Criminality at Work
 0198836996, 9780198836995

Table of contents :
cover
half title
Criminality at Work
Copyright
Table of Contents
List of Contributors
1. Criminality at Work: A Framework for Discussion
part 1
2. Workplace Welfare and State Coercion
A. Introduction
1. Social Democracy
2. Why a Social Democratic Perspective?
3. Social Democratic Criminal Law
B. Workers with no Right to Work
C. Physical Safety
1. The Health and Safety at Work Act 1974
2. Corporate Manslaughter
3. Never Safe Enough: The Case of Boxing
D. Pay—​The National Living Wage and Minimum Wages
1. Enforcing the Living and Minimum Wage
2. Employers Evading Paying the National Living Wage: Two Devices, Zero Hours Contracts; Working as an Independent Contractor
3. Employees Colluding with Employers to Evade the National Living Wage
4. Is the National Living Wage High Enough?
3. Using Criminal Law to Enforce Statutory Employment Rights
A. Introduction
B. Charting the Criminal Enforcement of Statutory Employment Rights
C. The Notion of ‘Public Wrongs’ in Criminal Law Theory
1. Introduction
2. Applying the Negative and Positive Versions of Public Wrongs Theory
3. Public Wrongs Theory: Getting from the Positive to the Absolute
D. Conclusion
4. Where Criminal Law Meets Labour Law: The Effectiveness of Criminal Sanctions to Enforce Labour Rights
A. Introduction
B. Defining the Powers
1. Gangmasters and Labour Abuse Authority
2. Employment Agencies and Employment Agency Standards Inspectorate (EASI)
3. National Minimum Wage and the HMRC
4. Working Time and the HSE
5. Office of the Director of Labour Market Enforcement
6. Preliminary Conclusions
C. Complexity of the Legal Response Created
1. Strict Liability Offences
2. Offences Requiring an Element of Mens Rea
3. Breach of Order Offences
4. Civil Liability Offences
5. Summary Conclusions
D. Why Have Some Acts of Non-​compliance Been Criminalized?
1. The Political Choices
E. Effectiveness of Enforcement Action
1. The Nature and Extent of Enforcement
2. The Risk of Enforcement
F. Conclusions
part 2
5. Exploitation at Work: Beyond a ‘Criminalization’ or ‘Regulatory Alternatives’ Dichotomy
A. Introduction
B. The Conceptual Framework
1. Connections between ‘Exploitation’ and ‘Work’
2. What is Exploitation in Work Relations?
3. What are the State’s Obligations?
C. Limitations of Criminal Law Interventions
1. ‘Internal’ Limitations of Criminalization
2. ‘External’ Limitations of Criminalization
D. Criminalization and Regulatory Alternatives: A Key Juncture
E. Multidimensional Regulation: Further Principles and Constraints
F. Conclusion
6. The Duty of Loyalty and the Scope of the Law of Fraud
A. Criminalization as an Additional Deterrent for Civil Wrongs
B. Fraudulent Omissions
1. False or Misleading Representation
2. Fraud by Failure to Disclose Information
3. Fraud by Abuse of Position
C. Relational Contracts
D. Obligations of Disclosure in the Contract of Employment
1. Mutual Trust and Confidence
2. The Duty of Loyalty or Fidelity
E. Duties to Safeguard the Financial Interests of the Other Party
F. Over-​criminalization?
7. Wage Theft as a Legal Concept
A. Introduction
B. What is ‘Wage Theft’?
C. Is ‘Wage Theft’ Theft?
D. Is What the Employee Has Lost ‘Property’ for the Purposes of the Theft Act 1968?
E. Wage Fraud
8. The Criminalization of Workplace Harassment and Abuse:  An Over-​Personalized Wrong?
A. Introduction
B. The Negative Effect of the Criminalization of Workplace Harassment in its Present Form
C. The Over-​personalization of Workplace Harassment as a Criminal Offence
D. Reform Proposals and the Role of the Criminal Law
1. Regulatory Activity at the International Labour Organization
2. Regulatory Activity in the House of Commons Women and Equalities Committee
E. Justifying a Role for Criminalization in Harassment Wrongs: The Role of Human Dignity
1. Employer Duties and the Criminal Law
2. Dignity and the Relationship between Criminal and Civil Law
3. Dignity and the Role of Consent
F. Conclusion: Bargaining in the Shadow of the (Criminal) Law
9. Sex, Work, and Criminalization
A. Introduction
B. Conceptualizing Commercial Sex: From Sex Work to Modern Slavery
1. Commercial Sex
2. Sex Work
3. Commercial Sexual Exploitation
4. Modern Slavery
C. Commercial Sex as Labour: Three Philosophical Issues
1. Commodification of Sex
2. Commercial Sex and Structural Inequalities
3. Commercial Sex and Adaptive Preferences
D. Criminalization and Commercial Sex
1. Criminalization and Commercial Sex: A Normative Account
2. Criminalization and ‘Commercial-​Sex-​as-​Work’
3. Criminalization and ‘Commercial-​Sex-​as-​Exploitation’
4. Criminalization and ‘Commercial-​Sex-​as-​Modern-​Slavery’
5. Criminalization and ‘Commercial-​Sex-​as-​Varied’
E. Conclusion
10. The Work of Sex Work: Prostitution, Unfreedom, and Criminality at Work
A. Introduction
B. The Case for Decriminalization: Safety, Sex, and Work
1. Safety and (De)criminalization
2. Prostitution as Sex, Prostitution as Work
C. Prostitution as Work: Labour and Criminal Law
D. Capitalism, Unfreedom, and Criminal Law
1. Exploitation and Alienation
2. The Continuum of Unfreedom and Class Struggle
3. History, Unfreedom, and Criminality at Work
E. Prostitution as Work and Criminality at Work
F. Conclusion: Prostitution as Work, Work and Freedom
11. Human Rights, Labour Rights, and Criminal Wrongs
A. Introduction
B. Human Rights and Positive Duties
C. Criminalization of Breaches of Labour Rights
1. Severe Labour Exploitation
2. The Modern Slavery Act 2015
3. Collective Labour Rights and Blacklisting
D. Overcriminalization/​Exclusive Focus on Criminalization
E. Conclusion
part 3
12. The Preventive Role of the Criminal Law in Employment Relations
A. Introduction
B. Offences of Omission
C. The Offence of Employing an Illegal Worker
D. The New Preventive Orders
E. Conclusions
13. Licensing of Employing Entities and Criminalization
A. Introduction
B. Licensing
C. Licensing and the Criminal Law
D. Licensing in Employment Settings
1. Gangmasters and Labour Abuse Authority
2. Employment Agencies and Businesses
3. Evaluation
E. Licensing and the Criminal Law in Employment Settings
F. Conclusion
14. Criminalizing Care Workers: A Critique of Prosecution for Ill-​treatment or Wilful Neglect
A. Introduction
B. A Workers’ Crime
C. A Crime against Caring
D. Ontological Confusion
E. Care Worker Prosecution
1. Ill-​treatment and Wilful Neglect in the Courts
2. In the Context of Social Care Work
3. Erasing Employment Relations
F. Problems of Abuse in Care Settings
1. The Organizational Dynamics of Abuse
2. Training and the Regulation of Conduct
3. The Making of Section 20 Criminal Justice and Courts Act 2015
G. Conclusion
15. The Medical Professional as Special before the Criminal Law
A. Introduction
B. The Criminal Law and the Doctor’s Exculpatory and Influential Professional Role
C. The Particular Criminal Liability that the Doctor’s Professional Role Attracts
D. Arguments Supporting the Criminal Law’s Special Treatment
1. Providing Doctors with Special Protection from the Criminal Law is Appropriate Because of the Nature of their Professional Role
2. The Special Attention of the Criminal Law is Required to Protect Patients Because of the Nature of the Doctor–​Patient Relationship
3. The Special Attention of the Criminal Law is Required to Address What are Perceived to be Both Private and Public Wrongs
E. Concluding Thoughts
16. Victim or Perpetrator? The Criminalization of Migration and the Idea of ‘Harm’ in the Labour Market Context
A. Introduction
B. Regulating Immigration—​Migration Control and Migration Status
1. Immigration Law’s Selectivity and Global Inequality of Migration Statuses
2. The Exclusion of Refugees from Regular Migration Opportunities
3. States’ Generation of Illegality
4. Immigration Law Enforcement
C. The Criminalization of Migration
1. Where’s the Harm?
2. Mala Prohibita? Immigration Regulations and Regulatory Crimes
3. Wrongfulness—​Defences for the Blameless—​Refugees and Victims of Trafficking
D. Some Consequences of Criminalization
1. Criminalization Begets Criminalization
2. Criminalization Blocks Regularization
E. Conclusion
17. Doing the Dirty Job: Labour at the Intersections of Criminal Law and Immigration Controls
A. Introduction
B. Criminal Law as an Institution
C. Historicizing Criminalization: Labour Market, Sovereignty, and Criminal Law (Late Eighteenth Century to 1900s)
D. Labour Protection, Citizenship, and Criminalization (early 1900s until 1980s)
E. Neoliberalism, Labour Deregulation, and Criminalization (1980s to Present)
F. Conclusion
18. Modern Slavery, Domestic Work, and the Criminal Law
A. Introduction
B. Background to the Modern Slavery Act 2015
C. Summary of the Legislation
1. The Section 1 Offence
2. Defence for Slavery or Trafficked Victims
3. The Independent Anti-​Slavery Commissioner
4. The Modern Slavery Act: An Assessment
D. Terminology
E. Domestic Labour
1. Feminist Analysis of the Nature of Housework
2. Modern Slavery and Domestic Abuse
3. Slavery, Domestic Abuse, and Patriarchy
F. Conclusion
19. The Persistence of Criminal Law and Police in Collective Labour Relations
A. Introduction
B. The Late Eighteenth and Nineteenth Centuries up to the Conspiracy and Protection of Property Act 1875: The ‘Classical’ Repression Phase
C. From Public Wrongs to Private Rights
D. The Continuing Presence of the Criminal Law
E. From Normal Law to Emergency Regulations
F. From Emergency to Reserve Powers: The Miners’ Strike 1984–​85
G. Trade Unions in the Shadow of ‘Enemy’ Criminal Law
H. Conclusion
part 4
20. Workplace Safety and Criminalization: A Double-​edged Sword
A. Introduction
B. Criminalizing Safety I: Health and Safety Offences
C. Criminalizing Safety II: Corporate Manslaughter
D. The Corporate Manslaughter Offence in Practice
E. Criminalization and Context-​dependency
F. Context-​dependency in Practice
G. Conclusion: Criminalization and the Regulatory Project
21. The Criminalization of Health and Safety at Work
A. Introduction
B. Health and Safety Law and Criminalization
C. The Health and Safety at Work etc Act 1974
D. The New Direction of Recent Policy
E. The Working Time Directive and Regulations
F. Conclusion
22. Accessory Liability for National Minimum Wage Violations in the Fissured Workplace
A. Enforcement in Crisis: The Limits of Primary Liability
B. Enforcement Strategies in the ‘Fissured’ Labour Market
C. The Structure of Criminal Accessory Liability
D. Broadening Liability: Lessons from Australia
E. Conclusion
part 5
23. Class Crimes: Master and Servant Laws and Factories Acts in Industrializing Britain and (Ontario) Canada
A. Introduction
B. The Role and Function of the Criminal Law
C. Master and Servant Law: Disciplining Workers
1. England
2. Canada (Ontario)
D. Factory Acts
1. UK
2. Canada (Ontario)
E. Conclusion
24. Criminalization, Social Exclusion, and Access to Employment
A. Introduction
B. Context, Background, and Themes
C. Use of Criminal Record Information in Employment Decisions
D. Formal Sources of Information on Criminal Backgrounds of Job Applicants
E. Policy and Areas Legislatures Carve Out to Support Certain Criminal Record Checks
1. Protecting Vulnerable Groups
2. Professional Employees
F. Ex-​offenders as Actors in the Labour Market and in Society
G. Employment and Recidivism
H. Employment and Social Inclusion and Exclusion
I. Legal Intervention to Assist the Vulnerable Job Seeker with a Criminal Record
1. Spent Conviction or Clean Slate Legislation
2. Anti-​discrimination Legislation
3. Other Legislative Protections
J. Adequacy of Legislative Intervention
K. Employment, Unfair Dismissal Legislation, and Criminal Behaviour
L. Impact of Informal Sources of Information about a Person’s Conduct on Employment
M. Concluding Comments—​The Need for Continuing Law Reform
25. The Carceral State at Work: Exclusion, Coercion, and Subordinated Inclusion
A. Introduction
B. Subordinated Inclusion: Frameworks and Foils
C. The Carceral State and Labour Market Exclusion
D. Intermediate Steps: Prison Labour, Channelling, and Wage Penalties
E. The Carceral State and Labour Coercion Outside of Prison
F. From Double Binds to Subordinated Inclusion
G. Conclusion
26. Restorative Regulation of Criminality at Work in Canada: Workplace Safety, Penal Law, and Human Capability Enhancement
A. Introduction
B. Penal Law and Worker Protective Regulation: Labour Standards and Occupational Safety
1. Statutory Labour Standards for Worker Protection
2. Earlier Criminal Law Regimes and Workplace Safety
3. The Westray Disaster: A Catalyst for Penal Reform of Workplace Regulation
4. Workplace-​related Reform of the Criminal Code
5. Reform of Specific Occupational Health and Safety Regimes
C. Human Capability Development via Penal Sentencing and Restorative Workplace Approaches
1. Sentencing, the General Part of Criminal Law, and Human Capacity
2. Capabilities Approaches and Labour Market Regulation
3. Sentencing Reform and Capability Enhancement
4. Human Capabilities and Restorative Approaches to Workplace Safety Offences
D. Conclusion
Index

Citation preview

Criminality at Work

Criminality at Work Edited by

ALAN BOGG Professor of Labour Law, University of Bristol

JENNIFER COLLINS Senior Lecturer in Law, University of Bristol

M A R K F R E E D L A N D Q C ( HO N ) ,   F BA Emeritus Research Fellow, St John’s College, Oxford

J O NAT HA N H E R R I N G Professor of Law, University of Oxford

1

3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring 2020 The moral rights of the authors have been asserted First Edition published in 2020 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2019951599 ISBN 978–​0–​19–​883699–​5 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Foreword It is a great pleasure to introduce this innovative collection which brings labour law and criminal law into productive dialogue in its exploration of how the law interprets and responds to criminality at work. Any collection which brought together such a distinguished group of scholars would in any case be a cause for celebration. In the case of this book, however, there are several more specific reasons to welcome its appearance. First, this book makes a very substantial contribution to the important genre of cross-​ doctrinal scholarship. In stark contrast to much legal practice, and notwithstanding the diversifying impact of the growth of human rights standards stretching across different areas of the common law, the majority of legal scholarship today remains mono-​doctrinal. And in this focus on areas of the common law one at a time, it often achieves depth at the expense of the breadth which is needed to identify issues of significance to law understood not merely as a body of doctrine but as a complex social institution engaged in both regulation and the production of social norms and understandings. Multi-​doctrinal studies such as those attempted in this collection—​studies organized around a social problem or phenomenon rather than formal legal categories—​are in short absolutely central, not only to any genuinely socio-​legal enterprise but to the quality and relevance of legal scholarship more generally. Beyond this advantage, there are further reasons to celebrate a collection which brings together labour law and criminal law in particular. The first of these reasons lies in the central place which master and servant law holds in the historical development of both fields. We need not go as far as Rusche and Kirchheimer’s Marxist view of criminalization and punishment as reflecting underlying structural relations of production to recognize that they function in important ways as labour market institutions. Criminal law has long been used to regulate the powers of both capital and labour; it is time to put this aspect of criminal law at the centre of how we think about its role and functions in the modern administrative state. This in turn implies that the labour law/​criminal law interface is a powerful lens on both a central puzzle and a central conundrum of contemporary criminal law theory, each of which—​like master and servant laws—​holds a central place in Bogg and Freedland’s fine introductory essay. First, the puzzle: The intersection between criminal law and labour law has a central place in any effort to understand the relationship between so-​called ‘mala in se’ and ‘mala prohibita’; ‘real’ or ‘regulatory’ aspects of criminal law. Indeed (as I suspect Kahn-​Freund or Wedderburn would have insisted), master and servant laws and their descendants raise real questions about the integrity of that distinction, given that many offences conventionally understood as ‘mala in se’ have regulatory aspects, and vice versa. Furthermore, the scope and persistence of regulatory criminal laws raise questions about whether the moralized, ‘mala in se’ quality of criminal law so commonly central to contemporary theory—​as powerfully reflected in Duff ’s account on which Bogg and Freedland draw—​is quite satisfactory. Can its impulse to embrace the regulatory offences by reference to a moralized,

vi Foreword ‘mala in se’—​driven paradigm really be justified? Might it be more appropriate to work the other way round, or at least to recognize the equally central place of regulatory offences as aspects of modern criminal law? Second, the conundrum: Criminal law claims to be a form of justice, rather than merely of state power, and hence to have the potential to temper unequal power relations, and to counter forms of oppression and unfairness. This claim, central to the legitimation of modern criminal law, has much plausibility, when we consider that the least powerful are also the most vulnerable to the harms caused by crime. Hence the promise of ‘worker-​ protective’ criminal laws. And the regulatory enforcement potential of criminal law has often made it a tempting means for the pursuit of social justice more generally, in projects of what Aaronson has called ‘progressive criminalisation’. This aspiration to use criminal law as a means of protective regulation for vulnerable labour market actors—​through anti-​ trafficking or ‘modern slavery’ laws, the criminal enforcement of a range of labour rights, or the criminalization of workplace safety breaches or of harassment, to take just a few examples—​is accordingly an important focus of many of the essays in the collection. Criminal law is, however, a double-​edged tool in the pursuit of social justice, and projects of progressive criminalization are accordingly fraught with difficulty, as many of the contributions to this book demonstrate. The most vulnerable are disproportionately liable to not only criminal victimization but also criminalization; and in most systems for which we have enough evidence about enforcement practice to come to a judgment, we can say with confidence that the power-​redistributive efforts of criminal law have, at best, modest success, while, at worst, they can be counterproductive. As in cases such as the attempt to secure justice and a reduction of the harms of human trafficking by criminalizing it, unintended side effects which make life yet harder for victims are rife. (The intersection here with immigration law and policy is of course exemplary of the need for a multi-​doctrinal approach.) Criminal law is, after all, the creature of the same state which has presided over accumulated inequalities of power. In this context, the genuinely progressive aspirations of criminal law reform can, in the process of interpretation and enforcement, turn into something quite different from reformers’ intentions. In the important effort to understand the conditions under which progressive law reform can indeed have a genuine purchase—​not merely towards worker-​protective criminal law but quite generally—​the sort of fine-​grained case studies contained in this collection are indispensable. Their value is enhanced by the way in which this collection is integrated within an overall framework provided by the wide-​ranging, elegant introductory essay, which embraces both normative and aspirational concerns alongside a close attention to the historical development, the socio-​legal context and the practical upshot of the laws in question. I am conscious that this foreword is very much shaped by my perspective as a criminal lawyer, and that a labour lawyer, a public lawyer, or a human rights specialist might well have concentrated on other important aspects of the collection. This simply reflects its richness and breadth. I welcome and celebrate its publication, and trust that it will find the wide and attentive readership that it merits. Nicola Lacey London School of Economics, September 2019

Preface This symposium book is about the Criminal Law in work relations. It had its origins in conversations between us about the possibility of a project of writing which would examine the interface between Labour Law and Criminal Law and, more generally, the whole subject of the role of the Criminal Law in the regulation of work or employment relations. Initial discussions took place in the course of 2015 and 2016, and the fact that this book is due for publication early in 2020 seems to represent quite a rapid period of execution for such a novel and ambitious project. In the course of the period of concentrated activity that this book has required, we have incurred many intellectual, organizational, and personal debts of gratitude which this Preface seeks to identify and to acknowledge. At the outset, our thanks go to the other contributors to this book; and this is not just for producing chapters in a timely way, but for being absolutely integral to the conception of the work as a whole. The formal division between editors and other contributors has been an entirely porous one, masking a reality of continual exchanging of ideas within the group of authors as a whole. For example—​and this is only one of many which could be cited—​Cathryn Costello was quite centrally involved in our initial discussions, which were specially focussed upon the Modern Slavery Act 2015 and the Immigration Act 2016; and the fully general inclusion of all the authors in the design of the book seems to us to have been apparent during and since the workshop which was held in Bristol in June 2018. We have also benefitted hugely from the inputs of other colleagues who have supported us with their inspiration and enthusiasm: first and foremost among them has been Professor Nicola Lacey, whose influence upon our work is evident in many of its chapters, and for whose intellectual generosity, so apparent in the Foreword which she has contributed, we are most especially grateful. Then, we have also other acknowledgements to make which are in part institutional and in part personal. The Universities of Bristol and of Oxford have provided support and facilities for our work: the Bristol Law Faculty generously hosted our workshop, and both universities enabled us to use our research allowances to fund research assistance, most ably and diligently provided by Serena Crawshay-​Williams in Bristol and Cian O’Concubhair in Oxford. We would also like to record our gratitude to the Leverhulme Trust, since Alan Bogg’s Leverhulme Prize money was used to support the Criminality workshop and the provision of editorial assistance in the preparation of the manuscript. Last but by no means least, we are most grateful for the excellent work on the production of our book which has taken place, and is in progress at the time of writing this Preface, at Oxford University Press—​our most sincere thanks go in particular to Jamie Berezin and Catherine Rogers, the commissioning editors at OUP itself; to Arokia Anthuvan Rani, the project manager at Newgen KnowledgeWorks Pvt. Ltd.; and to Libby Holcroft of OUP for the cover design. Alan Bogg Jennifer Collins Mark Freedland Jonathan Herring Bristol and Oxford, January 2020

Table of Contents List of Contributors

xvii

I N T R O D U C T IO N 1. Criminality at Work: A Framework for Discussion Alan Bogg and Mark Freedland

3

PA RT I :   C R I M I NA L I T Y AT WO R K :  M A P P I N G T H E T E R R A I N 2. Workplace Welfare and State Coercion GR Sullivan A. Introduction

35

. Workers with no Right to Work B C. Physical Safety

39 43

D. Pay—​The National Living Wage and Minimum Wages

46

1. Social Democracy 2. Why a Social Democratic Perspective? 3. Social Democratic Criminal Law 1 . The Health and Safety at Work Act 1974 2. Corporate Manslaughter 3. Never Safe Enough: The Case of Boxing

1 . Enforcing the Living and Minimum Wage 2. Employers Evading Paying the National Living Wage: Two Devices, Zero Hours Contracts; Working as an Independent Contractor 3. Employees Colluding with Employers to Evade the National Living Wage 4. Is the National Living Wage High Enough?

