THERE weren’t enough seats at court 6 of the Court of Session today.
It was technically a preliminary hearing, which would rarely pack out this room in Scotland’s highest civil court – what with space for 40-or-so members of the public.
But this wasn’t any preliminary hearing. It could have huge constitutional implications.
The Judge – Lord Young – and the group of mostly pro-Palestine activists would hear arguments on whether to suspend the Palestine Action ban in Scotland.
If you recall, a Scottish judicial review of the ban was approved by the same judge in January .
It came, of course, after former home secretary Yvette Cooper’s decision last year to proscribe the group under anti-terror laws.
Today’s hearing was the follow-on from that decision, with ex-diplomat Craig Murray – represented by Joanna Cherry KC – asking the court to suspend the proscription in Scotland pending the full judicial review.
His case rested in part on the argument that the challenge is likely to succeed on the prima facie evidence now before the courts, and that it is unjustifiable for people to have their rights curtailed in the meantime.
Cherry detailed cases of Scots arrested, many of whom still currently have cases going through the courts in Scotland. Take 46-year-old Fiona McEwan who was arrested in Glasgow last year wearing a t-shirt saying “Genocide in Palestine, time to take action”.
Or 78-year-old Mick Napier, who wore the same t-shirt. Same story for Moira McFarlane.
Lord Young asked how a suspension would “help them specifically”.
Cherry responded to say it would “give people clarity” and that while the Palestine Action ban remains in effect it is “still having chilling effects” on those impacted – worried about how it may impact their work or activism.
Notably, since permission was granted in Edinburgh, Palestine Action and its co-founder Huda Ammori have won a related High Court challenge in England, where Justice Victoria Sharp found the ban “disproportionate”, albeit left in place while the Home Office pursues an appeal scheduled for June.
This English decision was deployed in court not only by Cherry, arguing it showed prima facie evidence that the Scottish case would succeed, but also by the UK Government – who sent in their heavyweights.
At the opposite bench sat Advocate General Catherine Smith KC, a UK minister and the UK Government’s senior Scottish law officer, appearing in person in what some in the public gallery read as a show of force.
She not only argued against any suspension of the proscription in Scotland, but went further – urging the court to “sist” (pause) the entire Scottish judicial review until all proceedings south of the Border, potentially up to the Supreme Court, have run their course.
This was largely the same argument made in January by one of her colleagues – rejected then by Lord Young.
But Smith told the court there was now a “material change in circumstances” – citing the Ammori case in particular, since there is now a date of appeal and a clearer timeline.
She also made an argument that confused me and, seemingly Lord Young, which was that suspending the Palestine Action ban has a "lack of prejudice" against Murray compared with those who have ongoing legal cases since he can still peacefully protest but "just not within Palestine Action umbrella" – seemingly arguing against the idea that he is representing the larger group of people impacted by the ban and the larger public interest.
Smith also stressed that “difficulties” could arise from potentially conflicting decisions in Scotland and England and that prioritising the English case wasn’t to do with “any specialness” but “who got there first” since it is further along in England than in Scotland currently.
The Advocate General also drew the ire of Lord Young when arguing at one point that there is a “matter of principle” that Scottish courts should stand aside.
“You haven’t explained that very well,” he said.
Cherry, meanwhile, said that – as was agreed in the January hearing – that there is a unique Scottish dimension to the case.
For one, that the aforementioned slogan-ed t-shirt (“Genocide in Palestine, time to take action”) has been used to justify arrests in Scotland but not in England.
“People are being lifted, arrested and charged for wearing a t-shirt or placard in ways not in England,” she told Lord Young.
She also said the UK Government was “trying to relitigate” the argument.
They are trying to have a “second bite at the Cherry”, she joked to laughs from the gallery.
Cherry then added: “UK-wide orders can be challenged in Scottish courts.”
In a concluding statement, arguing specifically against the UK Government’s move to cist (pause) the case and wait for the English appeal, she said that the “practical effect” of it would simply be bringing Craig Murray’s case to a “premature end” when he has a “right” to have his case decided in a Scottish court.
Lord Young concluded the day by announcing he will make a decision at 10am tomorrow (Thursday) morning.
In effect, that decision will decide whether this specific UK-wide order will be challenged in Scottish courts.
If he agrees with the UK Government’s arguments, the Ammori appeal will either be overturned or – if successful – likely head to the UK Supreme Court.
If he agrees to suspend the Palestine Action ban in Scotland, it will bring much relief to many pro-Palestine activists and those arguing for their right to free speech and right of association.
But also perhaps open up a big old can of constitutional worms.
Speaking outside the court afterwards, Murray told supporters that it was like "déjà vu".
"The UK Government were making the same arguments that were already dismissed in January," he said.
“They’re trying to kill off the case on purely procedural grounds.”
Murray added: "Scotland has a different legal system, a different legal tradition, and we want a decision of the Scottish courts."
