Disobedient Workers,the Law and the Making of Unemployment Markets

Introduction

This article is concerned with the law–economy relationship in the context of workfare and ongoing reforms to workfare, that is, in the context of a set of coordinated state policies, initiatives and schemes that require the unemployed to participate in work and work-related activities to be in receipt of benefit payments (Krinsky, 2007; Peck, 2001; Wacquant, 2010). It takes as its starting point unruly and disobedient labour, and especially unemployed workers who have attempted to refuse the demand that they perform mandatory work activities in return for unemployment benefits. It focuses in particular on unemployed workers in the United Kingdom who have turned to the law to test the legality of the workfare scheme – the Work Programme – in which they are enrolled. This process has led to all manner of events including Emergency Acts of Parliament, appeals, counter-appeals and further legal challenges from those subject to compulsory work activities. While these events have received much attention, in this article I suggest they must be situated in the context of the design and roll out of a market for the labour of the unemployed. This is a market, moreover, which the law does not simply regulate or discipline. I argue that the law is materially entangled in the configuration, design and calibration of this market. In what follows, therefore, I position the law not only as an instrument of governance, regulation and discipline in the post-Fordist present, but also as an economic actor which participates in the configuring of spaces of calculation and in the framing and qualification of goods which may form objects of exchange. As such, the analysis of the law demands orientations which can account for such action. I suggest such orientations can be found in the economization approach to markets (Çalışkan and Callon, 2009, 2010) influenced by actor network theory and science and technology studies. This is so, I suggest, because of the emphasis found in the economization approach on the enrolment and assembly of diverse actors, actions and devices in the process of market making, including in the configuration and formatting of spaces of calculation.

To lay out these interventions this article proceeds in four parts. First, I lay out recent challenges to the lawfulness of the UK government’s Work Programme and the judicial responses to these challenges. In the second section I set these challenges, as well as the demand that the unemployed perform mandatory work activities, in the context of ongoing reforms to the state (especially the emergence of workfare states) and the logics of post-Fordist accumulation. I highlight how sociologists and cognate social scientists have tended to understand demands for mandatory work activities in terms of the coercion and exploitation of the labour of the unemployed. While certainly not denying that these latter may be in play, nonetheless, in this section I suggest that such a focus sidesteps the question of how – that is, by what means – the activities of the unemployed are transformed into labouring activities. Following from this, the relevance of the economization approach is elaborated. I am particularly concerned with the emphasis such an approach places on socio-material devices such as contracts and contractual agreements, measuring devices and calculating instruments in the framing, formatting and stabilization of objects, especially objects which become matters of exchange. I argue that such devices – and indeed the roll out of a material infrastructure in which the labour of the unemployed has become both the subject and object of calculative activity – are central to the framing of the activities of the unemployed as labour and to the emergence of a market for the labour of the unemployed. In section three such an infrastructure is elaborated in regard to the UK’s Work Programme. This section provides substantive details for the key insight of the article, namely that at issue in the ongoing reforms to unemployment is a process of market making. In the fourth and final section, an analysis of this infrastructure as configuring a space of calculation is forwarded. Returning to the judicial rulings laid out in section one, I show how the law is an actor in the design, roll out, calibration and functioning of this market, not least via its declaration that the mobilization of labour in the UK’s Work Programme is lawful.

Forced Labour: ‘A Long Way from Contemporary Thinking’

In 2012 attention became sharply focused on the UK government’s Work Programme (or Back to Work Programme) via intense media coverage and publicity surrounding the actions of a 22-year-old University of Birmingham graduate, Cait Reilly. Registered as unemployed, and working voluntarily in the museum sector, to continue to be in receipt of an unemployment allowance – the Job Seeker’s Allowance (JSA) – Reilly was obliged to participate in the Work Programme. According to the UK’s Department of Work and Pensions (DWP), the Work Programme and its various schemes are designed to ‘help people get back into work’ (Gov UK, 2013a). For Reilly, participation in this programme – specifically in the Sector-Based Work Academy Scheme (SBWA) – required she discontinue her voluntary work and that to continue to be in receipt of a £53 per week unemployment allowance she accept a two-week unpaid work placement at a Birmingham outlet of the discount retail chain Poundland as well as time in retail training. During Reilly’s time working at Poundland her duties included stacking shelves, cleaning and sweeping floors. Reilly expressed concerns regarding the relevance of the scheme and ultimately pursued a legal challenge regarding the lawfulness of the Programme and related schemes along with a further complainant Jamie Wilson. Wilson, an unemployed skilled Heavy Goods Vehicle driver, had been stripped of his Jobseeker’s Allowance after refusing to participate in a related Work Programme scheme – the Community Action Programme (CAP) – which required him to perform unpaid cleaning and renovation work on disused furniture for 30 hours a week for six months (Public Interest Lawyers, 2013a).

