UK Government Opposes Application for Scottish Judicial Review of Palestine Action Terrorist Proscription

The UK government, in the undistinguished shape of Baroness Smith of Cluny, Labour party hack, youngest daughter of John Smith and Advocate-General for Scotland, has responded to the court in our request for a Scottish judicial review of the proscription of Palestine Action.

The Government asks that the judicial review be denied on 5 grounds:

1) That I have no legal standing. The Government does not accept that I previously participated in any Palestine Action activity or expressed support for Palestine Action:

“The Petitioner’s averments relating to his alleged support for Palestine Action and alleged participation in protests organized by Palestine Action are not known and not admitted.”

They evidently were not able to read these articles!

Freedom of Speech: Elbit and Fascist Policing

Now Protest Is a Moral Duty

2) That the Petition is unnecessary as it duplicates proceedings in England

This is the classic unionist, stance. It ignores the fact that the High Court of England and Wales in not superior to the Court of Session in Scotland and there is precedent for a judicial review in both jurisdictions coming to different decisions on the same facts and circumstances. (The Miller and Cherry cases on Boris Johnson’s prorogation of parliament).

3) The Petition has no real prospect of success

This contradicts (2) because in the English case both the High Court and Court of Appeal specifically rejected this argument in granting a judicial review. So the UK Government is arguing both that the English case makes this case unnecessary – and that the English courts are wrong. This seems rather peculiar.

4) The Petitioner’s averments being irrelevant et separatim lacking in specification, the Petition should be dismissed.

This is effectively the same argument in 3, and again it was dismissed by the English Court of Appeal.

5) Yvette Cooper was under no duty to consult anybody at all before proscribing Palestine Action

Yet again, this is rehashing argument which the UK government spectacularly lost in the English Court of Appeal. Indeed, there judicial review was granted into three separate grounds of faulty process through failure to consult.

6) That Article X and XI of the European Convention of Human Rights (freedom of speech and freedom of assembly) are not engaged because of the exception for terrorism.

Once more, this is a ground on which they failed to block judicial review in the Court of Appeal in England, because the question of whether Palestine Action can properly be considered a terrorist group, and whether the effect on freedom of speech and assembly is disproportionate, are arguable grounds before the judicial review.

So in short I am confident at this stage. The only grounds on which they did not already lose in England are the question of my standing, and the question of whether a Scottish judicial review can be held when one is being held in England.

On my standing they have made a mistake in disputing that I had taken part in any action organised by Palestine Action or urged people to support it. But even it that were not the case, Walton vs Scottish Ministers established that a person with a genuine interest in a subject of wide public concern has standing.

As Lord Reed stated in that case: “The rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no-one was able to bring proceedings to challenge it”.

On whether there can be a Scottish judicial review when one is already granted in England, it is not surprising that the government wishes to challenge this. It is an assertion of Scotland’s separate rights and jurisdiction. For decades it was simply accepted that the High Court of England and Wales was responsible for judicial review of matters which – like the proscription of Palestine Action – affected the whole of the UK.

I think I am right in saying that Boris Johnson’s proscription of parliament was the first time an action had been separately judicially reviewed in both England and Scotland.There the English courts gound for Boris Johnson (ie the government) and the Scottish courts found against him. I do not think it at all improbable that the Scottish review will ultimately find the proscription of Palestine Action was unlawful while the English review will find for Yvette Cooper.

Then either the UK government will have to go to the Supreme Court (whose existence is an abnegation of the Treaty of Union). Or Palestine Action will be legal in Scotland and banned in England. In the proscription case the government went to the Supreme Court and lost – it agreed with the Scottish judges.

We wait now for a court date. I am sorry to say this but we do need to ask for donations to continue this forward. It is a very expensive thing to do. One thing the government relies on is that it has unlimited resources and we do not. If we can spread the burden across enough small contributions, we can do it.

Every penny helps, but please do not cause yourself hardship.

You can donate through the link via Crowd Justice, which goes straight to the lawyers, or through this blog.

https://www.crowdjustice.com/case/scottish-challenge-to-proscription/

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