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

In ascertaining the meaning of any legislation, the court will give effect to Parliament’s intention in enacting the legislation. To that end, the court will adopt a purposive approach by considering the context of the statute as a whole, including the historical context in which the statute was enacted (Rossendale Borough Council v Hurstwood Properties (A) Ltd [2021] UKSC 16, [2022] A.C. 690, para 10; citing R (Quintaville) v Secretary of State for Health [2003] 2 A.C. 687, para 8 per Lord Bingham of Cornhill).

It was common ground that, applying a purposive approach, subsections (3) and (4) of section 2D should be read together. The reference in subsection (3) is to the “principles which would be applied in judicial review proceedings.” Subsection (4) refers to orders that “may be made… in judicial review proceedings.” The similar language of both subsections means that SIAC will apply the principles of judicial review in determining a section 2D review and then, consistently with the application of those principles, it may make any order that would be appropriate in judicial review proceedings. SIAC is thereby empowered not only to set aside a decision but also (for example) to remit a case to a decision-maker for reconsideration.

There is no reference in either subsection (3) or subsection (4) to the powers of the High Court outside the specific context of the law of judicial review. There is nothing to suggest that Parliament was concerned with the more general jurisdiction of the High Court to make ancillary orders, such as the award of costs. That the High Court awards costs in judicial proceedings in a principled way – as expounded in cases such as M v Croydon – does not mean that it applies the principles of judicial review to costs. In the present context, “the principles which would be applied in judicial review proceedings” means the principles for determining a claim substantively.

SIAC relied on what it regarded as the breadth of the wording of section 2D(4) which empowers SIAC not only to grant “any such relief” but also (separately and distinctly) to “make any such order” that may be given or made in judicial review proceedings. However, the words “make any such order” must be read in the context of a subsection concerned with SIAC’s powers when it decides that the decision under review should be set aside. Having set aside the decision, SIAC may wish to make other, related orders (such as remittal). The purpose of section 2D(4) is to bestow the jurisdiction to do so. Section 2D(4) empowers SIAC to order more than a bare setting aside of a decision in the same way that the High Court can do more than order a bare quashing of a decision. There is no reason to suppose that Parliament intended that costs powers should be conferred by the same subsection that deals with orders for the substantive disposal of a review application.

The procedure in relation to reviews is governed not by sections 2C-2F but by section 5 of the Act (which applies to reviews by virtue of section 6A). As we have said, section 5(4)(b) empowers the Lord Chancellor to “confer on [SIAC] such ancillary powers as the Lord Chancellor thinks necessary for the purposes of the exercise of its functions.” The award of costs would amount to the exercise of an ancillary power and so would fall within section 5(4)(b). Alternatively, the Lord Chancellor has the power to make rules of procedure for matters “incidental to or arising out of” SIAC reviews (section 5(1(c)) which may likewise cover the power to award costs.

SIAC rejected section 5 as the source of a costs power because the Rules are silent about costs. In our judgment, SIAC misdirected itself in law. There is a difference between the source of a statutory power and a decision whether or not to exercise that power. The source of the power is section 5 of the Act. The decision whether to exercise the power rests with the Lord Chancellor.

In C7, Elisabeth Laing LJ held at paragraph 74 (cited above) that the language of section 5 evinced a clear intention that, if SIAC was to have any power to award costs in appeals, it could only be conferred by rules made by the Lord Chancellor. Her reasoning applies with equal force to reviews. If Parliament had intended that the source of SIAC’s powers should be different in reviews, it would not have enacted section 6A in the terms that it did.