Court of Appeal says the government breached claimants’ rights, but the retrospective legislation stands

retroSanctions2At the Court of Appeal on Friday the government lost part of its grubby legal battle to stop claimants getting back benefit payments that were unlawfully taken from them.

The government was appealing a High Court judgement, which said that the emergency retrospective legislation the government rushed through in 2013 was ‘draconian’ and incompatible with the right to a fair trial. The Court of Appeal rejected the government’s appeal against the High Court judgement. It says the legislation is okay according to English law, but that it shouldn’t have applied to all sanctions, because this meant that claimants who were waiting for the results of appeals against sanctions found their cases automatically decided in favour of the DWP. The legislation meant that people were automatically sanctioned even when the DWP’s own appeals process would have overturned the sanction.

That emergency legislation – the Jobseekers (Back to Work Schemes) Act 2013  – rewrote history. It made it so that workfare regulations made in 2011 were lawful and had always been lawful, even though the court of appeal had said that they weren’t. Those regulations made it possible to sanction people for not taking part. So the retrospective legislation meant that all the sanctions the government had imposed under the 2011 regulations, in one block, were valid, along with the regulations – even the sanctions that would have been unlawful under the old regulations anyway. This meant, in turn, that ongoing appeals against sanctions, most of which would have succeeded before the Act was passed, were bound to fail. (Challenges to sanctions have about a 70% success rate at the moment.) Public Interest Lawyers explain more about this background here.

The Court of Appeal agrees with the High Court judgement that in cases where people had already appealed against their sanctions, the 2013 act was incompatible with European Convention on Human Rights. But it didn’t agree that the whole act was unlawful: it said that when Parliament enacted the retrospective legislation to validate sanctions which were unlawful at the time they were imposed, Parliament was ‘successful in doing so as a matter of English law’.

Money Back?

It’s not yet clear how anyone can go about getting their money back. Although the Court found the legislation incompatible with the ECHR, it’s still left up to the government how to respond. You could try the Parliamentary and Health Service Ombudsman, who can investigate government departments and services like the Jobcentre when they haven’t acted properly. We’re waiting for legal advice about this at the moment.

The DWP says that to pay all claimants back the money they are owed would cost £130 million. They harp on the ‘undeserved windfall’ this would be for claimants; how difficult it would be to find the cash in these times of austerity.  Fortunately, £130 million is also exactly how much the government’s new workfare scheme, the ‘Work and Health Programme’, will cost each year. Obviously, there is a simple solution. The government should scrap the new programme – along with all workfare schemes, sanctions, and benefit conditionality – and pay the money back to the people from whom it was unlawfully taken: the claimants whose rights were denied by the retrospective legislation in 2013, which affected an estimated 179,000 people.

‘Constitutional Respect’

Parliament overrode the courts in order to make it impossible for people to claim back money that had been taken from them by benefit sanctions and it interfered in ongoing legal proceedings, inflicting collective punishment. The act only passed with Labour’s support. Here’s what we wrote about it. Now, the Court of Appeal judges say that ‘constitutional respect’ has to be paid to the process that allows our legally incompetent government to override the courts and retrospectively remake the regulations that it made wrong in the first place.

A Brief History of the Case

In August 2012 the High Court ruled that letters sent to two claimants demanding that they attend mandatory workfare schemes were unlawful.This case was the ‘Poundland’ case, brought by Public Interest Lawyers on behalf of Jamie Wilson and Cait Reilly. 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.

The government appealed the High Court decision, which was upheld by the Court of Appeal in February 2013. The Court of Appeal extended the High Court decision, finding that the regulations governing workfare schemes were flawed because they didn’t explain to people what kind of unpaid work – up to 780 hours of it – they would have to do. The regulations were unlawful and had to be quashed. This meant that all the benefit sanctions that had been imposed through a range of different workfare schemes were unlawful and had to be repaid.

At this point, all workfare schemes except Mandatory Work Activity were unlawful. Almost immediately, the government drew up new regulations – Labour could have challenged these, but didn’t.

Workfare at the Supreme Court

The case then went on to the Supreme Court in July 2013, with appeal and counter-appeal. The Supreme Court upheld the Court of Appeal judgement in November 2013. As we wrote then:

The Supreme Court held that the Court of Appeal was right to quash the 2011 regulations: Ian Duncan Smith overstepped his powers when he drew them up.  In relation to Jamie Wilson’s case, it found that the notice he was given was invalid under those regulations anyway – something the Government was also appealing.

Most importantly, the Supreme Court went further than the Court of Appeal on one point. They agreed with the argument made by Public Interest Lawyers that it is right that you should have some information about laws and policies that will punish you (like workfare) before they punish you.

But the Court didn’t find that workfare breaches article four of the European Convention on Human Rights.  Article four says that ‘No one shall be required to perform forced or compulsory labour’. The courts say that workfare, in general, is fine.   It isn’t likely they’ll change their minds soon.

Emergency Retrospective Legislation

But the emergency legislation was enacted before the case got to the Supreme Court. It meant that the case which went on to the Supreme Court – when the government was appealing the Court of Appeal’s decision in February 2013 to uphold the High Court judgement – was totally undermined.

The government’s appeal was pointless before it began because it had enacted law which said that it won in the first place anyway: the emergency legislation made it so that the regulations were legal, and had always been legal, even though the Appeals Court had just found that they weren’t.

The emergency legislation also meant that since the first ‘Poundland’ court case decision in August 2012 the government had stopped sanctioning for cases that would be affected by the court’s decision, and had begun stockpiling these decisions instead, before inflicting them on people after a long day, making it much more difficult to appeal. By the time they rushed through the emergency Jobseekers (Back to Work) Act in March 2013, they had accumulated about 63,000 sanctions

What Happens Next

According to Public Interest Lawyers, the claimants involved, including Cait, are deciding whether to appeal the case to the Supreme Court. As we’re quoted as saying in The Guardian:

We’re glad the court of appeal, like the high court, recognises this for the appalling, grasping injustice it was and is, but we’re disappointed they haven’t gone further and told the government to repay all the money they owe to claimants.

We’ll post information about who can claim money and how as soon as we know anything more!


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