Reilly & Anor v Secretary of State for Work And Pensions

Facts

In R (Reilly) v Secretary of State for Work and Pensions [2013] UKSC 68 the Supreme Court held that the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 were invalid. Before that decision, and in response to the Court of Appeal's earlier ruling to the same effect, Parliament enacted the Jobseekers (Back to Work Schemes) Act 2013, which retrospectively treated the 2011 Regulations and the notices given under them as valid. The effect was that claimants whose jobseeker's allowance had been sanctioned for failing to participate in schemes, including those with appeals pending before tribunals, could not recover the benefit lost. The claimants challenged the 2013 Act under the Human Rights Act 1998.

History

In the High Court, Lang J made a declaration under s 4 of the Human Rights Act 1998 that the 2013 Act was incompatible with Article 6 in respect of claimants with pending appeals. The Secretary of State appealed.

Issue

Whether retrospective legislation that validated the regulations and determined the outcome of pending appeals in the government's favour violated the right to a fair hearing under Article 6 of the Convention, and whether there were compelling grounds of the general interest to justify it.

Held

The Secretary of State's appeal on Article 6 was dismissed; the declaration of incompatibility was upheld.

Ratio

• Under Article 6, the legislature may not interfere with the administration of justice by enacting retrospective legislation designed to determine the outcome of pending litigation to which the state is a party, unless there are compelling grounds of the general interest. Protecting public funds and avoiding the cost of repaying sanctioned benefit was not by itself such a ground, so the 2013 Act was incompatible with Article 6 so far as it affected those with pending appeals.

Key reasoning

• The Strasbourg case law, including Stran Greek Refineries v Greece (1994) 19 EHRR 293 and Zielinski v France (2001) 31 EHRR 19, establishes that the principle of the rule of law and the notion of a fair trial preclude legislative interference with pending proceedings to influence their outcome, save for compelling reasons of general interest.
• The 2013 Act was targeted at, and had the effect of, determining in the government's favour appeals that would otherwise have succeeded in light of the courts' rulings on the invalidity of the 2011 Regulations.
• The financial justification advanced by the government, avoiding the cost of repaying sanctioned benefit, did not amount to a compelling reason of the general interest sufficient to justify determining pending proceedings by legislation.

Where it fits in the module

On the list for s 1 of the Constitutional Reform Act 2005, the case is used to explore what the rule of law means in a system of parliamentary sovereignty. It shows the rule of law operating through Article 6 and the declaration of incompatibility mechanism rather than through any power to disapply statute, and it raises questions about the separation of powers when Parliament legislates to reverse the effect of judicial decisions in pending cases against the government.

Criticisms

• The remedy is weak: a declaration of incompatibility left the 2013 Act fully effective and the claimants without their benefit, so the rule of law was vindicated in form but not in substance.
• The line between legitimate retrospective legislation to cure a defect and illegitimate interference with litigation is unclear, and the compelling general interest test gives the courts a broad evaluative judgment over legislative choices on public spending.
• From the government's side, it can be argued that Parliament was entitled to restore the scheme it had intended, and that the claimants had no reasonable expectation of recovering benefit they had lost for failing to participate.