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, refuse 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 vAssociated 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 (i.e. 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.
Alternatively by bank transfer:
Account name
MURRAY CJ
Account number 3 2 1 5 0 9 6 2
Sort code 6 0 – 4 0 – 0 5
IBAN GB98NWBK60400532150962
BIC NWBKGB2L
Bank address NatWest, PO Box 414, 38 Strand, London, WC2H 5JB
Or crypto:
Bitcoin: bc1q3sdm60rshynxtvfnkhhqjn83vk3e3nyw78cjx9
Ethereum/ERC-20: 0x764a6054783e86C321Cb8208442477d24834861a