3. Using Criminal Law to Enforce Statutory Employment Rights David Cabrelli A. Introduction B. Charting the Criminal Enforcement of Statutory Employment Rights C. The Notion of ‘Public Wrongs’ in Criminal Law Theory 1. Introduction 2. Applying the Negative and Positive Versions of Public Wrongs Theory 3. Public Wrongs Theory: Getting from the Positive to the Absolute

D. Conclusion

4. Where Criminal Law Meets Labour Law: The Effectiveness of Criminal Sanctions to Enforce Labour Rights Catherine Barnard and Sarah Fraser Butlin A. Introduction B. Defining the Powers 1. Gangmasters and Labour Abuse Authority

35 35 37 37 43 43 44 47 48 49 51

53 53 54 57 57 59 62

68

70 70 71 72

x  Table of Contents 2. Employment Agencies and Employment Agency Standards Inspectorate (EASI) 3. National Minimum Wage and the HMRC 4. Working Time and the HSE 5. Office of the Director of Labour Market Enforcement 6. Preliminary Conclusions

74 75 77 78 79

C. Complexity of the Legal Response Created

79

D. Why Have Some Acts of Non-​compliance Been Criminalized?

83

E. Effectiveness of Enforcement Action

88

F. Conclusions

92

1 . Strict Liability Offences 2. Offences Requiring an Element of Mens Rea 3. Breach of Order Offences 4. Civil Liability Offences 5. Summary Conclusions 1. The Political Choices

1 . The Nature and Extent of Enforcement 2. The Risk of Enforcement

79 80 80 81 82 83 88 92

PA RT I I :   L A B O U R W R O N G S A S P U B L IC   W R O N G S 5. Exploitation at Work: Beyond a ‘Criminalization’ or ‘Regulatory Alternatives’ Dichotomy Jennifer Collins A. Introduction B. The Conceptual Framework 1 . Connections between ‘Exploitation’ and ‘Work’ 2. What is Exploitation in Work Relations? 3. What are the State’s Obligations?

97 97 99

99 101 103

C. Limitations of Criminal Law Interventions

103

. Criminalization and Regulatory Alternatives: A Key Juncture D E. Multidimensional Regulation: Further Principles and Constraints F. Conclusion

108 110 115

1 . ‘Internal’ Limitations of Criminalization 2. ‘External’ Limitations of Criminalization

104 106

6. The Duty of Loyalty and the Scope of the Law of Fraud Hugh Collins A. Criminalization as an Additional Deterrent for Civil Wrongs B. Fraudulent Omissions

116

C. Relational Contracts D. Obligations of Disclosure in the Contract of Employment

123 125

. Duties to Safeguard the Financial Interests of the Other Party E F. Over-​criminalization?

129 132

1 . False or Misleading Representation 2. Fraud by Failure to Disclose Information 3. Fraud by Abuse of Position 1 . Mutual Trust and Confidence 2. The Duty of Loyalty or Fidelity

116 119

119 120 121 126 127

Table of Contents  xi

7. Wage Theft as a Legal Concept Sarah Green A. Introduction B. What is ‘Wage Theft’? C. Is ‘Wage Theft’ Theft? D. Is What the Employee Has Lost ‘Property’ for the Purposes of the Theft Act 1968? E. Wage Fraud 8. The Criminalization of Workplace Harassment and Abuse:  An Over-​Personalized Wrong? Alan Bogg and Mark Freedland A. Introduction B. The Negative Effect of the Criminalization of Workplace Harassment in its Present Form C. The Over-​personalization of Workplace Harassment as a Criminal Offence D. Reform Proposals and the Role of the Criminal Law 1 . Regulatory Activity at the International Labour Organization 2. Regulatory Activity in the House of Commons Women and Equalities Committee

134 134 134 135 136 146

151 151 152 156 159 159 161

E. Justifying a Role for Criminalization in Harassment Wrongs: The Role of Human Dignity

163

F. Conclusion: Bargaining in the Shadow of the (Criminal) Law

171

1 . Employer Duties and the Criminal Law 2. Dignity and the Relationship between Criminal and Civil Law 3. Dignity and the Role of Consent

9. Sex, Work, and Criminalization Michelle Madden Dempsey A. Introduction B. Conceptualizing Commercial Sex: From Sex Work to Modern Slavery 1. Commercial  Sex 2. Sex Work 3. Commercial Sexual Exploitation 4. Modern Slavery

164 167 169

173 173 173 174 174 175 176

C. Commercial Sex as Labour: Three Philosophical Issues

177

D. Criminalization and Commercial Sex

181

E. Conclusion

190

1 . Commodification of Sex 2. Commercial Sex and Structural Inequalities 3. Commercial Sex and Adaptive Preferences

1 . Criminalization and Commercial Sex: A Normative Account 2. Criminalization and ‘Commercial-​Sex-​as-​Work’ 3. Criminalization and ‘Commercial-​Sex-​as-​Exploitation’ 4. Criminalization and ‘Commercial-​Sex-​as-​Modern-​Slavery’ 5. Criminalization and ‘Commercial-​Sex-​as-​Varied’

10. The Work of Sex Work: Prostitution, Unfreedom, and Criminality at Work Katie Cruz A. Introduction B. The Case for Decriminalization: Safety, Sex, and Work

177 178 180 182 184 186 187 188

192 192 193

xii  Table of Contents 1 . Safety and (De)criminalization 2. Prostitution as Sex, Prostitution as Work

194 196

. Prostitution as Work: Labour and Criminal Law C D. Capitalism, Unfreedom, and Criminal Law

198 200

. Prostitution as Work and Criminality at Work E F. Conclusion: Prostitution as Work, Work and Freedom

206 209

1 . Exploitation and Alienation 2. The Continuum of Unfreedom and Class Struggle 3. History, Unfreedom, and Criminality at Work

11. Human Rights, Labour Rights, and Criminal Wrongs Virginia Mantouvalou A. Introduction B. Human Rights and Positive Duties C. Criminalization of Breaches of Labour Rights 1 . Severe Labour Exploitation 2. The Modern Slavery Act 2015 3. Collective Labour Rights and Blacklisting

. Overcriminalization/​Exclusive Focus on Criminalization D E. Conclusion

200 203 204

210 210 211 213

214 217 218

224 228

PA RT I I I :   T H E C O N T E M P O R A RY SHA P E O F C R I M I NA L I Z AT IO N P R AC T IC E S :  R I SK , S TAT U S , A N D C HA R AC T E R I N T H E N E O L I B E R A L C R I M I NA L   L AW 12. The Preventive Role of the Criminal Law in Employment Relations Jennifer Collins and Andrew Ashworth A. Introduction B. Offences of Omission C. The Offence of Employing an Illegal Worker D. The New Preventive Orders E. Conclusions

231

13. Licensing of Employing Entities and Criminalization ACL Davies A. Introduction B. Licensing C. Licensing and the Criminal Law D. Licensing in Employment Settings

249

1 . Gangmasters and Labour Abuse Authority 2. Employment Agencies and Businesses 3. Evaluation

. Licensing and the Criminal Law in Employment Settings E F. Conclusion

14. Criminalizing Care Workers: A Critique of Prosecution for Ill-​treatment or Wilful Neglect LJB Hayes A. Introduction B. A Workers’ Crime

231 231 234 240 247

249 250 251 254

255 257 260

263 265

267 267 269

Table of Contents  xiii C. A Crime against Caring D. Ontological Confusion E. Care Worker Prosecution

270 273 274

F. Problems of Abuse in Care Settings

279

G. Conclusion

289

1 . Ill-​treatment and Wilful Neglect in the Courts 2. In the Context of Social Care Work 3. Erasing Employment Relations 1 . The Organizational Dynamics of Abuse 2. Training and the Regulation of Conduct 3. The Making of Section 20 Criminal Justice and Courts Act 2015

15. The Medical Professional as Special before the Criminal Law Suzanne Ost A. Introduction B. The Criminal Law and the Doctor’s Exculpatory and Influential Professional Role C. The Particular Criminal Liability that the Doctor’s Professional Role Attracts D. Arguments Supporting the Criminal Law’s Special Treatment

1. Providing Doctors with Special Protection from the Criminal Law is Appropriate Because of the Nature of their Professional Role 2. The Special Attention of the Criminal Law is Required to Protect Patients Because of the Nature of the Doctor–​Patient Relationship 3. The Special Attention of the Criminal Law is Required to Address What are Perceived to be Both Private and Public Wrongs

E. Concluding Thoughts

16. Victim or Perpetrator? The Criminalization of Migration and the Idea of ‘Harm’ in the Labour Market Context Cathryn Costello A. Introduction B. Regulating Immigration—​Migration Control and Migration Status

1 . Immigration Law’s Selectivity and Global Inequality of Migration Statuses 2. The Exclusion of Refugees from Regular Migration Opportunities 3. States’ Generation of Illegality 4. Immigration Law Enforcement

274 276 277 282 284 287

291 291 292 296 301 301 302 302

304

309 309 311 311 312 314 315

C. The Criminalization of Migration

316

D. Some Consequences of Criminalization

324

E. Conclusion

326

1 . Where’s the Harm? 2. Mala Prohibita? Immigration Regulations and Regulatory Crimes 3. Wrongfulness—​Defences for the Blameless—​Refugees and Victims of Trafficking 1 . Criminalization Begets Criminalization 2. Criminalization Blocks Regularization

17. Doing the Dirty Job: Labour at the Intersections of Criminal Law and Immigration Controls Ana Aliverti A. Introduction

316 319 322 324 325

327 327

xiv  Table of Contents . Criminal Law as an Institution B C. Historicizing Criminalization: Labour Market, Sovereignty, and Criminal Law (Late Eighteenth Century to 1900s) D. Labour Protection, Citizenship, and Criminalization (early 1900s until 1980s) E. Neoliberalism, Labour Deregulation, and Criminalization (1980s to Present) F. Conclusion

18. Modern Slavery, Domestic Work, and the Criminal Law Jonathan Herring A. Introduction B. Background to the Modern Slavery Act 2015 C. Summary of the Legislation 1 . The Section 1 Offence 2. Defence for Slavery or Trafficked Victims 3. The Independent Anti-​Slavery Commissioner 4. The Modern Slavery Act: An Assessment

329 331 334 337 341

343 343 343 344

345 347 348 349

D. Terminology E. Domestic Labour

350 354

F. Conclusion

361

1 . Feminist Analysis of the Nature of Housework 2. Modern Slavery and Domestic Abuse 3. Slavery, Domestic Abuse, and Patriarchy

19. The Persistence of Criminal Law and Police in Collective Labour Relations Alan Bogg, KD Ewing, and Andrew Moretta A. Introduction B. The Late Eighteenth and Nineteenth Centuries up to the Conspiracy and Protection of Property Act 1875: The ‘Classical’ Repression Phase C. From Public Wrongs to Private Rights D. The Continuing Presence of the Criminal Law E. From Normal Law to Emergency Regulations F. From Emergency to Reserve Powers: The Miners’ Strike 1984–​85 G. Trade Unions in the Shadow of ‘Enemy’ Criminal Law H. Conclusion

355 358 360

362 362 364 368 371 375 379 383 386

PA RT I V:   C R I M I NA L I Z AT IO N A N D E N F O R C E M E N T 20. Workplace Safety and Criminalization: A Double-​edged Sword Paul Almond A. Introduction B. Criminalizing Safety I: Health and Safety Offences C. Criminalizing Safety II: Corporate Manslaughter D. The Corporate Manslaughter Offence in Practice E. Criminalization and Context-​dependency F. Context-​dependency in Practice G. Conclusion: Criminalization and the Regulatory Project

391 391 392 395 399 401 403 406

Table of Contents  xv

21. The Criminalization of Health and Safety at Work Michael Ford A. Introduction B. Health and Safety Law and Criminalization C. The Health and Safety at Work etc Act 1974 D. The New Direction of Recent Policy E. The Working Time Directive and Regulations F. Conclusion 22. Accessory Liability for National Minimum Wage Violations in the Fissured Workplace Alan Bogg and Paul S Davies A. Enforcement in Crisis: The Limits of Primary Liability B. Enforcement Strategies in the ‘Fissured’ Labour Market C. The Structure of Criminal Accessory Liability D. Broadening Liability: Lessons from Australia E. Conclusion

409 409 412 417 421 425 429

431 431 433 440 445 449

PA RT V:   C OM PA R AT I V E P E R SP E C T I V E S O N C R I M I NA L I Z AT IO N 23. Class Crimes: Master and Servant Laws and Factories Acts in Industrializing Britain and (Ontario) Canada Eric Tucker and Judy Fudge A. Introduction B. The Role and Function of the Criminal Law C. Master and Servant Law: Disciplining Workers 1. England 2. Canada (Ontario)

455 455 456 458 458 463

D. Factory Acts

464

E. Conclusion

472

1. UK 2. Canada (Ontario)

464 469

24. Criminalization, Social Exclusion, and Access to Employment Marilyn J Pittard A. Introduction B. Context, Background, and Themes C. Use of Criminal Record Information in Employment Decisions D. Formal Sources of Information on Criminal Backgrounds of Job Applicants E. Policy and Areas Legislatures Carve Out to Support Certain Criminal Record Checks

474

. Ex-​offenders as Actors in the Labour Market and in Society F G. Employment and Recidivism

481 484

1 . Protecting Vulnerable Groups 2. Professional Employees

474 474 477 479 479 480 481

xvi  Table of Contents . Employment and Social Inclusion and Exclusion H I. Legal Intervention to Assist the Vulnerable Job Seeker with a Criminal Record

486

J. Adequacy of Legislative Intervention K. Employment, Unfair Dismissal Legislation, and Criminal Behaviour L. Impact of Informal Sources of Information about a Person’s Conduct on Employment M. Concluding Comments—​The Need for Continuing Law Reform

491 491

1 . Spent Conviction or Clean Slate Legislation 2. Anti-​discrimination Legislation 3. Other Legislative Protections

25. The Carceral State at Work: Exclusion, Coercion, and Subordinated Inclusion Noah D Zatz A. Introduction B. Subordinated Inclusion: Frameworks and Foils C. The Carceral State and Labour Market Exclusion D. Intermediate Steps: Prison Labour, Channelling, and Wage Penalties E. The Carceral State and Labour Coercion Outside of Prison F. From Double Binds to Subordinated Inclusion G. Conclusion 26. Restorative Regulation of Criminality at Work in Canada: Workplace Safety, Penal Law, and Human Capability Enhancement Bruce P Archibald QC A. Introduction B. Penal Law and Worker Protective Regulation: Labour Standards and Occupational Safety

1 . Statutory Labour Standards for Worker Protection 2. Earlier Criminal Law Regimes and Workplace Safety 3. The Westray Disaster: A Catalyst for Penal Reform of Workplace Regulation 4. Workplace-​related Reform of the Criminal Code 5. Reform of Specific Occupational Health and Safety Regimes

487

488 488 489

493 495

496 496 497 500 503 505 508 513

516 516 517

517 518 520 521 523

C. Human Capability Development via Penal Sentencing and Restorative Workplace Approaches

524

D. Conclusion

533

1 . Sentencing, the General Part of Criminal Law, and Human Capacity 2. Capabilities Approaches and Labour Market Regulation 3. Sentencing Reform and Capability Enhancement 4. Human Capabilities and Restorative Approaches to Workplace Safety Offences

Index

524 526 528 530

535

List of Contributors Ana Aliverti is Reader in Law at the University of Warwick. Paul Almond is Professor of Law at the University of Reading. Bruce P Archibald, QC, is a Professor Emeritus at the Dalhousie University Schulich School of Law, Halifax, Canada. Andrew Ashworth, CBE, QC (Hon), FBA, is Emeritus Vinerian Professor of English Law in the University of Oxford, an Emeritus Fellow of All Souls College Oxford, and an Adjunct Professor at the University of Tasmania. Catherine Barnard is Professor of EU law and Employment law at the University of Cambridge and Senior Tutor of Trinity College, Cambridge. Alan Bogg is Professor of Labour Law at the University of Bristol, and an Emeritus Fellow of Hertford College, Oxford. David Cabrelli is Professor of Labour Law at the University of Edinburgh. Hugh Collins, FBA, is Cassel Professor of Commercial Law at the London School of Economics and was formerly Vinerian Professor of English Law at All Souls College, University of Oxford. Jennifer Collins is Senior Lecturer in Law at the University of Bristol. Cathryn Costello is Andrew W Mellon Professor of Refugee and Migration Law at the Refugee Studies Centre, University of Oxford, and the Professor II at the Norwegian Centre for Human Rights, Faculty of Law, University of Oslo. Katie Cruz is Senior Lecturer in Law at the University of Bristol. ACL Davies is Professor of Law and Public Policy at the University of Oxford, and Dean of the Oxford Law Faculty. Paul S Davies is Professor of Commercial Law at University College London, and an Associate Member of Maitland Chambers. KD Ewing is Professor of Public Law at King’s College London. Michael Ford, QC, is a Professor of Law at the University of Bristol and a barrister at Old Square Chambers. Sarah Fraser Butlin is a Fellow of Selwyn College, Cambridge, an Affiliated Lecturer in Labour law at the University of Cambridge, and is a barrister at Cloisters Chambers.

xviii  List of Contributors Mark Freedland, QC (Hon), FBA, is Emeritus Professor of Employment Law in the University of Oxford, an Emeritus Research Fellow of St John’s College Oxford, and an Honorary Professor in the Faculty of Laws of University College London. Judy Fudge, FRSC, is LIUNA Enrico Henry Mancinelli Professor of Global Labour Issues at the School of Labour Studies, McMaster University, Canada. Sarah Green is Professor of Private Law at the University of Bristol and Law Commissioner for Commercial and Common Law. LJB Hayes is Professor of Law at Kent Law School. Jonathan Herring is Professor of Law at the University of Oxford, and DW Wolfe-​Clarendon Fellow in Law at Exeter College, Oxford. Michelle Madden Dempsey is the Harold Reuschlein Scholar Chair and Professor of Law at Villanova University, USA. Virginia Mantouvalou is Professor of Human Rights and Labour Law at University College London, Faculty of Laws. Andrew Moretta graduated from King’s College London with an LLM in Labour Law in 2012 and completed his PhD at Liverpool University in 2019. Suzanne Ost is Professor of Law at Lancaster University. Marilyn J Pittard is Professor of Law at Monash University. GR Sullivan is Emeritus Professor of Law at University College London. Eric Tucker is a Professor at Osgoode Hall Law School, York University, Toronto, and a Distinguished Scholar in Residence at the Cleveland-​Marshall College of Law, Cleveland State University. Noah D Zatz is Professor of Law at the University of California, Los Angeles.

 

IN T RODU CT ION

1

Criminality at Work A Framework for Discussion Alan Bogg and Mark Freedland

The purpose of this introductory chapter is to develop a framework for understanding the lessons of a project of over three years’ duration, and to distil what has been learned in the course of the project. The project was undertaken in the conviction that the area of intersection between criminal law and labour law would be an interesting one to investigate, both for labour lawyers and for criminal lawyers. This had been prompted by two important recent Acts of the UK Parliament, the Modern Slavery Act 2015 (MSA) and the Immigration Act 2016 (IA), the former of which introduced a new offence criminalizing modern slavery practices and the latter of which made it a criminal offence to employ an irregular migrant or to work as an irregular migrant. We had a general but imprecise idea of what the outcomes of that investigation might be. The intuition that this was an area ripe for investigation has been very fully vindicated. We emerge from the inquiry with some conclusions about the significance of ‘criminality at work’ which are more exact than, and sometimes different from, our initial hypotheses. This introductory chapter describes a voyage of discovery about the functions of criminal law in the sphere of labour or employment relations: of how these functions have shifted and been reconfigured during different historical periods; and of how normative theories of the criminal law often diverge from the political uses to which the criminal law has been put by elected governments from time to time. From a historical perspective, the criminal law was often used as a regulatory technique for regulating labour markets. It had been used in repressive ways, especially in the nineteenth-​century Master and Servant Acts and Combination Acts, and by the use of public order offences to restrain trade union activity and industrial action. Criminal law in its historically repressive guise has generated a rich and sophisticated literature, especially at the intersection of legal history and labour history.1 However, at the interface between criminal law and labour law, contemporary scholarship reveals a most surprising gap. For example, in a recent work on the ‘autonomy of labour law’, the general interaction between labour law and criminal law is left untouched in a volume that exhaustively explores labour law’s encounter with private law, contract law, fiduciary law, EU law, international law, discrimination law, corporate and company law, public law, migration law, and human rights law.2 1 See, eg, Douglas Hay and Paul Craven (eds), Masters, Servants, and Magistrates in Britain and the Empire, 1562–​1955 (Chapel Hill 2004); Robert J Steinfeld, Coercion, Contract, and Free Labor in the Nineteenth Century (Cambridge UP 2001). 2 Alan Bogg, Cathryn Costello, ACL Davies, and Jeremias Prassl (eds), The Autonomy of Labour Law (Hart 2015). Alan Bogg and Mark Freedland, Criminality at Work In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/​oso/​9780198836995.003.0001

4  Criminality at Work This gap is all the more remarkable in view of the intensive engagement between these two bodies of law at the current time.3 It is worth reflecting briefly upon why there might be such an oversight in the existing literature, given the otherwise prodigious scholarly activity in the fields of labour law and criminal law and theory. Starting with labour law, it is appropriate to begin with two ‘classics’ of modern labour law scholarship in the post-​war period. Here we see that the labour lawyer’s scepticism about the criminal law is deeply embedded in the canon. We focus on the treatment of the criminal law as a technique of labour market regulation in Otto Kahn-​Freund’s Hamlyn Lectures, Labour and the Law,4 and Lord Wedderburn’s The Worker and the Law.5 While both scholars are understandably critical of the repressive function of the criminal law in enforcing labour discipline and suppressing trade union activity in the nineteenth century, they are also very sceptical of any positive role for the criminal law in supporting worker-​ protective norms in the modern era. In Labour and the Law, Kahn-​Freund’s discussion of the criminal law is located principally within c­ hapter 2 on ‘Sources of Regulation’. Quite naturally, for a labour law treatise, the entrée for Kahn-​Freund’s analysis is the penal Master and Servant legislation. Kahn-​ Freund characterized this legislation as providing auxiliary sanctions for enforcing contractual promises in the employment contract: workers were rarely defendants in civil claims for breach of contract brought by employers for ‘they are not worth powder and shot’.6 In regulatory terms, civil enforcement was not cost-​effective for employers. The criminal law functioned as a substitute enforcement mechanism to maintain labour discipline. The criminal law’s repressive function is understood from an instrumental enforcement perspective, with criminal penalties identified as an alternative way of securing compliance with contractual obligations. As worker-​protective norms were introduced through legislation, for example in relation to factory safety, the criminal law was also used as the principal enforcement mechanism here. Despite the worker-​protective provenance of the criminal law, Kahn-​Freund was very sceptical of the criminal law’s value as an enforcement tool. For example, the use of criminal penalties to enforce the employer’s duty to provide employees with written particulars under the Contracts of Employment Act 1963 attracted the withering assessment that it was a ‘clumsy penal sanction’.7 Furthermore, Kahn-​Freund expressed the hope that individual civil enforcement in the tribunals ‘will increasingly replace the circuitous and ineffective enforcement of social standards through criminal proceedings’.8 Effective and speedy enforcement needed to be channelled through individual civil proceedings through the tribunal system, superseding the criminal law as a ‘clumsy’, ‘circuitous’, and ‘ineffective’ regulatory system.

