Jobseekers (Back to Work Schemes) Bill

Ian Lavery Excerpts

Tuesday 19th March 2013 Commons Chamber

[Ian Lavery (Wansbeck) (Lab)]

In the Reilly and Wilson v. Secretary of State for Work and Pensions court case on 12 February 2013, the applicants challenged the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 on four grounds. The first was that the scheme named in the 2011 regulations was beyond the powers of section 17A of the Jobseekers Act 1995. In other words, the regulations did not comply with the requirements of the Act. Secondly, the regulations could not be enforced in the absence of a published policy. Thirdly, notices to individuals mandated to take part in such schemes were inadequate. The fourth part, which was set aside, was the suggestion that the regulations conflict with article 4(2) of the European convention on human rights, which provides, subject to exceptions, that

“no one shall be required to perform forced or compulsory labour.”

Many organisations totally oppose this Bill for a wide and varied range of reasons, and it is unfair to claimants to legalise retroactively penalties that the Court has judged unlawful. Contrary to Government claims, it is not obvious that the DWP would have to repay sanctioned benefits to all claimants, so the stated £130 million potential loss is inaccurate. The Government already have anti-test case law rules that would prevent them from having to repay anything for sanctions served prior to 6 August 2012, and more information on that point would be extremely helpful when the Minister responds to the debate.

It is of constitutional concern if the DWP undermines the judiciary and the rule of law by using retroactive legislation to avoid accountability for its own errors, and to negate any further appeal judgment by the Supreme Court that upholds the Court of Appeal judgment. Legal representatives who were in court for the Reilly and Wilson case stated categorically their belief that:

“The emergency Bill is a repugnant attempt by the Secretary of State for Work and Pensions to avoid his legal obligation to repay the thousands of jobseekers who…have been unlawfully and unfairly stripped of their subsistence benefits…The use of retrospective legislation, which is being fast-tracked through Parliament, smacks of desperation.”

I believe that is polite in the extreme. They went on:

“It undermines the rule of law and means that Iain Duncan Smith is once again seeking to avoid proper parliamentary scrutiny of his actions…It is time for his Department to admit that maladministration and injustice costs.”

Other civil liberty groups and human rights campaigners have today explained to the press—it has just been released on the BBC—that they believe this type of retrospective legislation is a typical component of oppressive regimes. They could not have put it any stronger than that. The measure has been described by some organisations as “almost unbelievably disgusting”, and they said that the DWP

“broke the law, now they want to retroactively change the law so that they didn’t break the law in order to keep £130m out of the pockets of some of the poorest people in the country…The High Court found workfare unlawful precisely because people had no way of knowing the rules that applied. It shows an incredible level of arrogance and disregard for the poorest to now attempt to backdate laws to challenge this ruling.”

It has been correctly argued that the Bill would set a dangerous legal precedent if passed, and send a message that when citizens defeat the Government in court, the Government can overturn the Court ruling retrospectively with primary legislation—effectively making the Government, and the DWP, above the law. Who is in charge?

If this Bill is enacted, it is not clear what would happen in the cases of those who have successfully appealed against decisions to impose sanctions. It appears that there have already been successful appeals against sanction decisions at first-tier tribunals, following the Court of Appeal judgment. The Government’s argument is that the Bill will protect taxpayers by saving them a bill of £130 million. May I dare to suggest that that is denying those claimants their legal entitlement? Taxpayers will be better served if back-to-work schemes are properly scrutinised to ensure efficacy and that taxpayers are receiving value for money. That is a separate argument and has been stated well from both sides of the House this afternoon.

We can see from the poor performance of the Work programme so far, with only 3.5% of people referred to the programme finding a long-term job, that people are more likely to get a job without that scheme than with it. Is there a £130 million liability that would have to be repaid? The Government argue that legislation is necessary to protect the public purse from having to repay £130 million of sanctions that have been imposed. As I said earlier, however, significant anti-test case provisions already within the social security system mean it is highly unlikely that the Government would be required to repay all the sanctions. Section 27 of the Social Security Act 1998 allows the DWP not to change decisions that were only shown to be wrong by a decision of a court. It means that the DWP could probably resist repayment in all cases where the sanction was imposed and served before the High Court decision of 6 August 2012, as well as decisions after that date where no appeal is sought.

