The rule of law (part 1)

04 Sep 2014

It has been a bad month for the Rule of Law.

In 2011, the government introduced regulations which require those claiming Job Seekers Allowance (JSA) to do unpaid work in return for JSA. A novel feature of the regulations is that claimants may be required to work for commercial organisations contracted by the government for this purpose in what have become known as Sector-Based Work Academies. This has generated complex long running litigation. It began after one of the test claimants was refused benefits because she preferred to further her career in academe or museums by taking a voluntary role at Birmingham's Pen Museum instead of unpaid work at Poundland.

In February 2013, the Court of Appeal quashed the regulations on the grounds that they were unlawful. The following month the government fast-tracked legislation through parliament to retrospectively validate the regulations and the sanctions imposed under those (unlawful) regulations.  At the same time it appealed to the Supreme Court – which dismissed the appeal in October.

On 4 July, the High Court ruled the new legislation unlawful and in breach of Article 6 of the European Convention on Human Rights because its retrospective nature has the effect of penalising claimants for conduct that was lawful at the time of their action. The government has said it will appeal and will not pay benefits it has (unlawfully) withheld.

In a separate development, the Divisional Court gave judgement on 15 July in a case concerning a residence test imposed by the Lord Chancellor. The Court found the test to be unlawful, discriminatory and unjustified. Lord Justice Moses dismissed parts of the Lord Chancellor's argument as of "no assistance" and ruled the new test arbitrary and disproportionate. In doing so, he commented that the Lord Chancellor was:

"… unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the Court considers its judgement, and unmindful of the independent advocate's appreciation that it is usually more persuasive to attempt to kick the ball than your opponent's shins…".

Our view…

The underlying merits of these cases are certainly debatable and this is not the place for that discussion. The bigger point is that access to, and the proper administration of, justice are important features of a functioning democracy so these two judgements are important markers in a febrile climate.