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12 February 2013

Workfare ruled illegal, but only on narrow terms

A minor victory for campaigners against mandatory work

By Alex Hern

Cait Reilly, the graduate who was forced to work for free at Poundland, has won her Court of Appeal claim that to do so was unlawful.

Reilly was joined in her appeal by Jamieson Wilson, an unemployed HGV driver who had been required to clean furniture for six months under the government’s Community Action Programme. When Wilson refused, he was stripped of his jobseeker’s allowance for six months in sanction.

The solicitor for the pair, Tessa Gregory, told the Press Association:

Today’s judgment sends Iain Duncan Smith back to the drawing board to make fresh regulations which are fair and comply with the court’s ruling.

Until that time nobody can be lawfully forced to participate in schemes affected such as the Work Programme and the Community Action Programme.

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All of those who have been stripped of their benefits have a right to claim the money back that has been unlawfully taken away from them.

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The ruling is not a universal victory for opponents of the government’s workfare programmes, however. It rules that the schemes are illegal on fairly narrow technical grounds to do with the expressed powers of the secretary of state.

The schemes in question did not match with published policy, and Reilly and, in part, Wilson had not been notified correctly about their rights. (Reilly should have been given the option to refuse her scheme, but she was not; Wilson was not informed clearly enough that refusing would result in six months without benefits).

As a result, Mandatory Work Activity, which involved nearly 17,000 people being compelled to do a month’s full-time unpaid work between May 2011 and February 2012 alone, is unaffected by the case. And there is every chance that re-drafted legislation could enable the other workfare programs to resume.

Crucially, although the case included a reference to article four of the European Convention on Human Rights, which states that “no one shall be required to perform forced or compulsory labour,” the presiding judge held that that did not add anything to the substantive legal issues at hand, concluding:

Given arrangements properly made under the Act, article 4 would not be engaged.

Similarly, the court finds no overall problem with the concept of unpaid work, arguing that Parliament has the right to create schemes that “are designed to assist the unemployed to obtain employment”, and that it is “equally entitled to encourage participation in such schemes by imposing sanctions.”

In short, the case was won because the government failed to legislate correctly when introduced the workfare schemes in question. That’s a very different, and much less heartening, conclusion than original reports claiming a victory on grounds of “forced labour” suggested.