Summary
Retrospective legislation which deliberately alters the outcome of pending civil proceedings engages article 6, even where it applies generally rather than targeting named litigants. Such interference requires compelling grounds in the general interest. A desire to eliminate an alleged windfall or save modest public expenditure will not suffice where the original legal defects concerned substantive statutory safeguards.
A benefit claim is a possession under A1P1 only if it accrued under domestic law or has a sufficiently certain legal basis. A good arguable claim or appealable decision does not suffice. Clear retrospective legislation remains effective despite incompatibility with Convention rights where it cannot be read compatibly under section 3 of the Human Rights Act 1998.
Factual background
The appeals concerned the retrospective validation of jobseeker’s allowance sanctions by the Jobseekers (Back to Work Schemes) Act 2013. Earlier litigation had established defects in the regulations governing employment schemes and in notices issued to claimants.
In the judicial review proceedings, Lang J held in [2014] EWHC 2182 (Admin) that the 2013 Act infringed article 6 in relation to claimants who had already brought proceedings. She made a declaration of incompatibility but rejected a claim under A1P1. The Secretary of State appealed and the claimants cross-appealed.
In separate test appeals, a majority of the Upper Tribunal held in [2015] UKUT 0056 (AAC) that the Act could be read so as not to affect pending benefit appeals. The Secretary of State appealed. Further issues concerned the Upper Tribunal’s remedial discretion and the information which must be provided to claimants participating in the Work Programme.
Held
Judicial review appeal dismissed. The 2013 Act infringed article 6 in relation to Mr Hewstone and other claimants who had appealed against sanctions before the Act came into force. Legislation need not target named litigants. It engages the Zielinski principle where part of its deliberate purpose is to alter the outcome of a class of pending proceedings.
The interference was not justified by compelling grounds in the general interest. The absence of a prescribed scheme description and the failure to give claimants adequate details were substantive defects, not mere technical loopholes. They protected parliamentary supervision and enabled claimants to assess and challenge requirements. Respect for the rule of law extended to claimants who might otherwise receive an undeserved benefit. The likely cost relating only to pending appeals was too small to justify the interference. The declaration of incompatibility therefore remained in force.
Cross-appeal dismissed. Mr Hewstone had no possession protected by A1P1. A valid sanction decision meant that jobseeker’s allowance never became payable for the relevant period. The decision remained effective unless revised, superseded or overturned. His repayment claim also lacked the practical certainty required for an asset: the authorities had reached different conclusions, novel issues remained, and an appeal was pending. A good arguable case was insufficient.
Upper Tribunal appeal allowed. The words “for all purposes” in section 1(1) of the Jobseekers (Back to Work Schemes) Act 2013 clearly applied to sanctions already under appeal. Neither the presumption against unfair retrospectivity nor section 3 of the Human Rights Act 1998 permitted an exclusion to be read into the Act. The proposed reading would contradict its grain.
The Upper Tribunal could not use its discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 to preserve an erroneous First-tier Tribunal decision. Sections 4(6)(a) and 6(2) of the Human Rights Act 1998 preserve the operation of incompatible primary legislation.
The prior information duty is a flexible requirement of administrative fairness. It continues after referral to the Work Programme. Before a particular activity is imposed, a claimant must receive enough information to make meaningful representations about suitability or practical obstacles. Any failure invalidates the requirement only if material. Mr Bevan had made the relevant representation about travel costs, and the undisclosed guidance would not have affected either his representation or the provider’s response. His sanction therefore stood.
The sanctions against Ms Jeffrey, Mr Bevan and Mr Green stood.
The court’s approach to earlier authorities
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Appellate history
- Court of Appeal: dismissed the Secretary of State’s appeal from the declaration of incompatibility, dismissed the claimants’ A1P1 cross-appeal, and allowed the appeal from the Upper Tribunal.
- Administrative Court: Lang J held in [2014] EWHC 2182 (Admin) that the Jobseekers (Back to Work Schemes) Act 2013 was incompatible with article 6 as applied to claimants with pending proceedings, but rejected the A1P1 claim.
