AC-2024-LON-000883 - [2025] EWHC 2019 (Admin)

On behalf of the Secretary of State, Ms Giovannetti submitted that, in enacting the review jurisdiction in section 2D, Parliament did not confer a costs jurisdiction – in the same way that it had not conferred a costs jurisdiction in appeals (as confirmed by the Court of Appeal in C7). She submitted that the statutory purpose of the review jurisdiction was to provide a route whereby challenges to the Secretary of State’s decision-making could be determined on consideration of the sensitive material underpinning the decision. As regards costs, she submitted that the insertion of section 6A into the SIAC Act demonstrated the Parliamentary intention to provide the Lord Chancellor with the power to make costs provisions under section 5 in review proceedings as well as in appeals. In the absence of rules made under section 5, SIAC had had no power to make a costs order.

Ms Giovannetti submitted that sections 2D(3) and 2D(4) should be read together. She submitted that such a reading indicates that Parliament was seeking to ensure that SIAC could make the substantive orders, specific to judicial review, in section 31 of the 1981 Act. There is no indication in the statutory language that Parliament intended to confer upon SIAC all the wider powers of the High Court, such as the general costs powers conferred by section 51 of the 1981 Act.

Ms Giovannetti emphasised that, in other contexts, Parliament has used express and unambiguous language to confer costs powers in primary legislation, such as section 29(2) of the Tribunals, Courts and Enforcement Act 2007 which states in terms that the tribunals covered by the Act have “full power” to determine costs. She submitted that, if Parliament had intended to confer a costs jurisdiction on SIAC, it could be expected to have used similarly clear language. She contended that Mr Armstrong’s additional arguments under article 14 of the European Convention on Human Rights (“the Convention”) lacked substance and clarity.

On behalf of H7 and H15, Mr Armstrong invited us to adopt SIAC’s reasoning. He agreed that the court’s task was to ascertain the legislative purpose and that sections 2D(3) and 2D(4) should be read together. As regards section 2D(3), he submitted that “the principles which would be applied in judicial review proceedings” included the particular principles of law applicable to costs that had been specifically developed in the case law by the High Court in judicial review cases (see e.g. R (M) v Croydon London Borough Council [2012] EWCA Civ 595, [2012] 1 WLR 2607; R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415, [2016] 1 WLR 4853). In relation to section 2D(4), he submitted that the language “any such order” and “any such relief” as “may be made or given in judicial review proceedings” could not be broader. Reading sections 2D(3) and 2D(4) together, Parliament had clearly intended to include costs powers in the wide range of powers conferred by section 2D on SIAC.

Mr Armstrong submitted that there was no reason of principle or logic as to why Parliament would replace judicial review proceedings in the High Court with a judicial review framework in SIAC without catering for costs. He submitted that such a stark distinction would be absurd. Acknowledging that SIAC’s approach would lead to one-way costs shifting, he emphasised that an asymmetric approach was rational and not unprecedented, citing Qualified One-Way Costs Shifting in personal injury litigation.

Mr Armstrong submitted that, if there was no costs power, then funding arrangements used by litigants, in particular conditional fee arrangements, would “not work” (to use Mr Armstrong’s words). This would inhibit or prevent access to justice and so would amount to a breach of common law rights (R (UNISON) v Lord Chancellor [2017] UKSC 51, [2020] A.C. 869). He emphasised that the cases to date in which costs in SIAC have been considered (which we have summarised above) have suggested that SIAC has a costs power under section 2D whereas there was no authority that it lacked such a power.

Mr Armstrong also relied on section 3 of the Human Rights Act 1998, which requires a court to read and give effect to legislation in a way which is compatible with rights under the Convention. He submitted that section 2D(4) should be read and given effect in a way that granted SIAC a power to award FGF his costs as otherwise the provision would not be compatible with article 14 of the Convention read with article 8 and article 1 of the First Protocol to the Convention (“A1P1”).

We prefer Ms Giovannetti’s submissions for the following reasons.