3 It is important to acknowledge the exceptional scholarship on the criminalization of migration statuses and modern slavery discourse, which is of obvious importance and relevance to the wider theoretical concerns of this volume. See, eg, Ana Aliverti, ‘The Wrongs of Unlawful Immigration’ (2017) 11 Criminal Law and Philosophy 375; Judy Fudge, ‘Illegal Working, Migrants and Labour Exploitation in the UK’ (2018) 28 Oxford Journal of Legal Studies 557. 4 Paul L Davies and Mark R Freedland (eds), Kahn-​Freund’s Labour and the Law (3rd edn, Stevens 1983) 5 Lord Wedderburn, The Worker and the Law (3rd edn, Penguin 1986). 6 Davies and Freedland (n 4) 35. 7 ibid 50. 8 ibid 51.

A Framework for Discussion  5 There is a similar tone of engagement in Lord Wedderburn’s The Worker and the Law. Thus, Wedderburn acknowledges the oppressive role of the criminal law under the Master and Servant legislation, and the use of this legislation to penalize trade unionists for leaving or neglecting their work.9 The third edition was published in 1986, and the rediscovery of the criminal law in policing the Miners’ Strike was also noted by Wedderburn.10 In this way, the criminal law’s repressive qualities were no longer a mere historical footnote. Like Kahn-​Freund, Wedderburn was also very sceptical about the worker-​protective role of the criminal law. For example, the use of penal sanctions to enforce the written statement in the Contracts of Employment Act 1963 was criticized in the following terms: ‘But who was going to prosecute? Nothing illustrated better the absence in Britain of any general “labour inspectorate” of the French kind. After two years this sanction was displaced, with an embarrassed shuffle, by a civil remedy.’11 There is also a nuanced discussion of the role of criminal prosecutions in the enforcement of Health and Safety laws.12 Wedderburn identifies the importance of public resourcing for enforcement agencies, and the role of discretion in pursuing prosecutions. The Inspectorate is described as adopting ‘an unduly gentle prosecution policy’.13 This was reflected in the rarity of prosecutions on indictment, and the low level of financial penalties secured from offenders in the magistrates’ courts.14 While some of this was attributable to the restriction of public funding for enforcement, Wedderburn offered an extremely sophisticated diagnosis of its deeper roots. In part, it reflected ‘the “conventionalization” of factory crimes, removing the social stigma’ of this kind of offending.15 We think this ‘conventionalization’ thesis identifies an issue of central importance at the borderland of criminal law and labour law, and it is the role of crimes mala prohibita in specifying and enforcing labour standards.16 We will return to the notion of crimes mala prohibita shortly, and to the debate about whether these are ‘real’ crimes. We should also observe that Wedderburn is sceptical about the potential of corporate criminal liability to secure safe and healthy working practices, advocating instead in favour of prosecution ‘against the human beings responsible’.17 Both Kahn-​Freund and Wedderburn adopt a ‘regulatory’ perspective on criminalization: the overriding focus is on outcomes and whether criminalization promotes compliance with labour standards. For example, Kahn-​Freund once observed that . . . most legislation operates not by the lesson it teaches or the sermon it preaches but by the promise of rewards or the threat of deprivations attached to its observance or breach, that is, by the expectation of its enforcement. Legal norms have their social effect through legal sanctions.18



9

Wedderburn (n 5) 141. ibid  91–​93. 11 ibid 139. 12 ibid 420–​21. 13 ibid 421. 14 ibid 420. 15 ibid. 16 For discussion, see Antony Duff, The Realm of the Criminal Law (OUP 2018) 20–​22. 17 Wedderburn (n 5) 421. 18 Otto Kahn-​Freund, Selected Writings (Stevens 1978) 128. 10

6  Criminality at Work This perspective tends towards a reductive and flattened account of the differences between legal norms, calibrated as a function of severity of sanction and likelihood of enforcement. Wedderburn’s approach is more nuanced. Thus, he is careful to distinguish different types of legal wrongdoing, noting that in criminal wrongs ‘the acts done are regarded as wrongs against society generally, and the sanction is punishment, usually a fine or imprisonment’.19 This is an important recognition that there is a moral dimension to the designation of certain wrongs as criminal, that they have a quality as public wrongs,20 and that the choice between different legal responses to public wrongs (eg crime, tort, administrative regulation) should not simply be based upon an assessment of whether enforcement outcomes will be improved.21 Of course, Wedderburn’s work is not specifically addressed to criminalization, nor the distinctive modalities of criminal law and the criminal justice process in responding to public wrongs. Yet his work is at least useful in identifying this as a potential area where the labour law perspective might be enriched through a dialogue with criminal theory. Furthermore, Wedderburn’s negative assessment of worker-​protective criminalization is far from categorical. For example, the evaluation of criminal law in The Worker and the Law is based upon a critical socio-​legal examination of the existing state of public enforcement. Yet if there was a properly funded labour inspectorate that pursued a vigorous enforcement strategy, and if punishment was sufficiently severe and targeted at human agents so as to prompt organizational changes, then a more positive evaluation of the criminal law might be expected to follow. By contrast, Kahn-​Freund’s reflections on the role of the criminal law seem more pessimistic. What is missing from both accounts is an exploration of the full range of complex regulatory interactions between criminal law and other forms of legal regulation. Criminal law might provide a substitute for civil enforcement. Or it might operate as an auxiliary mode of enforcement of labour standards, in parallel with individual rights of enforcement. Or the criminal law might be reserved for certain persistent or egregious breaches of labour standards. The current and diverse landscape of ‘criminality at work’ highlights how the traditional labour law canon was ill-​equipped to map these complex regulatory typologies. This lacuna in labour law scholarship is matched by a lacuna in the developing scholarship in criminal law and theory. In part, at least, we think that this is attributable to a prevailing idea of criminal regulation of labour dominated by the looming historical presence of penal Master and Servant legislation. According to Nicola Lacey, this legislation was ‘an early example of a hybrid civil/​administrative/​criminal genre’.22 Despite the importance of these statutes in enforcing labour discipline, sometimes through harsh penalties such as whipping and imprisonment with hard labour, there was perhaps a tendency to regard these offences as distinct from ‘real’ crimes at the core of the criminal law.23 The one-​sided imposition of penal sanctions on workmen but not their masters for breaches of the employment contract is such a flagrant departure from basic legal equality that criminal lawyers today are perhaps inclined to treat it as an embarrassing episode in the early history of industrial capitalism. Given its morally aberrant quality, it may be disregarded as an area of enquiry that has little relevance to the questions animating contemporary criminal law scholarship.

19

Wedderburn (n 5) 3. Duff (n 16) ch 7. 21 This is one of the central preoccupations of Duff ’s work, ibid. 22 Nicola Lacey, In Search of Criminal Responsibility: Ideas, Interests, and Institutions (OUP 2016) 43. 23 ibid 44. 20

A Framework for Discussion  7 This organizing idea of ‘real’ criminal law is also relevant to the expansion of ‘regulatory’ crimes concerned with factory conditions and industrial health and safety. As Jeremy Horder has argued, over the course of the nineteenth century there was a significant expansion of the administrative state in different spheres of social and economic life, and this was often reflected in criminalization practices conducted by public inspectorates.24 These ‘regulatory’ crimes were often marginalized from the canon of ‘real’ criminal law, which was treated as constituted by wrongs mala in se.25 According to Horder, the theoretical position of regulatory crime, which may involve ‘strict’ liability imposed on corporate agents, continues to be normatively contested. This reflects wider anxieties about ‘over-​criminalization’ and conflicts between ‘regulatory’ crime and liberal values of autonomy.26 Since many modern labour market offences occupy this contested terrain, viewed perhaps as regulatory infractions that do not really ‘belong’ in an appropriately demarcated criminal law, they have often been marginalized in the leading treatises on general criminal law. Our volume therefore represents an attempt to bring these two disciplines into dialogue with each other, at a time when that dialogue is urgently needed. It is useful to remind ourselves what our initial hypotheses were. They represented what most labour lawyers might have been likely to say if they had chosen to reflect on the criminal law as a form of labour market regulation. In the interests of full disclosure, we confess that these hypotheses were also shaped by a rather negative view of the criminal law’s likely impact on labour market outcomes, especially for the most precarious workers. The following propositions represented our main starting hypotheses for the project: (i) whereas criminal law had over a long historical period been in retreat from the sphere of employment relations, it was now resurging into labour market regulation, especially in recent statutory interventions such as the MSA and IA; (ii) this resurgence was part of a wider phenomenon of ‘over-​criminalization’ driven by the politicization of criminal justice practices;27 (iii) that much of this ‘over-​criminalization’ was of dubious legitimacy either in targeting non-​wrongful statuses (such as migration statuses) or in using preventive measures to criminalize conduct on the basis of risk of harm (eg licensing regimes for labour market intermediaries or preventive ‘labour market enforcement orders’ under the IA); (iv) that criminalization was increasingly driven by ‘thick’ moral judgements about vice and bad character of defendants, especially in the context of modern slavery, which has tended to obscure wider appreciation of the structural determinants of precariousness and vulnerability to abuse; (v) ‘worker protective’ criminalization, attaching criminal penalties to certain labour law violations, appeared to be a new and paradoxical feature of the neoliberal governance of deregulated labour markets, and this paradox required further investigation and explanation; (vi) certain types of labour wrong, such as blacklisting of trade unionists or the coercive trafficking, appear to constitute serious public wrongs warranting justified criminalization, so how should we identify the category of ‘labour wrongs as public wrongs’ as a basis for reasonable legislative choices to criminalize labour wrongs? And on what basis

24 Jeremy Horder, ‘Bureaucratic “Criminal” Law: Too Much of a Bad Thing?’ in RA Duff, Lindsay Farmer, SE Marshall, Massimo Renzo, and Victor Tadros (eds), Criminalization: The Political Morality of the Criminal Law (OUP 2014) 101. 25 ibid 103. 26 ibid 130–​31. 27 The literature on ‘overcriminalization’ in general criminal law is very significant. See, eg, Douglas Husak, Overcriminalization: The Limits of the Criminal Law (OUP 2008).

8  Criminality at Work should we opt for criminal law rather than private law, statutory rights enforced in the civil courts and tribunals, or professional regulation? Our initial task in designing our project was therefore to survey the whole field of legal governance of labour and employment relations through criminal law intervention. We were deliberately inclusive in this search, extending it beyond the well-​recognized territories of regulation of industrial action and enforcement of health and safety norms, and even beyond the new realms of modern slavery and illegal immigration. We have also included in our study the use of criminal law to enforce the labour standards embodied in the National Minimum Wage legislation and the Working Time Regulations, the use of the criminal law to regulate specific occupations and forms of work, and to support the licensing regimes applying to gangmasters and to employment agencies, and the regulatory activity of the Director of Labour Market Enforcement under Part I of the IA. We also sought contributions on the criminalization of harassment and bullying in the workplace, ‘wage theft’, and human rights violations. On the face of it, this deliberately inclusive approach to the scope of criminality at work might have seemed to produce an unsatisfactory outcome. It could be regarded as a miscellany of disparate legal curiosities which was not going to give rise to an important and interesting study of ‘criminality at work’. In this regard, is this not like a study of ‘criminality on the railways’ or ‘criminality as it relates to swimming pools’?28 The results of the study support a more positive assessment of the intellectual potential of ‘criminality at work’ as an interesting and important intersection. The catalogue we have assembled is sufficiently large and important as to suggest that the impulse towards criminalization in the legal governance of work relations has become strong and pervasive. In the course of this study, we have identified certain thematic continuities across these diverse contexts of work criminalization. Furthermore, it is a form of governance that is not restricted to the UK, as our comparative chapters indicate. ‘Criminality at work’ has become essential to an understanding of the general trajectory and dynamics of labour law and the governance of work. In turn, the sphere of work relations has become one of the key locations for understanding the modern development of criminal law. The first step in establishing a dialogue between labour law and criminal law is to interrogate the distinction between crimes mala in se and crimes mala prohibita. The idea of mala in se relates to crimes that are regarded as tracking pre-​legal wrongs such as murder, rape, and interpersonal violence. The contrasting notion of mala prohibita relates to crimes where the relevant conduct is not perceived as wrongful independently of its legal regulation.29 Examples might include criminal liability for undertaking certain employing activities without having obtained a relevant licence, as under the Gangmasters and Labour Abuse Authority regulatory framework. We have already suggested that this division of offences may have contributed to the obscuring of ‘criminality at work’ as a site of regulatory activity. This is because the crimes in ‘criminality at work’ have tended to be seen as mala prohibita offences. Often, neither the 28 The reference to ‘swimming pool law’ is Brian Langille’s: see Brian Langille, ‘Labour Law’s Back Pages’ in Guy Davidov and Brian Langille (eds), Boundaries and Frontiers of Labour Law (Hart Publishing 2006) 15–​16. The example is used to explore why there might be better reason to assemble legal norms in certain contexts (medical law, labour law) than others (swimming pool law, hairdressing law). ‘Criminality at work’ raises the problem of disciplinary demarcation afresh. 29 Duff (n 16) 20–​21.

A Framework for Discussion  9 criminal lawyers nor the labour lawyers regarded these as ‘real’ crimes involving stigma, public censure, and criminal punishment. The designation was fraught with the implication that crimes mala in se were real crimes which generate authentic and enduring law, whereas mala prohibita were wrongs more ephemerally criminalized by that part of the legal system which governs by fiat or decree. It will come as no surprise to learn that in the Anglo-​American legal tradition, mala in se are often regarded as originating in the timeless common law, while mala prohibita are treated as the product of primary or secondary legislation enacted in response to shifting political priorities. In the historical development of the criminal law, significant consequences were also thought to attach to the differentiation between mala in se and mala prohibita. For crimes mala in se, it was essential to recognize and give effect to the requirement of mens rea, a guilty state of mind, as a pre-​condition of valid conviction for the offence in question. On the other hand, there was a greater readiness to view mala prohibita offences as the subject of strict liability. Furthermore, mala in se criminalization is a fundamentally personalized one. The wrongs which it identifies and acts upon are essentially personal and inter-​personal: they are the wrongful conduct of human beings. Mala prohibita criminalization is by contrast less personalized. Offences may be articulated which are more institutional and structural in their nature. Such offences are more likely to be based on ‘corporate’ liability than on establishing the criminal responsibility of a culpable human being. Nevertheless, we think that this distinction has analytical and normative value, provided that certain important points are emphasized. First, not all ‘regulatory’ crime in the labour field is properly described as mala prohibita. For example, the offence in the Health and Safety at Work Act 1974, whereby it is an offence to breach the duty ‘to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees’, is a crime malum in se.30 That is because the statute is simply giving specificity to a duty that the employer would otherwise have apart from the legislative determination, to take reasonable care of the health and welfare of its employees. Second, many criminal wrongs are strongly mala in se, such as the offence of requiring ‘another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour’.31 The offences that are now described as modern slavery crimes partake very strongly of this mala in se character, and they represent clear instances of very serious public wrongs against the civic life of the polity. Third, the distinction between mala in se and mala prohibita is not conceptually sharp, and it is better treated as a matter of degree.32 For example, take the offence in section 1(1)(b) of the MSA. What constitutes ‘forced or compulsory labour’ will sometimes be a matter of reasonable political disagreement, particularly at its edges. Does this extend to situations where an employer has withheld wages from workers, like a form of modern-​day peonage? Or the imposition of lengthy notice periods in conjunction with wide non-​compete clauses in the contract? The boundaries of ‘free’ labour will require further legal determination, usually through statute, even for a crime such as this that is strongly malum in se. 30 Health and Safety at Work Act 1974, ss 1(1) and 33. Duff gives this as an example as a wrong malum in se, because ‘that wrong is not a creation of the law, in the way that mala prohibita are, although it is formally constructed by the law’. Duff (n 16) 314. 31 Modern Slavery Act 2015, s 1(1)(b). 32 Duff (n 16) 321.

10  Criminality at Work Finally, even those crimes that are situated at the mala prohibita end of the spectrum, as is the case with many of those in the domain of work relations, may involve the commission of serious wrongs that warrant criminalization. Anthony Duff has argued that mala prohibita criminalization is legitimate where the system of regulation is justified by reference to the polity’s common good (eg minimize harms that are caused by otherwise valuable activities), and it would constitute a public wrong to fail to comply with the requirements specified in the regulatory scheme.33 Many of the criminal offences that support the ‘floor of rights’ in employment law could be justified in such terms. For example, the right to be paid the National Minimum Wage is implemented through a complex statutory regime of primary legislation and secondary instruments. The payment of a living wage may be understood as contributing to the common good of a labour market providing valuable opportunities for decent work. Section 31(2) of the National Minimum Wage Act 1998 makes it an offence where a person fails to ‘keep or preserve any record in accordance with regulations under section 9’. Duff ’s work on mala prohibita provides an account of how such an offence might be justified. Where such offences are ‘narrowly tailored towards a significant aspect of the common good, and impose only reasonable burdens on those whose conduct they constrain’,34 such crimes may be justified as appropriate legal responses to public wrongs. Given the contribution of decent wages to securing the common good of the polity, and the critical role of legislation in implementing the protective scheme, the offences in section 31 could be justified as important and legitimate instances of mala prohibita criminalization. This discussion highlights the scope for a constructive dialogue between the disciplines of labour law and criminal law and theory. Broadly speaking, we envisage this dialogue operating across three dimensions. The first dimension relates to the identification of public wrongs that are suitable candidates for a criminal law response. Recent work in criminal law theory has identified the argumentative parameters for the deliberative identification of public wrongs in the democratic process. For example, Duff has argued that wrongs warranting criminalization must engage . . . some aspect of the polity’s civil order, in which the polity therefore has in principle the standing to intervene. We must argue that such conduct is, when seen in the context of the polity’s civil order, wrongful, which is also to argue that we have reason to call those who engage in it to formal, public, censorial (and potentially punitive) account.35

In the recent UNISON judgment on tribunal fees, Lord Reed observed: Relationships between employers and employees are generally characterised by an imbalance of economic power. Recognising the vulnerability of employees to exploitation, discrimination, and other undesirable practices, and the social problems which can result, Parliament has long intervened in those relationships so as to confer statutory rights on employees, rather than leaving their rights to be determined by freedom of contract.36



33

ibid 313–​22. ibid 320. 35 ibid 333. 36 R (UNISON) v Lord Chancellor [2017] UKSC 51, [2017] 3 WLR 409 [6]‌. 34

A Framework for Discussion  11 In this way, labour law is composed of a structure of statutory rights identified by the polity as elements of a common good of decent work for all, and which might constitute a category of criminalizable public wrongs. The second dimension concerns the regulatory differences between criminal law and labour law in addressing public wrongs. The modalities of the criminal justice process are directed at the determination of innocence or guilt, the attribution of blame and censure, and the imposition of punishment. In its focus on the culpability of individual agents, this might obscure the cultural, economic, and regulatory vectors that create the conditions for vulnerability to abusive treatment, exploitation, and so forth. By contrast, labour law has been more attuned to these structural determinants, particularly in the discourse around ‘precarious work’ and new forms of modern slavery. For example, labour lawyers have been devoting increasing care and sophistication to conceptualize the notion of the employer in an institutional and structural way. This could provide a helpful perspective on the construction of criminal liability for mala prohibita offences, resisting the countervailing tendencies of a criminal law perspective in personalizing its norms by focusing on the blameworthiness of individual actors. The third dimension is the normative focus in labour law on the regulatory problems of inequality, vulnerability, and precarity in personal work relations. Most obviously, this provides a critical perspective on the criminalization of labour discipline, historically through Master and Servant legislation, but manifesting itself today in disciplinary criminal intervention in the contexts of care work and medical professionals. It also supports a critical perspective on the ways in which the criminal law both creates a new ‘precariat’ and is used to police that ‘precariat’ through its criminal justice institutions.37 For example, the criminalizing of irregular migrant workers and their employers is widely perceived to be creating a swelling tide of precarity, insecurity, and relative deprivation. It creates a criminalized status, exposing workers in situations of extreme vulnerability to penal measures. It also creates a deregulatory cascade by exposing the fundamental rights claims of these workers to the illegality doctrine.38 Where their civil claims are barred for illegality due to criminal liability, their vulnerability is compounded. The precarity-​generating effects of the criminal law are often highly racialized, and there is a powerful body of scholarship on carceral labour market governance in the US context.39 In talking of this dialogue between labour law and criminal law, we are very mindful of the fact that there is not a single genre of criminal law scholarship (nor, it must be emphasized, is there a single genre of labour law scholarship). As is evident from this introductory chapter, we have been influenced greatly by recent work on criminalization and the normative dimensions of the criminalization enquiry, particularly the work of Antony Duff on public wrongs and the ‘realm of the criminal law’. We also acknowledge the influence of recent work on criminalization practices from a more historical and sociologically informed perspective. In particular, we are indebted to the work of Markus Dubber,40 Lindsay Farmer,41 and Nicola Lacey. For example, in Nicola Lacey’s article of 2009 on ‘Historicising 37 Loic Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (Duke UP 2009). 38 Hounga v Allen [2014] UKSC 47, [2014] 1 WLR 2889. 39 See Noah Zatz, c­ hapter 25 of this volume. 40 Markus Dirk Dubber, The Police Power: Patriarchy and the Foundations of American Government (Columbia UP 2005). 41 Lindsay Farmer, Making the Modern Criminal Law: Criminalization and Civil Order (OUP 2016).

