Reilly & Anor v Secretary of State for Work And Pensions

There are before the Court two appeals, to which we will refer as “the judicial review appeal” and “the Upper Tribunal appeal”, about the effect of the Jobseekers (Back to Work Schemes) Act 2013. That Act is avowedly retrospective legislation which purports to validate the imposition of sanctions on claimants for jobseeker’s allowance which had been held in the courts to be invalid. At the risk of some over-simplification, the principal question raised by the appeals is whether the retrospective validation of those sanctions would contravene the rights under the European Convention of Human Rights of claimants affected by it; and if so whether its provisions can be read down so as to avoid that contravention, or whether the only remedy of the claimants affected is by way of a declaration of incompatibility under section 4 of the Human Rights Act 1998. In order to explain the issues more fully it is necessary to start by setting out the complicated legislative and litigation history.

Jobseeker’s allowance. Entitlement to jobseeker’s allowance (“JSA”) is governed by the Jobseekers Act 1995. Section 1 (2) gives claimants an entitlement to JSA if they satisfy a series of conditions there set out, which we need not summarise. Section 19 sets out various circumstances in which JSA is not payable notwithstanding that the conditions of entitlement are satisfied.

Section 17A of the 1995 Act: “schemes”. Section 1 (2) of the Welfare Reform Act 2009 introduced (with effect from 12 November 2009) a new section 17A into the 1995 Act. Sub-section (1) empowers the Secretary of State for Work and Pensions (who is the Appellant in both appeals) to make regulations requiring persons claiming JSA to “participate in schemes of any prescribed description that are designed to assist them to obtain employment [emphasis supplied]”. Sub-section (5) specifies certain particular matters for which regulations may provide, including (at (d)) securing that “the appropriate consequence” follows a failure to comply with the regulations in the absence of good cause. Sub-section (6) defines “the appropriate consequence” as being “that the allowance is not payable for such period (of at least one week but not more than 26 weeks) as may be prescribed”.

The 2011 Regulations: the ESE scheme. The Secretary of State made various regulations purportedly pursuant to section 17A, including the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (“the 2011 Regulations”), which purported to empower him to select claimants for participation in a scheme known as the Employment, Skills and Enterprise Scheme (“the ESE scheme”). Importantly for what follows, contrary to the requirements of section 17A (1) the Regulations contained no “description” of the ESE scheme beyond the name. Two other features of the 2011 Regulations are also central to these appeals: we set them out in the following paragraphs.

The 2011 Regulations:regulation 4notices. By regulation 4 claimants were required to participate in the ESE scheme only if they were given written notice complying with requirements prescribed in paragraph (2). We are concerned only with two of those requirements, namely that the notice should specify –

“(c)

details of what the claimant is required to do by way of participation in the Scheme”; and

“(e)

information about the consequences of failing to participate in the Scheme”.

We will refer to these as “the details requirement” and “the consequences requirement”.

The 2011 Regulations: Consequences/Sanctions. By regulation 8, reflecting section 17A (5) and (6) of the 1995 Act, claimants who failed to participate in the ESE scheme without “good cause” (defined in regulation 7) were liable to “consequences” in the form of losing their entitlement to subsequent payments of JSA for a specified period up to 26 weeks. We need not set out the terms of regulation 8, but we should note that they follow the language of section 17A (6) in providing that where the Secretary of State determines that there has been non-participation JSA “is not payable” for the specified period. Regulation 8 was revoked with effect from 22 October 2012 by regulation 7 of the Jobseeker's Allowance (Sanctions) (Amendment) Regulations 2012 (“the 2012 Regulations”). These regulations, which introduced a different scheme for the imposition of “sanctions” for (among other things) non-participation in the ESE scheme, derived not from section 17A (5) of the 1995 Act but from section 19. However, the sanctions still took the form of rendering JSA not payable for specified future periods, though the periods could in some circumstances be considerably longer than under the 2011 Regulations. Before us both “consequences” under regulation 8 of the 2011 Regulations and “sanctions” under the 2012 Regulations were referred to as “sanctions”, and we will do the same. There is a right of appeal to the First-tier Tribunal (Social Entitlement Chamber) (“the FTT”) against a sanction decision: see section 12 (2) of the Social Security Act 1998.

“Sub-schemes”. The Department of Work and Pensions (“the DWP”) developed a number of particular “schemes” or “programmes” which were treated as constituting part of the overall ESE scheme, though they were not themselves referred to in the Regulations: we will refer to them as “sub-schemes”. The sub-schemes which feature in the appeals before us were called the “sector-based work academy scheme” (“the sbwa scheme” (Footnote: ¹)), the Community Action Programme (“CAP”) and the Work Programme. They were run by private companies, referred to as “providers”.

“Reilly 1”. Caitlin Reilly, one of the Respondents in the judicial review appeal, was a jobseeker who was required by the DWP to, and did, participate in the sbwa. Jamieson Wilson was another jobseeker who had been required to participate in the CAP. They commenced proceedings for judicial review of the lawfulness of those requirements. We will refer to those proceedings as “Reilly 1”. There were various grounds of challenge, but for present purposes we need identify only two, namely:

The decision of Foskett J. By a judgment handed down on 6 August 2012 – [2012] EWHC 2292 (Admin) – Foskett J dismissed the vires challenge. As regards the notice challenge, it transpired that no written notice at all had been given to Ms Reilly: she had participated in the sbwa scheme on the basis of oral instructions. The requirement in her case was thus plainly invalid and Foskett J so found. In Mr Wilson’s case, Foskett J found that the letter sent to him satisfied the details requirement in regulation 4 (2) (c) but that it did not satisfy the consequences requirement in paragraph (2) (e); and he made a declaration accordingly.

The decision of the Court of Appeal. Ms Reilly and Mr Wilson appealed against the rejection of the vires challenge. The Secretary of State cross-appealed against the declaration as regards the notice given to Mr Wilson. By a decision handed down on 12 February 2013 – [2013] EWCA Civ 66, [2013] 1 WLR 2239 – this Court (Pill and Black LJJ and Sir Stanley Burnton) allowed the appeal. It held that the 2011 Regulations were ultra vires on the basis that they contained no description of the ESE scheme as required by section 17A (1) of the 1995 Act. As regards the cross-appeal, it upheld Foskett J’s decision on the notice challenge: indeed it did so on a broader basis, holding that the notice also failed to satisfy the details requirement in regulation 4 (2) (c). The substantive parts of its formal order read:

“(1)

The Claimants’ appeal is allowed.

(2)

The Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (“the 2011 Regulations”) are quashed.

(3)

It is declared that the Defendant acted unlawfully in requiring [Ms Reilly] to participate on the sector-based work academy scheme.

(4)

The Defendant’s cross-appeal is dismissed and the Judge’s order that there was a breach of regulation 4 in the case of [Mr Wilson] is upheld.”

Paragraph (3) was not intended as a spelling-out of the consequences of paragraph (2). Rather, it was based on the separate point that no notice under regulation 4 had ever been given to her. (Footnote: ²)

The 2013 Regulations. On 12 February 2013, i.e. the day that this Court handed down its judgment, the Secretary of State made the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations (“the 2013 Regulations”) which in effect replaced the 2011 Regulations and sought to correct, for the future, the defects which had led to them being quashed. In particular, the 2013 Regulations referred explicitly to, and gave short descriptions of, the various sub-schemes. The details of those descriptions are mostly immaterial for our purposes, though we quote the description of the Work Programme at para. 149 below.

The 2013 Act. More fundamentally, and more relevantly for the purpose of these appeals, the Government also introduced a Bill intended to retrospectively validate (a) the 2011 Regulations; (b) all notices given purportedly pursuant to regulation 4 of those Regulations; and (c) all sanctions imposed for non-participation in the ESE scheme in so far as they would be invalidated by the decision of the Court of Appeal. (We should note for completeness that the Act also made similar provision as regards a scheme called the Mandatory Work Activity Scheme, which had been established under the Jobseeker's Allowance (Mandatory Work Activity Scheme) Regulations 2011 (“the MWA Regulations”), which were also made under section 17A of the 1995 Act and which it was anticipated were vulnerable to the same challenge as in Reilly 1 (Footnote: ³).) The Bill was unopposed and was accelerated through both Houses. On 26 March 2013 it received Royal Assent as the Jobseekers (Back to Work Schemes) Act 2013 (“the 2013 Act”). We set out the detailed provisions at paras. 24-28 below.

The decision of the Supreme Court. In the meantime the Secretary of State had appealed to the Supreme Court, challenging the decisions of this Court on both the vires and the notice challenges. The Court’s judgment was handed down on 30 October 2013 – [2013] UKSC 68, [2014] AC 453. It can be summarised as follows:

It is that sequence of events which gives rise to the two appeals before us, which we can sufficiently summarise for introductory purposes as follows.

The claimants in the judicial review proceedings are Ms Reilly and Daniel Hewstone (“the Claimants”). Both claim to have been adversely impacted by the 2013 Act. Ms Reilly claims that it retrospectively deprived her of the benefit of her victory in the Court of Appeal in Reilly 1. Mr Hewstone is a JSA claimant who had been sanctioned on four occasions for non-participation in the ESE scheme and had appealed to the FTT. He claims that the 2013 Act retrospectively deprived him of what would have been a certain victory in his appeals based on the decision in Reilly 1. On 26 June 2013 they brought judicial review proceedings seeking a declaration under section 4 of the Human Rights Act 1998 (“the HRA”) that the 2013 Act was for those reasons incompatible with their rights under the Convention, and specifically under article 6 and article 1 of the First Protocol (“A1P1”) (Footnote: ⁴).

By a judgment handed down on 4 July 2014 – [2014] EWHC 2182 (Admin), [2015] 1 QB 573 – Lang J upheld the claim in so far as it was based on article 6 but not in so far as it was based on A1P1. She made a declaration of incompatibility accordingly.

The Secretary of State appeals against that decision. By a Respondents’ Notice the Claimants cross-appeal against the rejection of the claim based on A1P1.

Tammy Jeffrey, Daryl Bevan and Trevor Green (“the tribunal appellants”) are all JSA claimants who, like Mr Hewstone, were, prior to the decision of the Court of Appeal in Reilly 1, sanctioned for non-participation in the ESE scheme. They appealed against those decisions to the FTT. Ms Jeffrey and Mr Green succeeded; Mr Bevan’s appeal was dismissed.

The Secretary of State appealed to the Upper Tribunal (Administrative Appeals Chamber) (“the UT”) in the first two cases: and Mr Bevan likewise appealed. The three appeals were identified in case management directions as suitable to test various common issues arising in appeals against sanction decisions taken under the 2011 Regulations. The Child Poverty Action Group (“CPAG”) supported the claims of the test claimants on that basis. It seems that the case management process was carried out with care and acuity.

The appeals were heard over two days in November 2014 by a tribunal comprising Charles J (the Chamber President), Judge Rowland and Judge Wright. Very extensive witness statements and documentary evidence were lodged, and it appears – though we are not aware of a formal direction to this effect – that it was agreed that the Tribunal should in practice start from scratch. (There had been no hearing before the FTT in any of the three cases, and it is not clear what points were taken or materials put before it.) A number of issues arose. The most fundamental was whether the 2013 Act was in fact effective to validate sanctions in cases where an appeal against the Secretary of State’s decision had already been initiated. It was common ground, following the decision in the judicial review proceedings, that any such impact would involve a breach of the Convention rights of the claimants concerned; but whereas in those proceedings it had been accepted that that was indeed the effect of the Act – which was why the only relief sought was a declaration of incompatibility – the tribunal appellants argued that the relevant provisions could be “read down” in order to avoid that effect. Depending on the outcome on that question, various other issues arose, which we need not set out at this stage.

The Tribunal’s decision was promulgated on 11 February 2015 – [2015] UKUT 0056 (AAC). By a majority (Charles J dissenting), the Tribunal accepted the tribunal appellants’ contention that the 2013 Act could be read down so as to have no effect in their cases, with the result that the sanctions imposed on them were held to be unlawful on the bases established in Reilly 1. It thus dismissed the Secretary of State’s appeals and allowed Mr Bevan’s. The Tribunal’s conclusion is of course inconsistent with the outcome in the judicial review proceedings: if it is correct there would be no incompatibility of the 2013 Act with article 6 of the Convention. The Tribunal went on to make findings on the other issues in case its conclusion on the construction issue was wrong. We wish to pay tribute to the clear and careful way in which its judgment is set out.

The Secretary of State appeals against the Tribunal’s decision. If the appeal succeeds, the other issues to which we have referred arise.

In the judicial review appeal the Secretary of State has been represented by Mr James Eadie QC, Ms Amy Rogers and Ms Zoe Leventhal and the Claimants by Mr Tom Hickman and Mr Ravi Mehta. In the Upper Tribunal appeal Mr Eadie has led Ms Leventhal alone; Ms Jeffrey has been represented by Mr Tristan Jones, and Mr Bevan by Mr Thomas de la Mare QC and Mr Tom Richards (though we should say that the skeleton argument in Mr Bevan’s case was the work of Mr Richards alone). Mr Green has played no part in the appeal. Apart from the skeleton arguments there have been a plethora of other notes and written submissions, including some substantial post-hearing submissions: the need for the latter arose principally because of timing difficulties that were no-one’s fault. With apologies to junior counsel, we have sometimes for simplicity referred to written submissions as being made by their leaders when they were the work of both. It is clear that all counsel, and those behind them, have put a great deal of work and thought into the clear and cogent presentation of these appeals, and we are grateful for the very high quality of the resulting submissions.

The substantive provisions of the 2013 Act are all to be found in section 1. The relevant sub-sections are as follows.

Sub-sections (1)-(3) address the vires issue based on the failure of the 2011 Regulations to give any description of the ESE scheme or to provide for any of the sub-schemes. They read:

“(1)

The 2011 Regulations are to be treated for all purposes as regulations that were made under section 17A of the Jobseekers Act 1995 and other provisions specified in the preamble to the 2011 Regulations and that came into force on the day specified in the 2011 Regulations.

(2)

The Employment, Skills and Enterprise Scheme mentioned in the 2011 Regulations is to be treated as having been, until the coming into force of the 2013 Regulations, a scheme within section 17A(1) of the Jobseekers Act 1995.

(3)

The following are to be treated as having been, until the coming into force of the 2013 Regulations, programmes of activities that are part of the Employment, Skills and Enterprise Scheme—

(a)

the programmes described in regulation 3(2) to (8) of the 2013 Regulations, and

(b)

the programme known as the Community Action Programme,

and references to the scheme are to be read accordingly.”

The “programmes described in regulation 3 (2) to (8) of the 2013 Regulations” are what we have described as the sub-schemes.

Sub-sections (4)-(6) address the issue of non-compliant notices. We need only refer to sub-sections (4) and (5), which read:

“(4)

A notice given for the purposes of regulation 4(1) of the 2011 Regulations (requirement to participate and notification) is to be treated as a notice that complied with regulation 4(2)(c) (details of what a person is required to do by way of participation in scheme) if it referred to—

(a)

the Employment, Skills and Enterprise Scheme, or

(b)

a programme of activities treated under subsection (3) as part of the scheme.

(5)

A notice given for the purposes of regulation 4(1) of the 2011 Regulations is to be treated as a notice that complied with regulation 4(2)(e) (information about the consequences of failing to participate) if it described an effect on payments of jobseeker's allowance as a consequence or possible consequence of not participating in the scheme or a programme of activities.”

It will be noted that those provisions do not validate all non-compliant notices but only those where the non-compliance was of the kind found by the Court of Appeal, i.e. as regards regulations 4 (2) (c) and (e). (As it turned out, the validation of the latter was unnecessary because of the subsequent decision of the Supreme Court.)

Sub-sections (7)-(9) made equivalent provision in relation to the MWA Regulations.

Sub-sections (10)-(12) address the lawfulness of what are described as “penalties”: the term is not in fact defined, but it is evidently intended to refer to “consequences” under regulation 8 of the 2011 Regulations and sanctions under the 2012 Regulations. The drafting is somewhat complex, but for present purposes we need set out only (part of) sub-section (12), which reads:

“(12)

A penalty imposed on a person before or after the coming into force of this Act for—

(a)

failing to participate in a scheme within section 17A(1) of the Jobseekers Act 1995, or

(b)

…

is to be treated as lawfully imposed if the only ground or grounds for treating it as unlawfully imposed is or are removed by subsections (1) to (10).”

That may require a little glossing. What it means is that sanctions are retrospectively validated only in so far as they were defective because of the overall invalidity of the Regulations and/or because the notices under regulation 4 were non-compliant in either of the respects identified by the Court of Appeal. If a sanction were wrongly imposed for some other reason – for example, if there had been good cause for the claimant’s failure to participate or if there had been a material breach of the prior information duty identified by the Supreme Court – it would not be saved by sub-section (12). That is confirmed by sub-section (13), which reads:

“Subsection (12) does not affect a person’s ability to apply for a revision or supersession of, or to appeal against, a decision to impose a penalty by reference to other grounds.”

