Palestine Action Judicial Review

Former Ambassador, Human Rights Activist

On Friday we have our appeal against the suspension of the Palestine Action judicial review in Scotland. Our legal crowdfunder has been closed down by the card processors following Trump’s designation of Palestine Action as a global terrorist organisation.

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

If you can, please come to the Court of Session in Edinburgh for 10am. If you cannot come, you can watch the livestream here

For the first time I was not involved with the legal team in drafting the Note of Argument, because I was too sick in the three day window after the last hearing we had to prepare it.

It turns out that our lawyers are much more radical when freed from me exhorting them to be more radical!

NOTE OF ARGUMENT FOR THE RECLAIMER
PETITION
of
CRAIG MURRAY, residing at  EH10

RECLAIMER
For judicial review of the Terrorism Act 2000
(Proscribed Organisations) (Amendment) Order 2025

1. INTRODUCTION
1.1 The reclaimer moves the Court to:
a. allow the reclaiming motion;
b. recall the interlocutor of the Lord Ordinary dated 25 August 2026;
c. remit the cause to the Lord Ordinary:
i. with a direction that he report the whole cause to the Inner House in terms
of rule 34.1(1);
ii. failing which, with a direction for urgent disposal of the petition in the
Outer House.

2. SUMMARY
2.1 For the reasons outlined in this Note, the reclaimer submits that:
a. The decision to sist the proceedings was incompetent, failing which, plainly wrong
in all of the circumstances.
b. The decision not to report the whole cause to the Inner House, while also declining
to dispose of the petition in the Outer House, was plainly wrong in all of the
circumstances.

3. THE PETITION

3.1 The petition contends that the Terrorism Act 2000 (Proscribed Organisations)
(Amendment) Order 2025 (“the Order”) is unlawful because (i) it was passed in
circumstances which are procedurally unfair, et separatim (ii) it gives rise to a
disproportionate interference with the reclaimer’s Convention Rights under Art.10 ECHR;
et separatim (iii) it gives rise to a disproportionate interference with the reclaimer’s
Convention Rights under Art.11 ECHR. The petition as adjusted raises, among other
matters, Scotland-specific issues around (lack of) prior consultation with relevant Scottish
actors, and the relevance of events occurring in Scotland and founded upon by the Home
Secretary in support of the Order. The petition seeks orders of declarator and reduction
directed against the Order.

4. CHRONOLOGY/PROCEDURAL HISTORY
4.1 In order for the court properly to understand the grounds of appeal, it is necessary to
contextualise them within the procedural history of this petition to date, which is as
follows:

4 Jul 2025 The Home Secretary makes the Order which, effective from 5 July 2025,
lists and proscribes across England, Wales, Scotland and Northern
Ireland as “organisations concerned in terrorism”:
– “the organisation using the name Palestine Action that is based in
the United Kingdom”
– Maniacs Murder Cult (MMC) (MKU) (MKY) and
– Russian Imperial Movement (RIM) (RID), including Russian
Imperial Legion (RIL).

3 Oct 2025 Within 3 months of its publication, the reclaimer lodges the petition in
which he seeks to challenge the lawfulness of the Order.

6 Oct 2025 The Lord Ordinary, Lady Poole, grants first orders in the petition.

11 Dec 2025 The UK Government having lodged Answers and intimated that it
opposed the grant of permission, the Lord Ordinary, Lord Young,
advises that he wishes to be addressed by parties in relation to two
issues raised in the Answers lodged by the respondent, namely:
(i) whether the petitioner had a sufficient interest to give him
standing to proceed with this petition, and
(ii) whether it was appropriate or necessary for these proceedings
to proceed given the existence of what the Lord Ordinary
referred to as “identical proceedings in England” which had
been brought by Huda Ammori.

