Workfare at the Supreme Court: What’s Changed?

Boycott Workfare at the beginning of the workfare case.

On Wednesday the Supreme Court dismissed the Government’s appeal in the Cait Reilly and Jamie Wilson workfare case.  The government were appealing against the Court of Appeal’s findings in February that the regulations which the government used to create most workfare schemes were unlawful and should be quashed.

The government was appealing even though they enacted retrospective legislation in March, which obliterated the Appeals Court judgement.  The Jobseekers (Back to Work Scheme) Act 2013 amended the law and re-wrote history. It 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.  It was passed with Labour’s support.

The only reason the government can still say that ‘DWP is able to require claimants to take part in employment programmes’ is because they’re willing to override the courts when it comes to workfare. Public Interest Lawyers, who represent Cait and Jamie, have already launched a judicial review of the legality of this legislation.

The Supreme Court’s full judgement can be found here (summary version here), and there’s a good overview of what’s significant in the Court’s ruling on Public Interest Lawyers website.

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 (paragraph 65):

 Fairness … requires that a claimant should have access to such information about the scheme as he or she may need in order to make informed and meaningful representations to the decision-maker before a decision is made.

The Supreme Court didn’t say how the government should make this information available (paragraph 76). But the judgement means that, in the future, the government has to provide enough information to you so that you can challenge your eligibility for workfare.  If you don’t get this information before you’re told you must take part, this is likely to make it unlawful for the job centre to force you to take part, and unlawful for them to sanction you if you don’t take part.  PIL say that:

 The requirement on the DWP to provide jobseekers with adequate information about the schemes has far reaching implications as all jobseekers who, like Jamie, were not provided with adequate information will be able to seek the repayment of their benefits.

So even though they passed the unjust retrospective legislation and denied justice to unemployed people, the government still might have to pay back some of the £130 million in benefits that they unlawfully took from people.   Thousands of people weren’t given information about workfare schemes: if you were sanctioned, you might be able to have your benefits repaid – check Boycott Workfare for updates.

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.

We have to make workfare impossible in other ways: we have to force the government to end it and we have to force businesses and charities to end their involvement in it.  We must support each other when we’re on workfare and in the job centre. We must make sure people know their rights.

To do all this, take part in the Boycott Workfare week of action!


In the meantime, have a look at article four of the European Convention on Human Rights:

1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article the term “forced or compulsory labour” shall not include:
(a)  any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
(b)  any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
(c)  any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
(d)  any work or service which forms part of normal civic obligations.

Public Interest Lawyers were arguing that in Cait and Jamie’s case in particular, workfare breaches point two of article four. Their argument was that because information about the schemes Cait and Jamie were sent on wasn’t freely accessible or precise, the consequences and requirements of workfare weren’t  foreseeable.  So workfare couldn’t be ‘part of normal civic obligations’.

The Supreme Court judgement followed a 1983 case, Van der Mussle v. Belgium, in which the human rights court said that article four rights should be limited by ‘the general interest, social solidarity and what is in the normal or ordinary course of affairs’, or ‘the social standards generally obtaining in … democratic countries’ (paragraph 89). It said that the exceptions to article four rights are not just a list of situations in which the right doesn’t apply: instead, they set out the general sense of what the right entitles you to and what it doesn’t.

The Supreme Court says (paragraph 83):

Jobseeker’s allowance, as its name suggests, is a benefit designed for a person seeking work, and the purpose of the condition is directly linked to the purpose of the benefit. The provision of a conditional benefit of that kind comes nowhere close to the type of exploitative conduct at which article 4 is aimed.

This ‘type of exploitative conduct’ has to involve work that is not only compulsory but also ‘“unjust”, “oppressive”, “an avoidable hardship”, “needlessly distressing” or “somewhat harassing”’ (paragraph 89).   Apparently workfare is none of these things.

The Supreme Court also says that it doesn’t matter whether or not the ‘condition’ – forced, unpaid work – is likely to ‘achieve its purpose’  (we know that it isn’t): the ‘purpose of the benefit’ is still somehow ‘enhanced’ (paragraph 88).

So, in the Supreme Court’s view, the government can force you to do anything they want while on JSA, as long as it is ‘normal or ordinary’ – as long as people are willing to believe that the government thinks that what the government forces you to do will help you find a job.

Why does the Court think it knows what the purpose of JSA is – and why won’t it state that purpose in its judgement, if it is so clear? Why should simply re-naming JSA have such an effect? Isn’t the purpose of JSA to avoid someone starving and losing their home when they become unemployed?

Why should it matter to someone being forced to work for Asda or the Conservation Volunteers that the government says to people that this will help them find a job? Does this make the work any less forced, or any less unpaid?

Again, the courts are no help.  But together we can take action to end workfare.

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