In Reilly 1 Ms Reilly had obtained an order quashing the 2011 Regulations. The effect of section 1 (1)-(3) of the 2013 Act was that that order ceased to have effect, as the Supreme Court confirmed. In that sense the 2013 Act deprived her of the benefit of one aspect of her victory. But she retained the benefit of paragraph (3) of the Court of Appeal’s order – that is, the declaration that the requirement that she participate in the sbwa scheme was unlawful (because she had received no notice at all). And her substantive legal rights were not affected in any way: since she had participated in the sbwa scheme she had not suffered any sanction, so section 1 (12) had no application in her case.

The effect on Mr Hewstone was different. He had not been a party to Reilly 1, so the order quashing the 2011 Regulations had not been made in his case. Unlike Ms Reilly, however, he had repeatedly failed to participate in sub-schemes in relation to which he had been given notice purportedly under regulation 4; and on four separate occasions sanction decisions had been made against him, totalling 37 weeks’ loss of JSA. He had appealed against each of those decisions to the FTT. The first three appeals, which were determined following the decision of Foskett J but before the decision of the Court of Appeal, were successful on the basis that the regulation 4 notice, which was in the same form as in Mr Wilson’s case, did not comply with regulation 4 (2) (e). The Secretary of State was refused permission by the FTT to appeal against those decisions; but he renewed his application to the UT, and that application was stayed pending the outcome of the appeal to the Supreme Court. Mr Hewstone’s fourth appeal was stayed by the FTT itself. The effect of the 2013 Act in those circumstances needs to be spelt out with a little care. The decision of the Supreme Court disapproving Foskett J’s decision as regards regulation 4 (2) (e) made it inevitable that the Secretary of State would be granted permission to appeal to the UT in the first three challenges and that on such appeal he would succeed as regards that ground: the same goes for Mr Hewstone’s stayed fourth appeal to the FTT. To that extent, the 2013 Act ultimately deprived him of nothing. However, but for the Act he would have been entitled to rely before both tribunals on the vires and regulation 4 (2) (c) challenges (to anticipate a point made more fully at para. 92 below, we do not believe that it matters that he had not relied on those challenges previously); and he would have been bound to succeed. Thus the effect of the Act was to deprive him of his actual victory in the first three appeals and of the prospect of victory in his pending appeal.

Mr Hickman urged us not to consider only the effect of the 2013 Act on these particular Claimants. He identified four categories of JSA claimants who he said had been impacted, or potentially impacted, by it:

The Claimants rely on article 6.1 of the Convention, the material part of which reads:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

It is common ground that rights to social security benefits fall within the meaning of “civil rights” in article 6.1: see Feldbrugge v. Netherlands (1986) 8 EHRR 425 and Salesi v Italy (1998) 26 EHRR 187.

It is well-established in the case-law of the European Court of Human Rights (“the ECHR” or “Strasbourg”) that the rights recognised by article 6.1 may be infringed by the enactment of retrospective legislation which affects the result of pending proceedings. At this stage it is enough to refer to Zielinski v France (2001) 31 EHRR 19, in which the Court said, at para. 57 (p. 551):

“The Court reaffirms that while in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature – other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute.”

We will refer to this for convenience as “the Zielinski principle”.

Mr Hickman submitted that the 2013 Act was plainly “designed to influence the judicial determination of a dispute”. In the first place, it was designed to ensure that the decision of the Court of Appeal in Reilly 1 was of no effect; and indeed it ensured that that decision was in fact formally overturned in the Supreme Court – at least on the vires issue. But, more substantially, it was designed to influence the determination of the FTT appeals of all claimants in category (1), Mr Hewstone among them, by removing two otherwise cast-iron grounds of appeal. There were no “compelling grounds of the public interest” capable of justifying that serious interference with the rule of law. The case thus fell squarely within the Zielinski principle.

The primary position of the Secretary of State is that the Zielinski principle has no application to the circumstances of the present case and that article 6 is not engaged. The 2013 Act was a general measure of social security law and, contrary to Mr Hickman’s submission, was not “designed” to influence the outcome of any proceedings: Mr Eadie submitted that it was not “directed at” either of the Claimants.

The Secretary of State’s alternative case is that even if there was some interference with the Claimants’ article 6 rights it was justified. There were “compelling grounds of the public interest” for retrospectively correcting what was essentially a technical error. He relied before Lang J on evidence from Mr Chris Guest, a senior civil servant in the DWP, who in turn relied to a substantial extent on the justification advanced by Lord Freud, the Parliamentary Under Secretary of State, in his speech on the second reading of the Bill in the House of Lords on 21 March 2013. We need not summarise that justification in full at this point, since we will have to examine it when considering the grounds of appeal. But the essential point is that there was a compelling public interest in not paying JSA to claimants who had failed without good cause to participate in schemes designed to facilitate their return to work, where such an outcome was the result of technical drafting defects and did not reflect the intentions of Parliament; such payment would constitute what Lord Freud described as an “undeserved windfall” and “could cost the public purse up to £130m” at a time when resources were peculiarly constrained.

A1P1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

In the Strasbourg case-law “asset” is sometimes used as a synonym for “possession”.

It is Mr Hewstone’s case that he (and other JSA claimants) had a right to receive JSA in respect of any period in which he satisfied the conditions prescribed by section 1 (2) of the 1995 Act and that that right constituted a “possession” within the meaning of A1P1; alternatively, that he had, following the decisions of Foskett J and this Court in Reilly 1, a legitimate expectation of receiving “repayment” (Footnote: ⁵) of JSA in respect of the periods covered by a sanction decision, and that that also constituted a possession. The 2013 Act deprived him of that possession, whichever way it was characterised. To be retrospectively so deprived was not in accordance with legal principle and could not be justified on grounds of the public interest.

The importance of this way of putting the case is that if it is well-founded the persons whose rights have been breached consist not only of JSA claimants in category (1), who can claim interference with existing proceedings, but of claimants in each of the remaining three categories.

The Secretary of State does not accept that Mr Hewstone, or others in his position, enjoyed any relevant “possession” with which the 2013 Act interfered. But it is also his case that any such interference would in any event be justified, for essentially the same reasons as in relation to article 6, though he says that in the A1P1 context the justification is a fortiori.

We were referred to a wealth of authority in the ECHR, and to a lesser extent also in the UK courts, bearing both on the extent of the Zielinski principle and on the application of A1P1. Decisions in this field are notoriously fact-sensitive, and the facts in most of the cases to which we were referred are far removed from those with which we are concerned here. The authorities are ultimately of value only in so far as they identify principles. However, we have thought it necessary to review those on which the parties principally relied, and to analyse one or two of them in some detail in order to establish precisely what they decide. Most of the cases address both A1P1 and article 6.1 and it is accordingly not practicable to consider them separately. We take them in date order.

In Stran Greek Refineries v Greece (1994) 19 EHRR 293 the applicant had, during the regime of “the colonels”, contracted with the Greek government to build an oil refinery. A dispute arose as to the performance of the contract. The applicant initially brought proceedings against the government in the Greek courts and obtained a first-instance decision in its favour, though the decision was only “in principle” and further investigations were ordered. Those proceedings were then superseded by arbitration proceedings, which in turn led to an award in the applicant’s favour. The government unsuccessfully challenged the validity of the award in the courts. Its final appeal was to the Court of Cassation. Before that court had reached a decision the government enacted legislation one of whose provisions (section 12) purported to render all arbitration awards arising out of contracts made during the previous regime unenforceable.

The ECHR held that that conduct constituted a breach both of article 6.1 and of A1P1. As regards the former it said, at paras. 49-50 of its judgment:

“The principle of the rule of law and the notion of fair trialenshrined in Article 6 preclude any interference by thelegislature with the administration of justice designed to influencethe judicial determination of the dispute. … [T]he State infringed the applicants' rights under article 6 para. 1 by intervening in a manner which wasdecisive to ensure that the – imminent – outcome of proceedings inwhich it was a party was favourable to it. There has therefore beena violation of that Article.”

As regards the A1P1 claim, it referred first at para. 60 to the decision of the first-instance court. It pointed out that although this was in the applicant’s favour as far as it went, further procedures were required before a definitive decision and observed that “whether the resulting debt was enforceable would depend on any review by two superior courts”. It described the decision as giving rise to no more than a “hope”. However, it then went on at para. 61 to contrast that position with the position as regards the arbitration award, which was “final and binding” in nature and subject to no appeal on the merits. It said, at para. 62:

“At the moment when [the legislation in question] was passed the arbitration award of 27 February 1984 … conferred on the applicants a right in the sums awarded. Admittedly, that right was revocable, since the award could still be annulled, but the ordinary courts had by then already twice held - at first instance and on appeal - that there was no ground for such annulment. Accordingly, in the Court's view, that right constituted a ‘possession’ within the meaning of Article 1 of Protocol No. 1.”

As regards article 6.1, Mr Eadie emphasised the phrase “designed to influencethe judicial determination of the dispute”. We discuss the effect of this phrase below, but it is important to appreciate that the core principle on which the Court’s reasoning is based is that it is – at least prima facie – contrary to the rule of law for the state to interfere in current legal proceedings in order to influence the outcome in a manner favourable to itself. That seems to us self-evidently correct.

As regards A1P1, the distinction drawn between the appealable decision of the court and the unappealable arbitration award pre-dates the fuller development of the Strasbourg law about when a legal claim may constitute a possession; but it is fully consistent with it.

By two decisions in 1983 and 1985 the Belgian Court of Cassation held that marine pilots were in principle liable in tort for damage caused to ships as a result of their negligence. In 1988 legislation was enacted reversing that principle, with explicitly retrospective effect. In PressosCompanía Naviera SA v Belgium (1996) 21 EHRR 301 the applicants were shipowners (or owners’ insurers) who had brought proceedings for damages against pilots and whose claims were extinguished by the legislation. They alleged breaches both of A1P1 and of article 6.1. The Court dealt first with the claim under A1P1. The Belgian government contended that the pending claims did not constitute a possession within the meaning of A1P1 because they had not been determined by a judicial decision having final effect. The Court rejected that argument. It held, at para. 31 of its judgment, that the claims constituted possessions because the decisions of the Court of Cassation gave them a legitimate expectation that the general law of tort would apply to the pilots’ negligence. Those possessions had unquestionably been interfered with. The Court held that that interference was disproportionate. The government had sought to rely on the cost of having to meet claims which it said that it could not reasonably have foreseen prior to the two decisions referred to: these were estimated at 3,500 million Bfr (we have not sought to convert that into today’s money, but the sums were described as “enormous”). The Court held that the decisions of the Court of Cassation were not unforeseeable. As to the cost involved, it said, at para. 43:

“The financial considerations cited by the Government and their concern to bring Belgian law into line with the law of neighbouring countries could warrant prospective legislation in this area to derogate from the general law of tort. Such considerations could not justify legislating with retrospective effect with the aim and consequence of depriving the applicants of their claims for compensation.”

Having reached that conclusion, it said that it was unnecessary to consider the claim under article 6.1.

Pressos is important in as much as it holds that a pending claim can in certain circumstances amount to a possession within the meaning of A1P1. But the discussion of the point, and of the concept of a “legitimate expectation”, is limited; and, as will appear, this aspect is dealt with more fully in later cases. It is also important to note that the Court did not regard the financial cost of meeting the pending claims as disproportionate, and that in that context it drew a distinction between changing the law for the future and changing it retrospectively.

National & Provincial Building Society v UK (1997) 25 EHRR 127 is a sequel to the well-known Woolwich litigation. By the Income Tax (Building Society) Regulations 1986, enacted purportedly pursuant to powers conferred by section 40 of the Finance Act 1985, the UK Government made changes to the special “composite rate” income tax regime applicable to building societies. A transitional provision (regulation 11) sought to tax income falling into what was perceived as a “gap period” which would otherwise be untaxed as a result of the changes. The Woolwich Building Society, while paying the tax under protest, denied that there was any such gap and contended that regulation 11 gave rise to double taxation. In its judgment in Woolwich 1 ([1990] 1 WLR 1400), handed down on 23 October 1990, the majority in the House of Lords did not accept that the Regulations gave rise to double taxation, but the Woolwich succeeded on the separate ground that regulation 11 was ultra vires the powers conferred by the 1985 Act. The Government contended that it was under no obligation to repay the tax paid, notwithstanding the absence of any lawful basis for the demand; and on that basis, while it made a repayment, purportedly ex gratia, it was not prepared to pay interest. That led to Woolwich 2, in which eventually, on 20 July 1992, the House of Lords held that the Woolwich had a valid claim in restitution ([1993] AC 70) and was accordingly entitled to interest.

The Government regarded the basis on which the Woolwich had succeeded in Woolwich 1 as a technicality; and on 7 March 1991 it announced that it would enact legislation retrospectively validating the 1986 Regulations. Shortly thereafter, two other building societies – the National & Provincial and the Leeds – commenced proceedings relying on the unlawfulness of regulation 11 as established in Woolwich 1: the National & Provincial claimed some £16m and the Leeds some £57m. However, by section 53 of the Finance Act 1991, which was enacted on 25 July 1991, the Government legislated in accordance with its announced intention. That meant that the societies were unable to proceed with their claims. (Section 53 contained an express exclusion for any building society which had commenced proceedings prior to 18 July 1986, but only the Woolwich had done so.) The two societies, together with the Yorkshire Building Society, attempted to get round that difficulty by a different route, involving judicial review of the Treasury orders which were the vehicle for collecting composite rate tax for all banks and building societies over several tax years: if the challenge had been successful it would have had an effect far beyond the amounts collected pursuant to the 1986 Regulations, affecting tax collected to the tune of some £15bn. By section 64 of the Finance Act 1992 that route was also blocked by the retrospective validation of the orders in question.

The societies complained that the enactment of section 53 of the 1991 Act and section 64 of the 1992 Act constituted breaches of both A1P1 and article 6.1; there was also a claim under article 14. The ECHR rejected their complaints. Its reasoning can be summarised as follows.

As regards A1P1, at para. 69 of its judgment the Court expressed considerable doubt whether the societies’ nascent claims which had been stifled by section 53 constituted possessions within the meaning of A1P1. This was partly because the claims themselves were uncertain. Although the unlawfulness of the transitional provisions had been established in Woolwich 1 it was unclear until the decision of the House of Lords in Woolwich 2 whether that gave rise to any entitlement in restitution (even though the Court of Appeal had by that time decided in favour of the Woolwich, albeit by a majority). But it was also because the Government had, prior to the initiation of proceedings by the societies, announced its intention to legislate, which rendered it very doubtful whether they could be said to have had any legitimate expectation of recovery. (The Court did not discuss the applicable principles, but it is clear that it had in mind its decision in Pressos.) However, it held that, even if the claims did constitute possessions, the Government’s interference with those possessions was justified. It had already found (paras. 51-61) that Parliament’s intention had always been to exact tax in respect of the gap period and (agreeing with the House of Lords) that such exaction did not involve any double taxation, so that the invalidity of regulation 11 found in Woolwich 1 could properly be characterised as a technicality. At para. 81 it said:

“… [T]he Court notes that in enacting section 53 of the 1991 Act with retroactive effect Parliament was concerned to restore and reassert its original intention which had been stymied by the finding of the House of Lords in the Woolwich 1 litigation that the 1986 Regulations were ultra vires on technical grounds. The decision to remedy the technical deficiencies of the Regulations with retroactive effect was taken before 7 March 1991, namely before the date when the Leeds and the National & Provincial issued their writs and without regard to the imminent launch of the first set of restitution proceedings. Although section 53 had the effect of extinguishing the restitution claims of those two applicant societies, it does not appear to the Court that the ultimate aim of the measure was without reasonable foundation having regard to the public-interest considerations which underpinned the proposal to legislate with retroactive effect and Parliament’s endorsement of that proposal. There is in fact an obvious and compelling public interest to ensure that private entities do not enjoy the benefit of a windfall in a changeover to a new tax-payment regime and do not deny the Exchequer revenue simply on account of inadvertent defects in the enabling tax legislation, the more so when such entities have followed the debates on the original proposal in Parliament and, while disagreeing with that proposal, have clearly understood that it was Parliament’s firm intention to incorporate it in legislation.”

