Reports, tweets and blogs on the Court of Appeal judgement on Workfare are contradictory so I went for a look at the Judgement. The Court of Appeal was asked distinct questions and one of the Judges says:
“I emphasise that this case is not about the social, economic, political or other merits of the Employment, Skills and Enterprise Scheme. Parliament is entitled to authorise the creation and administration of schemes that, in the words of section 17A(1) of the 1995 Act, are designed to assist the unemployed to obtain employment, and provided that the schemes are appropriate for that purpose, it is not easy to see what objection there could be to them. Parliament is equally entitled to encourage participation in such schemes by imposing sanctions, in terms of loss of jobseekers’ allowance, on those who without good cause refuse to participate in a suitable scheme. This appeal is solely about the lawfulness of the Regulations made by the Secretary of State in purported pursuance of the powers granted by the 1995 Act as amended.”
The key question for the Court of Appeal was a technical one, whether the Workfare Scheme met the statutory requirement (in the Jobseekers Act 1995)
“for the Regulations to make provision for schemes of a prescribed description”
The Court of Appeal decided that too much was left to be dealt with outside the Regulations. Their decision was based on the specific wording contained in the JSA.
Caith Reilly and Jamie Wilson had already won their individual cases before the matter was appealed up to the Court of Appeal to look at the technical question. In Jamie Wilson’s case he wasn’t required to participate in the Workfare scheme because he’d never been given proper notice of it. In Caith Reilly’s case, she was wrongly told that participation was mandatory (which was wrong in her circumstances).
The Court wasn’t asked to decide whether the JSA, Regulations and Scheme breach the European Convention of Human Rights but referred to a European Court of Human Rights judgement, quoting it:-
“the court held that there could be a breach “if the service imposed a burden which was so excessive or disproportionate to the advantages…that the service could not be treated as having been voluntarily accepted beforehand.”
(in this context, “service” meant work) and giving a reminder that:-
“Provided the arrangements made serve the statutory purpose stated in section 17A, they need not infringe article 4.”
So, the Court actually said there’s nothing inherently wrong in making people work without pay on Workfare. The burden of doing so would have to be excessive or out of proportion to the benefits of doing so.
So, there you go. The Court of Appeal did its job. Looking at it from a philosophical perspective, this isn’t a win for people opposed to Workfare. It’s an embarassing rap over the knuckles for the DWP for its failure to implement it properly. Going back to the drawing board to comply with these requirements will require the DWP to comply strictly with section 17A of the JSA by preparing new Regulations (amending the Act would be another possibility). It could help people who’ve been sanctioned previously but it won’t stop the Scheme continuing.
My lawyer head believes that the Court made the right decision for the right reason. My personal philosophy is a different matter. I believe that people should be paid for a days work. By all means, offer voluntary placements and allow jobseekers like Caith Reilly to do relevant unpaid work but don’t force people to do it. If the Government wants to incentivise working, telling people they aren’t even worth minimum wage seems like a shabby way to go about it.
I believe training and education should be a greater priority than clocking in. I don’t mean everyone should have a degree, just that schemes should serve a real purpose. Even accepting the argument that people get out of the habit of working, telling people to clock in for free seems self-defeating. I read a fair bit about returning to work from maternity leave when I returned from sick leave and it’s pretty well acknowledged that confidence is a major factor on returning to work. How does forcing people to work without pay help confidence?
Finally, I believe the Government shouldn’t tell us the private sector is picking up the slack and hiring whilst giving free workers to large businesses. Subsidies to encourage workplace training are one thing but why do shops need free shelf stackers? What good does that do “UK plc”? A steady stream of free workers doesn’t provide an incentive to fill a role with a paid worker when unskilled work is involved.