The prohibition of forced or compulsory labour and conditional welfare under the United Kingdom's Universal Credit Scheme

Abstract

To address the issue of persistent unemployment, the UK Government implemented a conditional welfare scheme. Prompted by Mantouvalou's argument that the scheme forces people into exploitative work, this paper addresses the ‘pressing’ question of whether the scheme is compatible with the prohibition on ‘forced or compulsory labour’ under Article 4(2) of the European Convention on Human Rights. It is argued that, whether the scheme imposes the menace of a penalty, is involuntary, seriously exploitative or a normal civic obligation, ultimately depends on different understandings of the demands of distributive justice. Given the politically contested nature of those demands, Article 4(2) is a poor weapon to use when challenging the UK's conditional welfare scheme.

Introduction

In the context of stagnated markets, precarious employment and ‘slow economic growth’, the management of ‘persistently high un(der)employment’ is a perennial problem for the UK and other states in the ‘Global North’.¹ Since 1971, UK unemployment has varied between 3.4% and 11.9%.² To reduce unemployment, and its negative impact on financial security, health, and wellbeing,³ the UK's Universal Credit (UC) scheme implements a policy that makes benefit payments conditional on the recipient's active engagement with the labour market. The approach may be justified consequentially by its potential to reduce the overall cost of benefit payments, increase economic output, and improve the financial security of individuals and their families. However, such policies remain controversial and are heavily criticised for being unjust or for violating human rights.⁴

One compelling critique is Mantouvalou's argument that, when situated within the context of precarious, ‘non-standard work’, the UK's scheme creates a form of ‘structural injustice’. This injustice prejudices the unemployed and low-paid by ‘coercing’ them ‘into conditions of in-work poverty and exploitation through the menace and imposition of severe sanctions’.⁵ For Mantouvalou, this raises ‘pressing questions about compliance with human rights law’.⁶

One such ‘pressing’ question is whether the UK scheme, which ‘forces’ people into exploitative work, ‘is compatible with Article 4’ of the European Convention on Human Rights (ECHR).⁷ The imperative for ‘reopen[ing]’ this question finds support in Dermine's earlier doctrinal analysis of activation policies and the prohibition on forced labour in international law. Dermine argues that the reasoning in some of the case law implicitly acknowledges that conditional welfare activation policies ‘might contravene the prohibition of forced labour’. Consequently, lawyers should bring such cases to court, which should ‘confront’ the substantive injustices of conditional welfare policies ‘with the defining criteria of forced labour’.⁸

In this paper, the prospects of such a confrontation are assessed by considering whether the UK's conditional welfare scheme could, or should, amount to a violation of Article 4 of the ECHR. This issue is timely in the wake of Brexit and the Covid-19 pandemic,⁹ and given the worrying increase in the costs of living.¹⁰ It is also worth addressing in some depth, given Mantouvalou's and Dermine's similar conclusions regarding the relevance of Article 4 to conditional welfare schemes. The idea that conditional welfare schemes ‘may contravene the prohibition of forced labour’ is gaining some traction.¹¹ Furthermore, Mantouvalou has recently reiterated her arguments. She maintains that the threat of destitution from punitive sanctions, which ‘force and trap people into zero-hours and other precarious work’, creates ‘structures of exploitation’ sufficient to violate ‘the prohibition of forced and compulsory labour’. For Mantouvalou, the compatibility of such schemes with Article 4 must be ‘revisit[ed]’.¹²

The primary aim of this paper is to examine the potential for Article 4 to be used as a legal tool to challenge conditional welfare policies. As an arguably unjust system that imposes harsh sanctions and may require benefit claimants to accept precarious employment,¹³ the UK conditional welfare scheme provides a good example for this analysis. Through this analysis, the paper also contributes to any wider discussion regarding the role and limitations of legal human rights in challenging social welfare policy.¹⁴

The paper begins by describing the scheme and its underlying policy. Whether the scheme amounts to forced labour is assessed by considering whether the UK scheme violates Article 4 of the ECHR.¹⁵ The analysis is organised under the four interrelated elements that determine the meaning of ‘forced or compulsory labour’ as prohibited by Article 4(2). While it may plausibly be argued that the scheme violates Article 4(2), the counterarguments are stronger. Given the principle of subsidiarity, it is argued that the European Court of Human Rights (the Court) should not, and most likely would not, decide that the UK scheme violates Article 4. The distributive (in)justice of the UK's conditional welfare scheme should be addressed as an issue of politics rather than human rights law.

Although an in-depth focus on Article 4 is worthwhile, its narrow focus limits the scope of the enquiry. The relevance of Article 3 is briefly discussed, but the impact of the UK scheme on the benefit claimant's Article 8 right to a private and family life is not considered. The impact of the scheme on the human rights of specific groups such as the disabled, single parents, and women is also not addressed. Single mothers,¹⁶ for example, may be disproportionately impacted by the scheme's conditional welfare and harsh sanctions.¹⁷ Addressing such issues would require an analysis of the Court's approach to discrimination under Article 14.¹⁸ This is beyond the scope of the paper, but it is notable that the Court has held that compulsory labour justified as a normal civic obligation under Article 4(3), may nevertheless breach Article 14 where it is imposed in a way that unjustifiably discriminates between men and women.¹⁹

1. The UK's approach to conditional welfare

As a labour market activation policy, the UK's approach to welfare under the UC system is intended to address the ‘culture of benefit dependency’ and reduce unemployment either by ‘encourag[ing] direct employment' or by ‘enhanc[ing] employability’ through ‘training and education’.²⁰ This ‘good’ idea is complicated by the policies of distinguishing between deserving and undeserving claimants and mandating labour-market participation.²¹ The resulting system of sanction-backed, conditional welfare has understandably attracted significant criticism.²²

The conditional elements of the UC system are centred on the claimant commitment, which must be accepted as a basic condition of entitlement to benefits.²³ The claimant commitment is the formal record of the claimant's work-related responsibilities agreed with the claimant's work coach.²⁴ Depending on individual circumstance,²⁵ claimants will be assigned to one of four groups that impose either no work-related requirements or oblige them to participate in up to four work-related requirements:²⁶ work-focused interview, work preparation, work search and work availability (being ‘able and willing immediately to take up paid work’, more or better-paid work).²⁷

Work coaches are instructed by the Department for Work and Pensions (DWP) to give ‘consideration' to the ‘public law principles of fairness’, which require that claimants are sufficiently well informed ‘to make informed and meaningful representations’²⁸ regarding a work requirement.²⁹ Claimants must be informed of any imposed requirements and the ‘consequences of failing to comply’, which includes the imposition of sanctions.³⁰ Any work requirement ‘should be reasonable and achievable for the individual claimant and their circumstances’.³¹ Work-related requirements are subject to specific legislative easements, but work coaches also have the discretion to ‘temporarily suspend conditionality requirements’ where it would be unreasonable to impose them because of the individual claimant's ‘complex needs’, which include homelessness, addiction and other mental health issues.³² It should be noted, however, that ‘evidence suggests that they are not systematically applied’ and that ‘discretionary powers are routinely ineffective in addressing’ the power imbalance between claimants and those who administer the scheme.³³ Nevertheless, where claimants believe they are being asked to do something unreasonable given their personal circumstances then they are entitled to ‘ask for a review of the claimant commitment’.³⁴