As regards article 6.1, the Court held that the article was plainly engaged (paras. 94-99) and that the retrospective validation of the transitional provisions had effectively deprived the societies of their chance of success in the proceedings which they had started. But it held that that did not constitute a denial of their “right of access to a court for a judicial determination of their rights” contrary to article 6.1 because the Government’s intervention was justified. The reasoning on this point, at paras. 105-113, is very lengthy, but it can be sufficiently summarised as follows:

National & Provincial is important, and assists the Secretary of State’s case, to the extent that it establishes that action by the state to stifle existing proceedings brought against it may in an appropriate case be justified; and that is of course subsequently acknowledged in the classic statement of principle in Zielinski which we have already set out. But in considering what illustrative value it may have as regards the circumstances in which such interference may be justified it is important to appreciate the particular features on which the Court relied in reaching its decision, specifically:–

Mr Eadie drew attention to the Court’s observation at para. 110 of its judgment that the Leeds and the National & Provincial were not “the particular targets” of the decision to enact section 53 of the 1991 Act. The context of that observation was the point that when the Government first announced its intention to legislate neither society had commenced proceedings. What the Court said cannot be elevated into a proposition that legislation which interferes with current proceedings will only be in breach of article 6.1 if it is “targeted” at individual litigants. Such a restriction would make no sense in principle and is in any event inconsistent with the decisions which we consider below.

We have already quoted the key passage from the judgment of the ECHR in Zielinski: see para. 33 above. In bare outline the facts were as follows. A number of French civil servants had brought proceedings claiming payment of a “special difficulties allowance”, pursuant to a collective agreement, at a higher rate than the Government was prepared to concede. One group had succeeded definitively, with the court fixing the rate at twice that contended for by the Government. But others had claims which, though also successful at first instance or in the Court of Appeal, had not yet exhausted the appeals process when the Government enacted legislation which fixed the rate at the level for which it had been contending. The legislation contained a saving for “any court decisions to the contrary that have become final on the merits”, so that the awards to the first group were undisturbed; but the effect of the legislation was to restrict the quantum of the claims of those whose cases had not yet been definitively decided. The Court held, applying the principle that we have already set out (in support of which it referred to both the Stran and the National & Provincial cases), that that interference could not be justified on “compelling grounds of the general interest” and was accordingly in breach of article 6.1. At para. 59, referring to the factors that had influenced the contrary decision in the National & Provincial case, it observed that the response of the legislature could not have been foreseen and that there was no question of the claimants attempting to challenge the original intent behind the collective agreement.

Lizarraga v Spain(2004) 45 EHRR 1031concerned proceedings brought by the residents of a village in Navarre to prevent the construction of a dam. They obtained interim injunctive relief at first instance. The Parliament of Navarre then enacted legislation which had the effect of permitting the project to proceed, as the Constitutional Court subsequently confirmed. The residents claimed that the legislation was in breach of their rights under article 6.1.

The ECHR held that article 6.1 was indeed engaged, and it referred to the principles established in Stran and Zielinski (together with a further decision to which it is unnecessary to refer specifically, Papageorgiou v Greece (2004) 38 EHRR 30). However it distinguished those decisions, at para. 70, on the basis that in them

“… the State’s intervention through legislative acts was intended either to influence the outcome of pending judicial proceedings, to prevent proceedings being opened, or to render void final and enforceable decisions which recognised personal rights to receive payment … [whereas] … in the instant case, the dispute between the applicants and the Autonomous Community of Navarre concerned regional development plans, a sphere in which an amendment or change to legislation following a judicial decision is generally accepted and practised. Whilst creditors may, in general, avail themselves of firm and intangible rights, this is not the case with regard to issues of urban or regional planning, a sphere concerning rights of a different nature which are essentially evolutive.”

Although the Court in Lizarraga found no breach of article 6.1,Mr Hickman drew attention to its summary of the kinds of case in which such a breach might occur – “legislative acts … intended either to influence the outcome of pending judicial proceedings, to prevent proceedings being opened, or to render void final and enforceable decisions which recognised personal rights to receive payment” – all three of which he said were engaged in the present case.

In OGIS-Institut Stanislas v France, application 42219/98, decided on 27 August 2004, a decision of the Conseil d’Etat had revealed what the ECHR described as a “loophole in the law” allowing private schools to claim reimbursement from the state of pension contributions at a higher rate than had been the intention of the relevant legislation. A number of other schools brought proceedings making equivalent claims. The Government enacted retrospective legislation to limit the rate to what had originally been intended. The Court held that that did not involve any breach of article 6.1. It distinguished Zielinski (at para. 67) on the basis that in that case the Government had intervened to uphold its own interpretation of a disputed provision, whereas in the instant case it intervened “to remedy a technical defect in the law”. On the same basis it found the case to be analogous with National & Provincial: the legislation was intended “to rectify a loophole” and prevent private schools “tak[ing] advantage of a windfall effect”: they could have had no good reason to expect the state to remain inactive (para. 69).

EEG-Slachthuis Verbist v Belgium, application 60550/00, decided on 10 November 2005, is another case of essentially the same kind. We need not set out the facts. What matters is that the Court analysed the case as one where the retrospective legislation in question was designed to remedy a technical defect which the applicant must have expected would be remedied once identified.

In Kopecký v. Slovakia (2005) 41 EHRR 43 the applicant relied on legislation which was designed to overturn the effect of certain criminal convictions under the communist regime in order to seek to claim to recover valuable coins which had been confiscated from his father following such a conviction. His claim succeeded at first instance but failed at two levels of appeal because he was unable to establish that the coins remained in the possession of the Slovak government. He complained to the ECHR that his rights under A1P1 had been breached. The case does not concern the effect of retrospective legislation and so is only tangentially relevant for our purposes. But the Court conducted a thorough review of the concept of “legitimate expectation” in the context of whether a claim could constitute a possession for the purposes of A1P1, including a consideration of Pressos. It concluded, at para. 52:

“In the light of the foregoing it can be concluded that the Court's case-law does not contemplate the existence of a ‘genuine dispute’ or an ‘arguable claim’ as a criterion for determining whether there is a ‘legitimate expectation’ protected by art 1 of Protocol No 1. … [The] Court takes the view that where the proprietary interest is in the nature of a claim it may be regarded as an ‘asset’ only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it.”

It is also to be noted that the Court rejected the notion that the first-instance decision in the applicant’s favour was sufficient to give him an asset, since it was subject to appeal (see para. 59).

The applicants in Draon v France [2006] EHRR 40 (which is a decision of the Grand Chamber) were parents of a child born with severe disabilities which a health authority had failed to identify on routine pre-natal checks. They brought proceedings for compensation. One of the recognised heads of compensation in such a case was for “the special burdens arising from the disability throughout the life of the child”: this head of damage had been established by a judgment of the Conseil d’Etat referred to as “Quarez”, which had been not been the subject of any criticism and “led to a line of case law followed thereafter by the administrative courts” (see paras. 38-42). While their claim was still pending legislation was enacted (“the Law of March 4 2002”) which removed the entitlement to that head of compensation: the legislation expressly applied to pending claims. The parents claimed that this constituted a breach of their rights under both article 6 and A1P1.

As regards A1P1 the first issue was whether the parents’ claim constituted a “possession” within the meaning of the article. At paras. 65-68 of its judgment the Court summarised the principles established in its previous case-law, including Pressos and Kopecký. They read:

“65.

The Court reiterates that, according to its case-law, an applicant can allege a violation of Article 1 of Protocol No. 1 to the Convention only in so far as the impugned decisions relate to his ‘possessions’ within the meaning of that provision. ‘Possessions’ can be ‘existing possessions’ or assets, including, in certain well-defined situations, claims. For a claim to be capable of being considered an ‘asset’ falling within the scope of Article 1 of Protocol No. 1, the claimant must establish that it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it. Where that has been done, the concept of ‘legitimate expectation’ can come into play.

66.

As regards the concept of ‘legitimate expectation’, one aspect of this was illustrated in the above-mentioned case of Pressos Companía Naviera S.A. and Others, which concerned claims for damages arising from accidents to shipping allegedly caused by the negligence of Belgian pilots. Under the Belgian law of tort, claims came into being as soon as damage had occurred. The Court classified these claims as ‘assets’ attracting the protection of Article 1 of Protocol No. 1. It went on to note that, on the basis of a series of judgments of the Court of Cassation, the applicants could argue that they had a ‘legitimate expectation’ that their claims deriving from the accidents in question would be determined in accordance with the general law of tort.

67.

The Court did not expressly state in the Pressos Companía Naviera S.A. and Others case that the ‘legitimate expectation’ was a component of, or attached to, the property right claimed. However, it was implicit in the judgment that no such expectation could come into play in the absence of an ‘asset’ falling within the ambit of Article 1 of Protocol No. 1, which in that case was a compensation claim. The ‘legitimate expectation’ identified in the Pressos Companía Naviera S.A. and Others case did not in itself constitute a proprietary interest; it related to the way in which the claim qualifying as an ‘asset’ would be treated under domestic law, and in particular to the reliance on the fact that the established case-law of the national courts would continue to be applied in respect of damage which had already occurred.

68.

In a line of cases the Court has found that the applicants did not have a ‘legitimate expectation’ where it could not be said that they had a currently enforceable claim that was reasonably established. ... The Court’s case-law does not contemplate the existence of a ‘genuine dispute’ or an ‘arguable claim’ as a criterion for determining whether there is a ‘legitimate expectation’ protected by Article 1 of Protocol No. 1. ... The Court takes the view that where the proprietary interest is in the nature of a claim it may be regarded as an ‘asset’ only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it (see Kopecký v. Slovakia … [(2005) 41 EHRR 43]).”

The Court recorded at para. 70 of its judgment that it was not in dispute that on the basis of those principles the parents’ claim constituted a “possession”, since “the settled case-law of the administrative court, which had been established by the Quarez judgment” entitled them to compensation of the kind precluded by the new legislation. The Court held that legislation retrospectively depriving them of that possession could not be justified. As it put it at para. 82:

“… [T]he Law of 4 March 2002 abolished purely and simply, with retrospective effect, one of the essential heads of damage, relating to very large sums of money, in respect of which the parents of children whose disabilities had not been detected before birth, like the applicants, could have claimed compensation from the hospital held to be liable. The French legislature thereby deprived the applicants of an existing ‘asset’ which they previously possessed, namely an established claim to recovery of damages which they could legitimately expect to be determined in accordance with the decided case-law of the highest courts of the land.”

The majority of the Court held that its conclusion on A1P1 made it unnecessary to consider the claim under article 6.1. However, a minority (comprising Judges Rozakis, Sir Nicolas Bratza, Bonello, Loucaides and Jočiené) disagreed. They said, at para. O-I1:

“Article 6 of the Convention and Article 1 of Protocol No. 1 reflect two separate and distinct Convention values, both of fundamental importance – the rule of law and the fair administration of justice on the one hand and the peaceful enjoyment of possessions, on the other. While the facts at the basis of the complaints under the two articles are the same, the issues raised and the relevant governing principles are not and, unlike the majority, we do not consider that the Court’s conclusion that Article 1 has been violated is such as to relieve the Court of the duty of examining the applicants’ complaint under Article 6.”

There is nothing in the judgment of the majority that explicitly contradicts those observations. Although, as we have said, they did not believe that it was necessary to consider the claim under article 6, no elaborate reasons are given for that conclusion, it simply being stated that regard was had to “the particular circumstances of the present case and to the reasoning which led it to find a violation of [A1P1]” (see para. 91).

The minority went on to find that the legislation had constituted a breach of article 6.1. Two passages in their Opinion are of interest. At para. O-I4 they said:

“The Government submitted that the Law of 4 March 2002 was not directed specifically at the dispute which gave rise to the present case, or any particular dispute. While it is true that, unlike the situation in the [Stran] case, the impugned legislation in the present case did not target particular litigation, this is not in our view decisive. Of greater significance is the fact that the contested provisions manifestly had the aim, and the effect, of radically altering the applicable compensation rules and were, by their express terms, designed to apply to all pending judicial proceedings, including those of the applicants, in which no irrevocable decision had been taken on the principle of compensation.”

At para. O-I6 they said:

“While, as in the case of the complaint under Article 1 of the Protocol, we do not seek to question the validity of the general-interest considerations which motivated the introduction of the Law of 4 March 2002, the question remains whether those reasons were, individually or collectively, sufficiently cogent to justify the legislature in extending the measures to legal proceedings which were already in progress.”

They went on to say that the introduction of the Law of 4 March 2002 was not so justified. Their reasons are specific to the case and we need not set them out. What is significant is the clear distinction made between justifying the retrospective measure generally and justifying its application to proceedings which had already been commenced: considerations which justify the former will not necessarily justify the latter.

In Scordino v Italy (no. 1) (2007) 45 EHRR 7 the applicant was entitled to compensation for the compulsory purchase of his land. He brought proceedings in the Court of Appeal to challenge the amount of compensation initially paid. Before the proceedings were determined, legislation (“the Law of 1992”) was enacted prescribing new and less generous criteria for compensation, and the Court of Appeal assessed compensation in accordance with those criteria. The Grand Chamber held that the effect of the Law of 1992 breached the applicant’s rights under both A1P1 and article 6.1. The reasoning as regards A1P1 was concerned with the adequacy of compensation for the expropriation of the applicant’s land, rather than with the interference with his claim, and is accordingly not relevant for our purposes. As regards article 6.1, the Court began (at para. 126) by reiterating the Zielinski principle. Its dispositive reasoning was as follows:

“129.

As a result of the application of [the Law of 1992], owners of expropriated land were deprived of a substantial part of the compensation which they could previously have claimed under [the previous law].

130.

Accordingly, even though the proceedings were not annulled under [the Law of 1992], the provision in question, which was applicable to the judicial proceedings that the applicants had instituted and which were pending, had the effect of definitively modifying the outcome by defining retrospectively the terms of the debate to their detriment. Although the Government submitted that the legislative provision was not aimed specifically at the present dispute, or any other dispute in particular, the Court considers that, as it was immediately applicable, it had the effect of frustrating proceedings then in progress of the type brought by the applicants. The manifest object, and the effect, of the impugned provision was in any event to modify the applicable rules relating to compensation, including in the case of judicial proceedings then in progress to which the State was a party (see Anagnostopoulos and Others v. Greece, no. 39374/98, §§ 20-21, ECHR 2000-XI).

131.

Admittedly, the applicability to current awards of compensation and to pending proceedings cannot in itself give rise to a problem under the Convention since the legislature is not, in theory, prevented from intervening in civil cases to amend the existing legal position by means of an immediately applicable law (see [OGIS] and [Zielinski]).

However, in the present case [the Law of 1992] simply extinguished, with retrospective effect, an essential part of claims for compensation, in very high sums, that owners of expropriated land, such as the applicants, could have claimed from the expropriating authorities. In that connection the Court reiterates its finding [sc. in the context of the A1P1 challenge] that the compensation awarded to the applicants was inadequate, given the low amount in question and the lack of public-interest grounds justifying less than compensation in the market value of the property … .

132.

In the Court’s view, the Government have not demonstrated that the considerations to which they referred, namely, budgetary considerations and the legislature’s intention to implement a political programme, amounted to an “obvious and compelling general interest” required to justify the retrospective effect that it has acknowledged in certain cases (see [National & Provincial];[OGIS]; Forrer-Niedenthal v. Germany, no. 47316/99, 20 February 2003; and Bäck v. Finland, no. 37598/97, ECHR 2004-VIII).

133.

There has, therefore, been a violation of Article 6§1 of the Convention.”

That is an important passage, to which we will have to return more than once in our consideration of the grounds of appeal.

This case arose out of litigation proceeding in Scotland by claimants who had developed asymptomatic pleural plaques as a result of exposure to asbestos and were claiming damages against their employers for personal injury. In Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 the House of Lords held that the development of such plaques did not constitute an actionable injury. At that point a large number of claims were pending in the Scottish courts and had been sisted pending the outcome in Rothwell. The Scottish Parliament enacted the Damages (Asbestos-Related Conditions) (Scotland) Act 2009, which reversed the effect of that decision. The defenders’ insurers sought to challenge the validity of the legislation on various bases, including that by depriving them of what would otherwise have been a complete defence in the pending claims it interfered illegitimately with their rights under article 6.1 and/or A1P1. The claims were dismissed by Lord Emslie in the Outer House ([2010] CSOH 2), and their appeals to the Inner House ([2011] CSIH 31) and the Supreme Court ([2011] UKSC 46, [2012] 1 AC 868) were likewise unsuccessful.

The insurers did not pursue their claim based on article 6.1 beyond the Outer House. Lord Emslie rejected it on the basis that the article conferred no rights on the insurers because they were not parties to the proceedings. But he also, at paras. 164-179, held that a claim under article 6.1 would have failed in any event, both because the Zielinski principle was not engaged and because, even if it was, the interference in question was justified. We need not consider his reasoning on the latter issue: the circumstances were entirely different from those of the present case. As regards the former, his essential point was that the 2009 Act could not be regarded “as a ‘designed’ interference falling within the proper scope of the Zielinski principle”. At para. 169 he said:

“As I see it, the really important limitation arises from the use of the word ‘designed’ in the final sentence of para 57 of Zielinski. Taken together with the word ‘interference’, and with the court’s emphasis on ‘method and timing’ in para 58 of the same decision, that seems to me to import something of the nature of deliberate intent on the part of the legislature. The principle is not satisfied on a simple cause and effect basis. The court did not refer to ‘legislation affecting’, but to ‘interference designed to influence’, and in my view that is a distinction of great significance.”

