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The Court of Appeal handed down judgment today in joined cases concerning the Government's 'back to work schemes' and the retrospective legislation passed following the previous litigation on this issue.

The Court of Appeal handed down judgment today in joined cases concerning the Government's 'back to work schemes' and the retrospective legislation passed following the previous litigation on this issue (R (on the application of Reilly and another) v Secretary of State for Work and Pensions – as to which see http://www.blackstonechambers.com/news/cases/r_on_the_17.html).

The Court upheld Lang J’s conclusion that the Jobseekers (Back to Work Schemes) Act 2013 was incompatible with Article 6(1) of the European Convention of Human Rights, in that it had interfered with ongoing legal proceedings challenging benefits sanctions by retrospectively validating those sanctions. The Court of Appeal had previously ruled that regulations introducing several ‘back to work’ schemes had been ultra vires the Jobseeker's Act 1995 ([2013] 1 WLR 2239).

Before an appeal was heard (and ultimately dismissed) by the Supreme Court ([2014 AC 453), the 2013 Act sought to retrospectively validate those regulations as well as sanctions imposed on benefit claimants under its regime. It also determined thousands of pending appeals in statutory tribunals in favour of the Department of Work and Pensions. In today’s judgment, the Court held that the 2013 Act had “remove[d] from […] appellants what would otherwise have been a conclusive ground of appeal” (at [83]), which had not been justified by sufficiently compelling reasons in the public interest. Underhill LJ emphasised “the importance to be attached to observance of the rule of law” (at [99]).

A majority of the Upper Tribunal in Bevan and ors v SSWP [2015] UKUT 0056 (AAC) concluded that the 2013 Act in fact should be interpreted compatibly with Article 6(1), pursuant to s.3 of the Human Rights Act, to exclude persons with pending appeals. The Court of Appeal overturned this approach and held that a declaration under s.4 was appropriate.

The Court also gave guidance on the application of the requirement, established by the Supreme Court in Reilly, that benefit claimants referred to 'back to work schemes' be given sufficient 'prior information'.

The Court rejected a cross-appeal by Mr Hewstone based on Article 1 of Protocol 1 of the ECHR on the basis that the right was not engaged by the 2013 Act.

The full judgment can be read here: http://www.bailii.org/ew/cases/EWCA/Civ/2016/413.html

James Eadie QC acted for the Secretary of State for Work and Pensions.

Tom Hickman and Ravi Mehta acted for Ms Reilly and Mr Hewstone.

Tristan Jones acted for Ms Jeffrey.

Thomas de la Mare QC and Tom Richards acted for Mr Bevan. 

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