Workfare: Alive and kicking between the constitutional and the administrative

Amir Paz-Fuchs
Amir Paz-Fuchs

On 28th April, 2014, the Department for Work and Pensions (DWP) announced ‘new intensive measures to help the long-term unemployed into work’. Despite the fact that the new rules will affect 200,000 people, there was only scantmention in the national press, reflecting an ambivalence in the government’s attitude. This ambivalence can be attributed to the central plank of the DWP’s initiative – the Community Work Placement scheme, referred to, mainly by its opponents, as workfare. Workfare schemes, developed originally in the United States and Australia, require claimants to ‘work for their benefits’. Why the ambivalence? First, workfare initiatives are incredibly unpopular amongst many people. So much so, in fact, that it has managed to galvanise a campaign to Boycott Workfare which, to date, has managed to persuade over dozens of providers to refuse to take part in the scheme. Secondly, the current scheme replaces a previous effort, which ran into embarrassing (for the government) legal difficulties, mentioned below.

I will suggest that the two causes for embarrassment, the constitutional and the administrative, correlate the two main legal challenges to workfare seen thus far: the first objects to workfare by reference to human rights arguments, and the second focuses on procedural failures. Between the two, I argue, lie the substantive objections based on labour law and labour relations, which should form the central platform to challenge workfare.

The first type of objection is constitutional, or human rights based, in nature. Requiring claimants to work for benefits has been seen by opponents as tantamount to forced labour, or even slavery. This argument (referring to Article 4 of the ECHR) was rejected by the Strasbourg Court time and time again, including Talmon v the Netherlands(1997) and slaverySchuitemaker v the Netherlands(2010), and by the UK Supreme Court in R (Reilly and Wilson) v Secretary of State for Work and Pensions (2013) to which I will return below. Feeling, as I do, that forced labour and slavery are matters that are of the utmost gravity, and that should thus be dealt with the severity, I find such decisions compelling. And yet, ideologically, or even broader – politically, there is an uncomfortable feeling about demanding claimants to ‘work for’ their benefits. That is, if one rejects the vacuous rhetoric of reciprocity (constantly spewed by wealthy tax evaders and the like, who seem to identify reciprocal requirements only among the working class) and accepts that people gain ‘social rights of citizenship’, in TH Marshall’s timeless phrase; and that unemployment is, at least partially, the result of structural forces that are beyond the control of the individual, then unemployment benefits should be granted to individuals as a right. And since benefits did not, in the past, depend on participating in work schemes, adding this condition suggests that poor individuals are required (as they have very little choice in the matter) to work without pay, constituting almost the dictionary definition of forced labour. The plot thickens when we ask cui bono? As with slavery and forced labour, there will always be someone benefiting from cheap labour. A freedom of information request filed by Boycott Welfare revealed that local councils in UK benefited from over half a million hours of unpaid labour through government back to work schemes, in libraries, parks, etc. Similarly, in a series of articles in the NY Times, and in a fascinating book, Jason DeParle exposed numerous occasions of workers being dismissed from low-paid jobs, only to be replaced by (free) workfare scheme participants (sometimes – they were the same people, now coming to work for free!).

What of the administrative legal structure that governs workfare? Here, some brief background is required. The current scheme is, in fact, a revised version of a previous attempt by the Coalition government.

Caitlin Reilly
Caitlin Reilly

The previous Employment, Enterprise and Skills Scheme, put in place by the Jobseekers’ Allowance Regulations 2011, was found to be flawed by the High Court, the Court of Appeals and the Supreme Court following a successful challenge by Caitlin Reilly and Jaimie Wilson. In both cases, the High Court found that the claimants were not given written notice concerning their participation in the scheme. On appeal, it was determined that the flaws in the scheme lie not only in its implementation, but actually run deeper. The Court of Appeal concluded, and the Supreme Court agreed, that the 2011 Regulations are ultra vires section 17A of the Jobseekers Act 1995 because they fail to prescribe the description of the relevant schemes.

This finding was the cause not only of serious embarrassment, but could have been very costly, as it had potential implications for thousands of other participants sanctioned under the scheme. In a highly controversial move, the government (with support of members of the opposition) swiftly passed a retroactive measure – the Jobseekers (Back to Work Scheme) Act 2013 and the Jobseekers’ Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013. The intention of the 2013 Act and Regulations was to validate the 2011 Regulations retrospectively, a measure derided by some as an affront to the rule of law, and a ‘shameful retroactive stitch-up’. As to their substance – the 2013 Regulation simply incorporated the schemes that were purportedly included in the 2011 Regulations. And so, now we can find, in Regulation 3(8), that the Work Programme scheme authorises the provider (very often – a private company) to subject the claimant to work placements for the benefit of the community for a period of up to two years!

The administrative failures of the earlier scheme were easy to amend: include details of the schemes into the new regulations, inform participants very clearly of their duties, include details of the extent of the scheme, and all is well. Or is it? We find, then, that between narrow (and thus extremely successful, but short lived) challenge of administrative law, and the broad, constitutional, human rights based challenge of aligning workfare with forced labour (which never had a chance to succeed) lies a vast terrain that was not addressed: the substantive area of employment rights and employment relations.

Workfare is stealing jobs
Workfare is stealing jobs

Workfare is, after all, an extremely harsh employment measure. The government’s incentive to put claimants in the scheme can be explained, for example, by the fact that the Office of National Statistics classifies workfare participants as being in employment, thus helping push up the employment rate. Within the family of human rights violations, even within the ambit of Article 4, it is a far cry from being a serious violation (incomparable, for example, with the case of Siliadin v France). Administrative challenges, on the other hand, when established, are easy for courts to accept, and easy for governments to amend. But between the two, at the heart of the matter, lie the effect that workfare has on the employment prospects of the participants, and on the terms and conditions of other workers, who are now in impossible competition with unpaid labour. Thus, it may be worth considering that a DWP report on the pilot programme, was published (with no press release, for reasons that will be very clear) in 2012. According to Jonathan Portes, who conducted a review of the report on behalf of the NIESR, the scheme “has no impact on employment; it leads to a small and transitory reduction in benefit receipt; and worst of all, it may even lead to those on the programme moving from Jobseekers’ Allowance to Employment and Support Allowance”.

Claimants, and other low-paid workers, are subjected to serious labour rights violations as a result of workfare schemes. But if workfare is to be challenged successfully, it should be done by addressing the true nature of its harm.

Amir Paz-Fuchs is Lecturer in Employment Law at the University of Sussex, and author of Welfare to Work: Conditional Rights in Social Policy (OUP).