Huda Ammori v Secretary of State for the Home Department: Government Succeeds on Appeal

In March this year, the High Court ruled that the Home Secretary’s proscription of Palestine Action (PA) was unlawful, a case we discussed here. Now in a recent decision the Court of Appeal has overturned the Divisional Court and reinstated the Proscription Order.

The Court of Appeal overturned the decision deciding that the Home Secretary did not fail to comply with the Proscription Policy and, following a Bank Mellat test, that the Home Secretary’s decision was lawful with regard to the rights of other law-abiding citizens.

On the first point, the Court of Appeal noted that “the purpose of the Proscription Policy was not to limit or constrain the Home Secretary’s discretionary power to proscribe… [t]he Divisional Court was wrong to consider otherwise, and adopted an excessively analytical approach to the interpretation of the Proscription Policy.” As the list of factors in the Policy was not exhaustive, the Home Secretary has the power to include factors external to the Policy in the proscription order.

The Court emphasised the necessity to balance the rights of law-abiding individuals to freedom of speech and freedom of assembly against proscription. The Court accepted that the group of people who want to express pro-Palestinian views but who may feel a chilling effect from proscription “is likely to be significant in number.” The Court, however, noted that, “as a matter of law,” proscription will not prevent Pro-Palestinian expression. The Court rejected Ms Ammori’s submission that less intrusive methods existed to hinder the actions of PA, rejecting wholesale the suggestion that civil remedies, sanctions, and regular criminal prosecution would be effective at stopping PA from continuing to protest. The Court also rejected the argument that an alleged international consensus against proscription should be a factor against proscription.

The Court also noted that other factors needed to be considered against proscription including the limited number of terrorist incidents perpetrated by PA and the fact that most organisations that are proscribed advocate violence against people as their primary motivation compared to PA, whose primary objective is damage to property. These, however, were outweighed by the factors for proscription, which included the escalating nature of PA’s activities and its threat to lawful business and national infrastructure.

The Court noted, in its conclusion, that the proscription of PA is highly controversial and that many otherwise law-abiding citizens support the organisation and are engaged in peaceful protest as well as non-peaceful protest. However, the Court said it was a mistake to ignore that PA “overtly promotes violence” and that PA “is not, as it claims, a direct action civil disobedience protest group like the suffragettes… It is a covert organisation that operates using secret cells to avoid detection and prosecution.” The Court found that the Home Secretary “had both the institutional competence and the democratic accountability to make that decision.”

All parties were represented by Chambers ranked lawyers ranked in a range of practice areas. You can see the rankings for these areas by clicking the following links: Civil Liberties & Human Rights, Protest Law, Administrative & Public Law.

The appellant (SSHD) was represented by Sir James Eadie KC of Blackstone Chambers, Ben Watson KC of 3 Raymond Buildings, David Blundell KC and Karl Laird of Landmark Chambers, Steven Kosmin of 11KBW and Naomi Parsons of Red Lion Chambers.

The respondent (Huda Ammori) was represented by Raza Husain KC and Blinne Ní Ghrálaigh KC of Matrix Chambers, Paul Luckhurst, Rayan Fakhoury and Grant Kyanston of Blackstone Chambers, Owen Greenall and Audrey Cheryl Morgan of Garden Court Chambers and Mira Hammad and Rosalind Burgin of Garden Court North Chambers.

The special advocates for the respondent were Tim Buley KC of Landmark Chambers, Dominic Lewis of 5 Paper Buildings and Jesse Nichols of Matrix Chambers. 

The first intervenor (UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism) was represented by Adam Straw KC and Rabah Kherbane of Doughty Street Chambers. 

The second (Amnesty International UK) and third (Liberty) intervenors were represented by Tom Hickman KC of Blackstone and Jessica Jones and Rosalind Comyn of Matrix Chambers.