12 Jan 2026 At an oral permission hearing, the Lord Ordinary, Lord Young, hears
submissions from the UK Government (as respondent to the petition)
to the effect that, given the existence of the English proceedings, the
Lord Ordinary should suspend or stop the Scottish petition proceedings
pending the determination of the English proceedings, whether by:
– refusing the petitioner permission to proceed; or alternatively;
– reserving the issue of permission and sisting the Scottish JR until a
decision was available in the English proceedings; or
– granting permission but then immediately sisting the proceedings
until the decision in the English proceedings was available and had
been digested.
The Court, having heard submissions from counsel both for the
petitioner and the respondent at the oral hearing, makes avizandum.
26 Jan 2026 The Lord Ordinary, Lord Young, grants permission for the petition
noting that:
“As a matter of principle, a petitioner who has standing and
whose petition sets out arguments of sufficient merit to satisfy
section 27B(2)(b) of the Court of Session Act 1988 should not be
refused permission because of the existence of parallel
proceedings in another UK jurisdiction. The petitioner claims
that his legal rights have been illegally circumscribed by the
2025 Order. He is entitled to look to the courts of his place of
residence for a determination of that complaint. … There is no
suggestion that these proceedings are being advanced for an
improper or abusive purpose such as a campaign to swamp the
respondent with a multitude of proceedings. The possibility
that any substantive hearing in this petition will require the
adoption of closed material procedure is not a factor of any
weight to the issue of permission. The necessary arrangements
will be put in place if the closed material procedure is required”
[pleadings bundle p.36].
The Lord Ordinary accordingly fixes a substantive hearing for 17-18
March 2026 for the judicial review petition to be considered and
determined.

11 Feb 2026 The Lord Ordinary, Lord Young, on the respondent’s motion discharges
the timetable set out in the interlocutor dated 26 January 2026 and
allocates 23 February 2026 to allow parties to address the court (anew)
on the matter of timetabling.

26 Feb 2026 The Lord Ordinary, Lord Young, discharges the substantive hearing
fixed for 17- 18 March 2026. In lieu he thereof assigns a substantive
hearing to take place before him on 24-25 June 2026. He orders the
respondent to appoint a special advocate within 7 days of the petitioner
intimating a suitable name to the Special Advocate Support Office
(SASO). He orders the special advocate to intimate to the court by 20
March 2026 whether there is any opposition from him to an application
for a declarator (under section 6 of the Justice and Security Act 2013)
that a closed material application may be made to the court in these
proceedings. He allocates an initial diet for his consideration of the
section 6 application on 26 March 2026.

17 Mar 2026 The Lord Ordinary grants the UK Government’s motion – made under
reference to sections 8 and 11(4) of the Justice and Security Act 2013 –
for the court’s permission for the UK Government to withhold sensitive
material otherwise than to the Court and the Special Advocate, for the
purpose of its section 6 application.

26 Mar 2026 The Lord Ordinary grants the UK Government its requested Section 6
declaration that the proceedings are proceedings in which a closed
material application may be made to the court. He refuses (in hoc statu)
a renewed motion from the UK Government for the proceedings to be
sisted. He makes detailed procedural orders concerning the Closed
Procedure in which the petitioner cannot participate in any way. In
respect of open procedure, he assigns 10 June 2026 for a further
continued procedural hearing. He allows parties to adjust their
pleadings and to lodge final versions by 2 June 2026. He appoints notes
of argument, statements of issues, productions and affidavits to be
lodged no later than 9 June 2026. He appoints parties to lodge a list and
duly marked-up bundle of authorities no later than 10 days prior to an
OPEN substantive hearing fixed for 24-25 June 2026. A CLOSED
substantive hearing is fixed for 26 June 2026.

27-28 May 2026 The Lord Ordinary, Lord Young, makes a number of orders including:
refusing the petitioner’s motion “for suspension ad interim of the Order
in so far as it extends to Scotland” and allowing the UK Government to
withhold sensitive material otherwise than to the Court and the Special
Advocate, for the purpose of its application under Section 8 of the 2013
Act. In the face of opposition from the petitioner, the Lord Ordinary
grants the respondent’s motion to sist the cause for the earlier of 4
months, or “the Court of Appeal giving its judgment in Ammori v SSHD

