THE ANTI-TERRORISM, CRIME AND SECURITY
BILL
REMOVAL OF JUDICIAL REVIEW (clause 29)
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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