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In July this year, Mrs Justice Lang sitting in the High Court gave leave for judicial review and, in rolled up proceedings, issued a declaration that the Jobseekers (Back to Work Schemes) Act 2013 (the 2013 Act) was incompatible with Article 6(1) of the ECHR (Reilly (No 2) and Hewstone v Secretary of State for Work and Pensions  EWHC 2182). Article 6(1) as interpreted in the Strasbourg jurisprudence constrains states from legislating in such a manner as to affect the judicial determination of a dispute involving the State or private parties unless the state can show ‘compelling grounds of public interest’ for the legislation and the claimants argued that the 2013 Act amounted to an unjustified intervention in their ongoing litigation with the Government, with the object of determining the litigation in its favour by retrospectively validating its unlawful acts. The aim of this short comment is to consider the judgment in the framework of the Westminster system of parliamentary governance and question whether the principle it embodies is a good fit with this constitutional model.
Public Interest Litigation
Caitlin Reilly, an unemployed graduate in geology who was working as a volunteer in a museum with a view to a future career, started the ball rolling when, following a direction from her Jobcentre personal adviser to join an unpaid training scheme at a retail outlet, an experience she described as ‘Orwellian’, she applied for judicial review to challenge the placement as a form of ‘forced labour’ contrary to ECHR Article 4. James Wilson, joined in this action, was an unemployed HGV driver ‘sanctioned’ by loss of benefit for refusing to participate in another such scheme. In Reilly (No1) (R(Reilly) and another v Work and Pensions Secretary  EWHC 2292 (Admin)) the two claimants argued that the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme (ESE)) Regulations 2011 (the 2011 Regulations) were ultra vires (i) because they failed to comply with the parent Act by providing an adequate description of the ESE schemes or the circumstances in which an individual could be required to participate; (ii) that no published policy describing the schemes had ever been provided; and (iii) that the requirements as to notice had not been complied with. In Reilly’s case his was not contested.
The 2011 Regulations were made in terms of section 17 of the Jobseeker’s Act 1995, inserted by the Welfare Reform Act 2009, which authorised the making of regulations ‘for or in connection with imposing a requirement on jobseeker’s allowance claimants to participate in schemes that are designed to assist them to obtain employment’. The Act required the regulations ‘to set out the circumstances in which jobseeker’s allowance claimants are required to participate in schemes under this section’ and provided that benefit payments could be ‘withheld or reduced’ where a claimant failed to comply with a direction and was unable to show good cause for the failure. It is worthy of note that these Regulations had attracted the attention of the House of Lords Select Committee on the Merits of Statutory Instruments, which drew the attention of the House to the fact that the Explanatory Memorandum and supporting information were insufficiently detailed, rendering parliamentary scrutiny difficult, and that the Regulations ‘interpret the directions very broadly so that future changes to the Scheme could be made administratively without any reference to Parliament’ (HL 137 (2011-12) at , ). To paraphrase, the Regulations were imprecise and badly drafted; they lent themselves to misconstruction and misuse.
The claimants were genuine litigants with interests to protect, as was Daniel Hewstone, who sought to recover the award by a social security tribunal of a refund of six months’ benefits of which he had been deprived after complaining about an ESE scheme. But they were at the same time convenient ‘front-persons’ for litigation run on their behalf by ‘Public Interest Lawyers’, a firm of solicitors whose website claims credit for ‘giving the nation a voice to speak out and challenge the abuse of power by those in public office who would otherwise disregard the need for the Rule of Law’. Everyone knew from the start that this was public interest litigation likely to end in Strasbourg. The Government unsuccessfully contested the right to apply for judicial review on the grounds that the alternative remedies of the in-house Independent Case Examiner and First-tier Tribunal had not been exhausted (a point to be noted perhaps in light of the Criminal Justice and Courts Bill currently before the House of Lords). Foskett J was ‘made aware that this case may have a wider interest than merely for the result in the two individual cases’. The DWP attempted to stifle an appeal by ‘buying off the litigants at the door of the court’ but the Court of Appeal agreed that it was appropriate to proceed ‘because of the important issues which arise, in particular as to the lawfulness of the 2011 Regulations’. Later the Supreme Court proceeded to hear an appeal made hypothetical by validatory legislation because, ‘although it was rather unattractive for the executive to be taking up court time and public money to establish that a regulation is valid, when it has already taken up Parliamentary time to enact legislation which retrospectively validates the regulation’, the issue could be ‘of some significance to the drafting of regulations generally’. The Court knew too that the validatory legislation was already under attack in a new application for judicial review ( UKSC 68 at -).
