Judicial Review May Be Sisted for Parallel Proceedings: Limits on Bypassing the Outer House

1. Introduction

This decision concerns the management of parallel public-law proceedings across the United Kingdom, rather than the substantive legality of proscribing Palestine Action. The Inner House confirmed that the Court of Session’s inherent jurisdiction includes power to sist, or pause, judicial review proceedings while a related case is determined elsewhere. The requirement for speedy determination does not remove that power: awaiting an imminent authoritative judgment may itself be the quickest and most proportionate route to final resolution.

The court also explained the limits of reporting proceedings directly from the Outer House to the Inner House under Rule of Court 34.1. Although reporting an entire cause remains potentially competent in rare, appropriate cases, the rule cannot be used simply to bypass first-instance adjudication and accelerate a possible appeal to the Supreme Court.

The petitioner had supported and participated in activities organised by Palestine Action before its proscription. He challenged the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2025 insofar as it added that organisation to Schedule 2 to the Terrorism Act 2000. The respondent was the Advocate General for Scotland. The appeal before the Inner House concerned only the Lord Ordinary’s procedural decisions to continue the sist and refuse to report the proceedings to the Inner House.

2. Background and Procedural History

The underlying challenge

The Secretary of State for the Home Department made the Order on 4 July 2025, proscribing three unconnected organisations. It took effect throughout the United Kingdom on 5 July 2025. The judgment identifies the criminal consequences under sections 11 and 12 of the 2000 Act, including offences relating to belonging to, or inviting support for, a proscribed organisation.

The petitioner sought declarator that the Order was beyond the Secretary of State’s powers, reduction of the Order, and interim suspension, each limited to its inclusion of Palestine Action. His substantive grounds concerned procedural unfairness through lack of prior consultation and disproportionate interference with rights under Articles 10 and 11 of the European Convention on Human Rights.

Parallel proceedings and the Scottish timetable

By the challenged decision, an expedited Supreme Court hearing in the English proceedings had been fixed for 4 and 5 November 2026. Northern Irish proceedings had also been stayed pending that litigation.

The precise scope of the appeal mattered. An earlier attempt to review the interlocutor of 28 May had been withdrawn. The Inner House therefore examined the exercise of discretion on 25 August 2026, although the Lord Ordinary’s earlier reasons remained relevant because they continued to underpin the later decision.

3. Summary of the Judgment

The Inner House refused the reclaiming motion and reserved expenses. Its conclusions were:

1. A sist was legally competent. The court’s inherent jurisdiction to regulate its proceedings includes power to impose or recall a sist. Chapter 58 of the Rules of Court does not exclude that power in judicial review.
2. The Lord Ordinary’s decision was a permissible exercise of discretion. Awaiting the imminent Supreme Court proceedings could resolve several central issues while avoiding unnecessary expense and duplication.
3. Rule 34.1 could not be used for the proposed procedural shortcut. The petitioner had identified no uncertainty or conflict requiring the Inner House’s authoritative ruling instead of ordinary first-instance determination.

The court did not decide whether Palestine Action was lawfully proscribed. Nor did it dismiss the underlying petition. The proceedings remained available for any issues requiring determination after the Supreme Court’s judgment.

4. The Court’s Legal Reasoning

A. Inherent jurisdiction supplies power independently of procedural rules

The petitioner argued that no applicable rule expressly authorised a sist in judicial review proceedings. Since the rules referred specifically to sisting for legal aid, other grounds for sisting were said to be excluded. He also relied on the requirement for speedy determination.

The court rejected the premise that every procedural power must be found in an express rule. Inherent jurisdiction is a residual source of authority necessary for the court to perform its judicial function. It exists independently of the power to make rules having statutory effect.

The distinction is important. The absence of express authorisation is not equivalent to a prohibition. Conversely, inherent jurisdiction does not permit a court to disregard legislation or statutory procedural rules. The authorities recognised that those sources can limit its exercise. Here, however, the court found neither express exclusion nor an implication sufficient to remove the power to sist.

The specific references to legal-aid sists therefore did not create an exhaustive list. They addressed a common procedural situation rather than restricting the court’s otherwise available powers.

B. Speedy determination is not the same as uninterrupted procedural activity

Rule 58.4(4) requires the Lord Ordinary to “have regard to” the need for speedy determination when making the orders identified in paragraph (5). The Inner House emphasised both that wording and its particular procedural context.

The rule does not require the court to press ahead regardless of expense, proportionality or the efficient use of judicial resources. The relevant question is how best to achieve a final determination. A hearing conducted before imminent higher-court guidance may generate avoidable argument, expenditure and further proceedings.

