Earlier this week it was ruled that the Government’s Work Programme was unlawful. The three judges who heard this case in the Court of Appeal ruled that the Secretary of State for Work and Pensions had acted unlawfully by not giving benefit claimants on the programme sufficient information about the penalties they faced, nor about their rights to appeal against being made to work for free.

• Mhairi Aylott is a researcher at the Young Foundation and works as part of the Applied Innovation team, supporting a range of government bodies, charities and organisations to innovate for positive social change. Mhairi led research on the Justice strand of work at the Young Foundation, with expertise in Social Impact Bond and Payment by Result modelling.

Cait Reilly, a university graduate, was forced to work at Poundland for two weeks, and told that her refusal would result in her Job Seekers Allowance being stopped. She argued that having to stack shelves or face losing £52 a week breached her human rights. The decision in her favour effectively means that workers who have been sanctioned under similar employment schemes are entitled to a rebate.

Reactions to the decision
Reilly is ‘overjoyed and relieved’.

‘Obviously I don’t want to get rid of the government helping people get into work because that’s what we want, that’s what we’ve been fighting for really. But we wanted to get rid of the aspect of punishment about it, where people are forced into things that they necessarily don’t need to be doing.’

Unions too are celebrating this decision, apparently hailing Reilly as a ‘hero’. Liam Byrne, shadow work and pensions secretary, has called the Government ‘incompetent’; while Claire Laker-Mansfield, spokeswoman for Youth Fight for Jobs, contends the Government must immediately shut down all unpaid ‘ineffective slave labour schemes’.

Tessa Gregory, of the Birmingham-based Public Interest Lawyers, represented Reilly: ‘This judgment sends Iain Duncan Smith back to the drawing board to make fresh regulations which are fair and comply with the court’s ruling.’ Tom Walker, employment law partner at the law firm Manches, said that the judgment upheld ‘what is perhaps the key tenet of employment, namely the ‘work wage bargain. If someone gives their labour to a company, they should be paid for it.’

Responding to the ruling, Mark Hoban, Minister of State for Employment, said: ‘The court has backed our right to require people to take part in programmes which will help get them into work. We are, however, disappointed and surprised at the court’s decision on our regulations. We do not agree with the court’s judgment and are seeking permission to appeal, but new regulations will be tabled to avoid any uncertainty.’

Ian Duncan Smith also issued a strong retort via The Sun, stating ‘back-to-work schemes are successful and not slave labour. Nobody works for free on these placements because the Government continues to pay their benefits. So nobody is working for nothing, are they?’

Questioning the judgement, The Telegraph argued it was ‘wrong for those on benefits to scorn particular placements as beneath them or unsuited to their skills. The jobs offered will never be ideal; but the most important thing is to get on to the ladder.’ They disagreed that benefit claimants wre being used as ‘forced labour’, seeing voluntary placements as worthwhile.

Matthew Oakley of Policy Exchange, said:

‘Let’s be clear. This is not a ruling against back-to-work schemes and should not be seen as some sort of body blow to the Government’s welfare plans. Ultimately, the Government’s approach is the right one.’

What does this decision mean in practice?
The Spectator reflected that ‘depending on which paper you read this morning’ the government’s work experience scheme was ‘either heading for the plug hole or going from strength to strength’. The Guardian, a supporter of Cait Reilly since the original claim, has celebrated the decision, reckoned that the ‘government’s employment strategy lies in tatters’. On the other hand, The Sun and Daily Mail was backing the Government, maintaining the work programme is not forced labour.

It is this point where the fine detail of the court’s decision is important, and where the potential impact of the decision lies. The court itself did not rule that the programme was unlawful due the argument around ‘forced labour’ – it was because of a lack of information regarding legal rights and regulations surrounding the scheme.

The court is almost supportive of the work programme:

‘A policy of imposing requirements on persons receiving a substantial weekly sum, potentially payable for life, is readily understandable. Equally, the means sought to achieve that end are understandable; claimants should be required to participate in arrangements which may improve their prospects of obtaining remunerative employment.’

As the scheme is not unlawful in itself, Adam Wagner, editor of the UK Human Rights Blog, has commented that this ruling is ‘mundane’ and that those ‘hoping for a principled rejection of back-to-work schemes will be disappointed’.

Yet Wagner touched on a critical point stemming from this ruling, namely that ‘this judgment shows the importance of judges guarding against government overreach, and how wary the public should be of ministerial tinkering with the rules.’

In a time when the Government is attempting to restrict judicial review, this decision shows the importance of the process, keeping powerful ministerial decisions in the reach of legal scrutiny. I’ve covered this here.

Continuing with the status quo?

Despite the differing opinions on the matter, what is important is that the schemes are still operating, and are ‘not heading down the plug hole any time soon.’  DWP were apparently ‘remarkably unperturbed’, and with changes already in place around the unlawful regulations, officials were insisting that there would be no need to embark on widespread benefit repayment – no such rebates would even be considered until DWP exhausted all legal avenues. The problem was with the small print and fine detail of the implementation, not the broader idea, and with the new regulations brought in straight away, this so called ‘unlawful’ scheme is able to continue.