(Appeal No. CA-2026-000583) and the question of onward appeal to
the UK Supreme Court being resolved”, noting:
“9. … Where the identical matter extending to Scotland has been
argued and determined by a competent court in the UK, it is
contrary to the principle of comity for this court to seek to relitigate
that issue. …. 14. A sist of proceedings, whether on an
agreed or opposed basis, is a regular feature of litigation. It is
commonly applied where there is a test case which will
determine common issues found in other cases. Those other
cases will be sisted behind the test case. Sists may be imposed
by the court against the wishes of one or both parties. Scottish
cases are often sisted pending determination of parallel
proceedings in England, and vice versa. Ultimately, the aim is to
ensure that common issues are determined as expeditiously as
possible, and with the avoidance of unnecessary legal costs.
Such a course also minimises the risk of conflicting judicial
decisions, so it enhances legal certainty. … 15. … We know that
a decision of the Court of Appeal will have been issued prior to
the substantive hearing [fixed for 24-25 June 2026]. While that
judgment may, or may not, be the final word on this issue, the
judgments handed down by the Court of Appeal will be highly
significant. It is almost inevitable that the final decision on the
legality of the 2025 Order will be made either by the English
Court of Appeal, or by the Supreme Court on a further appeal in
Ammori. The petitioner’s challenge to the 2025 Order in these
proceedings is likely to be resolved, one way or the other, by the
final decision in Ammori. …. The most expeditious route for the
petitioner and the respondent, and the one which minimises
costs for all parties including the public purse, is to sist the
present proceedings” [pleadings bundle pp.50-52].

14 Jul 2026 The Lord Ordinary refuses a motion made by the reclaimer to recall the
sist previously granted and, under and in terms of rule 34.1(1) of the
Rules of the Court, to report the whole cause to the Inner House. The
Lord Ordinary considers that the motion is premature, given the
question of whether Ms Ammori is to seek – and, if so, obtain – from the
UK Supreme Court its permission to appeal against the decision of the
Court of Appeal is yet to be resolved.

30 Jul 2026 The UK Supreme Court grants its permission for the claimant in the
English proceedings to appeal against the decision of the Court of
Appeal of England and Wales in her Judicial Review, Ammori v SSHD
[2026] EWCA Civ 721. The UK Supreme Court fixes a two day diet (4
and 5 November 2026) for the hearing of this appeal.
20 Aug 2026 A By Order hearing is fixed by the Lord Ordinary to consider further
procedure in the Scottish proceedings. Given that the conditions
imposed in the sist pronounced on 28 May 2026 have been purified the
petitioner moves the court to allow previously intimated adjustments to
the petition and thereupon to report the whole cause to the Inner
House; which failing for the court to fix an expedited timetable for a
substantive hearing to be heard before the Lord Ordinary as soon as
possible, so that the matter may then be taken to the Inner House within
the month. The UK Government seek instead a further sist. The Lord
Ordinary makes avizandum.

25 Aug 2026 The Lord Ordinary, Lord Young, refuses the petitioner’s motion to
report the whole cause to the Inner House and instead grants the UK
Government’s motion to sist the cause pending the outcome of the
Supreme Court decision in Ammori v SSHD on the basis that
“ultimately, this will secure the speediest final determination of the
issues which the petitioner raises” [pleadings bundle p.59]. He makes
no order in respect of the adjustments to the petition intimated by the
petitioner.

5. THE PROCEEDINGS IN AMMORI
5.1 Ms Ammori is the claimant in an application for judicial review in England and Wales. She
succeeded before a bench of three in the Divisional Court on the basis of a challenge to the
Home Secretary’s application of her policy (which challenge does not feature in this
petition), and on ECHR grounds: R (Ammori) v. Secretary of State for the Home
Department [2026] EWHC 292 (Admin), [2026] HRLR 9.
5.2 The Home Secretary was successful on appeal before a bench of five in the Court of Appeal
(Lady Carr CJ, Sir Geoffrey Vos MR, Edis LJ Vice President of the Criminal Division of the
Court of Appeal, Lewis LJ and Whipple LJ): Secretary of State for the Home Department
v Ammori [2026] EWCA Civ 721.
5.3 The UKSC has granted Ms Ammori permission to appeal in relation to her case based in
ECHR rights and fixed, on an expedited basis, a two-day hearing to determine her appeal
on 4 – 5 November 2026.