After reviewing the authorities, he concluded, at para. 173:

“Against that background I am unable to regard the 2009 Act as a ‘designed’ interference falling within the proper scope of the Zielinski principle. During the legislative process, no doubt, the Minister and others made occasional reference to the sisted actions and other ‘backed-up’ claims, and obviously the Parliament did not leave them out of account when passing the Bill. However, the best indication of legislative intent is to be found in the terms of the 2009 Act itself (cf Wilson v First County Trust Ltd, per Lord Nicholls at para. 67), and everything about that Act suggests that it was designed for the universal benefit of all individuals currently or prospectively diagnosed with any of the specified conditions. It is essentially a forward-looking measure following the final resolution of the Rothwell test cases in the House of Lords. The great majority of beneficiaries will emerge over the next few decades and, by comparison, it is a relatively small number (perhaps measured in the low hundreds) whose claims actually reached court before 17 June 2009. There is nothing in the Act, or in the legislative papers, to show that the Parliament was interested in any particular action or actions. For legislative purposes the number and identity of existing claimants were not material considerations, nor the grounds of action, nor the defenders' response, nor even the stage which proceedings had reached before being sisted. There is nothing to indicate that the Parliament perceived the slightest difference between claims raised just before, or alternatively just after, 17 June 2009, nor indeed between sisted court actions and what seems to have been a larger number of claims merely "backed up" with solicitors. The legislation would, it seems, have been in the same terms if the sisted claims had been measured, not in hundreds, but in scores or dozens, or even if there had been no sisted claims at all. No doubt sections 3(2) and 4(2) were intended to have retrospective effect, but again their terms apply without restriction to all claimants, present and future, and I am unable to read them as directed towards claimants in any restricted category.”

As regards A1P1, the Supreme Court held that the article was engaged because the funds out of which the insurers would have to meet their obligations to the defenders constituted “possessions”. The judgments of Lord Hope (at para. 40; p. 908) and Lord Reed (at paras. 126-134, pp. 937-940), which contain the majority ratio, identify the relevant principles from the Strasbourg cases to which we have referred (and some others); we need not reproduce the passages in question here. But it held that the interference with those possessions effected by the 2009 Act was justified. Lord Hope summarised the test involved at para. 34 of his judgment (p. 908 A-D), as follows:

“In Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, para 69 the Strasbourg court declared that, for the purposes of the rule contained in the first sentence of the first paragraph of A1 P1:

‘… the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of article 1.’

In Pressos Compania Naviera SA v Belgium (1995) 21 EHRR 301, para 63, recalling this passage, the Commission said that that fair balance must be regarded as upset if the person concerned had to bear an individual and excessive burden. In National & Provincial Building Society v UK (1997) 25 EHRR 127, para 80 the court, again recalling what had been said in Sporrong, said that there must be a reasonable relationship of proportionality between the means employed and the aims pursued.”

Mr Eadie referred us to a passage in the judgment of Lord Brown, at para. 80 (p. 922), in which he addresses the article 6 issue. He said:

“I had, indeed, at one time wondered whether this undoubted, and deliberate, impact of the legislation upon pending claims might not of itself have vitiated the legislation by virtue of article 6 of the Convention, if not by reference to A1P1 itself – see particularly the Zielinski v France (1999) 31 EHRR 532 line of Strasbourg authorities and Anna Jasiak's article, ‘Changing the rules mid-game. Legislative interference in specific pending cases: separation of powers and fair trial’, Vienna Journal on International Constitutional Law, vol 4, Issue 1/2010. The Lord Ordinary, however, rejected the appellants' complaint under article 6 (see paras 146-179 of his judgment) and the appellants have never thereafter sought to return to it - understandably, I think, because a challenge of this nature must in reality stand or fall upon the effect of the legislation generally. It would be absurd to strike down legislation like this (and, indeed, like section 3 of the Compensation Act 2006) merely because pending actions are included within its scope. Accordingly, instead of the respondents having to establish ‘compelling grounds of the general interest’ (Zielinski at para 57), as is ordinarily required to justify legislation designed to influence the judicial determination of pre-existing disputes (legislation which thus prima facie frustrates the administration of justice), they need demonstrate no more than that their claim to be acting in the public or general interest is not ‘manifestly without reasonable justification’ (James v UK (1986) 8 EHRR 123, para 46, cited by Lord Hope at para 31). This is, I need hardly add, a substantially easier test to satisfy.”

That passage is not referred to in the other judgments and is clearly obiter since the article 6 claim was no longer live. We will consider its significance when we address the grounds of appeal. We should note at this stage, however, that Lord Brown’s reference to the “manifestly without reasonable foundation” test in James must now be read subject to the decision in the Recovery of Medical Costs case which we consider below.

In Tarbuk v Croatia [2012] ECHR 2049 the applicant had been detained on suspicion of spying in the context of the civil war then in progress in the former Yugoslavia. After the end of the war he was released under a general amnesty. He commenced proceedings for compensation under general principles of Croatian law applying to persons detained but released without charge. The Croatian government then introduced retrospective legislation removing the right to compensation from persons released under the amnesty. His claim was accordingly dismissed. He claimed that the effect of the legislation constituted a breach of his rights under article 6.1.

The ECHR dismissed his claim. At paras. 38-40 it re-stated the relevant principles as follows:

“38.

The Court reiterates that in the context of civil disputes it has repeatedly held that although, in principle, the legislature is not prevented from regulating, through new retrospective provisions, rights derived from the laws in force, the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude, except for compelling public-interest reasons, interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute (see, among many other authorities, [Stran]; [National & Provincial]; [Zielinski]; and [Scordino]).

39.

The Court considers that these principles are essential elements of the concepts of legal certainty and protection of litigants’ legitimate trust (see Unédic v. France, no. 20153/04, § 74, 18 December 2008).

40.

Therefore, in assessing whether the interference by the legislature with the administration of justice, which had been designed to influence the judicial determination of a dispute by the introduction of retrospective provisions, infringed the applicant’s right to a fair trial, the Court will primarily assess the existence of compelling public-interest reasons for such legislative changes (see Scordino §132). In addition, the Court must examine the effects of such legislative changes taken together with the method and timing of their enactment (see [Papageorgiou]and Smokovitis v. Greece, no. 46356/99, §24, 11 April 2002).”

Applying those principles, it found that the interference with the applicant’s article 6 rights was a situation where the removal of a right to compensation could be justified (see para. 50) and that in the particular circumstances of the case it was also justifiable for the law to be applied to pending proceedings. It took into account in particular the fact that the general law on which the applicant relied did not contemplate the situation of release following a general amnesty (para. 52) and that it was not unforeseeable that the situation required clarification (para. 53). It also said, at para. 54.

“These amendments were enacted before the first-instance judgment in the applicant’s case was adopted (see, by contrast, Papageorgiou, § 38) or any other relevant progress in the proceedings achieved, which distinguishes the case from other cases dealt with by the Court in which the legislative changes altered the course of proceedings which had been pending for years and in which an enforceable judgment had been adopted (see Stran Greek Refineries and Stratis Andreadis, cited above).”

Mr Eadie is entitled to rely on Tarbuk as an example of the ECHR finding, in a “non-loophole” case, that the retrospective removal of a right of action was justifiable even where the applicant had commenced proceedings. But the circumstances were very different from those of the present case, and it is to be noted that importance was attached to the fact that the applicant (unlike Mr Hewstone) had not obtained even a first-instance judgment in his favour.

In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3, [2015] AC 1016, concerned Welsh legislation which provided for NHS authorities to recover from the employers of persons suffering from asbestos-related diseases the cost of their treatment. The employers’ insurers contended that the legislation interfered (retrospectively) with their rights under A1P1. The judgment of Lord Mance contains a very full discussion of A1P1: see paras. 44-56 (pp. 1039-1041). The main point in that analysis which potentially bears on the issues before us concerns the correct approach to judging the proportionality of any justification in A1P1 cases. At para. 45 of his judgment (p. 1038 B-C) Lord Mance identified four stages to the assessment:

“(i)

whether there is a legitimate aim which could justify a restriction of the relevant protected right, (ii) whether the measure adopted is rationally connected to that aim, (iii) whether the aim could have been achieved by a less intrusive measure and (iv) whether, on a fair balance, the benefits of achieving the aim by the measure outweigh the disbenefits.”

Relying principally on the judgment of the ECHR in James v UK (1986) EHRR 123, the Counsel General for Wales argued that at each of those four stages the court must respect the legislature's judgment as to what is in the public interest unless that judgment be “manifestly without reasonable foundation”. Lord Mance, with whose judgment (on this aspect) the other members of the Court agreed, rejected that submission. After a review of the relevant authorities, he said, at para. 52 (p. 1040 D-F):

“I conclude that there is Strasbourg authority testing the aim and the public interest by asking whether it was manifestly unreasonable, but the approach in Strasbourg to at least the fourth stage involves asking simply whether, weighing all relevant factors, the measure adopted achieves a fair or proportionate balance between the public interest being promoted and the other interests involved. The court will in this context weigh the benefits of the measure in terms of the aim being promoted against the disbenefits to other interests. Significant respect may be due to the legislature's decision, as one aspect of the margin of appreciation, but the hurdle to intervention will not be expressed at the high level of "manifest unreasonableness". In this connection, it is important that, at the fourth stage of the Convention analysis, all relevant interests fall to be weighed and balanced. That means not merely public, but also all relevant private interests. The court may be especially well placed itself to evaluate the latter interests, which may not always have been fully or appropriately taken into account by the primary decision-maker.”

Lord Mance noted at para. 51 that if what Lord Brown said at para. 80 of his judgment in AXA differed from that approach it did not represent the law.

The authorities reviewed do not lend themselves to any comprehensive summary. So far as article 6.1 is concerned, the overall principles are as stated in Zielinski. It does not seem to us useful to attempt any kind of general sub-analysis of the circumstances in which legislation which interferes in existing proceedings may be justified. We will pick up in our discussion of the parties’ submissions the points that are particularly relevant to the present case. As regards A1P1, the principles governing the circumstances in which a legal claim may constitute a “possession” are now authoritatively stated in Draon and do not require elaboration. So far as justification is concerned, what we have said about article 6.1 applies equally.

Since we will have to consider for ourselves (most of) the selfsame issues as were decided by Lang J, it is unnecessary that we set out in great detail the reasoning in her full and careful judgment. It can be sufficiently summarised as follows.

Lang J started with the claim under article 6.She conducted a thorough review of the authorities. At para. 82 of her judgment she summarised their effect as follows:

“The principles which I draw from the case law cited above are that, although Parliament is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of a fair trial and equality of arms contained in Article 6(1) ‘precludes any interference by the legislature … with the administration of justice designed to influence the judicial determination of a dispute’ (Zielinski at [57]) or ‘influencing the judicial determination of a dispute to which the State is a party’ (National & Provincial Building Society v. UK at [112]). This can only be justified in law ‘on compelling grounds of the general interest’ (Zielinski at [57]) and ‘any reasons adduced to justify such measures be treated with the greatest possible degree of circumspection’ (National & Provincial Building Society v. UK at [112]). These principles have been cited with approval by the Supreme Court in AXA General Insurance Ltd v HM Advocate [2012] 1 AC 868, per Lord Reed at [122].”

She observed at para. 82 that although she had derived those principles from the Strasbourg case-law they reflected also fundamental principles of the UK constitution, and she referred to domestic authorities which express the hostile attitude of the common law to retrospective legislation – specifically, Phillips v Eyre (1870-1) LR 6 QB 1, R v Rimmington [2005] UKHL 63, [2006] 1 AC 459, and the AXA decision (which considered the position at common law as well as under the Convention).

Applying those principles, Lang Jheld at para. 84 that article 6 was engaged: the Claimants were both at the time that the 2013 Act was enacted pursuing legal proceedings to determine their civil rights and obligations in relation to JSA – Ms Reilly in Reilly 1 and Mr Hewstone in his FTT appeals. The 2013 Act plainly interfered in the determination of those proceedings: paras. 85-88. She held that it made no difference that the 2013 Act did not close off all grounds of challenge to the sanction decisions (para. 89). She also held that it could not reasonably have been foreseen that the Secretary of State would seek to amend the law retrospectively in the light of the decision of the Court of Appeal (paras. 90-1).

As regards justification, at paras. 92-100 of her judgment Lang J summarised in some detail, with a good deal of critical comment, the evidence of Mr Guest and what was said by Lord Freud in the House of Lords, which she said embodied several misconceptions. However, her conclusion, at para. 101, was that that evidence did not properly address the challenge under article 6.1, because it was concerned with the entire population of JSA claimants who had been subject to sanctions for non-participation under the 2011 Regulations (and in fact also the MWA Regulations) and ignored the fact that those who had brought legal proceedings (whether by way of judicial review, as in Reilly 1, or by appeal to the FTT) “required special consideration” because of the interference with those proceedings. She was also critical of what she said was a further misconception in what the Shadow Secretary of State for Work and Pensions, Mr Liam Byrne MP, said in debate when explaining the decision of the Labour party not to oppose the Bill. She made a number of criticisms of the make-up of the figure of £130m. (paras. 102-9), referring in passing to the report of the House of Lords Select Committee on the Merits of Statutory Instruments. But her essential point, made at para. 110, was that the cost of excluding from the effect of the 2013 Act those claimants who had pending legal proceedings would have been a fraction of that figure, and that to take that course “would have been a more proportionate response to the problem which the Government faced”. At paras. 111-126 she engaged in further detailed discussion of aspects of Mr Guest’s evidence, including the statement made by the Government under section 19 (1) (a) of the HRA which explained why in its view the Bill was compatible with the Convention. At para. 128 she concluded that the Secretary of State had not shown “compelling grounds of the general interest” to justify interference with the rights of “the minority of claimants who pursued claims in the courts or tribunals”.

Lang J started her consideration of the claim under A1P1 by pointing out that it was only advanced by Mr Hewstone, since Ms Reilly had not suffered a sanction. She acknowledged that it had been established by the decisions of the ECHR in Stec v UK (2005) 41 EHRR SE 18, and of the House of Lords in R (RJM) v Secretary of State for Work and Pensions[2008] UKHL 63, [2009] 1 AC 311, that a non-contributory state benefit such as JSA was capable of constituting a possession within the meaning of A1P1 (para. 133). But she rejected both Mr Hewstone’s arguments that any such possession had accrued to him as at the coming into force of the 2013 Act. Since we shall have to examine her reasons in considering the cross-appeal we will not summarise them here.

The declaration of incompatibility as framed by Lang J was in broad terms but it is important to appreciate that, as she indicated at para. 128 of her judgment, the incompatibility which she found was limited to the effect of the 2013 Act on the minority of claimants who had commenced proceedings in the courts or tribunals prior to it coming into force.

It is convenient to say at the outset that we believe that the Judge was right to hold that the enactment of the 2013 Act gave rise to a breach of article 6.1, in the form embodied in the Zielinski principle, in the case of Mr Hewstone; and also that we believe that it did so in the cases of all other JSA claimants who had filed appeals against sanctions imposed under the 2011 Regulations prior to its coming into force. We believe that the intervention of the Government to remove from such appellants what would otherwise have been a conclusive ground of appeal (on the basis of which some had already received decisions in their favour) was unquestionably an interference which engaged the Zielinski principle; and we do not believe that it was justified. We address below Mr Eadie’s submissions to the contrary, as formulated in the Secretary of State’s six grounds of appeal.

This ground depends on the reference in the classic formulation of the Zielinski principle to “interference … with the administration of justice designed to influence the judicial determination of a dispute”, coupled with the observation of the ECHR at para. 110 of its judgment in National & Provincial that the societies were not “the particular targets” of the legislation in that case (see para. 52 (3) above). As already noted, Mr Eadie submitted that because the 2013 Act was of general application it could not properly be described as being designed to interfere with Mr Hewstone’s pending appeals, nor could he or they be described as its “target”; and accordingly that article 6.1 was not engaged. He did not directly address the positions of other JSA claimants in Mr Hickman’s category (1), but it is clear that he would make the same submission as regards them.

In our view the fact that the 2013 Act was of general application – that is, that it validated the 2011 Regulations and the standard-form regulation 4 notices in the case of all claimants, whether they had appealed or not – does not mean that it was not “designed” to interfere with pending appeals within the meaning of the Zielinski principle. The ECHR rejected the identical argument by the Italian Government in Scordino, holding that the fact that the Law of 1992 “was not aimed specifically at the present dispute, or any other dispute in particular” was immaterial given that it “had the effect of frustrating proceedings then in progress of the type brought by the applicants” (see para. 130 of its judgment, set out at para. 67 above). We do not understand the Court necessarily to be saying that the only thing that matters is the effect of the legislation in question, so that an entirely unintended impact is enough to engage article 6.1. But on any view it clearly is saying that it is not necessary that there be any intention to target any particular claimant: there will be a breach of the Zielinski principle if the intention – or part of the intention – is to interfere with the outcome of a class of claim generally. The observations of the minority at para. O-I4 of their opinion in Draon – see para. 66 above – are to the same effect. It follows that the observation about “targeting” in the judgment of the ECHR in National & Provincial cannot have the significance which Mr Eadie seeks to attach to it; we have drawn attention at para. 54 above to the very particular context in which it was made.

