The background to the Bill is formed by the Court of Appeal’s recent decision in R (Reilly and Wilson) v Secretary of State for Work and Pensions [2013] EWCA Civ 66, in which certain regulations concerning entitlement to benefits were struck down. New secondary legislation has already been made in order to fill the legal gap left by the quashing of the old regulations, but the new rules operate only prospectively. What, then, about people who were sanctioned improperly (i.e. by reference to the old, invalid rules)?
Normally, when a court quashes administrative acts or secondary legislation, the effect is to render (or, more accurately, confirm) that the measures are void ab initio (i.e. legally ineffective “from the very beginning”). So those who were sanctioned under the old rules were treated unlawfully, and are entitled to be paid the benefits they were improperly denied. But, says the Government, this would cost it £130 million: and so it is inviting Parliament to pass legislation—the Jobseekers (Back to Work Schemes) Bill—which would retrospectively change the law. That is, the Bill would make lawful the denial of benefits to individuals, even though the Court of Appeal ruled that denial to have been unlawful. What this amounts to, therefore, is the Executive using primary legislation to reverse the effect of a judicial decision.
One of the concerns raised by the Constitution Committee relates to the use of a fast-track procedure in order to enact this legislation—the effect of which is to reduce the time for parliamentary scrutiny. Even more fundamental, however, is the other issue raised in the report: namely, the retrospective nature of the legislation. As the Committee notes at para 14 of its report, this
engages the cardinal rule of law principle that individuals may be punished or penalised only for contravening what was at the time a valid legal requirement. According to the doctrine of the sovereignty of Parliament, retrospective legislation is lawful. Nonetheless, from a constitutional point of view it should wherever possible be avoided, since the law should so far as possible be clear, accessible and predictable. This applies to civil penalties as well as criminal offences. In the words of the late Lord Bingham of Cornhill: “If anyone—you or I—is to be penalised it must not be for breaking some rule dreamt up by an ingenious minister or official … It must be for a proven breach of the established law of the land.”This will not be the first time that a judicial decision has been undone via primary legislation. But that does not detract from the compelling nature of the points raised by the Constitution Committee. At root, this episode calls into question the relationship between the rule of law and the sovereignty of Parliament—and in this context it is worth reminding oneself that not all judges today accept that the latter necessarily prevails over the former. For example, in Jackson v Attorney-General [2005] UKHL 56, Lord Hope said:
Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.Of course, it does not follow from this that the courts would respond to the new legislation by putting Parliament back it its place; such an outcome is highly unlikely. But what this episode does demonstrate is a profound lack of respect by the Executive (which is, inevitably, behind this legislation) for the judicial branch of Government. That lack of respect is evidenced by the use of a fast-track procedure to enact legislation which, given the enormity of any decision to reverse a judicial decision, deserves close and searching scrutiny.
The broader point, then, is that if our constitution is (as I think it is) based upon an unwritten but crucial mutual respect between the political and judicial branches, there are likely to be (unpredictable) consequences if one party ceases to treat the other with adequate respect. The capacity of courts to ensure the lawfulness of Executive action forms the centerpiece of our constitutional machinery for upholding the rule of law. And the use of primary legislation to reverse the effects of that process is therefore a fundamental attack upon it. If politicians fail to treat the courts and the rule of law with appropriate respect, politicians should not be surprised if the courts repay them in kind. Nor should it be assumed that judges would be acting unconstitutionally in doing so. This is not a plea for judicial supremacism. Far from it: it is a plea for the Executive and Parliament to recognise the need for restraint that is essential to the effective operation of our unwritten constitution.