6. GROUND OF APPEAL 1 – NOT COMPETENT TO SIST THESE JR PROCEEDINGS
6.1 The reclaimer’s first ground of appeal is that the Lord Ordinary erred in holding as a matter
of law that it is competent to sist judicial review proceedings because:
(1) there is no Rule of Court applicable to judicial review procedure under
reference to which a sist might properly be pronounced in the circumstances of
this post-permission application for judicial review.
(2) given that the Rules of Court applicable to judicial review procedure make
specific provisions as to when sist might be pronounced by the Lord Ordinary
(none of which were applied in the circumstances in which the sists at issue
were pronounced in these proceedings) the inherent power or procedural
jurisdiction of the court could not competently be prayed in aid by the Lord
Ordinary to supply a power which had been excluded by implication (on the
basis of the brocard expressio unius est exclusio alterius) by the express terms
of the Rules of Court.
(3) in any event pronouncing the sists as the Lord Ordinary did was wholly
incompatible with the overall requirement for “speedy determination” which
necessarily characterises and applied to procedural decisions in judicial review
proceedings.
6.2 Despite having been fully addressed on these points by the petitioner at both the hearings
on 14 July 2026 and on 20 August 2026, the Lord Ordinary does not directly address the
issue of competency in the reasons provided alongside his interlocutor of 25 August 2026.
He does not indicate which Rule of Court he founds upon in sisting the proceedings. But,
since he did sist the proceedings in the face of submissions on competency, it can be taken
that he considered a sist was a competent order available to him. This was an error of law.
6.3 The relevant Rules of Court applicable to judicial review proceedings are set out in Chapter
58. This Chapter contains the principles which the Lord Ordinary was obliged to apply
within judicial review procedure, as a distinct form of recourse to the courts in public law
matters. It forms a code governing the entirety of the procedure.
6.4 Chapter 58 makes it clear that the principle of “speedy determination” applies to the
procedure to be adopted in judicial review petitions, both before (per RCS 58.4(4)) and
after permission has been granted (RCS 58.11(2) and 58.12(2)). The aim of judicial review
procedure is to “focus the issues so that the court can reach a decision upon them, in the
interests of sound administration and in the public interest, as soon as possible”:
Somerville v. Scottish Ministers [2007] UKHL 44, 2008 SC (HL) 45 per Lord Hope at para
65, approved and relied upon in Wightman v. Advocate General [2018] CSIH 18, 2018 SC
388 at para 10.
6.5 Chapter 58 is not created in ignorance of the possibility of a sist. A sist for legal aid is
expressly provided for (RCS 58.4(5)(h); 58.4(7)) at the pre-permission stage. But even in
that context, the Court is bound to have regard to the need for speedy determination and
a default duration of two months is applicable.
6.6 In this respect, Chapter 58 – which forms a complete procedural code for judicial review
proceedings characterised in particular by the principle of speedy determination – can be
distinguished from other provisions of the Rules of Court (see, for example, RCS 22.3(6);
RCS 25A.10; RCS 40.8; RCS 40.12; RCS 43.8; RCS 43.20; RCS 49.18A; RCS 49.69; RCS
49.79F; RCS 62.17; RCS 65.4; RCS 82.5).
6.7 Against the general principle of statutory construction that expressio unius est exclusio
alterius, the correct legal conclusion given that the possibility of pronouncing a sist is not
listed among the particular orders which may be pronounced by the court under Chapter
58, is that such an order is not competent.
6.8 Even if the effect of RCS 58 is not to provide a ‘closed list’ of the orders that may be made
in a petition for judicial review, the (in)competency of a sist (other than for reason of legal
aid) is put beyond peradventure by the mandatory provision of RCS 58.11(2), under which
the Lord Ordinary must make orders which are appropriate for the “speedy determination
of the petition”. An order to sist proceedings in which a petition would be determined is,
plainly and necessarily, inconsistent with the speedy determination of the petition. A Lord
Ordinary has no power to make an order which is inconsistent with his mandatory duty in
terms of RCS 58.11(2).
6.9 The respondent claimed that, even in situation where no express provision for this was
made in Chapter 58 of the Rules of Court, the Lord Ordinary had power under the court’s
inherent jurisdiction to pronounce a sist. This submission led the Lord Ordinary into a
further error of law. The Rules of Court are not “guidelines” to be applied or disapplied,
under reference to the court’s inherent jurisdiction, as the Lord Ordinary may think
expedient. They are rules of law in the form of Scottish Statutory Instrument which have
been created by the court formally exercising by Act of Sederunt its own legislative powers
– as confirmed by Section 103 of the Courts Reform (Scotland) Act 2014 – to regulate the
procedure and practice to be followed in proceedings in the Court, and any matter
incidental or ancillary to such proceedings.
6.10 In the absence of express legislative exclusion or limitation, the courts have an inherent
power to do what is necessary to discharge the whole of their responsibilities (Hall v
Associated Newspapers Ltd 1979 JC 1 per Lord Justice General Emslie at 9; see also
Erskine, Institute, I,ii,8 [authorities bundle p.39]). The Rules of Court are mainly
concerned with prescribing what may, and in some cases what must, be done at various
stages in different types of process, and when particular steps must be taken (Tonner v
Reiach and Hall 2008 SC 1 at [94] per Lord Abernethy delivering the opinion of the court
[authorities bundle p.49]). It has, however, been observed that the fact that a particular
power is not mentioned in the Rules of Court does not necessarily mean that it cannot be
used in appropriate circumstances (Tonner at [99] [authorities bundle p.49]).
6.11 That said, the Rules of Court assume a relevance to the court’s inherent power where
they expressly or implicitly remove or restrict it, or fetter its exercise (McKie v MacRae
2006 SLT 43 (OH) at [49] per Lord Glennie [authorities bundle p.44]). The inherent power
ought to be exercised sparingly, otherwise the Rules of Court risk being viewed as simply
procedural guidelines (Hepburn v Royal Alexandra Hospital 2011 SC 20 at [54] per Lord
Carloway (obiter) [authorities bundle p.79]). Existing rules should not be departed from
without express permission (Hepburn at [58] per Lord Carloway (obiter) [authorities
bundle pp.80-81]).
6.12 The present proceedings concern a petition for judicial review which is governed by
chapter 58 of the Rules of Court. Owing to the need for “speedy determination” of the
petition, the court’s inherent power to grant a sist of process has, accordingly, been
implicitly removed or at least restricted (ie to a sist for legal aid at the pre-permission
stage: RCS 58.4(5)(h); 58.4(7)). Whilst the court may grant relief for failure to comply with
the Rules of Court (RCS 2.1), such dispensing power is irrelevant to the present issue which
does not concern the failure of a party to comply with the Rules. Therefore, a sist of process
(other than as mentioned in relation to an application for legal aid) is incompetent.
6.13 For all these reasons, the Lord Ordinary erred in law by sisting the proceedings,
because it was not competent for him to do so. His interlocutor to that effect should be
recalled.

