Terror ban appeal

‘Strong’ court of five judges to sit this week

In an unusual move, five senior judges will hear the home secretary’s appeal today against a High Court ruling overturning the banning of Palestine Action as a terrorist organisation. Most appeals are heard by no more than three judges.

The earlier ruling was delivered on 13 February by the president of the King’s Bench division, Dame Victoria Sharp, sitting with two High Court judges, Mr Justice Swift and Mrs Justice Steyn. It was put on hold to allow time for Shabana Mahmood’s appeal to be heard.

The lady chief justice presides over an unrelated appeal in the civl division of the Court of Appeal last year. Lord Justice Edis sits to her right. The other judge is Lord Justice Warby

It’s no surprise to find that the Court of Appeal hearing will be presided over by the lady chief justice, Baroness Carr of Walton-on-the-Hill — one of only two judges senior to Sharp in rank. What was not known until yesterday is that she will be joined by the other judge who outranks Sharp, the master of the rolls Sir Geoffrey Vos.

Also sitting will be three other Court of Appeal members: Lord Justice Edis, who is vice-president of the criminal division; Lord Justice Lewis, a specialist in judicial review; and Lady Justice Whipple, the lead judge for diversity and inclusion.

Comment

A panel of five appeal judges that includes the two most senior judges in England and Wales would be described by lawyers as a “strong” court. The Court of Appeal sometimes sits with five members when judges are reconsidering an earlier appeal ruling. But that’s not the case here.

Constitutionally, a three-judge appeal court could overrule three judges sitting as a divisional court of the High Court. But assembling a court of this strength would buttress a decision to overturn the earlier decision — if that is what it decides to do.

It also avoids the risk of three judges in the High Court being overruled by two judges in a split Court of Appeal, which might look unconvincing. And a five-judge ruling from the Court of Appeal, especially if unanimous, might persuade the Supreme Court that this is not a case in which it needs to get involved.

Assembling such a strong court certainly does not mean the home secretary is going to win her appeal. The court’s constitution may simply be read as an indication that this is a difficult and important case which the judges want to get right.

But if the court does decide to overturn Sharp’s ruling and reinstate the proscription of Palestine Action under the Terrorism Act, the decision will be seen as authoritative rather than personal.

The issues

I published this analysis after Sharp’s ruling:

Just over a week ago, I updated that piece in the Law Society Gazette with a preview of the issues.

And Alexander Horne has also written an opinion piece for the Spectator.

Open justice

Like many cases heard in the civil division of the Court of Appeal, the hearing will be live-streamed on YouTube. There is a link on this page with a short summary of the issues. You should also be able to watch the proceedings from here. Some of the hearing may be broadcast live on television news channels.

The judges will be seated left-to-right in this order:

• Lewis, Vos, Carr, Edis, Whipple

In a welcome move, written submissions have been published ahead of the hearing. Here they are:

• Appellant’s skeleton argument

• Appellant’s supplementary skeleton argument

• Respondent’s skeleton argument

• Respondent’s reply to supplementary skeleton argument

Today’s hearing is scheduled to start at 1030 with submissions from the home secretary’s counsel and will continue tomorrow with a response from counsel for Huda Ammori, co-founder of Palestine Action and respondent to the appeal. It is expected to conclude on Thursday.

I would expect judgment to be reserved for a few weeks, with the ban remaining in place in the meantime.

Update 1300: Sir James Eadie KC, for the home secretary, argued this morning that the High Court had made errors when deciding the two grounds on which it overturned the ban on Palestine Action.

Readers will recall that these were that:

1. the home secretary had breached her own policy (ground 6); and

2. the ban was an unjustified interference with the rights to freedom of expression and assembly (ground 2).

On the first ground, Eadie argued that the High Court had erred in its interpretation and application of the home secretary’s policy.

Policies are not to be read as statutes, he maintained. They are guides, not rules.

The High Court had paid no regard to the introduction to ministerial submissions — sent by officials to the home secretary — that referred expressly to the proportionality analysis required.

In addition, the High Court’s “interpretation of the policy had the perverse (and surprising) effect that the secretary of state was precluded from consideration of the intended and beneficial disruptive effects of the proscription regime when considering whether to apply that proscription regime to an organisation concerned in terrorism”.

Turning to the second ground of appeal, Eadie said the High Court had erred in three respects:

• its rejection of the home secretary’s submission that “any expression of support for, or association with, Palestine Action amounts to the expression of support for or association with terrorist activity, and so falls outside the scope of articles 10 and 11 by virtue of article 17”;

• its decision that the interference with human rights was not prescribed by law by reason of the home secretary’s failure to apply the policy; and

• when considering whether a fair balance had been struck, the decision that “the nature and scale of Palestine Action’s activities, so far as they comprise acts of terrorism, has not yet reached the level, scale and persistence that would justify the application of the criminal law measures that are the consequence of proscription, and the very significant interference with [human] rights consequent on those measures”.

Update 1630: Raza Husain KC, for Ammori, argued that the home secretary’s appeal should be dismissed.

On the first ground, he said

• the High Court was right to find that the home secretary’s policy required her to assess whether there was a particular need to proscribe above and beyond the necessary belief that Palestine Action is concerned in terrorism;

• the mere fact that the consequences of proscription would apply to Palestine Action if proscribed was not a relevant consideration in respect of whether there was such a particular need for the obvious reason that such consequences and advantages will apply equally to any organisation that could be proscribed; and

• the home secretary wrongly took the decision to proscribe Palestine Action in a manner inconsistent with her policy by treating that fact as a key matter in favour of exercising the discretion to proscribe.

On the second ground, Husain said the High Court had been right to conclude that the proscription of Palestine Action was incompatible with articles 10 and 11 (freedom of expression and assembly). “The mere fact that a form of expression gives rise to a criminal offence under domestic law — including an offence involving serious damage to property — does not remove it from [human rights] convention protections,” he added.

He rejected the home secretary’s argument all those expressing support for, and associating with, Palestine Action — whatever their individual speech or conduct — should be regarded as “supporting a terrorist group, the activities of which were inconsistent with democratic values and the rule of law”. This was “unsustainable in law, fact and principle; and contrary to the UK’ s long-standing approach to direct action protest”.