Reilly and Wilson’s case was represented by Public Interest Lawyers. In Reilly and Wilson v. the Secretary of State for Work and Pensions (2012, EWHC 2292, hereinafter Reilly, 2012) the challenges were four-fold. The first involved a challenge to the validity of the Jobseeker’s Allowance (Employment and Enterprise) Regulations 2011 under which the government’s Work Programme and its schemes were created. The claim was that the 2011 Regulations exceeded the powers and capacities laid down in the governing statutory provision, namely, section 17A of the Jobseekers Act 1995. This was so, it was claimed, because the 2011 Regulations failed to provide a description of each scheme or the circumstances in which an individual can be required to participate in the scheme as section 17A of the 1995 Act necessitates. In effect, it was argued that there was no legislative authority for either scheme. It was ‘a root and branch challenge to the Regulations which, it [was] contended, should be quashed’ (Reilly, 2012: para. 5). If this challenge were to fail, by way of alternative and second, it was argued that:

[the] Secretary of State must set out each scheme in a published policy that explains clearly the features of the scheme, including what type of work a person can be compelled to undertake, the circumstances in which they can be required to undertake such work and the period for which they can be required to do so, as well as the consequences of not participating, and that he has failed to do so in respect of either scheme. (Reilly, 2012: para. 6)

The claim was that the Regulations could not be enforced in the absence of a published policy in relation to them.

The third ground for challenge related to a specific Regulation – Regulation 4 – within the 2011 Regulations which requires specific notice to be given to individuals of various matters including the details of what is required by way of their personal participation in a particular scheme and notice of the consequences of not participating. In the case of Wilson ‘there [was] a dispute about whether this regulation was complied with which … [gave] rise to the issue of what precisely Regulation 4 required’ (Reilly, 2012: para. 7). In the case of Reilly it was already ‘accepted that there was non-compliance with Regulation 4, but there [was] a dispute about the consequences’ of this non-compliance (Reilly, 2012: para. 7). Finally, the fourth challenge involved the claim that the UK government’s schemes violated Article 4 of the European Convention on Human Rights (ECHR) which prohibits slavery and forced labour. Among its provisions Article 4 of the Convention states ‘no one shall be held in slavery or servitude’ and ‘no one shall be required to perform forced or compulsory labour’ (Council of Europe, 2010; Reilly, 2012: para. 8). The claim was that each scheme violated Article 4 in that they both required the performance of forced or compulsory labour.

At this point in time the judge, Lord Foskett, held that while there had been a breach of Regulation 4(2) of the Jobseeker’s Allowance Regulations 2011/917, particularly in regard to the case of Jamie Wilson, he dismissed the additional three challenges on other grounds, but granted permission to appeal on those grounds. I will discuss the subsequent appeal shortly, but before I do so it is important to record Lord Foskett’s comments and reflections on the issue of forced or compulsory labour. In his view, the schemes of the Work Programme could not be understood to demand forced or compulsory labour as they ‘can be seen as a step towards obtaining eventual employment for the person concerned’ (Reilly, 2012: para. 174). But, Foskett went on:

… whether that assessment is correct or not, it does have to be said that the SBWA scheme, and indeed the CAP, are a very long way removed from the kind of colonial exploitation of labour that led to the formulation of Article 4. The Convention is, of course, a living instrument, capable of development to meet modern conditions, and views may reasonably differ about the merits of a scheme that requires individuals to ‘work for their benefits’ as a means of assisting them back into the workplace. However, characterising such a scheme as involving or being analogous to ‘slavery’ or ‘forced labour’ seems to me to be a long way from contemporary thinking. (Reilly, 2012: para. 174)

Foskett concluded, ‘[f]or these reasons, briefly stated, I do not consider that either scheme is contrary to Article 4, nor do I consider that there has been any breach’ (Reilly, 2012: para. 176).

