The Jobseekers (Back to Work Schemes) Act 2013 (Remedial) Order 2019 concerns the effect of the Jobseekers (Back to Work Schemes) Act 2013. It makes changes to the 2013 Act in response to decisions made in the courts on the act’s compatibility with the European Convention on Human Rights (ECHR).

The Jobseekers (Back to Work Schemes) Act 2013 (Remedial) Order 2019 is due to be debated in Grand Committee on 3 September 2020.

What is a remedial order?

Remedial orders are a type of statutory instrument. Under the Human Rights Act 1998, courts can declare acts of Parliament incompatible with the ECHR. The Government can use remedial orders to amend acts to remove the incompatibility.

What parliamentary procedure do remedial orders follow?

A minister formally lays a proposal for a draft remedial order. Parliament has 60 days to consider the proposal. The Joint Committee on Human Rights also scrutinises the proposal. At the end of the 60-day period, the minister can lay a draft remedial order. The minister has to report details of any representations made during the 60 days and any changes made to the proposal.

Another 60-day period follows the laying of the draft remedial order, in which the Joint Committee has to report on whether the draft order should be approved.

Background to the Jobseekers (Back to Work Schemes) Act 2013 (Remedial) Order 2019

First court case

Before February 2013, some jobseeker’s allowance (JSA) claimants were referred to certain ‘back to work’ employment schemes. Some claimants that did not attend the scheme lost their benefits under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (the ESE Regulations).

The ESE Regulations were made under the Jobseekers Act 1995. This act provided that the regulations had to contain a description of the employment scheme, beyond the name. The ESE Regulations provided that JSA claimants were required to participate in the scheme only if they were given written notice setting out details of what the claimant was required to do by way of participation in the scheme and the consequences of failing to do so.

The Government’s ‘back to work’ schemes were challenged in the courts by Ms Reilly, a graduate who had to undertake an unpaid work placement at Poundland, and Mr Wilson, a HGV driver who had to undertake unpaid work collecting and renovating furniture in order to continue receiving benefits.

The claimants won their case. The Court of Appeal held that (a) the ESE Regulations were beyond the scope (ultra vires) of the enabling power in the Jobseekers Act 1995 because they failed to provide a description of the scheme, and (b) that the notices sent to claimants did not comply with the requirements set out in the ESE Regulations and were therefore unlawful. This ruling meant that anyone denied benefits under these regulations could potentially claim these benefits back from the Government.

To avoid having to repay the sanctions, the Government enacted emergency retrospective legislation in the form of the Jobseekers (Back to Work Schemes) Act 2013.

Second court case

The Jobseekers (Back to Work Schemes) Act 2013 came into force on 26 March 2013. The Government’s intention was to ensure that the ESE Regulations, and the notices served under those regulations, were effective in respect of all claimants who had already had a sanction imposed on them under the quashed ESE Regulations. The effect of the 2013 Act was that any decision to sanction a claimant could not be challenged on the grounds that the ESE Regulations were invalid or the notices given under them inadequate, in spite of the Court’s judgment.

The Government also used the 2013 Act to retrospectively validate the Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011 (the MWA Regulations). Although the courts had not held the MWA Regulations to be invalid, as they had done with the ESE Regulations, the two sets of regulations contained the same defective notice provisions. The 2013 Act therefore sought to retrospectively validate the MWA Regulations in order to pre-empt any legal action.

However, Ms Reilly, together with Mr Hewstone, another JSA claimant, launched another legal challenge, this time against the 2013 Act. The claimants again won the case, and the High Court declared that the 2013 Act was incompatible with Article 6(1) of the ECHR, the right to a fair trial. This was because it interfered with the pending legal proceedings of claimants who had lodged appeals against their sanctions before the 2013 Act came into force. Without the retrospective effect of the 2013 Act, these claimants would have won their appeal and would have been entitled to the benefits that were sanctioned. The High Court’s judgment was upheld by the Court of Appeal in April 2016.

Proposed draft remedial order

A proposed draft remedial order was laid before both Houses on 28 June 2018. This order proposed to restore the right to a fair hearing in the ESE Regulation cases that were specifically examined by the Court of Appeal. However, during the consideration period an Upper Tribunal judge questioned whether a claimant who appealed a sanction decision under the MWA Regulations, as opposed to the ESE Regulations, and had a defective notification would also benefit from the remedial order. In response to this feedback, the Secretary of State decided that, although the Court had only examined the facts in ESE cases, the draft order should also include the MWA appeal cases whose right to a fair hearing could be said to also have been affected by the 2013 Act.

Draft remedial order

A revised draft remedial order was laid before both Houses on 5 September 2019. The revised order affects JSA claimants who:

  • had lodged an appeal against a sanction decision that had been made for failing to comply with the ESE Regulations; and
  • had lodged an appeal against a sanction decision that had been made for failing to comply with the MWA Regulations where the claimant received a notification that was validated by the 2013 Act.

The order now contains provisions which:

  • ignore the effect of the 2013 Act for claimants who had filed an appeal before the 2013 Act came into force;
  • allow the appeal to be decided in the claimants’ favour; and
  • give the Secretary of State the power to repay the sanctioned benefit, without the claimants having to progress their appeals through the tribunal system.

Scrutiny

Joint Committee on Human Rights Report

When a draft remedial order is laid by the Government, the Joint Committee on Human Rights is required to make a recommendation to each House as to whether the draft remedial order should be approved. The committee published its report on the order in March 2020 and concluded “the draft remedial order adequately remedies the incompatibility of the 2013 Act with Article 6(1)” and recommended it be approved.

The committee also stated that it regretted “the delay between the declaration of incompatibility and the laying of the proposed draft remedial order”.

House of Commons Fourth Delegated Legislation Committee

The House of Commons Fourth Delegated Legislation Committee considered the draft order on 14 July 2020. Speaking about the implementation of the remedy, the Parliamentary Under-Secretary of State for Work and Pensions, Mims Davies, said that the Government anticipates that it might take up to 12 months to identify and pay any affected individuals.

Seema Malhotra, Shadow Minister for Work and Pensions (Employment), welcomed the remedial order. However, she expressed disappointment that the remedy had not been undertaken earlier.

Approval in the House of Commons

The order was approved by the House of Commons, without debate, on 14 July 2020.