The UN Special Rapporteur on Extreme Poverty and leading authority globally in international human rights law, Professor Philip Alston of NYU, published a statement on Extreme Poverty and Human Rights, following his official visit in the United Kingdom in November 2018, with a full Report to follow in spring 2019.
Alston’s statement on poverty-related policies is a devastating read, but should be read by everyone. Its main focus is on reforms to the welfare state in the UK, with primary attention on Universal Credit, the dismantling of the broader social safety net, benefit reductions and cuts in social services, and measuring and monitoring poverty. Alston pulls no punches in his statement. He calls the effects of the reforms ‘a social calamity’, and emphasises their impact on women, children, and people with disabilities. Referring to women in particular, Alston observed in a press conference that if ‘a group of misogynists’ had come together to draft the legislation, they would have come up with a system not dissimilar to the existing one. The Special Rapporteur says that welfare reform policies should not be examined under the rubric of austerity, for this is misleading: ‘In the area of poverty-related policy, the evidence points to the conclusion that the driving force has not been economic but rather a commitment to achieving radical social re-engineering’, with key elements of basic social provision being overturned in a manner that has brought great misery to many.
Whilst most of the Special Rapporteur’s analysis centres on welfare rights, some of the issues that he raises involve access to work and working conditions. For instance, he refers to people with disabilities who, against doctors’ orders, are told that they have to go back to work, for otherwise they will receive no further social support; the role of EU law for workers’ rights, and possible effects of Brexit on the worst off, which have been neglected (more on this can be read here); the duty to work ‘as a panacea for poverty’; and the right to work of asylum seekers (which is further explored here).
Legal construction of structures of exploitation
What I want to highlight in this blog post and on the occasion of Alston’s visit is that, in many of the situations that he discusses, those in poverty are faced with unjust legal structures that, perhaps unintentionally, trap them in conditions of workplace exploitation. This is an issue that I develop further in an essay in this book.
Here I focus on two issues that exemplify how the law creates structures of vulnerability to exploitation: first, workfare policies, and second, in-work poverty. These issues are intertwined for the reason that many people are forced into precarious and exploitative work since they otherwise face destitution, as Alston highlights. Bad jobs have proliferated, not because people like having flexibility in their working hours, but because of the pressure that they experience and the sanctions that they face, as will be explained.
People want to work, as Alston emphasised on the basis of extensive discussions that he had during his visit: they view work as a way to contribute to society and communities, support their families, and take control of their lives. This also explains why in human rights law, we have a human right to work. The Government takes pride in the low levels of unemployment, with over 3.3 million more working than in 2010, and emphasised this, among other issues, to the Special Rapporteur.
Even though it is important to have high employment rates, the way in which this is achieved and the quality of the jobs that people get reveal that there is much more to the issue than what the basic unemployment figures reveal. This is because of how the worst off are treated by the system, with many people on welfare support facing enormous pressure to work in precarious and insecure jobs, for they will otherwise be sanctioned and may face destitution. Alston discussed the effects of sanctions for jobseekers under workfare schemes.
Workfare schemes make welfare benefits conditional upon undertaking work. They are enforced through a threat of sanctions if enough effort is not made to get a job. They are grounded on a promise that people will have either a job or social support that will enable them to cover their basic needs, but also a threat that if they do not make the required effort to get a job and if they do not accept job offers, their benefits will be withdrawn. These programmes were introduced by Labour Governments but the Coalition Government developed them further, along with a narrative that presented the unemployed as undeserving poor, scroungers on benefits, who are a burden to hard-working taxpayers, as we can see in this analysis.
The Special Rapporteur was highly critical of many aspects of workfare, such as the use of sanctioning, as implemented through Universal Credit that has caused severe suffering to many. This is for reasons such as the fact that there are five-week delays between a successful application for a payment and the receipt of a benefit (which in reality can be up to 12 weeks) – delays which make people unable to meet their basic needs.
The aim of the condition to look for work is arguably a legitimate one: it seeks to encourage those on welfare benefits to enter employment. But there is a serious question about whether the sanctions that follow if these conditions are not met, such as reducing or stopping to pay the benefit for a period of time, are proportionate to the aim pursued. It is actually questionable whether they are legitimate altogether. It has been documented that people on benefits are sometimes cruelly and wrongly sanctioned, and that this has severe consequences for their ability to meet their most basic needs. It has been reported, for instance, that someone was sanctioned because he missed an appointment for the reason that he was in the hospital with his partner who had just had a stillbirth. A recent book calls the sanctions system ‘cruel, inhuman and degrading’.
What Alston highlights is that a lot of people under the scheme are forced to make ‘pointless job applications for positions that do not match their qualifications, and take inappropriate low-paid, temporary work just to avoid debilitating sanctions’. The Work and Pensions Committee produced a Report that is highly critical of the benefit sanctions system in October 2018. It highlighted, among other issues, that sanctions may lead people to destitution and food banks, and negatively affect their physical and mental health.
Even graver is the effect on certain categories, such as people with disabilities. The Special Rapporteur heard from people affected by the schemes. It emerged that the assessments on whether someone is fit for work can be humiliating. A disabled man who spoke to him and had been on welfare support since 2005 explained that he had his condition re-assessed through a physical test after the introduction of Universal Credit, and lost all his benefits following that, even though he had doctors’ certificates. As he explained, in the assessment he was told: ‘you’ve had your condition for a long time, you should be used to it by now’. He was right-handed, but could not use his right hand because of his condition, but the final report suggested that he should start using his left hand.
In addition to the punitive nature of sanctions that can lead to severe hardship, there is some evidence that these programmes are abused by businesses, which use those under the schemes to do unpaid work for them. For instance, it was revealed that under a deal with the Government, Poundland regularly uses jobseekers to do unpaid work for them. Even though this should have been ‘work experience’ that would have provided new skills, jobseekers were used to stack shelves for about 30 hours a week, and for periods of at least three weeks.
Some of these issues were examined in the 2013 case R (Reilly) v Secretary of State for Work and Pensions, where one of the questions was whether the obligation to work could be classified as forced labour contrary to article 4 of the European Convention on Human Rights (ECHR). The Supreme Court did not accept that there was such a violation. It said that ‘forced labour is not fully defined and may take various forms, but exploitation is at its heart’, but went on to explain that conditional welfare benefits are nowhere near treatment prohibited under article 4 of the ECHR. To define exploitation contrary to article 4, the Court said that in light of Strasbourg judgments, work had to be ‘not only compulsory and involuntary, but the obligation to work, or its performance, must be “unjust”, “oppressive”, “an avoidable hardship”, “needlessly distressing” or “somewhat harassing”’, which was not the case in Reilly. Given increasing evidence about problems in the implementation of workfare schemes, the punitive nature and further effects of sanctions, and the nature of jobs that people obtain as a result, there is scope to re-open the question whether they constitute forced labour contrary to article 4 of the ECHR.
Finally, and in relation to the question whether these schemes achieve their aim of increasing employment, it is important to appreciate that, as the Welfare Conditionality Project concluded, there was ‘lack of significant and sustained change in employment status’ for those under the schemes, and that only in extremely rare occasions do people move off welfare support and in paid work. Instead, what the programme succeeds is ‘in instilling a fear and loathing of the system’, in Alston’s words.
(b) In-work poverty
Alston explained that the Government views and presents employment as a panacea to poverty, but that this is incorrect. In-work poverty is increasingly common, as he explained, and emphasised that about 60 per cent of those in poverty are from households where someone is employed, with 2.8 million people living in poverty even though they are in households where all adults work. A person who spoke to the Special Rapporteur said that some people have to work ‘in five jobs in order to make the national minimum wage, which isn’t a living wage’. The statement highlighted that 14 million people live in poverty, and many of them are employed in exploitative jobs, under zero-hour contracts and in other precarious work. Many people who use food banks are employed, and one pastor who spoke to the Special Rapporteur said that the majority of those who are using their food bank are in work, and include nurses and teachers. Alston also points out that while the Government promotes work as a solution to poverty, it keeps in place a ban on asylum seekers, who have no right to work, and have to survive with as little as £5 a day.
When it comes to zero-hour contracts (contracts with no guaranteed hours of work), it is often said that people like taking these jobs because they give them flexibility. However, in a recent study by the TUC it was found that most people on zero-hour contracts are not on them by choice, but because they have no alternative. People are forced to work in precarious jobs both in order to meet their basic needs, but also because of the punitive welfare system, as described above.
One particular issue to highlight here is that there is evidence that ‘activation policies might shift poor jobless persons/households to poor working persons/households’. Activation policies that are based on strict conditionality force the unemployed to accept exploitative jobs, and become working poor, instead of jobless poor, as Daniel Seikel explained.
A political wrong
In his statement, Alston emphasised that the focus of the Government’s policies is on individual responsibility for people’s condition, and on getting them to work at all costs. Yet what we can observe through examining the design and application of workfare is that individuals are very often not to blame. The programmes and the way that they are implemented reveal that we are faced with aspects of a legal system that create structures that affect the neediest amongst us. What emerges from the above, is that the state, even if unintentionally, and through the adoption and implementation of laws that have a legitimate aim (to support more people into work) creates structural vulnerability to exploitation, as I argue here. These structures trap them in poverty and, at times, destitution, with no way to escape, or in bad jobs, which are in this way proliferated.
There is a further point to make in relation to whether the suffering caused through the legal system is unintentional. From Alston’s statement, we need to consider the following situation: precarious and bad jobs are sometimes forced on people through workfare schemes through the threat of sanctions. If their work has features like zero-hours, Universal Credit sometimes fails to support them when it is needed, as when in a particular week no work is offered and therefore no income is received, because the support of Universal credit is usually several weeks in arrears. If this delay is unnecessary ‘and wanting to make clear that being on benefits should involve hardship’, as Alston suggests, the effect of the system on the worst off can only be viewed as a deliberate policy.
Alston heard from people who said that ‘they have to choose between eating and heating their homes, or eating and feeding their children. One person said, “I would rather feed my kids than pay my rent, but that could get us all kicked out.”’ Despite the devastating evidence heard by the Special Rapporteur, the Government’s response to him, in parliamentary debates and the media, has been dismissive. Kwasi Kwarteng MP stated that he does not know who Philip Alston is. The new Work and Pensions Secretary, Amber Rudd MP, said: ‘I was disappointed to say the least by the extraordinary political nature of his language; that sort of language was wholly inappropriate’.
Amber Rudd is wrong to be surprised by Alston’s political tone. Extreme poverty in the UK and other developed countries is a political choice, as Alston stated in a previous occasion, and one which demands a political response. This is all the more true when it is created or reinforced by political decisions, despite the fact that state authorities know of the suffering that is caused. The legal construction of systems that condemn people to poverty and workplace exploitation is a political wrong, and it is right for the Special Rapporteur on Extreme Poverty to address it in exactly the way that he did.
About the author: Virginia Mantouvalou is Professor of Human Rights and Labour Law at UCL, Faculty of Laws, and Co-editor of the UK Labour Law Blog.
Her book Philosophical Foundations of Labour Law (co-edited with Hugh Collins and Gillian Lester) will be published by OUP in December 2018.
(Suggested citation: V Mantouvalou ‘Work, Human Rights, and Extreme Poverty in the UK: On the Occasion of the Visit of the UN Special Rapporteur, Philip Alston,’ UK Labour Law Blog, 28 November 2018, available at https://wordpress.com/view/uklabourlawblog.com)