Recommendation 37

Article 6(1) of the ECHR requires that, in the determination of a person’s civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The enactment of retrospective legislation which affects the results of pending proceedings may infringe Article 6(1), unless there are compelling grounds of general interest. It is, prima facie, contrary to the rule of law for the state to interfere in current legal proceedings in order to influence the outcome of those proceedings in a manner favourable to itself. The Government is using Clause 9 to retrospectively validate unlawful deprivation of citizenship orders, following the High Court’s decision that the relevant regulation concerning the giving of notice is ultra vires. It is possible 76 Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office Decision-Making, Age Assessments, and Deprivation of Citizenship Orders that there are pending legal proceedings challenging deprivation of citizenship orders on the ground that notice was given by making a record on the Home Office file. Clause 9 would effectively remove a ground of appeal from these claimants. If clause 9 affects the results of pending legal proceedings, this may infringe the fair trial rights of the appellants. If clause 9 is to be retained, we suggest that it should not have retrospective effect, to avoid the risk of infringing Article 6 in the vent of pending legal proceedings.