- Upper Tribunal: by a majority, held in [2015] UKUT 0056 (AAC) that the 2013 Act could be read so as not to affect sanctions already under appeal. It dismissed the Secretary of State’s appeals and allowed Mr Bevan’s appeal.
- First-tier Tribunal: allowed the appeals of Ms Jeffrey and Mr Green against their sanctions but dismissed Mr Bevan’s appeal.
Appeal route
- Appealed from[2014] EWHC 2182 (Admin); [2015] UKUT 56 (AAC)This appealsecretary of state’s judicial review appeal dismissed; claimants’ cross-appeal dismissed; secretary of state’s upper tribunal appeal allowed
- This judgment [2016] EWCA Civ 413 Court of Appeal (Civil Division)
Key cases cited
26 authorities cited.
- In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3
- AXA General Insurance Limited and others v The Lord Advocate and others [2011] UKSC 46
- Walumba Lumba (previously referred to as WL) (Congo) 1 and 2 v Secretary of State for the Home Department [2011] UKSC 12
- R (on the application of RJM) (FC) (Appellant) v Secretary of State for Work and Pensions (Respondent) [2008] UKHL 63
- Ghaidan (Appellant) v. Godin-Mendoza (FC) (Respondent) [2004] UKHL 30
- Smith v North East Derbyshire Primary Care Trust [2006] EWCA Civ 1291
- St Matthews (West) Ltd, R (On the Application Of) v HM Treasury [2014] EWHC 2426 (Admin)
- AXA General Insurance Ltd v HM Advocate [2010] CSOH 2
- Office of Government Commerce v Information Comr (Attorney General intervening) [2008] EWHC 774 (Admin)
- Tarbuk v Croatia [2012] ECHR 2049
- Scordino v Italy (No 1) (2007) 45 EHRR 7
- Draon v France [2006] EHRR 40
- Kopecky v Slovakia (2005) 41 EHRR 43
- Stec v UK (2005) 41 EHRR SE 18
- Lizarraga v Spain (2004) 45 EHRR 1031
- Zielinski v France (2001) 31 EHRR 19
- Salesi v Italy (1998) 26 EHRR 187
- The National Provincial Building Society v United Kingdom (1997) 25 EHRR 127
- Pressos Companía Naviera SA v Belgium (1996) 21 EHRR 301
- L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd (The Boucraa) [1994] 1 AC 486
- Stran Greek Refineries v Greece (1994) 19 EHRR 293
- Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 724
- Feldbrugge v The Netherlands (1986) 8 EHRR 425
- Chief Adjudication Officer v McKiernon
- OGIS-Institut Stanislas v France application 42219/98
- EEG-Slachthuis Verbist v Belgium application 60550/00
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Cases citing this case
12 later cases · 9 positive · 1 neutral · 2 caution
Most senior citing decisions:
- The National Council for Civil Liberties, R (on the application of) v The Secretary of State for the Home Department [2025] EWCA Civ 571 mentioned
- ALR & Ors, R (on the application of) v Chancellor of the Exchequer [2025] EWHC 1467 (Admin) followed
- FIRE BRIGADES UNION (R on the application of) v HIS MAJESTY’S TREASURY [2023] EWHC 527 (Admin) followed
- Helen Timson, R (on the application of) v Secretary of State for Work and Pensions [2022] EWHC 2392 (Admin)
- AA and CC (R on the application of) v SECRETARY OF STATE FOR EDUCATION & Anor [2022] EWHC 1613 (Admin)
- Enterprise Managed Service Ltd & Anor, R (On the Application Of) v Secretary of State for the Ministry of Housing, Communities and Local Government [2021] EWHC 1436 (Admin)
- TR & Anor v Secretary of State for Work and Pensions (ESA) [2025] UKUT 332 (AAC)
- AET v Secretary of State for Work and Pensions [2025] UKUT 16 (AAC)
- MW v Secretary of State for Work and Pensions [2022] UKUT 59 (AAC)
- SSWP v SD (JSA) [2020] UKUT 39 (AAC)
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