When researching for my contribution to this debate I looked at the explanatory notes and the impact assessment published with the Bill, and a number of issues really stuck out. Paragraph 9 states:

“The Bill has been introduced to avoid the need to repay claimants who have been sanctioned for failure to comply with requirements under the ESE Regulations and to be able to impose sanctions where decisions have been put on hold since the decision of the High Court or Court of Appeal. If this were to happen, the cost to the taxpayer is estimated to be up to £130 million.”

The Bill is being introduced to save the taxpayer up to £130 million, yet it deprives the most vulnerable people who have been on workfare and are looking to better themselves in employment. It has been introduced to deny £130 million compensation to 300,000 people who would like decent employment with decent wages, terms and conditions. The Government have introduced emergency legislation to prevent those people from getting only what the Court of Appeal says they deserve. That is an absolute outrage.

The explanatory notes state:

“The effect of the Bill will be that any decision to sanction a claimant for failures to comply with the ESE Regulations cannot be challenged on the grounds that the ESE Regulations were invalid or the notices given under them inadequate, notwithstanding the Court of Appeal’s judgment. This is to ensure that the Government is not faced with the situation whereby jobseekers previously sanctioned (or to be sanctioned) for non-compliance under the ESE Regulations can receive an unfair advantage over compliant claimants.”

Again, that is an outrageous statement. The notes continue:

“The Bill also addresses the risk that previous notifications to claimants made under the MWA Regulations—”

mandatory work activity regulations—

“which contain the same notification provisions as the ESE Regulations, may also be open to challenge on the basis of the Court of Appeal’s judgement.”

The explanatory notes state:

“The impact upon individuals is that JSA claimants who have not complied with requirements under the ESE Regulations will not be repaid sanctioned benefits as they might expect following the judgment or may have a sanction imposed. The Bill effectively restores the status quo to a situation before the High Court and Court of Appeal judgments. Once the Bill is enacted, claimants who might have appealed against previous sanction decisions on the grounds upheld by the Judicial Review will be unable to do so. Sanctions imposed under the…legislation can continue and sanctions decisions currently stayed can be made in accordance with the original intent of the legislation. This is to ensure that the Government is not faced with the situation whereby jobseekers who failed to comply with their requirements and were sanctioned under the quashed ESE Regulations can receive an advantage over claimants who have complied with their requirements and is necessary to safeguard the economic interests of the state.”

I wonder whether denying ordinary and mainly poor people what they have been granted in a Court of Appeal hearing is in the best interests of the country and the economy.

[Mr Hoban]

But the people taking part in the schemes knew at the start that, if they did not take part, they would be sanctioned. They knew there was a penalty for not taking part in the schemes. Does the hon. Gentleman think it right that they should not be penalised?

[Ian Lavery]

I am certain that the 300,000 people the Court says have a claim because of the illegal actions of the Minister’s Department should receive it—there is no doubt about it. The Bill is being introduced by the DWP and the Government to deprive many hard-working people, and many people who want to be hard-working, of any finance whatever. Is that in the best interests of the economy? It is an absolute disgrace. Those people will spend money in the economy. They might get £50, £100 or £72 a week, but they will spend it, because it is the only money they have. The Minister should not seek to deprive those people and leave them with no finances whatever.

[Mr Hoban]

Does the hon. Gentleman disagree with Opposition Front-Benchers, who earlier argued in favour of sanctions?

[Ian Lavery]

I have not disagreed with anyone up until now other than the Government, because they wish to deny ordinary, hard-working people—people who wish to get on in life—what the Court of Appeal says they should have.

[Dr Julian Lewis]

I am grateful to the hon. Gentleman for giving way and am sincerely impressed with the passion with which he makes his case. However, if I were in his shoes, I would be determined to vote against the Bill. Perhaps I have misunderstood something. My understanding is that Opposition Front Benchers are proposing not to vote against the Bill. If so, why not?

[Ian Lavery]

I am not sure whether the hon. Gentleman has misunderstood the situation, but perhaps when the vote takes place, he will be much better informed.