7. GROUND 2: ESTO IT WAS COMPETENT TO SIST THESE JUDICIAL REVIEW PROCEEDINGS
(WHICH IS DENIED) THE LORD ORDINARY WAS PLAINLY WRONG TO SIST.
7.1 Putting aside questions of competency, whether it is appropriate to sist proceedings is a
discretionary decision upon which the Inner House will only interfere if it can be shown
the Lord Ordinary was plainly wrong: Depuy International Ltd v Gilchrist [2023 CSIH
47], 2024 SC 229, para. 37. Esto it was competent for the Lord Ordinary to sist the
proceedings, to do so in all of the circumstances of the present petition was plainly wrong.
7.2 Judicial Review is a procedure designed to provide a speedy and effective remedy to
challenge the decisions of public bodies. In such cases there is a public interest in
challenges being made promptly and resolved quickly: Scottish Civil Courts Review,
Chapter 12.38; affirmed in O’Neill and Lauchlan v The Scottish Ministers [2021] CSIH 66,
2022 SC 125, para. 18. That is reflected in the relevant Rules of Court, outlined above.
7.3 There are only two reports of sists granted in judicial reviews proceedings, both of which
were by agreement of the parties: Craig v Parole Board [2013] CSOH 110, 2013 SLT 953
(in light of a formal undertaking by the respondent and agreement of both sides) and
Greenpeace Ltd v Advocate General for Scotland [2025] CSOH 10, 2025 SLT 303 (sist
pronounced prior to any permission determination, by agreement). These differ very
materially from the circumstances before the Lord Ordinary on 20 August 2026: postpermission
judicial review proceedings, previously assigned to a substantive hearing, in
which a sist had previously been obtained and was sought to be renewed, all in the face of
the strong opposition of the reclaimer, whom the Court had determined had standing and
permission to proceed.
7.4 The Court has been seised of this petition for nigh on 11 months without any substantive
consideration of its merit. The UK government has been largely successful to date in a
litigation strategy which appears to be one of seeking to delay, or stop, any independent
consideration of this challenge by the court in Scotland. These delays and procedural
manoeuvres on the part of the UK Government also have substantially increased the
financial costs to the petitioner of this on-going court challenge, and that too may not be
unintentional.
7.5 The Lord Ordinary correctly acknowledged in granting permission on 26 January 2026
that:
“as a matter of principle, a petitioner who has standing and whose petition sets out
arguments of sufficient merit to satisfy s27B(2)(b) of the 1988 Act should not be

