Reilly (No. 2) & Anor, R (on the application of) v Secretary of State for Work and Pensions

Retrospective legislation which intervenes in pending civil litigation to secure a favourable outcome for the State is incompatible with Article 6 unless justified by compelling grounds of the general interest. Financial savings, avoidance of repayments and the prevention of an alleged windfall are insufficient where the legislation targets claimants whose proceedings are already under way, particularly after they have obtained favourable decisions. The court must scrutinise the justification with particular care. Article 1 of the First Protocol is distinct: a claimant has a possession only where the domestic legal conditions for the benefit are satisfied, or where a claim has a sufficient basis in national law. A conditional claim based on unsettled law does not constitute a possession.

The claimants were recipients of jobseeker’s allowance who had been required to participate in unpaid work schemes under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011. In R (Reilly & Wilson) v Secretary of State for Work and Pensions [2013] UKSC 68, the Supreme Court held that the regulations were ultra vires and that some notification requirements had not been met.

Parliament then enacted the Jobseekers (Back to Work Schemes) Act 2013, retrospectively validating the regulations, defective notices and sanctions. The claimants sought a declaration of incompatibility under section 4 of the Human Rights Act 1998, alleging breaches of Article 6 and Article 1 of the First Protocol. The central issues were whether the Act unlawfully interfered with pending proceedings and whether withheld jobseeker’s allowance constituted a possession.

1. Article 6. Article 6(1) was engaged because the claimants’ proceedings concerned civil rights and obligations, and the Secretary of State was the opposing party. The 2013 Act was enacted while litigation was pending and retrospectively validated defects on which the claimants had obtained favourable decisions. It therefore influenced the judicial determination of their disputes in the State’s favour.
2. The rule of law and fair-trial guarantees ordinarily preclude legislative intervention of that kind. Such intervention can be justified only by compelling grounds of the general interest, and the reasons advanced require the greatest circumspection. The court distinguished cases involving technical loopholes, foreseeable corrective legislation, or proceedings which had not reached an advanced stage. Here the claimants could not reasonably have foreseen retrospective validation, their proceedings were well advanced, and the legislation was directly targeted at the litigation.
3. The asserted public interests did not satisfy that stringent test. The estimated cost of repayment, the desire to prevent claimants obtaining a windfall, and the importance of enforcing work-related conditions did not justify depriving claimants who had been unlawfully sanctioned of the benefit to which the statutory scheme entitled them. A more proportionate course would have been to protect claimants with pending or concluded legal challenges rather than retrospectively validating all sanctions.
4. The Article 6 violation was confined to the minority of claimants who had pursued claims before courts or tribunals. The court rejected the submission that an Article 6 claim could succeed only if Article 1 of the First Protocol was also violated.
5. Article 1 of the First Protocol. A non-contributory benefit may constitute a possession, but entitlement depends on satisfaction of the statutory conditions at the relevant time. The sanction decisions meant that jobseeker’s allowance was not payable for specified future periods; they did not revoke an existing possession. The second claimant’s claim was not founded on settled domestic law and therefore did not amount to an asset or legitimate expectation protected by Article 1 of the First Protocol.
6. Permission to apply for judicial review was granted. The court declared that the Jobseekers (Back to Work) Schemes Act 2013 was incompatible with the claimants’ rights under Article 6(1). Article 1 of the First Protocol was not engaged.

The judgment itself records the earlier proceedings in R (Reilly & Wilson) v Secretary of State for Work and Pensions [2013] UKSC 68, but this claim was a separate judicial review at first instance.