Discovery Analytical Resourcing |
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Huda Ammori v Secretary of State
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Policy Implementation Under Ground 6, the Claimant contends that the SSHD failed to follow proper procedure and that this is a matter, as was upheld on appeal, for judicial review, deviation from her published policy being unwarranted absent sound contextual reason. The policy allows proscription if in accordance with a proportionate evaluation of five criteria. Proportionality here, as above, will refer to 'Bank Mellat' terms, that is, an assessment materially distinct from a 'simple balancing exercise'. Natasha Barnes, for the Defence, listed a range of documents generated through 2025 to support the SSHD's analysis of and advice concerning PA goals and perspectives: from the Joint Terrorism Analysis Centre (JTAC), from the Proscription Review Group (PRG); a Community Impact Assessment; and ministerial submissions. The respective weights to be placed on the content of these was a matter for the SSHD's discretion. It was contended that comparative attention was indeed shown, regarding other groups, to the adequacy of alternative criminal or civil law measures, the wider impact on freedom of expression and treatment of PA's direct action commitment. Justice Swift questioned whether the SSHD's approach was concerned with the process of the assessment, rather than the substance. The Government's position was that the issues were subsumed by the Human Rights Act challenges under Ground 2, although should judicial review find certain matters to have been overlooked, the SSHD invited the Court to refuse relief under the Senior Courts Act (1981) s31(2A). [This procedural provision invokes a duty to set aside a successful claim where the outcome would have remained substantially the same even if the conduct complained of had not occurred]. For the Claimant, Hussain maintained that policy construction is a matter of law for the courts' adjudication. None of the decision-making documents submitted approached a proportionality assessment, simply concluding that 'discretion weighs in favour of proscription'. The JTAC had not conducted a proportionality analysis; the PRG failed to weigh - either individually or collectively - the five non-statutory factors with respect to proportionality; broader consideration of these had been limited to interference solely with the Articles 10 and 11 rights of PA members and supporters. Contending that discretion would be unaltered - should a free-standing proportionality exercise have been conducted - was without merit as long as the alleged threat to national security remained unexamined in its particularity. As things stood, the SSHD had not performed a Bank Mellat-type test - merely a tick-box exercise. Material Considerations Although the relative weighting of the matters considered underlying the Order's issuance are for the SSHD to assess, the decision (per the Claimant's Ground 5) should have taken into account statutory imperatives and materially relevant details. The Defence replied that no scope-defining statutory precision existed and therefore the SSHD's discretion should be paramount, subject to the constraint of rationality. Regardless, the Defence held, the four concerns appealed had in any case been taken into account, namely:
i/ PA's goal to prevent complicity in genocide and breaches of international humanitarian law;
For the first point, it was stated that the Terrorism Act (2000) did not require the SSHD to make a value judgment of an organisation and its motivations, but these were treated in JTAC assessments and a ministerial submission of 26 March 2025. The Claimant's counter-argument critiqued these papers, along with a Community Impact Assessment, as preoccupied with public relations and announcement-timing issues after the decision had been taken - not therefore a consideration of the exercise of discretion. A counter-terrorism police report, relied upon by the SSHD for comprehensive performance at (ii), was alleged lacking because concentrating solely on the (un)availability of an operationally-effective 'holistic' solution. Whilst the ministerial submission (26 March 2025) recognised the inhibitions conveyed with (iii), it was claimed it simply noted, ignoring any potential 'chilling effect', that other avenues of protest were available. The Defence highlighted that none was apparent - multiple subsequent pro-Palestine marches had taken place - however the Claimant contested this with impact evidence on other protestors than PA supporters. The final concern (iv) the Defence deemed irrelevant since relying on proscription deriving from specific facts, therefore not being irrational, and again closed on this Ground by inviting the Court to refuse relief under the Senior Courts Act s31(2A). |
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