refused permission because of the existence of parallel proceedings in another UK
jurisdiction” [pleadings bundle p.36].
7.6 That being the case, it was irrational for the Lord Ordinary to (later) conclude, as a result
of the same parallel proceedings, that, at the point at which he was bound by the “speedy
determination” obligation, it was appropriate to sist the proceedings. That, in and of itself,
is sufficient to conclude that the Lord Ordinary was plainly wrong in granting the sist, and
to recall the interlocutor to that effect.
7.7 There are other considerations too which, taken together, demonstrate that the decision
to sist was plainly wrong.
7.8 For example, earlier in these proceedings the Lord Ordinary asserted that “where the
identical matter extending to Scotland has been argued and determined by a competent
court in the UK, it is contrary to the principle of comity for this court to seek to re-litigate
that issue” [pleadings bundle p.50]. It is not clear – because no adequate reasons were
given in justification for this renewed sist pronounced on 25 August 2026 – whether or not
the Lord Ordinary was mistakenly applying this principle to the circumstances of the
present case. But courts of one jurisdiction within the United Kingdom are not under any
obligation to follow decisions of courts of another jurisdiction within the United Kingdom.
If courts in Scotland conclude differently from courts in England and Wales, “they should
explain clearly why they consider the decision to be incorrect, give what they consider to
be the correct decision, and grant leave to appeal to this court so that the difference of
views can be resolved without undue delay”: R (Jwanczuk) v Secretary of State for Work
and Pensions [2025] UKSC 42, [2026] AC 699, para. 101 [authorities bundle p.226]. But
that constructive and constitutionally appropriate approach is entirely frustrated if the
courts of one jurisdiction sit on the sidelines, assume the courts of the other jurisdiction
will get it right, and deprive the UKSC of the opportunity to be fully informed of the
reasoned analysis of each jurisdiction, and the opportunity to authoritatively determine
matters while sitting as a competent court of both jurisdictions.
7.9 Secondly, the Home Secretary, and later, the Court of Appeal in Ammori founded heavily
on events, and court proceedings, in Scotland, which matters are focussed in averments
contained in the petition [paragraph 8, pleadings bundle p.7-8]. The Court of Session is in
a far better position to understand and situate the relevant actors and proceedings than
any other court. The UKSC would be well-served by having the Court of Session’s analysis
of those matters. It will not do so if they are left over to be determined by the Lord Ordinary
until after the UKSC has disposed of Ammori.
7.10 Thirdly, in Ammori, the UKSC will sit as a court of England and Wales, with no decision
binding on the Inner House: Constitutional Reform Act 2005, section 41 [authorities
bundle p.3]; Willers v Joyce and another (No 2) [2016] UKSC 44, [2018] AC 842, para.
22. And while the proceedings in Ammori contain some overlap with the petition in
relation to ECHR issues, the reclaimer founds upon additional considerations in relation
to the proportionality assessment for ECHR purposes, which are not relied upon by Ms
Ammori. The proceedings in Ammori do not encompass the issue of failure to consult with
relevant Scottish state actors. If the petition proceedings are not reawakened until after
the UKSC disposes of Ammori, those issues will fall to be determined alone in Scotland,
with vanishingly little prospect of the reclaimer later securing the authoritative
determination of the UKSC, on a UK-wide basis, on those matters. That gives rise to a risk
of legal uncertainty on a matter which is plainly of general public importance.
7.11 What hearing appeals from Scotland and from England together means is that the UKSC
gets the benefit of the views of experienced appellate judges from both sides of the border:
see for example: R (Cart) v. Upper Tribunal [2011] UKSC 28/Eba v. Advocate General for
Scotland [2011] UKSC 29; and Cherry v. Advocate General for Scotland/Miller v. Prime
Minister [2019] UKSC 41. Indeed, standing that a powerfully constituted bench of three in
the Divisional Court (including the President of the King’s Bench Division) reached one
conclusion on the lawfulness of proscription; and a (very unusual) bench of five in the
Court of Appeal reached a different conclusion, the UKSC would perhaps be assisted to an
even greater extent than normal by also having the reasoned determination from Scotland
available to it, even putting aside Scottish specific aspects and specialities.
7.12 The express purpose of the Lord Ordinary’s decision to sist the proceedings was to
ensure that the petition was not determined until after the UKSC has disposed of Ammori.
Such an approach is entirely inconsistent with the proper role of a court exercising its
public law supervisory jurisdiction. It is contrary to the principle of legal certainty. It
deprives the UKSC of any possibility of considering the reasoned and, in material respects,
uniquely specialist, view of the Inner House. It was incumbent on the Lord Ordinary to
discharge his function of speedy determination in a way which facilitated the possibility of
the petition being disposed of with sufficient expedition as to allow, if this Court, or the
UKSC so permitted, the UKSC to consider this petition. No reasonable Lord Ordinary,
having regard to the above matters, could have reached the conclusion that it was
appropriate to sist the petition in the circumstances. The Lord Ordinary’s decision to do
so was plainly wrong. His interlocutor to that effect should be recalled.

