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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Reilly & Anor, R (on the application of) v Secretary of State for Work and Pensions  EWHC 2292 (Admin) (06 August 2012)
Cite as:  EWHC 2292 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of CAITLIN REILLY and JAMIESON WILSON
|- and –
|THE SECRETARY OF STATE FOR WORK AND PENSIONS
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Paul Nicholls QC (instructed by DWP/DH Litigation and Employment Division) for the Defendant
Hearing dates: 26-27 June 2012
Further written submissions: 24-30 July 2012
Crown Copyright ©
MR JUSTICE FOSKETT:
The challenges advanced
The statutory background
Schemes for assisting persons to obtain employment: "work for your benefit" schemes etc.
(1) Regulations may make provision for or in connection with imposing on claimants in prescribed circumstances a requirement to participate in schemes of any prescribed description that are designed to assist them to obtain employment.
(2) Regulations under this section may, in particular, require participants to undertake work, or work-related activity, during any prescribed period with a view to improving their prospects of obtaining employment.
(3) In subsection (2) "work-related activity", in relation to any person, means activity which makes it more likely that the person will obtain or remain in work or be able to do so.
(4) Regulations under this section may not require a person to participate in a scheme unless the person would (apart from the regulations) be required to meet the jobseeking conditions.
(5) Regulations under this section may, in particular, make provision—
(a) for notifying participants of the requirement to participate in a scheme within subsection (1);
(b) for securing that participants are not required to meet the jobseeking conditions or are not required to meet such of those conditions as are specified in the regulations;
(c) for suspending any jobseeker's agreement to which a person is a party for any period during which the person is a participant;
(d) for securing that the appropriate consequence follows if a participant has failed to comply with the regulations and it is not shown, within a prescribed period, that the participant had good cause for the failure;
(e) prescribing matters which are, or are not, to be taken into account in determining whether a participant has good cause for any failure to comply with the regulations;
(f) prescribing circumstances in which a participant is, or is not, to be regarded as having good cause for any failure to comply with the regulations.
(6) In the case of a jobseeker's allowance other than a joint-claim jobseeker's allowance, the appropriate consequence for the purposes of subsection (5)(d) is that the allowance is not payable for such period (of at least one week but not more than 26 weeks) as may be prescribed.
(7) In the case of a joint-claim jobseeker's allowance, the appropriate consequence for the purposes of subsection (5)(d) is that the participant is to be treated as subject to sanctions for the purposes of section 20A for such period (of at least one week but not more than 26 weeks) as may be prescribed.
(8) Regulations under this section may make provision for an income-based jobseeker's allowance to be payable in prescribed circumstances even though other provision made by the regulations would prevent payment of it.
This subsection does not apply in the case of a joint-claim jobseeker's allowance (corresponding provision for which is made by section 20B(4)).
(9) The provision that may be made by the regulations by virtue of subsection (8) includes, in particular, provision for the allowance to be—
(a) payable only if prescribed requirements as to the provision of information are complied with;
(b) payable at a prescribed rate;
(c) payable for a prescribed period (which may differ from any period mentioned in subsection (6)).
(10) In this section—
"claimant", in relation to a joint-claim couple claiming a joint-claim jobseeker's allowance, means either or both of the members of the couple;
"the jobseeking conditions" means the conditions set out in section 1(2)(a) to (c);
"participant", in relation to any time, means any person who is required at that time to participate in a scheme within subsection (1)."
"Section 17A: supplemental
(1) For the purposes of, or in connection with, any scheme within section 17A(1) the Secretary of State may—
(a) make arrangements (whether or not with other persons) for the provision of facilities;
(b) provide support (by whatever means) for arrangements made by other persons for the provision of facilities;
(c) make payments (by way of fees, grants, loans or otherwise) to persons undertaking the provision of facilities under arrangements within paragraph (a) or (b);
(d) make payments (by way of grants, loans or otherwise) to persons participating in the scheme;
(e) make payments in respect of incidental expenses.
"the Scheme" means the Employment, Skills and Enterprise Scheme"
"the Employment, Skills and Enterprise Scheme" means a scheme within section 17A (schemes for assisting persons to obtain employment: "work for your benefit" schemes etc.) of the Act known by that name and provided pursuant to arrangements made by the Secretary of State that is designed to assist claimants to obtain employment or self-employment, and which may include for any individual work-related activity (including work experience or job search)."
"3. Selection for participation in the Scheme
The Secretary of State may select a claimant for participation in the Scheme.
4. Requirement to participate and notification
(1) Subject to regulation 5, a claimant ("C") selected under regulation 3 is required to participate in the Scheme where the Secretary of State gives C a notice in writing complying with paragraph (2).
(2) The notice must specify—
(a) that C is required to participate in the Scheme;
(b) the day on which C's participation will start;
(c) details of what C is required to do by way of participation in the Scheme;
(d) that the requirement to participate in the Scheme will continue until C is given notice by the Secretary of State that C's participation is no longer required, or C's award of jobseeker's allowance terminates, whichever is earlier;
(e) information about the consequences of failing to participate in the Scheme.
(3) Any changes made to the requirements mentioned in paragraph (2)(c) after the date on which C's participation starts must be notified to C in writing."
"Failure to participate in the Scheme
This section has no associated Explanatory Memorandum
6. A claimant who fails to comply with any requirement notified under regulation 4 is to be regarded as having failed to participate in the Scheme.
This section has no associated Explanatory Memorandum
7. (1) A claimant ("C") who fails to participate in the Scheme must show good cause for that failure within 5 working days of the date on which the Secretary of State notifies C of the failure.
(2) The Secretary of State must determine whether C has failed to participate in the Scheme and, if so, whether C has shown good cause for the failure.
(3) In deciding whether C has shown good cause for the failure, the Secretary of State must take account of all the circumstances of the case, including in particular C's physical or mental health or condition.
Consequences of failure to participate in the Scheme
This section has no associated Explanatory Memorandum
8. (1) Where the Secretary of State determines that a claimant ("C") has failed to participate in the Scheme, and C has not shown good cause for the failure in accordance with regulation 7, the appropriate consequence for the purpose of section 17A of the Act is as follows.
(2) In the case of a jobseeker's allowance other than a joint-claim allowance, the appropriate consequence is that C's allowance is not payable for the period specified in paragraphs (4) to (7) ("the specified period").
(3) In the case of a joint-claim jobseeker's allowance, the appropriate consequence is that C is to be treated as subject to sanctions for the purposes of section 20A (denial or reduction of a joint-claim jobseeker's allowance) of the Act for the specified period.
(4) The period is 2 weeks in a case which does not fall within paragraph (5), (6) or (7).
(5) The period is 4 weeks where—
(a) on a previous occasion the Secretary of State determined that C's jobseeker's allowance was not payable or was payable at a lower rate because C failed without good cause to participate in the Scheme ("the first determination"), and
(b) a subsequent determination is made no more than 12 months after the date on which C's jobseeker's allowance was not payable or was payable at a lower rate following the first determination.
(6) Subject to paragraph (7), the period is 26 weeks where—
(a) on two or more previous occasions the Secretary of State determined that C's jobseeker's allowance was not payable or was payable at a lower rate because C failed without good cause to participate in the Scheme, and
(b) a subsequent determination is made no more than 12 months after the date on which C's jobseeker's allowance was not payable or was payable at a lower rate following the most recent previous determination.
(7) Where paragraph (6) applies but the Secretary of State is satisfied that C has re-complied in accordance with paragraph (8), the period is either—
(a) 4 weeks, or
(b) 4 weeks plus a period which ends with the last day of the benefit week in which C re-complies,
whichever is longer.
(8) C will be taken to have re-complied where, after the date on which the Secretary of State determines that C has failed to participate in the Scheme, C complies with—
(a) the requirement as to participation in the Scheme to which the determination relates, or
(b) such other requirement as to participation as may be made by the Secretary of State and notified to C in accordance with regulation 4.
(9) The specified period begins—
(a) where, in accordance with regulation 26A(1) of the Social Security (Claims and Payments) Regulations 1987, C's jobseeker's allowance is paid otherwise than fortnightly in arrears, on the day following the end of the last benefit week in respect of which that allowance was paid, and
(b) in any other case, on the first day of the benefit week following the date on which C's jobseeker's allowance is determined not to be payable or to be payable at a lower rate.
(10) Paragraphs (4) to (7) are subject to paragraph (11).
(11) Where the Secretary of State notifies C during the specified period that C is no longer required to participate in the Scheme, the specified period terminates at the end of—
(a) one week beginning with the date of the notice, or
(b) the benefit week in which the requirement to participate ceases to apply,
whichever is later.
(12) In this regulation "benefit week" has the same meaning as in regulation 1(3) of the Jobseeker's Allowance Regulations."
The first issue
Regulations may make provision for or in connection with imposing on claimants in prescribed circumstances a requirement to participate in schemes established by the Secretary of State (or such schemes as the Secretary of State sees fit) that are designed to assist them to obtain employment.
Regulations may make provision for or in connection with imposing on claimants in prescribed circumstances a requirement to participate in [a scheme] of [a] prescribed description that [is] designed to assist them to obtain employment.
"2. The instrument sets up the conditionality and sanctions framework for Jobseeker's Allowance claimants under the Employment, Skills and Enterprise Scheme ("the Scheme"), which includes the Work Programme and three other initiatives. These Regulations also provide for Jobcentre Plus personal advisers to have discretion to require that a Jobseeker's Allowance (JSA) claimant participates in the Scheme and sets sanctions for those who fail to participate without good cause.
3. The four elements of the Scheme are only sketchily explained in the [Explanatory Memorandum] but broadly they are:
- Work Programme - will provide both back-to-work and in work support for those claiming a range of benefits including Jobseeker's Allowance;
- Skills conditionality - will offer assistance to those with an identified skills need, e.g. literacy;
- Service Academies - will provide 6 week courses for specific in-demand skills or work experience; and
- New Enterprise Allowance - will provide a mentoring system to help the unemployed to become self-employed."
"9. Under Regulation 3 any claimant for Jobseeker's Allowance may be required to participate in the Scheme. We note that paragraph 7.4 of the [Explanatory Memorandum] states that participation in certain elements, for example the Service Academies, is to be by mutual consent, but this does not appear to be borne out by the legislation. DWP explain that "this aspect of support and conditionality for customers is not reflected directly in these Regulations because it applies before a Jobseeker's Allowance recipient is referred to any of the initiatives covered by the Scheme" (Q7). It is not clear what provision there is to prevent a harsher system being implemented administratively at a later date.
10. These regulations interpret the Act very broadly so that future changes to the Scheme could be made administratively without any reference to Parliament. Although an undertaking is given in the EM that the Department will consult the [Social Security Advisory Committee] should future extensions be proposed, there is no such undertaking given to inform Parliament."
"19. Because the original Explanatory Memorandum was deficient in providing Parliament with the information it needs for scrutiny, we have had to put an unprecedented number of direct questions and call on a range of sources to jigsaw together an outline of how the Scheme might operate, although gaps remain and a number of the areas are still unclear. It is evident that DWP have better information than their initial Explanatory Memorandum included. We note that the DWP justify their decision to merge the various elements into one complex set of regulations to the [Social Security Advisery Committee] on the grounds that they should not waste public resource unnecessarily (paragraph 17 page 7 of the Command Paper). Yet the Department's repeated failure to include adequate data to support their case or the basis for their assumptions in the [Explanatory Memorandum] wastes Parliamentary time in searching it out. We draw the attention of the House to DWP's failure to provide an adequate level of information in its Explanatory Memorandum which inhibits the House's ability to exercise its scrutiny function." (Emphasis as in the original)
"Several of the … programmes, including the … sector-based work academies … and the CAP are delivered through the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, which are flexible enough to enable the provision of a variety of support programmes tailored to specific sets of circumstances and which recognise the different categories of unemployed person and the needs of such persons. The ability to be able to customise employment and skills support to particular groups of claimants without having to lay fresh regulations enables the Department to react to a changing labour market and the demands of those who use its services; for example, by developing employer-specific sector-based work academies for those companies which have specific recruitment needs."
Lack of published policy
"34. The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements.
35. The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute: see In re Findlay  AC 318, 338E. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it. In R (Anufrijeva) v Secretary of State for the Home Department  1 AC 604, para 26 Lord Steyn said:
"Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice."
38. The precise extent of how much detail of a policy is required to be disclosed was the subject of some debate before us. It is not practicable to attempt an exhaustive definition. It is common ground that there is no obligation to publish drafts when a policy is evolving and that there might be compelling reasons not to publish some policies, for example, where national security issues are in play. Nor is it necessary to publish details which are irrelevant to the substance of decisions made pursuant to the policy. What must, however, be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made."
The sbwa scheme
"27. The scheme is administered by Jobcentre Plus advisers in accordance with guidance …. Participation is possible for JSA claimants and ESA [Employment and Support Allowance] claimants who have been assessed as capable of carrying out work-related activity and is aimed at those who do not have any serious barriers to finding work, but who nevertheless would benefit from a short period of work-focused training and a work-experience placement linked to a genuine job vacancy.
32. The main way in which information is provided to claimants about the scheme is through personal meetings with the Jobcentre Plus adviser prior to a referral. It is hard to be too prescriptive about the information provided as sector-based work academy schemes vary from employer to employer. For example, some employers may decide to deliver the pre-employment training in the workplace and combine it with work experience, while others may make use of classroom-based training ahead of a placement with an employer. More general information and an overview of the scheme are available on the DirectGov website …."
"If you're getting Jobseeker's Allowance or Employment and Support Allowance, sector-based work academies could improve your chances of finding work. The decision to take part is voluntary and gives you the opportunity of training, work experience and a guaranteed interview for a job or apprenticeship. Find out more, including who can take part."
"Sector-based work academies are one of the services that Jobcentre Plus offers to help you get back into work.
Sector-based work academies are currently available in England and Scotland. A similar type of help may soon be available in Wales. If you are in Wales please talk to your Jobcentre Plus adviser for updates.
If you join a sector-based work academy you will get the chance to:
- take part in training relevant to the type of work that is available in your area
- achieve units towards a relevant qualification in some circumstances
- take up a work experience placement with an employer that has work that matches the training that you've done
- go to a guaranteed job interview
The training and work experience will be tailored to help you prepare for an actual job vacancy.
Sector-based work academies involve partnership working between:
- Jobcentre Plus
- training providers"
"Speak to a Jobcentre Plus adviser if you are interested in taking part in sector-based work academies. They will be able to:
- explain how sector-based work academies could improve your chances of finding work
- give you information about sector-based work academies in your area
- explain what will happen when you start
- explain what will happen when it ends"
"You might be able to take part in sector-based work academies if:
- you're aged 18 or over and claiming Jobseeker's Allowance
- you're claiming Employment and Support Allowance and in the Work-Related Activity Group
Taking part in sector-based work academies is entirely voluntary, but once you accept a place you must complete the process. Your benefits may be affected if you do not complete the process. Taking part in sector-based work academies can last up to six weeks."
"To continue to get Jobseeker's Allowance while attending a sector-based work academy you must continue to attend your regular jobsearch reviews.
To help while you're taking part, Jobcentre Plus will be able to offer you different times to attend your regular jobsearch reviews. For example, you may be allowed to attend your reviews earlier or later in the day than usual."
"You will continue to get Employment and Support Allowance as long as you meet the rules that you agreed to get the benefit."
"Analysis of previous schemes has highlighted the importance of claimants understanding what they are signing up to both in terms of the personal benefit they derive from it and in reducing the risk of financial sanction for non-compliance. Effective communication between the Adviser and claimant is key …."
"… Participation in CAP is mandatory for those who are selected in the sense that claimants who are referred to providers are required to complete the programme properly and risk having the application of sanctions in respect of their benefits if they fail to participate in the programme in accordance with its terms."
"35. The CAP forms one part of a trial of different types of support aimed at helping long-term unemployed JSA claimants into work. The aim of the trial is to test and evaluate the effectiveness of this support in achieving that aim in order that appropriate support may be put in place to help those claimants who reach the end of the Work Programme without finding sustainable employment and remain on benefits looking for work. The trial will run until July 2012 and will be fully evaluated to determine the impact of the CAP and Ongoing Case Management on the benefit outcomes of claimants who have received this support. Final evaluation results will be available in 2013.
36. Selection for participation in the CAP trial is done by random allocation of JSA claimants who are eligible for one of three elements of Support for the Very Long Term Unemployed, within the designated districts. Each claimant is allocated to either CAP … or the control group, who receive the regular Jobcentre Plus regime. Each claimant received written confirmation on this, including subsequent follow-up letters which detailed the details of their participation.
37. All eligible claimants have previously received support through both Jobcentre Plus and through the (former) Flexible New Deal programme without having found employment. Random allocation is recognised as the most reliable way of determining whether a cause and effect relationship exists between different elements of the trial. Once selected to participate in the trailblazer, claimants are required to participate as part of the conditions attached to the ongoing receipt of Jobseeker's Allowance. However, there are certain situations in which a claimant would be exempt from taking part in the trailblazer, for example claimants who are pregnant and within 3 months of their expected due date, or claimants for whom specialist disability provision is identified as a more suitable option.
38. The purpose of the CAP is to offer claimants who have been out of the labour market for some considerable time the opportunity to gain sustained experience of a working environment; and to capitalise on the experience they gain whilst participating in the programme through additional supported job search activities. The CAP affords providers the freedom to determine how best to support these claimants in their search for work. These activities might include improving communication skills, creating CVs, completing application forms, interview practice, and training. The flexibility allows providers to tailor job search activities to meet individual's needs.
40. Placements under the CAP scheme must also be of some benefit to the local community. Placement hosts include local voluntary and charitable sector organisations and environmental projects …."
"The main way that information about the CAP is conveyed is through discussions and correspondence between Jobcentre Plus and the claimant (prior to referral) and the provider and the claimant (following a referral). General information about the trailblazer, including the CAP provider guidance and the Department's Equality Impact Assessment are published on the Department for Work and Pensions website. As the CAP is still at a trial stage and is running in only four Jobcentre Plus Districts information about the programme is not currently included on the DirectGov website."
Alleged breaches of Regulation 4
"RETAIL SALES ASSISTANTS
Full Time Hours between 8 am and 6pm.
Applicants will be required to work full time hours
(This will include some weekends on a rota basis)
Full time Retail Sales Assistant roles available within the Birmingham area. No experience necessary as full training will be provided.
Interested applicants should attend the Open Day on 24th October 2011 …
Pre-employment training, Work Experience Placement and Guaranteed Job Interviews will be offered to successful Customers."
"At your interview today, you adviser explained that you had to take part in the Community Action Programme from 16/11/11. Ingeus will be in touch with you shortly to arrange this.
The Community Action Programme will involve doing up to six months of near full-time work experience, with some additional weekly job search support. The Community Action Programme is an employment programme established in law under the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) regulations 2011.
To keep getting Jobseeker's Allowance, you will need to take part in the Community Action Programme until you are told otherwise or your award of jobseeker's allowance comes to an end; and complete any activities that Ingeus asks you to do.
If you don't take part in the Community Action Programme, under the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 your Jobseeker's Allowance may be stopped for up to 26 weeks. You could also lose your National Insurance credits.
If you are unsure what this means for you or would like more information, you can find out more by talking to your adviser at the Jobcentre."
"If I was offered a training course that could lead to some concrete benefit then I would jump at the chance, but this just seems to be pointless work that has not been arranged by looking at my own needs and what is keeping me from entering the job market."
"Under reg. 8(4), the specified period in a case which does not fall in regs. 8(5), (6) or (7) is 2 weeks.
By reg. 8(5), the period is 4 weeks where the claimant had, on a previous occasion within a year prior to a later sanction, failed without good cause to participate in the scheme.
Under reg. 8(6), the period is 26 weeks where a person had on two or more occasions failed without good cause to participate in the scheme and then, within a year of the time when jobseeker's allowance was last determined not to be payable, the claimant is again subject to sanction.
Therefore the regime is a 2 week sanction for the first failure to attend, 4 weeks for a second failure to participate within a year and 26 weeks for 3 failures to participate in a year."
"We cannot pay you Jobseeker's Allowance from 3 May 2012.
This is because we recently told you that a decision would be made about a doubt:
- on whether you failed to take advantage of a place on an employment programme. We have now decided that you did not take advantage of a place on an employment programme and that you did not have sufficiently good reasons for doing so. This decision applies from 3 May 2012 to 16 May 2012."
"If the decision is wrong, the independent appeal tribunal can change it. But the independent appeal tribunal cannot:
- change the law that the decision is based on;
- pay more money than the law allows;
- check or change your contribution record."
"… This is because at the end of the sanction period Mr Wilson will not qualify for contribution-based JSA as he has not paid enough National Insurance contributions in the relevant income tax years to qualify. As Mr Wilson was claiming income-based JSA he would normally receive a letter when the sanction period ended advising him when and at what rate income based JSA becomes payable."
"We cannot pay you Jobseeker's Allowance from 3 May 2012.
This is because we recently told you that a decision would be made about a doubt:
on whether you failed to attend an interview with an Employment Service advisor or officer on the date specified. We have now decided that this decision no longer applies.
We cannot award National Insurance contribution credits for this period.
We cannot pay you Jobseeker's Allowance from 17 May 2012.
We cannot pay you because you have not paid, or been credited with, enough Class 1 National Insurance contribution credits for this period".
"We cannot pay you Jobseeker's Allowance from 31 May 2012.
This is because we recently told you that a decision would be made about a doubt:
- on whether you failed to take advantage of an employment programme. We have now decided that you did not take advantage of a place on an employment programme and that you did not have sufficiently good reasons for doing so. This decision applies from 31 May 2012 to 27 June 2012.
We cannot award National Insurance contribution credits this period.
We cannot pay you Jobseeker's Allowance from 28 June 2012."
"The period of this second sanction is four weeks, i.e. 17th May 2012 to 13th June 2012. Unfortunately, for reasons that are not clear, this second sanction decision was not notified immediately to the DWP office responsible for processing payments. As a result the second sanction decision was not put into effect on the date that it should have been, and Mr Wilson continued to receive JSA for the period from 17th to 30th May."
"The third sanction was originally made on 30th May 2012 and notified to Mr Wilson on 6th June 2012, but this was wrongly stated to be only for a 4 week sanction period from 31st May to 27th June 2012. This error arose due to the earlier 2nd sanction not having been input to the payment system by the processing team. When this error was noticed the 2nd sanction decision was input and notified to Mr Wilson on 8th June 2012."
"To correct this error, on 8th June a further notification (technically known as a reconsideration) was sent in relation to the 3rd sanction, with a revised sanction period of 26 weeks from 31st May 2012 to 28th November 2012."
How should issues like this be raised and what are the consequences of a failure to comply with Regulation 4?
Independent Case Examiner
"As to the ICE's powers, Mr. Hanlon [the then independent case examiner] states:
"15 … I can make recommendations about what I consider needs to be done. This can include an apology, an explanation, an assurance (eg as to future steps to be taken), a recommendation that financial redress be offered or a combination of these.
16 Redress recommendations are made in accordance with the … guide and can include;
- advanced payments,
- consolatory payments…
- financial loss for either income or costs
- interest for monies paid…
17 In accordance with the … guide, financial loss recommendations are aimed at putting a complainant in the position they (sic) would have been had maladministration not occurred."
