Wednesday, 30 October 2013

Liberty, Vires and Fairness: the UKSC Decision on Workfare

The UK government has established a variety of schemes with the goal of returning welfare recipients to the workforce. Some require claimants to work in return for benefits. R. (Reilly) v. Secretary of State for Work and Pensions, [2013] UKSC 68 addresses the legality of two of these "workfare" schemes. Of particular interest, given the implications for the applicants' freedom of choice, is the interpretive approach taken by the UK Supreme Court. This, it seems to me, is long on principle, but short on practical effect.

The schemes were developed on the back of the Welfare Reform Act 2009, which provided for the making of regulations which would, in "prescribed circumstances" and for a "prescribed period" impose an obligation on welfare claimants to work for free. These regulations were also to have a "prescribed description". But when they were first issued, the regulations did not set out in any detail the characteristics of the workfare schemes in question. Moreover, the applicants were led to believe that participation in the schemes was mandatory and that failure to do so would lead to the loss of their welfare benefits.

Lord Neuberger and Lord Toulson wrote for the Court. Although they acknowledged the force of the Minister's argument that the phrase "prescribed description" should not be read as imposing too high a requirement on the Minister, they held that the invasion of personal liberty called for close judicial scrutiny of the vires of the regulations:
47. The courts have no more important function than to ensure that the executive complies with the requirements of Parliament as expressed in a statute. Further, particularly where the statute concerned envisages regulations which will have a significant impact on the lives and livelihoods of many people, the importance of legal certainty and the impermissibility of sub-delegation are of crucial importance. The observations of Scott LJ in Blackpool Corporation v Locker [1948] 1 KB 349, 362 are in point: “John Citizen” should not be “in complete ignorance of what rights over him and his property have been secretly conferred by the minister”, as otherwise “[f]or practical purposes, the rule of law … breaks down because the aggrieved subject’s legal remedy is gravely impaired”.
Yet this ringing statement of principle was qualified: "it is also incumbent on courts to be realistic in the standards they set for such compliance" (at para. 47).

Indeed, although they struck down the regulations on the failure to satisfy the "prescribed description" requirement, they upheld them against challenges based on the other two requirements. The "prescribed circumstances" requirement was satisfied even though the regulations provided, without elaboration, that the Minister could single out any welfare recipient for participation in the workfare scheme (para. 51). And the "prescribed period" requirement was satisfied, even if the period was "open-ended" because it would begin and end on various dates triggered by actions of the Minister rather than calendar dates (para. 52).

Or, in other words, liberty is important enough to require judicial scrutiny of the legality of delegated legislation, but not close judicial scrutiny. If that is so, however, it is difficult to see what role "liberty" plays in the analysis. Any claim that delegated legislation does not meet the requirements set out by statute requires judicial scrutiny, but this would be the case whether or not the applicant's liberty interests were affected. What more might liberty interests add to the analysis? Perhaps they would cause a court to be less deferential to the executive in assessing whether the statutory requirements were met. This is what the rhetoric suggests, but the ultimate outcome suggests otherwise. Liberty interests played no substantive role in the Court's analysis.

The second issue was whether valid written notice was given to the applicants. In the case of one of the applicants, no notice at all was given. In the other case, the applicant alleged that the notice given did not comply with regulations requiring specification of "details" of the applicant's participation in the scheme and "information about the consequences" of failing to participate.

The applicant won on the first point, but not on the second. On the first point:
55. Again, it is necessary to balance practicality, in the form of the need of the Secretary of State and his agents for flexibility, against the need to comply with the statutory requirement, which was plainly included to ensure that the recipient of any such letter should have some idea of where he or she stood. A requirement as general and unspecific as one which stipulates that the recipient must “complete any activities that Ingeus asks you to do”, coupled with the information that the course will last about six months falls some way short of what is required by the words of regulation 4(2)(c), even bearing in mind the need for practicality.
But on the second:
57. If the letter had warned Mr Wilson in general terms that failing to participate might result in loss of benefit, we think that it would have been sufficient. The letter was more specific, in that it said that he risked losing “up to 26 weeks” loss of benefit, which was the maximum on any one occasion. This would have made it plain to Mr Wilson that he could face a lengthy period of loss of benefit if he failed to participate. Whether the issue is to be judged from the perspective of Mr Wilson or of a reasonable person in his position, we are not persuaded that the imperfections of the warning were sufficiently misleading or prejudicial that the letter should be held invalid on that account.
In the light of these conclusions, one again has to wonder whether liberty interests played anything more than an ornamental role in the decision. If they really were to be accorded as much importance as the rhetoric suggests, the applicant should have won on both points. High standards should have been required of the Minister.

And on yet a third issue, ringing statements of principle also largely gave way to expediency. The applicants argued that the nature of the scheme, with its significant intrusion on personal autonomy, should lead to a requirement that information about the scheme be published. The Court agreed in part, acknowledging that "[f]airness...requires that a claimant should have access to such information about the scheme as he or she may need in order to make informed and meaningful representations to the decision-maker before a decision is made" (at para. 65) (and, notably, identified the "important role" that "voluntary agencies such as Citizens Advice Bureaus" have "in informing and assisting them in relation to benefits to which they may be entitled, how they should apply, and what matters they should draw to the attention of their Jobcentre adviser").

But while acknowledging the need for the Minister to inform individual claimants, the Court refused to impose a general obligation to publicize workfare schemes:
74. ...[I]t would be wrong to be prescriptive as to how that information should be given. It is a proper matter for a court to determine whether, and if so what, information is required to be communicated by the government, and whether a particular means of communication satisfied that requirement. However, it should not, absent unusual circumstances, be for the court to prescribe a specific means of communication. In this case, it would involve the court going too far if it was to rule that descriptions of the schemes must, as a matter of law, be published to the world at large. The desirability of publication in the manner described in para 65 above is obvious, but practical desirability does not equate to legal requirement.
The Court also rejected an argument that the workfare schemes violate the forced-labour prohibition in Article 4 of the European Convention on Human Rights (summarized at para. 90) and had some reflections on mootness, due to the fact that the regulations had been amended before the Court heard the appeal (at paras. 39-41).

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