TNAG-2189-FCO40-3126-Hong-Kong-nationality-package-1990 — Page 195

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4.2

4.2 Given Ministerial policy, two questions arise:

(a) should section 44 (2) be made to apply to individual decisions under this Bill or should there be a free- standing provision instead?; and

(b)

if there is to be a separate provision, should the exclusion of judicial review extend to the entirety of the decision or only to that part of it which is discretionary?

4.27 As regards (a), Ministers would not want to draw unnecessary attention to section 44 (2) (which, surprisingly, has been the subject of little judicial scrutiny) and see it "dragged down" for the general purposes of the BNA by the controversy surrounding these short-lived proposals. On the other hand, a specific provision in the Bill reproducing section 44 (2) (- and possibly going even further, see para. 4.30 below) would inevitably be a further controversial element to this package of proposals. On balance, given that this is not an issue which can in any way be fudged in debate, it has been decided to confront the issue head on and to include a specific provision in this Bill excluding judicial review.

[4.30 As regards (b) it is essential that the discretionary element be immune to challenge by way of judicial review since the highly selective nature of the scheme will result in arbitrary decisions having to be made. The argument for excluding judicial review where the challenge is to the legality of the decision (ie on grounds of illegality or procedural impropriety) is far less strong. It would be less easy to defend and might incite judicial hostility.]

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