The case concerned two claimants who were seeking to challenge the legality of their requirement to work for no additional remuneration in Poundland (although, the judgment simply refers to retail) and as an HGV driver respectively, as a condition of receiving Job Seeker's Allowance (JSA). The requirement was imposed by the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011/917, which in turn had been enacted pursuant to the Jobseekers Act 1995 (as amended). The appeal was of general importance given that virtually all of the Government's back to work schemes have been created under these regulations. The appeal was pleaded on three main grounds:
- That the schemes according to which they were required to work were ultra vires, beyond the powers given to the Secretary of State (for Work and Pensions);
- That they were not given sufficient warning about the consequences of failing to participate in the relevant scheme; and
- A requirement to work for no additional remuneration amounted to forced labour, contrary to Art 4(2) European Convention on Human Rights.
- Poundland 'breached forced labour laws', cried Left Foot Forward
- Tories' forced work outlawed: Court of Appeal ... - asserted The Mirror
- Graduate wins court fight that 'slave labour' at Poundland was unlawful- proclaimed the Evening Standard
- "Work for free and be of benefit to multinationals like tesco", The Guardian
- "Charities and Workfare: The Sad Truth", The Void.
- ww.boycottworkfare.org/
Indeed, having instructed Phil Shiner at Public Interest Solicitors in Birmingham, who specialise in winning seminal cases in domestic human rights jurisprudence (they represented the family of Baha Mousa, an Iraqi hotel-worker detained and tourted to death on a British Army base in Iraq. The subsequent litigation establised that the Human Rights Act 1998 was capable of applying to the actions of British service personel abroad. It also led to a major public inquiry) their undoubted confidence was readily understandable. Whilst the Court of Appeal's decision creates another major problem for the Coalition Government and IDS, whose zeal for welfare reform is well known, it was not quite what the claimant's were hoping for.
The powers of the SoS
Typical of Welfare Benefits law, the statutory background is lengthy. In essence, the Job Seeker's Act 1995 (as amended by the Welfare Reform Act 2009) empowered the Secretary of State, using regulations, to:
"make provision for or in connection with imposing on claimants in prescribed circumstances a requirement to participate in schemes of any prescribed description that are designed to assist them to obtain employment."
For the regulations to be relied upon, the work scheme would have to fall within the relevant statutory description and laid before Parliament, including details of the length of time a person would be expected to participate in the scheme and the consequences of failing to do so. The Regulations did not, as the government tried to argue, give the Secretary a general power to devise schemes otherwise free of Parliamentary scrutiny.
The Court were acutely aware of some of the sensitivities at play in this case and the ramifications of striking down the hitherto approach adopted under the regulations. Indeed, the tone of the lead judgment of Pill LJ, with whom the other two judges agreed, is suggestive of the difficulty that anyone seeking to challenge work-related benefit schemes more generally will have:
"49. I readily appreciate the need for flexibility in devising arrangements which will achieve the statutory purpose of improving prospects of obtaining employment. The needs of jobseekers will vary infinitely as will the requirements of providers prepared to participate in arrangements with them. I am impressed with the care shown in attempting to devise arrangements and with the resources devoted to attempts to achieve the statutory purpose. There is an important public interest in getting people back to work as well as a major saving in not having to pay Jobseeker’s Allowance, and possibly other benefits.
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 Secretary of State’s object in these proceedings is not to end Jobseeker’s Allowance but to ensure that it is only paid to those actively seeking employment and prepared to cooperate with attempts made by the state to achieve that end. The entitlement to receive the weekly sum should depend on such cooperation."
Nevertheless,
Emphasising the point, he continued:"51. I am unable to conclude that the statutory requirement for the Regulations to make provision for schemes of a prescribed description is met in regulations 2 [which just gave the scheme a name] and 3 [which just gave the SoS the power to select candidates for the scheme named, but not particularised, in regulation 2] of the 2011 Regulations. Simply to give a scheme a name cannot, in context, be treated as a prescribed description of a scheme in which claimants may be required to participate, within section 17A(1). "
" Arrangements may only be made in accordance with the Regulations if there appears in the Regulations a scheme (or schemes) of a prescribed description, as required by section 17A. Even if the arrangements are in accordance with the regulations, that does not establish that the regulations are in accordance with the statute and that is the point at issue."So, there we go, no mention of slavery, false labour or any other breach of fundamental rights were necessary in reaching the decision (although, the issue is considered and rejected later in the judgment). You can call it many things, a straight-forward issue of statutory interpretation, a ruling that the Secretary of State had acted ultra vires (outside of his powers) or simply, a technicality but a watershed judgment in human rights jurisprudence it is not.
The decision is clearly still important. At the very least, it means that thousands of people who have been wrongly sanctioned for failing to comply with various workfare schemes will be entitled to their money back. This of course assumes that the Government are unsuccessful in attempts to appeal to the Supreme Court (the Court of Appeal have refused to grant leave but an application may still be made directly to the Supreme Court). Also whilst, in an attempt to avoid leaving the work scheme in "tatters", Lawyers for the DWP had obviously been preparing for the judgment, given that new regulations have already been tabled, it is not clear to whether or not they will cater for all the schemes that have been struck down. It would seem unlikely, in which case, the governemnt will have to find some precious Parliamentary time either side of trying to push through the inaptly named Security and Justice Bill, to complete the remedial work.
Nevetheless, it clear is not the decision that the claimants were hoping for. Given what they were hoping for, it was almost exactly the opposite. The Court of Appeal were generally supportive of work schemes and will clearly take some convincing that the application of a particular scheme, once properly reinstituted, amounts to forced labour. The likelihood, any result that was so aggregious would be outside the terms of the legislation and therefore be unlawful anway. Article 4 ECHR would not be necessary. But hey, why let technicalities get in the way: The UK COURTS UPHOLD SLAVERY!
Sounds much better.
No comments:
Post a Comment