Factual and Procedural Background
The Claimants, both unemployed and recipients of Jobseekers Allowance (JSA), challenged the retrospective validation by the Jobseekers (Back to Work Schemes) Act 2013 ("the 2013 Act") of the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 ("the 2011 Regulations") and related sanctions imposed under those regulations. The 2011 Regulations required claimants to participate in unpaid work schemes or face sanctions, including withholding of JSA. The First Claimant complied but lost voluntary work opportunities and was not properly notified as required by the 2011 Regulations. The First Claimant and another individual brought judicial review proceedings ("Reilly No. 1") which found defects in the 2011 Regulations, including that they were ultra vires and notification requirements were not met. The Court of Appeal upheld these findings, but the 2013 Act retrospectively validated the 2011 Regulations, defective notifications, and sanctions.
The Second Claimant, not party to Reilly No. 1, also faced sanctions for refusing to participate in the schemes, resulting in significant JSA withholding. He successfully appealed some sanctions at the First-tier Tribunal (FTT) on similar grounds but faced a stayed appeal at the Upper Tribunal pending the outcome of Reilly No. 1. The Second Claimant had a history of unemployment, some barriers to employment, and had ceased participation in certain schemes due to financial and practical concerns.
The claim challenging the 2013 Act was brought in the Administrative Court, with permission granted to proceed. The Court heard submissions on the retrospective validation of the 2011 Regulations and its compatibility with the European Convention on Human Rights (ECHR), specifically Article 6 (right to a fair trial) and Article 1 of the First Protocol (A1 P1, protection of property).
Legal Issues Presented
- Whether the retrospective validation effected by the Jobseekers (Back to Work Schemes) Act 2013 infringes the Claimants' rights under Article 6(1) ECHR to a fair trial and judicial determination of civil rights and obligations.
- Whether the Second Claimant was deprived of his possessions under Article 1 of the First Protocol to the ECHR by the withholding of JSA sanctions retrospectively validated by the 2013 Act.
- Whether any interference with the Claimants' rights under Articles 6 and A1 P1 can be justified by compelling grounds in the public interest.
Arguments of the Parties
Claimants' Arguments
- The 2013 Act unlawfully interfered with ongoing litigation by retrospectively validating unlawful acts, depriving them of a fair judicial determination of their claims under Article 6.
- No compelling public interest justified the retrospective interference, contrary to established ECtHR jurisprudence.
- The Second Claimant was deprived of a possession (JSA benefit) under A1 P1 without justification in the public interest.
- The retrospective legislation prevented the Second Claimant from relying on successful appeals and judicial review decisions, effectively denying justice.
Defendant's Arguments
- The 2013 Act did not infringe Article 6 because the First Claimant was not deprived of JSA and had access to the Supreme Court.
- The Second Claimant could still argue good cause for non-participation in forthcoming appeals.
- The Second Claimant's entitlement to JSA did not constitute a possession under A1 P1.
- Any interference with Article 6 and A1 P1 rights was justified by compelling public interest grounds, including the prevention of windfall payments and the significant cost to the public purse.
- The retrospective legislation was necessary to restore Parliament's original intention and ensure the proper operation of the work schemes.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Reilly & Wilson) v Secretary of State for Work and Pensions [2013] UKSC 68 |
Judicial review of the legality of the 2011 Regulations; breach of notification requirements; ultra vires regulations |
Provided factual and legal background; Supreme Court found 2011 Regulations ultra vires and established common law duty of fairness but allowed appeal due to retrospective 2013 Act |
| Zielinski & Ors v France (2001) 31 EHRR 19 |
Retrospective legislation interfering with ongoing litigation violates Article 6 unless justified by compelling public interest |
Supported principle that interference with judicial process by legislature is only justified on compelling grounds |
| Stran Greek Refineries v Greece (1995) 19 EHRR 293 |
Legislative interference with ongoing litigation to benefit State violates Article 6 |
Distinguished from Defendant's case; held that interference was unlawful |
| Scordino v Italy (2007) 45 EHRR 7 |
Retrospective legislation altering outcome of pending civil proceedings violates Article 6 |
Reinforced principle against retrospective interference absent compelling justification |
| National & Provincial Building Society & Ors v UK (1998) 25 EHRR 127 |
Retrospective legislation closing loopholes may be compatible with Article 6 if justified by public interest |
Distinguished by court; Defendant relied on this precedent but court found key differences |
| Ogis-Institut Stanislas & Ors v France [2004] ECHR 232 |
Retrospective legislation justified by compelling public interest does not violate Article 6 |