This approach seems to us right as a matter of principle. The (potential) violation of the rule of law consists in the deliberate interference in the outcome of current proceedings; and it is unnecessary and undesirable that the issue should depend on the extent to which that impact was “targeted” at one litigant, or group of litigants, more than others, which would also sometimes be a very uncertain enquiry.

The Court in Scordino went on in the same paragraph of its judgment to say that in any event “the manifest object” of the Law of 1992 included modifying the rules to be applied in current proceedings, albeit that it had effect also in cases where no proceedings were on foot.Precisely the same can be said in the present case. Although the purpose of the legislation was to remove the entitlement of JSA claimants who had been sanctioned to be repaid what they had lost, there was a substantial group of those claimants who had already brought proceedings for repayment (some of whom indeed had already received decisions in their favour). The Secretary of State was certainly aware that that was so and intended that they too should be deprived of the right to repayment. Quite apart from the fact that it is inconceivable that the DWP would not have known of current appeals, it was in fact Mr Guest’s evidence (see para. 34 of his first witness statement) that the Secretary of State had given “… express consideration to whether more limited legislation would be sufficient, to apply only to certain groups of benefit claimants, or excluding certain groups (such as those who had already appealed to the FTT) [emphasis supplied]”.He went on to say that the decision was taken not to limit the legislation in those ways, partly because of the difficulty in drafting and partly because of the public interest in saving the cost of any repayments and in maintaining the general policy of the “back-to-work” legislation. Although the particular point for which we refer to this passage is to establish that the Secretary of State was aware of the pending appeals, it is convenient to say now that Mr Eadie did not rely in his submissions before us on any difficulty in drafting provisions which excluded claimants who had already brought appeals from the effect of the Act, and we would have found it hard to accept that there was any real difficulty of this kind. As to the other reason given by Mr Guest, see paras. 98-100 below.

We acknowledge that our reasoning on this point does not sit well with that of Lord Emslie in holding that the Zielinski principle was not engaged in the AXA case. It is true that our approach and his can be formally reconciled on the basis that he found that in the circumstances of the case before him the 2009 Act was not “designed” to interfere with the rights of parties to current proceedings, whereas we have made the contrary finding about the 2013 Act. And the circumstances of the two cases could hardly be more different. The legislation in question in AXA was designed to restore the common law as it had been understood to be prior to Rothwell, not to correct the results of legislative and administrative error on the part of the government; indeed the government was not a party to the litigation in question. Nevertheless aspects of his particular reasoning in support of his finding, as set out at para. 173 of his opinion, may be hard to reconcile with ours. To the extent that there is an inconsistency, we must respectfully disagree with his approach. We note that it does not appear that he was referred to Scordino, and we venture to think that he would have expressed himself differently if he had been.

The essential point made under this ground is that the 2013 Act did not in fact, in the particular circumstances of the Claimants’ cases, affect their substantive rights. We take the cases of Ms Reilly and Mr Hewstone in turn.

As regards Ms Reilly, the Secretary of State contends that the retrospective validation of the 2011 Regulations by the 2013 Act (which required the Supreme Court to allow the appeal against paragraph 2 of the order of the Court of Appeal) had no real impact on her legal rights, for the reasons identified at para. 29 above. In our view that is correct. There was no substantive interference with her access to the court.

As for Mr Hewstone, the Secretary of State’s pleaded point is that he had not at the time that the 2013 Act was passed sought to rely on the grounds of challenge which were ultimately upheld by the Supreme Court. He had, as already noted, succeeded in his first three appeals to the FTT on the basis of Foskett J’s decision, i.e. that the regulation 4 notice failed to comply with the requirements of paragraph (2) (e). He had not raised a vires challenge; nor had he alleged non-compliance with regulation 4 (2) (c). His fourth appeal was on the same basis.

No doubt all that is factually correct, but we do not accept that it follows that the 2013 Act had no impact in Mr Hewstone’s case. At least in a case of this kind, we do not believe that the question whether there has been a breach of article 6.1 depends on what points had been explicitly taken by the appellant at the date that the putative interference occurred; or, as regards the facts of this case, that there was no interference because Mr Hewstone had taken a point on regulation 4 (2) (e) but not on regulation 4 (2) (c). Such a distinction not only would be wrong in principle but would be likely to require nice enquiries on a case-by-case basis into precisely how the appeal had been formulated which would be both inappropriate in this kind of proceeding and no doubt often difficult to resolve. We regard it as beyond doubt that once the stays were lifted following the decision of the Supreme Court Mr Hewstone would have been entitled to rely – whether in the UT in the case of the first three appeals or the FTT in the case of the fourth – on the grounds of challenge which the Court had upheld. Appeals in social security cases, where claimants are almost never assisted by lawyers or other professionals, are not determined on pleading points. The tribunals explore the circumstances of each case and will allow an appeal in an appropriate case, however it might have been advanced or presented by the appellant. (Footnote: ⁷) But for the 2013 Act the appeals would have proceeded and, whatever other grounds might have been advanced, they would have been allowed because the sanctions in question had been imposed for non-compliance with a requirement made under Regulations which had been quashed (and indeed, though this point would not have been necessary, pursuant to a notice which did not comply with the Regulations even had they been valid).

As pleaded, this ground of appeal addresses only the position as regards Mr Hewstone. But what is true of his case must be true equally in any other case – we dare say the great majority – in which appellants did not originally rely on the grounds of challenge eventually upheld by the Supreme Court: whatever the procedural history, they would unquestionably have been entitled to do so once the invalidity of the 2011 Regulations (and the inadequacy of the standard-form regulation 4 notice) had been definitively established.

In his skeleton argument Mr Eadie made a further point in connection with this ground, namely that the effect of the 2013 Act was not to prevent Mr Hewstone appealing on other grounds. He remained entitled to argue that he had good cause for the non-participation that led to him being sanctioned and/or that the DWP was in breach of the prior information duty identified by the Supreme Court: indeed we were told that his appeals are still being pursued on that basis. Accordingly, Mr Eadie submits, it is not correct to say that the 2013 Act has prevented his access to a Court. With respect, this argument is hopeless. It is clear from the authorities to which we have referred that the Zielinski principle may be breached by interference falling short of wholesale removal of the basis of the claim. Again, the clearest statement is in Scordino. The Italian Government did not in that case remove the applicants’ right of compensation altogether: it merely made the basis of assessment less generous. But it was enough, as the Court said at para. 130, that the legislation had “the effect of definitively modifying the outcome by defining retrospectively the terms of the debate to their detriment”. That approach is reflected in the classic formulation of the Zielinski principle, which refers simply to an interference designed to “influence” the judicial determination of a dispute.

Both these grounds relate to justification. Mr Eadie took them together in his submissions, and we will do the same. His submissions were under four broad heads.

First, he relied on the line of authorities starting with National & Provincial,and of which OGIS and EEG are also examples, in which the ECHR has upheld the lawfulness of retrospective legislation which is designed to cure technical drafting loopholes and give effect to the evident intention of the original law. It was evident that Parliament’s intention was to encourage getting the unemployed back to work – an important public interest – and, to that end, to ensure that JSA was paid only to those who were prepared to participate in schemes which helped them to do so. He submitted that the failure of the 2011 Regulations to include a description of the ESE scheme, or to refer to the various sub-schemes, and the failure of the standard-form regulation 4 letter to give adequate details constituted technical drafting loopholes of the kind referred to in the authorities, and the 2013 Act did no more than give effect to what Parliament had always intended.

We do not accept that submission. No doubt Mr Eadie’s overall characterisation of Parliament’s intention in introducing section 17A into the 1995 Act is right, but a general characterisation of that kind is not a warrant for ignoring the particular terms either of section 17A itself or of the 2011 Regulations themselves, which the Secretary of State made pursuant to section 17A (and which were laid before Parliament). Section 17A required that the Regulations contain a description of any scheme prescribed. We do not regard the omission to provide such a description as a mere technicality. At para. 48 of their judgment in the Supreme Court in Reilly 1 (p. 469 D-G) Lord Neuberger and Lord Toulson approved the following passage from the judgment of Sir Stanley Burnton in the Court of Appeal:

“Description of a scheme in regulations is important from the point of view of parliamentary oversight of the work of the administration. It is also important in enabling those who are required to participate in a scheme, or at least those advising them, to ascertain whether the requirement has been made in accordance with parliamentary authority.”

As for regulation 4 (2) (c), the requirement that JSA claimants are given sufficient details of what they are to be required to do by way of participation is self-evidently a matter of substantive importance. It enables claimants to consider whether they have any good cause for non-participation and is a safeguard against them being sanctioned for not complying with requirements that were unclear or unspecific. Mr Hickman pointed out that the “prescribed description” requirement was not removed by the 2013 Act, and that the 2013 Regulations contain, at regulation 5 (2) (c), a provision in identical terms to regulation 4 (2) (c) under the 2011 Regulations; that is hard to reconcile with the submission that their requirements fail to reflect the true intention of Parliament or the Secretary of State, as the case may be.

Secondly, Mr Eadie submitted that the enactment of the 2013 Act represented a considered judgment by Parliament that it was neither socially just nor a proper expenditure of constrained public finances to pay JSA to those who had failed to participate in back-to-work schemes without good reason, merely because of the defects in the 2011 Regulations and the regulation 4 notices: the Court should accord great weight to the judgement of Parliament on such issues. There are two elements to that submission – the inequity of paying JSA to, in effect, claimants who are unwilling to participate in schemes for their own benefit and the financial impact. We take them in turn.

As to the inequity argument, Mr Eadie’s point is of course that JSA claimants who had good cause for failing to participate, or in whose cases there had been a breach of the prior information duty, would not be liable to sanctions in any event, and that it followed that those who were affected by the 2013 Act would only be, in short, the undeserving. It was entirely justified to deprive them of what would otherwise be a windfall. We see the force of this argument, but in our view it cannot outweigh the importance to be attached to observance of the rule of law. The starting-point must be our rejection of Mr Eadie’s previous submission that this is a mere “drafting error” case where the defect on which the claimants who had brought appeals relied self-evidently failed to reflect the intention of Parliament. In such a case it is understandable that the weight to be given to respecting the letter of the law should be less; and that is at least the primary strand in the reasoning of the ECHR in such cases as National & Provincial, OGIS and EEG. But here, as we have said, there is no doubt that Parliament, in enacting section 17A, and the Secretary of State, in making regulation 4 (2) (c), intended that the claimants should have the benefit of the very provisions which were then not applied. In such a case the fact that relying on those provisions might give them an undeserved benefit does not seem to us a sufficient reason for intervening in existing proceedings to deprive claimants of the outcome to which they were unquestionably entitled on the basis of the law as it then stood – and indeed which some of them had already achieved in the FTT. The integrity of the judicial process is a Convention value of fundamental importance. The rule of law enures for the benefit of the undeserving as well as the deserving.

As for the financial impact, Mr Eadie continues to rely on the figure of “up to £130m” (Footnote: ⁸), which Lord Freud told the House of Lords, and Mr Guest told Lang J, would be the cost of repaying all the claimants sanctioned under the 2011 Regulations. But the short answer to that point is that given by Lang J: see para. 80 above. The only claimants who would, on her decision, be entitled to repayment were those who had, as at 26 March 2013, lodged appeals, because it was only they who had current legal proceedings in whose determination the Government had interfered. There was no evidence as to the cost of repayment in those cases, but on any view it would only be a small fraction of the £130m. It is in fact possible to do some very broad-brush calculations. The £130m is based on repayment to approximately 250,000 sanctioned claimants. If, in accordance with the DWP’s figures, the number of FTT appellants was about 2,500 (see para. 31 (1) above), that would suggest that – assuming the amounts at stake were evenly spread – the overall cost would be about 1% of the £130m, or £1.3m. (Footnote: ⁹) It seems to us clear beyond argument that a cost of this nature would be insufficient to justify what would otherwise be a breach of the article 6 rights of the appellants involved.

Mr Eadie also raised under this head a point about the inequity of distinguishing between those JSA claimants who had, as at 26 March 2013, lodged an FTT appeal and those who had not. In some at least of those cases the distinction may be arbitrary or adventitious: one obvious example is claimants only recently sanctioned who were within the primary time limit for appealing but had not yet done so. We see the point, but it is in the nature of article 6, at least in this context, that it applies only to those who have in fact brought legal proceedings and not to those who only have potential claims: cf. the observations of the minority in Draon at para. O-I1 of their opinion (see para. 65 above). It cannot be a justification for what would otherwise be a breach of article 6 that there may be others in a broadly similar position whose article 6 rights are not engaged.

Mr Eadie’s third point was a re-deployment, in the justification context, of the argument which we have already discussed at paras. 89-92 above. For the reasons there given, we would accept it as regards Ms Reilly but not as regards Mr Hewstone or the other claimants in category (1).

Mr Eadie’s final point was based on the provisions of section 27 of the Social Security Act 1998. This is a complex provision, which we need not set out here. In bare outline, and at the risk of some over-simplification, its effect is that, where the UT or a court considering an appeal relating to a claim under social security legislation holds that a provision of such legislation has a different effect from that on the basis of which the DWP had proceeded previously, the law as thereby established will for most purposes take effect only from the date of that decision: in other words, the usual rule that the decision of the court establishes what the law has always been does not apply, and parties’ pre-decision rights are not affected even if a decision about them is pending. However, importantly for present purposes, any other parties to appeals to the FTT (or beyond) pending at the date of the decision can take advantage of the “change” in the law, and so also may claimants whose cases have been “stockpiled”. It is common ground that section 27 had no application to the effect of Reilly 1 because the proceedings were by way of judicial review rather than appeal. But Mr Eadie submitted that section 27 represented a legitimate policy judgment as to how changes in social security law occurring as a result of judicial decisions should be treated, and that it was justifiable for the Government to seek to reproduce in the 2013 Act the effect that it would have had if the challenges that succeeded in Reilly 1 had been raised in the context of an appeal.

We cannot regard this as an argument of any real weight in the article 6 context. To the extent that an analogy with section 27 is appropriate, it is necessary to identify the date as at which the decision of the Court changed the law in the relevant respects. That would not seem to be the date of Foskett J’s decision, since the only basis on which he found against the Secretary of State – non-compliance with the consequences requirement – was not approved by the Supreme Court. It can only be either the date of the decision of the Court of Appeal or the date of the decision of the Supreme Court. We did not hear submissions on how section 27 operates in the case where there is an ongoing appeal, but we will assume in the Secretary of State’s favour that the relevant date is that of the decision of the Court of Appeal, which was 12 February 2013. On that basis, there would no doubt be some claimants in category (1) who had lodged their appeals in the interval between 12 February and 26 March 2013, though we do not know how many. But there would be many – very likely the great majority – who, like Mr Hewstone, had done so before the decision of the Court of Appeal and would accordingly be excluded from the general effect of section 27; yet the Act precludes them from relying on the change in the law.

The truth is, as Mr Hickman observed, that – at least as regards the article 6 claim – the analogy with section 27 assists the Claimants rather than the Secretary of State, because it demonstrates that his usual policy is to allow claimants who have started proceedings before a change in the law occurs to take advantage of that change.

The contention raised by this ground is that the justifiability of the 2013 Act should be judged by reference not to the touchstone of “compelling grounds of the general interest”, as stated in Zielinski and the following cases but by the ordinary criterion applicable in testing justification under A1P1, namely whether the interference was “in accordance with the general interest”, which involves a lower threshold. Mr Eadie sought to support that contention by submitting that (as he put it in his skeleton argument):

“In circumstances in which retrospective legislation is not targeted at a particular person, but is a measure of general application with only incidental effect on pending claims, the appropriate and primary analysis is under A1P1”.

He referred to certain obiter observations of Andrews J in R (St Matthews (West) Ltd) v HM Treasury [2014] EWHC 2426 (Admin), [2014] STC 2350, which in turn draw on Lord Brown’s statement in the AXA case (see para. 71 above) that “it would be absurd to strike down legislation like this … merely because pending actions are included within its scope” and that in such cases justification should be tested in accordance with the less demanding A1P1 criterion. Andrews J expressed the view, at para. 92 (p. 2373 c), that “[t]he point Lord Brown was making was surely that it would be wrong to subject the legislation to greater justification than that required under A1P1 merely because it could have an adverse impact on ongoing litigation”.