Accordingly, expedition and a sist are not necessarily opposites. A properly justified pause may advance the purpose of speedy determination more effectively than immediate substantive adjudication.

C. The sist was justified by the circumstances existing in August 2026

The Inner House acknowledged that the delay was regrettable: approximately a year had passed since the petition was lodged without a substantive hearing. It identified two principal explanations—the closed material procedure and the interaction with the English litigation. It found no support for the allegation that the UK Government had deliberately obstructed an independent Scottish challenge.

By 25 August, the Supreme Court hearing date was known. The Lord Ordinary could reasonably conclude that its judgment would resolve several critical questions, particularly the proportionality of the interference with Articles 10 and 11 rights. Any genuinely outstanding issues could then be identified and decided in Scotland.

The court treated the anticipated Supreme Court decision in these English proceedings as highly persuasive, although not formally binding on the Scottish courts in the circumstances under discussion. Its practical importance arose from its consideration of the validity of the same Order applying throughout the United Kingdom.

The petitioner’s concern that Scottish issues might eventually require a separate Supreme Court appeal was premature. The court did not decide that those issues were irrelevant or incapable of surviving the English litigation. Instead, it rejected the assumption that they necessarily required an immediate separate appellate route.

The court also saw force in an application to intervene in the existing Supreme Court proceedings as a potentially quicker means of presenting Scottish aspects. This was a procedural suggestion, not an order to intervene, a guarantee of permission, or a condition of maintaining the Scottish petition.

D. Permission to proceed did not prevent a later sist

The petitioner argued that granting permission despite parallel English proceedings was inconsistent with subsequently pausing the Scottish case. The distinction is between access to judicial review and the management of an admitted case.

The Lord Ordinary’s initial decision recognised that an otherwise qualifying petition should not be denied permission merely because proceedings existed elsewhere. It did not confer an entitlement to an immediate substantive hearing regardless of later developments. The court had expressly left open reconsideration of a sist as the English litigation progressed.

E. Appellate review of discretion was limited

The Inner House did not ask merely whether it might have preferred a different timetable. The issue was whether the Lord Ordinary had acted outside the permissible bounds of discretion—whether his decision was “plainly wrong” or one no reasonable Lord Ordinary could reach.

He had considered the relevant objectives: final resolution, expense and court resources. His conclusion that a sist best served those objectives was rational. The appeal therefore failed without any need for the Inner House to substitute its own procedural preference.

F. Reporting under Rule 34.1 is not a general route around first-instance adjudication

Rule 34.1(1) permits a Lord Ordinary to report “the cause or any incidental matter” to the Inner House. Under Rule 34.3(1), the Inner House may dispose of the reported matter or remit it with directions.

The court accepted that reporting an entire cause had not necessarily become incompetent merely through disuse. The current language still accommodates it, although suitable cases are likely to be rare.

The difficulty was the proposed purpose. The petitioner sought to remove the Outer House stage so that an appeal might reach the Supreme Court before the scheduled English hearing. There was no existing substantive decision to appeal, and no identified uncertainty or conflict making determination by the Outer House unsuitable.

The reporting authorities showed a common purpose: obtaining authoritative clarification where an Outer House decision would not itself provide it. They did not establish an unrestricted power to transfer first-instance responsibility for reasons of appellate convenience.

The court declined to define every permissible reporting situation. Nevertheless, it held that this proposed use was not competent. A general procedure dispensing with a level of the Scottish court hierarchy would require specific provision, comparable to the express procedural arrangements governing direct appeals elsewhere.

Because the sist was upheld, the reporting ground already failed on the petitioner’s own concession. The court’s further discussion therefore supplied an additional, independently reasoned explanation rather than a necessary basis for the disposal.

5. Precedents Cited and Their Influence

A. Authorities establishing inherent procedural powers

Tonner v Reiach and Hall [2007] CSIH 48; 2008 SC 1

This authority concerned dismissal for want of prosecution. The Inner House relied on its approval of the description of inherent jurisdiction as a reserve of powers available to secure due process, prevent oppression and administer justice fairly.

Its significance was structural rather than fact-specific. If inherent jurisdiction can support the more serious step of terminating proceedings, it can also encompass ordinary case-management powers such as imposing or recalling a sist. That did not determine whether a sist was justified here; it established the source of competence.

Hall v Associated Newspapers Ltd 1979 JC 1

The court cited Lord Justice-General Emslie’s recognition of the indispensable power of courts to do what is necessary to discharge their responsibilities, absent express legislative exclusion or limitation. This supported the proposition that judicial authority is not exhausted by enumerated procedural provisions.

