R (Reilly) No. 2 v Secretary of State for Work and Pensions [2016] EWCA Civ 413

Determination of civil rights and obligations involves resolving legal disputes about personal or property rights through competent authorities to ensure justice.

A statute that retroactively validates previously invalid regulations raises concerns about its impact on the fairness of ongoing judicial reviews.

Impermissible interference in judicial proceedings refers to external actions that disrupt or influence ongoing legal determinations, compromising judicial independence.

Determining if a statute can be read down involves interpreting it in a way that does not affect ongoing proceedings or infringes on established rights.

Section 17A of the Jobseekers Act 1995, amended by the Welfare Reform Act 2009, regulates jobseeker's allowances and employment support.

Section 1 of the Jobseekers (Back to Work Schemes) Act 2013 provides provisions for back-to-work schemes to support jobseekers.

In the first case Reilly & others (“Claimant”) were unemployed individuals receiving Jobseeker’s Allowance (JSA).

• They were required to participate in unpaid "work for your benefit" schemes introduced by the Jobseeker’s Allowance (Employment, Skills, and Enterprise Scheme) Regulations 2011.

• Under these regulations, JSA could be withheld as a sanction for those who refused to participate.

The first Claimant challenged the Secretary of State through judicial review and succeeded in the Court of Appeal by establishing that the 2011 Regulations were ultra vires.

• Specifically, the regulations lacked a description of the scheme as required by section 17A of the Jobseekers Act 1995.

• Furthermore, the notification requirements under regulation 4(2)(c)(e) of the 2011 Regulations had not been met in the first claimant’s case, meaning there was no valid requirement to participate, and no valid sanction could be imposed.

Relying on this decision, the second Claimant successfully appealed in the First-tier Tribunal concerning three sanctions that had withdrawn his JSA.

• While appeals by the Secretary of State were pending before the Supreme Court and the Upper Tribunal, the Secretary of State promoted, and Parliament enacted, the Jobseekers (Back to Work Schemes) Act 2013.

• This Act retrospectively validated the 2011 Regulations, including all notification letters that had failed to comply with regulation 4, and the sanctions imposed under those regulations.

The Claimants then sought judicial review of the Secretary of State’s decision to promote the 2013 Act.

• Before this claim could be heard, the Supreme Court ruled that the 2011 Regulations were ultra vires, and that the standard notification letter did not comply with regulation 4(2)(c).

• However, the Secretary of State's appeal was allowed because the 2013 Act had come into force.

• The judge partially allowed the second claim, holding that the 2013 Act interfered with ongoing proceedings in the first claim by retrospectively validating unlawful acts and depriving both claimants of a fair determination of their civil rights and obligations, contrary to Article 6 of the European Convention on Human Rights.

• However, the judge rejected the second Claimant’s contention that he had been deprived of a "possession" in violation of Article 1 of the First Protocol to the Convention.

The Secretary of State appealed against the decision on Article 6, while the claimants cross-appealed on the decision regarding Article 1 of the First Protocol.

The Court of Appeal addressed the legality of sanctions imposed on Jobseeker’s Allowance (JSA) claimants who had failed to participate in certain back-to-work schemes.

• The core issue was whether these sanctions, which had been deemed invalid under previous judgments, could be retrospectively validated by the 2013 Act.

The Court found that the sanctions imposed prior to the 2013 Act were legally invalid, based on the principles established in R (Reilly) v Work and Pensions Secretary (No 1).

• This earlier case had determined that the sanctions were flawed due to procedural errors.

• However, the 2013 Act was enacted to retrospectively validate these sanctions.

• The Court held that this legislation was successful in validating the sanctions as a matter of English law.

• Despite this, the Court also upheld the High Court’s decision that the 2013 Act was incompatible with the European Convention on Human Rights (ECHR) for claimants who had already appealed against their sanctions.

  • Under the Human Rights Act (HRA), a declaration of incompatibility does not render the 2013 Act ineffective but requires the Government to address the issue.

Regarding the individual cases, the decision of the First-tier Tribunal (FTT) in Mr. Bevan’s case was upheld, meaning that his appeal against the sanction stood.

• Conversely, FTT’s decisions in the cases of Ms. Jefferies and Mr. Green were reversed due to the retrospective effect of the 2013 Act.

• While the 2013 Act successfully validated the sanctions from a legal standpoint, it was found to be incompatible with ECHR rights for those who had contested their sanctions.

• The judgment leaves it to the Government to determine the appropriate course of action in response to this incompatibility.

The Court of Appeal's decision addressed the retrospective validation of Jobseeker’s Allowance (JSA) sanctions. Initially, the sanctions were deemed invalid due to procedural issues, but the 2013 Act was enacted to retroactively validate them. 

The Court upheld this validation under English law but found the Act incompatible with the European Convention on Human Rights (ECHR) for claimants who had already appealed. 

This ruling reaffirms the legal authority of the sanctions while highlighting the need for government action to address ECHR compatibility issues.

The judgment also resulted in varying outcomes for individual cases, maintaining some tribunal decisions and overturning others.

R (Reilly) No. 1 v Secretary of State for Work and Pensions