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

Key point

  • It is contrary to the rule of law for the state to interfere in ongoing legal proceedings in order to influence the outcome in a manner favourable to itself

Facts

  • Before an appeal was heard  by the Supreme Court in Reilly (No 1) [2013] UKSC 68; [2014] AC 453 on the validity of the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, Parliament passed the Jobseekers (Back to Work Schemes) Act 2013
  • The 2013 Act sought to retrospectively validate the 2011 Regulations, all notification letters which had failed to comply with the requirements of regulation and the sanctions which had been imposed pursuant to the 2011 Regulations and also determined thousands of pending appeals in statutory tribunals in the government’s favour
  • The applicants sought a declaration of incompatibility against the 2013 Act on the ground that it was incompatible with Article 6(1) of the European Convention of Human Rights because it had interfered with ongoing legal proceedings in the Secretary of State’s favour by retrospectively validating the 2011 Regulations as well as sanctions imposed on benefit claimants under its regime

Held (Court of Appeal)

  • The Jobseekers (Back to Work Schemes) Act 2013 was incompatible with Article 6(1)

Underhill LJ

  • In Zielinski v France (1999) 31 EHRR 19 it was held 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 fair trial enshrined 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”: [33]
  • “…it is – at least prima facie – contrary to the rule of law for the state to interfere in current legal proceedings in order to influence the outcome in a manner favourable to itself”: [44]
  • “We believe that the intervention of the Government to remove from such appellants what would otherwise have been a conclusive ground of appeal (on the basis of which some had already received decisions in their favour) was unquestionably an interference which engaged the Zielinski principle; and we do not believe that it was justified”: [86]
  • The Court held that the Act would therefore be the subject of a declaration of incompatibility under section 4 of the Human Rights Act 1998. However, under the HRA, a declaration of incompatibility does not invalidate the statute and it is up to the government to choose how to respond
  • The Court rejected the second claimant’s contention that he had been deprived of a “possession” to which he was entitled in breach of Article 1 of the First Protocol to the Convention (right to possession of property)
  • The Court also gave guidance on the requirement that benefit claimants referred to ‘back to work schemes’ be given sufficient ‘prior information’

Commentary

  • The government chose to correct the incompatibility of the 2013 Act with Article 6(1) identified in this case through a Remedial Order, which may be used to amend primary legislation