12  Criminality at Work Criminalisation’ she emphasizes the historical and political contingency of criminalization practices.42 These practices have evolved and changed over time, in response to shifting configurations of institutions, interests, and intellectual traditions.43 Lindsay Farmer has provided an interpretive account of changing criminalization practices using the idea of ‘civil order’, the contours of which have changed over time. And Markus Dubber has drawn our attention to the idea of ‘police’ as a distinctive form of governance practice, based upon discretionary state intervention, which has been particularly prominent as a form of labour market intervention. These scholarly interventions have been very helpful to us in identifying underlying patterns in contemporary criminalization practices, establishing links between seemingly unconnected phenomena in criminal justice practices. Moreover, we regard these normative and sociological perspectives as complementary. For example, the populist turn in contemporary politics has led populist governments to single out individuals or collectivities as alien to a unitary moral ethos and therefore amenable to criminalization.44 These tendencies have been especially pronounced in relation to certain statuses (eg migration status), and the discretionary power of criminal justice agencies has borne down very heavily on particular racial groups. The sociological perspective allows us to understand the ideational and material factors that are shaping the contemporary politics of criminalization. The normative perspective provides a critical yardstick to identify the ways in which public deliberation has become corrupted and prone to error in its identification of public wrongs amenable to criminalization. Maintaining this methodological plurality also enables us to understand some puzzling features of contemporary discourse around criminalization. For example, in the area of modern slavery, the debates have often been highly polarized, and this polarization has mapped onto camps who are ‘for’ or ‘against’ criminalization. The ‘for’ camp would emphasize that forms of modern slavery constitute serious public wrongs that attack the basic civic standing of its victims in a liberal polity. The ‘against’ camp object to the negative consequences of criminalization for the victims of modern slavery, who are often subjected to coercive forms of immigration control. They also point to the symbolic ramifications of criminalizing the most serious forms of exploitation, which tends to confer a pale legitimacy on other forms of less serious interpersonal exploitation in personal work relations. It would be better, we suggest, to understand this debate as to a certain extent being conducted at cross-​purposes. From a normative perspective, modern slavery is indisputably a very serious form of public wrong. From a sociological perspective, criminalization practices have indisputably had negative consequences in exacerbating rather than ameliorating precarity for the most vulnerable. Furthermore, the criminalization of modern slavery reflects more general political tendencies to penalize vice and bad character (of ‘modern slavers’) and to ignore the role of politics and regulation in creating the vulnerable statuses of its victims in the first place.45 Methodological pluralism enables us to keep both perspectives in view, and

42 Nicola Lacey, ‘Historicising Criminalisation:  Conceptual and Empirical Issues’ (2009) 72 Modern Law Review 936. 43 Lacey, In Search of Criminal Responsibility (n 22). 44 Alan Bogg and Mark Freedland, ‘Labour Law in the Age of Populism:  Towards Sustainable Democratic Engagement’ in Julia Lopez Lopez (ed), Collective Bargaining and Collective Action—​ Labour Agency and Governance in the 21st Century? (Hart Publishing 2019) 30–​32. 45 For sophisticated discussion, see Julia O’ Connell Davidson, ‘ “Things” Are Not What They Seem: On Persons, Things, Slaves, and the New Abolitionist Movement’ (2016) 69 Current Legal Problems 227.

A Framework for Discussion  13 both perspectives have much to offer to public deliberation about the role of criminalization in addressing modern slavery wrongs. The chapters are divided into four thematic parts and a fifth comparative one. The first part, ‘Mapping the Terrain’, provides an overview of the possible structure of a social democratic theory of criminalization, and it maps the current pattern of criminalization practices in UK labour law. The second part, ‘Labour Wrongs as Public Wrongs’, explores the possibilities and limits of public wrongs in the domain of labour relations. It starts from the position that many violations of fundamental labour rights constitute serious public wrongs. As such, these wrongs may warrant a criminal law response. The chapters explore a range of potential public wrongs in labour law, many of which are central to current debates about criminalization in labour relations: wage theft, disclosure obligations, exploitation, workplace harassment, human rights violations, and the public regulation of sex work. In so doing, the chapters provide some determinate shape and content to public wrongs in the general literature on criminalization. Many of the chapters also explore the possibilities for other kinds of public response to these wrongs, such as through private law, human rights law, or professional regulation. The third part, ‘The Contemporary Shape of Criminalization Practices:  Risk, Status, and Character in the Neoliberal Criminal Law’, uses Lacey’s work on modern criminalization practices to understand the contemporary politics of criminalization. The power of Lacey’s framework is that it identifies important thematic continuities that underlie seemingly disparate phenomena: licensing strategies to manage the risks of labour abuse, hybrid civil-​criminal preventive orders, the regulation of medical professionals and care workers, the rise of character and vice as a basis for culpability in modern slavery, the criminalization of migrant workers, and the repressive use of the criminal law to restrict and pacify radical labour activism. The fourth part, ‘Criminalization and Enforcement’, returns to the traditional focus of labour law which is upon whether criminal sanctions contribute to effective enforcement. The chapters explore workplace health and safety and the enforcement of minimum wage entitlements in the ‘fissured workplace’.46 The final part, ‘Comparative Perspectives on Criminalization’, examines the criminalization debates from USA, Canadian, and Australian perspectives. This provides a baseline for assessing whether there are common patterns to criminalization practices. And to the extent that there are distinctive trajectories, to understand the dynamics of divergence. In ­chapter 2, ‘Workplace Welfare and State Coercion’, Bob Sullivan explores the possibilities and the limits of a social democratic criminal law. As a leading criminal law theorist, developing an account of criminal law from a social democratic perspective, Sullivan in this chapter provides an important corrective to the default position in social democratic labour law, which is to regard the criminal law with scepticism. He sets out a range of possibilities for the criminal law to contribute to securing social democratic goals, ensuring a sufficient degree of social and economic welfare for all citizens in the political community. This social democratic perspective also reveals some important differences from the dominant liberal paradigm in Anglo-​American criminal theory. Sullivan’s chapter elucidates an important role for the criminal law in the social democratic state. The first is the positive and important role of regulatory criminalization, based



46

David Weil, The Fissured Workplace (Harvard UP 2014).

14  Criminality at Work upon strict liability, particularly in the spheres of minimum wage enforcement and workplace health and safety. Health and safety might also be protected through a corporate manslaughter offence, although Sullivan notes the practical problems with the current offence in English criminal law. The second is the criminalization of modern slavery offences, although Sullivan regrets the current linkages with immigration enforcement and the wider context of state-​sanctioned precarity for irregular migrant workers. The third is the potential role for criminal law to prohibit certain forms of occupation that create unacceptable risks to the health and safety of the participants, such as boxing or sex work. The social democratic state must tread a careful line here, given the importance of individual freedom in liberal forms of social democratic theory. Overall, this chapter provides an important counterpoint to social democratic labour law, and it provides a compelling vision of what a legitimate social democratic criminal law might look like. In ­chapter  3, ‘Using Criminal Law to Enforce Statutory Employment Rights’, David Cabrelli examines the current terrain of criminal law as a technique of labour market regulation. His chapter identifies a range of possible interactions between the criminal law and civil law in the legal enforcement of labour standards. Sometimes fundamental labour rights, such as the right not to be unfairly dismissed or the right not to be discriminated against, are protected exclusively through a ‘private’ enforcement model at the initiative of the individual right-​holder. Sometimes there will be exclusive enforcement through the criminal law with no private right of civil action, as under the Health and Safety at Work Act 1974. Finally, there may be mixed enforcement regimes where there is a combination of criminal and civil measures linked to specific statutory rights, as with the enforcement of the National Minimum Wage Act 1998. It is possible, of course, that this landscape is simply a chaotic result of a chaotic politics, where legislators respond to short-​term political pressures from time to time without reference to a framework of principle.47 However, Cabrelli’s chapter explores whether this pattern might be intelligible in the light of the notion of public wrongs, a normative theory of criminalization that has been developed most notably by Antony Duff and SE Marshall. This idea of public wrongs has an obvious resonance in labour law, given that the fundamental rights protected in labour law reflect a view of work relations as a matter of shared public concern. While Cabrelli recognizes the potentially capacious category of public wrongs, his detailed exploration of different statutory employment rights provides some important texture to the enquiry. As Duff himself acknowledges, there are many ways in which legal systems can respond in a public way to public wrongs–​–​the criminal law is one response, but there are others such as the law of torts.48 The law of torts is public too. Cabrelli’s methodology involves a particularized analysis of whether certain public wrongs encompassed by statutory employment rights should be criminalized, all things considered. Sometimes there will be value in protecting the autonomy of the right-​holder to retain control over the pursuit of her wrong in a public court, using private law remedies. Where criminal law is utilized, it would be best to do so in an additive rather than a substitutive fashion. In the end, this will depend upon a contextual assessment on a right-​by-​right basis. Cabrelli’s chapter exemplifies how a conversation between labour law and criminal theory can be mutually beneficial to both disciplines.

47 48

Andrew Ashworth, ‘Is the Criminal law a Lost Cause?’ (2000) 116 Law Quarterly Review 225. Duff (n 16) 286–​88.

A Framework for Discussion  15 In ­chapter 4, ‘Where Criminal Law Meets Labour Law: The Effectiveness of Criminal Sanctions to Enforce Labour Rights’, Catherine Barnard and Sarah Fraser Butlin provide a detailed examination of the politics of criminalization in four key areas: the enforcement of working time rights by the Health and Safety Executive; the enforcement of National Minimum Wage entitlements by HMRC; the enforcement role of the Employment Agencies Standards Inspectorate; and the licensing regime administered by the Gangmasters and Labour Abuse Authority. As the authors note, the politics of criminalization is being shaped by public anxieties around the under-​or non-​enforcement of labour standards, and so the authors examine these diverse regimes through an enforcement lens. The Gangmasters and Labour Abuse Authority regime, based in the Gangmasters (Licensing) Act 2004, provides for a system of licensing for ‘gangmasters’ in specific sectors of economic activity. It also provides for a range of serious criminal offences for non-​ compliance with the licensing regime. It is supported by further provisions empowering enforcement action, with obstruction of an enforcement officer constituting a criminal ­offence under the legislation. The licensing regime is also supported by hybrid civil-​criminal ‘Labour Market Enforcement Undertakings’ and ‘Labour Market Enforcement Orders’, breach of which is punishable as a criminal offence. By contrast, the Employment Agency Standards Inspectorate regime is no longer based on a licensing model. Instead, the statutory framework specifies that a failure of employment agencies to comply with the certain specified standards (eg withholding wages from workers) itself constitutes a criminal o ­ ffence. There are also accompanying criminal offences dealing with, for example, the creation of false records. The National Minimum Wage framework provides for a composite mechanism of civil and criminal enforcement. The criminal offences extend beyond the refusal or wilful neglect to pay the minimum wage, to include false record keeping and obstruction of enforcement officers. Finally, the various working time limits in the Working Time Regulations are enforced through criminal offences, in contrast with the dual enforcement regime in the National Minimum Wage framework. These different models display a rich variety, sometimes requiring mens rea and sometimes based on strict liability. They also range from situations where the criminal law is additional to existing civil rights of enforcement (as under the National Minimum Wage framework) to situations where the criminal law is envisaged as an exclusive enforcement mechanism (as with the Working Time Regulations). Barnard and Fraser Butlin examine the political choices that underlie these different legislative models. Sometimes, as with trade union blacklisting, the government eschews a criminalization approach despite the identification of very serious public wrongs perpetrated against identifiable victims. The authors suggest that criminalization of labour breaches has often occurred within the context of a wider deregulatory agenda. Although this is puzzling–​–​for a government that way inclined, would it not be preferable simply to deregulate rather than to go through the charade of criminalization?–​–​the criminalization of breaches is a way of signalling that there is governmental concern with labour abuses. Cynically, this could provide something of an alibi to governments who can maintain the appearance of worker protection without the corresponding substance. In truth, the public discourse around criminalization has been dominated by enforcement, and the need to promote compliance with labour standards. In an era of austerity and constrained public funding for agencies charged with compliance responsibilities, Barnard and Fraser Butlin note that public agencies have not tended to pursue prosecutions except

16  Criminality at Work in the most serious of cases. In these situations, the loss of an individual normative power to seek a private remedy in the ordinary courts is particularly disempowering. This provides an important argument in favour of retaining private rights to seek remedies for rights violations, so that criminal law operates as an auxiliary prop to remedies pursued in the civil legal process. The authors also note that the Director of Labour Market Enforcement is developing a sophisticated methodology on enforcement, identifying an appropriate role for the criminal law within that wider enforcement strategy. We think that this chapter provides some modest support for a subsidiary role for the criminal law in supporting labour rights, provided that the main enforcement occurs through civil reparative mechanisms and criminal enforcement agencies are given appropriate resources. In the second part of the book, ‘Labour Wrongs as Public Wrongs’, the chapters explore the kinds of wrongs that might be appropriate candidates for criminalization. In this respect, we have found the concept of public wrongs very helpful in framing the current debates on criminalization in the labour field. In his recent book, The Realm of the Criminal Law, Duff has defended the following position: To justify a claim that we should criminalize a type of conduct, or that it is legitimately and appropriately criminalized, we must argue that it is a public rather than a private matter: that it is a matter that implicates some aspect of the polity’s civil order, in which the polity therefore has in principle the standing to intervene.49

Even then, having identified that the wrong is public in this sense of engaging the polity’s civil order, there are other ways in which the polity might respond: do nothing; restorative justice; non-​governmental codes; non-​criminal regulation; private law; preventive measures.50 Given those possible alternatives, the legislator must have good reason to respond through the modalities of the criminal law, which involves a specific kind of public response: one that involves an authoritative determination of guilt, the public calling of an offender to account, public censuring of the wrongdoing, and the imposition of punishment.51 This does not provide a scientific formula through which decisions on criminalization can be cranked out mechanistically. Its application requires judgement and political deliberation. These deliberations ‘will inevitably be messier’ than under a simple master principle . . . since we will need to appeal to a range of different values in identifying a range of public wrongs—​values unified only by the fact that they all play a part in defining the polity’s civil order; and we will . . . need to appeal to a range of considerations in deciding whether we have reason to criminalize a type of public wrong rather than responding in some other way (or providing no formal response at all).52

49 ibid 333. 50 ibid 280–​92. 51 ibid 50. 52 ibid 298. We suggest that ‘rather than’ may not be a helpful way of posing the question, since often criminalization will be a public legal response alongside rather than instead of others (such as private law or statutory employment rights).

A Framework for Discussion  17 The chapters in the second part explore some of these messy first-​order issues in specific contexts of criminalization. In ­ chapter  5, ‘Exploitation at Work:  Beyond a “Criminalization” or “Regulatory Alternatives” Dichotomy’, Jennifer Collins reflects upon the treatment of the wrong of exploitation in criminal law and criminal theory. In many ways, exploitation is the core wrong of personal work relations.53 It is also a wrong that defies reduction into a simple definition, and it manifests across a spectrum from the very egregious to the relatively innocuous. At one extreme, it is meaningful to describe the trafficked migrant engaged in forced labour as ‘exploited’. It may also be true of the well-​remunerated law fellow whose good will is used by the unscrupulous Head of House to induce unpaid supererogation in College activities. At its core, according to Collins, it involves interpersonal predation by a stronger party on a weaker party, the abuse of the weaker party’s vulnerability, in order to make a gain at the weaker party’s expense. The offences in the MSA may be understood as targeting the most serious forms of exploitative wrongdoing through criminalization. Collins argues that the debates around criminalization have sometimes been hobbled by a tendency for protagonists to line up ‘for’ or ‘against’ criminalization. She acknowledges the political validity of many of the criminal-​law-​sceptics’ concerns. Specifically, the isolation of egregious interpersonal exploitation may have the effect of legitimizing less extreme forms of exploitation. Moreover, the focus on interpersonal exploitation obscures the structural determinants of vulnerability such as migration laws, visa regimes, labour standards, and trade union density. There has also been a close coupling of modern slavery discourse and immigration control—​an undeniable fact of contemporary political rhetoric and legislative structures, even if that linkage is only a contingent one in normative terms. She suggests that this binary framing of the criminalization enquiry is too limiting. Instead, the role of the criminal law must be examined from a wider regulatory perspective, assessing its real-​world interaction with other forms of non-​criminal regulation and its impact on the most vulnerable workers. She proposes a theoretical structure within which that multidimensional enquiry can be undertaken. According to Collins, regulatory criminalization will have an important role in supporting the effective enforcement of labour standards, alongside the criminalization of the most extreme forms of exploitative abuse. Ultimately, of course, the most effective regulatory mechanisms for eliminating exploitation will involve the eradication of precarity and insecure work. In this respect, we would expect the standard goals and regulatory techniques of labour law to take the lead role, with the criminal law functioning as a vital but subsidiary intervention. In the next two chapters, the authors explore the potential role for the criminal law in enforcing certain contractual obligations in the employment contract. In c­ hapter  6, ‘The Duty of Loyalty and the Scope of the Law of Fraud’, Hugh Collins explores the role of criminal law as an additional sanction against the breach of existing civil obligations in the contract. As he notes, the Master and Servant legislation was justified on this basis. Masters often complained that the civil remedy of compensatory damages was unlikely to deter insubordination and the wilful neglect of work, so that the attachment of penal sanctions to contractual breaches was necessary to secure contractual bargains. In the modern context, Collins examines the ways in which property offences in criminal law might be used to deter contractual 53 Virginia Mantouvalou, ‘Legal Construction of Structures of Exploitation’ in Hugh Collins, Gillian Lester, and Virginia Mantouvalou (eds), Philosophical Foundations of Labour Law (OUP 2018) 188.

18  Criminality at Work breaches. He focuses on the offence of fraud in the Fraud Act 2006, and in particular the role of criminalization where there has been a failure to disclose information. To this end, he examines the current scope of disclosure obligations under the employment contract, focusing on the implied duties of trust and confidence and of loyalty. There is considerable uncertainty about the scope and content of disclosure obligations, which raises serious rule of law concerns where breaches of these contractual obligations are, in effect, criminalized as instances of fraud. There is also a more general reluctance in English criminal law to criminalize omissions rather than positive acts, and a failure to disclose is an omission. In the end, Collins’ careful examination of the fraud offence in employment contract situations counsels caution. There is a real risk of over-​extension of criminal sanctions in enforcing ‘relational’ contractual obligations in this area. Criminalization is likely to be a disproportionate response, especially where disclosure obligations can be supported through equitable remedies such as an obligation to account for secret profits as in Attorney General v Blake.54 As Collins is astute to recognize, the heart of the matter lies in the echoes of Master and Servant law in the contemporary landscape of fraud as a mechanism for enforcing contractual duties of fidelity and loyalty. This evokes an era where employment obligations were treated as quasi-​familial incidents of status. In this respect, we might say that the wrong of non-​disclosure in a relational contract ought not to be treated as a public wrong but as a private matter between the parties, especially where the existing remedies in private law are sufficient to secure corrective justice between the parties. There are extra reasons to be cautious about criminalization where the (public) criminal law is bolstering the (private) disciplinary powers of employing entities. In ­chapter 7, ‘Wage Theft as a Legal Concept’, Sarah Green analyses the fraud offence from the different vantage point of ‘wage theft’. The social concept of a ‘wage theft’ has significant traction in public discourse at the current time. It encompasses a wide range of dishonest or ‘sharp’ practices: false labelling of individuals as ‘self-​employed’ and hence outside the scope of the National Minimum Wage framework, failure to pay holiday pay, unlawful deductions, and an absence of transparency in relation to wage entitlements. It is linked to wider public concerns about the effective enforcement of the statutory minimum wage regime. Green’s chapter then examines whether the social concept of ‘wage theft’ maps onto the legal definition of ‘theft’ in section 1 of the Theft Act 1968. She argues that the legal label of theft is ill-​suited to the constellation of practices associated with the social label of ‘wage theft’. This is because of the disjunction between the proprietary status of ‘wages’ and the elements of the offence of theft in English law. In short, unpaid wages will often not count as ‘property belonging to another’ at the time of the dishonest appropriation by the employer, and hence there is a difficulty with identifying a complete and coincident mens rea and actus reus. That is because unpaid wages will ordinarily give rise to an action for damages in contract, rather than giving rise to a debt claim (which is proprietary). Nor is this a merely technical difficulty. Green argues that the offence of theft is also morally unsuited to tackling wage theft, because it does not label the wrong of ‘wage theft’ accurately–​–​at its core, theft is concerned with the dishonest assumption of another’s property rights. Green further argues that it would be more appropriate to tackle ‘wage theft’ through the offence of fraud under the Fraud Act 2006, specifically ‘fraud by abuse of position’.55 This

54 55

[2008] EWCA Crim 2304, [2008] 10 WLUK 181. Fraud Act 2006, s 4.

