“Sovereign”, the Nazi philosopher Carl Schmitt once wrote, “is he who is above the law”. Schmitt rather approved of sovereigns—or rather dictators—and disapproved of judges and the rule of law, especially of the liberal variety. But Schmitt justified the legitimate use of arbitrary executive power only in the emergency circumstances of what he termed “a state of exception” where the enemies of the nation are circling and its state institutions are too enfeebled to act in their own defence.
In Giorgio Agamben’s account, what Schmitt prospected, and what has become the common fate of the so-called advanced liberal democracies, is the triumph of “constituted power” in the guise of the sovereign dictator over “constituent power”, or the norms of law and the norms of the realisation of law (in German Rechstverwirklichung).
We see this most strikingly in the case of the ‘War on Terror’ with its extra-judicial prison camps for enemy combatants who are afforded none of the rights and protections of the Geneva convention, in the use of state orchestrated kidnap and extra-territorial secret rendition, in the ‘offshoring’ of torture based interrogations and in the use of ‘signature killings’ through presidentially approved drone strikes.
However, that is not to say there are no circumstances in which a state of emergency can be justified. As Lord Hoffman declared in the Belmarsh judgment (A and others vs SSHD, 2004), which ruled unlawful the indefinite detention without charge or trial of foreign terror suspects
There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government. It happened during the Napoleonic Wars and during both World Wars in the twentieth century. These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised. But the necessity of draconian powers in moments of national crisis is recognised in our constitutional history. Article 15 of the [European] Convention [on Human Rights], when it speaks of “war or other public emergency threatening the life of the nation”, accurately states the conditions in which such legislation has previously been thought necessary.
As the Law Lords found in the Belmarsh case, where there is no imminent and genuine threat to the survival of the nation, such emergency powers have to remain firmly locked away, and the ordinary administration of justice allowed to pursue its work—even in the face of a real and on going terrorist threat.
So much for the judges. In a state of emergency, freed from the constraints of the rule of law, the sovereign is able to define its enemies not only as those who constitute a threat to the security of the state but as any group or individual that act(s) against the will, interests or purpose of the state. Crucially, the decision as to when a state of emergency exists rests with the sovereign, or rather in the case of the United Kingdom, with ‘the Crown in parliament’.
In the so-called Poundland case, Cait Reilly claimed that the Department for Work and Pensions had unlawfully required her to work unpaid in Poundland for two weeks on a mandatory work placement and Jamie Wilson claimed the Department had unlawfully sanctioned him by withdrawing his jobseekers allowance after he refused to attend a scheme known as the Community Action Programme which required him to work for 30 hours a week for six months, unpaid. The claimants argued that the Jobseeker’s Allowance (Employment and Enterprise) Regulations 2011 were unlawful because the Regulations failed to provide a description of each Back to Work scheme or the circumstances in which an individual can be required to participate in a scheme.
Reilly and Wilson also claimed that the Secretary of State must set out each scheme in a published policy that explains clearly the features of the scheme, including what type of work a person can be compelled to undertake and the circumstances in which they can be required to undertake the work. This they say the Secretary of State manifestly failed to do. They also contended that the Department had failed to comply with its own notice requirements under Regulation 4 of the 2011 Regulations which required that those on Job Seekers Allowance be provided with specific notice of certain matters, such as the details of what is required by way of their personal participation in the scheme and notice of the consequences of not participating.
The High Court found partially in favour of the claimants who then sought further leave to appeal to the Court of Appeal on the grounds that had been initially dismissed. All three Appeal Court judges upheld the claimants appeal and ruled that the 2011 Regulations were unlawful and that the Secretary of State had acted beyond the powers given to him by Parliament by failing to provide any detail about the various “Back to Work” schemes in the Regulations. The Secretary of State had in effect bypassed Parliament and failed to get Parliamentary approval for the multitude of back to work schemes he was introducing.
Sir Stanley Burton summed up the view of the Court of Appeal thus:
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.
While Parliament may have been careful to prescribe the circumstances in which compulsory participation in unpaid training and work schemes can be applied, the Secretary of State subsequently relied on statutory instruments that made anything but careful provision. This was because the intention was to provide maximum flexibility to government officials and minimum transparency or explanatory purpose to those claimants selected for the schemes.
In other words, despite Ian Duncan Smith’s increasingly unconvincing denials, the administration of workfare has become a game of maximising sanctions targets, as a leaked letter to The Guardian from the manager of a Job Centre in Walthamstow has exposed:
Guys, we really need to up the game here. The 5% target is one thing – the fact that we are seeing over 300 people a week and only submitting six of them for possible doubts is simply not quite credible.
Further testimony from other parts of the UK bears out what OurKingdom contributor Aaron Peters, describes as “the weaponization of workfare” and what Tony Curzon Price identifies with the “quasi-penal” approach to the management of the labour precariat.
