TNAG-2189-FCO40-3126-Hong-Kong-nationality-package-1990 — Page 194

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In

4.26 The exclusion of judicial review is more difficult.

March 1987 the Cabinet asked the Law Officers to advise "on the

possibilities for reducing the scope of judicial review and other means of judicial questioning of Government decisions, especially in the field of immigration control". The Law Officers concluded

"We agree with the conclusion reached by the official Group that the scope of excluding challenge in the preparation of legislation is limited. The use of ouster clauses could not today be relied upon with confidence to achieve the desired result since the courts will tend to interpret such clauses narrowly, leaving intact the power to decide what is and is not intra vires. Steps are, however, open to Government to reduce the risk, by means of careful drafting and by applying in appropriate cases provisions such as rights of appeal, the existence of which in some cases have deflected judicial review.",

of the

4.27 At present, section 44(2) of the BNA excludes judicial review insofar as the decision made by the Secretary of State or Governor is discretionary. This provision stems from the BNA 1948 and, despite the advances made by judicial review in recent years, has rarely come under challenge and, consequently, has borne little weight. The present proposals will inevitably result in hundreds of thousands of refusals to recommend being made by the Governor in Hong Kong many of which will, inevitably, be arbitrary in nature. By contrast, the decision of the Secretary of State to refuse to register can only be made on grounds of "good character" (see para. 4.13 above) and the risk. of judicial review of the Secretary of State's decision is therefore of less concern. Nevertheless, Ministers have decided

that all discretionary decisions under the Bill should be immune to challenge by way of judicial review whether taken by the Secretary of State or Governor.

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