While the initial legal challenge was mostly unsuccessful, in a subsequent appeal (Reilly and Wilson v. Secretary of State for Work and Pensions (2013) EWCA Civ. 66, hereinafter Reilly, 2013) it was found that the 2011 Regulations did not comply with the requirements of the governing statutory provision, namely section 17A of the Jobseekers Act 1995. Thus, Lord Justice Pill declared: ‘I would allow the appeal and quash the Jobseeker’s Regulations 2011’ (Reilly, 2013: para. 69). The grounds for this judgment were that the Secretary of State had acted beyond the powers given to him by Parliament by failing to provide details about the various schemes. It was judged that the government had effectively bypassed Parliament by introducing the schemes administratively under an umbrella scheme, the Employment, Skills and Enterprise Scheme (2011). The Court of Appeal held that this was contrary to what Parliament had required (Reilly, 2013: paras 72–78).

Explosively, the Court of Appeal had ruled the work schemes introduced under the 2011 Regulations unlawful. Public Interest Lawyers outlined the implications of the judgment in the following terms:

[A]ll those people who have been sanctioned by having their jobseeker’s allowance withdrawn for non-compliance with the Back to Work Schemes affected will be entitled to reclaim their benefits. And until new regulations are enacted with proper Parliamentary approval nobody can be compelled to participate in the schemes. (Public Interest Lawyers, 2013a)

This appeal judgment was made in February 2013 and in its immediate aftermath the government introduced an emergency Act of Parliament – the Jobseekers (Back to Work Schemes) Act 2013 – to the House of Commons. The Bill sought to eliminate the need to repay claimants who had been sanctioned for failure to comply with requirements under the Jobseeker’s Allowance Regulations 2011. It did so by seeking to instate retrospectively a framework around the schemes covered by the quashed 2011 Regulations. It sought, in particular, to ensure it would not be possible to challenge a decision to impose a sanction solely on the grounds that the 2011 Regulations were invalid, or that notices to claimants were inadequate. The Emergency Bill was passed by both houses in late March 2013. In regard to this legislation, Public Interest Lawyers (2013b) commented that it ‘overturned the Court of Appeal’s judgment and retrospectively declared lawful what the Court of Appeal had declared unlawful’.

The passing of the Emergency Bill did not, however, bring the events surrounding Reilly to a close. In July 2013, the Supreme Court of England and Wales heard an appeal from the DWP against the judgment of the Court of Appeal which held that the 2011 Regulations were unlawful and had to be quashed. As Public Interest Lawyers observed, this process was rendered largely ‘academic’ because the government had already retrospectively changed the law to overturn the Court of Appeal’s judgment (Public Interest Lawyers, 2014). In October 2013 the Supreme Court ruled on this appeal (R (on the application of Reilly and another) v. The Secretary of State for Work and Pensions (2013) UKSC 68, hereinafter R, 2013) and judged the 2011 Regulations invalid on the grounds that they did not contain sufficiently detailed descriptions of the ‘Back to Work’ Schemes (R, 2013: para. 74). The Supreme Court therefore found that the Court of Appeal had been right to quash the Regulations (R, 2013: para. 51). The court found this to be the case notwithstanding the passing of the emergency legislation (the Jobseekers Act 2013) which declared lawful what the Court of Appeal found unlawful (R, 2013: para. 92). The Supreme Court also upheld the ruling of the Court of Appeal that the Regulations did not constitute forced or compulsory labour (R, 2013: paras 90–91). ¹