The Bill turns my stomach. The impact assessment states:

“A retrospective transfer of public money to this group of claimants would represent poor value to the taxpayer”.

What a disgrace to say such a thing in Government documents with reference to the people I have mentioned 10, 15 or 20 times previously. That will not give them self-esteem. They are doing their very best.

[Justin Tomlinson (North Swindon) (Con)]

Jobless households trebled under Labour and increasingly became the norm for the next generation. Surely we owe it to those children to assist their parents to get their first foot in the door of a job. Specifically, I recently spoke to one parent who said that her children were full of pride when she got an opportunity. Why deny that to others?

[Ian Lavery]

Members of Parliament discuss with constituents, and often people away from the constituency, the merits and otherwise of policies. I often meet people with a very different view from the people the hon. Gentleman has met. That is not to say that that has not been said, but the people I meet want decent jobs. They want the opportunity to get up in the morning and go to work for a decent wage. They would accept the minimum wage even though, at this point in time, it is not high enough. Where I live, 25 people are after every single job in the jobcentre. That means that 24 are not getting employment for every single opportunity. People want to work for the best intentions and the right reasons. They want self-esteem and finances. People where I live want to work—I am sure that extends throughout the country.

Saying that paying claimants the money that the Court says they should be paid—the result of the ruling means that the £130 million can be paid—does not represent good value for the taxpayer is an absolute disgrace. It is not the type of language we would expect from any Government. It is not right to talk about people as, “This group of claimants.” They are ordinary people with feelings, and many of them want to get on in life.

[Mr Hoban]

If they want to get on in life, why have they turned down the opportunity to get the training and support that will help them to get a job?

[Ian Lavery]

People have received sanctions for a range of reasons. The Government should not overrule a Court of Appeal ruling and introduce retrospective legislation against people just because they have received sanctions. I am sure the Minister is not suggesting that people who have, for whatever reason, received a sanction, should under no circumstances claim some sort of subsistence, even if the courts have agreed in a ruling that they should receive it.

[Mr Jim Cunningham (Coventry South) (Lab)]

I do not know whether my hon. Friend has come across such cases, but I have come across a number of people who have gone for a number of jobs, and been told, when they go back to claim JSA, that they are not trying hard enough. What an attitude in the 21st century!

[Ian Lavery]

I fully understand my hon. Friend’s point. As I have said to the hon. Member for North Swindon (Justin Tomlinson), every MP has received many representations with regard to the wide and various workfare schemes.

The impact assessment states:

“If the Department cannot make these retrospective changes, then further reductions in benefits might be required in order to find the money to repay the sanctions.”

That is blackmail of the highest order—I make no apology for the strength of my feeling on that. If people are due finances, they should get them, particularly following a court ruling, but the Government are saying, “If we pay these people, we might have to cut benefits for other people as a result because that is where we have to find the money.” That is emotional blackmail. It is totally and utterly bang out of order. They are trying to set people who are looking for work and on benefits against each other. That is absolutely unacceptable.

To conclude, I have some questions for the Minister to answer in his winding-up speech. Is it right that claimants face financial penalties for failing to participate in schemes when the possibility of those penalties had not been properly explained to them? Is it right that the Government can flout the will of Parliament, which had clearly expressed its wish to have some oversight of the schemes, especially given that the schemes that were designed and imposed on claimants without an opportunity for parliamentary scrutiny do not appear to be working?

Is it true that the DWP continued to issue letters to claimants that did not explain things properly even after the High Court had stated that the letters were inadequate?

[Mr Hoban]

That is not true.

[Ian Lavery]

From a sedentary position, the Minister says that that is not true, but I hope he will clarify that.

[Mr Hoban]

Let me clarify that now. When the High Court issued its judgment, we changed the letters to comply with its rules.

[Ian Lavery]

That is debatable.

Finally, what is the Department’s understanding on whether section 27 of the 1998 Act protects people from having to repay some of these sanctions? Some 300,000 people will be denied their legal rights if the Bill is passed. This is just another ideological attack on the unemployed and the less well-off, despite a High Court judgment. Why does the Minister not just accept the court of law? Give these people what they are entitled to. It is the Minister’s mess. Why should they suffer?