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On behalf of Miss Reilly and Mr Wilson, Ms Lieven QC submits that we should not consider the Secretary of States appeal on issue (a), as that issue is now academic, because, even if the Court of Appeal was right to hold that, prior to the 2013 Act coming into force, the 2011 Regulations were ultra vires, Parliament has... |
The submission has obvious force as a matter of principle. Ratio |
This court, like other courts, is normally concerned with stating the law as it is, not as it was. Ratio |
Further, it is rather unattractive for the executive to be taking up court time and public money to establish that a regulation is valid, when it has already taken up Parliamentary time to enact legislation which retrospectively validates the regulation. Ratio |
That very point was made on behalf of Miss Reilly and Mr Wilson in order to oppose the Secretary of States application for permission to appeal to this court, and, at least viewed from our present perspective, we consider that there was considerable force in the point. Ratio |
However, permission to appeal has been given to the Secretary of State, the issue concerned is not the only point at stake in the appeal, the issue may be of some significance to the drafting of regulations generally, and the retrospectively validating legislation is under attack. Ratio |
Bearing in mind those factors, we are of the view that issue (a) should be considered, although the precise formulation of any order that is made will have to be carefully considered, bearing in mind the effect of the 2013 Act. Ratio |
Accordingly, we turn to consider the four issues on which Foskett J and the Court of Appeal ruled, and which were argued before us. Ratio |
The first issue: Were the 2011 Regulations ultra vires? Ratio |
The question to which this first issue gives rise is whether the 2011 Regulations satisfied the requirements of section 17A(1), as expanded by section 35 of the 1995 Act. Ratio |
The principal point in this connection is whether, as the Court of Appeal held, regulation 2 of the 2011 Regulations (regulation 2) contained a sufficiently prescribed description of the sbwa scheme and the CAP. Ratio |
To recapitulate, 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... |
Whether one takes the Employment, Skills and Enterprise Scheme (which is really a group of schemes including the sbwa scheme and the CAP) as a single scheme, or whether, as seems more natural, one takes the sbwa scheme and the CAP as separate schemes, they were undoubtedly schemes which fell within the ambit of regulat... |
However, the question which arises is whether regulation 2 was or contained a prescribed description of the scheme in question. Ratio |
In other words, the question is whether regulation 2 could fairly be said to have been a regulation either (i) which specified a description of (the Employment, Skills and Enterprise Scheme or) the sbwa scheme or the CAP, or (ii) in accordance with which (the Employment, Skills and Enterprise Scheme or) the sbwa scheme... |
For the Secretary of State, Mr Eadie QC argued that the self-evident need for flexibility in the precise characteristics of any scheme introduced under section 17A renders it unlikely that Parliament can have intended much, if anything, in the way of specific information about any scheme to be included in any regulatio... |
The need for flexibility cannot be doubted. ARG |
As Pill LJ said in the Court of Appeal, at para 49, [t]he needs of jobseekers will vary infinitely, as will the requirements of providers prepared to participate in arrangements with them. ARG |
Over and above the question of flexibility, as Ms Lieven QC, for Miss Reilly and Mr Wilson, effectively accepted, once one decides that section 17A(1) requires more specific information about a scheme than what is contained in regulation 2, it is not easy to identify the precise extent of the information required. ARG |
However, even bearing in mind these points, it appears clear to us that regulation 2 does not satisfy the requirements of section 17A(1). Ratio |
The courts have no more important function than to ensure that the executive complies with the requirements of Parliament as expressed in a statute. Ratio |
Further, particularly where the statute concerned envisages regulations which will have a significant impact on the lives and livelihoods of many people, the importance of legal certainty and the impermissibility of sub-delegation are of crucial importance. Ratio |
The observations of Scott LJ in Blackpool Corporation v Locker [1948] 1 KB 349, 362 are in point: John Citizen should not be in complete ignorance of what rights over him and his property have been secretly conferred by the minister, as otherwise [f]or practical purposes, the rule of law breaks down because the aggriev... |
More specifically, in relation to the point at issue, we cannot improve on the reasoning of Sir Stanley Burnton in the Court of Appeal, where he said this: 75. Ratio |
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. Ratio |
There is otherwise no point in the requirement that the matter in question be prescribed in delegated legislation. Ratio |
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... |
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. Ratio |
76 Ratio |
Description of a scheme in regulations is important from the point of view of Parliamentary oversight of the work of the administration. Ratio |
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. Ratio |
Sir Stanley immediately went on to say, [t]he question as to precisely how much detail must be included in the Regulations in order to comply with the requirements of the Act does not arise for consideration in this appeal, since the Regulations contain none. Ratio |
However, while it is a fundamental duty of the courts to ensure that the executive carries out its functions in accordance with the requirements of Parliament, as expressed in primary legislation, it is also incumbent on courts to be realistic in the standards they set for such compliance. Ratio |
In this case, it is not only self-evident, but it is clear from the contents of regulation 3 of the 2013 Regulations, part of which is set out in para 34 above, that it is not unrealistic to hold that the Secretary of State could have done significantly more than was done in the earlier regulation 2 to describe the ind... |
