Jobseekers (Back to Work Schemes) Bill

Baroness Lister of Burtersett Excerpts

Thursday 21st March 2013 Lords Chamber

[Baroness Lister of Burtersett]

My Lords, I support the amendment in the name of my noble friend Lord McKenzie of Luton. The amendment just about says it all: incompetence leading to retrospective legislation; unjustified fast-tracking; and the need for various assurances, to which we will return in Committee. I simply want to add two points, as well as reflect on the implications of retrospection.

My first point is a brief social policy one. I accept the Minister’s point that the case was not about the substance of the policy, but that is the context in which it is being debated and it helps explain some of the anger that is being expressed outside this House.

Of course, as my noble friends have said, we are not arguing that there should be no sanctions. Despite all the political talk about social security having been for too long all about rights and no obligations, benefits for unemployed people have always been conditional on requirements associated with paid work, and if those conditions are not met there has always been some form of sanction. However, over recent years, those requirements have been extended to groups not previously expected to seek work, and have become increasingly onerous. At the same time, the sanctions regime has been ratcheted up further to new heights under the Welfare Reform Act 2012, while at the same time the hardship provisions are being weakened.

Cait Reilly, the young woman whose appeal has led to this Bill, was required to give up voluntary work that she was doing at a local museum, which was highly relevant to the kind of paid work she hoped to pursue, in order to participate in a sector-based work academy placement that required her to give her labour for nothing. What was the sense in that? Ms Reilly commented that she agreed that,

“we need to get people back to work but the best way of doing that is by helping them, not punishing them”.

It is hardly surprising that claimants are experiencing this sanctions regime as punishment, because it is increasingly punitive. That is one reason why we need an independent report into the sanctions regime that goes wider than the one provided for in the Bill. We will return to this matter in Committee, as my noble friend Lord McKenzie has said.

My second point concerns the human rights implications of this miserable Bill. I speak as a member of the Joint Committee on Human Rights, but I cannot speak for the committee because the fast-tracking of this Bill has made it impossible for the committee to scrutinise it, as the noble Lord, Lord Pannick, has hinted. This is also to be deplored. Although there has been no formal human rights memorandum, the Explanatory Notes contain almost a full page explaining why the Government believe that the Bill is compatible with the European Convention on Human Rights. Yet it is clear from how it is couched that the Government acknowledge that they could face a challenge on the grounds that the legislation interferes with property rights under Article 1 of Protocol 1 of the ECHR. Indeed, they implicitly accept that there is such interference when they state that,

“any such interference is justified as there are compelling public interest reasons for doing so, given the significant cost to the public purse of repaying previously sanctioned benefits, and as the aim of the proposed legislation is intended to restore the law to that which Parliament intended”.

The Government also concede that:

“A claimant might also argue that legislation which removes their right to a refund of sanctioned benefits, or allows the Secretary of State to impose a sanction, notwithstanding the Court of Appeal’s decision, is a breach of their right of access to court under ECHR Article 6”.

They go on to explain why they believe that this is not the case, but end by saying:

“Even if the proposed legislation would interfere with a right of access to court, the Government considers that the interference is justified for similar reasons as for Article 1 of Protocol 1”.

Reading this as one of the few non-lawyer members of the JCHR, the Government seem to be well aware that they are treading on thin ice with regard to the human rights implications of this Bill and that at the very least there is a case to answer. As it happens, the notice of objection lodged in response to the Secretary of State’s appeal to the Supreme Court argues:

“The actions of the Secretary of State and the Act, if enacted, represent an interference in these proceedings that is contrary to the rule of law as protected by Article 6”.

This legislation is in effect interfering in the proceedings of the Supreme Court and pre-empting any decision that it might make. This is a serious matter. The Minister said in his opening remarks that the Bill would not affect the case before the Supreme Court. I did not quite understand that, so perhaps he could explain more fully in his response.

The notice of objection goes on to state:

“Mr Wilson would also wish to contend that the retrospective imposition of benefits sanctions on him represents a violation of Article 1 of the First Protocol”.

It is therefore clear that serious human rights questions are raised by this Bill, but that, because it is being fast-tracked through Parliament, having been pondered over for a month in the department, as underlined by the Constitution Committee—I was not convinced by the Minister’s response on that to my noble friend Lord Foulkes—the committee charged by both Houses of Parliament to advise on such matters has been prevented from doing so. This is surely a disgrace. The committee has already been effectively circumvented by the speed of passage of the Welfare Benefits Up-rating Bill through Parliament, despite its clear implications for the social and economic human rights of children, when it will cast 200,000 more children into poverty.

I return to the Bill in question. On the day after a Budget that says we can afford to cut the cost of a pint of beer, never mind the tax cut to be enjoyed by the highest earners next month, we are told that it is justified to override constitutional and human rights principles—which the noble Lord, Lord Pannick, said were priceless—for the sake of £130 million. Of course, we are then threatened with this £130 million being taken from elsewhere in the social security budget if Parliament refuses to go along with this charade.

