Jamie Wilson and Cait Reilly began their legal challenge against the Department for Work and Pensions’ workfare schemes at the High Court in 2012. Jamie, a mechanic, was sanctioned for six months because he refused to work unpaid cleaning furniture for 6 months for 30 hours a week. Cait was forced to end her time volunteering at a local museum and stack shelves in Poundland for two weeks.
At 10:30 this Monday morning the Supreme Court will begin hearing the DWP’s appeal and Cait and Jamie’s cross-appeal in Cait Reilly and Jamie Wilson v Secretary of State . The legal atmosphere will be odd: the DWP’s appeal is completely academic because it has enacted law which says that it won in the first place anyway.
In February 2013, the Court of Appeal held that the 2011 Regulations under which most workfare schemes were operating were unlawful, and quashed them. The Court’s ruling said that the Regulations were far too vague: they didn’t relate to the schemes that existed
After that judgement, no-one could be be forced to participate in workfare – except MWA, which wasn’t covered by the regulations – until new regulations were drawn up. (These were made the same day the Court of Appeal handed down judgement.) It looked like £130 million of unlawfully applied sanctions would have to be repaid.
But the government responded by passing retrospective legislation which re-wrote history and re-made the Court of Appeal’s judgement in their favour. By ensuring that no-one could reclaim money taken away from them by unlawful sanctions, the government denied claimants access to justice and violated their human rights. After this hearing at the Supreme Court, that legislation will be subject to judicial review.
The Supreme Court hearing is important, though. Public Interest Lawyers, representing Jamie and Cait, will argue that the government’s approach to workfare continues to be unlawful. If the Supreme Court agrees, the new Regulations, like the old ones, may be quashed and the government might be forced to take a different approach, publishing details of all workfare schemes.
During the cross-appeal, PIL will argue that the government has a responsibility clearly and publicly to tell claimants what is involved in each different workfare scheme and what the criteria are for deciding who is eligible. Without this information, it is extremely difficult to to make a decision about whether or not to take part in workfare, or to know whether the decision is even one you can make. At the moment very little publicly available information exists that you can use to challenge your eligibility for workfare schemes – as anyone who’s ever been forced onto one knows. The bits of information available have been collected over a long time, by many people making Freedom of Information requests. (At the Appeals Court, the DWP wasn’t even able to show that its own internal guidance was detailed enough or up-to-date.) At the moment it is unclear how to appeal against sanctions or against referrals to workfare schemes; it is almost impossible to know whether or not the things you’re forced to do while on workfare are the kind of things you can ‘legitimately’ be forced to do.
These arguments for the publication of information about workfare were part of the first appeal, but the Court paid them little attention. PIL will draw upon a mass of examples to show that people have a public law right to know at least enough about the law that effects them to be able to challenge its application (for example, see here, paragraphs 34-36).
This right is underlined by judgements in the Court of Human Rights. These are the concern of the second part of Cait and Jamie’s cross-appeal, since the Court of Appeal didn’t find that workfare breaches article four of the European Convention on Human Rights (‘no one shall be required to perform forced or compulsory labour’). It sidestepped the question, also having no problem with unpaid work in general. PIL will argue that workfare does breach article four rights. None of the information about workfare is accessible, so none of its requirements or its consequences are foreseeable and nothing about it is set out with precision. It therefore cannot be work that is ‘part of normal civic obligations’ (which is exempt from article four). Also, since the 2011 and 2013 Regulations are outside the powers of the government (PIL will argue), workfare is also not a part of domestic law, further strengthening the argument that it is a breach of article four rights.
The Appeals Court agreed that the 2011 Regulations were beyond the powers of the government: the Regulations, it held, went beyond what Ian Duncan Smith is allowed to do by the 1995 Jobseekers Act, on which they’re supposed to be based. The DWP is required by the 1995 Act to describe in regulations what kind of work or ‘training’ would be involved in each scheme someone might be sent on. The 2011 Regulations worked by talking in general about ‘The Employment, Skills and Enterprise Scheme’. The DWP tried to argue that when they were talking about this general ‘scheme’, they were in fact talking about all the various particular forms of workfare (the things clearly called ‘schemes’ elsewhere): the vague outline of a general ‘scheme’ in the Regulations was supposed to legitimate whatever particular kinds workfare were dreamt up forever afterward (even though the ES&E ‘scheme’ was not something anyone could possibly be sent on, since it didn’t exist in the same way the Work Programme does). In this way, the DWP hoped it wouldn’t have to draft new regulations very often, or go through parliament, or tell anyone anything specific about what was involved in workfare.