It is neither necessary nor appropriate for us to decide whether regulation 3 of the 2013 Regulations complies with the requirements of section 17A: the issue is not before us, and has not been argued, and in any event it may be influenced by the provisions of the 2013 Act. Ratio |
Given the conclusion that the 2011 Regulations are ultra vires because they fail to provide a prescribed description of any scheme, it is strictly unnecessary to consider the further grounds raised by Miss Reilly and Mr Wilson for contending that the 2011 Regulations were invalid, but we will do so briefly. Ratio |
Those grounds are that the Regulations fell foul of the requirements of section 17A that any regulations made thereunder must, under subsection (1), prescribe the circumstances in which, and, under subsection (2), the period for which, claimants may be required to participate in prescribed schemes. Ratio |
The Court of Appeal rejected these two further grounds, and, while accepting that each ground is not without force, we agree with the Court of Appeal. Ratio |
The argument that the 2011 Regulations fail to prescribe the circumstances in which a claimant may be required to participate in a scheme, was largely based on regulation 3 of the 2011 Regulations (set out in para 11 above). Ratio |
It is said that, by merely providing that the Secretary of State may select a claimant for participation in a scheme, it suffers from the same vice as the alleged prescribed description of the schemes, in that it does no more than sub-delegate, in a completely unqualified way, the whole exercise of prescribing the circ... |
However, as Pill LJ indicated in para 58 of his judgment, one must also consider regulation 4 in this context. Ratio |
It seems to us that, particularly given the need for flexibility, regulation 4 contains sufficient detail to justify the conclusion that the circumstances in which a claimant can be required to participate in a scheme is to be determined in accordance with the 2011 Regulations. Ratio |
The fact that the regulation is concerned with the contents of a notice is irrelevant to this issue, but the very open-ended nature of what is left to the Secretary of State by regulation 4 could well be a problem in other circumstances where flexibility was not so obviously essential. Ratio |
Substantially the same point can be made about the statutory requirement in section 17A(2) for a period to be prescribed and the terms of regulation 4(2)(d) and 5(2) of the 2011 Regulations. Ratio |
Ms Lieven argued that the regulations thus provide for an open-ended period, but we do not see why that is intrinsically incapable of being a prescribed period. ARG |
Again, we agree with Pill LJ who said at para 59, that the period is specified by way of events with which it will begin and end, and that, bearing in mind the undoubted need for flexibility where possible, it is a tenable specification. Ratio |
The second issue: Was the notice served on Mr Wilson valid? Ratio |
As described in para 21 above, no written notice was given to Miss Reilly, contrary to regulation 4(1) and 4(2) set out in para 12 above. Ratio |
In relation to Mr Wilson, there is a dispute which falls to be determined, namely whether the letter of 16 November 2011, quoted in para 24 above, complied with regulation 4(2)(c) and regulation 4(2)(e). Ratio |
In agreement with Foskett J, the Court of Appeal held that it did not satisfy the latter provision, but they also found that it did not satisfy regulation 4(2)(c). Ratio |
In our opinion, there was a failure to comply with regulation 4(2)(c). Ratio |
The letter of 16 November 2011 merely informed Mr Wilson that he had to perform any activities requested of him by Ingeus, without giving him any idea of the likely nature of the tasks, the hours of work, or the place or places of work. Ratio |
It seems to us, therefore, that the letter failed to give Mr Wilson details of what [he was] required to do by way of participation. Ratio |
Again, it is necessary to balance practicality, in the form of the need of the Secretary of State and his agents for flexibility, against the need to comply with the statutory requirement, which was plainly included to ensure that the recipient of any such letter should have some idea of where he or she stood. Ratio |
A requirement as general and unspecific as one which stipulates that the recipient must complete any activities that Ingeus asks you to do, coupled with the information that the course will last about six months falls some way short of what is required by the words of regulation 4(2)(c), even bearing in mind the need f... |
The alleged breach of regulation 4(2)(e) is rather different in nature, and we have concluded that it is not made out. Ratio |
It arises from the fact that the letter of 16 November 2011 states that Mr Wilson would lose his benefits for up to 26 weeks if he did not participate in the CAP. Ratio |
The true position was that he risked losing his jobseekers allowance for two weeks initially, and thereafter for a period of 26 weeks, which could potentially be continued on a rolling basis see regulation 8(4) and (6) of the 2011 Regulations, set out in para 14 above. Ratio |
We see some force in Ms Lievens criticisms of the letter, but the question is whether they are sufficient to provide additional grounds for holding the notice invalid. Ratio |
The crucial issue is not so much one of contractual construction of the letter: it is whether Mr Wilson was (or perhaps whether a reasonable person in Mr Wilsons position would have been) significantly prejudiced or misled by the terms of the letter so far as any sanction was concerned. Ratio |
Regulation 4(2)(e) required the notice to contain information about the consequences of failing to participate, but it did not specify how detailed the information needed to be. Ratio |
If the letter had warned Mr Wilson in general terms that failing to participate might result in loss of benefit, we think that it would have been sufficient. Ratio |
The letter was more specific, in that it said that he risked losing up to 26 weeks loss of benefit, which was the maximum on any one occasion. Ratio |
This would have made it plain to Mr Wilson that he could face a lengthy period of loss of benefit if he failed to participate. Ratio |