We do not accept the premise of Mr Eadie’s submission. Although no doubt the 2013 Act was of general application, for the reasons already given we do not accept that its effect on pending claims could be described as “only incidental”. As for Lord Brown’s observations, again the Supreme Court had apparently not been referred to Scordino. But we do not in any event believe that Lord Brown intended his observations as a statement of general principle of the kind contended for. He referred expressly to “a challenge of this nature” and “legislation of this nature”, and it is clear that he was concerned specifically with legislation which was aimed at restoring a previous understanding of the common law: as we have already observed, the circumstances of the AXA case were nothing like those with which we are concerned. In fact, the Strasbourg cases demonstrate that once article 6.1 is engaged, the legislation will be judged against the Zielinski test. Most of the cases cited in argument were argued under both article 6.1 and A1P1. The Court considered the two provisions separately and applied the appropriate test to each. That is in accordance with principle. As the minority observed in Draon (see para. 65 above), article 6 and A1P1 reflect separate and distinct Convention values, and we cannot see any reason in principle why different tests should not apply to justifying interference with judicial proceedings and interference with possessions. It is inevitable that if a legislative choice is justified on grounds of compelling public interest it will satisfy the less onerous test for A1P1 purposes. But the reverse is not necessarily the case.

This ground complains of the way in which Lang J in her judgment criticised the speeches of Lord Freud and Mr Byrne and the terms of the ministerial statement on compatibility with the Convention; it also challenges her reliance on the conclusions of the House of Lords committee. By doing so, she is said to have contravened the provision of article 9 of the Bill of Rights that “proceedings in Parliament ought not to be impeached or questioned in any court”. It was accepted before us that in places in her judgment the Judge does appear to have transgressed that rule. Our own reasoning does not involve any “questioning” of the kind which Mr Eadie criticises, and we do not see any advantage in lengthening this judgment still further by examining in detail at what point or to what extent the Judge crossed the relevant line.

We do, however, wish to observe that Lang J was put in a difficult position by the Secretary of State’s reliance in his evidence on the justifications for the legislation advanced by Lord Freud in his speech in the House of Lords and by the extent of the Parliamentary materials placed before her in the voluminous bundles produced by the parties. That made the line between criticising the Secretary of State’s case and questioning proceedings in Parliament hard to identify or observe. It has become relatively commonplace in public law proceedings for every last word spoken or written in Parliament to be placed before the court. In particular, debates are relied upon extensively when they should not be and, furthermore, the conclusions of Select Committees are prayed in aid with the court being asked to “approve” them. For the reasons summarised by Stanley Burnton J at paras. 46-48 of his judgment in Office of Government Commerce v Information Commissioner [2010] QB 98 (see pp. 115-6), that should not happen.

For the reasons given above, we dismiss the Secretary of State’s appeal.

As noted above, the significance of the cross-appeal is not so much in the case of the Claimants themselves as in its implications for other sanctioned JSA claimants, i.e. those in Mr Hickman’s categories (2)-(4), who, unlike Mr Hewstone, are unable to advance a claim under article 6.1 because they had not brought proceedings at the time that the 2013 Act came into force. Mr. Eadie objected that the Claimants were not entitled to advance a claim on behalf of JSA claimants whose circumstances were different from their own. There is considerable force in that submission. However, it would not justify us in declining to consider the claim under A1P1 at all. Mr Hewstone does advance such a claim, albeit that it is academic in the light of his success under article 6.1, and we should decide at least the issues raised by that claim.

There are potentially two issues raised by the cross-appeal – (1) whether the 2013 Act interfered with any “possession” of Mr Hewstone within the meaning of A1P1; and (2) whether, if so, such interference was justified.

“Possession”

As explained at para. 38 above, Mr Hickman’s argument that a claim for repayment of withheld JSA constituted a possession within the meaning of A1P1, irrespective of whether legal proceedings had been commenced, is put in two ways, which we consider in turn.

First, he contended that in respect of each of the periods for which Mr Hewstone was sanctioned he had an accrued right to JSA because he satisfied the conditions in section 1 (2) of the 1995 Act. Lang J rejected that argument. We set out paras. 134-138 of her judgment in full:

“134.

However, under UK domestic law, the Second Claimant's right to JSA depends upon whether he meets the conditions for receipt of the benefit. He must be (1) eligible and (2) not denied payment on conduct grounds under sections 17A or 19 JSA 1995. This applies continuously, not just at the date of initial application and approval.

135.

The eligibility requirements are listed in section 1, JSA 1995. Some of the eligibility requirements are objectively verifiable (e.g. age, residence), others may depend upon an exercise of judgment by the DWP on behalf of the Secretary of State (e.g. available for work and actively seeking work).

136.

Under the statutory scheme for the imposition of sanctions, pursuant to section 17A and the 2011 Regulations, a claimant is liable to a sanction if he has failed to participate in a scheme in accordance with the requirements notified to him. If the Secretary of State decides that (1) a claimant has failed to participate in a scheme, and (2) that he has not shown good cause for that failure, the consequence will be that the claimant is treated as subject to sanctions and JSA is 'not payable' for a future period which is specified by regulation (see section 17A(5) & (6) JSA 1995 and reg. 8, 2011 Regulations). More extensive provision for non-payment on conduct grounds is set out in section 19 JSA 1995 which was later used as the statutory basis for JSA sanctions.

137.

By way of illustration, on 18^th May 2012, the DWP sent to the Second Claimant a Decision notice stating:

‘My decision is that a sanction is imposed for the period 25/05/12 to 21/06/2012…This is because [the Second Claimant] failed, without good cause, to participate in the Work Programme and the Employment, Skills and Enterprise Scheme…’

138.

In my judgment, the legal effect of the decision was that the Second Claimant did not meet the conditions for payment of JSA for a specified period of time in the future. The Second Claimant was not deprived of an existing ‘possession’ because this was not a revocation of benefit previously received, nor a demand for repayment of the JSA. The mere fact that he had been paid JSA in respect of an earlier period did not entitle him to continuing payments in the future if he no longer met the necessary conditions.”

In short, in the case of a sanction decision no right to JSA in respect of the period affected had accrued because the effect of the sanction decision was that JSA never became payable for that period.

Mr Hickman submitted that that analysis did not correspond to the reality of the matter. A “consequence” under regulation 8 was in substance a sanction, which involved taking away “an otherwise existing entitlement”, and A1P1 was concerned with substance rather than form. We do not accept that submission. Lang J’s analysis of the statutory provisions is plainly correct, and we see no justification for treating as a “possession” a right which never legally accrued.

Mr Hickman also submitted that even if Lang J’s analysis were correct as far as it went it was not applicable to the present case because the sanction decisions which prevented Mr Hewstone’s entitlement accruing were taken under the 2011 Regulations, which have been quashed. But that point was addressed by Lang J at para. 141 of her judgment, where she said:

“In accordance with general principles of administrative law, the sanction decisions were effective and lawful unless or until overturned. This is confirmed by section 17, Social Security Act 1998 which provides that decisions made by the Secretary of State are final unless and until revised or superseded or finally overturned on appeal.”

Mr Hickman did not seek to controvert that argument either in his skeleton argument or in his oral submissions, and it seems to us to be correct.

We would accordingly reject the first way in which Mr Hickman puts the case that Mr Hewstone was deprived of a “possession”.

Mr Hickman’s alternative formulation was that Mr Hewstone’s claim to repayment of JSA on the basis of Reilly 1 itself constituted a possession. As to this, there are a number of Strasbourg decisions in which the circumstances in which a legal claim falls within the terms of A1P1 are considered, but it is unnecessary to go behind the full statement of the law made by the Grand Chamber in Draon: see para. 63 above. The crucial question is whether Mr Hewstone’s claim had “a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it”.

Lang J rejected that contention at para. 146 of her judgment, as follows:

“In my judgment, although the Second Claimant had a good arguable case, it did not qualify as an "asset" for the purposes of A1 P1. Unlike the authorities relied upon by Mr Hickman, the Second Claimant's claim to JSA was not founded upon a body of settled case law in force at the time.  Reilly No. 1 raised novel points. The correct legal analysis was uncertain. Although the Claimants in Reilly No. 1 had been successful in both the Administrative Court and the Court of Appeal when the 2013 Act came into force, the basis upon which they were successful differed; the only point of agreement was that [there] was a breach of reg. 4(2)(e). The Supreme Court took a different view to both the Court of Appeal and the Administrative Court, finding that there was no breach of reg. 4(2)(e), though agreeing with the Court of Appeal that the 2011 Regulations were ultra vires and that there had been a breach of reg. 4(2)(c). Although the Second Claimant's appeal had succeeded in the FTT on the basis of the Administrative Court's decision that there was a breach of reg. 4(2)(e), it was this analysis that was found to be erroneous by the Supreme Court.”

Mr Hickman submitted that the Judge misdirected herself by basing her conclusion on the fact that Mr Hewstone’s claim was not supported by “a body of settled case law”. The existence of such supporting case-law was referred to in Draon, quoting Kopecký, only as an “example” of a case where a claim would have “a sufficient basis in national law”, and its absence is not in itself determinative. In this case a sufficient basis existed in the judgment of the Court of Appeal, subsequently affirmed by the Supreme Court.

We accept that “the Kopecký formulation” allows for the possibility of “a sufficient basis in national law” being established by reference to something other than “a settled body of case law” – one obvious example might be an explicit statutory provision; but the existence of such case law is clearly the paradigm. In Pressos the relevant rule of Belgian law derived, as the ECHR noted in Draon (para. 66), from a series of judgments of the Court of Cassation; and in Draon itself the Quarez decision was explicitly described as having given rise to a settled case law. Stran also fits this paradigm, though the detail of the Court’s reasoning needs to be appreciated. The applicant’s arbitration award was held to constitute a possession even though an appeal by the Greek government to the Court of Cassation against the refusal of lower courts to annul it was still pending. But the ECHR clearly regarded a final and binding arbitration award, albeit in principle subject to annulment, as different in character from a first-instance decision of the courts, which was subject to appeal in the usual way – see paras. 60 and 62 of its judgment. (It seems also to have taken into account the fact that the attempt to annul had failed in the two lower courts (para. 62).) The thrust of the case law is clearly that a claim should not be regarded as an asset unless there is practical certainty as to the claimant’s entitlement: as is made clear in Draon, a legitimate expectation based on the existence of a good arguable case is not enough.

Applying that approach, we can see no error in the Judge’s reasoning or conclusion. The entitlement of Mr Hewstone and others in his position to recover the withheld JSA was far from certain at the time that the 2013 Act was enacted. Not only was there no settled case-law but Foskett J and the Court of Appeal had reached their conclusions, as Lang J pointed out, on very different bases and an application for permission to appeal to the Supreme Court was pending. It is immaterial that that appeal was ultimately unsuccessful: that was far from a foregone conclusion. We note the doubts expressed by the ECHR in National & Provincial as to whether the societies’ claims in restitution constituted possessions, even though at the relevant time they had a decision of the Court of Appeal in their favour: see para. 51 above.

We would accordingly uphold Lang J’s finding that A1P1 is not engaged in Mr Hewstone’s case. That decision will of course apply equally to the sanctioned JSA claimants in Mr Hickman’s categories (2)-(4). We would add that it is particularly hard to see how the claimants whose cases had been stockpiled could assert that they had a claim amounting to a possession when the sanction decision which would give rise to the claim had not yet been taken and might never be.

Justification

That conclusion renders it unnecessary for us to consider the question of justification. Although we heard submissions on the issue, we are not prepared to decide it, for two reasons. First, Lang J did not do so, so we do not have the benefit of any factual findings that might be relevant to the assessment. Secondly, it seems to us that the arguments might differ as between JSA claimants in Mr Hickman’s four categories; but in the proceedings before us the only claimant is in the first of those categories and we are far from sure that the issues in relation to claimants in other categories were adequately explored.

We do, however, wish to say that it does not follow from our conclusion on the justification issue in relation to the article 6 claim that if, contrary to our view, JSA claimants in categories (2)-(4) enjoyed claims which constituted possessions within the meaning of A1P1 the Secretary of State would be unable to justify depriving them of those possessions. In the first place, of course, the formal threshold is lower, even following Lord Mance’s clarification in the Recovery of Medical Costs case; but it is important to appreciate that that reflects a real difference in substance as regards the Convention values engaged. It is and ought to be more difficult in principle for the state to justify intervening to affect the result of pending legal proceedings, and in particular proceedings where it is itself a party, than to justify depriving citizens of their possessions. Outside the article 6.1 context, Mr Eadie’s “windfall” argument seems to us to have much more force. There are other differences too. Although the analogy with section 27 does not, for the reasons given, assist in category (1) cases, it is much closer in the cases of claimants in categories (3) and (4) (though not category (2)). And the costs of repayment of JSA claimants in all four categories would inevitably be far higher, whatever the precise figure, than in the case of category (1) only. Those points are not necessarily comprehensive, but they are sufficient to demonstrate that the justification issues as regards the article 6 and A1P1 claims would require a different assessment process; it might also, as we have said, produce different outcomes for claimants in the different categories.

We dismiss the cross-appeal.

As noted above, UTJJ Rowland and Wright concluded that on its true construction the 2013 Act had no effect on JSA claimants who had as at the date that it came into force lodged appeals against sanction decisions in respect of non-participation in the ESE scheme. They set out their reasoning at paras. 77-126 of the judgment of the Tribunal. The contrary reasoning of Charles J appears at paras. 127-172. Both are very fully expressed, but we hope that it implies no disrespect if we take the same course as with the judgment of Lang J and give only a brief summary.

The majority started by setting out the well-known guidance given by Lord Mustill in L’Office Cherifien Des Phosphates v Yamashita-Shinnihon Steamship Co Ltd  [1994] 1 AC 486, at pp. 524-525. The essence of that guidance appears in his approval of a passage from the judgment of Staughton LJ in Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 724, which reads as follows:

“In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears.  It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree – the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.”

They regarded it as very unlikely that Parliament intended to affect the rights of JSA claimants who had already appealed against sanction decisions, particularly because that would produce a different result from that provided for in an essentially analogous situation by section 27 of the 1998 Act (as to which see para. 103 above). They did not believe that any such intention could unequivocally be found in the words of the statute. Specifically, they did not believe that the words “for all purposes” in section 1 (1) of the Act (see para. 25 above) needed to be read entirely literally. They found support for their approach in the Explanatory Notes to the Act. Paras. 42-48 of the Notes address the compatibility of the Act with the Convention. At para. 43 it is said that any interference with property rights under A1P1 would be justified. Paras. 44-46 address the issue whether there is any breach of article 6 and read as follows:

“44.

A claimant might also argue that legislation which removes their right to a refund of sanctioned benefits, or allows the Secretary of State to impose a sanction, notwithstanding the Court of Appeal’s decision, is a breach of their right of access to court under ECHR Article 6.

45.

If no legal claim has been brought on the grounds that the Regulations are ultra vires and/or that the notice issued under them is non-compliant prior to the enactment of the proposed legislation, the Government considers that Article 6 is not engaged at all since the claim to entitlement to benefit, and any dispute regarding a benefit decision thereon which would require access to the courts, remains hypothetical.

46.

Similarly, for cases where the Secretary of State has not yet made a sanction decision, the Government considers that Article 6 will not be engaged as there will be no potential dispute about the right - the effect of the legislation will be that there can be no right to object to the sanction on the notice or vires grounds. 

47.

Even if the proposed legislation would interfere with a right of access to court, the Government considers that the interference is justified for similar reasons as for Article 1 of Protocol 1.

48.

These issues were considered in Stran Greek Refineries  and Stratis Andreadis v  Greece (09.12.1994) and National & Provincial  Building  Societies v  UK (23.10.1997). As with that latter case, the legislation would have the effect of closing a loophole in order to give effect to the original intention of Parliament, which is not disputed.”

The majority drew attention to the absence of any explicit reference to the case of JSA claimants who had lodged an appeal and observed that the Notes could not properly have been drafted in that way if it had been intended that the Act would apply in such cases.

The majority reached that conclusion, at paras. 77-98, initially as a matter of applying the ordinary rules of construction (characterising this as “the first issue”). But they also held, at paras. 118-126 (“the third issue”), that even if that were not permissible, the same result could be reached by applying section 3 (1) of the HRA, which reads:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

They referred to the well-known exposition of the effect of that provision in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, which is too well-known to need rehearsal here. They suggested that it would be possible to read in to the start of section 1 (1) of the 2013 Act the words “save where an appeal had already been made or had already been decided under section 12 of the Social Security Act 1998 before this Act came into force”.

Charles J’s view, by contrast, was that the words “for all purposes” were simply too clear and unequivocal to admit of the construction favoured by the majority, even with the benefit of section 3 of the HRA. Their reading, or reading-down, would, in Lord Rodger’s phrase from Ghaidan, go against the grain of the Act. He did not believe that section 27 of the 1998 Act gave any assistance in ascertaining Parliament’s intention, and he believed that the Explanatory Notes were consistent with an intention that the Act should apply to all sanctioned JSA claimants, whether or not they had appealed.