It is worth noting here that the DWP considers zero-hours contracts to be reasonable employment.³⁵ In response to a Freedom of Information request, the DWP stated that ‘UC work coaches routinely use their discretion to decide if jobs including ZHC vacancies are suitable for a particular individual’. The DWP further stated that sanctions would be applied to claimants who fail to apply for zero-hours contracts barring those with an ‘exclusivity clause’.³⁶ This reliance on zero-hours contracts as reasonable employment, and the power to ‘mandate’ them for benefit claimants followed a change in policy with the shift to the UC scheme.³⁷ While there is no data on how many claimants have been required to accept zero-hours contract to avoid sanctions, the prevalence of zero-hours contracts has risen from 225,000 in December 2000 to over 1.1 million by the end of 2022.³⁸ Furthermore, empirical studies suggest that ‘the first contact with precarious jobs often starts at the Jobcentre where claimants are encouraged, directed or coerced to apply for … zero-hours work’.³⁹ Research suggests that it is not uncommon for work coaches to ‘insist’ that claimants accept zero-hours contracts.⁴⁰

Because the claimant commitment is a basic condition for receiving benefits, there is pressure on claimants to accept the assigned work-related requirements as soon as possible. Research indicates that the claimant commitment is ‘experienced … as coercive rather than contractual’.⁴¹ Once agreed, the requirements become mandatory. The DWP guidance explains that a claimant fails to comply where they fail ‘to act in accordance with a specific requirement’. This includes refusing to do the specified activity but may also include other inappropriate behaviour such as being antagonistic, acting unreasonably or in a manner that is unacceptable in the workplace.⁴² Claimants must be given an opportunity to explain and ‘show good reason’ for any failure to comply. In considering whether the claimant has shown good reason, the decision maker must take into account the claimant's ‘individual circumstances and reasonableness’.⁴³ Where a claimant fails to comply ‘for no good reason’, this may result in a sanction,⁴⁴ which reduces the benefit payment by 100% of the standard allowance.⁴⁵ There are four levels of sanction, with the higher-level sanctions lasting initially for 91 days, subject to extension up to 182 days for repeat failures.⁴⁶ Hardship payments are available to mitigate the impact of sanctions, provided claimants have complied with all work-related requirements for seven days prior to submitting the claim.⁴⁷

The scheme's underlying policy motivations were ‘to ensure that work always pays’⁴⁸ and the perceived need to tackle the ‘significant and growing problem’ of poverty and welfare dependency.⁴⁹ Based on the idea that ‘strong and clear sanctions are critical to incentivise benefit recipients to meet their responsibilities’,⁵⁰ this approach centres on individual responsibility, blame and coercive compliance, the ‘underlying assumption’ being that those who decline the opportunity to work are ‘benefit “scroungers” who do not want to work’ and thus do not deserve benefits.⁵¹ In this age of ‘welfare austerity’, the government narrative emphasises the issue of welfare dependency at the expense of any concern for poverty.⁵² This stigmatising narrative⁵³ is reflected in the ‘creeping conditionality’ of welfare reforms that are particularly characterised by ‘the scale and nature of the cuts to public social spending and the elevated role of welfare withdrawal and sanctions’.⁵⁴

Wright and Dwyer describe UC as ‘the most all-encompassing manifestation of conditionality in any developed welfare system’.⁵⁵ The increased emphasis on welfare conditionality, and benefits as earned entitlements that must be deserved, has established ‘a framework of “state-mediated structural injustice”’.⁵⁶ Undermining the needs-based ‘rights and status of social citizenship’, UK welfare reforms have increased social inequalities, with the more frequent use of severe sanctions disproportionately impacting on the young, on single parents, the disabled and the homeless.⁵⁷ Against a backdrop of rising living costs, cuts to social security spending, and an increasingly precarious labour market, welfare conditionality has created a form of ‘structural violence’ that weaponises the humiliation of destitution to intimidate claimants into active engagement with the labour market.⁵⁸

For many claimants, life on benefits is a matter of survival, with destitution a reality or imminent threat.⁵⁹ The reliance on a coercive system of conditional welfare worsens the risk and reality of destitution, pushes claimants to adopt subversive or non-compliant survival strategies,⁶⁰ and negatively impacts the mental health of welfare recipients.⁶¹ This may be exacerbated by the extensive use of sanctions,⁶² particularly for relatively minor infractions.⁶³ Rather than being a relational device that enables the work adviser to support the claimant's search for employment, the claimant commitment becomes a surveillance device that facilitates the penal role of sanctions.⁶⁴ The coercive combination of the claimant commitment backed by punitive sanctions and the poorly paid, precarious employment at the lower end of the labour market upsets the ‘balance … between support and conditionality’,⁶⁵ so marginalising the ‘powerless’ unemployed.⁶⁶ As the Welfare Conditionality Project found, ‘stringent sanctions’ ensured compliance but did so in a counterproductive way that impacted negatively on wellbeing, failed to improve employment prospects and pressured claimants into applying for unsuitable employment, such as zero-hours contracts, to avoid the imposition of sanctions perceived as unfair and inappropriate.⁶⁷ The question then, is whether the approach under the UC scheme, which prioritises conditionality at the expense of the individual's needs,⁶⁸ violates the human rights of those trapped between destitution and in-work poverty?

From a legal human rights perspective, the effect that benefit sanctions may have on the lives of claimants and their families provides the basis for a claim under Article 3 of the ECHR, which prohibits inhuman or degrading treatment.⁶⁹ Arguably, the state is responsible for imposing sanctions that result in ‘[extreme] deprivation’,⁷⁰ and the UK's ‘punitive approach’ raises the spectre of ‘cruel, inhuman or degrading treatment’.⁷¹ Significantly, however, Article 3 claims may only be successful in individual cases where a sanctioned person is ‘unable to access food or shelter to such an extent and for such a period as to cause significant suffering’.⁷² The advantage of an Article 4 claim is that, insofar as the punitive use of sanctions coercively forces individuals into employment, it more readily allows for a principle-based challenge to the scheme itself. If it can be shown that sanctions are punitive measures that coerce people into employment, then their very existence undermines the principle that work should be voluntary and not exacted under the menace of a penalty.

2. Article 4 and the UK's conditional welfare scheme

Article 4 of the ECHR prohibits slavery and forced labour. In the context of work performed as part of a conditional welfare scheme, the Article 4(1) prohibition on slavery has no direct relevance.⁷³ Thus, the acceptability of the UK conditional welfare policy falls to be assessed under the Article 4(2) prohibition on forced labour. This is subject to the exception provided for under Article 4(3)(d), which allows work to be required as ‘part of normal civic obligations’.

It is notable that in all three cases to have reached Strasbourg, the claim that a state's conditional welfare policy violated Article 4(2) was summarily rejected as inadmissible.⁷⁴ This was followed by the Supreme Court in R (on the application of Reilly and Another) v Secretary of State for Work and Pensions, which concerned conditional welfare arrangements under the Jobseekers Act (JSA) 1995 and associated Regulations. Miss Reilly was required to participate in the unpaid Sector-based Work Academy scheme, which was intended to provide training and work-experience in a placement linked to a ‘genuine job vacancy’. Miss Reilly was wrongly told that her participation was mandatory. She claimed, inter alia, that her mandated participation, and/or the Regulations, were contrary to Article 4.⁷⁵ In rejecting Miss Reilly's cross-appeal on this issue, and upholding the Court of Appeal's decision, the Supreme Court held that Article 4 was aimed at preventing exploitative conduct and that, in the context of welfare benefits, ‘the imposition of the work condition’ failed to meet even ‘the starting point for a possible contravention of article 4’.⁷⁶

These cases suggest it would be difficult to satisfy the Court that conditional welfare schemes violate, or even engage, Article 4. Indeed, in Schuitemaker v the Netherlands the Court explained that ‘in general’ a state is ‘fully entitled’ to impose eligibility conditions on the payment of welfare benefits.⁷⁷ However, the case law has been criticised, and it is arguable that, by restricting its decision to the specific ‘condition at issue’, the Court in Schuitemaker did not rule out the possibility that a conditional welfare scheme could engage Article 4 and justify a full hearing of the merits.⁷⁸

This possibility is supported by the Court's evolutive approach to interpreting the ECHR as a ‘living instrument’ that adapts to changing social circumstances and attitudes.⁷⁹ Since the 1976 case of X v the Netherlands, the nature of the work obligations imposed on welfare claimants has changed.⁸⁰ Specifically, the obligation to accept precarious employment opportunities, such as zero-hours contracts, may distinguish the present UK scheme from those in previous cases and justify a full hearing. Furthermore, consider Faure v Australia, which concerned, inter alia, a claim that the requirement to attend the Australian Work for Dole program was a violation of Article 8(3) of the International Covenant on Civil and Political Rights. While ultimately rejecting the claim, the UN Human Rights Committee observed that there was ‘undoubtedly’ an ‘arguable claim’,⁸¹ and held that Faure's arguments were ‘sufficient[ly] weight[y] … for purposes of admissibility’.⁸² Given that the Court may look to the UN Committee's communications as an aid to interpreting the ECHR,⁸³ its approach in Faure shows the potential for Article 4 if generously interpreted. It is, therefore, worth considering in more depth whether the current UK scheme is consistent with Article 4(2) of the ECHR.

An analysis of Article 4 jurisprudence identified four interrelated issues. The first two follow from the Court's reliance on the International Labour Organisation's (ILO) definition of forced labour as work ‘exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.⁸⁴ Thus, the two issues are whether the scheme imposes ‘the menace of any penalty’, and whether the work is imposed as an involuntary obligation. The third issue is that the mischief targeted by Article 4(2) is ‘serious exploitation’.⁸⁵ The fourth issue is whether, under Article 4(3), the work is excluded from the definition of forced labour because it falls within the normal or ordinary obligations arising from living within a community.

(a) The menace of a penalty

The ‘menace of a penalty’ requirement targets the mischief of compelling performance by threating a punishment that would cause a loss or disadvantage.⁸⁶ The threat need not relate to a ‘sanction of a criminal character’, but must be ‘sufficiently daunting’.⁸⁷ Under the UK scheme, this may be satisfied by the threat of sanction where benefit claimants, without good reason, fail to comply with their work-related obligations.⁸⁸ While lacking the hostility of a criminal threat, the sanction mechanism serves the equivalent purpose of constraining choice⁸⁹ and takes the same form as a threat or menace: ‘if you don't comply then you will be sanctioned’. Although mitigated by the good reason justification for noncompliance, the sanction mechanism remains a threat. Whether the UK scheme compels labour through ‘the menace of a penalty’ thus depends on whether the sanctions are penalties, a question that has been decided differently by the Danish (benefit sanctions are not penalties) and Dutch (benefit sanctions are penalties) courts.⁹⁰

It might be argued that the terminology of sanction used in the legislation is synonymous with a penalty: it is simply a different label for what is effectively the same concept. Consider the Supreme Court's discussion of when a parking charge would constitute a penalty.⁹¹ For the Supreme Court, where the charge served no legitimate interest or was ‘out of all proportion’, being ‘extravagant’, ‘exorbitant’ or ‘unconscionable’, then it would constitute a penalty.⁹²

The UK scheme undoubtedly serves a legitimate interest, given the underlying policy goals of reducing unemployment, poverty, and the welfare budget. However, this may be undermined by the unjust, disproportionate, and punitive nature of the sanctions,⁹³ which ‘could have a profound and long-lasting financial impact’.⁹⁴ These sanctions threaten the risk of destitution, which is ‘unconscionable’ in a comparatively rich liberal democracy, such as the UK, and it is ‘out of all proportion’ to the legitimate aim of reducing unemployment. The availability of hardship payments mitigates the risk of destitution. However, claimants may not be informed of their availability and hardship payments must be repaid,⁹⁵ which limits their ability to stave off the longer-term risk of destitution that accompanies the prolonged periods of sanctions imposed for repeat failures to comply with the claimant commitments.⁹⁶

Whether state governments can be held responsible for individuals becoming destitute through a failure to provide welfare support has been considered in the context of the state's Article 3 obligation not to subject anyone to inhuman or degrading treatment.⁹⁷ While there is no general duty to prevent destitution,⁹⁸ the state may be held responsible, but the threshold is high.⁹⁹ Even 14 months of homelessness has been deemed insufficient to reach the severity required ‘to engage Article 3’, regardless of the impact on the claimant's health.¹⁰⁰ While the Court has held that unacceptable living conditions may be sufficient to cross the threshold, this was in the context of asylum seekers held in detention centres.¹⁰¹ Similarly, the state may violate Article 3 if it fails to provide welfare support to destitute asylum seekers who are forbidden from working by law and cannot secure ‘assistance from friends or charity’.¹⁰²

Both benefit claimants and asylum seekers may be characterised as vulnerable and dependent on the state for support.¹⁰³ However, the key distinction between the two groups is the degree of control exerted over asylum seekers, the impact of that control on their agency and the level of their dependence on the state for the provision of basic necessities.¹⁰⁴ Furthermore, the claimant's responsibility for triggering a sanction may be sufficient for the Court to hold them, rather than the state, responsible for their predicament.¹⁰⁵ Nevertheless, it is the state that imposes sanctions, making it arguable that where such a ‘deliberate action of the state’ results in destitution then Article 3 has been violated.¹⁰⁶ If the Court can be so persuaded, then the argument that benefit sanctions amount to the menace of a penalty would be strengthened.

A core assumption of this argument is that the withdrawal of conditional welfare benefits is the kind of loss that may constitute a penalty. Dermine argues that the Commission's approach in X v the Netherlands was ‘outdated’ since it appeared to equate penalty with criminal sanction while the Court has since accepted that it includes ‘loss of a right, advantage, privilege or status’.¹⁰⁷ Derivative of the ILO's approach, this broad concept of a penalty includes financial loss.¹⁰⁸ Thus, insofar as it causes a loss, a sanction could amount to a penalty. However, as the Commission observed: ‘acceptance of a convenient employment is only a condition for granting unemployment benefits’.¹⁰⁹ This implies that sanctions do not cause a loss because the failure to satisfy the condition means that there is no initial entitlement to unemployment benefits. This lack of entitlement argument applies even if welfare benefits may be characterised as possessions and protected by Article 1 of Protocol No 1 of the ECHR.¹¹⁰ Thus, conditional welfare schemes are an expression of responsibility and entitlement, rather than the ‘menace of a penalty’: ‘you must fulfil your work-based obligations if you are to be entitled to receive welfare benefits’.

It may be countered that the ‘punitive’ nature of the sanctions is revealed by their continued application, albeit at a reduced rate, even when the sanctioned individual's circumstances have changed, and they have been moved to a ‘no work-related requirements’ group. In such a case, the sanction no longer serves ‘to incentivise people into work’ since the obligation to seek work no longer applies.¹¹¹ The requisite nexus between the failure to fulfil the condition and the sanction is lost, disapplying the lack of entitlement argument.

Indeed, the fixed-term nature of the sanctions regime arguably implies a punitive rather than incentivising purpose. As such, the sanctions at least constitute ‘a risk comparable to the menace of a penalty’.¹¹² In Siliadin v France, the Court held that even though no actual penalty had been threatened, ‘she was in an equivalent situation in terms of the perceived seriousness of the threat’ that she might be arrested and deported.¹¹³ For the Court it was sufficient that the fear was exploited to compel compliance. Arguably, then, the mischief is not the existence of a penalty per se, but the impact of a threat or menace on the voluntariness of any work obligation. However, the threat of sanctions is insufficient since: ‘not all work exacted from an individual under threat of a “penalty” is necessarily “forced or compulsory labour”’.¹¹⁴ Beyond the menace of a penalty, forced labour requires that the work is involuntary.

(b) Voluntariness

It is arguable that, by applying for benefits and agreeing to comply with the claimant commitment, claimants voluntarily accept the work-related conditions to secure an entitlement to benefit payments. The Government does not force claimants to apply for benefits and is entitled to establish a conditional welfare scheme.¹¹⁵ However, acts are involuntary when ‘compelled … by a sufficiently grave threat’ – voluntariness ‘is negated by compulsion’.¹¹⁶ For example, the law allows contracts to be set aside where agreement has been secured through duress, even where the pressure to agree is not itself unlawful. For lawful act duress, an ‘unconscionable’ agreement may be sufficient to constitute ‘illegitimate pressure’, so vitiating consent to the contract.¹¹⁷ While the claimant commitment is presented as an agreement, claimants had no real choice but to accept it given the alternative of complete ineligibility for welfare payments. The unconscionable compulsion that undermines choice and negates voluntariness comes from the risk of destitution in the absence of welfare support.

The relevance of choice was recognised in Siliadin. The fear of arrest and deportation, coupled with the vulnerability of the applicant as a minor living unlawfully in a foreign land, meant that ‘she was not given any choice’.¹¹⁸ The applicant, however, did have a choice since she could have refused and accepted the risk of arrest. Threats ‘change the incentives … so that they influence but do not abolish choice’.¹¹⁹ Nevertheless, the Court's point is that the choice was so unconscionable that the applicant could not have been expected to do anything but comply. As the Court stated: ‘it cannot be seriously maintained’ that the applicant ‘performed this work of her own free will’.¹²⁰ The lack of any ‘real’ choice rendered the performance involuntary.

For benefit claimants the choice is between agreeing to the claimant commitment and being ineligible for welfare payments. This is not a good choice, but arguably does not reach the level of unconscionability required to undermine its voluntariness. No one is compelled to apply for welfare benefits and individuals are free to find other means of support, even if this means relying on foodbanks and other forms of charity.¹²¹ The choice may not be good, or fair, but remains sufficient for the claimant commitment to be considered voluntary. Furthermore, the need for benefits is economic, which does not equate to compulsion in the context of forced labour. As the ILO Director-General explained, forced labour ‘[does not] cover situations of pure economic necessity, as when a worker feels unable to leave a job because of the real or perceived absence of employment alternatives’.¹²² If economic necessity is insufficient to negate the voluntariness of a work contract, then it should not be considered sufficient to negate the voluntariness of the claimant commitment. The Court has repeatedly rejected claims involving conditional welfare schemes and held that the obligation to seek employment as a condition of receiving welfare benefits is an insufficient compulsion to constitute forced labour.¹²³ The claimant commitment should, therefore, be seen as sufficiently voluntary in the context of Article 4(2).

While the claimant commitment may be voluntary, this does not mean that subsequent work-based obligations are automatically voluntary labour.¹²⁴ Following Van der Mussele, the claimant commitment represents a general ‘prior consent’, which might be vitiated by the particular circumstances of any consequential work-based obligation.¹²⁵ The Court in Van der Mussele relied on essentially three evaluative standards to assess the limits of a prior consent: the reasonableness of the work; its benefits; and the proportionality of its burdens. ¹²⁶ The application of these standards depends on the particular circumstances, making it impossible to completely rule out a successful case. A distinction must be made between the scheme and its implementation. The possibility of inappropriate implementation in individual cases must leave open the possibility that the Court will find a violation of Article 4(2). The more pressing question is whether the scheme could amount to a violation as a matter of principle.¹²⁷

For Mantouvalou, the concern regarding the UK scheme is that it coerces people into precarious and exploitative work, such as zero-hours contract employment, that does little or nothing to alleviate poverty.¹²⁸ There is strong evidence that strict welfare conditionality reduces unemployment by transforming the unemployed poor into the working poor.¹²⁹ While not the sole concern with UK welfare policy, poverty arguably provides a bottom line measure of the (in)justice of that policy, particularly since poverty may be characterised as a human rights violation.¹³⁰ The human rights approach, which characterises poverty as a ‘moral catastrophe’, potentially provides ‘new mechanisms’ to tackle poverty and empowers the poor.¹³¹

It may be asked whether the Court has a role in tackling poverty, particularly since the ECHR essentially focuses on civil and political rights. If, however, poverty is accepted as a human rights issue,¹³² then as a human rights court, the Court should be concerned. The caveat is that the Court's concern must be constrained by its subject-matter jurisdiction. The ECHR, however, lacks any direct right to an adequate standard of living. Thus, if the Court is to legitimately address poverty as a human rights concern, recourse must be had to other provisions.

As discussed above, Article 3 provides only a very limited weapon against poverty and is best suited to addressing implementation issues, rather than the scheme itself.¹³³ By allowing the scheme itself to be challenged, Article 4 potentially provides an indirect mechanism for addressing the poverty trap of conditional benefits and precarious employment. For that potential to be realised, the Court must be persuaded that any requirement to accept zero-hours contract work would render the claimant commitment involuntary and constitute forced labour under the Van der Mussele standards. It is unlikely that the Court would be so persuaded.

Regarding the first standard, it should be noted that the work expectation under the UC scheme is limited to ‘reasonable employment’,¹³⁴ which includes zero-hours contract work.¹³⁵ As the DWP has clarified: ‘a Universal Credit claimant who is subject to all work related requirements can be expected to apply for a zero-hours contract job if it is considered suitable for their individual circumstances’.¹³⁶ Given the legality and prevalence of zero-hours contracts,¹³⁷ both in the UK and other European states parties to the ECHR,¹³⁸ the Court is also unlikely to consider such work to be unusual, or unreasonable. Personal circumstances may make such employment unreasonable, but claimants are entitled to refuse the employment if they have good reason.¹³⁹ Given the potentially negative impact of precarious employment on mental health and wellbeing, such work may not be suitable for everyone, particularly those who lack adequate social support or who have pre-existing mental health problems.¹⁴⁰ However, as the Taylor Report concluded, while working arrangements and protections could be improved, non-standard work is an important part of the UK labour market and can benefit both employers and employees.¹⁴¹ Although the UK may be more permissive than many European countries,¹⁴² the Taylor Report's findings support the proposition that the Court should not deem such work ‘unusual’ or unreasonable.

Regarding the second standard, claimants in low-paid jobs remain entitled to receive UC payments, which are reduced by 63 pence for every pound earned.¹⁴³ This should make the person financially better off. Even if Dwyer and Wright are correct that there may sometimes be a ‘perverse incentive to engage in limited hours of paid work’,¹⁴⁴ claimants should not be financially worse off given the benefit taper system. The availability of tapered UC payments suggests that claimants will benefit by working, even if they remain impoverished. Furthermore, even in zero-hours contract jobs, work provides the benefits of employment experience, the possibility of developing new skills and the opportunity to obtain references that may help to secure less precarious work. It is, therefore ‘plausible’ that ‘for certain groups of individuals facing a lacklustre labour market, the opportunity to work on a zero-hours contract represents a real benefit over the alternatives available’.¹⁴⁵ Furthermore, for the Supreme Court in Reilly, it was crucial that the purpose of the ‘work requirement’ was to improve the claimant's ‘employment prospects’. The likelihood of that ‘work requirement … achieving its purpose’ was irrelevant to the question of whether it constitutes forced labour.¹⁴⁶ Thus, evidence that the approach under the UK scheme ‘creates a new conditionality mismatch between strong sanctions (with associated ill-effects), unrealistic job expectations and unrealised employment outcomes’¹⁴⁷ warrants political challenge but does not impact on the compatibility of the scheme with Article 4.

Turning to the third standard. For work-related obligations to be disproportionate, they would need to impose excessive burdens that are ‘so considerable and unreasonable’ that the legitimacy of the underlying policy goals is undermined, so vitiating the consent embodied in the claimant commitment.¹⁴⁸ The UC scheme limits its work-based expectations to securing ‘reasonable employment’ within a 90-minute travel radius and a 35-hour week.¹⁴⁹ Welfare payments are also available to supplement low pay and help with the costs of working.¹⁵⁰ Furthermore, the availability of the ‘good reason’ excuse, if properly applied, should ensure that no one suffers a disproportionate burden under the UK scheme.

In CN and V v France, the Court interpreted the ‘notion of a “disproportionate burden”’ to include ‘the type and amount of work involved’. For the Court, ‘[t]hese factors help distinguish between “forced labour” and a helping hand which can reasonably be expected of other[s]’.¹⁵¹ This approach is based on the finding in Van der Mussele, that the principles grounding the Article 4(3) exclusions form part of the definition of forced labour and create a context dependent de minimis gatekeeping condition. ¹⁵² For work to constitute forced labour, it must be something beyond what might ordinarily be expected as part of everyday life, whether as part of a family, part of a profession or part of the wider community. Thus, in Reilly, the Supreme Court applied this approach to argue that the ‘common features of life in democratic societies … do not represent the mischief at which the article is aimed’. Even where obligated ‘under menace of a penalty’,¹⁵³ work will not constitute forced labour under Article 4 unless it exceeds what might be considered ‘normal’ or ‘ordinary’ within the context of the obligations that arise as part of a social existence.¹⁵⁴

(c) Exploitation

Exploitation, as an essential, identifying characteristic,¹⁵⁵ lies at the ‘heart’ of forced labour¹⁵⁶ Exploitation, however, is a matter of degree, with no clear dividing line identifying the point at which it constitutes forced labour.¹⁵⁷ For the ILO, ‘there is a continuum’ between slavery and ‘freely chosen employment’.¹⁵⁸ Forced labour does not simply equate to ‘extremely poor’ or ‘sub-standard’ working conditions,¹⁵⁹ and requires more than an ‘infringement of labour legislation’. Since forced labour is a ‘severe violation of human rights’, the exploitation must sit towards the coercive ‘slavery and slavery-like’ end of the continuum.¹⁶⁰

In SM v Croatia, the Court held that ‘the notion of “forced or compulsory labour” … aims to protect against instances of serious exploitation, such as forced prostitution’.¹⁶¹ By qualifying the degree of exploitation as ‘serious’, the judgment confirms that forced labour involves exploitation but that not all cases of labour exploitation amount to forced labour.¹⁶² Thus, for a violation of Article 4(2), it must be shown, first, that the labour relationship is exploitative and, secondly, that the exploitation is ‘serious’.

Law is only concerned with wrongful exploitation, which is characterised by three core elements: a relationship with a power imbalance; the dominant party's abuse of the weaker party's vulnerability to exert control and secure an advantage;¹⁶³ and the conversion of the advantage into a gain that benefits the dominant party.¹⁶⁴ The wrong lies in the unfairness or injustice of the exploitative transaction,¹⁶⁵ which causes the weaker party to suffer an ‘undeserved’ loss.¹⁶⁶ Since an exploitative transaction may benefit both parties, the loss need only be relative insofar as any benefit provided to the weaker party is comparatively insufficient,¹⁶⁷ or inauthentic (a ‘false benefit’ that lacks the appropriate quality of a genuine gain – the exploiter owes the other party ‘something better’).¹⁶⁸

If the UK's conditional welfare scheme can be characterised as seriously exploitative, this is most likely to be where welfare claimants are pushed into accepting precarious employment involving zero-hours contracts or other non-standard work arrangements.¹⁶⁹ In such circumstances, there is a clear power imbalance between benefit claimants and the government. Claimants are made vulnerable through unemployment and a reliance on benefits to meet their basic needs. The government, backed by the legislative regime, has the legal power to insist on compliance with the claimant commitment and to withdraw benefits for unjustified non-compliance. Through this legal power, the government may use the claimant's vulnerability to exert sufficient control over them to secure their compliance with the claimant commitment.

In the absence of a good reason to refuse, benefit claimants may be required to accept zero-hours contract work even though they would not otherwise choose to work in such precarious employment. In pushing claimants to accept such work, the government gains a political benefit from any consequential reduction in the unemployment figures and welfare budget. Claimants may benefit from being employed, but the precarious nature of such employment that does little to relieve their financial insecurity, arguably means that any gain is insufficient, or of an inappropriate quality, to amount to a fair transaction. Thus, claimants at least suffer a relative loss from a transaction that may be characterised as unfairly exploitative. However, there are four reasons, other than politics and subsidiarity (see below), why it is unlikely that the Court would be persuaded that the exploitation is sufficiently serious to violate Article 4(2).

First, the poor quality of zero-hours contract work may support a claim of exploitation but is insufficient to amount to serious exploitation. More is required than that the work is precarious and leaves claimants in a position of financial insecurity.¹⁷⁰ This is illustrated by Chowdury, in which seasonal strawberry pickers ‘laboured under extreme physical conditions and for exhaustingly long working hours and were subjected to constant humiliation’.¹⁷¹ However, this was insufficient to constitute serious exploitation without the additional threats posed by the armed supervision, the withholding of wages, the desperate living conditions and the vulnerability of the workers as ‘irregular migrants’ facing the constant threat of arrest and deportation.¹⁷²

Secondly, the degree of control exerted over claimants is insufficient to amount to serious exploitation, which requires that the dominant party of an ‘oppressive’ relationship¹⁷³ treats the vulnerable party ‘as an object under his or her control’.¹⁷⁴ The UK scheme involves the negotiated agreement of the claimant commitment and allows claimants, who have good reason, to excuse themselves from a work-related responsibility. Both factors mitigate the coercive nature of the sanctions under the scheme. The threat of the sanction may function similarly to the threat of a penalty, but there is no legal compulsion to accept a job. While claimants lose any entitlement to the standard welfare allowance for the duration of the sanction, there is no legal offence associated with the failure to comply with the claimant commitment. Claimants are also free to stop claiming benefits and accept alternative offers of support or employment if available.¹⁷⁵ Thus, claimants are neither ‘under compulsion and manipulation at all times’,¹⁷⁶ nor ‘chained without physical chains’.¹⁷⁷ Claimants are not a ‘ruthlessly exploited … commodity’ lacking any ‘true freedom of choice’,¹⁷⁸ nor is their freedom ‘significantly curtailed’ through intimidation, mistreatment or physical violence.¹⁷⁹ To the contrary, claimants retain a sufficient degree of control to prevent the scheme amounting to a violation of Article 4(2).¹⁸⁰

Furthermore, since ‘pure economic necessity’ is not a relevant form of coercion,¹⁸¹ the economic threat posed by the sanction is arguably exploitative, but not seriously exploitative. As the Supreme Court held: ‘The provision of a conditional benefit … comes nowhere close to the type of exploitative conduct at which article 4 is aimed’.¹⁸² The sanctions are currently tougher than in Reilly, but it remains unlikely that they would support a claim that the scheme is seriously exploitative, particularly since higher-level sanctions were reduced from 1095 to 182 days.¹⁸³

Thirdly, by encouraging employment and reducing reliance on welfare, the scheme is intended to benefit both the unemployed and the wider community. In the zero-hours contract case, the benefit may be unequal and there may be better schemes available. However, the beneficial intention remains, which provides at least some justification for the scheme¹⁸⁴ and makes it unlikely that a court would consider that it constitutes serious exploitation. This argument is unaffected by any objection that the scheme may be ineffective in achieving the benefits since ‘the meaning of article 4 cannot depend on the degree of likelihood of the condition achieving its purpose’.¹⁸⁵

Fourthly, the nature of the conditional welfare scheme is such that any reasonable work requirement amounts to a normal civic obligation or is at least consistent with the general underlying principle of the Article 4(3) exclusions.¹⁸⁶ Work that falls directly under Article 4(3), or within its general underlying principles, lies outside the mischief targeted by Article 4 and would not be considered seriously exploitative by a court.

(d) Normal civic obligations

Under Article 4(3), normal civic obligations are excluded from the prohibition of forced labour. In Van der Mussele, the Court expanded the relevance of the exclusion by holding that the underlying principles of ‘general interest, social solidarity and what is in the normal course of affairs’ help to define the extent of the concept of forced labour.¹⁸⁷ Thus, there is no need to show that any required labour is a normal civic obligation provided it is consistent with those underlying principles and so forms part of the ‘normal’ or ‘common features of life in democratic societies’.¹⁸⁸ However, direct appeal to the Article 4(3)(d) exclusion is not precluded.

Normal civic obligations are those duties imposed by the government on citizens arising from the widely accepted ‘moral conviction’ that everyone should contribute to the community's common goals.¹⁸⁹ Based on what might be reasonably, properly or fairly expected of the good citizen (itself a politically contested notion),¹⁹⁰ the concept is vague and underdetermined by existing case law.¹⁹¹ Beyond specific examples, such as the duty to serve on a jury,¹⁹² the case law does, however, provide insights into the scope of the concept and the criteria that ‘restrict the competence of government to shape civic duties’.¹⁹³

For the Human Rights Committee in Faure, normal civic obligations must be ‘provided for by law in order to serve a legitimate purpose’ and neither ‘exceptional’ nor ‘punitive’ in nature.¹⁹⁴ In applying these conditions, it should be noted that the non-punitive condition applies to the nature of the work and not the use of sanctions.¹⁹⁵ The UK scheme is established under a legislative framework with the legitimate aims of encouraging employment and reducing the burden of unemployment on the state and its welfare budget.¹⁹⁶ Furthermore, the imposition of work obligations as a condition for receiving benefit payments is not exceptional. Such schemes are commonplace in contemporary democracies and have their roots in historical poor laws that implemented duty to work policies and preserved ‘the necessary motivation for employment’ by providing only limited relief.¹⁹⁷

The duty to work may be derived from the principles of general interest and social solidarity. Consistent with the UK Government's policy emphasis on social responsibility,¹⁹⁸ the idea is that working contributes to the economy and, through taxes, to public funds that provide welfare support. Working is, therefore, in the general interest of the state and its citizens. Since all citizens benefit from the support or security provided by a welfare system, they should do what they can to make a fair contribution to the state's economy and funds through working. Benefit claimants who could work but choose not to are free riders, exploiting the hard work of others. Free riders violate the norm of fairness because they take the benefit of other people's work without sharing the burden.¹⁹⁹

Social solidarity requires that all citizens fulfil their reciprocal obligations to justify the benefits that flow from being part of an organised community. Indeed, behavioural experiments suggest that ‘individuals are conditionally generous, willing to share with others if recipients are behaving in a fair manner’.²⁰⁰ It is, therefore, not unreasonable²⁰¹ for a community to implement laws that secure the fulfilment of those obligations to ensure that the benefits and burdens of social existence are distributed fairly or proportionately.²⁰² To be consistent with normal civic obligations, or the underlying principle of social solidarity, any work requirement must be proportionate to the policy goals.²⁰³

Consider, for example, Steindel v Germany, which concerned a private medical practitioner's obligation to provide public emergency services.²⁰⁴ The Court held that this was a normal civic obligation since it was ‘founded on a concept of professional and civil solidarity’ and imposed a burden that was proportionate to the goal of managing medical emergencies. The burden of providing emergency services for six days every three months left ‘ample time’ for the applicant's private practice and was balanced by the benefits: the work was remunerated and ‘in principle’ meant that the applicant was not obliged to be available to his patients outside normal consultation hours.

Given that the UK scheme allows a person to be excused for ‘good reason’ and limits the hours and travel expectations of any work-related requirements, the burden should be characterised as proportionate. While the financial insecurity of zero-hours contract employment may factor into the calculation of proportionality, arguably it would be insufficient to make the obligation disproportionate given that claimants remain entitled to welfare payments to supplement low pay,²⁰⁵ which mitigates that insecurity.²⁰⁶ Thus, the UK scheme is arguably compliant with Article 4(2), although this does not preclude the possibility that Article 4(2) may be violated in specific cases where the scheme has been improperly implemented.

The strongest counterargument to the claim of proportionality begins with the premise that a cooperative social scheme can only generate a reciprocal duty to work where the outcome is a fair distribution of both benefits and burdens. For a distributively unjust scheme, the duty is undermined by the disjunction between burden and benefit.²⁰⁷ Along with reducing unemployment, the UK scheme is also intended to ‘mak[e] sure work pays’ and to ‘reduce in-work poverty’.²⁰⁸ While paid employment can provide the means to escape poverty, this is unlikely to be the case for ‘low paid, menial and insecure work’, exemplified by precarious zero-hours contract work, which may contrarily ‘harm family life and wellbeing’, ‘trapp[ing]’ individuals ‘in a cycle of “poor work” and worklessness’.²⁰⁹ Such employment fails to provide the intended benefits of work as ‘the best form of welfare’.²¹⁰ Consequentially, the burden imposed by requiring claimants to accept such work exceeds the benefits and so may be characterised as disproportionate.

This counterargument relies on a point of comparison between employment and unemployment that takes welfare payments as the baseline. However, because welfare payments are part of the scheme and conditional on compliance with any reasonable work-related obligations imposed under the scheme, they should be excluded from the baseline position. If welfare payments are properly included in the benefit side of the benefit/burden proportionality argument, particularly since the scheme provides for in-work benefits, then even an obligation to accept zero-hours contract work is a proportionate burden. The proportionality of the UK programme is reinforced by the right to refuse employment where the claimant has ‘good reason’ as well as the right to hardship payments in the event of sanctions being applied.²¹¹ As such, the work-related requirements of the UK's conditional welfare scheme may be characterised as normal civic obligations, or at least as consistent with the underlying principles of Article 4(3). Indeed, ‘work as a citizenship duty’ has become such a firmly embedded social norm that it has even been characterised as an ‘unquestionable’ obligation,²¹²

The preceding arguments are essentially contingent on competing views of what is distributively fair, pitting the UK Government's reliance on a desert-based policy approach against other, more needs-based, measures of justice. The question then is whether the courts should, or would, be willing to choose between these competing views. This will be addressed in the next section.

3. Politics, subsidiarity, and the UK's conditional welfare scheme

This paper has examined the claim that the UK scheme violates Article 4(2) by compelling claimants to accept precarious employment such as zero-hours contract work. For each of the four interrelated features that characterise forced labour, it was argued that the claim may be both plausibly defended and opposed. However, the weight of the arguments leans towards the conclusion that the UK scheme does not violate Article 4(2). This conclusion is supported by the politics of judicial decision-making, both at European and domestic levels.

Since all conditional welfare cases to reach Strasbourg have been rejected as inadmissible, the historical jurisprudence provides a strong initial barrier. This is supported domestically by the Supreme Court's approach in Reilly.²¹³ Furthermore, the admissibility decision can be used to strategically handle cases that might otherwise exacerbate the ongoing ‘tensions between the UK and Strasbourg’.²¹⁴ Such a politically tactical approach would enhance the barrier, making it more difficult to surmount. However, given that the ECHR is a ‘living instrument’,²¹⁵ that the sanctions are notably tough, and that zero-hours contract work is exploitatively precarious, it remains possible that the Court, like the Human Rights Committee in Faure, would accept as admissible the claim that the UK scheme violates Article 4(2).

Even if a case survives the admissibility decision, the principle of subsidiarity²¹⁶ should direct the Court towards the conclusion that the scheme does not violate Article 4(2). The principle of subsidiarity,²¹⁷ which has been enshrined in the Convention preamble by Protocol 15, guides the division of a shared responsibility for protecting the Convention rights between the Court and the member states.²¹⁸ Under the principle, member states have ‘primary responsibility’, with the Court having a supervisory role that requires due respect for the margin of appreciation afforded member states,²¹⁹ who ‘remain best placed’ to determine whether policies, laws and other measures adequately protect the Convention rights.²²⁰ Where a claim essentially depends on contested political views of the way society should function, then the Court should defer to the ‘democratically more appropriate’ national policymakers by affording the state its due margin of appreciation, which serves to ‘[operationalise] normative subsidiarity’.²²¹

As a device for implementing subsidiarity, the margin of appreciation is particularly apposite to the question of proportionality. Since conditional welfare schemes are a matter of general socio-economic policy, the Court should afford the state a wide margin of appreciation. As observed in SAS v France, ‘in matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight’.²²² Whether a conditional welfare scheme imposes a proportionate burden on the benefit claimants engages with the politically contested determination of what is fair in a distributive sense. Since opinions may reasonably differ widely on issues of distributive justice, the ‘special weight’ afforded domestic policymakers should tilt the balance in favour of the conclusion that the UK scheme does not violate Article 4(2). Given that exploitation is a continuum, the margin of appreciation should similarly be relevant to determining that the exploitative nature of the UK scheme does not reach the level of seriousness required to conclude that it amounts to forced labour.

At the procedural level of a ‘process-based review’,²²³ the Court should accept that it is reasonable for domestic policymakers to rely on its previously settled jurisprudence when considering whether the scheme is likely to violate Article 4(2). While the Court might criticise UK policymakers for failing to explicitly consider the four elements relevant to the characterisation of work as ‘forced or compulsory’, it may deem as sufficient the Parliamentary debates and the legislative scrutiny of the Welfare Reform Bill. In this regard, the UK's Joint Committee on Human Rights believed that any human rights issues concerned Article 3 rather than Article 4.²²⁴

The position of the UK scheme is strengthened by the recognition that similar, if less stringent, schemes have been implemented by successive UK governments and are prevalent in other European countries.²²⁵ Furthermore, given the precedent of the Supreme Court decision in Reilly, it seems likely that domestic courts would accept that the UK scheme is compliant with Article 4(2). Given that the Court must have ‘strong reasons to substitute its own view for that of the domestic courts’,²²⁶ and that the Human Rights Act 1998 makes the UK ‘a model in terms of subsidiarity’,²²⁷ the Court should decide that the UK scheme does not violate Article 4(2).

The currently strained relationship between the UK and the Court is also a relevant factor. Given the backlash against the judicial activism that had ‘progressively expand[ed] the scope of the Convention’ since the 1980s,²²⁸ there is little doubt that if the Strasbourg judges ‘push matters too far’ then they ‘risk challenges to their Court's authority’.²²⁹ The UK backlash was particularly ‘striking’ and culminated in the ‘political uproar’ over what was characterised as the Court's antidemocratic interference in the ‘deeply polarized political arena’ of prisoners’ rights.²³⁰ As a consequence, the Court now appears to be exercising more judicial restraint through ‘a notion of enhanced subsidiarity’ and a ‘stronger emphasis on the margin of appreciation doctrine’, making it more deferential to member states, particularly the UK.²³¹ Indeed, an empirical analysis of a dataset of rulings up to 2019 showed that the Court has been more deferential to consolidated democracies, with the greatest deference afforded to the UK, its strongest critic.²³² Therefore, given the Court's reliance on the ‘co-operation and good faith’ of its member states ‘to preserve its own future authority’,²³³ the Court should, and most likely would, defer to the policymakers and hold that the UK scheme does not violate Article 4(2).

It has been argued that the Court would accept that conditional welfare is a political issue within the state's wide margin of appreciation. This raises the question of when it may be appropriate for judicial intervention in matters of social welfare policy. The Human Rights Act 1998 situates ‘the rights-based aspects of adjudication’ within the confines of a constitution characterised by the separation of powers and Parliamentary supremacy.²³⁴ The implications of this political constitutionalism,²³⁵ which limits the scope for judicial intervention, was apparent in the judgment of the Supreme Court in R (on the application of SC) v Secretary of State for Work and Pensions.²³⁶

The case concerned the ‘two child limit’ on child tax credit introduced by the Welfare Reform and Work Act 2016, section 13. The issue was whether the limit amounted to discrimination against women as lone parents and against children living in larger households, contrary to Article 14 in conjunction with Article 8 of the ECHR, or Article 1 of the First Protocol. Giving the court's judgment, Lord Reed acknowledged that the judiciary should afford policymakers ‘a high level of respect … in the field of economic or social policy’, but that respect must be tempered by ‘the need for close scrutiny’ to ensure that differential treatment does not amount to ‘unjustifiable discrimination’ on a ‘suspect ground’.²³⁷ This required a ‘nuanced approach’, which generally demanded a ‘low intensity of review’ based on the ‘manifestly without reasonable foundation’ test. However, where cases involved discrimination on ‘suspect’ grounds, the review should more stringently require that ‘weighty reasons’ have been shown to justify different treatment.²³⁸ Despite this distinction, the courts’ role was to determine whether the legislated policy ‘pursues a legitimate aim’ and relies on reasonably proportionate means to achieve that aim.²³⁹

In applying such an approach, Lord Reed noted that proportionality was ‘a question of intense political controversy’, which could not be resolved by legal reasoning based on legal standards. Rather it could ‘only be determined … through a political process which can take account of the values and views of all sections of society’. Given the strong ‘democratic credentials of the measure’, there was no basis for the courts to ‘properly overturn Parliament's judgment’ that the legislation was ‘fair and affordable’.²⁴⁰ This deference to the democratic process limits judicial scrutiny to the procedural aspect of policymaking.²⁴¹ It reflects a reluctance to ‘interrogate or challenge’ more substantive issues, such as the prejudicial and stereotypical assumptions concerning ‘personal responsibility and welfare dependency’ that underpin current welfare policies and particularly disadvantage lone mothers.²⁴²

The Supreme Court's highly restrictive approach represents an extreme form of political constitutionalism that arguably gives too much respect to the democratic process and ‘undermines the potential for judicial review and rights jurisprudence to stimulate a culture of good governance’.²⁴³ Nevertheless, and regardless of the policy's impact on equality,²⁴⁴ financial insecurity or public health,²⁴⁵ the Supreme Court's unanimous judgment makes it clear that substantive issues of distributive justice, such as whether a policy is ‘fair, economically desirable and socially acceptable’, are matters of politics not law.²⁴⁶ Although the courts have arguably become too deferential to the democratic process, the judgment appropriately recognises that it is not the court's place to resolve politically contentious issues of distributive justice, which should be determined in political rather than legal fora.

Conclusion

This paper considered whether the UK's conditional welfare scheme violates Article 4(2) of the ECHR. The scheme was analysed under each of the four interrelated elements that define the meaning and extent of the concept of forced labour. Plausible arguments were acknowledged both for and against the claim that the scheme violates Article 4(2). The arguments for the claim were most persuasive in relation to the ‘menace of a penalty’ element. For voluntariness, exploitation and normal civic obligations, the arguments on each side were more equivocal, but those against the claim were perhaps more persuasive. Particularly, while the UK scheme may be characterised as unfairly exploitative, the exploitation arguably fails to reach the requisite level of ‘serious exploitation’ to be characterised as forced labour.

If a case were brought before the Court today it may survive the admissibility hearing and proceed to a hearing on the merits. However, even if the Court was persuaded to move past its previous jurisprudence, which has seen all similar cases rejected as inadmissible, the current emphasis on the principle of subsidiarity means that the claim should, and most likely would, fail. The arguments on either side rely on different understandings of the demands of distributive justice, which is a matter for political debate rather than judicial determination. As such, the Court should defer to domestic policymakers and any challenges to the scheme itself should be political, rather than judicial. It remains possible that a successful claim might arise in cases where the scheme has been improperly implemented, but these should be dealt with by the national courts under the legislative framework of the scheme. There may be a greater likelihood of success for claims brought under Article 3 of the ECHR, but again this depends on a failure of implementation rather than the injustice of the scheme itself. When challenging conditional welfare schemes, the role for Article 4, and for legal human rights more generally, is very limited. The injustice of the UK scheme is essentially a matter of politics and should be challenged in the political arena rather than the judicial arena of human rights litigation.