A Framework for Discussion  19 would be a more appropriate label for the wrong. It would be better, perhaps, in the interests of ‘moral clarity’ through ‘fair labelling’, for criminalization to be reframed around the rallying call of ‘wage fraud’ rather than ‘wage theft’.56 There are interesting parallels and contrasts with Hugh Collins’ treatment of fraud as a basis for augmenting the employee’s duties under the employment contract. The obligations related to wages are of a more obviously public nature, reflected in the elaborate protective statutory regime that has developed around the wage, its level, and its payment. This chapter also identifies important overlaps between regulatory criminalization (eg using the criminal law to support the enforcement of statutory norms) and crimes mala in se (tackling under-​payment or non-​payment through fraud). It is moreover a testament to the importance of general principles of criminal law, such as the principle of fair labelling, to more particular enquiries into criminalization in the labour field. In c­hapter  8, ‘The Criminalization of Workplace Harassment and Abuse:  An Over-​ personalized Wrong?’, Alan Bogg and Mark Freedland consider the legal treatment of workplace harassment and abuse. In the wake of social and political activism focused on sexual harassment, the legal regulation of harassment has been under intensive scrutiny. In the English context, harassment is already regulated by an extensive body of legal norms. The Protection from Harassment Act 1997 is an interesting example where legislation provides for parallel tortious and criminal liability for the same wrong. The authors develop the idea that criminal liability has had a ‘dragging’ effect on the civil liability regime, which has undermined the effectiveness of the legal response. This is because the paradigm of criminal liability has treated harassment as a personalized wrong, reflecting the inherent propensity of the criminal process to allocate censure and blame to culpable agents. The consequence of this has been to obscure the structural and organizational context within which harassment and abuse takes place: it propagates in circumstances of insecurity, precarity, and non-​decent work. Should criminalization have any role to play in addressing workplace harassment and abuse? Examining regulatory activity at the national and international levels, they argue that the value of ‘dignity’ could be used to formulate a principled criminalization response. This leads to three proposals: (i) that criminalization focus on the organizational responsibilities of employers, based on a corporate liability model, along the lines of a ‘health and safety’ model; (ii) that the standing of individual workers to enforce their own rights and seek civil remedies against their harassers is constitutive of respect for their human dignity; and (iii) that dignity points away from the victim’s ‘consent’ being part of the liability enquiry: consent should not be relevant to criminal or civil liability for harassment and abuse. As such, criminal law has an appropriate role alongside other types of legal intervention. The authors end with a proposal for ‘collective bargaining in the shadow of the criminal law’, whereby trade unions act as ‘private prosecutors’ in appropriate cases. This could be expanded to other areas of criminalization, such as offences under the National Minimum Wage framework. The next two chapters offer contrasting perspectives on the role of criminalization in regulating sex work. Sex work is an important and difficult test-​case for ‘criminality at work’, and it has already been touched upon by Sullivan as a possible candidate for criminal restriction in the social democratic state. Is sex work so inherently exploitative and dangerous 56 This lovely phrase is John Gardner’s ‘Rationality and the Rule of Law in Offences against the Person’ (1994) 53 Cambridge Law Journal 502, 515.

20  Criminality at Work under current structural conditions that it should not be permitted at all as a form of ‘work’? If so, should we criminalize the buying of sex, the selling of sex, or target the role of intermediaries such as traffickers? Or does criminal prohibition dehumanize the participants in sex work by not crediting their agency with any public salience? In ­chapter 9, ‘Sex, Work, and Criminalization’, Michelle Madden Dempsey provides a philosophical examination of the various dimensions of commercial sex as a form of work. She then offers perspectives on the legitimate role of the criminal law in regulating commercial sex, based upon three limiting principles: (i) a principle of ‘minimalism’ such that the criminal law should only be used as a last resort; (ii) a principle of ‘modest legal moralism’ such that the criminal law should be reserved as a legal response to public wrongs; and (iii) a ‘presumption of non-​ interference’ based in the liberal harm principle, so that state coercion is limited to situations of direct or indirect harm. Given these three limiting principles, does the criminal law have a legitimate role in regulating, restricting, or prohibiting sex work? Dempsey provides a nuanced taxonomy of commercial sex relations, and she argues that the application of the limiting principles varies depending upon where commercial sex is situated in the taxonomy. Where commercial sex is treated as a form of work, the criminal law would protect sex workers from rape, abuse, and violence through its core mala in se crimes. There might also be scope for regulatory criminalization, supporting the enforcement of Health and Safety laws (although Dempsey notes some practical difficulties in this regard). Where commercial sex is viewed as irredeemably exploitative in virtue of structural ‘patriarchy-​precarity’ constraints, Dempsey suggests that criminalization would legitimately target the purchasers, pimps, and other intermediaries who profit from the exploitation of sex workers. Where commercial sex is viewed as akin to modern slavery, so that the agency of participants is utterly negated, the criminal law response will focus on the organized criminal gangs that orchestrate such practices. The difficult case is where commercial sex is ‘varied’, consisting of a variety of personal work relations that range from the fully voluntary through to the most extreme forms of modern slavery organized by criminal gangs. In this varied context, Dempsey argues that criminalization of buyers of sex may be warranted where not criminalizing would increase market demand and this increase in demand leads to increasing levels of exploitation and modern slavery. This is a form of ‘indirect harm’ argument that rebuts the ‘presumption of non-​interference’, and it would appear to be consistent with criminalization-​limiting principles of a liberal criminal theory. In ­chapter  10, ‘The Work of Sex Work:  Prostitution, Unfreedom, and Criminality at Work’, Katie Cruz analyses the legal treatment of sex work from the perspective of Marxist feminism. For Cruz, the work of sex work must be understood in its wider structural context of exploitative capitalist relations. She argues that sex work should be understood as work. Furthermore, the features of exploitation and unfreedom associated with sex work do not vitiate its identity as a form of work, and therefore as an activity that warrants the application of protective norms of labour law. This appears to mark an important difference with Dempsey’s taxonomy of commercial sex work. For Cruz, in fact, all work under capitalism is structurally coupled with exploitation and unfreedom. Given this structural coupling, it is problematic to use the exploitation in sex work as a basis for excluding it from the domain of personal work relations. Otherwise, personal work relations would be an empty category in capitalist arrangements.

A Framework for Discussion  21 Cruz’s chapter outlines the evidence of the harms of criminalization practices on sex workers themselves, harms which are highly gendered, racialized, and reinforce the degrading stigma that attaches to particular groups who undertake sex work. The starting point for a humane legal intervention–​–​that is to say, a legal intervention that eschews dehumanization of any of the law’s subjects–​–​is decent work for all who are engaged in paid labour. There is accordingly no basis for excluding any worker from this protective floor of labour standards, and it would appear perverse to do so on the basis that the work is seriously exploitative. The withdrawal of the law’s protection from those who are in such a position would appear to compound their abuse, not ameliorate it. In terms of the role of criminalization in supporting worker-​protective goals, Cruz argues that there are no simple answers to this question. Furthermore, we speculate that she would be sceptical that a normative theory divorced from an appreciation of the material conditions of work can provide answers to that enquiry. What matters is the lived experience of sex workers in their encounters with different types of law, their capacities to resist injustice and unfreedom, the activities of criminal justice officials, and the impact of the criminal law on freedom in their working lives. The answers to these questions should be shaped by the political agency of the workers themselves, empowered to give voice to their own experiences of the criminal law and its impact in their lives. Theory cannot be a substitute for agency. And to be useful, theory cannot be abstracted from the structures of power and subjugation that envelop work relations under capitalism. In the final chapter of the second part, ‘Human Rights, Labour Rights, and Criminal Wrongs’, Virginia Mantouvalou assesses the contribution of the criminal law in protecting the fundamental human rights of workers. Fundamental human rights identify the basic moral entitlements of workers. These entitlements have a special normative significance in the polity. Accordingly, serious violations of those entitlements by powerful private actors would seem to count as public wrongs against the polity’s ‘civil order’, as constituted by its most fundamental rights. Mantouvalou discusses the position of criminal law under the European Convention of Human Rights (ECHR), and the interpretation of the state’s positive obligation to protect as encompassing a positive obligation to criminalize certain public wrongs against fundamental entitlements. This has been most marked in relation to the wrongs under Article 4 ECHR, but it is by no means limited to Article 4. She also emphasizes how the European Court of Human Rights has developed an approach to criminalization that is sensitive to its effects in the real world. It is not sufficient to have criminal laws on the statute books. Those criminal laws must be investigated and enforced effectively, with adequate support and protection for victims, and the state also has a duty to dismantle the structural determinants of vulnerability such as those constituted by its own visa regimes. Mantouvalou identifies the blacklisting of trade unionists as a particularly serious human rights violation warranting a criminal law response. This is necessary to mark and communicate the serious nature of the public wrong involved in blacklisting, and the catastrophic harms wrought by this secretive and insidious practice on the lives of trade unionists. In defending criminalization as an appropriate response, she suggests that this should be treated as an addition to civil modes of redress for victims of blacklisting. Criminalization should not be a substitute for private law-​type norms focused on redress and compensation, but should form part of a broad and multifaceted legal response. This echoes the message from many of the chapters in the first and second parts of the book.

22  Criminality at Work In the third part of the book, ‘The Contemporary Shape of Criminalization Practices: Risk, Status, and Character in the Neoliberal Criminal Law’, we use Nicola Lacey’s work on modern criminalization practices to understand the contemporary terrain of criminalization in labour law. Our starting point for this project was the sense that the criminal law was re-​emerging as a mechanism of regulation and control in work relations. This re-​emergence could be detected across a range of different work contexts, such as: the regulation of specific occupations such as care work and medical professions; modern slavery; immigration; and worker-​protective criminalization through preventive orders and licensing regimes. Were we to regard these developments as coincidences that simply converged on employment relations by happenstance? Or is there more to be said in revealing deeper continuities across seemingly independent regulatory practices? According to Lacey, contemporary criminalization practices have often been directed at a ‘hybrid character/​risk model’, where particular statuses (eg migration statuses) have a particular salience in the attribution of criminal responsibility.57 These criminalized statuses are politically configured as presenting dangers to the moral community of ‘virtuous’ or ‘normal’ citizens. The politicization of criminalization has also been aligned with the use of preventive measures to abate anticipated risks of harm, based around a political concern to assure citizens of their security.58 This has been reflected in the expanding use of pre-​emptive interventions, such as hybrid civil-​criminal orders and licensing regimes.59 In broad terms, we suggest that the chapters in the third part provide support for Lacey’s account of the development of a modern notion of criminal responsibility. This is an area in which there is scope for fruitful dialogue between labour lawyers and sociologically oriented criminal theorists. In ­chapter  12, ‘The Preventive Role of the Criminal Law in Employment Relations’, Jennifer Collins and Andrew Ashworth assess the range of preventive interventions in labour market regulation. These include offences imposing omissions liability on employers, the effect of which is to impose safeguarding duties on private actors as agents responsible for avoiding or mitigating harms; the offence of employing an illegal worker under the IA which has co-​opted private employers into the public responsibility of immigration enforcement; and preventive orders in relation to trafficking and labour market enforcement. In relation to preventive orders in labour market enforcement, the authors query whether there are good reasons to resort to criminal law in situations where civil enforcement mechanisms might be improved. This also raises uncomfortable questions for governments that have presided over onerous tribunal fees impeding access to justice, and the pursuit of deregulation of labour standards and restriction of trade unions. Is the enforcement crisis being produced by ‘bad’ employers or the political choices of our elected representatives? The most effective form of prevention would be worker-​protective labour law, supported by access to justice and strong trade unions. Preventive criminal law is a response to an avoidable crisis that has been brought about by specific political choices. Nevertheless, the penetration of these preventive orders into labour law fits with the more general expansion of preventive criminal measures in different spheres of social life.



57 Lacey, In Search of Criminal Responsibility (n 22) 157–​61. 58

Peter Ramsay, The Insecurity State (OUP 2012).

59 Lacey, In Search of Criminal Responsibility (n 22) 46–​48.

A Framework for Discussion  23 The next chapter by ACL Davies, ‘Licensing of Employing Entities and Criminalization’, continues in the vein of preventive criminal law, examining the role of licensing regimes in the labour field. She focuses in particular on the ‘Gangmasters’ licensing regime, which is operative in the agricultural and food processing industries. This licensing regime is supported by a structure of criminal offences, some of which are very serious and provide for high maximum penalties of ten years’ imprisonment. Davies notes the difficulties in providing a principled justification for criminalization of licensing requirements, given that non-​compliance is only indirectly linked to the commission of serious wrongs against vulnerable workers. However, she considers that this form of regulatory criminalization can be justified in principle. Furthermore, from a regulatory perspective, she identifies some advantages of a licensing regime in promoting compliance with basic labour standards. Of course, mechanisms of public enforcement are always vulnerable to political decisions about the allocation of resources. Nevertheless, the licensing of labour market intermediaries might usefully be extended to other sectors where there are specific problems with precarity and abuse. In our view, this chapter provides a strong example of why some mala prohibita crimes should be viewed as ‘real’ crimes, making a vital positive contribution to the wellbeing of workers. In ­chapters 14 and 15, the role of the criminal law in regulating specific professions is examined. In ­chapter 14, ‘Criminalizing Care Workers A Critique of Prosecution for Ill-​ treatment or Wilful Neglect’, LJB Hayes offers a critique of the ‘care worker offence’ in section 20 of the Criminal Justice and Courts Act 2015, which criminalizes ill-​treatment or wilful neglect in circumstances of ‘paid work’ by care workers. According to Hayes, this new offence has obscured the political and managerial choices that render care work badly paid and precarious. Judicial narratives are all too often framed around thick moralized judgements of vice and bad character, marginalizing alternative narratives that identify the terrible pressures that precarious workers experience in their working lives. These pressures are being generated by poor management, underinvestment in training, high staff turnover and high rates of sickness absence, and chronic starvation of public resources for social care. In this way, Hayes’ arguments suggest that we might even regard the section 20 offence as a contemporary variant of nineteenth-​century Master and Servant laws, using criminal law to enforce labour discipline and to police the precarious. In ­chapter 15, ‘The Medical Professional as Special Before the Criminal Law’, Suzanne Ost explores the position of medical professionals such as doctors in criminal law. In certain respects, doctors appear to have an unusually privileged position under English criminal law. For example, there are a range of special and general defences available to doctors who are discharging their medical responsibilities. Furthermore, judges are often receptive to the professional judgements of doctors, reflected in expert medical opinions, in fleshing out the content of abstract norms in the criminal law. It might even reflect comity between the professions of law and medicine. Certainly, it provides a stark contrast with the social, economic, and cultural chasm between judges and care workers, and their different experiences of the criminal law under the Criminal Justice and Courts Act 2015. On the other hand, doctors are also particularly exposed to the risk of very serious criminal liability, particularly in respect of gross negligence manslaughter. While we would be unlikely to identify doctors with the precariat, as we might be inclined to do with care workers, doctors are also working under intense pressures in circumstances of austerity. In this way, the personalizing dynamic of criminal liability deflects attention towards individualized medical

24  Criminality at Work mistakes and errors of judgement and away from the economic context. In these situations, Ost suggests that the structural dimension might be better captured through forms of organizational liability for employers. This reflects the proposal by Bogg and Freedland on criminal liability for workplace harassment. This organizational model of criminal liability might also provide a better approach for dealing with problems of abuse in the care sector. The following three chapters each address the complex dynamics of criminalization in the spheres of migration and modern slavery. In c­ hapter  16, Cathryn Costello provides powerful arguments against criminalization practices in the migration sphere. She does so by testing the extensive criminalization of irregular migrants against standard liberal principles of criminalization. In her view, it is very difficult to identify any direct wrongs or harms to others that arise in virtue of ‘irregular’ migration. She is also doubtful that a malum prohibitum offence can be justified. Against these weak arguments in favour of criminalization, she identifies compelling reasons against criminalization. Criminalization leads to a deregulatory cascade through the operation of the illegality doctrine, which undermines the legal protection of migrants’ fundamental rights. It also reinforces an image of migrants as dangerous threats to the civil order, which leads to hostility, discrimination, and stigmatization of migrants. In truth, the criminalization of migrants represents a context where there has been a decisive rupture with liberal principles of criminalization. It leads us into the dark political territory of migrants as warranting criminalization simply in virtue of their dangerous status, which presents undefined threats to the moral and social order. In this respect, it is highly significant that the IA has now criminalized ‘illegal working’ as such. Under previous regimes, this conduct would have been criminal under general immigration offences, but this targeted status-​based labelling of the crime is a new development that is fraught with political significance. In ­chapter 17, ‘Doing the Dirty Job: Labour at the Intersections of Criminal Law and Immigration Controls’, Ana Aliverti offers a more historical and sociological perspective on the inclusionary and exclusionary effects of criminal law, determining who is inside and who is outside the polity’s ‘civil order’. In so doing, she draws upon Lindsay Farmer’s work which tracks shifts in the structure and content of criminal law as being reflective of shifting notions of ‘civil order’. The resulting analysis illuminates the shifting social functions of criminalization during different historical phases, especially as it relates to migration control and labour market governance. Legal norms have both reflected and constructed political and social boundaries, often based around racialized notions of ‘good’ and ‘bad’ migrants. The most recent phase of criminal law intervention conjoins highly deregulated labour markets and highly juridified migration regimes. This has been linked to the rise of populism and more authoritarian and nationalistic forms of statecraft. Nevertheless, as Aliverti reminds us, we should avoid determinism in reading these historical shifts. ‘Civil order’ is always a contested idea, and like Cruz she emphasizes the critical role of political mobilization and agency in resisting the highly exclusionary and disciplinary configuration of criminal law. In this respect, recent changes in the illegality doctrine may reflect the use of legal mobilization to reassert the fundamental rights of irregular migrant workers. In this way, litigation can become an act of political resistance to an unjust ‘civil order’, and the courts may provide a forum where more emancipated visions of ‘civil order’ can be asserted by the oppressed. In ­chapter 18, ‘Modern Slavery, Domestic Work and the Criminal Law’, Jonathan Herring provides a critical account of the political and regulatory consequences of modern slavery

A Framework for Discussion  25 discourse. In this respect, his work echoes and amplifies the powerful critical work of Judy Fudge and Kendra Strauss.60 The criminalization of ‘modern slavery’ frames the regulatory problem around evil wrongdoers, and represents enslaving and trafficking as a manifestation of a (usually foreign) vice perpetrated by organized criminal gangs. This marginalizes the responsibility of states in maintaining labour law and migration regimes that create the structural conditions for exploitation and abuse. Herring then traces the continuities with domestic abuse and the forms of abuse that are criminalized in the MSA. He argues persuasively that modern slavery practices cannot be severed from a wider appreciation of patriarchal structures in society. This opens up an interesting agenda for future research, which is to consider the overlaps between family law, labour law, and criminal law, in theorizing and critiquing modern slavery. In ­chapter 19, ‘The Persistence of Criminal Law and Police in Collective Labour Relations’, Alan Bogg, KD Ewing, and Andrew Moretta examine the role of criminal law and police power in regulating and restricting collective labour activities. In so doing, they challenge the dominant view that the historical development of collective labour law involved the progressive withdrawal of criminal law from trade union affairs. Like Aliverti, the authors draw upon sociologically and historically based accounts of criminal law to examine the development of collective labour relations across different historical periods. They argue that a wider framing of criminal law interventions, to include discretionary ‘police’ measures, reveals a much more persistent presence for criminal law as a mode of repression and control. This has been most pronounced during periods of ‘emergency’, such as the General Strike, wartime, and the Miners’ Strike during the mid-​1980s. More recently, the authors suggest that there has been a ‘normalization’ of emergency, with the radical trade unionist emerging as a new dangerous status that is the object of covert police surveillance and disciplinary control. In the fourth part of the book, we return to the theme that animated Kahn-​Freund and Wedderburn, and continues to shape contemporary debate around criminalization, which is its deterrent value in promoting effective enforcement of labour s­ tandards. In ­chapter 20, ‘Workplace Safety and Criminalization: A Double-​Edged Sword’, Paul Almond argues that the contribution of criminalization to better health and safety in workplaces has been limited by certain contextual features of this regulatory method. His chapter focuses on the role of criminal law in the Health and Safety legislation and the corporate manslaughter offence. In particular, he argues that criminal law interventions are ­gravitationally oriented towards individualized notions of fault, capacity, choice, and responsibility. Once the ­liability enquiry is structured in this highly personalized way, the regulatory ­capacities of the criminal law to secure effective and enduring structural change are limited. This echoes the concerns of Alan Bogg and Mark Freedland with the overly personalized framing of the harassment wrong in criminal law. It remains an open question whether the criminal law can accommodate approaches to responsibility that are more attuned to structures, cultures, and organizational norms. In ­chapter 21, ‘The Criminalization of Health and Safety at Work’, Michael Ford adopts a more historical perspective on the development of criminalization practices in Health and Safety law. In so doing, he emphasizes the divergence in perspective as between criminal 60 Judy Fudge and Kendra Strauss, Migrant Domestic Workers in the U.K. (Foundation for Law, Society and Justice 2016).

26  Criminality at Work lawyers and labour lawyers on fundamental matters of value. Criminal lawyers have tended to focus on the development of criminalization-​limiting principles as an exercise in normative theory, whereas labour lawyers have tended to focus on instrumental outcomes in terms of whether health and safety outcomes are improved. If criminal law works in that instrumental sense, then so much the better, and that supersedes niceties about the justifiability of criminalization. Interestingly, Ford identifies the central importance of criminalization as a tool of deregulation in the modern era, following the removal of a civil right to seek compensation for breach of statutory duties under the Health and Safety legislation. By the channelling of enforcement exclusively through the criminal law, the individual worker is thereby disempowered in her standing to control the legal process and its outcomes. In this way, the criminal law can sometimes be a tool for weakening enforcement, not strengthening it. We must be cautious, therefore, in deploying the terminology of ‘worker protective criminalization’. In the final chapter of the fourth part, ‘Accessory Liability for National Minimum Wage Violations in the Fissured Workplace’, Alan Bogg and Paul S Davies examine whether ‘­accessory liability’ could provide a way of attributing criminal liability to lead companies in supply chains where those lead companies are not functioning as ‘employers’. For e­ xample, company X subcontracts a particular economic activity to company Y, and Y then employs workers to fulfil the requirements of its commercial contract with X. Accessory ­liability criminalizes those who intentionally assist or encourage the commission of principal ­offences, thereby extending the web of criminal liability beyond principal parties. This could provide a principled way of responding to enforcement problems in the ‘fissured workplace’. This would be consistent with the requirements of fair labelling and culpability in general criminal law, by avoiding the need for fictional attribution of ‘employer’ status to entities that are not employing. In the fissured workplace, the responsibility for employer compliance with labour standards appears to rest increasingly with powerful economic entities that condition the affordability of employment rights through their commercial bargaining with these smaller firms that act as the direct employers. Yet these lead companies are not acting as employers or, in criminal law terminology, ‘principals’. Drawing upon the Australian experience with accessory liability, Bogg and Davies argue that accessory liability could provide a principled tool to improve enforcement outcomes in relation to wage theft. This is because criminal liability is being targeted at large companies occupying strategically important positions in particular economic sectors. This could prompt widespread changes in employer compliance by modifying the economic incentives created by the commercial behaviour of lead firms. They propose a statutory definition of accessory liability that could be used as a basis for legislative reform. The four sets of chapters described in the foregoing paragraphs have, we feel, provided a rich and multifaceted discourse about the role of criminal law in the regulation of work relations. We have been specially fortunate in having been able to create a fifth part of this book which consists of four chapters of comparative reflection, one from the USA (Noah Zatz’s ­chapter 25), one from Canada (Bruce Archibald’s ­chapter 26), and two which are comparative within themselves, one as between Australia, the UK, and the USA (Marilyn Pittard’s ­chapter 24), and the other as between Canada and the UK (Judy Fudge and Eric Tucker’s ­chapter 23).

A Framework for Discussion  27 This variety of comparisons itself begins to suggest the sense in which this comparative part of the work makes a particularly important contribution to the book as a whole, and, we believe, constitutes a very fitting way to conclude it. That is because these chapters completely avoid the rather formulaic approach to comparative law in which each chapter narratively presents the state of the law in one or more jurisdictions. Instead, each of these four chapters represents in itself a study of one or more aspects of ‘criminality at work’, choosing to do so in relation to one or more jurisdictions other than the UK which is the primary location of this work as a whole. In combination with each other, the four chapters provide a microcosm of the book as a whole. Indeed, they serve to extend the scope and ambition of the work, and they very fully bear their share of the task of accomplishment of the project as a whole. Jointly and separately, these chapters express and reflect the continuity, the internal interrelatedness, and the experimental character, of the book as a whole. In so doing, they move effortlessly and convincingly between the particular and the general, between past and present, and above all between normative critique and the expression of positive aspirations for what the criminal law might achieve in the regulation of work relations. The first chapter of the fifth part of the book is a historical and comparative one; Judy Fudge and Eric Tucker are interested in the historical asymmetry which they discern in the evolution of labour law, both in the UK and in Canada, between the use of the criminal law as on the one hand an instrument of the discipline and repression of the workforce and on the other hand as a means of the protection of workers. The worker-​ disciplinary or worker-​repressive tendency is represented in the history of both labour law systems by the Master and Servant legislation which originated in the UK but was replicated in Canada. They regard this species of criminalization as having had ‘shallower roots’ in Canada than in the UK and as having faded out sooner in Canada, though not before ‘employers were actively developing other labour control strategies less directly dependent on law and the state’. However, for these authors there is nevertheless a similar historical asymmetry in both jurisdictions between worker-​repressive and worker-​protective criminalization; for the relative mildness of worker-​protective criminal law, discernible in both jurisdictions, is in their view somewhat more marked in Canada than in the UK. They make this analysis of the historical trajectory of the Factories Acts and other workplace Health and Safety legislation in both legal systems. Both systems display the tendency to regard the offences created by such legislation as merely regulatory ones rather than as true crimes, and to ‘conventionalize’ them as such: but in Canada this treatment of them as mala prohibita rather than as mala in se actually has the constitutional effect of relegating them to the sphere of provincial police regulation rather than that of federal criminal law enforcement. The resulting asymmetry seems to them to represent an undue deference to freedom of contract and to the power and prerogative of employers, from which, they conclude, ‘weakly enforced regulatory law was born’. The next two chapters of this part provide between them a comparative study of an important aspect of ‘criminality at work’ not covered elsewhere in the book. This is because they both consider the ways in which and the extent to which conviction and punishment of workers of and for criminal offences, whether work-​related or not, may bring about critical constraints upon their access to employment, or at least to decent employment. In her

28  Criminality at Work chapter on ‘Criminalization, Social Exclusion, and Access to Employment’, Marilyn Pittard provides a critical analysis of the impact of criminalization practices on access to employment in Australia, the USA, and the UK. As increasing numbers of citizens are subject to criminal conviction, often the very ones who have already experienced social and economic disadvantage, this can create a further barrier to labour market participation and to full integration into society. Thus the criminal law can be instrumental in creating a stratified precariat based upon ‘discreditable’ statuses, such as those of irregular migrant or ‘ex-​convict’, creating structural traps in forms of employment with poor conditions and prospects. The chapter explores the ways in which labour laws may on the one hand aggravate this form of social exclusion—​for example by intensifying the various requirements for criminal record checks and ‘right to work’ checks upon those seeking employment, or may on the other hand relieve such social exclusion by allowing past criminal convictions eventually to be concealed and forgotten. The author’s normative concern is to find the right balance in this respect between, on the one hand, the necessary safeguarding of the employing enterprise, its workers, and the recipients of its services, and, on the other hand, the maximizing of the possibility of rehabilitation into society of those with criminal convictions, especially those who have served terms of imprisonment—​reintegration into employment being one of the primary means and conditions for such rehabilitation. It is notable how, in Marilyn Pittard’s chapter, the USA often figures as the jurisdiction in which practices of restriction of access to employment or good-​quality employment on the basis of previous criminality are the most severe. In Noah Zatz’s extremely innovative chapter, it emerges that these manifestations are merely the tip of a menacing iceberg. He presents a very striking configuration of the relationship between the criminal law and the world of work: in the USA, custodial punishment for criminal offences, bearing especially heavily upon the population of colour, is so extensive as to identify that country as a ‘carceral state’; and it is one in which this enormous resort to imprisonment has a dually repressive effect upon the workforce. On the one hand, it excludes many people from work while they are in prison and after they have emerged: but on the other hand, and almost paradoxically, it coerces many people into work, and moreover into poor quality work, by requiring them to accept such work either as prison labour or as an alternative to imprisonment. The significant insight of this chapter is that this dual phenomenon, taken to the extreme as it has been in the USA, actually transforms the nature of the labour market, and that we have to include a consciousness of this transformative effect of criminalization in our basic understanding of labour law’s framing of the regulation of personal work relations. It is encouraging to be able to conclude this account of the comparative part of our book on a slightly less sombre note. In an equally innovative but very different mode, Bruce Archibald’s chapter suggests a way of enriching the normative theorization of the interface between labour law and criminal law in Canada. He homes in on the role of the criminal law in enforcing worker-​protective labour standards, in particular with regard to workplace health and safety. Focusing specially on penal policy in respect of violations of health and safety standards by employing enterprises and by individual members of the staff of those enterprises, he contends that there is real scope for bringing to bear the principles and tenets of restorative justice upon the practice of applying criminal or quasi-​criminal sanctions in this regulatory domain.

A Framework for Discussion  29 This might in his view generate some more nuanced and creative regulatory approaches than those which are sometimes manifested in high-​profile corporate criminal prosecutions and by the imposition of blockbusting fines upon such corporations. Interestingly, he argues that certain of the currently much-​discussed human capabilities approaches to legal regulation might be deployed to develop and flesh out a methodology of restorative justice in this particular context, thus contributing an important element to the evolution of an overall notion of ‘responsive workplace law’. He indicates, very cogently in our view, that progress in these directions is more likely to take place in unionized environments where workers’ collective voice is vigorous and likely to be heard. All this serves, in our suggestion, to show how the fifth and final part forms a cumulative high point of the work as a whole, and an appropriate conclusion to it. We now return briefly to our starting hypotheses and reflect upon these in light of the findings in the book: (i) Whereas criminal law had over a long historical period been in retreat from the sphere of employment relations, it was now resurging into labour market regulation, especially in recent statutory interventions such as the MSA and IA.   We think that this proposition has been borne out. Furthermore, the resurgence of criminal law extends beyond these rather dramatic statutory episodes, which could all too easily be dismissed as high-​profile aberrations. We also see this resurgence in the context of health and safety enforcement, political discourse around minimum wage underpayment and non-​payment, the possible expansion of licensing regimes for labour market intermediaries, the criminal regulation of care workers and doctors, and even the regulation of trade union internal affairs and ‘leverage’ protest activities. The chapters in the first part of the book provide a compelling overview of the full extent of this terrain. (ii) This resurgence was part of a wider phenomenon of ‘over-​criminalization’ driven by the politicization of criminal justice practices.   We are somewhat cautious about the ‘over-​criminalization’ presentation. Others have voiced concerns with this discourse:  how much criminal law is too much?61 There are also formidable difficulties with achieving a precise quantification of ­criminal law growth.62 These are exacerbated when we are trying to isolate ‘labour law’ offences, without an agreed definition of what this boundary might encompass. It would be better, perhaps, to assess whether particular instances of criminalization are legitimate and effective in securing welfarist goals in the labour market. Sullivan’s chapter provides a very powerful case for a social democratic criminal law. Whatever misgivings have been expressed in this volume about ‘regulatory’ criminalization, this has usually reflected empirical criticisms about enforcement outcomes rather than ‘in principle’ objections to regulatory criminalization. Where regulatory criminalization is supported through adequate public resourcing for enforcement ­agencies, and where this leads to higher levels of employer compliance, we would regard it as a welcome addition to the field of labour regulation. Indeed, further expansion of the

61 Horder (n 24). 62 James Chalmers and Fiona Leverick, ‘Quantifying Criminalization’ in RA Duff, Lindsay Farmer, SE Marshall, Massimo Renzo, and Victor Tadros (eds), Criminalization:  The Political Morality of the Criminal Law (OUP 2014) ch 2.

30  Criminality at Work criminal law might be valuable in certain contexts, as with accessory liability for lead companies in supply chains, a new offence of wage fraud, criminal liability for blacklisting and other human rights abuses, or a new harassment crime focused on corporate wrongdoing. On other hand, some expansion has been very detrimental for the most vulnerable workers, for example in relation to the new care worker offences. And some proposals to extend the criminal law would appear to have dubious value, as in using the criminal law to bolster the employee’s contractual duty of loyalty or to suppress legitimate industrial protest.   We think that the traditional formulation of worker-​protective labour law provides a very useful rule of thumb for assessing new instances of proposed criminalization. Briefly stated, this identifies the function of labour law as being to regulate and equalize the inequality of power between an employer and an individual worker. Where criminalization is seeking to further this goal, by assisting the weaker party, the regulation is likely to have a presumptive legitimacy from a labour law perspective. By contrast, where criminalization impedes this goal, for example where the criminal law has the purpose or effect of intensifying the subordination of the weaker party, we would regard such legislation as presumptively illegitimate. This helps to account for the deep suspicion and distaste for anything that smacks of Master and Servant law or the suppression of worker combinations. Contemporary manifestations of this include the examples of detrimental criminalization set out in the preceding paragraph. (iii) That much of this ‘over-​criminalization’ was of dubious legitimacy either in targeting non-​wrongful statuses (such as migration statuses) or using preventive measures to criminalize conduct on the basis of risk of harm (eg licensing regimes for labour market intermediaries or preventive ‘labour market enforcement orders’ under the IA).   We agree that some of this criminalization has been of very dubious legitimacy, and it does not surprise us that we have identified the migration field as providing the most egregious examples of this. However, the work on licensing and other preventive measures in labour market governance suggests that a well-​designed and properly resourced ‘preventive’ criminal law could be a valuable addition to worker-​protective labour law.   We also think that the labour law field provides interesting new insights into the mala prohibita/​mala in se distinction as it is used in criminal law theory. The different permutations of labour offences surveyed in this work support Duff ’s suggestion that the difference at stake is one of degree rather than kind. Furthermore, the field of regulatory criminalization provides some powerful examples of legitimate mala prohibita offences that have made an important and positive difference to the lives of the most vulnerable workers. We think that the interesting debates around modern slavery criminalization demonstrate this. We would do far better to invest political will into the effective enforcement of basic labour standards for all workers, perhaps through mala prohibita crimes, than through the selective criminalization of the most egregious forms of labour exploitation through mala in se crimes. At the very least, we hope that this volume assists in the rehabilitation of mala prohibita crimes as worthy objects of study in general criminal law scholarship; and as being crimes that have an important welfare-​enhancing role to play in a social democratic criminal law.

A Framework for Discussion  31 (iv) That criminalization was increasingly driven by ‘thick’ moral judgements about vice and bad character of defendants, especially in the context of modern slavery, which has tended to obscure wider appreciation of the structural determinants of precariousness and vulnerability to abuse.   We think that this phenomenon is an important and troubling feature of the new profile of criminalization in labour law. It is a phenomenon that is very powerfully analysed by Nicola Lacey in her work on changing patterns of criminal responsibility. This volume has revealed that the criminal law’s role in obscuring regulatory structures and organizational practices is more widespread than we had anticipated. It extends beyond modern slavery to include doctors’ liability for gross negligence manslaughter, criminal liability for care workers, harassment, Health and Safety laws, and corporate manslaughter. In this way, the labour law perspective is very valuable in keeping these wider structures in full view when framing ‘criminality at work’. This counteracts the new criminal law moralism centred on notions of vice and bad character. It would tend to support greater experimentation with approaches to criminal responsibility based upon corporate or organizational attribution. (v) ‘Worker protective’ criminalization, attaching criminal penalties to certain labour law violations, appeared to be a new and paradoxical feature of the neoliberal governance of deregulated labour markets, and this paradox required further investigation and explanation.   We continue to think that this feature is of the utmost importance, though we now see more clearly that the conjunction is less paradoxical than it at first appeared to be. Aliverti’s chapter on ‘civil order’ and migration provides some important insights into this phenomenon. So does Noah Zatz’s chapter on the carceral state. This context of migration criminalization seems to represent a particularly toxic form of disciplinary control. On the one hand, a deregulated labour market entrenches the private disciplinary power of employers. On the other hand, a criminalized regime of migration control entrenches the disciplinary control of the state in policing the boundaries between ‘good’ citizens and ‘bad’ non-​citizens. This conjunction is particularly troubling where private employers are co-​opted into public enforcement of border controls. Criminal law as labour market governance becomes a hyper-​charged form of public-​ private disciplinary control to keep the precariat in their place.   We should also note the complex interactions between criminalization and deregulation. Ford’s chapter demonstrates how criminalization can itself be a deregulatory technique, where the standing of the individual worker to seek compensation in the civil courts is removed. Where enforcement becomes the ‘property’ of the state, it is then for the state to decide whether to investigate and prosecute criminal breaches. Enforcement also becomes very vulnerable to political choices about the allocation of resources to public agencies. It is important, therefore, to remember that context is very important in distinguishing ‘deregulatory criminalization’ from ‘regulatory criminalization’. This will often require us to look beyond what is in the statute books to what happens ‘on the ground’ in real workplaces. (vi) Certain types of labour wrong, such as blacklisting of trade unionists or the coercive trafficking, appear to constitute serious public wrongs warranting justified criminalization, so how should we identify the category of ‘labour wrongs as public wrongs’ as a basis for reasonable legislative choices to criminalize labour wrongs? And on what

32  Criminality at Work basis should we opt for criminal law rather than private law, statutory rights enforced in the civil courts and tribunals, or professional regulation?   The chapters in the second part of the book provide some very useful engagements with the question of public wrongs and how to identify them. As is to be expected in a normative enquiry of this kind, and in a messy (and interesting) moral universe of pluralistic and incommensurable values, there is continuing disagreement about what counts as a public wrong. The two contrasting chapters on sex work exemplify the richness of those debates. Here we think labour lawyers have much to offer to criminal lawyers, in providing some context and content to the abstract idea of public wrong. Labour lawyers can also offer insights into how different types of regulation operate in workplaces, reflecting the strong socio-​legal basis of much labour law scholarship. On the question of criminalization in comparison with other regulatory modes, most of the chapters emphasize a ‘criminal law plus’ model. That is to say, there are often serious problems where criminal law operates as a substitute for other forms of legal protection. The criminal law usually works best where it is one element in a wider regulatory structure that also provides for individual rights of enforcement, collective bargaining, statutory employment rights, licensing, and other forms of preventive regulation. There is a moral dimension to this determination: it is not simply an exercise in measuring the comparative efficiency of different regulatory types. In the harassment chapter, for example, dignity is identified as a foundational constitutional value that is honoured where the individual is given standing to enforce her own rights in the legal process. In this way, private enforcement has its own moral value. In turn, we might reimagine the criminal process so that opportunities for voice for workers and their trade unions are incorporated into the criminal justice system. The chapters also generally highlight the importance of interrogating democratic law-​ making practices in criminalization decisions. How are criminalization decisions made and implemented in the legislative process? Which Select Committees have oversight over these decisions, and how effective is that oversight? In what ways could the constitutional context to law-​making be reshaped so that this process is more sensitive to the normative principles that ought to limit the reach of criminalization? A new conversation with constitutional lawyers, labour lawyers, and criminal lawyers would, we think, be very welcome and productive. We recognize that all of this generates more questions than it does answers. We regard that as an intellectual vindication of the study of ‘Criminality at Work’, and we commend this volume to our readers as the beginning of a new and exciting frontier of disciplinary engagement. The need for reasoned and evidence-​based reflection on the criminal law as a regulatory technique in work relations could not be more acute. It is perhaps too much to hope that this might provide a basis for a different kind of politics of criminalization, given the troubling overlaps between criminalization and populism at the current time. Still, the intellectual richness and humanity on display in this volume makes us think that it is worth the struggle.

PART I

CR IMINA L IT Y AT WOR K : MA PPING T HE T E R R A I N

2

Workplace Welfare and State Coercion GR Sullivan

A.  Introduction Imagine the UK has a social democratic government that aspires to provide adequate welfare for all. For our purposes welfare is conceived materially, with good physical and mental health at the core. Of course, good mental and physical health requires more than food, clothing, housing, education, and free or affordable healthcare. There would be fair and respectful treatment of persons by other persons and organizations given forms of empowerment over the welfare of others.

1. Social Democracy A material account of welfare follows from the nature of social democratic governance supposed here. There would be no advocacy of any version of the good life. The key task would be ensuring sufficient resources for sustaining a healthy and aspirational life for all. Laws requiring fairness and respect in the treatment of persons would be enforced effectively. What is required to secure such a state of affairs is not described here. Instead the existing legal protection of some crucial welfare interests of workers will be scrutinized to see if they are protected in England and Wales1 to a level that would satisfy a social democratic government of the kind supposed. ‘Social Democracy’ is a suitable term for all democracies which enact equality of civil status for all adult citizens and make significant governmental interventions in the economy if necessary, to protect the welfare of workers (and their dependents) generally and/​or for a particular group of vulnerable workers. A  neoliberal government favouring non-​ interference in markets, low taxes, and frugal welfare payments would not be a social democracy in these pages. A government elected to bring about a significant socialization of the economy would be in our social democratic club if it respected core democratic rights and freedoms.2 It might prefer to describe itself as a socialist democracy, which would be fine. The kind of social democratic governance assumed here is broadly UK governance from 1951 to 1979. Nostalgia must be avoided. There have been social gains since 1979, particularly rights and protections related to gender, ethnicity, and sexuality. Yet, until the 1 England and Wales comprise a unified criminal law jurisdiction and, despite Welsh devolution, broadly the same distributional funding arrangements for central and local government, which is not the case for Scotland and Northern Ireland. When dealing with aspects of immigration law, the rules apply to all areas of the UK. 2 For a thoughtful account of the strategies and commitments required for a successful alliance between socialism and democracy see Keith Ewing, ‘Democratic Socialism and Labour Law’ (1995) 24(2) Industrial Law Journal 103. GR Sullivan, Workplace Welfare and State Coercion In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.002

36  Criminality at Work Thatcher government, administrations of different stripes and tones of voice were in practical terms more engaged in delivering welfare for all sectors of society than any post-​1979 administration, albeit in some cases because of prudential considerations rather than beneficence. By and large political parties argued their respective cases using social and economic data derived from official and academic sources. From their differing perspectives, competing parties advocated realistic objectives rather than wishful thinking fuelled by nativist delusions.3 The Atlee government of 1945–​1951 was a democratic socialist and epoch-​changing government that left its mark for many decades.4 Although its industrial/​economic policies were not carried forward, key social provision–​–t​he National Health Service; free milk, orange juice, and meals for school children; the large scale building of social housing; controlled rents and security of tenure for private tenants; financial support for the unemployed; old age and death related pensions; steep rates of taxation on high earnings and investment income–​–​were not swept aside. Until Thatcher, much of this welfarism survived. Also sustained till then was a degree of restraint in executive and bankers’ pay, far from the stratospheric rates of today. From Thatcher onwards, there have been significant reductions in welfare provision, a process checked somewhat by the Labour governments of 1997–​20105 but then a process re-​engaged and intensified by the coalition government of 2010–​2015 and the current Conservative government. There have been cuts to and the freezing of many benefits (including disability benefits), the reduction of tax credits, and major cuts in support services. The underfunding and chaotic delivery of Universal Credit have compounded these hardships, sending many households into sudden crisis. A dearth of social housing has left millions paying high rents and enduring the short-​term leases and poor accommodation typical of many private rentals.6 Changes in the nature of employment have not helped. Over time, but particularly from 1979 onwards, many reasonably paid jobs in industry, mining, utilities, and transport have gone.7 Services constitute 80 per cent of the economy. Many service jobs are low skilled and low paid. Zero hours contracts entail fluctuating incomes. Minimum wage rates are evaded by employers who turn their workers into independent contractors.8 The circumstances of

3 Contrast the tone and content of the debate between the competing sides in the referendum on EU membership in 1975 and level of debate during the referendum on the same question held in 2016. For an account of how, what has been called, ‘Democracy of Feeling’ has become ever more salient see William Davies, Nervous States: How Feelings Took Over the World (Jonathan Cape 2018). 4 AJP Taylor wrote of the election of this government, ‘[i]‌mperial greatness was on the way out; the welfare state was on the way in. The British Empire declined; the condition of the people improved.’ AJP Taylor, English History 1914–​1945 (OUP 1965) 600. 5 The Labour governments of 1997–​2010 promised more generous welfare, a promise to some extent delivered particularly for children in poverty. But these governments brought no changes of consequence to trade union legislation, or to the building of social housing and retained the rates of personal and corporate tax they inherited. 6 For a full account of these matters together with proposals for improvements see Prosperity and Justice—​A Plan for the New Economy: Final Report of the IPPR Commission on Economic Justice (5 September 2018)  accessed 31 July 2019. For a scathing critique of economic justice in the UK see Philip Alston, ‘Statement on Visit to UK’ (16 November 2018) accessed 31 July 2019. 7 Michael Kitson and Jonathan Michie, ‘The Industrial Revolution: The Rise and Fall of UK Manufacturing, 1870–​2010’ (June 2014) Centre for Business Research, University of Cambridge WP No 459  accessed 31 July 2019. 8 IPPR Commission Report (n 6).