In our opinion Charles J was right that the 2013 Act cannot be read as containing the limitation found by the majority. We base that view principally on the phrase “for all purposes” in section 1 (1), which Mr Eadie said – essentially rightly, as we believe – should be the beginning and end of the analysis. The effect of that phrase as a matter of ordinary domestic construction seems to us clear beyond argument; and even if resort is had to section 3 of the HRA, and fully acknowledging the strength of the interpretative obligation which it imposes, its words seem to us incapable of being read down so as to have anything less than their plain literal meaning. An exclusion for the case of those who had already brought proceedings would have been straightforward and in our view would certainly have been included if that was the intention. (Footnote: ¹⁰)

We take in turn the particular arguments advanced by Mr Jones, who took the lead on this part of the argument for the tribunal appellants, in support of the reasoning of the majority.

First, he relied on the presumption against unfairness enunciated by Lord Mustill in L’Office Cherifien. The existence of such a presumption is unquestionable, though in truth it may be a less powerful point here than the fact that on the construction which we believe is correct the Act contravenes the Convention rights of claimants in category (1). But the issue is whether the presumption is rebutted. For the reasons given, we believe that it is.

Secondly, Mr Jones relied on the Explanatory Notes, making the same point as the majority, namely that they fail to identify any impact on sanctioned JSA claimants who have appealed. That is true as far as it goes, and we are bound to say that we think it very unfortunate that the draftsman of the Notes – apparently the DWP rather than the Parliamentary draftsman – failed to draw explicit attention to this important point. But the issue is not whether the Notes are well drafted, or even whether they were deliberately coy on this issue, but whether they contain any indication of an intention, contrary to the clear words of the Act itself, to exempt the claimants in question from its effect. We do not believe that they do. No safe implication can be drawn from what is at most an ambiguous omission (Footnote: ¹¹). Where there is an unequivocal indication in Explanatory Notes of an intention different from that which may appear from the wording of the statute itself that may be a factor supporting a “strained” reading of the statutory language in a case where section 3 applies; but anything less than that is not likely to be of real value.

Thirdly, he submitted that the majority had been right to regard section 27 of the 1998 Act as a crucial part of the background. It should be assumed that Parliament intended the 2013 Act, like section 27, to preserve the rights of any parties to appeals pending as at the date of the decision that changes the law. He pointed out that Lord Freud in his speech promoting the Bill had in fact drawn an analogy between its operation and that of section 27. We find this argument unconvincing. If the statutory intention had been to achieve the same result as section 27 as regards pending appeals, it is hardly conceivable that express provision would not have been made. Further, it should be noted that stockpiled cases are also excluded from the general effect of section 27. Mr Jones did not suggest that the 2013 Act should be construed as excluding them too (despite the express indication to the contrary at para. 46 the Explanatory Notes); yet that would seem to be the logic of his argument. Apart from the reference by Lord Freud, which does no more than draw a general analogy, there is no indication that section 27 of the 1998 Act was in any sense a model for the provisions of the 2013 Act. We agree with Charles J’s observation, at para. 148 of the judgment, that “Parliament was addressing a much more general situation by section 27 … and it cannot be said that its existence informs the intention underlying the 2013 Act”.

Mr Jones’s fourth point depended on the effect of section 12 (8) (b) of the Social Security Act 1998. Section 12 is, it will be recalled, the provision which gives claimants for social security benefits a right of appeal to the FTT against decisions of the Secretary of State. Sub-section (8) reads (so far as material):

“In deciding an appeal under this section, the First-tier Tribunal –

(a)

…

(b)

shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

Mr Jones submitted that that meant that when the FTT came to consider any of the appeals pending as at the date of the coming into force of the 2013 Act it would be obliged to disregard the effect of the Act, notwithstanding that it was expressed to be retrospective, because its enactment would constitute a “circumstance not obtaining … when the decision appealed against was made”. He said that that reading of sub-section (8) (b) was confirmed by the decision of this Court in Chief Adjudication Officer v McKiernon (8.7.93), to which we return below. He made it clear that, contrary to what the Tribunal (which treated it as a distinct “second issue”) appears to have understood, he did not rely on this as a point in its own right: rather, he submitted, it weighed in support of his construction of the 2013 Act, since Parliament, he submitted, could not have intended to apply a provision to claimants which would create a clash with the provisions of a different statute.

We do not believe that this argument has any force. The effect of section 12 (8) (b) cannot be to nullify subsequent, explicitly retrospective, legislation which would otherwise govern the decision of the FTT. McKiernon is not authority to the contrary. It was a decision about the effect of a different provision, section 104 (1) (b) of the Social Security Act 1975, which permitted the decision of a tribunal determining benefit entitlement to be reviewed “if there has been any relevant change of circumstances since the decision was given”. The respondent’s claim to benefit was initially held to be out of time, but the provision in question was then held to be ultra vires and an award of benefit was made by the tribunal. The provision imposing the time bar was shortly afterwards retrospectively validated by primary legislation, and the issue was whether that constituted a “change of circumstances” permitting the award to be reviewed. This Court held that it did. But that is a wholly different question, which sheds no light on how section 12 (8) (b) would apply in the circumstances with which we are concerned. Our analysis corresponds, we believe, to that of Charles J at paras. 161-168 of the Tribunal’s decision.

Finally, Mr Jones drew attention to the fact that section 3 of the 2013 Act provided that it should come into force on the day that it was passed (i.e. 26 March 2013). He said that many other statutes having retrospective effect achieved that effect by providing instead that the Act should be “deemed to have come into force” on some date earlier than its actual enactment. He referred us to one example where that formulation was used in respect of the entire statute, namely the British Nationality (Falkland Islands) Act 1983 (see section 5 (2)); and to two where it was used in relation to particular sections, namely the Finance Act 1980 (see section 118 (6) and the Channel Tunnel Rail Link 1996 (see section 46 (4)). This was said to reinforce the argument that the 2013 Act was not intended to be “completely retrospective”.

We see nothing whatever in this argument. The fact that provision is made for a statute to come into force on a particular date is in no way inconsistent with a provision that some or all of its effects should be retrospective. The fact that the draftsman has on some occasions used a different technique to achieve the same effect is neither here nor there. We suspect that there may have been particular reasons why that technique may have been thought more appropriate in the case of the examples given (particularly where only some particular provisions were retrospective), but the point does not merit exploration. Even if it is only a matter of different drafting styles, the difference is of no significance.

Accordingly we do not accept that any of Mr Jones’s arguments undermine what we believe to be the plain meaning and effect of the 2013 Act. In our view the decision of the majority of the Tribunal on this issue was wrong.

That conclusion requires us to consider the further issues which arise in the cases of the tribunal appellants. These are:

We should start by setting out the relevant provisions of the two statutes which are in play on this issue.

Section 12 of the TCEA prescribes the powers of the UT on an appeal from the FTT. Sub-section (1) provides that sub-section (2) applies if it finds “that the making of the decision concerned involved the making of an error on a point of law”. Sub-section (2) provides that in that case the UT:

“(a)

may (but need not) set aside the decision of the First-tier Tribunal, and

(b)

if it does, must either—

(i)

remit the case to the First-tier Tribunal with directions for its reconsideration, or

(ii)

re-make the decision.”

The relevant provisions of the HRA for our purposes are not only section 6 but also section 4. They read (so far as material):

“4.

Declaration of incompatibility

(1)

Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2)

If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

(3)-(5) …

(6)

A declaration under this section (“a declaration of incompatibility”)—

(a)

does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and

(b)

… .

…

6.

Acts of public authorities

(1)

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2)

Subsection (1) does not apply to an act if—

(a)

as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b)

in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3)

In this section “public authority” includes—

(a)

a court or tribunal, and

(b)

…

(4)-(6) …”.

Mr Jones submitted to the Tribunal (where the point was identified as “issue (4)”) that if, contrary to his primary case, it was bound by the 2013 Act to find that the decision of the FTT in Ms Jeffrey’s favour was wrong in law, it was nevertheless also bound by section 6 (1) of the HRA to exercise the discretion expressly conferred under section 12 (2) (a) of the TCEA by declining to set aside the FTT’s decision, because it could by that means avoid acting in a way that was incompatible with her Convention rights.

The Tribunal unanimously rejected that submission. It said, at para. 175:

“This argument is without merit. It has to fail on the very premise on which it arises. That premise is that the 2013 Act is to the binding effect on us that it does retrospectively overset the First-tier Tribunals’ decisions and that the Act’s breach of Article 6 of the Convention cannot be removed. A declaration of incompatibility “does not affect the validity, continuing operation or enforcement of” the 2013 Act (section 4(6)(a) of the HRA).  Consistent with this, section 6(2) of the HRA is to the effect that a court or tribunal will not act unlawfully by acting in a way which is incompatible with a Convention right but where it is bound to do so by virtue of primary legislation that cannot be read differently. The sum of all of this, in our judgment, is that for us to use the discretion in section 12(2)(a) of the 2007 Act to circumvent this would be to ignore the binding effect of both the 2013 Act and section 4(6)(a) of the HRA 1998.  If we did that then we would be using a judicial discretion to act unlawfully, which cannot be a proper exercise of that discretion.”

We agree with the Tribunal’s reasoning and conclusion. Mr Jones submitted that the reasoning was wrong because it overlooked the fact that the Tribunal had a discretion. But that does not meet the point, which is that in the light of sections 4 (6) (a) and 6 (2) of the HRA it would be wrong in principle to use that discretion for the purpose of undermining the effect of the 2013 Act.

We note in passing that it was conceded by Mr Richards on behalf of Mr Bevan that he could not take advantage of this argument because he was the appellant in the UT and accordingly the discretion conferred by section 12 (2) not to set aside the decision of the FTT would not avail him. It would be strange if the effectiveness of the 2013 Act depended on the happenstance of whether a particular claimant had succeeded or failed in the FTT.

Mr Bevan was sanctioned for non-participation in the Work Programme, which it will be recalled was one of the (in our terminology) “sub-schemes” introduced under the 2011 Regulations. It was indeed the principal such scheme. It is described in the 2013 Regulations (which were designed to supply the descriptions missing from the 2011 Regulations) as follows:

“The Work Programme is a scheme designed to assist a claimant at risk of becoming long-term unemployed in which, for a period of up to 2 years, the claimant is given such support as the provider of the Work Programme considers appropriate and reasonable in the claimant's circumstances, subject to minimum levels of support published by the provider, to assist the claimant to obtain and sustain employment which may include work search support, provision of skills training and work placements for the benefit of the community.”

The DWP issued “Operational Guidance for Referral to the Work Programme”. Under that Guidance all JSA claimants who were aged 18 or over and had been in receipt of JSA for more than a specified period (nine months for the under-25s, one year for the rest) were automatically referred to the Programme, subject to some limited exceptions with which we need not be concerned (though we should note, because the phrase appears below, that they included claimants with what were described as “early entry characteristics”). The Tribunal described referral to the Work Programme as in this sense mandatory. It also used the same term in relation to particular activities in which claimants who had been referred to the Programme might be required to participate; but the two senses should not be confused.

The Work Programme is almost entirely open-textured. In other words, the requirements are tailored to each claimant’s particular case. As appears from the description in the 2013 Regulations quoted above, it leaves it up to the provider to decide what should be required of claimants in order to give them “support … appropriate and reasonable in [their] circumstances”.

Although there was a good deal of evidence before the Tribunal about the relevant processes, and in particular about the information given to participants, the only procedural points about the Work Programme which we need mention are: (a) that prior to referral onto it claimants will have a “work programme referral interview” at the Job Centre, to check their eligibility and give them information about what is involved; and (b) that following referral they will have an initial interview with their allocated provider, to establish what forms of support may be required.

There was a fair amount of detail about Mr Bevan’s case in the evidence before the UT, most of it uncontentious. We were referred to some of that evidence in the course of oral submissions and to a good deal more of it in post-hearing written submissions from Ms Leventhal. Both parties sought to make points on the broad merits of his appeal, but we must focus on the very specific issues that we have to decide. The facts which are essential to those issues can be sufficiently summarised as follows (though we are prepared to indulge the parties by mentioning in footnotes one or two other points which they urged on us particularly strongly):

Mr Bevan’s case before the UT was put on various bases, but the only ground relevant for this appeal is an alleged breach of the prior information duty expounded by Lord Neuberger and Lord Toulson in Reilly 1: see para. 13 (3) above. We should summarise the relevant passages from their judgment.

They started, at para. 58, by identifying the information which the Secretary of State was obliged by the 2011 Regulations to give to JSA claimants who were required to participate in the ESE scheme. They then posed, at para. 59, the question “whether fairness to a claimant requires any (and, if so, what) other information about a scheme in which he or she may be required to participate should be made publicly available”. At para. 63, they quoted a passage from the judgment of Lord Dyson in R (WL Congo) v Secretary of State for the Home Department[2011] UKSC 12, [2012] 1 AC 245, where he said, in relation to the duty of the Home Secretary to publicise details of an immigration policy:

“What must … be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made.”

At para. 64 they said that the same principle should apply to information relating to participation in schemes under the 2011 Regulations. They continued, at para. 65:

“Fairness therefore requires that a claimant should have access to such information about the scheme as he or she may need in order to make informed and meaningful representations to the decision-maker before a decision is made. Such claimants are likely to vary considerably in their levels of education and ability to express themselves in an interview at a Jobcentre at a time when they may be under considerable stress. The principle does not depend on the categorisation of the Secretary of State's decision to introduce a particular scheme under statutory powers as a policy: it arises as a matter of fairness from the Secretary of State's proposal to invoke a statutory power in a way which will or may involve a requirement to perform work and which may have serious consequences on a claimant's ability to meet his or her living needs.”

After discussing the evidence about what information was made available to JSA claimants about the sbwa and CAP sub-schemes (they were not concerned with the Work Programme), they reiterated the existence of the duty identified at para. 65 and continued:

“74.

However, it would be wrong to be prescriptive as to how that information should be given. It is a proper matter for a court to determine whether, and if so what, information is required to be communicated by the government, and whether a particular means of communication satisfied that requirement. However, it should not, absent unusual circumstances, be for the court to prescribe a specific means of communication. In this case, it would involve the court going too far if it was to rule that descriptions of the schemes must, as a matter of law, be published to the world at large. The desirability of publication in the manner described in para 65 above is obvious, but practical desirability does not equate to legal requirement. Further, as this case illustrates, Mr Wilson was none the wiser for the fact that the CAP Provider Guidance was published on the department's website.

75.

A failure to see that a claimant was adequately informed before service of a notice under regulation 4 would be likely to, but would not necessarily, vitiate the service of the notice. That would depend on whether the failure was material. Public law is flexible in dealing with the effects of procedural failures. Ultimately the issue must be determined by reference to the justice of the particular case. If the effect of the lack of information given to a claimant materially affected him or her by removing the opportunity of making representations which could have led to a different outcome, it would normally be unjust to allow the notice to stand. If it was immaterial on the facts, justice would not require the notice to be set aside.

76.

The respondents seek a declaration that the Secretary of State was lawfully required to publish and make available to jobseekers the terms of schemes established under section 17A. For the reasons given, that is to state the Secretary of State's duty too broadly and prescriptively. We have stated the nature of the Secretary of State's duty in para 73 above and do not consider it necessary to grant relief by way of a formal declaration to that effect. On the facts of the present case, there was a failure to provide either Ms Reilly or Mr Wilson with adequate, accurate information about the schemes in relation to themselves before they were informed that their participation was required. This would have been a ground for treating the notice served on Mr Wilson as ineffective if it had otherwise complied with the requirements of the statute, but we have already held that it was ineffective and do not consider that any further relief is required.”

It is unnecessary that we should attempt any gloss or summary of those passages, which speak for themselves. In so far as particular points need to be referred to we will do so in the course of our discussion of the issues. But we would sound a note of caution about the label “prior information duty” (or “prior information requirement”, as the Tribunal described it). Although it is necessary by way of shorthand, it risks presenting what is in truth a simple proposition about administrative fairness as a rigid rule of law. Lord Neuberger and Lord Toulson were at pains to emphasise that what fairness might require in a particular situation would depend on all the circumstances and that the duty had to be applied flexibly.

Mr Bevan’s case that there had been a breach of that duty was initially based on three pieces of information which he said that he should have been given; but we are now only concerned with one, which appears from a document called The Work Programme Provider Guidance, issued by the DWP to providers. Paragraph 24 in Chapter 3a of the Guidance says (so far as relevant):

“When deciding whether activity is reasonable in a participant’s circumstances you need to consider:

          The claimant’s personal circumstances such as any health condition they may have, their ability to use transportation, their skills/education, any childcare responsibilities the claimant may have etc.  These examples are not exhaustive [emphasis supplied].” 