Hepburn v Royal Alexandra Hospital [2010] CSIH 71; 2011 SC 20

The petitioner relied on observations about restrained use of inherent powers, referring to the case as Hepburn v Royal Alexandria Hospital. The Inner House instead emphasised Lord Reed’s explanation at paragraph 47: inherent power is essential to the court’s constitutional function and distinct from its rule-making power.

The decision thus supported both the existence of the power and its proper limits. Restraint in exercising inherent jurisdiction did not mean that a familiar case-management power disappeared whenever no rule expressly conferred it.

Newman Shopfitters Ltd v MJ Gleeson Group plc 2003 SLT (Sh Ct) 83

Through the discussion in Tonner v Reiach and Hall, the court relied on Sheriff Principal Macphail’s account of everyday powers not comprehensively conferred by legislation. Those examples expressly included imposing or recalling a sist.

The case was particularly useful because it combined recognition of inherent powers with the restriction that they cannot be exercised inconsistently with statute or statutory rules. It supplied a concrete answer to the argument that silence in the rules meant absence of power.

B. Judicial review, expedition and parallel proceedings

Greenpeace Ltd v Advocate General for Scotland [2025] CSOH 10; 2025 SLT 303

This was the closest procedural analogy. Judicial reviews concerning offshore oil and gas consents had been sisted, on the petitioners’ motion, pending imminent Supreme Court clarification. The Lord Ordinary there considered that determining the petitions before that guidance would have been inappropriate.

The present court used the example to demonstrate that sisting can promote, rather than frustrate, effective expedition. It did not establish an automatic rule requiring a sist whenever related Supreme Court proceedings exist.

R (Jwanczuk) v Secretary of State for Work and Pensions [2025] UKSC 42; [2026] AC 699

The petitioner relied on paragraph 101 for the proposition that courts in different UK jurisdictions should reach the decisions they consider correct rather than regard themselves as obliged to follow one another, with differences capable of resolution by the Supreme Court.

The Inner House did not reject the independence of Scottish adjudication. Its reasoning concerned timing: the value of an imminent judgment on common issues justified waiting without surrendering jurisdiction. The petitioner’s reliance on cross-jurisdictional independence therefore did not make the sist irrational.

Cherry v Advocate General for Scotland [2019] UKSC 41; [2020] AC 373

The petitioner cited this case to show that Scottish proceedings can move rapidly through the court hierarchy to the Supreme Court. Its role was illustrative of procedural possibility, not a source of entitlement to equivalent expedition in every public-law challenge.

Once the court upheld the conclusion that waiting was the most efficient course here, the possibility of constructing an accelerated alternative timetable did not require that alternative to be adopted.

C. The related English litigation

R (Ammori) v Secretary of State for the Home Department [2026] EWHC 292 (Admin); [2026] HRLR 9

The High Court quashed the proscription decision because the Secretary of State had breached her own policy and because the interference with Articles 10 and 11 rights was unjustified. This decision formed part of the procedural background, not a substantive conclusion adopted by the Inner House.

R(Ammori) v Secretary of State for the Home Department [2026] EWCA Civ 721; [2026] WLR(D) 326

A five-judge Court of Appeal allowed the Secretary of State’s appeal. It held that the policy had not been breached and that the interference with Convention rights was justified. It also refused permission to cross-appeal on two grounds, one concerning the absence of an opportunity for Palestine Action to make representations before the Order was laid before Parliament.

The opposing first-instance and appellate outcomes reinforced the practical importance of the forthcoming Supreme Court determination. Neither outcome was treated as resolving the Scottish petition on its merits.

Ammori v Secretary of State for the Home Department

This was the title used for the pending Supreme Court proceedings. The judgment records no Supreme Court outcome: the hearing remained scheduled for November 2026. The anticipated overlap, particularly on Articles 10 and 11, was central to the justification for maintaining the sist.

D. Authorities illustrating the reporting jurisdiction

Borland v Borland 1947 SC 432

This was identified as the last apparent example of an entire cause being reported to the Inner House, involving a general question about divorce on the ground of desertion. It demonstrated that whole-cause reporting had historical support. Its age and the continuing wording of the rules led the court to preserve the possibility, while stressing its rarity.

Gould v Gould 1966 SC 88

The report concerned financial vouching in undefended divorce actions. Its relevance lay in illustrating how an important evidential question can be referred for authoritative guidance without transferring a case merely to shorten its appellate route.

Tonner v FT Everard & Sons Ltd 1994 SC 593

This example concerned evidence on commission. It reinforced the distinction between reporting an incidental issue requiring a ruling and bypassing ordinary first-instance adjudication of the entire dispute.

Taylor v Marshalls Food Group 1998 SC 841

The reported issue concerned the legal validity of a rule of court. Such a question naturally illustrated the value of authoritative clarification by the Inner House.

