). He considered that might be relevant if any of the claimants in that case were subject to sanctions dependent on the validity of the proscription in the interim period. He did not think, however, that this difference “would have any practical consequence for the claimants”. We doubt that Richards J. was indicating that it did not matter that persons might be convicted of an offence on the basis of an order which, it subsequently transpired, was unlawful. If he were, we would respectfully disagree with him. Rather we think it likely that, on the facts of that case, there was nothing to indicate that convictions were in prospect. In the present case, we consider that the wording of section 5 and the limitations in section 7 of the Act are a strong indicator that the procedure for applying to deproscribe an organisation was a means of bringing proscription to an end not a means of challenging the validity of the initial proscription. In any event, in this case it is likely that many persons were charged with offences during the period between the making of the Order and the date of any deproscription (or unlawful refusal to deproscribe). That is one factor indicating that, in any event, judicial review would exceptionally be appropriate here for the reasons given above.

For those reasons none of the grounds of appeal are made out. We therefore dismiss the appeal against the decision of the Judge on the preliminary issue.