High Court grants declaration of incompatibility of primary legislation with the right to a fair trial after damning assessment of the Department of Work and Pensions’ interference in ongoing cases.
Many thanks to Public Interest Lawyers UK & International Law
In a detailed and critical decision, Mrs Justice Lang considered a challenge brought by Caitlin Reilly and Daniel Hewstone against the 2013 Act following a “series of misjudgments by the DWP” (at ). In a previous case, brought by Public Interest Lawyers on Ms Reilly’s behalf, the Court of Appeal had ruled that the regulations introducing back-to-work schemes (the 2011 Regulations) – and sanctions for failing to take part in or meet requirements of the schemes – were unlawful and should be quashed (see the press release here).
Following a challenge to emergency, retrospective legislation introduced to remedy mistakes made by the DWP in its ‘Back to Work’ scheme, the High Court has declared the Jobseekers (Back to Work Schemes) Act 2013 incompatible with the right to a fair trial guaranteed by Article 6(1) of the European Convention of Human Rights. The Government’s argument that the retrospective Act was compliant with the Convention has been shown to be wrong and its arguments deeply flawed.
Before the Secretary of State’s own appeal was heard (and ultimately dismissed) by the Supreme Court, the 2013 Act was rushed through Parliament in 3 days, without full or proper consultation, in order to retrospectively validate the regulations as well as sanctions imposed on benefit claimants under that regime. This effectively won the appeal for the Secretary of State before it was considered by the Supreme Court – the Judge referred to this as a “foregone conclusion” (at ). It also determined thousands of pending appeals in statutory tribunals in favour of the Department of Work and Pensions.
In reaching its decision, the Court considered that the Government’s actions had not been foreseeable to benefit claimants (at ) and that “the absence of any consultation with representative organisations” as well as the lack of scrutiny by Parliamentary Committees had led to “misconceptions about the legal justification for the retrospective legislation” (at ).
The 2013 Act introduced a new “draconian provision, unique to this cohort of claimants” which was “not explained or justified” by the Government in Parliament “at the time” (at ). Mrs Justice Lang rejected the Secretary of State’s assertion that flaws in the 2011 Regulations were simply “a technicality or a loophole” (at ), that the 2013 Act sought to give effect to Parliament’s ‘original intention’ (at ) or that repayments to benefits claimants would be “an undeserved windfall” (at [125). She also recognised that it would be “unjust to categorise the claimants in Reilly No 1 as claimants “who have not engaged with attempts made by the state to return them to work” (at ).
The learned judge rejected a challenge based on the property rights of benefits claimants. The Secretary of State has asked for permission to appeal the judgment.
The consequences of the judgment are that all those who have appealed against a benefit sanction on the basis of the previous Reilly and Wilson decisions will be entitled to win their appeals and be repaid the withheld benefits. Those who have not appealed, or are not allowed to bring a challenge to a sanction out of time will not be able to benefit from repayments.
Phil Shiner, a solicitor at Public Interest Lawyers, said today:
“This case is another massive blow to this Government’s flawed and tawdry attempts to make poor people on benefits work for companies, who already make massive profits, for free. Last year the Supreme Court told Iain Duncan Smith and the Coalition government that the scheme was unlawful. In this case the High Court has now told the Government that the attempt to introduce retrospective legislation, after the DWP had lost in the Court of Appeal, is unlawful and a breach of the Human Rights Act and is a further disgraceful example of how far this Government is prepared to go to flout our constitution and the rule of law. I call on the DWP to ensure that the £130 million of benefits unlawfully withheld from the poorest section of our society is now repaid.”
See further press coverage below: