Hunger as a Policy Instrument? Some Reflections on Workfare Policies and the Prohibition of Forced Labour

Abstract

In our social security systems the harsh work test has been replaced by a more moderate system which tries to strike a balance between the right to benefit and the obligation to work. This balance is shifting as a result of the workfare approach. This approach, generally advocated to activate social security claimants, is not devoid of dangers. Social security administrations may exercise indiscriminate powers over individuals. And, if pursued too ruthlessly, activation policies which are designed to be beneficial for the citizens may have the opposite effect, condemning 'those who stay behind' to a permanent underclass. In this article, it is argued that courts should play an active role in maintaining the rule of law in proceedings dealing with workfare obligations. In this way the negative effects of the workfare approach can be kept at bay. Minimum standards for testing the legality of workfare practices should be developed. These should refer to the nature and duration of public employment duties, as well as to the severity of the sanctions. A recent judgement of the Dutch district court of Arnhem of 8 October 2008, based upon the prohibition of forced labour included in the European Convention on human rights, constitutes a perfect illustration of such a new approach