Why is this important? It reveals the litigation as a step in a struggle to gain through the courts advantages not available in the political system (C. Harlow and R. Rawlings Pressure Through Law (London: Routledge, 1992). All involved knew what the game was and how it would be played There is a long tradition of dealing with such problems by retrospective regulation or legislation; indeed, the tactic was at one time used so frequently as to make it the standard response to a successful test case in the field of social security (T Prosser, Test Cases for the Poor (Child Poverty Action Group, 1983; R v Greater Birmingham Appeal Tribunal ex p Simper  QB 543; R v Barnsley SBAT ex p Atkinson  1 WLR 917). The cost of meeting claims from those who had been ‘sanctioned’ and whose claims were pending in tribunals or had been ‘stockpiled’ was estimated by the Department to be in the region of £130 million and the sums involved, though disputed, were substantial enough as Lang J recognised, ‘that a government faced with the prospect of substantial repayments would consider it in the public interest not to pay them’ (see Reilly (No 2) at -). Thus her finding of Lang J (Reilly(No 2) at ) that Ms Reilly could not have foreseen the response was, if strictly true, in view of her advisers more than a little disingenuous.
Retrospective legislation and the rule of law
This does not mean, of course, that the tactic was justified. Retrospective legislation designed to deprive litigants of the fruits of their victory in cases brought against the government has always been controversial, while sanctions imposed in respect of action lawful when undertaken are a clear violation of the principle of legality. The latter point was taken up by the Lords Constitution Committee, which drew the Jobseekers (Back to Work Schemes) Bill to the attention of the House on the grounds that it infringed ‘the cardinal rule of law principle that individuals may be punished or penalised only for contravening what was at the time a valid legal requirement’ (HL 155, 2013 at ). Significantly, the Government made no adequate response to this important objection. Its lame argument that non-compliers with ESE directions would expect to be sanctioned and would have regulated their affairs accordingly (See Exchange of letters below) does scant justice to such an important constitutional principle.
In terms of the domestic constitution, the Bill raised a second important question: Was the ‘fast track procedure’ under which it was presented proper and appropriate? Again, the Constitution Committee thought not. Recapitulating an earlier report, it declared that fast track measures must be ‘a proportionate, justified and appropriate response to the matter in hand’ and should not jeopardise fundamental constitutional rights and principles. Moreover, it was essential to ensure the technical quality of all legislation and provide time for effective parliamentary scrutiny (Fast-track Legislation: Constitutional Implications and Safeguards, HL 116-I, 2008/09 at  and ). Finally, in terms of the ECHR, the Bill raised a further problem. The Government had departed from the standard formula used in social security cases contained in section 27 of the Social Security Act 1998 and deemed to be Convention-compliant. This formulation exempts from retrospectivity (i) those claimants who bring the test case plus (ii) all those whose appeals to tribunals or courts are pending and (iii) those whose claims are stockpiled at the date of the test case and this was the course implicitly followed when the 2011 Regulations were revoked and replaced by the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013, which operated prospectively and came into effect on the date when the Court of Appeal delivered a judgment ruling the 2011 regulations ultra vires.
