Held, Appeal dismissed. The first issue was did the Special Immigration Appeals Commission have an inherent power to award costs? On enactment SIAC did not have any power to award costs. It was not a superior court of record. In name, it was not even a court, but a “commission”. It had a comparatively limited and wholly statutory jurisdiction. A court with a limited statutory jurisdiction would have had no power to award costs unless, like that court’s jurisdiction, that power was conferred by, or under, statute. The language of section 5 of the 1997 Act, which conferred on the Lord Chancellor, in very broad terms, powers to regulate SIAC’s procedure, evinced a clear intention that, if SIAC was to have any power to award costs, it could only be conferred by rules made by the Lord Chancellor. An inherent power to award costs (or, indeed, to make any rules about its own procedure) could not co-exist with the powers conferred on the Lord Chancellor by section 5, which occupied the relevant field. By amending section 1 of the 1997 Act and making SIAC a superior court of record, Parliament did not also give it an inherent power to award costs. The court was not shown any authority which decided that, in and of itself, the designation of SIAC as a superior court of record gave it an inherent power to award costs. Following amendments made to section 5 the words of section 5(2A) showed Parliament’s clear intention that, if SIAC was to have a power to award costs, the source of any such power, as in the case of the tribunal and adjudicators, was to be rules made by the Lord Chancellor. It would follow that, if no such rules were made, SIAC would have no such power. Section 5(2A) did not give SIAC all the powers which the Upper Tribunal had. What it did, instead, was to give the Lord Chancellor, when he made rules for SIAC, power which enabled such rules to “do anything which may be done by Tribunal Procedure Rules”. That clearly included a power to make rules about costs. The amendments clearly excluded any inherent power to make an award of costs ( paras 73–78).

Did SIAC have an implied power to award costs? The test for an implied power in that context was whether a power to award costs was necessary to enable SIAC to do justice. Such a power was not necessary for that purpose. Whether such a power was necessary to enable SIAC to do justice was not the only question. There was a more fundamental question, namely whether such a power could be implied in the statutory scheme. Local authorities, the powers of which were wholly statutory, did not have implied powers to do things in a field which was governed by a detailed statutory code, except to the extent that those were authorised by section 111 of the Local Government Act 1972, which codified the common law about implied statutory powers. The court considered that the position of SIAC was analogous. There was a detailed statutory code governing SIAC’s procedural powers. The rule-maker under that code was the Lord Chancellor, not SIAC. If the Lord Chancellor had not made a rule authorising SIAC to make an award of costs, SIAC did not have an implied power to do so ( paras 80–82).

If SIAC did have a power to award costs, the court did not consider that the judge had erred in law in deciding that the power should be exercised in accordance with the principle which applied to the exercise of that power by the First-tier Tribunal and the Upper Tribunal, such that the power should only be exercised if there was unreasonable conduct by a party. Finally the court did not consider that the judge had erred in law in holding that the conduct of the Secretary of State was not unreasonable and deciding not to order the Secretary of State to pay the costs of the appeal (paras 84, 85, 86, 87, 96).