R (on the application of Reilly and another) v Secretary of State for Work and Pensions

Delegated legislation requiring benefit claimants to participate in employment schemes must contain the description which Parliament required to be prescribed. It must add meaningful content to the primary legislation and preserve legal certainty and parliamentary oversight.

Procedural fairness also requires affected claimants to receive enough information about a scheme and its selection criteria to make informed and meaningful representations before participation is required. The information need not be published by any particular method.

Requiring work as a condition of unemployment benefit does not constitute forced or compulsory labour under article 4 of the European Convention on Human Rights merely because benefits may otherwise be withheld or the domestic requirement is unlawful. Exploitation is central to article 4.

Two jobseeker’s allowance claimants challenged regulations and employment schemes requiring unpaid work under section 17A of the Jobseeker’s Act 1995. One undertook a placement after being wrongly told that participation was mandatory. The other was sanctioned after refusing a six-month placement, having received a notice which omitted meaningful details of the activities required.

Foskett J held that the notice requirements had been breached but rejected the remaining grounds: [2012] EWHC 2292 (Admin). The Court of Appeal held the regulations ultra vires, found both notices defective, and rejected the challenges based on publication and article 4: [2013] EWCA Civ 66, [2013] 1 WLR 2239.

The Secretary of State appealed on vires and the second claimant’s notice. The claimants cross-appealed concerning disclosure of scheme information and forced labour. Retrospective validating legislation enacted after the Court of Appeal’s judgment complicated the appropriate order.

1. Appeal and cross-appeal dismissed. Lord Neuberger and Lord Toulson delivered a joint judgment, with which Lord Mance, Lord Clarke and Lord Sumption agreed. Subject to the effect of the later validating legislation, the Court would have affirmed the Court of Appeal’s order.

2. The 2011 Regulations were ultra vires section 17A(1) of the Jobseeker’s Act 1995. Parliament’s requirement for schemes of a prescribed description meant that delegated legislation had to add something to the statutory description. Regulation 2 supplied no description of the individual schemes. Legal certainty, parliamentary oversight and the prohibition against unauthorised sub-delegation were especially important because the regulations affected many claimants’ livelihoods. Flexibility did not justify omitting every meaningful detail. The Regulations did, however, prescribe the circumstances and period of participation sufficiently through the notice provisions and event-based commencement and termination requirements.

3. The notice served on the second claimant failed regulation 4(2)(c). Requiring him to undertake any activities selected by a provider gave no adequate indication of the tasks, hours or workplace. The warning that benefit could be lost for up to 26 weeks satisfied regulation 4(2)(e). Its imperfections were not sufficiently misleading or prejudicial to invalidate it.

4. Fairness required each claimant to receive enough information about the scheme and the selection criteria to make informed and meaningful representations before a participation notice was served. The law did not require publication to the world at large or prescribe a particular means of communication. Both claimants had received inadequate information. A failure of this kind would invalidate a notice where it materially removed an opportunity to make representations capable of producing a different outcome. No further relief was necessary because the second claimant’s notice was already ineffective.

5. The article 4 claim failed. Exploitation lies at the heart of forced or compulsory labour. Article 4(3) helps delimit the right rather than creating exceptions to an otherwise absolute definition based solely on compulsion and threatened penalty. A work condition directly connected with unemployment benefit came nowhere near the exploitative conduct addressed by article 4. Domestic invalidity of the condition did not itself transform it into forced labour.

6. The Jobseekers (Back to Work Schemes) Act 2013 had retrospectively validated the 2011 Regulations and related measures. The Court therefore invited counsel to agree an appropriately qualified form of order.

1. United Kingdom Supreme Court: The Secretary of State’s appeal and the claimants’ cross-appeal were dismissed. But for the retrospective effect of the Jobseekers (Back to Work Schemes) Act 2013 and the replacement regulations, the Court would have affirmed the Court of Appeal’s order: [2013] UKSC 68.

2. Court of Appeal: The claimants’ appeal was allowed on vires and notice, and the Secretary of State’s cross-appeal was dismissed. The 2011 Regulations were quashed, but the publication and article 4 grounds were rejected: [2013] EWCA Civ 66, [2013] 1 WLR 2239.

3. High Court, Administrative Court: Foskett J upheld the claims for breach of the notice requirements but dismissed the vires, publication and article 4 grounds: [2012] EWHC 2292 (Admin).