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considering retrospectivity May 20, 2009

Posted by Bradley in : fundamental rights , trackback

In the same week that the Select Committee on the Constitution published a report critical of provisions for retrospective legislation in the Banking Act 2009 (the statute allows for orders with retrospective effect where the Treasury considers it desirable), the House of Lords wrote about retrospectivity. The case involved a doctor with Nigerian qualifications who went to the UK for a clinical attachment and then applied for leave to remain as a postgraduate doctor. After she made the application, but before a decision on the application was taken, the immigration rules were changed to provide that persons with foreign medical qualifications were not eligible for permanent leave to remain in the UK. The immigration rules are rules which can create legal rights but as executive statements they are not subject to the same sort of presumption against retrospectivity that applies to statutes. The House of Lords held that changes in the immigration rules took effect when they said they took effect and new rules could be applied to applications pending at the time they came into effect.
The Law Lords were very critical of the fact that the Home Office declined to refund the application fee in these circumstances. Lord Hope of Craighead stated:

Fair dealing, which is the standard which any civilised country should aspire to, calls out for the fee to be repaid.

Lord Scott of Foscote:

So what benefit did the appellant receive for her £335? The answer is ‘None’. She paid her money on what turned out to be a false and misleading prospectus. The least that the Secretary of State can be expected to do is to return her fee.

Lord Neuberger of Abbotsbury also said that it was not “fair dealing” for the fee to be retained. The language of fair dealing and misleading prospectus has some resonance in these days of financial turmoil. This week, one can’t help reading them without thinking of the parliamentary expenses scandal and Gordon Brown’s announcement that he proposes to do away with self-regulation by the parliamentary gentleman’s club. Brown’s use of the gentleman’s club term is a bit ironic here (I think unintentionally so), as fair dealing is supposed to be one of the things gentlemen believe in.

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