8. GROUND 3 – IMPROPER EXERCISE OF DISCRETION IN REFUSING, IN ALL THE
CIRCUMSTANCES, TO REPORT THIS MATTER TO THE INNER HOUSE
8.1 The reclaimer accepts that, if he does not succeed on ground 1 or 2, he cannot succeed on
ground 3 alone.
8.2 But as set out above, it was incumbent on the Lord Ordinary to discharge his function of
speedy determination in a way which facilitated the possibility of the petition being
disposed of with sufficient expedition as to allow, if this Court, or the UKSC so permitted,
the UKSC to consider this petition. Reporting the whole cause was one route to preserving
that possibility.
8.3 The Lord Ordinary appears to have had no principled or practical difficulty with a report
(para. 8, 25 August Reasons) [pleadings bundle p.58-59]. He does not appear to have
considered the unique characteristics of the present petition, including that many of the
relevant issues have already been ventilated and decided upon by a bench of three, and
subsequently a bench of five (albeit reaching different conclusions), in Ammori, a factor
capable of mitigating any disadvantage the Inner House would be placed in by determining
the petition without a reasoned Opinion on the merits of the petition from the Outer
House.
8.4 The UK Government originally argued before the Lord Ordinary at the 14 July 2026
hearing that the provision of the Rules of Court 34.1 allowing for the Lord Ordinary, prior
to any determination of matters in the Outer House, to report the whole cause to the Inner
House had fallen into desuetude and was consequently no longer valid law. When asked
by the Lord Ordinary at the hearing on 20 August whether that position was being
maintained, counsel for the respondent demurred and said that was no longer the UK
Government position. Accordingly, no party argued that a report of whole cause was
incompetent. Notwithstanding all of this, the Lord Ordinary considered that he ought not,
in effect, to assume a ‘gatekeeping’ role in respect of the Inner House.
8.5 This was a misunderstanding by the Lord Ordinary of his own function. RCS 34.1 affords
the function of deciding whether or not to report to “the Lord Ordinary”. Exercising a
discretion to report the whole cause would have been the discharge of the Lord Ordinary’s
function as entrusted to him by Act of Sederunt, rather than any usurpation of the Inner
House’s function.
8.6 Separately, at para. 8 of the 25 August Reasons, the Lord Ordinary correctly records that
it was not the “primary position of either party that the present proceedings should
proceed at this stage to a substantive hearing before me” [pleadings bundle p.58].
8.7 However, the Lord Ordinary does not go onto address (at all) the reclaimer’s alternative
position before him which was that, if he was not prepared to report the whole cause to the
Inner House, he should, instead, proceed to fix an urgent timetable for disposal in the
Outer House, which would preserve the possibility of a reclaiming motion being dealt with,
and an application for permission to appeal to the UKSC, in light of the dates fixed in
Ammori. In this regard, Senior Counsel for the reclaimer referred to the timetable in
Cherry, in which Lord Doherty disposed of a petition for judicial review on 4 September
2019 ([2019] CSOH 70, 2020 SC 13), the Inner House disposed of a reclaiming motion on
11 September 2019 ([2019] CSIH 49, 2020 SC 37), and the UKSC disposed of an appeal
(alongside a judicial review brought in England and Wales in which the Divisional Court
had reached a contrary view to that of the Inner House) on 24 September 2019 ([2019]
UKSC 41, 2020 SC (UKSC) 1, [2020] AC 373).
8.8 The sole factors weighing against that course appear to be those of legal expense and court
resources (para. 9 of 25 August Reasons) [pleadings bundle p.59]. To the extent the Lord
Ordinary concluded that not taking that course would be speedier (as might be taken from
para. 9), that is an untenable conclusion. Put simply: if the UKSC itself might be capable
of resolving all of the issues arising in the petition, that is plainly more expeditious than
having a substantive hearing of the petition after the UKSC’s decision in Ammori is handed
down. Indeed, the Lord Ordinary himself recognised that the UKSC process would only
allow “several of the critical issues” to be resolved [pleadings bundle p.59]. That was
necessarily a recognition that outstanding matters would need to be determined in the
petition process thereafter.
8.9 In any event, and even putting these logical errors aside, for the reasons set out above, the
Lord Ordinary was not entitled to decline to report to the Inner House, while also declining
to dispose of the petition himself. He was plainly wrong to do so. His interlocutor to that
effect should be recalled.