This mounting evidence gives the lie to government claims that compulsory work based ‘training’ placements are designed to get the long term unemployed into permanent jobs. Even the Department for Work and Pension’s own data reveals that compulsory workfare placements with young people have a lower success rate in securing jobs for the long-term unemployed than allowing those on job seekers allowance to find their own employment. A comparative review of workfare schemes around the world reported in Christopher Barrie’s OurKingdom article came to similar conclusions about their lack of effectiveness: “There is little evidence that workfare increases the likelihood of finding work”.
Most of these schemes are outsourced to multinational private security and detention behemoths including G4S, infamous for its London Olympics security omnishambles, which won the government workfare bid by promising to “send a field operative to a claimant’s door within two hours if that person was non co-operative”. At their ‘Capital Market Day’ presentation for investors in May 2011, G4S’s former Chief Operating Office, David Taylor-Smith (who was forced to resign over the London Olympics security debacle) boasted:
Welfare to Work, very, very interesting win this for us. We were seen as the biggest net winner of these recent awards. I’m just reminding those tax payers, if there are British taxpayers in this room [sic], £159 billion spent in this area of government.
G4S’s ‘Welfare to Work wins’ were estimated to be worth £130 million—precisely equivalent to the total compensation the Poundland case might cost the government but for its use of emergency legislation to overturn the verdict of the courts.
Another big winner in the UK’s lucrative workfare market is global data processing to detention outsourcer Serco—profits before tax up by 27% last year with £31 billion “pipeline” in global outsourcing already secured—which also uses mandatory work placements to keep its own company’s labour costs profitably low.
A4E, owned (though no longer run) by David Cameron’s former ‘Families Champion’, the public outsourcing millionairess Emma Harrison, continues to rake in large profits from the workfare scheme even though a number of its former employees are on bail following police fraud raids on its Slough offices, while one its former Hull employees has been convicted of forgery.
French outsourcer ATOS (aka ‘Lourdes’ because you enter sick and leave cured) is in charge of the Community Action Programme pilot. A controversial Paralympic Games sponsor, ATOS is notorious for denying disabled claimants benefits on the evidence of fitness to work reports that are often produced without any medical examination. Unsurprisingly 40% of its refusal decisions are successfully appealed.
Despite the Court of Appeal’s humiliating verdict, which found the Secretary of State for the Department for Work and Pensions, Ian Duncan Smith, had acted unlawfully—the response of the government was immediately to draft new regulations to ensure that compulsory ‘benefit only’ work placements could continue . This nevertheless left the problem of potentially up to 300,000 sanctioned claimants whose benefits had been unlawfully withheld, and who might be owed an average of between £530 and £570 each.
What the government then did was quite extraordinary. On 14 March, it published a draft bill “The Jobseekers (Back to Work Schemes) Bill”. The weasel words are in Clause 12 of the Bill, which effectively renders lawful the unlawful imposition of sanctions under the pre-existing regulations.
A penalty imposed on a person before or after the coming into force of this Act for—
(a) failing to participate in a scheme within section 17A(1) of the Jobseekers Act 1995, or
(b) failing to comply with regulations under section 17A of that Act, is to be treated as lawfully imposed if the only ground or grounds for treating it as unlawfully imposed is or are removed by subsections (1) to (10).
The purpose of the Bill was clearly stated in the explanatory notes:
The only way to ensure that the Department does not have to make any sanction repayments and can impose sanctions where decisions have been stockpiled, is to press ahead with emergency legislation.
Far from correcting a “technicality” as Lord Freud claimed in the first House of Lords debate, according to Lord Pannick QC, “the Bill contravenes two fundamental constitutional principles”:
First, it is being fast-tracked through Parliament when there is no justification whatever for doing so. Secondly, 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 .
The notion of an emergency is patently absurd because as Lord Pannick went on to point out, while the case is still potentially being litigated, the government is under no duty to pay any compensation to the claimants.
The unseemly haste with which the bill has been pushed through the Commons (on the eve of Budget Day) and then the Lords (which was granted all of two days for proper scrutiny) contrasts with the leisurely pace of the government’s response to the initial Court of Appeal judgment, which was delivered on 14 February 2013. Only on 12 March, the last possible day of giving notice to appeal, did the DWP file notice of its intention to contest the judgment. Two days later the Jobseekers (Back to Work Schemes) 2013 Bill was published making the regulations and hence the sanctions retrospectively lawful.
It is inconceivable that when his last minute appeal was lodged, the Secretary of State did not have in place plans to frustrate through primary legislation Reilly and Wilson’s prospects of justice in the Supreme Court. In other words, fearing another hostile judgment, the government decided to press the emergency retrospective law button, which inevitably required the cooperation of Her Majesty’s Loyal Opposition.
Having agreed to hurry IDS’s Bill through parliament with all the fanfare of a three line whip, the Shadow Secretary for Work and Pensions, Liam Byrne, wrote on the Labour List blog, that this Bill is “categorically not…retrospective legalization of workfare” while admitting that it was indeed retrospective legislation and that a sanctions regime (withdrawing benefit if claimants refused to attend a compulsory training scheme or work placement) has been a central plank of all workfare policy going back to the New Deal of the previous Labour governments.
