Tag Archives: retroactive

We’re All Retro Now

If you accidentally tread on someone’s toes the normal response would be to apologise. Nobody expects you to rush off to buy painkillers and arnica gel. But that’s a mere accident involving two individuals where there’s not likely to be much more damage than a few bruised toes. When the State introduces a scheme of any kind which impacts on the public or a section of it, expectations are rather higher. The State is expected to implement its scheme in accordance with applicable law. Personally, I believe Workfare is wrong in principle and that people should be paid to work. I’ve also yet to see evidence that it actually succeeds in getting people into long term employment but that’s not really the point of this post.

It’s not exactly controversial to suggest that, when making laws and forming schemes, governments should get it right. That’s their job. If they don’t, they can’t expect to find that courts sympathise with the government. If people suffer loss as a result, the government will be expected to compensate those people. Similar (although not identical) rules apply to us all, both in the context of goods and services we provide in our working lives and in the sense that we can personally do things which hurt others. For example, if a lawyer or a doctor is negligent, they’ll be liable. If a driver is responsible for an accident, he’s liable. The “guilty” person will usually be expected to put the injured party into the same state they would have been in but for the actions of the “guilty” person, in so far as that’s possible. This is all a massive oversimplification (arguments over issues like access to justice are perfectly valid but I don’t want to go off piste here) but the bottom line is that every single person and organisation in the UK is subject to its laws and none of us can turn the clock back.

The Court of Appeal ruled that the that the Workfare scheme is procedurally flawed. People suffered as a result of that. Maybe some (possibly many) would have been sanctioned anyway, if the DWP had got it right, but it didn’t. The case opened the door to all of those people. The DWP failed to do its job properly and, like anyone else, it should have paid for its actions in accordance with the law but from day one the DWP was determined not just to remedy the flaws identified by the Court but to ensure that nobody was compensated for the original flaws. Its immediate response was, in essence, “we’re big enough and ugly enough to get away with not paying for our mistakes.” The only way the DWP could outflank the judgement and prevent claims for compensation from people who’d been wrongly sanctioned was to introduce new legislation with retroactive effect. As if by magic that would cure previous procedural errors. Metaphorically speaking it’s like the DWP got a knock on the door from a neighbour:
“Excuse me but your cat just shit on my carpet.”
“No it didn’t.”
“It did. Come look.”…
“That could have been anyone’s cat.”
“But it wasn’t. It was your cat. I saw it”
“Oh. Well that’s easily fixed.”
“So you’ll clean my carpet?”
“No. I’ll do something better.”
“I’ve built a time machine to take us back to last Tuesday.”
“And then there won’t be any cat shit?”
“There will but you won’t be able to prove it was my cat.”

The DWP’s approach to the Workfare judgement makes a mockery of the Court system. The DWP has every right to change the Workfare Scheme so as to ensure that it complies with the law in future but it also claims it has the right to an exit strategy from responsibility for past actions and to avoid the consequences of those actions. One rule for us. One for the Government. Our constitution requires the separation of powers of Judiciary and Parliament. The whole point of that is to ensure that justice can be done when the Government and its agencies deliberately, negligently or even innocently get it wrong. The job of the Courts is to protect us when it needs doing but the DWP’s logic is that it can use a retroactive law in order to make a mockery of the original judgement. Neither statute nor any international convention says that the Government can’t impose retroactive laws by passing them through Parliament in the civil context (criminal law can’t be changed). However there is a fundamental unwritten rule barring retroactive legislation (that might sound a bit lame but it’s part and parcel of the common law system) due to its basic unfairness.

Last year, a retroactive law was introduced to force Barclays to pay £500 million in tax which it had avoided. Now a retroactive law is being introduced to enable the Government to avoid repaying £130 million to people who were wrongly sanctioned under the Workfare scheme. This is one of those times where lawyers’ views may differ from many other people’s. Forcing Barclays hand to ensure it pays its taxes probably appeals to a lot of people. It does to me but only to the extent that I believe Parliament should introduce legislation which closes loopholes. The number of businesses who routinely avoid tax disgusts me but Parliament should identify the methods of avoidance and enact legislation to make that act evasion in future. I don’t sympathise with Barclays, not least because they just paid nearly £40 million in bonuses to Rich Ricci and others but also because the actions it took went against assurances it had made that it wouldn’t avoid tax. That still doesn’t mean I think we should apply retroactive legislation to Barclays and others like it. No matter how much I loathe them, the principle is what matters. Even though corporations and wealthy individuals are playing with a stacked deck, we shouldn’t cherry pick who benefits from the rule of law.

The Government wants to apply retroactive laws to benefits claimants. Of course, this wasn’t just about the Coalition. The vast majority of Labour mps abstained from the vote. I didn’t watch the whole debate but from what I’ve gathered the reasoning appeared to be: we disapprove of Workfare but we approve of sanctions generally and we don’t want to see £130 million being spent and oh, by the way, incidentally, we have no problem with the idea of retroactive legislation. The fact that I don’t agree with Workfare isn’t why I vehemently disagree with this particular piece of legislation. I vehemently disagree because every time a retroactive law is made we chip away at the edifice of the rule of law. Maybe next time another multinational will suffer as a result, maybe some of the poorest in our society, maybe people like me. One of the things which never ceases to amaze me when it comes to civil liberties is how complacent people can be. It’s not just wrong, for example, to detain people without trial, torture, unlawfully search and surveil. It’s a threat to our civil liberties. All of them. All of ours. The same thing can be said (and I would argue with even greater strength in terms of the practical likelihood of abuse) about retroactive laws. Yesterday Barclays, today Workfare, tomorrow who knows? Both Barclays and people wrongly sanctioned under Workfare were subjected to retroactive laws because it’s financially expedient to the Government to sidestep the rule of law. A myriad of other decisions could become financially expedient and they could affect any one of us.