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In Reilly and Wilson v Secretary of State for Work and Pensions, the Court of Appeal ruled on 12 February 2013 that 2011 Regulations underpinning some of the Government’s back to work schemes – including its flagship Work Programme – were unlawful and must be quashed. Media attention focused on the issue of whether schemes breached Article 4 of the European Convention on Human Rights (forced labour), but the Court found against the DWP on the grounds that the regulations failed to provide sufficient information about the various back to work schemes, and that letters sent to claimants mandated to take part in the schemes gave insufficient information on their obligations and on the situations where sanctions would be applied.

DWP has requested permission to appeal to the Supreme Court, but in the meantime moved quickly to introduce the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment Regulations 2013 to provide with immediate effect a legal framework for the schemes covered by the 2011 Regulations now quashed as a result of the judgment.

The Jobseekers (Back to Work Schemes) Bill had its First Reading on Wednesday 14 March and is due to go through all its Commons Stages under an emergency “fast-track” procedure on Tuesday 19 March. The Bill – which has retrospective effect – covers cases where claimants were sanctioned for a failure to comply with a requirement under the 2011 Regulations, or where there was a failure but a decision to impose a sanction has not yet been made. Once enacted, it would not be possible to challenge a decision to impose a sanction solely on the grounds that the 2011 Regulations were invalid, or that notices to claimants were inadequate, notwithstanding the Court of Appeal judgment. The Government says the legislation is necessary to avoid a potential liability of up to £130 million, and to ensure that those sanctioned do not receive an unfair advantage over “compliant” claimants. The judgment potentially affects over 300,000 sanction decisions, of which around 95% were for failures to participate in the Work Programme.

Separate Library briefings are available on Retrospective legislation and Fast-track legislation. Another briefing gives a list of expedited bills since 1979.

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