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United Kingdom Supreme Court
You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Reilly & Anor, R (on the application of) v Secretary of State for Work and Pensions  UKSC 68 (30 October 2013)
Cite as:  AACR 9,  3 WLR 1276,  1 AC 453,  1 All ER 505,  WLR(D) 413,  UKSC 68,  AC 453
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 UKSC 68
On appeal from:  EWCA Civ 95
R (on the application of Reilly and another) (Respondents) v Secretary of State for Work and Pensions (Appellant)
Lord Neuberger, President
JUDGMENT GIVEN ON
30 October 2013
Heard on 29 July 2013
James Eadie QC
(Instructed by Treasury Solicitors)
Nathalie Lieven QC
(Instructed by Public Interest Lawyers)
LORD NEUBERGER AND LORD TOULSON (with whom Lord Mance, Lord Clarke and Lord Sumption agree)
The relevant statutory and regulatory provisions in 2011
"(1) An allowance, to be known as a jobseeker's allowance, shall be payable in accordance with the provisions of this Act.
(2) Subject to the provisions of this Act, a claimant is entitled to a jobseeker's allowance if he-
(a) is available for employment;
(b) has entered into a jobseeker's agreement which remains in force;
(c) is actively seeking employment; .
(e) is not engaged in remunerative work .".
"(l) Regulations may make provision for or in connection with imposing on claimants in prescribed circumstances a requirement to participate in schemes of any prescribed description that are designed to assist them to obtain employment.
(2) Regulations under this section may, in particular, require participants to undertake work, or work-related activity, during any prescribed period with a view to improving their prospects of obtaining employment.
(5) Regulations under this section may, in particular, make provision -
(a) for notifying participants of the requirement to participate in a scheme within subsection (l);
(b) for securing that participants are not required to meet the jobseeking conditions or are not required to meet such of those conditions as are specified in the regulations;
(d) for securing that the appropriate consequence follows if a participant has failed to comply with the regulations and it is not shown, within a prescribed period , that the participant had good cause for the failure;
(6) In the case of a jobseeker's allowance , the appropriate consequence for the purposes of subsection (5)(d) is that the allowance is not payable for such period (of at least one week but not more than 26 weeks) as may be prescribed."
"(a) has, without good cause, refused or failed to carry out any jobseeker's direction which was reasonable, having regard to his circumstances;
(b) has, without good cause
(i) neglected to avail himself of a reasonable opportunity of a place on a training scheme or employment programme;
(ii) after a place on such a scheme or programme has been notified to him by an employment officer as vacant or about to become vacant, refused or failed to apply for it or to accept it when offered to him;
(iii) given up a place on such a scheme or programme; or
(iv) failed to attend such a scheme or programme on which he has been given a place..."
"'The Employment, Skills and Enterprise Scheme' means a scheme within section 17A (schemes for assisting persons to obtain employment: 'work for your benefit' schemes etc) of the  Act known by that name and provided pursuant to arrangements made by the Secretary of State that is designed to assist claimants to obtain employment or self-employment, and which may include for any individual work-related activity (including work experience or job search)."
"The Secretary of State may select a claimant for participation in the Scheme."
"(1) Subject to regulation 5, a claimant ('C') selected under regulation 3 is required to participate in the Scheme where the Secretary of State gives C a notice in writing complying with paragraph (2).
(2) The notice must specify -
(a) that C is required to participate in the Scheme;
(b) the day on which C's participation will start;
(c) details of what C is required to do by way of participation in the Scheme;
(d) that the requirement to participate in the Scheme will
continue until C is given notice by the Secretary of State that C's participation is no longer required ;
(e) information about the consequences of failing to participate in the Scheme ."
"A claimant who fails to comply with any requirement notified under regulation 4 is to be regarded as having failed to participate in the Scheme."
Regulation 7 provided an opportunity for a claimant who fails to participate in the Scheme to show good cause for that failure.
"(1) Where the Secretary of State determines that a claimant ('C') has failed to participate in the Scheme, and C has not shown good cause for the failure in accordance with regulation 7, the appropriate consequence for the purpose of section 17A is as follows.
(2) In the case of a jobseeker's allowance . the appropriate consequence is that C's allowance is not payable for the period specified in paragraphs (4) to (7) ('the specified period').
(4) The period is 2 weeks in a case which does not fall within paragraph (6) .
(6) [T]he period is 26 weeks where -
(a) on two or more previous occasions the Secretary of State determined that C's jobseeker's allowance was not payable or was payable at a lower rate because C failed without good cause to participate in the Scheme, and
(b) a subsequent determination is made no more than 12 months after the date on which C's jobseeker's allowance was not payable or was payable at a lower rate following the most recent previous determination. "
The facts: general
The facts relating to Miss Reilly and Mr Wilson
"At your interview today, your adviser explained that you had to take part in the [CAP] from 16/11/11. Ingeus will be in touch with you shortly to arrange this. The [CAP] will involve doing up to six months of near fulltime work experience, with some additional weekly job search support The [CAP] is an employment programme established in law under the [2011 Regulations]. To keep getting Jobseeker's Allowance, you will need to take part in the [CAP] until you are told otherwise or your award of jobseeker's allowance comes to an end; and complete any activities that Ingeus asks you to do.
