Jobseekers (Back to Work Schemes) Act 2013 (Remedial) Order 2019

Baroness Sherlock Excerpts

Thursday 3rd September 2020 Grand Committee

[Baroness Sherlock (Lab) [V]]

My Lords, I thank the Minister for her introduction to the order and all noble Lords who have spoken. With apologies for length, I shall read into the record the events that brought us here today, because we have to learn from them.

In 2009, the Labour Government launched the Future Jobs Fund, which created subsidised jobs for 18 to 24 year-olds on benefits to help them avoid the risk of long-term unemployment. Official government evaluation later found this to be a highly effective programme, with participants significantly more likely to get jobs than those who did not get involved.

Sadly, the coalition Government abolished it in 2010 to save money. They also abolished Labour’s New Deal programmes and created the Work Programme. Research later found that the Work Programme was actually less effective than doing nothing, so it was itself abolished in 2015. Part of that programme was a requirement for some claimants to do unpaid work in return for their benefits. Caitlin Reilly, a graduate who had already done a paid work placement at a museum and was volunteering there to boost her chances of getting a permanent job, was told to leave that and undertake a work placement, which turned out to be working without pay in Poundland for five hours a day sweeping floors and stacking shelves. Work experience schemes have their place, but not workfare, whereby claimants are forced to act as free labour, displacing proper jobs. Reilly launched a legal challenge and the case eventually reached the Court of Appeal, which quashed the 2011 regulations on which the scheme depended, a view upheld by the Supreme Court.

Rather than reimburse those who had been unlawfully sanctioned, the Government then repealed the 2011 regulations and introduced the Jobseekers (Back to Work Schemes) Act 2013, which retrospectively made their sanctions legal. It also validated the parallel 2011 regulations. I remember that very well. I remember the 2013 Act being rushed through Parliament—I have been in my job for ever and ever—at breakneck speed, to huge protests from the Constitution Committee and from the House. I remember the Second Reading debate, when the then Minister, the noble Lord, Lord Freud, faced an onslaught of criticism, including from the noble Lord, Lord Pannick, who pointed out that the Bill

“breaches the fundamental constitutional principle that penalties should not be imposed on persons by reason of conduct that was lawful at the time of their action”.—[Official Report, 21/3/13; col. 739.]

Occasionally, all of us in politics need to reflect that when we legislate in haste, we may repent at leisure. Reilly and others went back to court and, in a case that went right up to the Court of Appeal, the 2013 Act was in turn ruled unlawful because it had interfered with ongoing legal proceedings challenging benefits sanctions by retrospectively validating those sanctions.

In 2018, the Government laid a remedial order to fix things. Third time lucky? Alas not. As we have heard, following an intervention by a tribunal judge, that order was itself deemed to be at risk of challenge as it did not cover both sets of 2011 regulations. It was withdrawn, and last September this revised remedial order was laid.

Fourth time lucky, the Government have finally landed in the right place. We welcome this remedial order, which will restore the right to a fair hearing for all affected claimants, but there are some really important questions the Minister needs to answer. I recognise that she was not in post at the time, but the Government need somehow to explain to Parliament what they have learned from this mess.

First, can she remind us what will happen to the individuals affected by the order and how many of them there are? In the Commons, the Minister mentioned 5,000 people. I was not clear whether that is 5,000 people whose benefits were sanctioned and had appealed, and what stage that had got to. How many of those are likely to be recompensed and will DWP proactively try to locate them all?

Secondly, in the seven years it has taken to get this far, what have we learned? The Minister mentioned in her introduction a need to learn lessons about communicating better, but can she tell us whether a full lessons-learned exercise has been done on this case? Have Ministers asked what could have been done to avoid these various breaches of the law happening in the first place? What actions could have resolved it sooner? Have they reviewed whether it was right to spend so much time and public money appealing the decisions all the way, or should they have acknowledged and fixed the mistake earlier? Have they asked what drove the later errors? Was it money? Was it political intransigence or determination?

How does this play in the light of the worrying noises from the top of this Government threatening the whole principle of judicial review, misleadingly presenting it as the courts interfering with Parliament, rather than what it is—the courts upholding the requirement that the Government conduct themselves in accordance with the laws passed by Parliament?

Rather than just digging in and fighting citizens in the courts—including, in this case, by taking away the rights of others to appeal—could DWP better learn what systemic change might be needed to improve the system? What have the Government learned about how they use sanctions and their impact on claimants? I heard the very moving comments from the noble Lord, Lord Forsyth, and the noble Baroness, Lady Bowles, and others. I am very grateful to them and others on the committee for the work they are doing in this area.

We knew the problems back in 2013. At a Second Reading debate, my late and much missed friend Lady Hollis reminded the Minister that the DWP’s own research showed that between half and two-thirds of those sanctioned did not know that it could happen, and when it did, they did not know why. In some cases, because they had other deductions from benefits, they did not even realise that they were being sanctioned, so it obviously had no impact on their jobseeking behaviour. I will not say any more on this, as others have covered it, but I will be very interested in the Minister’s response to that.

That takes me to my final question: what lessons have the Government learned for employment support policy? Do they now value enablement and encouragement over punishment? Will they learn from the past?

Perhaps ironically, we are debating this order the day after the Kickstart Scheme opens to bids—a scheme offering six-month work placements to unemployed 18 to 24 year-olds on benefits. However, the Future Jobs Fund was so successful because the Labour Government got the culture right from the start and because it was collaborative. Will the Government learn lessons from the Future Jobs Fund, and from all the events we have debated today, to ensure both that Kickstart works well and that the DWP is focused less on enforcing conditionality—especially in the middle of a pandemic with enormous fallout for unemployment —and more on supporting people into long-lasting employment? I hope that is a goal we can all share. I look forward to the Minister’s reply.