In the Reilly and Wilson v. Secretary of State for Work and Pensions court case on 12 February 2013, the applicants challenged the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 on four grounds. The first was that the scheme named in the 2011 regulations was beyond the powers of section 17A of the Jobseekers Act 1995. In other words, the regulations did not comply with the requirements of the Act. Secondly, the regulations could not be enforced in the absence of a published policy. Thirdly, notices to individuals mandated to take part in such schemes were inadequate. The fourth part, which was set aside, was the suggestion that the regulations conflict with article 4(2) of the European convention on human rights, which provides, subject to exceptions, that
“no one shall be required to perform forced or compulsory labour.”
Many organisations totally oppose this Bill for a wide and varied range of reasons, and it is unfair to claimants to legalise retroactively penalties that the Court has judged unlawful. Contrary to Government claims, it is not obvious that the DWP would have to repay sanctioned benefits to all claimants, so the stated £130 million potential loss is inaccurate. The Government already have anti-test case law rules that would prevent them from having to repay anything for sanctions served prior to 6 August 2012, and more information on that point would be extremely helpful when the Minister responds to the debate.
It is of constitutional concern if the DWP undermines the judiciary and the rule of law by using retroactive legislation to avoid accountability for its own errors, and to negate any further appeal judgment by the Supreme Court that upholds the Court of Appeal judgment. Legal representatives who were in court for the Reilly and Wilson case stated categorically their belief that:
“The emergency Bill is a repugnant attempt by the Secretary of State for Work and Pensions to avoid his legal obligation to repay the thousands of jobseekers who…have been unlawfully and unfairly stripped of their subsistence benefits…The use of retrospective legislation, which is being fast-tracked through Parliament, smacks of desperation.”
I believe that is polite in the extreme. They went on:
“It undermines the rule of law and means that Iain Duncan Smith is once again seeking to avoid proper parliamentary scrutiny of his actions…It is time for his Department to admit that maladministration and injustice costs.”
Other civil liberty groups and human rights campaigners have today explained to the press—it has just been released on the BBC—that they believe this type of retrospective legislation is a typical component of oppressive regimes. They could not have put it any stronger than that. The measure has been described by some organisations as “almost unbelievably disgusting”, and they said that the DWP
“broke the law, now they want to retroactively change the law so that they didn’t break the law in order to keep £130m out of the pockets of some of the poorest people in the country…The High Court found workfare unlawful precisely because people had no way of knowing the rules that applied. It shows an incredible level of arrogance and disregard for the poorest to now attempt to backdate laws to challenge this ruling.”
It has been correctly argued that the Bill would set a dangerous legal precedent if passed, and send a message that when citizens defeat the Government in court, the Government can overturn the Court ruling retrospectively with primary legislation—effectively making the Government, and the DWP, above the law. Who is in charge?
If this Bill is enacted, it is not clear what would happen in the cases of those who have successfully appealed against decisions to impose sanctions. It appears that there have already been successful appeals against sanction decisions at first-tier tribunals, following the Court of Appeal judgment. The Government’s argument is that the Bill will protect taxpayers by saving them a bill of £130 million. May I dare to suggest that that is denying those claimants their legal entitlement? Taxpayers will be better served if back-to-work schemes are properly scrutinised to ensure efficacy and that taxpayers are receiving value for money. That is a separate argument and has been stated well from both sides of the House this afternoon.
We can see from the poor performance of the Work programme so far, with only 3.5% of people referred to the programme finding a long-term job, that people are more likely to get a job without that scheme than with it. Is there a £130 million liability that would have to be repaid? The Government argue that legislation is necessary to protect the public purse from having to repay £130 million of sanctions that have been imposed. As I said earlier, however, significant anti-test case provisions already within the social security system mean it is highly unlikely that the Government would be required to
repay all the sanctions. Section 27 of the Social Security Act 1998 allows the DWP not to change decisions that were only shown to be wrong by a decision of a court. It means that the DWP could probably resist repayment in all cases where the sanction was imposed and served before the High Court decision of 6 August 2012, as well as decisions after that date where no appeal is sought.
When researching for my contribution to this debate I looked at the explanatory notes and the impact assessment published with the Bill, and a number of issues really stuck out. Paragraph 9 states:
“The Bill has been introduced to avoid the need to repay claimants who have been sanctioned for failure to comply with requirements under the ESE Regulations and to be able to impose sanctions where decisions have been put on hold since the decision of the High Court or Court of Appeal. If this were to happen, the cost to the taxpayer is estimated to be up to £130 million.”
The Bill is being introduced to save the taxpayer up to £130 million, yet it deprives the most vulnerable people who have been on workfare and are looking to better themselves in employment. It has been introduced to deny £130 million compensation to 300,000 people who would like decent employment with decent wages, terms and conditions. The Government have introduced emergency legislation to prevent those people from getting only what the Court of Appeal says they deserve. That is an absolute outrage.
The explanatory notes state:
“The effect of the Bill will be that any decision to sanction a claimant for failures to comply with the ESE Regulations cannot be challenged on the grounds that the ESE Regulations were invalid or the notices given under them inadequate, notwithstanding the Court of Appeal’s judgment. This is to ensure that the Government is not faced with the situation whereby jobseekers previously sanctioned (or to be sanctioned) for non-compliance under the ESE Regulations can receive an unfair advantage over compliant claimants.”
Again, that is an outrageous statement. The notes continue:
“The Bill also addresses the risk that previous notifications to claimants made under the MWA Regulations—”
mandatory work activity regulations—
“which contain the same notification provisions as the ESE Regulations, may also be open to challenge on the basis of the Court of Appeal’s judgement.”
The explanatory notes state:
“The impact upon individuals is that JSA claimants who have not complied with requirements under the ESE Regulations will not be repaid sanctioned benefits as they might expect following the judgment or may have a sanction imposed. The Bill effectively restores the status quo to a situation before the High Court and Court of Appeal judgments. Once the Bill is enacted, claimants who might have appealed against previous sanction decisions on the grounds upheld by the Judicial Review will be unable to do so. Sanctions imposed under the…legislation can continue and sanctions decisions currently stayed can be made in accordance with the original intent of the legislation. This is to ensure that the Government is not faced with the situation whereby jobseekers who failed to comply with their requirements and were sanctioned under the quashed ESE Regulations can receive an advantage over claimants who have complied with their requirements and is necessary to safeguard the economic interests of the state.”
I wonder whether denying ordinary and mainly poor people what they have been granted in a Court of Appeal hearing is in the best interests of the country and the economy.