Workplace Welfare and State Coercion  37 persons working in the UK without a right to work are frequently dire and not in accord with domestic and international human rights standards.

2.  Why a Social Democratic Perspective? Social democracy of the kind envisaged here may no longer be politically feasible in the UK yet standards of welfare achieved from 1951 to 1979 can provoke critical reflection on our present situation. Two of the three welfare interests which will be discussed, namely rates of pay and health and safety, allow direct comparisons between then and now. Wages should be set at a level allowing a full-​time worker to meet for herself and her dependents, the costs of accommodation and household expenses, the funding of a healthy diet, and suitable clothing. Work hours should not be excessive. All reasonable steps should be taken to safeguard the physical and mental health of workers. Employers should be compliant with health and safety standards. The third area of discussion is the legal regime relating to workers without a right to work. Here no direct comparisons are possible: such workers and their conditions were not a salient issue in the period 1951–​1979. One would expect a social democratic government to comply with domestic and international human rights standards, in particular to respect asylum entitlements and be receptive to well-​founded claims for exceptional leave to enter or remain. It is against these expectations that these three areas of workplace law and practice will be critically assessed. A particular focus will be on what the criminal law can contribute to the meeting of these expectations. But first we must ask to what extent can social democratic values influence the content and form of the criminal law?

3.  Social Democratic Criminal Law The academic study of Anglophone criminal law has been enriched by a group of scholars often dubbed criminal law theorists. Broadly, they take the core of criminal law scholarship to be justifying retributivist responses to particular tokens of wrongdoing.9 Retributivist theorizing is most at ease when dealing with completed wrongful harms: the liberalism of these theorists10 makes awkward acceptance of those offences whose rationale is preventative rather than retributivist and which may criminalize conduct quite remote from the realization of any harm to a legally protected interest.11 Trials for crimes such as murder and rape vividly exemplify the need to respond both morally and effectively to serious wrongdoing. Yet the modern criminal law is also a major 9 Prominent criminal law theorists of this stripe are Antony Duff, John Gardner, Douglas Husak, Michael Moore, and Andrew Simester. There are theorists of a different stripe such as Nicola Lacey and Alan Norrie who insist that conceptual analysis and moral philosophy cannot tell the whole story of the criminal law, a story that must include consideration of the social and political circumstances prevailing at the time of any legislative or doctrinal development to be studied. 10 For discussion of the linkage between liberalism and retributivist theorizing see Paul Roberts, ‘Criminal Law Theory and the Limits of Liberalism’ in AP Simester, Antje Du Bois-​Pedain, and Ulfrid Neumann (eds), Liberal Criminal Law Theory: Essays for Andreas von Hirsch (Hart 2014). 11 For a robust defence of preventative crimes, see Jeremy Horder, ‘Harmless Wrongdoing and the Anticipatory Perspective on Criminalization’ in GR Sullivan and Ian Dennis (eds), Seeking Security: Pre-​empting the Commission of Criminal Harms (Hart 2012).

38  Criminality at Work resource in the regulation of activities that are lawful and useful, in many cases indispensable, yet which in the public interest require regulation. Much of this regulation takes the form of offences of strict liability. The justification of strict liability requires a move from deontology to consequentialism. The move will be resisted by retributivists. It may even be wished away as in the case of Michael Moore: ‘offences of strict liability are not real crimes’.12 But they most certainly are; many strict liability offences can be punished by imprisonment. By contrast, Barbara Wotton, a consequentialist all the way down, dismissed retribution. For her, a move to strict liability across the board was a move to a long overdue modernity.13 This was famously disputed by HLA Hart. He, like Wotton, was a Benthamite when it came to punishment. The practice was justified if conducive to general welfare. But achieving welfare had to be tempered by fairness and justice. Punishment should be restricted to those who broke the law despite having, ‘a fair opportunity and the capacity’ to comply with the law.14 For Hart strict liability was problematic. He accepted that punishment for negligence15 satisfied the fair opportunity and capacity conditions. But contra Hart, there is a role for strict liability in a social democratic criminal law, given its effectiveness in securing compliance with regulatory criminal law and the welfare gains that that entails. Many defendants will be corporations or other organizations subjected to sanctions limited to fines or remedial measures. No individual should be imprisoned for an offence of strict liability unless at a formal, post-​conviction hearing it is proved that the defendant was culpable to a degree warranting a custodial sentence.16 Subject to that, strict liability is justifiable as a regulatory goal, bearing in mind the power, influence, and contumacy of powerful actors resistant to regulation.17 Strict liability has a place in two of the areas of regulation to be discussed, namely health and safety and pay. That is not the case for all aspects of the legal regime relating to the protection of workers with no right to work. The Modern Slavery Act 2015 (MSA) enacts offences of slavery/​servitude and trafficking carrying maximum penalties of life imprisonment.18 Rightly, these offences are not strict: they require proof of culpability. Questionably, ordinary rather than gross negligence19 will suffice as culpability. As sentencing ‘steers by the maximum’ any conviction for these offences will entail lengthy custodial sentences.20 As with strict liability offences no individual found guilty of these offences on the basis of

12 Michael Moore, ‘The Specialness of the General Part of the Criminal Law’ in Dennis J Baker and Jeremy Horder (eds), The Sanctity of Life and the Criminal Law (CUP 2013) 69, 89. For critique see GR Sullivan, ‘Professing Criminal Law’ (2014) 12 Ohio State Journal of Criminal Law 267, 271–​74. 13 Barbara Wootton, Crime and the Criminal Law: Reflections of a Magistrate and Social Scientist (2nd edn, Sweet and Maxwell 1981) ch 3. 14 HLA Hart, ‘Punishment and the Elimination of Responsibility’ in HLA Hart (ed), Punishment and Responsibility (OUP 1968) 158, 181. 15 HLA Hart, ‘Negligence, Mens Rea and Criminal Responsibility’ in ibid 136. 16 Following the decision of the Court of Appeal in R v Newton (1982) 77 Cr App R 13 there must be a post-​trial hearing attended by counsel to resolve any factual matter germane to sentence not agreed by the parties, proved at trial, or implicit in the guilty verdict. 17 AP Simester, ‘Is Strict Liability Always Wrong?’ in AP Simester (ed), Appraising Strict Liability (OUP 2005) 21. 18 Modern Slavery Act 2015, ss 1 and 2. 19 D will be liable if he ‘knows or ought to know’ that the circumstances of V amount to slavery/​servitude or trafficking. 20 Particularly in the case of the trafficking offence it is easy to imagine circumstances where D arranges or facilitates the transportation of V but is no more than obtuse in failing to be aware that V is a victim of trafficking.

Workplace Welfare and State Coercion  39 negligence should be imprisoned unless at a formal, post-​conviction hearing,21 D is proved to be culpable to a degree of warranting imprisonment.22

B.  Workers with no Right to Work Workers lacking a legal right to work in England and Wales will predominantly be from non-​EU countries. Their conditions of work may be so extreme as to amount to ‘slavery, servitude or forced or compulsory labour’ in contravention of Article 4 of the European Convention on Human Rights (ECHR). This provision requires contracting states to take proactive steps to protect workers from these conditions,23 steps which should include criminal sanctions.24 The MSA, section 1 makes it an offence for D to subject V to such conditions.25 The Act also criminalizes trafficking people (transporting from one country to another, or from one part of a country to another part of the country) for the purposes of exploitation,26 an offence in line with the commitments the UK undertook on becoming a party to the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (hereafter ‘Trafficking Convention’)27 and when opting-​in to the EU Directive on Trafficking in Human Beings and Protecting its Victims.28 The slavery/​servitude offence and the trafficking offence carry a maximum penalty of life imprisonment. The offences cover not only situations where D knows he is responsible for V being held in slavery/​servitude or is aware that he is responsible for trafficking V to be exploited but questionably29 also incriminate him for the slavery/​servitude or trafficking ­offences if he ought to have known the circumstances of V made for servitude or to being trafficked for exploitation. It is immaterial if V should consent to servitude or being trafficked for exploitation. For the slavery/​servitude offence it does not matter where in the world the offence is committed. The same applies to the trafficking offence provided that where the exploitation is sexual or relates to the removal of organs, the conduct would amount to an offence if it were carried out in England or Wales. The MSA reaches beyond criminalization and ostensibly reflects a strong institutional commitment to protection and assistance of victims. There is an Anti-​Slavery 21 Newton (n 16). 22 For many years there was consensus among academic criminal lawyers that negligence was an unsuitable culpability standard for serious offence. Hart broke with that consensus, but with the caveat that D must have the capacity to attain reasonable standards of care. A narrower view is taken by AP Simester who would disallow convictions for serious offences based on negligence unless an inference of bad character can be drawn from the token of negligence at issue in the case: ‘A Disintegrated Theory of Culpability’ in Baker and Horder (n 12) 45. That view is taken here. 23 In K and another, R (on the application of) v Secretary of State for the Home Department [2018] EWHC 2951 (Admin), [2019] 4 WLR 92 [37], Mr Justice Mostyn confirmed that Art 4 imposed a duty on government to take active steps to protect and support persons subjected to slavery and servitude. 24 Siliadin v France (2005) App no 73316/​01. 25 MSA 2015, s 1. The focus here is on what the Act can do to protect persons from non-​EU countries who lack entitlement to work. The Act also provides important protection for British and EU citizens subjected to servitude or trafficked for exploitation. 26 MSA 2015, s 2.  Exploitation includes slavery and forced/​compulsory labour and also includes indecent photographs of children, offences contrary to Part 1 of the Sexual Offences Act 2003, unlawful removal of organs, securing services by force, threat, or deception, securing services from children or vulnerable persons. 27 CETS No 197. The Convention was ratified by the UK on 17 December 2008 and came into force on 1 April 2009. 28 2011/​36  EU. 29 See n 20.

40  Criminality at Work Commissioner and independent child trafficking advocates.30 The Secretary of State must issue guidance relating to the identification, assistance, and support of persons found in slavery/​servitude or trafficked for exploitation31 and may make regulations concerning guidance and support.32 Victims may be granted civil legal aid to support claims for leave to enter or to remain or to pursue employment law claims.33 Provision is made for reparation orders to be paid to victims.34 To a limited extent, defences are made available to persons found to be slaves or trafficked for exploitation if they have committed criminal offences arising out of their dire circumstances.35 A recent report by the Gangmasters and Labour Abuse Authority (GLAA)36 indicates that labour exploitation is widespread. As from May 201737 the GLAA has identified 1335 forced or exploited workers, organized fuller and back-​dated payments for individual workers, and made 107 arrests. Unfortunately, this good and useful activity must be contrasted with failures to assist and support. In K v Secretary of State for the Home Department38 Mostyn J inquired of counsel for the Home Office why three years from the passing of the MSA there was no guidance relating to the identification and support of victims, despite the duty the Act imposed for the provision of guidance. Counsel could not assist the court as the Home Office declined to explain the omission.39 The case concerned trafficking victims seeking asylum whose weekly subsistence allowance of £65 had been cut by the Home Office to £37.50, the same rate paid to asylum seekers who were not trafficking victims. Those trafficking victims not seeking asylum continued to receive a £65 subsistence allowance. Mostyn J found that the terms of the contract between the Home Office and the Salvation Army which regulated the delivery of support to trafficking victims by the Salvation Army was squarely at odds with the reduction in the subsistence allowance paid to trafficking victims seeking asylum. The contention of the Home Office that the contract did permit these differing levels of support was ‘irrational and perverse’.40 That sufficed to resolve the case by payment of reparations. Had 30 MSA 2015, ss 40 and 48. 31 MSA 2015, s 49. 32 MSA 2015, s 50. 33 MSA 2015, s 47. 34 MSA 2015, s 8. Reparation is only payable to V if D has been convicted and a confiscation order made against him. In Taiwo v Olaigbe [2016] UKSC 31, [2016] 1 WLR 2653 [34] Lady Hale advised reconsideration of this condition. 35 MSA 2015, s 45. Protection is given to persons subjected to slavery or trafficked for exploitation: s 45(5). S 56 (1), (2) make clear that D is a victim of slavery if she is a victim of any conduct which constitutes an offence under s 1 (the slavery offence) and a victim of human trafficking for exploitation if the victim of any conduct which constitutes an offence under s 2 (the trafficking offence). These provisions extend the protection of s 45 to circumstances occurring before the the MSA came into force. To secure a defence, adult offenders must face compulsion to commit the offence charged, children will be excused if it was reasonable to commit the offence. Many serious offences are excluded from the defence. In R v O [2008] EWCA 2835, [2008] 9 WLUK 11, the Court of Appeal held that the trial of V for offences relating to documents was in breach of her right to a fair trial under Art 6 of the ECHR because she was a person entitled to protection under the Trafficking Convention. In R v L and others [2013] EWCA Crim 991, [2014] 1 All ER 113, the trial and conviction of V for offences relating to cannabis production was an abuse of process because his trafficked circumstances ‘extinguished’ his culpability. These authorities may offer more protection for trafficked persons than the substantive defence provided for in s 45. 36 GLAA, ‘The Nature and Scale of Labour Exploitation across All Sectors’ (May 2018)  accessed 8 May 2018. 37 The GLAA was created by the Immigration Act 2016 and was granted police powers in May 2017. 38 K (n 23). 39 ibid  [6]‌. 40 ibid [23]. The Home Office interpretation of the relevant documentation was utterly implausible. It is difficult to believe that it was made in good faith.

Workplace Welfare and State Coercion  41 it been necessary, Mostyn J would have further ruled that the Home Office had breached Article 14 of the ECHR and section 149(1) of the Equality Act 2010. The major protective gap left unremedied by the MSA is that being found in slavery/​servitude or trafficked for exploitation does not enhance the victim’s UK immigration status. Victimhood of this kind gives no right to enter41 or remain in the UK if V is 18. To remain, V must establish a right to asylum on long-​settled principles or be granted discretionary, exceptional leave to remain for a given period. Victims under the age of 18 are permitted to remain in the UK, but on reaching the age of seventeen and a half must make arrangements to return to the country of origin unless granted exceptional leave to remain.42 This state of affairs is quite deliberate. When the UK ratified the Trafficking Convention and opted in to the EU directive, the protection these measures require was not incorporated into UK law. Instead, there was an executive policy statement by the Secretary of State for the Home Department known as the National Referral Mechanism (NRM). Discretionary leave to enter or remain for persons trafficked for exploitation was only to be granted for ‘compelling’ cases, such as, using an example in the policy guidance, a terminal illness for which there is no treatment in the country of origin. A decision against a seventeen-​year-​old boy known as Stephen discloses the operational reality of the NRM. The Home Office accepted that Stephen when ten was homeless in Hanoi and trafficked to England for forced labour in a cannabis factory. He was convicted for cannabis-​related offences at sixteen and afterwards placed in foster care where he flourished, making very credible applications to universities. The Home Office refused exceptional leave to remain: S had shown: [C]‌onsiderable personal fortitude in relocating (sic) to the UK to establish a life here. There was no reason why he could not demonstrate the same resolve to re-​establish his life in Vietnam.43

The NRM came under scrutiny in R (PK Ghana) v Secretary of State for the Home Department.44 V was trafficked from Ghana, put into forced labour, given little to eat, and suffered mental and physical abuse. The experience left its mark: epilepsy, post-​traumatic stress disorder, depression, and psychosis. V was receiving treatment for all these conditions. Leave to remain for a time sufficient to complete treatment was refused: treatment was available in Ghana, if not of the same standard in England.45 Although V was a slave within section 1 of the MSA, there was nothing in the Act that helped him. Help came from Article 14(1)(a) of the Trafficking Convention. The Secretary of State, after initial resistance, conceded that the UK was bound by the terms of the Convention. Article 14(1)(a) requires the identification of victims of trafficking and an assessment of their personal circumstances so to provide protection and assistance. The Secretary of State’s guidance in the NRM omitted any reference to these obligations and was 41 Leave to enter may be sought by persons present in the UK, who lacked any permission to enter. 42 MSA 2015, s 53 provides for a limited exception for domestic workers who are able to find domestic work with a non-​exploitative employer. 43 Excerpt from Home Office letter, as reported by Amelia Gentleman, ‘Home Office Accused of Cruelty for Ordering Cannabis Slave Back to Vietnam’ The Guardian (2 February 2018) accessed 31 July 2019. 44 [2018] EWCA Civ 98, [2018] 1 WLR 3955. 45 ibid [31].

42  Criminality at Work therefore unlawful. The correct test was not whether V’s circumstances were compelling but whether his circumstances made it necessary to grant leave to remain in order to provide assistance and protection. On the face, PK (Ghana) is helpful for victims of trafficking. Yet the fate of trafficked persons will largely depend on what period of leave to remain an immigration enforcement officer deems necessary for assistance and protection. Mrs May’s ‘hostile environment’ for immigrants runs deep at the Home Office.46 On a particular day, in a particular case, an immigration enforcement officer, conscious of the Home Office deportation target,47 might decide that no period of leave is necessary, whatever the merits of the applicant’s claim. Even applicants seeking to establish rule-​based entitlements for indefinite leave to remain, such as asylum, meet all manner of difficulties, not least unreliable decision making by ground-​ level officials.48 The Immigration Act 2016, building on the Immigration Act 2014, reinforces the hostile environment for immigrants.49 It covers all those workers who are not in servitude or trafficked, who lack the right to work in the UK. For these workers, the very act of working is a crime. Sanctions relating to work done by persons lacking the right to work are not confined to employers. The worker too can be imprisoned or fined. The earnings of the worker can be confiscated as the proceeds of crime. Whether V, who has been brought to the UK, is simply a person who has evaded immigration controls or has breached terms of leave or is, by contrast, a person subjected to slavery/​servitude, or trafficked for exploitation, will frequently be a close-​run thing decided initially by a labour abuse prevention officer, an immigration officer or a police officer. Measures such as the MSA and the ratification of the Trafficking Convention, can be used to claim that the UK is actively engaged in combatting the worst forms of abuse connected with the movement of people. That claim can be challenged by the reality of an oppressive system of immigration control, leading to many breaches of legal/​human rights. This is not a state of affairs that a social democratic government, mindful of its domestic human rights law and international legal obligations, should allow.

46 Exemplified by the Windrush scandal. Persons of Afro-​Caribbean heritage and persons from Nigeria and Ghana, legally present in the UK, found themselves wrongfully detained and in many cases deported because the Home Office considered that they had provided insufficient evidence of their legal status. Additionally persons deemed to lack adequate documentation lost jobs, homes, and access to medical treatment under the terms of the Immigration Acts 2014 and 2016. See Comptroller and Auditor General, ‘Handling of the Windrush Situation’ (5 December 2018) accessed 31 July 2019. 47 For 2017–​2018 some 12,800 enforced returns against a backdrop of limiting net migration to the UK to less than 100,000 persons. 48 A recent Law Society report on the law and practice of immigration reveals that at least 50 per cent of the appeals against initial refusals of leave to enter or remain are found to be flawed by the lower or upper tier immigration tribunals or the Court of Appeal. An application for indefinite leave to enter or remain as a refugee costs £2,927 per person. The unit cost to the Home Office is £252. The appellate process will be costly and the result of a successful appeal is the quashing of the refusal of leave. And so, the process may begin again for those with sufficient resources. The Legal Aid, Sentencing and Punishment Act 2012 in substance removed legal aid for immigration cases. In 2012–​13, legal aid was granted for 22,496 immigration cases, in 2016–​17 there were three legally aided immigration cases. ‘Serious Flaws in UK Immigration System, Law Society Warns’ BBC News (12 April 2018) accessed 31 July 2019. 49 The Acts criminalize all manner of things necessary for normal life such as working, accessing free healthcare, renting property, obtaining a driving licence for immigrants lacking leave to enter or remain. No financial provision is made, however desperate the circumstances of an individual may be, unless there are dependent children.

Workplace Welfare and State Coercion  43

C. Physical Safety 1.  The Health and Safety at Work Act 1974 One might think that there would be general agreement that the workplace should be made as safe as is reasonably practicable. Assessments concerning how to make a workplace safe would, one might think, be a matter of expertise, uninfluenced by political leanings. Yet health and safety is a site of political conflict. Remarkably, individuals who raised safety concerns relating to construction projects or encouraged unionization within the construction industry became persons of interest to Special Branch. Officers passed details of these individuals to private security firms, who in turn passed on their details to employers. This led to blacklisting and unemployment for a significant number of construction workers.50 Strikes have been called by rail unions because of plans to make train drivers, deprived of a guard, solely responsible for passenger safety, regardless of train length.51 Funding for the Health and Safety Executive to oversee compliance with the Health and Safety at Work Act 1974 has been cut. The ensuing reduction of visits to construction sites is a concern for the GLAA.52 Particular health and safety interventions have been imaginatively reported and derided in the press. The criminal courts when interpreting the Health and Safety at Work Act have supported safety standards. In R v Chargot Ltd,53 V was killed in the course of work for D Ltd on a building site. His dumper truck suddenly overturned without any apparent explanation. The House of Lords ruled that the fatality of itself proved a failure to provide for V’s safety unless D Ltd could prove that it was not reasonably practicable to prevent the accident, something that could not be done in the absence of an explanation for it. In terms of optimizing safety, the decision is welcome. Nonetheless, the case is a striking example of absolute liability, the most stringent form of strict liability. The prosecution could not pinpoint anything omitted which would have prevented the accident. Such severity should be confined to fiscal sanctions against companies. At the time of Chargot, criminal liability under the Act also established a breach of statutory duty on which a civil claim could be based without the need for proof of negligence. The right to sue for breaches of the Act has been removed.54 This is unfortunate. There is a lot to be said for the analysis in Chargot as the basis of a civil law claim.