Rethinking Workfare States

The chain of events I have set out here has provoked reflection on the part of sociologists and cognate social scientists on the type and conditions of work that the schemes of the Work Programme demand. The focus here has been squarely on the issue of compulsion in regard to this work and this is so despite the legal judgments that the schemes do not entail forced or compulsory labour, or at least do not contravene Article 4 of the European Convention on Human Rights. Thus, commenting on Reilly and the subsequent appeal, Jones (2013: 4) has suggested that ‘compulsion is central to [the] schemes’. ² This much is clear, he suggests, from the UK government’s own statement on its Work Programme that it ‘expect[s] claimants to do everything that can reasonably be expected of them to find work or prepare for work … This is known as conditionality and will be backed up by tougher sanctions to ensure claimants meet their responsibilities’ (DWP in Jones, 2013: 4). Indeed, as Cooper (2012) has suggested, one of the characteristics of contemporary post-Fordism is the transformation – via a sustained programme of reform – of welfare into a site for renewed labour exploitation. At issue here is not only one of the exploitation of labour at no cost to private companies and minimal cost to the state (via the payment of unemployment allowances) but also that this labour is coerced or made compulsory via the threat of sanctions. As the campaign group Right to Work puts it, the issue is ‘enforced unpaid labour’ and the profiting from this labour (Right to Work, 2013; see also Mendoza, 2013). ³

All of this is, of course, a far cry from Lord Foskett’s view that characterizing the schemes comprising the Work Programme as involving forced or compulsory labour ‘seems … to be a long way from contemporary thinking’ (Reilly, 2012: para. 174). Indeed, the idea that the labour at issue in the Work Programme schemes cannot be considered forced or compulsory on the grounds that such a state of affairs is discontinuous with and/or discordant with the present, is also a far cry from the realities of post-Fordist work and working. ‘Free labour’ (whether judged mandatory or not) is a constitutive element of the post-Fordist present (Terranova, 2005), not least because one of the outstanding features of that present is a rewriting of the boundaries and borders which comprised the arrangements and dynamics of Fordism, including those between production and reproduction, waged and unwaged labour, public and private, work and welfare. This latter is evidenced in myriad ways, not least in the very existence of workfare states, that is, of welfare systems which require participation in work or in work-related activities for the receipt of benefits (Krinsky, 2007; Peck, 2001; Wacquant, 2010). It is of course in this latter, that is, in the transformation of welfare into workfare states, and more broadly the transformation from Fordism to post-Fordism, that the events surrounding Reilly should be located and understood. In particular, these events should be understood to have taken place in an environment where the role of the state and social policy is not concerned with social needs or social security within a rights-based context – or indeed with the provision of full employment – but with securing the competitiveness of national economies, that is with a state–market relationship that can secure the continuation of capital accumulation (Jessop, 2002).

The development of such an understanding, however, requires more than simply asserting that the boundaries between welfare and work have broken down, or that the labour involved in workfare schemes is coerced or compulsory, or indeed that a radically restructured and reformed ‘welfare’ has become a site for the exploitation of labour. These latter may well all be the case, but an understanding is also required of how exactly these processes have taken place, that is, of the actors and instruments involved in these processes, and of how workfare operates as a mode or method of co-ordination. We might, for example, ask how have the activities of the unemployed been transformed into working or labouring activities? What devices and socio-technical instruments are at play in the framing and qualification of the activities and actions of unemployment as work or as labour? In posing these questions, and especially the question of what actors and socio-technical devices may be implicated in the transformation of the activities of the unemployed into labouring activities, I am drawing on the conceptual resources of the actor network theory and science and technology studies influenced economization programme (Çalışkan and Callon, 2009, 2010; Callon, 1998a, 1998b, 2009; Callon et al., 2002, 2007), as well as on the resources of the allied French pragmatic school of social theory (see, for example, Boltanski and Thévenot, 2006). The economization approach, in particular, calls for attention to be paid to those processes through which ‘behaviours, organizations, institutions and, more generally, objects are constituted as being “economic”’ (Çalışkan and Callon, 2010: 2). Indeed, the economization approach calls for attention to be paid to the assembly of socio-technical devices which afford possibilities for various forms of economic – and especially calculative – action. While this approach is certainly not without its critics (see, for example, Fine, 2003; Roberts, 2012), nonetheless its deployment in regard to the concerns of this article allows an issue to be elaborated which is currently sidelined, silenced or lost in the debates concerning workfare and is overshadowed in particular by the foregrounding of exploited and coerced labour. And this issue concerns one particular modality of econonomization (Çalışkan and Callon, 2010), namely market making.