So why did the Government take the dangerous path of fast track, retrospective legislation? The reason was unashamedly spelled out in the Explanatory Notes to the Bill. It was designed to retrospectively validate all notices to claimants served under the 2011 Regulations informing them of requirements as to participation and about consequences of failing to meet requirements. It was necessitated by an ‘adverse Court of Appeal judgment’, the effect of which would be that the Government would incur a liability of up to an estimated £130 million in repaying claimants who had been sanctioned under the programmes and in being unable to impose sanctions retrospectively in stockpiled cases. In the Commons, the Minister added that it was necessary ‘to press ahead with emergency legislation’ to guard against losing a further appeal that the Government was making. A section 19 statement was duly made that the Bill was considered compatible with the ECHR. If it were otherwise, the statement added, there were ‘compelling public interest reasons’ for the legislation ‘given the significant cost to the public purse of repaying previously sanctioned benefits, and as the aim of the proposed legislation is intended to restore the law to that which Parliament intended’ (HC Deb, vol 560, from col 822, 19 March 2013).
The Bill did not escape parliamentary censure. There was a lively debate in both Houses. In the Commons, the Bill was called an ‘abuse of our emergency procedures’ in order to fix the consequences of losing an appeal and a shocking disrespect for the courts and justice system (Caroline Lucas, HC Deb, vol 560, col 826, 19 March 2013). Yet it passed by 263 votes to 52. It had a harder time in the Lords, where the Opposition tabled an amendment deploring the ‘Government’s incompetence’, which had necessitated the deplorable Bill. In the debate, Lord Pannick, a distinguished human rights lawyer and member of the Constitution Committee, called it ‘an abuse of power that brings no credit whatever on this Government’ ( HL Deb, vol 744, cols 739-742; and see similarly Lord Bach at col 745). Nonetheless the Bill received the Royal Assent on 26 March and duly found its place on the statute book.
We have returned by this circuitous route to a point where the decision of Lang J in (Reilly (No 2) can be more closely considered. The first point to make is that the judgment is based closely on the requirements of ECHR Article 6(1) and the application of ECtHR jurisprudence. There is a contrast here with the Supreme Court judgment in Reilly(No 1), where the Court chose – in line with a noticeable recent trend – to rely on common law principles. Discussing notice, the Supreme Court positioned itself neither on the Convention nor on statutory requirements but on the general common law principle of fairness, which required a claimant to have access to such information about the scheme as was needed in order to make ‘informed and meaningful representations’ to the decision-maker before a decision is taken (R(Reilly and another v Secretary of State for Work and Pensions  UKSC 68 at [65-6]). Lang J, on the other hand, conflated the two systems, remarking that, although the principle ‘emanated from decisions of the ECtHR’ it also ‘accurately reflect[ed] fundamental principles of the UK’s unwritten constitution’, namely the rule of law principle expressly recognised in section 1 of the Constitutional Reform Act 2005. She summarised the constitutional structure as being that
Parliament and the Executive recognise and respect the separation of powers and abide by the principle of legality. Although the Crown in Parliament is the sovereign legislative power, the Courts have the constitutional role of determining and enforcing legality. Thus, Parliament’s undoubted power to legislate to overrule the effect of court judgments generally ought not to take the form of retrospective legislation designed to favour the Executive in ongoing litigation in the courts brought against it by one of its citizens, unless there are compelling reasons to do so. Otherwise it is likely to offend a citizen’s sense of fair play. ( EWHC 2182 at )
This formal separation of powers analysis – likely to recommend itself to the naturally court-oriented ECtHR (See D Kosar, ‘Policing Separation of Powers: A New Role for the European Court of Human Rights?’ (2012) European Constitutional Law Rev 33; M Lasser, Judicial Transformations, The Rights Revolution in the Courts of Europe (Oxford University Press, 2009)) – sits less than comfortably with a system of governance based firmly on the principle of parliamentary sovereignty in which executive and legislature are closely intertwined. It pushes the domestic courts to act as the judge of legislative reasoning under the guise of determining and enforcing legality – a step on the road perhaps to ‘evidence-based legislation’. The Strasbourg jurisprudence also requires that ‘any reasons adduced to justify such measures be treated with the greatest possible degree of circumspection’ (National & Provincial Building Society v. UK (1998) 25 EHRR 127 at ). Equating circumspection with suspicion, Lang J read the requirement as a signal for anxious scrutiny not only of documents before her but also of the parliamentary proceedings. She raked through these with a tooth-comb, referring to a number of ‘misconceptions’ and ‘inaccuracies’. Parliament had failed to grapple with the Art. 6(1) issues, probably because of the section 19 statement to the effect that the Bill was compatible with the ECHR. This is pure surmise. The statement was ‘unsatisfactory’, first because it did not set out the relevant test to be applied by Parliament and so did not explain that Parliament was being asked to justify a departure from the legal norm, which would only be lawful if made for compelling reasons in the public interest; secondly, because it asserted that the legislation was designed to ‘close a loophole’ in order to give effect to the original intention of Parliament, which was incorrect.