Whether the issue is to be judged from the perspective of Mr Wilson or of a reasonable person in his position, we are not persuaded that the imperfections of the warning were sufficiently misleading or prejudicial that the letter should be held invalid on that account . Ratio |
The third issue: The Secretary of States duty to publish information about the schemes Ratio |
As explained above, i) Section 17A empowers the Secretary of State, by regulations, to require a claimant for jobseekers 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... |
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. STA |
The question arises 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. Ratio |
Ms Lievens submission is that any criteria established by the Secretary of State for the exercise of the power to require a person to engage in unpaid work should be made public as a matter of fairness to individuals and as a safeguard against arbitrariness. PRE |
In support of that submission, she relies on the decision and reasoning in R (Salih) v Secretary of State for the Home Department [2003] EWHC 2273 (Admin). PRE |
Salih was concerned with a provision of the Immigration and Asylum Act 1999 which empowered, but did not require, the Secretary of State to provide or arrange support for asylum seekers and their dependants who appeared to him to be destitute or likely to become destitute within 14 days. Ratio |
It was the established practice of the Secretary of State to exercise that power if an application was made by an asylum seeker, and that policy was communicated to the Refugee Council, but not to individual asylum seekers who would qualify to receive benefits under the policy. Ratio |
Having said at para 51 that [m]isery and suffering may be involved and [f]undamental human rights may be engaged, Stanley Burnton J continued in the next paragraph by stating the following principle: These considerations lead me to conclude that it is not open to the Home Secretary to decide to refrain from making know... |
On principle a policy such as that should be made known to those who may need to avail themselves of it. Ratio |
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. Ratio |
In R (WL Congo) v Secretary of State for the Home Department, [2012] 1AC 245, para 36, Lord Dyson (with whom a majority of the other members of the Supreme Court agreed) endorsed Stanley Burnton Js statement of general principle. PRE |
WL was a case of detention and the Court of Appeal had distinguished Stanley Burnton Js statement on that basis, but Lord Dyson did not find that a satisfactory ground for distinction. PRE |
He considered that a policy relating to a scheme which imposed penalties or other detriments was at least as important as one which conferred benefits. PRE |
On the question how much detail needed to be conveyed, Lord Dyson said at para 38: The precise extent of how much detail of a policy is required to be disclosed was the subject of some debate before us. PRE |
It is not practicable to attempt an exhaustive definition. PRE |
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. PRE |
Nor is it necessary to publish details which are irrelevant to the substance of decisions made pursuant to the policy. PRE |
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. PRE |
(Emphasis added.) PRE |
By the same token, the administration of a scheme by which a person may be required to engage in unpaid work on pain of discontinuance of benefits is a matter of considerable importance to a claimant for jobseekers allowance. Ratio |
(It is also of significance to the public at large, which has a legitimate interest in the way that public funds are disbursed and in proper steps being taken to encourage and assist such claimants to obtain paid employment.) For the individual, the discontinuance or threat of discontinuance of jobseekers allowance may... |
The ability to appeal against a notice or a withholding of benefits (to a First-tier Tribunal of the Social Entitlement Chamber under section 12(2) of the Social Security Act 1998) is a form of protection. Ratio |
However, it is necessarily retrospective and, in practice, it may be small comfort to a person who is faced with an immediate termination of benefit. Ratio |
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. Ratio |
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. Ratio |
The principle does not depend on the categorisation of the Secretary of States decision to introduce a particular scheme under statutory powers as a policy: it arises as a matter of fairness from the Secretary of States proposal to invoke a statutory power in a way which will or may involve a requirement to perform wor... |
Properly informed claimants, with knowledge not merely of the schemes available, but also of the criteria for being placed on such schemes, should be able to explain what would, in their view, be the most reasonable and appropriate scheme for them, in a way which would be unlikely to be possible without such informatio... |
Some claimants may have access to information downloadable from a government website, if they knew what to look for, but many will not. Ratio |
For many of those dependent on benefits, voluntary agencies such as Citizens Advice Bureaus play an important role in informing and assisting them in relation to benefits to which they may be entitled, how they should apply, and what matters they should draw to the attention of their Jobcentre adviser. Ratio |
In his evidence, Mr Iain Walsh, a senior civil servant, explains that the main way in which information is provided to claimants about the sbwa scheme and the CAP is through personal meetings with a Jobcentre adviser prior to a referral. Ratio |
In relation to the sbwa scheme, there is a document entitled Sector-based work candidates (SBWA) Adviser Guidance, which, in a section headed Initial discussions with the claimant, sets out a list of matters about which a claimant is to be informed. Ratio |
The section begins with the following instructions: Give the claimant full details of the sbwa. Ratio |
This should include as much information as possible about the course, the employer, the role etc. Ratio |
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. Ratio |
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