As a lay person, I have been trying to get my head around the implications of retrospection. It seems to me like legal science fiction where the Government are able to operate in a parallel universe where they can say that what happened did not happen by the strike of a legal pen, or, more to the point, that what did not happen—that is, adequate notification to claimants of their legal position under the sanctions regime—did in fact happen. Somehow by the stroke of that legal pen, the administrative law principles enunciated by Lord Justice Pill and Sir Stanley Burnton in the Court of Appeal decision of 12 February can simply be set aside.

Sir Stanley Burnton made the point that:

“There is a constitutional issue involved. The loss of jobseekers’ allowance may result in considerable personal hardship, and it is not surprising that Parliament should have been careful in making provision for the circumstances in which the sanction may be imposed”.

He also said:

“The Secretary of State cannot avoid the requirements of the Act in relation to schemes by calling them programmes. It would be absurd to conclude that a scheme is subject to the statutory requirements only if the Secretary of State decided to call it such”.

Reading the judgment and reflecting on this legislation, it struck me that the parallel universe that I mentioned could have been devised by Lewis Carroll. Noble Lords will recall the pointed exchange between Humpty Dumpty and Alice in Through the Looking Glass:

“‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master—that's all’”.

Unfortunately, in fast-tracking this legislation, the Government are proving that they are master—and abusing power, as the noble Lord, Lord Pannick, put it—and that they can make ultra vires regulations mean in retrospect what they wanted them to mean. Moreover, as the nub of the Court of Appeal judgment was that the claimants were not provided with the legal certainty required by the law, they are saying that they can create legal certainty in retrospect where legal certainty did not exist: a true Humpty Dumpty stroke if ever there was one. However, just because the Government are master, it does not make them right. I therefore hope that noble Lords will express their unhappiness with this fast-tracked, retrospective, constitutionally and human rights-dodgy legislation by supporting my noble friend’s amendment.

--- Later in debate ---

[Lord Freud]

The moment that there is a ruling—if there were to be a ruling—against the department, we would be liable from that moment to repay. What would we do? Would we obfuscate, say that we could not pay and were dealing with the paper work while we put through emergency legislation? We would be obliged to make the payments from the moment when the ruling came through. That is what this is about. It is why we are going ahead at this time and at this speed, which is clearly not something that we enjoy doing.

I turn to the review, which we have taken on in response to the Opposition in the other place requesting such a review. It will focus on the sanctions affected by the provisions of the Bill, which amount to roughly 25% of all JSA sanctions issued in the period. I have heard today concern from Peers about how DWP issues sanctions to JSA claimants more generally. I would like to make it clear that the department will discuss with the Opposition the terms of reference of the sanctions review. I assure noble Lords that the stockpile of claimants who are issued with a benefit sanction as a result of the legislation will receive the same information that is received by all claimants who are sanctioned for failing to participate in a scheme; namely, they will be told about their right to appeal, how to appeal and how they can go about claiming for hardship.

I will try to pick up as many of the questions that I have not dealt with as I can. I hope that the noble Lord, Lord Pannick, appreciates how closely we have studied the Constitution Committee’s report. I can tell him that Miss Reilly will not be affected by the legislation as she complied with the scheme that she was required to attend and was not sanctioned. I say to the noble Lord, Lord McKenzie, that we needed to put the regulations out within a day to keep mandating claimants going forward. The retrospective legislation required careful thought and an exploration of all the avenues. We also consulted the Opposition and the whole process took some weeks. I assure the noble Lord that there are absolutely no benchmarks or targets for sanction referrals. Sanctions will involve a temporary loss of benefit. We will not seek lump sums from people in work. We will look to use good cause and, for the more recent sanctions, good reason, but they are in practice the same.

As I said to the noble Baroness, Lady Hollis, a little earlier, the information given to claimants was not confined to what was in the letters. The sanction decision notice provides information on how to appeal and access other help. The noble Lord, Lord Bach, was concerned about legal aid. The first stage of the tribunal process is inquisitorial and legal aid is not required. It helps to ensure that everything that is relevant is considered. That is the job of the tribunal. I say to the noble Baroness, Lady Lister, that the Bill is compatible with the ECHR and will overturn some of the undesirable consequences of the judgment. That should not be done lightly but it is entirely proper to do so in the circumstances.

A number of noble Lords enjoyed having a go at the Work Programme. However, it has resulted in 200,000 people moving off benefits. The PAC report is somewhat premature in its conclusion about what is happening. I look forward to talking about that programme further in the months to come. I conclude by urging the noble Lord to withdraw—

[Baroness Lister of Burtersett]

I quite understand that the noble Lord has not been able to answer all the questions that were asked. However, will we get answers to those questions over the weekend?