JSA requirements and "Forced Labour" - an academic debate

In an earlier post, I decided to distil the myth that the Court of Appeal had, earlier in the week (in R (on the application of Caitlin Reilly and Jameison Wilson) v Secretary of State for Work and Pensions [2013] EWCA Civ 66)  decided that making the receipt of Jobseeker's Allowance on participating in back-to-work schemes for no additional remuneration amounted to "forced labour" and was thus unlawful. In fact, the case turned on the fact that the way the schemes had been created was beyond the statutory powers of the Secretary of State for Work and Pensions. I also concluded that there was no real prospect of the courts finding that such schemes breached the Convention. Given the importance of the question, I have decided to look at the issue in more detail.

The lead judgment of Pill LJ proffered this view (emphasis added): 

 " [48] A policy of imposing requirements on persons receiving a substantial weekly sum, potentially payable for life, is readily understandable. Equally, the means sought to achieve that end are understandable; claimants should be required to participate in arrangements which may improve their prospects of obtaining remunerative employment. Provided schemes “are designed to assist [claimants] to obtain employment” and to “[improve] their prospects of obtaining employment”, both expressions appearing in section 17A, sanctions for failing to participate are understandable. Whether a particular arrangement meets those statutory requirements in section 17A is susceptible to challenge by judicial review, but that stage has not been reached. The issue is whether the Scheme named in the Regulations satisfies the requirements for specificity in section 17A

[50] I also appreciate that there could be a substantial saving of public money if effective sanctions are available when jobseekers are not cooperating with proposals properly put to them under the Act.......The entitlement to receive the weekly sum should depend on such cooperation."

 Whilst there is a legitimate debate to be had about the nature of such conditions, the way they are imposed by the Department of Work and Pensions (DWP) and whether claimants are effectively being exploited under a pretence of "being designed to assist claimants to obtain employment, that was avowedly not the issue before the court. 

In order to establish whether or not unpaid work amounted to a violaion of article 4 ECHR, it would have to be shown that such a requirement was:
 

"a burden which was so excessive or disproportionate to the advantages attached to the future exercise of that profession that the service could not be treated as having been voluntarily accepted beforehand": Van Der Mussele v Belgium [1983] (Application no. 8919/80), para 37.  

Typically, in such a case, work would have been "exacted....under menace of any penalty" (ibid., para 32).

In R (on the application of Nikiforova) v Secretary of State for Work and Pensions [2012] EWHC 805 (Admin), Mr Justice Bean rejected an application for permission to seek judicial review to challenge the Jobseeker's Allowance  Mandatory Work Activities Scheme Regulations 2011 (which unlike the schemes in Reilly had properly been laid before Parliament) on the basis that a requirement to participate in the scheme under threat of being sanctioned by the DWP and having his JSA temporarily withdrawn was contrary to Article 4ECHR and Article 5 of the Charter of Fundamental Rights. In doing so, he cited Van Der Mussele and a later admissibility decision, Talmon v the Netherlands (1996). The judge considered that the latter it was held that a requirement to look for and accept appropriate offers of employment was not a breach of the Convention (or the Charter).

Nikiforova was cited by the Court of Appeal in Reilly as authority for the proposition that requirements imposed in regulations pursuant to the 1995 Act would not, in principle, violate article 4 ECHR. However, the Commission (as it then was) in Talmon were particularly influenced by the fact that:

"It does not appear, however, that the applicant was in any way forced to perform any kind of labour or that his refusal to look for other employment" 

In Van Der Mussele, the ECtHR were mindful of the fact that although the applicant, a pupil completing qualification as a practising barrister, was required by domestic law, to do a certain amount of work for no remuneration at all, there were palpable benefits to his career. Indeed, it was also important that the applicant had made an informed choice to pursue that career. A recipient of JSA arguably makes a choice to make the claim and is in an arguably better position because they do receive some remuneration for their work.

On the other hand, the remuneration that you receive is not necessarily commensurate with the value of the services rendered to the nominal employer. Further, if you are in a position where you are having to claim JSA, the "choice" is illusory. Speaking from experience, in the absence of work, you either claim the benefit or you cannot pay your bills, including transport costs to get to interviews. Moreover, and it follows, unlike Talmon, a claimant is forced to perform a kind of labour. This clear point of distinction does not appear to have been considered by any of the domestic courts to date (although, the claimants in Nikiforova were subsequently denied leave to the Supreme Court without an oral hearing, which may be significant) and there has been no subsequent Strasbourg decision on the point.

Therefore, the issue may not have been conclusively resolved after all. Even so, it may be largely academic. Firstly, bearing in mind the political sensitivities in this area and in the relationship of the domestic courts and Strasbourg, the prospect of finding a work requirement unlawful on human rights grounds seems incredibly slim to say the least. Secondly, it is difficult to conceive of a situation where a work requirement could legitimately be said to improve a person's prospect of obtaining employment, in accordance with the Job Seeker's Act 1995 but still amount to such an onerous requirement as to breach Art 4 ECHR