Wisely v John Fulton (Plumbers) Ltd 2000 SC (HL) 95

This authority illustrated reporting to address conflicting Outer House decisions. It was directly relevant to the court’s explanation that reporting commonly resolves uncertainty which another first-instance decision would not adequately remove.

Heasman v JM Taylor & Partners 2002 SC 326

The reported question concerned compatibility of jury trial with Article 6. It showed that an incidental issue may be constitutionally significant while remaining distinct from an unrestricted transfer of the whole case.

Secretary of State for Business, Enterprise and Regulatory Reform v UK Bankruptcy Ltd [2010] CSIH 80; 2011 SC 115

This example concerned a company director’s right of audience. Again, its contribution was to identify a discrete procedural uncertainty suitable for authoritative resolution.

Struk v Secretary of State for the Home Department 2004 SLT 468

The report concerned an alleged conflict between Scottish and English decisions and proceeded on the parties’ joint motion. It showed that parties may properly initiate a request for reporting; the mechanism is not confined to questions raised spontaneously by the Lord Ordinary.

Its significance lay in the identified conflict, rather than the mere existence of litigation in another jurisdiction.

Trump International Golf Club Scotland Ltd v Scottish Ministers [2013] CSOH 166

In this judicial review, the Lord Ordinary refused to report a discrete competency question because expedition was better served by allowing the first hearing to proceed. The example demonstrated that reporting is not invariably the faster or more appropriate course, even where a properly identifiable preliminary issue exists.

These reporting cases were cited as illustrations of procedural purpose. The present judgment did not adopt or reconsider their underlying substantive holdings.

6. Complex Concepts Simplified

Sist

A pause in Scottish court proceedings. It does not dismiss the case or determine who is right.

Reclaiming motion

An appeal from an Outer House decision to the Inner House of the Court of Session.

Inherent jurisdiction

Powers necessary for a court to administer justice and control its process, even where no rule expressly lists them. They remain subject to legal limits.

Expressio unius est exclusio alterius

An interpretive argument that expressly mentioning one thing implies excluding others. The court rejected its proposed application to the rules mentioning legal-aid sists.

Reduction and interim suspension

Reduction is a remedy setting aside a challenged act or decision. Interim suspension temporarily suspends its operation while proceedings remain unresolved.

Closed material procedure

A procedure permitting consideration of sensitive material under special safeguards, including special advocates, without ordinary disclosure to the opposing party. The preliminary process contributed to the timetable here.

Reporting a cause

A reference by the Lord Ordinary to the Inner House for a ruling. It differs from appealing against a decision already made.

Proportionality

The assessment of whether interference with a protected right is justified and appropriately balanced against the objective pursued. That substantive assessment was not undertaken in this appeal.

7. Impact and Limits of the Decision

Practical effect on judicial review

The judgment gives firm support to the availability of sists in Scottish judicial review. A litigant cannot establish incompetence simply by pointing to the absence of an express rule or to the general importance of expedition.

It also provides a framework for assessing a proposed sist: the likely overlap of issues, proximity of the other judgment, potential savings, use of court resources and preservation of unresolved claims all matter. The decision does not establish that parallel litigation automatically takes priority over a Scottish petition.

Coordination without surrendering Scottish jurisdiction

The court distinguished procedural coordination from an obligation to follow another jurisdiction’s courts. The Scottish petition remained in existence, and any unresolved matters could return for determination. Respect for the independent Scottish judicial process did not require duplicating an imminent Supreme Court examination of common issues.

Limits on procedural innovation

The decision draws an important boundary between using an existing inherent power and creating a new route through the court hierarchy. A routine power to pause proceedings survives procedural silence. By contrast, a general mechanism for skipping first-instance adjudication requires specific provision and cannot be fashioned from Rule 34.1 merely because it would facilitate an appeal.

No determination of the substantive rights challenge

The judgment should not be read as endorsing the proscription, rejecting the petitioner’s consultation arguments, or deciding that Scottish-specific considerations lack merit. Nor did the court adopt the respondent’s contention that the petitioner suffered no prejudice because other peaceful protest remained possible. Its decision rested on competence, procedural discretion and the appropriate sequencing of adjudication.

8. Conclusion

The central principle is that speedy judicial review means efficient final adjudication, not uninterrupted litigation at all costs. The Court of Session may use its inherent jurisdiction to await closely related proceedings where a reasoned assessment shows that doing so will best resolve the dispute.

At the same time, Rule 34.1 remains a mechanism for obtaining appropriate authoritative rulings, not a general shortcut around the Outer House. The reclaiming motion was refused, expenses were reserved, and the underlying challenge remained paused rather than finally determined.