Specifically, the deployment of the conceptual resources of the economization approach enables an elaboration of how rather than a simple blurring of the boundaries between work and welfare, or a shift in the relationship between the state and the market, the ongoing programme of reforms to unemployment associated with post-Fordism and the neo-liberal state concern processes of the making of a space of co-ordination in which calculations and transactions can be made in regard to unemployment and the activities of the unemployed. Put slightly differently, the deployment of the economization approach enables the development of an understanding which highlights that at issue in the ongoing programme of reforms to unemployment is the making of a space in which the activities of the unemployed are made calculable as objects or goods which can be mobilized and traded. Moreover, the economization approach enables an understanding that this process is by no means singular and involves (and enrols) all manner of actors, including state policy, the law and legal instruments, measuring devices and apparatuses (measuring, for example, rates and duration of unemployment), contracts and contractual arrangements, service providers, job centres and service chains. As well as the non-singular nature of this process, the deployment of the economization approach also permits an understanding that all manner of socio-technical devices are involved in the definition, qualification and formatting of the activities of the unemployed as work or labour, devices which crucially, as I elaborate below, include contractual arrangements operating between the state and service providers. In short, what an economization approach can help establish is that a process of market making – involving the assembly of a material infrastructure – is at the heart of the ongoing reforms to unemployment.

Tenders, Contracts, Targets, Payments and Market Share

The process of market making and especially the making of a space in which the activities of the unemployed are made calculable starts to become evident when the deployment, mobilization and exchange of the labour of the unemployed in workfare schemes and programmes is set out and addressed. Indeed, it starts to become evident when it is understood that workfare schemes and programmes typically concern a set of arrangements regarding the mobilization of such labour and the setting of terms of agreement for the exchange of that labour. In the case of the UK government’s Work Programme, one part of these arrangements concerns agreements (including sub-contractual agreements) between private sector Work Programme providers – who deliver the Work Programme on behalf of the DWP – and work placement or work experience ‘hosts’ or ‘employers’. At the centre of such agreements are terms for the placement and use of unwaged (both voluntary and mandatory) labour: they are agreements about the use of the labour of the customer-clients of providers, that is, of unemployed workers enrolled and participating in the schemes of the Work Programme. This labour is, in turn, put to work by the hosts/employers (such as Poundland in the case of Cait Reilly) and this is the case regardless of whether this work contributes to improving the participant’s employability (Adkins, 2012). In exchange for this labour, and as will be made clear presently, Work Programme providers are able to comply with some of their obligations in regard to their customer-clients, obligations which are set out in contracts operating between providers and the DWP.

I will say more on these contracts below, but for now it is important to reflect on the terms of exchange at issue in these arrangements. Specifically, it is important to reflect on how at issue in these arrangements and agreements is the exchange of labour not in return for wages paid to those whose labour is put to work, but for the ability on the part of Work Programme providers to fulfil (and even exceed) certain contractual obligations. While this may appear at some level rather obvious, nonetheless it is important to state that for such an exchange to take place the labour at issue has to be framed as labour, that is, as labour power, which can be disentangled from the person and form the object of exchange relationships. My point here is that the arrangements and agreements between providers and work placement hosts/employers highlight how what is at issue in the work schemes which make up the Work Programme is the transformation of surplus or redundant labour into alienable property, that is, into labour power with exchange value.

I will return to this transformation, but before I do so it is imperative to confront and map the contracts and contractual arrangements operating between Work Programme providers and the DWP. To win a Work Programme contract potential providers entered into a competitive tendering process and submitted bids to win five-year contracts. In their bids providers were asked to spell out the services they would offer to customers-clients as well as the minimum level of service they would provide. As part of the latter, A4e – a successful bidder – pitched itself to the DWP in the following terms:

A4e and our supply chain are committed to improving the lives of our customers, their families and communities. In addition to our commitment to DWP’s Customer Charter, our Minimum Service Levels (MSLs) will ensure a step change in performance, a high-quality service and the best chance of success for each customer. (Gov UK, 2013b)

In addition, as part of its minimum service delivery, A4e pledged ‘Customer Empower-ment and Work Ethic’, elaborated as:

Customers will be given a choice about how they first engage with their service provider and a choice of work-focused activity early in the journey to promote ‘Job First’, the development of essential work habits and exposure to the benefits of working. (Gov UK, 2013b)

Further pledges from A4e included ‘improved relevant skills’, ‘recharge activities’ and ‘incentive to engage’, while Seetec – another successful bidder – had among its pledges ‘work experience opportunities and a menu of online employability/job search modules’ as well as ‘progression in [a] work plan’ and ‘opportunity to access in work skills development programmes’ (Gov UK, 2013b).

