Tuesday, 29 September 2009

Why Baroness Scotland did Nothing Wrong, and Why She Should Therefore Resign

For this post, I want to leave aside the letter of immigration law for a moment, together with the possibility that Lady Scotland is lying in order to conceal her breach of those laws, and look at what she actually did.

She needed someone to clean her house. Fair enough; she is busy and doesn't have time to do it herself. Someone offered their services for the job, and she offered the job at a rate above the minimum wage (not much above, but still above). She says that she did not know that her new cleaner was an illegal immigrant and did not have the right to work here, and we have no reason to disbelieve that.

If we take a moral view of this, rather than a legal one, I would suggest that there is nothing wrong in what she did. Yes, the worker was an illegal immigrant that should not have been working here, but that reflects on the worker not the employer and, in the absence of knowledge or some other form of abetting, this does not per se reflect on the employer. So why is she in trouble?

The reason is, I think, quite simple. I have before now criticised both Labour's style of drafting laws and the mechanical manner in which they are enforced. In short, my argument in the "drafting" post was that Labour enacts laws which easily and clearly catch those doing something wrong, but also catch a wide range of others as well. Whether Labour do this because they are intellectually deficient or because they want prosecutions to be straightforward, uncomplicated by nuances of proof, available defences, and other "inconvenient" aspects of justice, is something only an insider could answer. In the enforcement post, I looked specifically at speed enforcement and concluded that enforcement without discretion, without remembering what the law was put in place for, brought the law into contempt.

These laws are all too common, and range from the serious to the minor. Some examples -

  • In the case of Lady Scotland, an employer is punished for the offences of an employee; this is clearly right when the employer is a sweatshop, complicit in the import of illegal workers in order to profit from the exploitation of those workers, but surely was not intended to punish someone who unwittingly hired a single cleaner?
  • Two female police officers cannot share their childcare needs, because each will then be operating an illegal childminding service for the other
  • Any professional is now potentially criminally liable for a money-laundering client if the professional does not spot the laundering and report it.
  • Photographers break the law by taking a photograph, if that photograph could be used by someone else for terrorism-related purposes
  • An employer is automatically at fault in an Employment Tribunal if there was no staff grievance policy, even if the complaint relates to a staff grievance that is without merit
  • An employer breaches Healt & Safety regulations even if the workplace is entirely safe, if there has not been a formal inspection that establishes that it is in fact safe.
  • Not spotting that the DVLA has failed to act on your notification to them of a change of ownership opens you to a fine because the new owner has not taxed the vehicle.

And so on. I see these laws as imposing not a punishment for a crime, but a punishment for "not being clearly non-criminal enough". Lady Scotland is, I believe, in trouble because she has been caught by one of these laws, one that was drafted with Labour's usual strictness and then enforced mechanically. I suspect that the reaction is motivated by a gut feeling that at last, one of these laws has turned round and bitten one of its makers.

And that is why she should resign; her infringement of the law proves that she is complicit in the passing of laws that are, quite simply, an incompetent exercise of government power.


  1. Spot on indeed!

    This has been one of my bugbears with New Labour. They are so focussed on the stuff which people notice that they disregard what might be described as "stewardship" issues, such as making sure the law makes sense and is fair. Governments used to do this but the Tories have been terrible as an opposition so Labour have just ridden roughshod over all sorts of institutions.

  2. I think you are being too kind. I think Baroness Scotland should resign for the sake of herself, her profession, the government and the country. It may still happen.

    Putting her aside, you are so right, Patently. I was trying to think of an analogy (all analogies break down eventually) and I would compare it to the laying of roads which as citizens we compelled to stay on. While motorways are expedient and an asset, to tarmac over little lanes becomes confining and destroys character. Roads are never dug up and could end up being a network that extends everywhere.

    Some of the regulations you cite serve to transfer responsibility, and therefore the blame on to innocent parties. Some are to create jobs for the boys and raise funds; the worst offender being health and safety rules to which a rule of diminishing returns applies. Regulations, registers and checks raise the barriers to entry and therefore dissuade people from setting up in business and going about their business in peace. New Labour fails to weigh up the downside with the upside of these rules. They do not respect the fact that unwarranted interference in people's lives has a value. I hope when there is an election, they will be in for a rude awakening.

    ...her infringement of the law proves that she is complicit in the passing of laws that are, quite simply, an incompetent exercise of government power. Precisely.