" … It was set up in April 1997 following a recommendation of the then Parliamentary Commissioner for Administration (the Ombudsman). The ombudsman had been receiving a large number of referrals from Members of Parliament on behalf of constituents who were dissatisfied with the service they received from the Agency. He recommended an additional level of independent review for complaints. The ICE's role was later extended to other "customers" of the Department."
"The service is free to complainants … relatively fast … informal … inquisitorial … Easy to use … allows [complaints] to be resolved amicably… Through casework, patterns of complaint can be identified… It is less stressful than court proceedings for many complainants."
"My conclusion is that the commissioners have undoubted jurisdiction to determine any challenge to the vires of a provision in regulations made by the Secretary of State as being beyond the scope of the enabling power whenever it is necessary to do so in determining whether a decision under appeal was erroneous in point of law. I am pleased to reach that conclusion for two reasons. First, it avoids a cumbrous duplicity of proceedings which could only add to the already overburdened list of applications for judicial review awaiting determination by the Divisional Court. Secondly, it is, in my view, highly desirable that when the Court of Appeal, or indeed your Lordships House, are called upon to determine an issue of the kind in question they should have the benefit of the views upon it of one or more of the commissioners, who have great expertise in this somewhat esoteric area of the law."
The effect of a breach of Regulation 4
"This was an important and influential dictum. It led to the adoption of a more flexible approach of focusing intensely on the consequences of non-compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity. In framing the question in this way it is necessary to have regard to the fact that Parliament ex hypothesi did not consider the point of the ultimate outcome. Inevitably one must be considering objectively what intention should be imputed to Parliament."
"Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead … the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction …."
"Article 4 – Prohibition of slavery and forced labour
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this article the term "forced or compulsory labour" shall not include:
a. any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
b. any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
c. any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
d. any work or service which forms part of normal civic obligations."
"Article 4 ... does not define what is meant by "forced or compulsory labour" and no guidance on this point is to be found in the various Council of Europe documents relating to the preparatory work of the European Convention.
As the Commission and the Government pointed out, it is evident that the authors of the European Convention - following the example of the authors of Article 8 of the draft International Covenant on Civil and Political Rights - based themselves, to a large extent, on an earlier treaty of the International Labour Organisation, namely Convention No. 29 concerning Forced or Compulsory Labour.
Under the latter Convention (which was adopted on 28 June 1930, entered into force on 1 May 1932 and was modified - as regards the final clauses - in 1946), States undertook "to suppress the use of forced or compulsory labour in all its forms within the shortest possible period" (Article 1 § 1); with a view to "complete suppression" of such labour, States were permitted to have recourse thereto during a "transitional period", but "for public purposes only and as an exceptional measure, subject to the conditions and guarantees" laid down in Articles 4 et seq. (Article 1 § 2). The main aim of the Convention was originally to prevent the exploitation of labour in colonies, which were still numerous at that time. Convention No. 105 of 25 June 1957, which entered into force on 17 January 1959, complemented Convention No. 29, by prescribing "the immediate and complete abolition of forced or compulsory labour" in certain specified cases.
Subject to Article 4 § 3 (art. 4-3), the European Convention, for its part, lays down a general and absolute prohibition of forced or compulsory labour.
The Court will nevertheless take into account the above-mentioned ILO Conventions - which are binding on nearly all the member States of the Council of Europe, including Belgium - and especially Convention No. 29. There is in fact a striking similarity, which is not accidental, between paragraph 3 of Article 4 ... of the European Convention and paragraph 2 of Article 2 of Convention No. 29. Paragraph 1 of the last-mentioned Article provides that "for the purposes" of the latter Convention, the term "forced or compulsory labour" shall mean "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily". This definition can provide a starting-point for interpretation of Article 4 ... of the European Convention. However, sight should not be lost of that Convention's special features or of the fact that it is a living instrument to be read "in the light of the notions currently prevailing in democratic States" (see, inter alia, the Guzzardi judgment of 6 November 1980, Series A no. 39, p. 34, § 95)."