Used by Defendant to support justification of 2013 Act |
| EEG-Slachthuis Verbist v Belgium [2005] ECHR 954 |
Retrospective validation of legislation correcting technical defects justified by public interest |
Defendant relied on this case; court distinguished facts |
| Tarbuk v Croatia [2012] ECHR 2049 |
Retrospective legislation justified by compelling public interest and legal certainty |
Used by Defendant to support justification of 2013 Act |
| R v Rimington [2006] 1 AC 459 |
Principles against retrospective criminal penalties; clarity and certainty in law |
Referenced in discussion of retrospective legislation limits |
| Golder v UK (1979) 1 EHRR 524 |
Article 6 requires access to independent courts for civil rights |
Supported engagement of Article 6 in social security claims |
| Iatridis v Greece (2000) 30 EHRR 97 |
Obligation to respect court processes and judgments under Article 6 |
Supported principle that legislature should not interfere with judicial process |
| Stec v UK (2005) 41 EHRR SE18 |
Non-contributory social benefits can be possessions under A1 P1 |
Accepted that JSA can constitute possessions for A1 P1 purposes |
| Moskal v Poland (2010) 50 EHRR 22 |
Conditional claims to benefits may be possessions under A1 P1 until revoked |
Applied to analysis of Second Claimant's entitlement to JSA |
| Kopeck v Slovakia (2005) 41 EHRR 43 |
Claims with settled legal basis may constitute possessions under A1 P1 |
Distinguished from Second Claimant's claim which lacked settled case law |
| AXA General Insurance Ltd v HM Advocate [2012] 1 AC 868 |
Retrospective legislation and compatibility with human rights; possessions can include insurers' assets |
Referenced regarding retrospective legislation and possessions; distinguished facts |
| Blackpool Corpn. v Locker [1948] 1 KB 349 |
Importance of legal certainty and notice of rights affecting individuals |
Quoted to emphasize constitutional importance of clear legal authority |
Court's Reasoning and Analysis
The court recognized that retrospective legislation altering the legal consequences of past acts is generally disfavoured due to fairness and legal certainty principles. However, Parliament possesses sovereign power to legislate retrospectively, subject to the Human Rights Act 1998 allowing courts to declare incompatibility with the ECHR.
The court found Article 6(1) ECHR engaged because the Claimants had civil rights in the form of entitlement to JSA and were pursuing judicial or tribunal proceedings to determine these rights. The 2013 Act was enacted during ongoing litigation and retrospectively validated unlawful regulations and sanctions, thereby interfering with the judicial determination of the dispute in favour of the Secretary of State.
The court reviewed relevant ECtHR jurisprudence, which establishes that legislative interference with ongoing litigation involving the State is only permissible on compelling grounds of the public interest. The Defendant's reliance on precedents where retrospective legislation was upheld was distinguished on facts, especially regarding the timing, nature of the litigation, and whether the legislation targeted ongoing proceedings.
The court found the retrospective validation by the 2013 Act was not foreseeable by the Claimants and involved an exceptional legislative intervention that effectively deprived them of a fair trial. The Defendant's justifications, including financial cost and preventing undeserved windfalls, were not deemed sufficiently compelling to justify the interference with Article 6 rights.
Regarding Article 1 of the First Protocol, the court held that the Second Claimant's entitlement to JSA was conditional and subject to ongoing eligibility and sanction provisions. Although JSA can constitute a possession, the Second Claimant was not deprived of an existing possession because the sanctions affected future payments contingent on compliance. The claim to JSA lacked the settled legal basis required to constitute a possession under A1 P1. Therefore, no violation of A1 P1 was found.
The court also rejected the Defendant's submission that a violation of Article 6 should not be found without a corresponding violation of A1 P1, emphasizing that the two rights differ in nature and may require different thresholds for interference.
Holding and Implications
The court granted permission to apply for judicial review and declared that the Jobseekers (Back to Work Schemes) Act 2013 is incompatible with the Claimants' rights under Article 6(1) of the European Convention on Human Rights.
Article 1 of the First Protocol was found not to be engaged in this case. The declaration of incompatibility does not affect the validity of the 2013 Act but signals that the retrospective validation of the 2011 Regulations and sanctions interfered unlawfully with the Claimants' fair trial rights.
The decision underscores the constitutional principle that Parliament's power to legislate retrospectively should not be exercised in a manner that interferes with ongoing judicial proceedings to the detriment of individuals without compelling public interest justification. No new precedent altering the established principles of retrospective legislation or human rights law was set, but the court reaffirmed the high threshold for justifying retrospective legislative interference with the administration of justice.