Hate that and you must hate the Labour Party and all it has achieved in power, Liam Byrne warned his detractors. But 44 members of the parliamentary party were not convinced and decided to rebel, including former Chief Whip, Nick Brown, and the now ex-Parliamentary Private Secretary to Ivan Lewis, Ian Mearns.
Byrne also justified Labour’s passive support for the legislation by boasting of “two critical concessions” to get the Bill passed before Easter. These include a guarantee that “people hit by sanctions have an iron-clad right of appeal against a sanction decision” (which is not in the Bill) and that there will be “an independent review of the sanctions regime with an urgent report to Parliament” (which is in the Bill, but it is stretching it to call a report due one year after the Act comes into force “urgent”). All the Secretary of State has to do is to place the said report by an un-named independent person in the House of Commons Library and he has discharged his statutory duties.
So does this ‘appeal right’ mean that Reilly, Wilson and thousands of others will receive the unpaid benefits to which they are lawfully entitled? Clearly not, for as Byrne admits, the whole point of supporting the government with re-writing workfare law is to avoid paying the £130 million which the Work and Pensions Minister Mark Hoban has threatened will otherwise have to come from more benefit cuts. This has all the ethical value of a criminal injuries scheme in which the victims rather than the perpetrators have to pay their own compensation.
Powerful criticisms of the Shadow Cabinet for colluding with Ian Duncan Smith and the Coalition have been made by Eric Metcalfe who writes that “the bill is simply a stitch-up, making lawful what the courts have held to be unlawful” and Owen Jones who describes the affair as “a disgraceful, grubby chapter in the history of the Parliamentary Labour Party”. There has also been a social media storm of protest in the country at large, directed not just at the Labour Party for failing to defend the victims of workfare, but at sections of the trade union movement for refusing to condemn workfare while leaving opposition to grass roots organisations such as the Boycott Workfare Campaign or individual litigants such as Reilly and Willson. The campaign group 38 Degrees has also organised an emergency online petition which has attracted over 10,000 signatures in less than a week.
Both Front Benches can nevertheless take comfort in the fact that the mainstream media—and in particular the BBC—have operated a virtual news blackout surrounding what the House of Lords Constitutional Committee effectively describes as a fundamental attack on the British Constitution.
In scrutinising this Bill, the House will wish to consider whether retrospectively confirming penalties on individuals who, according to judicial decision, have not transgressed any lawful rule is constitutionally appropriate in terms of the rule of law.
But there is a glimmer of light in the darkness that increasingly surrounds our ailing democracy. As a consequence of the 1998 Human Rights Act, ministers are required to affirm the compatibility of new legislation with the European Convention on Human Rights. This, more than the difficulty of deporting Abu Qatada, is why the Home Secretary Theresa May and her Cabinet colleagues are so determined to get rid of it.
Public Interest Lawyers, the campaigning legal firm acting on behalf of Reilly and Wilson, in their Notice of Objection before the Supreme Court, will contend that the Act passed on 26 March is a clear interference in the judicial process:
the actions of the secretary of state … represent a clear violation of article 6 [of the European convention on human rights] and the rule of law, as an interference in the judicial process by the legislature.
The Department for Work and Pensions is betting Ian Duncan Smith’s shirt that the Supreme Court will agree that the Jobseekers (Back to Work Schemes) Act 2013 not only closes all the loopholes of the previous regulations, but that it is also Convention compliant.
Yet as Baroness Lister observed in the House of Lords debate,
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.
She went on to argue,
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 notice of objection [by the claimants’ lawyers] 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” .
Not only is it absurd to resort to draconian retrospective laws that should have no place in a liberal democracy in order to rescue the damaged reputation of the Secretary of State for Work and Pensions; the contempt for parliamentary procedures, for timely scrutiny and for the opinions of its own expert committees is an ugly chapter in Britain’s parliamentary history from which neither the Coalition Government nor its Labour Opposition emerge with any credit.
The House of Lords Constitutional Committee reminded Parliament in the words of the late Lord Bingham of Cornhill, of the duty the state owes to its citizens. A duty that with alarming haste and complacency Britain’s national legislature has chosen recklessly to cast aside.
If anyone—you or I—is to be penalised it must not be for breaking some rule dreamt up by an ingenious minister or official ... It must be for a proven breach of the established law of the land.
NOTE: The Bill was passed on 26 March, to become the Jobseekers (Back to Work Schemes) Act 2013.
 Giorgio Agamben, State of Exception, University of Chicago Press, 2005, p.33.
 The Jobseeker’s Allowance (Scheme for Assisting Persons to Obtain Employment) Regulations 2013 (SI 2013/276).
 Hansard: HL Deb, 21 March 2013, c739.
 Hansard: HL Deb, 21 March 2013, c746. Article 1 of the First Protocol of the European Convention on Human rights relates to the right to property.