Once awarded contracts, ⁴ providers were given start up funds and allocated customer-clients from Job Centre Plus. These allocations were based on claimant profile data concerning age, disadvantage, type of benefit, length of time in unemployment and on the basis of whether or not participation in the Work Programme is classified as mandatory or voluntary. In the first two years of the Work Programme providers received an equal share of referrals from different customer groups. In return for start up funds and allocated customer-clients, providers were required to ensure that the services they (and their supply chains) provide comply with the broad framework of the Work Programme as it applies to different customer groupings and to fulfil their own minimum service offers. For providers this may include ensuring that customers start and complete work placements and work experience as well as various forms of training. In guidelines issued to providers obliged to provide mandatory activity placements (MWA) the DWP has advised:

It is not necessary (although it’s desirable wherever possible) for the placement to be in the same sector or type of work as the claimant’s job goal, as MWA is designed to help the claimant develop disciplines associated with employment. Claimants cannot choose their placements. (Gov UK, 2014: 12)

While in guidelines issued to providers for work experience on a voluntary basis, the DWP instructed:

Participants should be motivated and demonstrate a willingness to work. Possible participant qualities you may also want to take into account: not having significant issues relating to numeracy, literacy or general employability skills; be interested in a role in the type of work; having the aptitude/suitability for the role/type of work. Therefore, it is for you to decide in conjunction with the participant if work experience on a voluntary basis is suitable. (Gov UK, 2013c: 3)

The Department also notes that ‘there is no restriction on the size or type of business that could be used for work experience … the quality of work experience … is most important’ (Gov UK, 2013c: 4). Yet while offering these kinds of guidelines and contractually obliging providers to meet their minimum service levels for different customer groups the Department also advised providers: ‘you have flexibility to design an innovative and personalised approach to help an individual back to work’ (Gov UK, 2013d: 4).

As well as delivering on their own service pledges, a range of further pre-set performance targets are at play in the contractual agreements between providers and the DWP. These include, but are not limited to, placing and keeping individuals in work, that is, job outcomes. Crucially, payments to providers from the DWP are related to job outcomes and job outcome targets as well as to other provider operations and activities. Thus payments are made to providers for ‘attachments’ (that is, for taking claimants on to the schemes of the Work Programme); ‘job outcomes’ (payments for such outcomes vary by claimant group); and ‘sustainment outcomes’ (payments made when a claimant stays in employment, that is, for employment duration). In addition, incentive payments are available. These are bonus payments delivered when providers exceed their targets for job placements.

But more than this, since 2013 Work Programme providers have been able to increase their market share – that is, the number of referrals and attachments – by meeting (and in some cases exceeding) targets in regard to referral/job outcomes ratios across all customer groups. To be in receipt of such an increase, a range of criteria must be met concerning performance relative to other providers operating within specific geographically defined areas (or Contract Areas). Thus, to receive a five percentage point increase in market share (that is, in referrals) the DWP stipulates there ‘must be a three (3) percentage point difference in performance (or more) between the highest and lowest performing provider’ for a particular customer group (Gov UK, 2013e: 4). Where such shifts take place providers who are deemed to be ‘performing more poorly will lose five percentage points of their share of new referrals to that customer group’ (McGuinness, 2013: 5). In areas where three providers are operating the provider who is located between the highest and the lowest performing provider ‘will not receive any change in market share’ (Gov UK, 2013e: 4). And where two providers achieve the ‘same lowest performance score or highest performance score the five (5) percentage point shift to or from those providers will be split equally 2.5/2.5’ (Gov UK, 2013e: 4). In the Work Programme invitation to tender, the DWP described the arrangements regarding market share as a mechanism through which ‘ongoing competition between providers in each CPA [Contract Package Area]’ will be encouraged to ‘maximise job outcomes’ (DWP, 2010: 3.19).