If you don't take part in the [CAP], under the [2011 Regulations] your jobseeker's allowance may be stopped for up to 26 weeks. You could also lose your National Insurance credits."
i) That the 2011 Regulations are ultra vires section 17A because they fail to prescribe (i) a description of the sbwa scheme or the PAC, (ii) the circumstances in which a person can be required to participate in those schemes, or (iii) the period during which participants are required to undertake work on those schemes;
ii) That the requirement that Miss Reilly and Mr Wilson participate in a scheme was unlawful, because the notice provisions contained in regulation 4 were not complied with;
iii) That it is unlawful for the Government to enforce the 2011 Regulations in the absence of a published policy as to the nature of the relevant scheme and the circumstances in which individuals could be required to undertake unpaid work;
iv) That Miss Reilly had been subjected to forced or compulsory labour contrary to article 4 of the European Convention on Human Rights ("the Convention") and/or that the Regulations were contrary to article 4.
a) The 2011 Regulations are ultra vires section 17A, as they contain insufficient details about the sbwa scheme or the CAP, and should be quashed (although the other two grounds of attack described in para 27(i) above were rejected);
b) In any event the requirements of regulation 4 were not complied with in relation to Miss Reilly or Mr Wilson;
c) Subject to (a), the Secretary of State was not obliged to publish his policy any more extensively than he had done in order to enforce the schemes; and
d) The enforcement of the schemes did not involve an infringement of Miss Reilly's rights under article 4 of the Convention ("article 4").
The 2013 Regulations and the 2013 Act
"(4) Full-time Training Flexibility is a scheme comprising training of 16 to 30 hours per week, for any claimant who has been receiving jobseeker's allowance for a continuous period of not less than 26 weeks ending on the first required entry date to the scheme.
(6) The sector-based work academy is a scheme which provides, for a period of up to 6 weeks, training to enable a claimant to gain the skills needed in the work place and a work experience placement for a period to be agreed with the claimant, and either a job interview with an employer or support to help participants through an employer's application process.
(8) 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 issues before this Court
The first issue: Were the 2011 Regulations ultra vires?
a) section 17A(1) authorised the making of Regulations which "impos[ed] on claimants in prescribed circumstances a requirement to participate in schemes of any prescribed description that are designed to assist them to obtain employment", and, by section 35, "prescribed" means "specified in or determined in accordance with regulations"; and
b) regulation 2 identified the Employment, Skills and Enterprise Scheme, which "means a scheme within section 17A known by that name and provided pursuant to arrangements made by the Secretary of State that is designed to assist claimants to obtain employment or self-employment, and which may include for any individual work-related activity (including work experience or job search)."
"75. Where Parliament in a statute has required that something be prescribed in delegated legislation, it envisages, and I think requires, that the delegated legislation adds something to what is contained in the primary legislation. There is otherwise no point in the requirement that the matter in question be prescribed in delegated legislation. However, the description of the Employment, Skills and Enterprise Scheme in the 2011 Regulations adds nothing to the description of such schemes in the Act. ... In effect, the Secretary of State contends that any scheme he creates is a scheme within the meaning of section 17A notwithstanding that it is not described in any regulations made under the Act. Furthermore, it is not possible to identify any provision of the Regulations that can be said to satisfy the requirement that the description be 'determined in accordance with' the Regulations.
76. 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. "
The second issue: Was the notice served on Mr Wilson valid?
The third issue: The Secretary of State's duty to publish information about the schemes
i) Section 17A empowers the Secretary of State, by regulations, to require a claimant for jobseeker's allowance to participate in a scheme of any prescribed description which is designed to assist the claimant to obtain employment, and the required participation may include an obligation to undertake (unpaid) work or work-related activity.
ii) Under the 2011 Regulations, the claimant is to be given a written notice which must specify certain particulars - ie the date when he is required to start, details of what he is required to do, information about when the requirement will end and information about the consequences of failing to participate.
"These considerations lead me to conclude that it is not open to the Home Secretary to decide to refrain from making known his hard cases policy. On principle a policy such as that should be made known to those who may need to avail themselves of it. Leaving aside contexts such as national security, it is in general inconsistent with the constitutional imperative that statute law be made known for the government to withhold information about its policy relating to the exercise of a power conferred by statute."
"The precise extent of how much detail of a policy is required to be disclosed was the subject of some debate before us. It is not practicable to attempt an exhaustive definition. It is common ground that there is no obligation to publish drafts when a policy is evolving and that there might be compelling reasons not to publish some policies, for example, where national security issues are in play. Nor is it necessary to publish details which are irrelevant to the substance of decisions made pursuant to the policy. What must, however, 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." (Emphasis added.)
"Give the claimant full details of the sbwa. This should include as much information as possible about the course, the employer, the role etc. The customer must be given full information about the sbwa to ensure they can make an informed decision about taking part, especially as there are mandatory elements once the claimant has agreed to participate."
The fourth issue: Article 4 of the European Convention on Human Rights
"1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this article the term 'forced or compulsory labour' shall not include:
(a) any work required to be done in the ordinary course of detention imposed according to the provisions of article 5 of this Convention or during conditional release from such detention;
(b) any service of a military character or, in the case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
(d) any work or service which forms part of normal civic obligations."