The UK Court of Appeal judges are to consider a claim that legislation passed in 2013 after a legal challenge to unemployment benefit rules is unlawful. Two judges have ruled that the retrospective nature of the legislation regarding the Work Programme’s “Work for your benefits” scheme falls foul of standard judicial interpretation under English law and of the European Convention on Human Rights.
There are thousands of claimants who had challenged the rules before the retrospective change. The judges in the Administrative Appeals Chamber of the Upper Tribunal have allowed the Department of Work and Pensions to appeal against their judgment as a test case.
The litigation arises from the case of Caitlin Reilly and Jamieson Wilson, sanctioned by removal of jobseeker’s allowance for failing to take part in the Work Programme assigned to them. Miss Reilly, a University of Birmingham geology graduate, had argued that making her work unpaid at a Poundland store for two weeks or risk losing her benefits was a breach of human rights. She had to give up arguably more relevant voluntary work at a museum to do the Poundland job. She attended her work programme job but challenged the legality of the requirement on her.
While the Court of Appeal in February 2013 (EWCA 2013 Civ 66) rejected a claim by Ms Reilly that the workfare-style programme was illegal forced labour under Article 4 of the ECHR, it found that the Secretary of State, Iain Duncan Smith, acted beyond his powers by failing to provide important detail about the Back to Work Schemes such as a description of the scheme. The judgment meant those people who had been similarly sanctioned for non-compliance with the scheme could have been entitled to claim back their benefit for those periods. However, legislation was rushed through Parliament to deny them the money.
The 2009 changes that brought in the workfare scheme in section 1 of the Welfare Reform Act 2009 (as a new Section 17A of the Jobseeker’s Act 1995) allowed the Secretary of State to make regulations requiring claimants to do work “designed to assist them to obtain employment”. Subsection 2 says:
“Regulations under this section may, in particular, require participants to undertake work, or work-related activity, during any prescribed period with a view to improving their prospects of obtaining employment.”
Regulations were then passed in a 2011 statutory instrument (2011 No. 917) that could require jobseekers to “to participate in support provided by the Employment, Skills and Enterprise Scheme”. It is these regulations that in February 2013 the Court of Appeal in Reilly quashed, finding them to be ultra vires – beyond the powers of the provision in the parent Act (Section 17A of the amended Jobseeker’s Act). The Court said Ms Reilly and Mr Wilson had not been provided with “adequate, accurate information about the schemes in relation to themselves before they were informed that their participation was required”.
The failings were fixed prospectively by a further statutory instrument on the day the judgment was issued (2013 No. 276 – made at 2.19pm, laid before Parliament at 6.15pm and in force from 6.45pm). The Government then sought to stymie earlier claims by rushing through the retrospective provisions of the March 2013 Jobseekers (Back to Work Schemes) Act. When the Reilly case came to the Supreme Court in July 2013, Lords Neuberger and Toulson said the 2013 Act was “plainly intended to ‘undo’ the decision of the Court of Appeal, in that … it retrospectively validates (i) the 2011 Regulations, (ii) the programmes listed in regulation 3(2) of the 2013 Regulations, (iii) notices issued under regulation 4 of the 2011 Regulations, and (iv) the benefit sanctions imposed under those Regulations in relation to the schemes”.
Since, by this time, the retrospectivity of the 2013 Act was under challenge in the Administrative Court (a claim was issued in June), the Supreme Court gave its judgment (October 2013 – in part against the Secretary of State including on the ultra vires point: failure to provide a “prescribed description” of any scheme) even though the issue had been “fixed” by the Act.
– but the court nevertheless found against the Secretary of State, leaving open the possibility of many further cases from before the February 2013 amendments.
The Administrative Court hearing
The Upper Tribunal in DB v Secretary of State for Work and Pensions (plus SSWP v TJ and SSWP v TG) in February 2013 heard a different set of cases – appeals from November and December 2012 judgments by the First Tier Tribunal. The judges approach the 2013 Act firstly as a matter of judicial construction ie “the ascertainment of Parliament’s intention in passing the Act, having regard to its language, its context (including the mischief which the Act was seeking to address) and such background materials as are admissible”.
There is already legislation to ensure claimants who have not appealed against a benefits decision do not benefit when the law is interpreted in court in a way that would favour them (S.27 of the Social Security Act 1998). The implication is that those who had appealed before a favourable judgment (in what would amount to a test case) should be able to successfully pursue their action. The Upper Tribunal judges had to decide whether there was anything about the words in the 2013 Act that showed Parliament’s intention was to “affect the rights of those claimants who had already appealed”. Although the words “for all purposes” appear in the 2013 Act, the majority of the judges (2-1) decided this was not enough to show an intention to exclude people who had already challenged their sanctioning before 2013 on the successful grounds in Reilly. The judges cited the explanatory notes to the Act which considered whether it was compliant with Article 6 on non-retrospectivity. They said:
“45. If no legal claim has been brought on the grounds that the  Regulations are ultra vires and/or that the notice issued under them is non-compliant prior to the enactment of the proposed legislation, the Government considers that Article 6 is not engaged at all since the claim to entitlement to benefit, and any dispute regarding a benefit decision thereon which would require access to the courts, remains hypothetical.”