Framing Labour and the Configuring of Spaces of Calculation

From the point of view of my concerns in this article these contractual arrangements matter, particularly because they underscore the very process of market making in regard to the labour of the unemployed I am seeking to highlight. The competition the contractual agreements set in motion between providers of employment services is crucial in this regard, not least because as Foucault (2008) observed, central to the logic of the neo-liberal state is the deployment of competition as a formal principle to reconstitute social and political spheres (see also Davies, 2013). Thus we might propose that the contractual arrangements I have outlined here concern neo-liberalism in action. But there is far more than competition between providers at stake here. For also at issue in regard to the contracts is the framing of the activities of the unemployed as labour and, moreover, the setting of the terms for calculations to be made in regard to that labour, including calculations regarding its exchange. And here it is important to recall Michel Callon’s analysis of contracts (Callon, 1998b). In this analysis Callon makes clear that the negotiation of a contract presupposes the disentangling and framing of action. Indeed without such disentangling and framing a contractual agreement would be impossible as these processes establish a boundary between the object of the contract and the immediate network connections of that object. Contracts therefore are socio-technical devices which both define and stabilize objects (albeit temporarily), and hence enable calculation to take place in regard to those objects. They thus create spaces in which calculative action can take place in regard to a disentangled and framed object.

What is critical in the contracts operating between the DWP and providers in terms of these processes is that what is framed in the contracts (and the bids which secured contracts) is labour, or more precisely the activities of the unemployed as work or labour. It is this framing which is central to the transformation of surplus, ‘dead’ or redundant labour into matter with exchange value. Thus, and as we have seen, in the bids to secure contracts and in the contractual agreements operating between the DWP and providers, the activities and actions of the unemployed are consistently and repeatedly framed as work, labouring and work-related activities. This includes the framing of these activities as ‘work habits’, ‘work-focused activity’, ‘work skills development’, ‘work placements’, ‘work experience’, ‘work training’ and as concerning the ‘disciplines associated with employment’. In framing such activities as work or labour and disentangling such activities from their immediate context (including from the person performing such activities), the contractual agreements also, and moreover, position such labour as an object of calculation and of exchange.

This positioning is made clear in the manner in which performance for providers is set in terms of targets concerning the mobilization of such labour, including targets regarding the placement of such labour with hosts. It is also made clear in the manner that providers receive payments for the attachment and placement of such labour, bonus payments for the take up of such labour in the labour market (that is, employment outcomes) and rewards (such as increases in market share) for meeting targets in regard to the mobilization and deployment of such labour. ⁵ In short, the contractual arrangements between the DWP and providers not only frame the activities of the unemployed as labour but also as an object of calculation and measure in regard to payments, bonuses, service levels, targets, benchmarks, market share, rankings and even prizes and awards. ⁶ Thus the contracts position the labour of the unemployed and its mobilization as an object of calculativeness, or calculative agency. In as much as calculation is central to, indeed defines, the making and operations of markets (Callon, 1998a, 1999), it is clear that what is at stake in the Work Programme and associated reforms in regard to unemployment is the making of a market for the labour of the unemployed, with contracts and contractual arrangements forming not only a pivotal function in the infrastructure of this market, but also performing a decisive role in the market-making process.

It is in this context, that is, in the context of the making of a market, that the recent legal disputes regarding the UK government’s Work Programme must be situated. While at face value the law has been turned to by both the state and by plaintiffs enrolled in the Work Programme for judgments regarding its legality, understanding that the Programme configures a space of calculation in regard to the labour of the unemployed forces an entirely different understanding of the role of the law in this regard. Specifically, if it is understood that at issue in the Work Programme is the making of a market – including the assembly of socio-technical devices such as contracts which frame and format the activities of the unemployed as labour – it must also be recognized that the law and legal judgments regarding the schemes of the Programme are active participants in such framing activities. Critical here are the judgments regarding these activities as labour. Specifically, while the schemes of the Work Programme were not judged to amount to forced or compulsory labour, they were nonetheless defined as work: as ‘work[ing] for benefits’ which may – or may not – contribute towards employability. Thus both the Appeal and Supreme Courts framed the activities of the unemployed as labour (that is, contributed to both its formatting and disentanglement as labour) and in so doing participated in configuring such labour as an object of calculation. But moreover, and crucially, in finding the schemes not to be in contravention of conventions on forced labour, the judgments effectively ruled the mobilization of such labour – including transactions and calculations regarding its use – as lawful. Such judgments were, in other words, participating in the very definition and calibration of a market, defining both the use of such labour and its status as an object of calculation (including its mobilization and exchange for payments, bonuses and other rewards) as legal.