9. DISPOSAL
9.1 For all these reasons, the reclaimer submits that the Lord Ordinary erred in law in sisting
the proceedings, because to do so was incompetent.
9.2 Esto a sist was competent, the Lord Ordinary was, in any event, plainly wrong to grant a
sist in the circumstances.
9.3 He was also plainly wrong to decline to report the whole cause to the Inner House, while
also declining to urgently dispose of the petition himself. The reclaimer accordingly moves
the Inner House to recall the interlocutor of the Lord Ordinary dated 25 August 2026.
9.4 That would leave the matter at large before the Inner House. Having regard to: (i) the duty
of speedy determination, (ii) the context of the very proximate listing of Ammori before
the UKSC, and (iii) the necessity, in all of the circumstances, to preserve the possibility of
the petition being disposed of with sufficient expedition as to allow, if this Court, or the
UKSC so permitted, the UKSC to consider this petition, the reclaimer’s principal motion is
to invite the Court to recall the interlocutor of the Lord Ordinary dated 25 August 2026
and remit the cause to the Lord Ordinary with a direction that he report the whole cause
to the Inner House in terms of rule 34.1(1).
9.5 If the Inner House is not minded to make a formal “direction” to that effect, it is
nonetheless invited to express its expectation that such a report would be the appropriate
procedure (for an equivalent example of the Inner House expressing a view on what should
be the appropriate procedural step pursuant to a decision of the Inner House in a
reclaiming motion, see Deputy International Ltd v Gilchrist [2023 CSIH 47], 2024 SC 229,
para. 47).
9.6 Alternatively, if the Court considers the petition must be determined first by the Lord
Ordinary, the reclaimer moves the Court to remit the cause to the Lord Ordinary with
appropriate case management directions for urgent disposal in the Outer House.

In 9 days time it will be a year since I submitted the application for judicial review. It is already 9 months since permission for the judicial review was granted. Since then we have been subject to the most pernicious denial of justice by lawfare – continued and pernicious procedural delay by the UK government, abetted by the court, to prevent the case being heard and deliberately to exhaust our funds and resources, while the government can spend unlimited money on it.

Now they have had our remaining legal funds seized.

Other donation methods are currently still available even though the crowdjustice route has been closed.. Obviously we now need funds more than ever to carry on.

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Source: https://www.craigmurray.org.uk/archives/2026/09/palestine-action-judicial-review-2/