This implies that if a legal claim has been instituted before the favourable judgments it should proceed. The judges said: “We do not see how that section of the Explanatory Notes could properly have been written as it was had the Government intended that those who had already appealed against sanctions should be caught by the Bill.” In other words “we are quite satisfied that there was no positive intention to include them”. The judges conclude: “Given the disposition not to read legislation to be more retrospective than clearly intended, we are satisfied that, notwithstanding the literal meaning of the words “for all purposes” in section 1(1), the 2013 Act should be read so as not to affect those who had already appealed against sanctions.”
Article 6 of the European Convention on Human Rights
Article 6 requires “a fair and public hearing within a reasonable time by an independent and impartial tribunal”. (The Article 6 “unfairness” complained of may be interpreted as that the Government intervened in a legal process by passing the 2013 legislation – purporting to deny Reilly and others a “win” that the Supreme Court was preparing to give them.)
The Human Rights Act 1998 Section 3 requires judges to interpret legislation in compatibility with the ECHR. This, the judges asserted, means not merely where there is ambiguity but on the basis that the Secretary of State intended compatibility (as he is required to declare). Putative wording may therefore be added by judges to ensure conformity.
The judges argued: “The effect [compatibility with the ECHR] can be achieved, for example, by reading in the words at the start of section 1(1) of the 2013 Act “Save where an appeal had already been made or had already been decided under section 12 of the Social Security Act 1998 before this Act came into force.” The Government argued this would actually run counter to the purpose of the Act but the judges said: “the mischief to which the Act was addressed was persons who had not already appealed adverse decisions and who would otherwise benefit from Reilly and Wilson because of section 27 of the SSA 1998 having no application’. The Act, on the construction set out above, was not directed against those who had already appealed against sanctions.
• Supreme Court judgment October 2013 R (Reilly and another) v Secretary of State for Work and Pensions UKSC 2013
• See also Reilly No 2 and Hewstone v Secretary of State for Work and Pensions on the Article 6 point and incompatibility with Article 1 Protocol 1 of the ECHR – right to respect for property. The claimants argued that “it is contrary to the rule of law, protected by Art. 6, for a State to legislate in the course of ongoing legal proceedings to decide the issues before the court, when it does so to its own advantage, as a party to the dispute. Such an interference with Art. 6 rights can only be justified by ‘compelling grounds in the public interest’. They submit that no such compelling grounds exist in this case.”
• Zielinski v France ECHR: “The Court reaffirms that while in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of a fair trial contained in Article 6 preclude any interference by the legislature–other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute”.
• Government Statement on SI 2011/917)
• There is an interesting piece by Carol Harlow on the UK Constitutional law blog on the 2013 Act retrospectivity issue here.
The claims and outcome at the Supreme Court in Reilly
They argued that:
(i) the 2011 Regulations are unlawful, since they did not fulfil the requirements of section 17A of the 1995 Act in “prescribing” the programmes, the circumstances by which individuals are selected, or the period of participation (“lawfulness”)
(ii) the Respondents did not receive the information required by Regulation 4 of the 2011 Regulations (“notification”)
(iii) the Government was required to have a published policy setting out the details of the relevant schemes (“publication”)
(iv) that the scheme constituted forced or compulsory labour contrary to Article 4 ECHR (“forced labour”).
i) That the 2011 Regulations are ultra vires section 17A because they fail to prescribe
i) a description of the SBWA scheme or the PAC [Accepted];
(ii) the circumstances in which a person can be required to participate in those schemes [Rejected: the “prescribed circumstances” were sufficiently set out given the need for some flexibility];
(iii) the period during which participants are required to undertake work on those schemes [Rejected: An open-ended period was legitimate].
ii) That the requirement that Miss Reilly and Mr Wilson participate in a scheme was unlawful, because the notice provisions contained in regulation 4 were not complied with [Accepted re Reilly; rejected re Wilson].
iii) That it is unlawful for the Government to enforce the 2011 Regulations in the absence of a published policy as to the nature of the relevant scheme and the circumstances in which individuals could be required to undertake unpaid work [Accepted but no declaratory relief ordered: “The Secretary of State owed a duty as a matter of fairness to see that Miss Reilly and Mr Wilson were respectively provided with sufficient information about the SBWA [sector-based work academy] scheme and the CAP [Community Action Programme], in order for them to be able to make informed and meaningful representations to the decision-maker before a notice requiring their participation was served on them. However, it would be wrong to be prescriptive as to how that information should be given”].
iv) That Miss Reilly had been subjected to forced or compulsory labour contrary to article 4 of the European Convention on Human Rights (“the Convention”) and/or that the Regulations were contrary to article 4 [Rejected].