This forceful approach is out-of-line with domestic case law, in which circumspection is a synonym for guardedness and care. Light touch review of parliamentary procedure is the norm. Foskett J in Reilly(No 1), for example, cited at length from a Report of The House of Lords Select Committee on the Merits of Statutory Instruments but concluded that it was of no direct relevance to his task; it was his duty to form his own view of the situation on the basis of the arguments before him and ‘a relatively narrow analysis of the wording’ of the 2011 Regulations in relation to the wording of the parent Act ( EWHC 2292 (Admin)  at [44-49]). In Animal Defenders International where the compliance of a statutory ban on political advertising with ECHR Article 10 was in issue, Lord Bingham outlined the parliamentary stages of the Communications Bill in some detail. He warned, however, that ‘the judgment of Parliament on such an issue should not be lightly overridden. It was ‘reasonable to expect that our democratically-elected politicians will be peculiarly sensitive to the measures necessary to safeguard the integrity of our democracy. It cannot be supposed that others, including judges, will be more so’ (R (Animal Defenders International) v Secretary of State for Culture, Media, and Sport  UKHL 15 at ). More recently, when, in conformity with Court of Justice jurisprudence, the compliance of hybrid bill procedure with an EU Directive was under consideration, the Supreme Court agreed unanimously with Lord Reed that it was required to confirm that there has been a substantive legislative process and that the appropriate information was made available to the members of the legislature but was not asked:
to review the adequacy of the legislature’s consideration of that information, for example by assessing the quality of the debate and examining the extent to which members participated in it. These are not matters which are apt for judicial supervision. Nor is there anything to suggest the inevitable corollary: that national courts should strike down legislation if they conclude that the legislature’s consideration of the information was inadequate (R (HS2 Action Alliance Limited) v Transport Secretary  UKSC 3 at ) .
In the different framework of the Human Rights Act, Lang J was empowered only to grant a declaration of invalidity. In other respects, this is effectively what did.
We should not infer from this that Government is not accountable but only that, under the domestic constitution, rights and remedies are primarily claimable in the political process (D Nicol, ‘Law and Politics after the Human Rights Act’  PL 722). To put this differently, rightly or wrongly, it is elected governments and parliaments and not judges who decide what is in the public interest and how public funds should be spent. This does not allow Parliament to abandon its responsibility for human rights protection or reduce its scrutiny of suspect texts – very much the reverse! The dog that did not bark on this occasion was the Joint Committee on Human Rights. Having failed to scrutinise the text of a Bill with obvious human rights implications, it protested after the horse had bolted that it had been prevented by the fast track procedure from carrying out its customary scrutinising functions (Exchange of letters between the JCHR Chair (16 April 2013) and the Minister (7 May 2013), published on the JCHR website). The Bill had its first reading on 14 March and completed its later stages on March 19. Surely a little fast track procedure was incumbent on the JCHR?
Carol Harlow is Emeritus Professor of Law at the London School of Economics
Suggested citation: C. Harlow, ‘Judging Parliament: the Jobseekers case’ UK Const. L. Blog (3rd October 2014) (available at http://ukconstitutionallaw.org).