R (Reilly) v Secretary of State for Work and Pensions (No 2) [2016] EWCA Civ 413
Facts
The earlier Reilly litigation exposed defects in the regulations governing certain work programmes and in the notices given to benefit claimants. Parliament responded in 2013 by retrospectively validating the regulatory arrangements and sanctions. Caitlin Reilly and Daniel Hewstone then challenged that legislation. Hewstone had already appealed against four sanctions, so the new Act affected arguments available in proceedings that were under way. They sought a declaration of incompatibility, relying on fair-trial and property rights. The High Court accepted the Article 6 argument but rejected the property claim. The Court of Appeal considered the Secretary of State's appeal alongside related benefit appeals concerning the Act's effect on pending challenges.
Legal Issue
Whether retrospectively validating work-scheme sanctions unlawfully interfered with pending benefit appeals in breach of Article 6, and what remedy the domestic court could grant.
Held
The Court of Appeal upheld the conclusion that the retrospective legislation was incompatible with Article 6 in its effect on the relevant pending benefit appeals. Removing a conclusive ground of challenge from those proceedings interfered with their fair determination in the government's favour. Although legislation may operate retrospectively, interference of this kind requires a sufficiently strong public-interest justification. The reasons advanced did not justify the interference found here. The remedy was a declaration of incompatibility, rather than invalidation of the Act. The decision was therefore about the Convention protection of existing proceedings and the justification for legislative intervention, not a general common-law prohibition on Parliament changing past legal consequences.
⭐ Legal Principle
Legislation that determines pending civil proceedings in the state’s favour may breach Article 6 unless justified by compelling public-interest reasons. A declaration of incompatibility records that breach without invalidating the Act of Parliament.
Significance
Reilly (No 2) separates Parliament's domestic power to pass retrospective legislation from the Convention consequences of intervening in live litigation. The declaration of incompatibility did not strike down the 2013 Act. The case belongs alongside Reilly (No 1), but the questions differ: the earlier case concerned defective regulations and notices, while this appeal concerned retrospective removal of claimants' legal grounds. The particular protection arose from pending proceedings, so it should not be generalised into a prohibition on all retrospective benefits legislation.
Common exam questions about this case
What changed after the original Reilly litigation?
Parliament enacted legislation giving retrospective legal effect to the work-scheme arrangements and associated sanctions. This removed a ground on which some benefit claimants had pending appeals. Reilly (No 2) asked whether that intervention was compatible with Article 6, rather than simply repeating the earlier challenge to the regulations.
Why did the retrospective Act engage Article 6?
The state was a party with a financial interest in the pending disputes, and the legislation removed what would otherwise have been a decisive argument for the claimants. The Court of Appeal found that this interference lacked adequate justification. The concern was legislative influence over live adjudication, not retrospectivity in the abstract.
Did the declaration make the 2013 Act invalid?
No. A declaration under section 4 of the Human Rights Act identifies incompatibility but does not invalidate primary legislation or stop its operation by itself. The domestic constitutional consequence must be distinguished from the finding under Article 6. Legislative correction is a separate stage from the court’s declaration.