But the government’s emergency legislation (Jobseekers (Back to Work Schemes) Act 2013) overruled the Appeal Court’s judgement, and made it so that the 2011 Regulations had always been within the government’s power. The government is appealing against the Court of Appeal judgement anyway; PIL will continue to argue for it to be extended.
As well as making unlawful regulations lawful again, that Act also made lawful again sanctions that were handed down unlawfully in the past that would be unlawful if they were handed down now. For example, the High Court and Court of Appeal found that the notice given to Jamie vaguely telling him he had to work for six months was unlawful because it failed to comply with the 2011 Regulations. It would also fail to comply with the 2013 Regulations, if it was sent today. The 2013 Jobseekers Act arbitrarily overrules both judgements, simply making it so that the notice sent to Jamie complied with the Regulations, even though the Court of Appeal judgement explicitly said it did not comply with them. So, Jamie is denied justice.
This is because the Act says that all sanctions should be treated ‘as if’ they had complied with an important section of the 2011 regulations (which says what a notice requiring you to take part in workfare should include – section 4 (1)), even when they failed to comply with other parts of the 2011 Regulations (which say that the notice should include information about what the workfare scheme would involve you doing, and what would happen if you refused to do it – section 4 (2) c and e). These parts of the 2011 Regulations are unchanged in the 2013 Regulations.
The Act says (sections (4) and (5)) that as long as a you were told something about ‘the Employment, Skills and Enterprise Scheme’ (when you were told you had to go on workfare); or as long as you were told that ‘an effect’ on payments of JSA was a ‘consequence or possible consequence’ of not doing workfare – then you were told enough. This is even though the Court of Appeal ruled that it was precisely because the 2011 Regulations just talked about ‘the Employment, Skills, and Enterprise Scheme’, that they were totally legally insufficient – because those regulations did not describe any actually existing workfare schemes.
A non-academic case for the Regulations being outside the government’s powers follows from this, though. It concerns how claimants should be told they are being forced to go on workfare and it applies to the 2013 Regulations as well as the 2011 ones.
The 2011 regulations were supposed to describe in what circumstances a person can be forced to work for no pay and for how long. The Court of Appeal found that the 2011 Regulations successfully set out the ‘circumstances’ because they say that the Secretary of State can pick and choose whoever he wants to force onto workfare and then tell them they’ve been picked. Clearly, this is not a description of circumstances; no limit on IDS’s powers is found in the regulations. The Court of Appeal also found that the regulations successfully set out what the ‘prescribed period’ of workfare is, for any claimant, simply because they say that IDS can tell someone when to start workfare and then tell them when to stop.
The new 2013 Jobseeker’s Allowance Regulations contain almost exactly the same wording about ‘circumstances’ and ‘period’. So the powers of the Secretary of State remain unregulated and unaccountable, and the legal problems with the regulations remain. And these arbitrary powers to decide the who, when, and what of workfare can be delegated – without any parliamentary oversight, and with no way of knowing how decisions are arrived at – to private companies (Seetec, Ingeus, Working Links, Serco, A4E, JHP …).
This way of describing ‘circumstances’ and ‘period’ goes against the 1995 legislation on which the regulations are based, PIL will argue. The Court of Appeal’s judgement should be overturned. The 2013 Regulations may be quashed as well.
By itself, publication of detailed information about eligibility will not get rid of bullying, oppression and exploitation in the Job Centre. The threat of sanction that lies behind both mandatory and ‘voluntary’ workfare means that no-one’s decision to go on work experience can be a free one, even if it’s a well-informed one. The experience of forced unpaid work and sanctions is not made any more pleasant by more information.
And as we saw when the government rushed to pass the history-rewriting legislation, having greater parliamentary oversight of the Regulations and the power to coerce people that they set out is unlikely to make things that much better for claimants. All three major parties are committed to workfare.
But it’s important that the DWP is so reluctant to publish information describing workfare schemes and who should go on them, or about which companies are involved in workfare. The government thinks workfare is vulnerable – and everyone knows it’s ineffective. If the Supreme Court case succeeds, and the government have to provide all claimants with clear information, it will be easier to bring workfare down.