Wednesday 30 October 2013

Another defeat for Workfare

In February 2012 I reported on the Court of Appeals judgement that Iain Duncan Smith's mandatory unpiad labour ("Workfare") schemes were unlawful on the grounds that the rules were unintelligible, and because Iain Duncan Smith had exceeded his powers by applying the rules without first seeking the approval of parliament.

Little did I know at the time that Iain Duncan Smith (with the collusion of the Labour party so-called opposition) would attempt to undermine the Appeal Court ruling by retroactively changing the law. The hastily scribbled piece of legislation (which was rushed through parliament in a single day) changed the rules so that had they been written that way at the time, they would have been intelligible, and they would have had parliamentary approval.

It is quite clear that using retroactive laws to undermine the courts opens the door to fascism, because it sets the appalling precedent that if the courts declare the government has acted unlawfully, the government can simply rush through legislation to retroactively change the law to make their unlawful actions lawful and nullify the judgement of the courts. This precedent essentially puts government ministers above the law of the land. It is absolutely appalling that (apart from a few objectors that defied the party whip to vote against it) the Labour so-called opposition went along with this appalling attack on the legal system.

Instead of simply undermining the court by retroactively rewriting the law of the land, Iain Duncan Smith also decided to go even further in order to put the courts in their place. On the very same day that his rotten piece of retroactive workfare legislation was rushed through parliament, he  launched a Supreme Court appeal against the Appeal Court ruling that his schemes were unlawful. He was clearly working on the assumption that the courts would have to accept that his retroactive 2013 laws applied, meaning that they would have to eat humble pie and declare his vicious mandatory labour schemes lawful.

Subverting a court judgement by retroactively changing the law of the land was bad enough, but attempting to humiliate the courts in order to demonstrate to all that he himself is absolutely above the law of the land was the act of a man that has absolute contempt for any authority other than his own.

The problem for Iain Duncan Smith and his minions at the DWP is that the Supreme Court defied him and upheld the Appeal Court ruling. Here is the full transcript of the Supreme Court judgement.

The Supreme Court explicitly recognised that the 2013 Retroactive Workfare Bill was a deliberate attempt to undermine the courts: "The 2013 Act was plainly intended to 'undo' the decision of the Court of Appeal" . They also reiterated that scheme was unlawful at the time "what Ms Reilly was told about her obligation to take part in the [workfare] scheme, as a condition of receiving Jobseeker's Allowance, was unauthorised and wrong as a matter of domestic law".

At the conclusion of the judgement the judges returned to Iain Duncan Smith's retroactive law, stating that had it not been for the retroactive lawmaking exercise, the ruling of the appeal court would have been fully upheld "Accordingly, were it not for the 2013 Act and the 2013 Regulations, we would have affirmed the order of the Court of Appeal" (which shows how much of a spectacular own-goal the Labour party scored by colluding with Iain Duncan Smith to rush the retroactive laws onto the statute book). The judges admitted that the passing of retroactive legislation adds a significant complication, and that they have yet to work out an appropriate response: "In the light of the 2013 Act and the 2013 Regulations, however, a more subtly expressed form of order will be required, and we would invite counsel to try and agree the appropriate wording".

Whatever the case, Iain Duncan Smith's decision to appeal the ruling of the Appeal Court now looks like a spectacular case of hubris, because not only was his appeal rejected, but there now exists a court ruling which explicitly states that he deliberately attempted to undermine the law of the land with his retroactive lawmaking exercise.

This leaves us with the question of what Iain Duncan Smith will do next. Given the brazenness of his response to the ruling of the Appeal Court, it wouldn't surprise me if Iain Duncan Smith and the Tories attempted to rush through legislation to retroactively abolish the Supreme Court so that this judgement never happened, and it would hardly be surprising if the Labour so-called opposition colluded with the Tories to help them rush their retroactive abolition of the courts through parliament in a single day, as they did with the Retroactive Workfare Bill in March 2013.

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