Understanding that the law is an actor in the making of a market for the labour of the unemployed also compels a more nuanced approach to the quashing of 2011 Regulations. Specifically, rather than a simple victory for the plaintiffs, the quashing of the Regulations by the Court of Appeal on the grounds that sufficient descriptions of the schemes and the work to be undertaken by those enrolled in the schemes (and in what circumstances) were not provided, may be understood as a demand for the further calibration and qualification of the labour at issue in the Work Programme: that this labour needs further qualification. The same may be said for the upholding of this judgment by the Supreme Court. Indeed, and perhaps counter-intuitively, one of the four original challenges in Reilly may also be understood in these terms, that is, as a demand for the qualification and further specification of this labour. Specifically, the request that the Secretary of State must ‘set out each scheme in a published policy that explains clearly the features of the scheme, including what type of work a person may be compelled to undertake, the circumstances in which they can be required to undertake such work and the period for which they can be required to do so’ (Reilly, 2012: para. 6) is precisely a demand for a qualification of the labour at issue in the schemes of the Work Programme. The legal judgments and challenges in Reilly and subsequent appeals and counter-appeals may therefore be understood as part of the ongoing process of the qualification, requalification and framing of goods and products – in this case of labour – paradigmatic of the post-Fordist economy in which multiple, heterogeneous and dispersed actors are engaged (Callon, 2009; Callon et al., 2002). Indeed, rather than regulating or governing the Work Programme, the law is contributing not only to the formatting and framing of the activities of the unemployed as labour and to the creation of a space of calculation in regard to this labour (including the legitimacy of such calculation), but also to the ongoing qualification and requalification of this labour. In short, what can be understood via Reilly is that the law and its instruments are actors in the design, calibration and functioning of a market for the labour of the unemployed.

Conclusion

In this article I have argued that at issue in the UK government’s Work Programme is the making of a market for the labour of the unemployed. Drawing on the insights of the economization approach to markets, I have elaborated how the infrastructure of the Work Programme stabilizes, disentangles and frames the labour of the unemployed and configures a space of co-ordination in which calculations and transactions can be made in regard to that labour. Moreover, via analysis of recent disputes regarding the lawfulness of the Work Programme, I have suggested that the law and its instruments do not stand outside of this market making but are participants in this very process. I have argued that the law must therefore be recognized as an actor in the design, calibration, operations and performance of the market for the labour of the unemployed, and indeed in the configuration of a space of calculation for (and formatting of) that labour.

In foregrounding the significance of the law and of legal devices in processes of market making this article contributes to an emerging body of research in sociology which is precisely concerned with the constitutive – rather than regulatory – role of law in the configuration of contemporary markets (see, for example, Christophers, 2015; Davies, 2010). While recognizing that the economization approach acts as an important foil to universalizing claims that we live in a marketized society by demanding careful elaboration of the material assembly of markets, this emerging body of research also notes that the economization approach has stopped short of a consideration of the law and its instruments in the calibration of markets (see especially Christophers, 2015). This article therefore adds weight to the view that it is critical to consider the law in the configuration of contemporary market realities. But this article also contains a further set of interventions concerning workfare. I have highlighted in particular how the development of an economization approach to workfare allows an alternative sociological account of ongoing reforms to unemployment to be built. This is an account that, in contrast to existing analyses, is able to elaborate how the activities of the unemployed are transformed into labouring activities and how such labour becomes the subject and object of calculative agency. In short, the development of such an approach enables a sociological account of workfare schemes which can move beyond gesturing towards the blurring of boundaries between work and welfare and between the state and the market via the elaboration of processes by which the labour of the unemployed is made calculable.