Select Committee on Home Affairs First Report



  49. Since its establishment in 1998, SIAC has only heard three appeals - one of which resulted in an appeal to the House of Lords.[38] There has never been a judicial review of a SIAC decision.[39] This can partly be explained by the availability of a statutory route of appeal, first to SIAC and then to the higher courts on a point of law. Nevertheless, the Bill contains a provision which purports to exclude judicial review - and any legal challenge[40] - to various decisions and actions that made by the Home Secretary, or by SIAC, under the new regime contained in Part 4.

  50. When asked why we needed this provision, the Minister's response was:

"I cannot see myself what a further judicial review would add to the process except to delay it and complicate the process. Judicial review has not been sought in the three cases we have had. That suggests that the judicial element in the process, particularly with the strengthening around the certification... is sufficient and I think it is preferable to be clear about the process. I think I can assure people that the people involved in the Commission will be undertaking a process that is a judicial review process and it is part and parcel of the system."[41]

  51. We note that a former Master of the Rolls has written recently "The right of an individual to apply to the courts by judicial review for a writ of habeas corpus ... is one of the foundations of the rule of law and applications for its issue take priority over all other judicial business. ... There have been previous attempts by Parliament and others to exclude the supervisory jurisdiction of the courts in various contexts, but all have been held to be ineffective."[42] Rick Scannell, the Chair of ILPA, told us:

    "The present SIAC regime provides a right of appeal from a decision of SIAC to the Court of Appeal on a point of law. There is no scope therefore for judicial review and ILPA's position is that it is a misconceived proposal which is simply unnecessary because it does not engage with any current problem.... The only circumstance in which judicial review might conceivably be relevant in connection with SIAC, would be in relation to some sort of interlocutory order. If you use the normal immigration appeal system - and the anticipated number of decisions which the normal immigration appeal system is due to take is going to go up to some 6,500 a month; we are talking about that sort of scale of decision making - even with the potential of making interlocutory judicial review applications one has seen virtually none; numbers reaching perhaps half a dozen in many, many years. It does not seem to me to be a real problem."[43]

  52. We understand that removal of judicial review could have consequences in a small number of individual cases. For example, a failure by SIAC to give reasons on a bail application might prevent the suspect from knowing whether there was a point of law, on which he could make an appeal. However, even if the removal of judicial review had no serious consequences, it appears to us that the provision is attempting to "abolish the possibility of something that has never been done."[44] We note the Minister's statement that:

    "This is part of a wider attempt to streamline related processes which we are not dealing with in this Bill but we will be dealing with it in a later Bill in terms of extradition and to make those processes consistent we do not want to have unreasonable opportunities for people to extend these processes generally."[45]

  53. We are reluctantly persuaded of the case for removal of judicial review in decisions made by the Special Immigration Appeals Commission.

38   Secretary of State for the Home Department v. Rehman [2001] UKHL 47. Back

39   Q212. Back

40   Other than the statutory appeal provided. Back

41   Q216. Back

42   Lord Donaldson of Lymington The Times 14 November 2001. Back

43   QQ75 and 76. Back

44   Evidence, p.42, para.6. Back

45   Q210. Back

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