Mr Bevan’s case was that if he had been aware that Triage was required by the Guidance to take account of his “ability to use transportation” to get to the appointment in Middlesbrough he could have used that to reinforce his point that he had no money for the fare.

The Tribunal’s reasons for rejecting Mr Bevan’s argument on the prior information duty appear at paras. 253-254 of its judgment as follows:

“253.

As we have said, we have considerable doubts about whether the ‘prior information requirement’ extends to this stage.  Moreover, we doubt whether the phrase ‘ability to use transportation’ in this context was aimed at the finances to do so. It seems much more likely to be concerned with whether a health condition may limit the claimant’s ability to use transport.

254.

Be that as it may, even if we assume all of these points in [Mr Bevan’s] favour, his fundamental problem is that Triage’s appointment letter of 8 May 2012 set out that if [Mr Bevan] could not attend on 17 May 2012 he should contact them as soon as possible and that they would refund his travel costs if he retained proof of purchase. Critically, on his own case on receipt of this letter and before the appointment [Mr Bevan] contacted Triage and told them he couldn’t attend unless his fares were paid in advance. [Mr Bevan] therefore, as far as we can see, made representations as to his ‘ability to use transport’ in advance to Triage, and they were taken into account and rejected (in that the appointment was not changed and fares were not provided). We simply cannot see on what basis knowing about the Work Programme Provider Guidance would have made any difference to the representations [Mr Bevan] in fact made or their impact.  The fairness considerations underpinning the ‘prior information requirement’ in [Reilly 1] dictate that the representations at least have the prospect of leading to a different decision, which is not the case here.”

It will be seen that, despite the reservations recorded in para. 253 about other points, the actual decision reached in para. 254 was based on reasoning that was largely confined to the facts of Mr Bevan’s own case. However, elsewhere in the judgment the Tribunal purported to give more general guidance. At paras. 221-224 it said:

“221.

Before turning to the different arguments which arise in respect of [Mr Green’s and Mr Bevan’s] cases, we need to address referral onto the ‘Work Programme’ and the application, if any, of what the Supreme Court said about prior information to that issue.

222.

The need for ‘prior information’ in [Reilly 1]arose as an aspect of fairness but only because, it seems to us, such information might have enabled meaningful representations to be made: that is, representations that might have made a difference to the decision (to refer onto the scheme). However, given the mandatory nature of selection for the Work Programme, we cannot see the scope for any such meaningful representations being made, however much (or little) information is provided to the JSA claimant. We have set out above the evidence as to the Work Programme. It was a scheme which was not before the Supreme Court in [Reilly 1].  On the basis of the evidence put before us, and despite the lack of any contested argument on this issue, we find it very difficult to identify where the need for prior information can have any purchase on the Work Programme for JSA recipients, save perhaps for those with ‘early entry characteristics’.

223.

We note, first, that in neither of the appeals before us where the Work Programme applied did either of the very ably represented claimants seek to argue that their referral and participation once referred was other than mandatory.  Moreover, no argument was made on behalf of [Ms Jeffrey] as to any ‘meaningful representations’ she could have made either prior to referral or once she had been referred and was on the Work Programme. Given, as we see it, the compulsory nature of selection for (and then participation on) the Work Programme for all JSA claimants save for those with ‘early entry characteristics’, we can see why no such argument was made.

224.

Therefore, we consider we can say by way of general guidance that given the mandatory nature of the Work Programme the starting point in any appeal in which the ‘prior information point’ arises or is taken is that it should be for the claimant to show the basis on which he or she could have made ‘meaningful representations’: that is representations which could materially have affected the decision to refer them onto the Work Programme. The onus would also be on the claimant to establish that such representations could also apply to steps they were required to take once referred. In other words, we are satisfied from the evidence put before us that ordinarily … the decision to refer will not be capable of being changed by representations made by the claimant regardless of how much (or little) information they have been provided with in advance.”

That passage was concerned with the scope for the prior information duty in the context of referral onto the Work Programme. At para. 249 the Tribunal addressed the question of its scope once referral had occurred. It said:

“The argument advanced on behalf of [Mr Bevan] under this head had nothing to do with prior information but was concerned with an alleged lack of information provided to him once on the Work Programme.  That gives rise to two immediate difficulties. First, the Supreme Court said nothing about this in[Reilly 1]. Second, the stages once referred onto the Work Programme are all mandatory and so, save for consideration of representations at the stage of ‘good cause’ arguments under regulation 7 of the 2011 Regulations, we find it difficult to see the space for ‘meaningful representations’ at the stage prior to ‘decisions’ made once referred.  (Indeed, the very word ‘decision’ may fit oddly with the step of the provider telling the claimant to attend an appointment at a given time, date and place: ‘instruction’ may be more apt.)”

(Those observations are also picked up in the first sentence of para. 253.)

On the face of it the only issue for us to determine is whether the Tribunal’s reasoning in para. 254 of its judgment is wrong in law. But Mr de la Mare and Mr Richards focused on two other points. The first is a different way of putting the case on breach of the prior information duty, based on what is said to be an undisclosed policy permitting payment of travel expenses in advance in exceptional circumstances. The other is a challenge to the Tribunal’s general observations in paras. 221-224 and 249 of its judgment. We will deal first with the Tribunal’s actual reasoning and then turn to the other points.

In our view the reasoning in para. 254 of the Tribunal’s judgment cannot be faulted in law. It is important to appreciate that the case was not put before the UT (or indeed before us) on the basis that Mr Bevan had good cause for his non-attendance – apparently because that was not open to him on the rules – but squarely on the basis that the Secretary of State was in breach of the prior information duty by not informing him of the terms of para. 24 of the Guidance. As to that, the Tribunal found that if he had been so informed it would have made no difference either to what he would have said to Triage when he phoned them or to their response. If that finding is correct, there was nothing unfair in para. 24 not being drawn to his attention in the first place; and in any event any possible unfairness would have been immaterial. The Tribunal’s finding is one of fact, with which we could not interfere unless it was unsupported by any evidence or was perverse. Neither is in our view the case. One only has to read para. 24 to see that the bland generalities that it contains would not in the real world have advanced Mr Bevan’s argument or informed Triage’s response – quite apart from the question, on which we share the Tribunal’s doubts, whether the reference to “ability to use transportation” had anything to do with ability to pay a fare.

Indeed we have to say that there is something unreal about the argument as it appears to have been presented to the UT. Mr Bevan’s fundamental complaint is that it was unreasonable of Triage to insist on his attending an appointment to which he could not afford (assuming this to be the case) to travel and thus also unreasonable of the DWP to sanction him for failing to attend in such circumstances. But that is a “good cause” argument and has nothing to do with whether he had access to a particular piece of internal guidance.

Mr de la Mare drew our attention to a passage in Mr Bevan’s witness statement before the UT (at para. 18) in which he said that about three months later in similar circumstances an adviser at the Job Centre gave him what he described as a free bus ticket to enable him to attend another appointment with Triage. He submitted on that basis that there was evidently a policy in place which allowed tickets (or, perhaps more likely, vouchers of some kind) to be given to JSA claimants who could not afford to travel to appointments; and that it was a breach of the prior information duty for Mr Bevan not to have been informed of that policy in relation to the May appointment.

In her oral submissions Ms Leventhal objected that no such case had been made in the UT. Although Mr Bevan’s witness statement was before the Tribunal, no reliance had been placed on para. 18. That appears to be confirmed by the terms of Mr Richards’ skeleton argument in the UT. Nor, we should say, is it referred to in the Grounds of Appeal or in Mr Richards’ skeleton argument (which refers specifically only to the Guidance).

However, in her post-hearing written submissions Ms Leventhal did address the substance of this point with some particularity. She said that although it was DWP policy that in exceptional circumstances an advance to cover travel expenses could be given by a Jobcentre to JSA claimants from a “Flexible Support Fund”, that policy did not apply in the case of claimants on the Work Programme. This was because, under the arrangements between the DWP and providers, arrangements for how the travel expenses of claimants on the programme should be paid were the responsibility of the latter: it was a matter for them whether they were prepared to advance travel expenses in particular cases. She said that the standard instructions for advisers conducting a referral interview show that Mr Bevan would have been told the substance of this. As for an actual “ticket”, or voucher, Job Centres could issue a “Jobcentre Plus Travel Discount Card”, but these only gave a discount and were not available to claimants on the Work Programme. If Mr Bevan was nevertheless, on the occasion referred to in his witness statement, assisted by a Job Centre in the way alleged that would have been contrary to operational guidance.

Mr de la Mare and Mr Richards lodged a short note in response to Ms Leventhal’s written submissions. This proceeds on the basis that those submissions showed that there was a fund out of which an advance could have been made to Mr Bevan, albeit limited by what they called “a DWP-imposed policy”; and they contended that it was a breach of the prior information duty that Mr Bevan was not informed of that requirement. This is of course a further variant of how his case is put.

We have no doubt that it would be wrong for us to find a breach of the prior information duty on the basis of a case made for the first time in this Court, and indeed only in post-hearing submissions. The problem is not just formal. We are simply not in a position to make findings about what the DWP’s policy was, and to what extent it either was or should have been communicated to Mr Bevan, on the basis of contested interpretations of information which is not in the form of evidence and which there has been no opportunity to explore. We are, however, prepared to say, in case this is of value in other cases, that if it is indeed the case that the DWP and/or providers have a policy about advancing travel costs to JSA claimants on the Work Programme for travelling to appointments or other activities required of them, claimants who may need to avail themselves of that policy should as a matter of fairness be told about it.

Mr de la Mare contended that the more general guidance given by the Tribunal at paras. 221-224 and 249 of its judgment was wrong in law; and he submitted that, since these were test proceedings, it ought to be corrected even if it did not contribute to the actual decision in Mr Bevan’s case. Mr Eadie and Ms Leventhal did not seriously oppose this submission, and we had a full response from Ms Leventhal to all Mr de la Mare’s submissions. In the circumstances we believe that we ought to consider them.

In the end there turned out to be less between the parties than appeared at first sight, and we can deal with Mr de la Mare’s criticisms quite briefly. We distinguish between what the Tribunal says at paras. 221-224, which are concerned with the initial decision to refer a claimant to the Work Programme, and what it says at para. 249, which is concerned with decisions made once they have been referred.

As to paras. 221-224, Mr de la Mare submitted that the effect of the Tribunal’s guidance was that there was no scope at all for a claimant to make representations, in connection with the decision to refer a claimant to the Work Programme, since referral was “mandatory”; and thus also no scope for the prior information duty to operate. He submitted that that guidance was wrong. The criteria for referral to the Work Programme were only a policy, and the Secretary of State could not fetter his discretion as to whether to apply the policy in a particular case. He described the Tribunal as holding that the Supreme Court in Reilly 1 had “erred”.

We do not believe that that is a fair reading of what the Tribunal said; and if it is properly understood there does not seem to be any dispute of principle between the parties. The Tribunal was not laying down any absolute rule. The Secretary of State’s policy, embodied in the guidance, is that referral to the Programme should be automatic (ignoring the specified exceptions) if the criteria are met. All that the Tribunal was doing was to point out that, that being so, any representations would have to address the question why he should depart from the policy; and that it was not easy to see what such representations might be. That seems to us an obvious common sense observation, particularly since referral to the Work Programme does not as such involve any specific obligation; see para. 151 above. But it does not mean that there could never be such cases, and indeed para. 224 is expressly addressed to that possibility. The Tribunal did not depart from anything that the Supreme Court said in Reilly 1. It was simply considering its application in the particular circumstances of referral to the Work Programme (Footnote: ¹⁴).

Mr de la Mare also submitted that in para. 224 the Tribunal wrongly put the burden on a claimant to show that representations could have made a difference to the decision to refer. He referred to the established principle that where a public body has acted unfairly the burden is on it to show that the unfairness was immaterial (see, e.g., R (Smith) v North Eastern Derbyshire Primary Care Trust [2006] EWCA Civ 1291, [2006] 1 WLR 3315).

We do not think that this is the correct analysis. The question of materiality would only arise if there had been a breach in the first place – that is, if the DWP has failed to give a claimant the information that they need in order to make meaningful representations about why they should not be referred to the Work Programme. It is true that there is an overlap between the question of breach and the question of materiality, because in deciding what information should be given it is necessary to consider what information is material, in the sense that it might reasonably be capable of affecting the decision to refer. (Indeed a very strict logician might argue that the overlap was total, but the established approach is to ask the two questions separately.) The Tribunal was clearly concerned with the prior question, namely breach. Its point was that it was hard to see what material information could be given prior to referral that had not already been given. It is important to appreciate that there was full evidence before the Tribunal about what information JSA claimants were given at the referral interview: this is summarised very fully at para. 53 of its judgment, making the point that the relevant guidance requires advisers to give claimants the opportunity to raise any questions or concerns. It was never part of the tribunal appellants’ case that that information, taken generally, was inadequate. Against that background we see nothing wrong in expecting a claimant who alleges that there has been a breach of the prior information duty to specify what information they say should have been given but were not.

Having said all that, we are bound to say that we find it hard to see that the application of the prior information duty at the moment of referral to the Work Programme is likely to be an important issue in the real world. Given its open-textured nature, JSA claimants are unlikely to object to referral as such. Any problems are likely to arise only when, following referral, particular requirements are made of claimants which they believe are unreasonable or inappropriate and which may lead to sanctions if they fail to comply. It is at that stage that they may need to be able to make representations and will need sufficient information to be able to do so meaningfully. That is the subject of Mr de la Mare’s criticism of para. 249 of the Tribunal’s judgment, to which we now turn.

The Tribunal appears to say at para. 249 that there is little or no scope for the operation of the prior information duty once a claimant has been referred to the Work Programme, because compliance with requirements notified to claimants as part of the Programme is mandatory, in the sense that they are liable to sanctions if they do not comply.

Mr de la Mare submitted that that is wrong. If it is indeed what the Tribunal meant, we agree. So also does Ms Leventhal, who explicitly accepted in her written submissions that “the requirements of fairness continue to apply after referral” (Footnote: ¹⁵). In principle, JSA claimants who are required, or who it is proposed should be required, under the Work Programme to participate in a particular activity should have sufficient information to enable them to make meaningful representations about that requirement – for example, that the activity in question is unsuitable for them or that there are practical obstacles to their participation. The fact that that participation is mandatory if the requirement is made is beside the point: the whole purpose of the representations, and thus of the claimant having the relevant information to be able to make them, is so that the provider may be persuaded that the requirement should not be made, or should be withdrawn or modified.

However we should emphasise that the foregoing is concerned with the position in principle. It is quite another matter whether the Work Programme as operated in fact fails to give claimants such information. The Secretary of State’s evidence before the Tribunal was that the relevant guidance in fact provides for them to be very fully informed. We have already referred to the Tribunal’s findings about the information given at the referral interview. But it was also the evidence that at the initial interview with the provider post-referral, which is designed to find out how the claimant can be best supported, and in the subsequent inter-actions between claimant and provider claimants are supposed to be given both information and the opportunity to make representations. Whether in any particular case there has nevertheless been a failure to give information necessary to enable the claimant to make meaningful representations will have to be judged on the facts of the particular case. Tribunals will no doubt bear in mind the point made in Reilly 1 that it is important not to be prescriptive about how any necessary information is provided: see para. 74 of the judgment of Lord Neuberger and Lord Toulson.

We accordingly allow the Secretary of State’s appeal in all three cases. In the cases of Ms Jeffrey and Mr Bevan that is the consequence of our disapproving the Tribunal’s reasoning on the effect of the 2013 Act, which was the actual basis of its decision, and rejecting the alternative grounds on which they each sought to rely. In the case of Mr Green, who has not sought to raise any other such ground, our decision on the effect of the 2013 Act is determinative by itself. Where that leaves the decisions of the FTT is different between the cases. The decision of the FTT in Mr Bevan’s case stands. But in the cases of Ms Jeffrey and Mr Green, the FTT allowed their appeals against the sanction decisions on the basis of the decision of Foskett J in Reilly 1, and those decisions also must therefore now be reversed. The result is that the sanction decisions in all three cases stand.

After so lengthy a judgment we should summarise our conclusions in both appeals as regards the principal issue, and we will try to do so in language that is accessible to non-lawyers. The decision of the Court of Appeal in Reilly 1 (whose reasoning was later largely approved by the Supreme Court) meant that the non-payment of JSA to claimants who had failed to participate in certain “back-to-work schemes” – described as the imposition of “sanctions” – was not legally valid. Parliament enacted the 2013 Act in order to retrospectively validate those sanctions. We have held that it was successful in doing so as a matter of English law. But we have also held (upholding the decision of the High Court) that in the cases of those claimants who had already appealed against their sanctions the Act was incompatible with their rights under the European Convention of Human Rights. Under the Human Rights Act that “declaration of incompatibility” does not mean that the 2013 Act ceases to be effective as regards those claimants: it is up to the Government, subject to any further appeal, to decide what action to take in response.