R (Reilly (no.1)) v Secretary of State for Work and Pensions [2013] UKSC 68; [2014] AC 453

Key point

  • Parliamentary sovereignty means that the coming into force of the Jobseekers (Back to Work Schemes) Act 2013 retrospectively validates the Employment, Skills and Enterprise Scheme

Facts

  • The Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 required unemployed people who are claiming Jobseekers allowance to undertake unpaid work experience on pain of losing their benefits
  • The policy was successfully challenged by Caitlin Reilly, an unemployed geology graduate, and Jamieson Wilson, an unemployed driver, in the Court of Appeal on a number of grounds including that the authorising regulations were invalid and that they were incompatible with Article 4 of the ECHR (prohibition of forced labour)
  • The government appealed to the Supreme Court
  • Before the appeal was heard by the Supreme Court, Parliament passed the Jobseekers (Back to Work Schemes) Act 2013 which retrospectively validated the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations

Held (Supreme Court)

  • Appeal allowed; before the case was heard by the Supreme Court, the scheme was retrospectively validated by the Jobseekers (Back to Work Schemes) Act 2013

Lord Neuberger and Lord Toulson

  • Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 had been ultra vires as they did not offer any description of the scheme as required by 17A Jobseekers Act 1995 and they did not meet notification requirements in regulation 4(2)(c)(e) of 2011 regulations
  • A common law duty of fairness required that the claimants should be provided with sufficient information about the schemes to enable them to make meaningful representations to the decision-maker before a notice requiring their participation was served upon them “…there was a failure to provide either Ms Reilly or Mr Wilson with adequate, accurate information about the schemes in relation to themselves before they were informed that their participation was required”: [76]
  • The schemes did not constitute compulsory labour and therefore do not engage Article 4: “To amount to a violation of article 4, the work had to be not only compulsory and involuntary, but the obligation to work, or its performance, must be “unjust”, “oppressive”, “an avoidable hardship”, “needlessly distressing” or “somewhat harassing”…we do not consider that the imposition of the work condition in this case, intended as it was to support the purpose for which the conditional benefit was provided, met the starting point for a possible contravention of article 4”: [89-90]
  • However, the appeal was allowed as the Jobseekers (Back to Work Schemes) Act 2013 had altered the law and retrospectively validates the 2011 regulations as well as sanctions imposed on benefit claimants under its regime

Commentary

  • In Reilly (no. 2) [2016] EWCA Civ 413, the Court of Appeal found that the Jobseekers (Back to Work Schemes) Act 2013 was incompatible with Article 6(1) of the European Convention of Human Rights and the rule of law in that it had interfered with ongoing legal proceedings in favour of the government