2. Corporate Manslaughter The Health and Safety at Work Act is regulatory criminal law so expansive interpretation is to some extent acceptable. Some large-​scale disasters gave rise to a strong sentiment that a 50 Metropolitan Police role in blacklisting construction workers; Dominic Casciani, ‘Metropolitan Police Admits Role in Blacklisting Construction Workers’ BBC News (23 March 2018) accessed 31 July 2019. 51 Strike action has been taken by staff in City Thameslink, Southern Trains, South Western Railways, and Northern Trains. 52 In a recent report the GLAA estimated that 50 per cent of construction workers were migrant workers who were likely to be allotted the most dangerous tasks: GLAA, ‘Labour Exploitation’ (n 36). 53 [2008] UKHL 73, [2009] 1 WLR 1. 54 Enterprise and Regulatory Reform Act 2013, s 47.

44  Criminality at Work regulatory response was inadequate to the occasion. The Zeebrugge tragedy in particular, focused attention to corporate cultures (‘P&O was infected with the disease of sloppiness from top to bottom’).55 The idea grew that organizations in their character as organizations could be culpable and could be blamed and punished as culpable agents. That idea led to the offence of corporate manslaughter. Corporate manslaughter reaches beyond workers but includes workers. If a worker is killed in the course of her work, if her employer is a company or organization, it may be guilty of manslaughter. On the face of it, this offence should have salience. Fines are unlimited: the reputational damage arising from a conviction for manslaughter is something to avoid. To date, however, the impact of the offence has been underwhelming.56 No company of any size and complexity has been convicted. What needs to be proved is unduly complex. Establishing a collective gross breach of a duty of care by a large organization’s senior management may involve scrutiny of the conduct of many individuals over an open-​ended period of time, commencing well before the proximate causes of the death(s) in question. Arguably, the concept behind the offence—​corporate agency—​is ontologically and normatively misconceived.57 Be that as it may, a simpler offence might be more effective. Such an offence might require proof that at least one person in the company, whatever their status, had the culpability for gross negligence manslaughter when becoming at least partly responsible for causing a fatality. Organizational liability for manslaughter would then follow, unless the organization could prove that it had done everything that was reasonably practicable to avoid deaths of the kind that had occurred.

3.  Never Safe Enough: The Case of Boxing A social democratic government might ask itself whether certain forms of work are so inherently unsafe, that they should not be forms of lawful employment. Some jobs can never be safe: the military, police, and emergency services are obvious examples. A degree of exposure to danger is a given. The social need for such jobs is plain. But there are other dangerous choices lacking any obvious public benefit. For instance, V may choose to be a sex worker and sometimes that choice will be an unconstrained choice. Arguably, the choice to do sex work should be disallowed,58 not least because of the physical dangers, and the prevalence of addictions and mental stress among sex-​workers.59 Here, we will consider the choice to be a professional boxer, fighting in tournaments supervised by the British Boxing Board of Control.60 Such a career choice is a dangerous choice. Typically, a commitment to 55 J Sheen, ‘MV Herald of Free Enterprise:  Report of Court No 8074 Formal Investigation’ (September 1987)   accessed 31 July 2019. 56 Celia Wells, ‘Corporate Criminal Liability—​A Ten-​Year Review’ [2014] Criminal Law Review 849. 57 GR Sullivan, ‘Expressing Corporate Guilt’ (1995) 15 Oxford Journal of Legal Studies 281; ‘The Attribution of Culpability to Limited Companies’ (1996) 55 Cambridge Law Journal 515. 58 The form of disallowance should involve criminal liability for organizers and customers but not for the sex worker. 59 There are also important arguments arising from the fact that the great majority of sex workers are women, a fact with implications of that for gender equality. 60 Founded in 1929 and the governing and rule setting body for the sport in the UK. The existence of such an organization with associated disciplinary procedures is important in the judicial acceptance that an injury is a sporting injury from which no criminal liability ensues: R v Barnes [2005] 1 WLR 910.

Workplace Welfare and State Coercion  45 such a career will involve fighting from the late teens/​early twenties to the mid-​thirties and even beyond. There will be some risk of premature death, a considerable risk of incurring serious physical injuries, and a very considerable risk of cognitive impairment the more fights a boxer has. The choice to box professionally is seen as a route to self-​fulfilment and prosperity by talented, and not so talented, amateur boxers. Big fights have world-​wide television audiences, raise large profits, and create a range of ancillary jobs for non-​boxers. Why should this form of commerce be closed off? For the forms of liberalism that dominate Anglophone criminal law theory, there should be no question of closing it off. Mill’s enormously influential harm principle,61 lays particular stress on the sanctity of autonomous choices which impact on the agent, and the agent alone. Whereas premature death, serious injury, and depersonalizing cognitive impairment are considerable setbacks to interests, on Mill’s liberal conception of state authority, they are not harms of any concern to the criminal law. If a pair of boxers, D and V, voluntarily agree to fight at a tournament, they commit no crime even in the case where D kills V by a powerful and carefully aimed blow, something endorsed though not explained by adherence to Mill’s harm principle.62 The harm principle offers a thin, denatured account of the effects of human interactions. Take V whose boxing career has ended. He has early onset dementia because he has taken many blows to his head. It is a progressive condition, which will lead to irascibility and unpredictability, destructive of close human relationships, and costly in terms of medical, familial, and social care. Sometimes, the brain damage incurred in a brutal fight will entail complete paralysis and a state of total dependence. It would be perfectly appropriate for a social democratic government to commission an inquiry into the harms and benefits of boxing and seek electoral support for its abolition if it concluded that overall, material welfare was diminished rather than enhanced by allowing professional boxing.63 This is most unlikely to happen in England and Wales in any foreseeable future. Not so long ago, any fatality or a profound injury occurring in a British boxing ring would give rise to public debate about the banning of the sport. Fatalities and profound injuries still occur but the debate is largely absent. The medical consensus that once favoured the abolition of the sport64 is no longer so settled.65 There is now a general reluctance to regulate the lifestyle choices of others. There is so much to say in favour of this development, that one must row upstream if advocating any curtailment of choices.66 It is accepted that boxers choose to be boxers. One should also accept that the choice is a lawful choice to engage with a lawful activity.

61 John Stuart Mill, On Liberty (JW Parker & Son 1859). 62 The long-​standing legality of boxing is not institutionally based on adoption of Mill’s harm principle but on a conception of boxing as an acceptable, even honourable activity—​‘the noble art of self-​defence’—​contrasting say, with organized, painful yet safe sado-​masochism. See R v Brown [1993] UKHL 19. 63 The argument for abolition is put here in terms of the welfare of boxers, yet undeniably a campaign for abolition will attract the support of persons who morally disapprove of boxing as an uncivilized practice. If boxing were to be abolished, sanctions should be visited on organizers and profit takers rather than on boxers. 64 British Medical Association, ‘The Boxing Debate’ BMA ( 1993) accessed 31 July 2019. 65 Raanan Gillon, ‘Doctors Should Not Try to Ban Boxing—​But Boxing’s Own Ethics Suggests Reform’ (1998) 24 Journal of Medical Ethics 3. 66 Which is why so much of the literature advocating the abolition of the sex trade seeks to establish that very few women working in the sex trade have chosen such work.

46  Criminality at Work This acceptance of the legality of boxing cannot be explained by referencing clear and settled law. There is no legislation or leading case establishing the legality of boxing. The leading case on its precursor–​–​bare knuckle prize fighting–​–u ​ nequivocally rules that this form of fighting is unlawful.67 A distinction is drawn between prize fighting and boxing but in very guarded terms: ‘boxing with gloves [does not make for an assault] if done in the ordinary way, and not with ferocity and severe punishment’.68 This circumspection conforms to the general principle of English law that consent may only be given for harm that is less than actual bodily harm unless a special exception applies.69 Organized sporting activity is such an exception, but the case-​law70 consistently draws a line between injury incidentally arising during the course of play and deliberately inflicted injury, the latter being outside the exemption. Indeed, deliberately inflicted injury is taken to be unlawful even if within the rules of the game.71 Yet, in boxing, directly knocking out or otherwise incapacitating the opponent is the surest way to win the fight. In the leading case of R v Brown, Lord Mustill confessed himself bemused by the acceptance that boxing is lawful.72 But it surely is because it is organized, publicized, and practised so openly, without any challenge by law enforcement authority.73 These social facts have obtained for well over a century. They seem more embedded than they have ever been.74

D.  Pay—​The National Living Wage and Minimum Wages The National Minimum Wage Act 1998 (NMWA) made mandatory a minimum rate of pay. An employer in breach of this obligation will not only incur civil fiscal sanctions,75 but will commit a criminal offence on refusal or wilful neglect to pay the required rate or comply with record-​keeping obligations.76 The rate for workers of twenty-​five and over has been rebadged as the National Living Wage, with lesser rates for younger workers and apprentices. The current rates, together with upgrades scheduled for April 2019 are as follows: NLW, £7.83 (£8.21); workers aged 21–​24, £7.38 (£7.70); workers aged 18–​20, £5.90 (£6.15); workers between 16 and 17, £4.20 (£4.35); and apprentices £3.70 (£3.90). It has 67 R v Coney (1882) 8 QBD 534. 68 ibid (Cave J). 69 Brown (n 62). 70 The leading case is Barnes (n 60). 71 R v Bradshaw (1878) Cox CC 83. 72 In Brown (n 62) the infliction of pain for sexual gratification was found to be unlawful as some of the injuries inflicted amounted to actual bodily harm. None of the injuries required medical attention. Yet it does seem to be lawful, even to cause somebody’s death, when fighting for money at an organized boxing event. 73 This assumption that social facts can generate legal norms is hard to square with the view that any norm to be a valid member of a legal system must be traceable back to a rule of recognition or grundnorm. See Brian Simpson, ‘The Common Law and Legal Theory’ in William Twining (ed), Legal Theory and Common Law (Basil Blackwell 1986) 8, for the argument that not all legal norms can be captured by the enclosed, seamless criteria for legal validity as proposed by Hart and Kelsen. 74 Indeed, forms of fighting more violent than boxing such as cage fighting are openly organized and televised without any legal intervention. One assumes there are some limits. Irving Kristol famously challenged libertarians what they would make of commercially organized gladiatorial combats between competitors agreeing to fight until the death of themselves or the opponent. Consistent followers of Mill’s harm principle should have no qualms about such contests provided the competitors and the audience are volunteers. However, Joel Feinberg, the leading modern expositor of the harm principle, conceded the force of Kristol’s example and had no objection to the proscription of such contests as ‘free-​floating evils’: Joel Feinberg, Harmless Wrongdoing (OUP 1998) 321–​23. 75 NMWA 1998, s 21. 76 NMWA 1998, s 31.

Workplace Welfare and State Coercion  47 been estimated that 5 million workers and apprentices are receiving their respective minimum rates of pay.77 The contribution that a minimum wage makes to general welfare is disputed by economists. For neo-​classical economists, a minimum wage will cut hours for workers in post, and supress recruitment until market equilibrium is restored.78 That view is now challenged by institutional economists more interested in economic practice than theory.79 In the case of the of the UK economy, the introduction of minimum wage rates has coincided with historically high levels of participation in the labour market. Yet the Living Wage and the lesser rates are low wages. The lot of many workers is monotonous drudgery for scant reward: ‘[h]‌ardship has forced people into worse jobs, demanding fewer skills and lower capital investment, so that Britain’s productivity has stalled to a degree not seen since the Industrial Revolution.’80 One obvious response is a much higher minimum wage. Before considering that, we must first examine the extent of compliance by employers with the legal duty to pay the Living and Minimum wage.

1.  Enforcing the Living and Minimum Wage The possibility of coercive reparations and sanctions including criminal sanctions is essential to achieve general compliance and to respond effectively to cases of non-​compliance. An estimate of non-​compliance made in September 2017 for workers over twenty-​five reported figures of 305,600 workers receiving less than the National Living Wage, or alternatively 278,000 such workers, according to which data base was used for the estimate.81 These are ball-​park figures and do not include the informal economy. The usual suspects–​–​retail, hospitality, cleaning, security, transport, deliveries, and child care–​–​feature as non-​compliant black spots but, surprisingly perhaps, the largest group numerically were salaried workers (paid by the month) but with no specified hourly rate.82

77 Low Pay Commission, National Minimum Wage: Low Pay Commission Report 2018 (CM9717, Crown 27 November 2018) [6.33] accessed 31 July 2019. 78 George J Stigler, ‘The Economics of Minimum Wage Legislation’ (1946) 36(3) American Economic Review 358. This remains a major point of reference in the minimum wage debate. 79 David Card and Alan Kreuger, Myth and Measurement: The New Economics of the Minimum Wage (Princeton University Press 2015). The argument continues. The World Bank has circulated a draft report (2018) advocating the abolition of minimum wages to better empower human beings to meet the challenges of machine learning and robotics. 80 William Davis, ‘What Are They After?’ (2018) 40 London Review of Books 4. Not only is the pay low but working conditions can be abysmal. James Bloodworth in his Hired: Six Months Undercover in Low Wage Britain (Atlantic 2018) convincingly demonstrated among other things what a harsh employer Amazon is. Workers wear a wristband that pinpoints the exact location of a warehouse worker and tracks their hand movements. A company, Humanyse, whose business is ‘people analytics’ manufactures an identity badge which contains a microphone to monitor conversations between employees, an infra-​red sensor to pinpoint where individual employees are, and an accelerometer to track when they move. The product is widely sold, but the company refuses to reveal which organizations they supply. Such intense workplace surveillance should engage for European workers, Art 8 of the ECHR. 81 Low Pay Commission, ‘Non-​Compliance and Enforcement of National Minimum Wage’ (September 2017) [1.13]–​[1.20] https://​assets.publishing.service.gov.uk/​government/​uploads/​system/​uploads/​attachment_​data/​ file/​645462/​Non-​compliance_​and_​enforcement_​with_​the_​National_​Minimum_​Wage.pdf accessed 31 July 2019. 82 ibid [2.8].

48  Criminality at Work Ensuring the payment of living and minimum wages is the ultimate responsibility of the Department of Business, Energy and Industrial Strategy while the enforcement process, including the payment of reparations, is entrusted to HMRC. The HMRC allows ‘self-​ correction’. If a firm or individual makes an accurate disclosure of payment arrears and pays out those arrears, the file is closed if there is an assurance of future compliance. Where that process fails the revenue may impose a civil penalty resulting in payment of double the arrears, up to a limit of £20,000 for each worker, payment to each worker of arrears, and naming and shaming if the arrears for individual workers exceed £100. For the worst cases, criminal proceedings (which will be conducted by the Crown Prosecution Service (CPS)) may be brought. This is rare. Since 1998 to September 2017, only thirteen criminal prosecutions have been brought. Such proceedings are expensive and may be something of a damp squib as the penalty is capped at a fine, not exceeding level 5. Arguably, civil penalties are just a form of business overhead and insufficient as a deterrent. The criminal armoury has been recently strengthened with the introduction of a Labour Market Enforcement Undertaking (LMEU), which requires firms or individuals to take practical steps to correct non-​compliant behaviour including failure to pay the ­minimum wage.83 Where steps are not taken or an undertaking order is refused, the business can be prosecuted for breach of an LME order (LMEO). The maximum penalty is a two-​year custodial sentence and/​or an unlimited fine. Moreover, a court convicting for the ­offence of underpayment can attach an LMEO. It remains to be seen how much the threat or the use of imprisonment will be used for cases of failure to pay the minimum wage.

2.  Employers Evading Paying the National Living Wage: Two Devices, Zero Hours Contracts; Working as an Independent Contractor A zero hours contract (where V must make herself available to work for D Ltd but is not guaranteed any given amount of work) is a device that can be used to decrease pay and related benefits. Zero hours contracts came under review in the Taylor report.84 If V cannot say at any point in time what her annual pay might be, this will make calculation of any tax credits and benefits that may be due very difficult. She may well be paid the minimum wage for each hour worked but still be paid far less annually compared to the days when she was guaranteed forty hours plus overtime rates for additional hours worked. Unfortunately, there is nothing in the minimum wage legislation to help her. It enforces an hourly rate. It does not enforce a minimum income for full-​time workers. Failing legislation which will formulate a sharp distinction between full-​time and part-​time work and which will stipulate a minimum annual income for full-​time work, zero hours contracts can be used to evade in substance if not in form, payment of the minimum wage. Another way that V may be deprived in substance of an effective minimum wage is to be refused employment as such, but offered instead payment for working as an independent contractor. For example, the delivery firm Hermes has contracts with some 15,000 ‘life-​style 83 Immigration Act 2016 (as amended), s 14(4)(b). 84 Matthew Taylor and others, ‘Good Work: The Taylor Review of Modern Working Practices’ (Department for Business, Energy & Industrial Strategy, July 2017) accessed 31 July 2019.

Workplace Welfare and State Coercion  49 couriers’ who are paid per delivery, earning less than the minimum wage. HMRC is investigating the legality of these contracts.85 If V is looking for work as, say, a taxi drive or a courier, working as a service provider rather than an employee, apart from receiving less than the Living Wage, there will be no National Insurance payments and no holiday and sickness pay. Payment for services is not covered by minimum wage legislation and can be anything agreed between D Ltd and V. Some successes have been achieved before tribunals by V proving that she was an employee rather than a service provider.86 In Pimlico Plumbers Ltd v Smith87 the claimant, a plumber by trade, was found to be a worker for the company within the meaning of section 230(3) of the Employment Rights Act 1996 rather than an independent trader providing services. The Supreme Court made this finding following a careful scrutiny of a voluminous contract that sought to create an independent trader status for the claimant while at the same time subjecting him to a strict working regime to be carried out according to the letter. Several features of Pimlico Plumber’s practices swung the case the claimant’s way:  a branded uniform; a branded van with a tracker; an identity card; detailed instructions from the control room.88 Very likely there will now be attempts by companies and their advisors to organize themselves in a way that avoids any direct replication of the features that did down Pimlico yet retain a workforce denied the status and protections enjoyed by workers/​ employees.89 Far better would be legislation that encapsulates the clear distinction between persons who provide, as required, specialist advice and ad hoc services to organizations in general and are not tied to one organization, and, by contrast, persons who on a regular basis make the products or provide the services that comprise the core business of the company and its associated companies. The latter are workers/​employees in substance, a fact that should be recognized in law.90 The National Centre for Social Research estimates that there are 2.8 million workers in what is called the gig economy, many on zero hours contracts, or made to work as self-​ employed service providers. It seems that circa 700,000 of the persons in these circumstances earn less than the minimum wage.

3.  Employees Colluding with Employers to Evade the National Living Wage Collusion may occur in many different circumstances: V1, on reaching the age of twenty-​five, is to be paid the National Living Wage. The increased pay will lead to a loss of credits and benefits, leaving her worse off. She agrees 85 Robert Booth, ‘Hermes “Trained Managers to Mislead Tax Inspectors” ’ The Guardian (4 May 2018) 12 accessed 31 July 2019. 86 Tribunal verdicts to that effect have been achieved against Addison Lee, City Sprint, e Courier, Excel, and Uber. 87 [2018] UKSC 29, [2018] 4 All ER 641. 88 ibid [48]. 89 For instance, where workers can be assigned to different locations, each location could be designated as a franchise area and the workers would be described as franchisees. One might also anticipate greater use of a contractual term allowing the ‘service provider’ to appoint a substitute to perform the services should need arise, a term which may not reflect any intention of using substitutes. 90 In the ‘Good Work Plan’ (Department for Business, Energy & Industrial Strategy 17 December 2018)  accessed 31 July 2019, the government has undertaken to examine the issue of workers versus service providers with a view to remedial legislation if deemed necessary.

50  Criminality at Work with her employer to reduce her hours as reported but in reality, to work the same hours. She works at the National Living Wage rate for the work hours recorded, but ‘off the books’ she receives less than that rate for the hours worked. She is content with the arrangement. V2 is an ambitious young chef. He is anxious to do a stint at a renowned London restaurant with a view to upping his skills, enhancing his profile, with the ultimate objective of attracting financial backing to open his own restaurant. He agrees to accept £5 an hour in cash. The restaurant keeps no record of his employment. V3 has a strong desire to work in fashion. She sees the following notice from French Connection ‘PR and Marketing Placement. Successful applicant will for 12 months provide trend reports, manage media data base, monitor press reports, and file press clippings. Zone 1–​6 travel card and lunch money’. She is delighted to be chosen for the position. In the cases of V1 and V2 we can be sure that the employer is in breach of the NMWA. The same assurance cannot be offered for the employer of V3 and discussion of the position of V3 and her employer is deferred for now. Are V1 and V2 criminally liable along with their employers? In principle and in terms of social policy, should they be found criminally liable? There would seem to be no obvious grounds for distinguishing between these two cases. However, it seems that V1 will breach the Act as a principal offender whereas V2 may not commit any offence. In V1’s case she, ‘allowed to be made in a record [of the amount of remuneration paid] an entry which she knew to be false in a material particular’ thereby infringing the NMWA.91 By accepting cash payments less than the living wage, V2 does not commit any offence under the Act, but he has agreed with his employer to accept lesser payments, thereby assisting the employer’s ­offence of underpayment.92 Arguably then, he could be charged with conspiracy to breach the Act and liable for the offence of underpayment as an accomplice. In the very unlikely event of the CPS agreeing with HMRC to prosecute V2, he could defend himself by reference to the case of R v Tyrell93 which ruled that if an offence is created for a vulnerable class of persons (in the case itself girls under the age of sexual consent) it would undermine the rationale of the offence to convict members of the protected class as accomplices, irrespective how willing their collusion with the principal offender. If that lets V2 off the hook, the same should apply for V1. There is much to be said for extending Tyrell to principal offenders where the defendant commits the offence in circumstances where essentially, in terms of the policy of the offence, she is the victim of the offence rather than the perpetrator. But what of V3 and her employer? There are clearly entirely legitimate offers of work experience as an intern, such as the opportunity offered by the Guardian newspaper to aspiring journalists to spend a fortnight observing and to some extent participating in the various stages of producing a daily newspaper and its online version. Other newspapers offer longer stays, up to three months in some cases. Some magazines offer engagements of up to twelve months and the same applies to the fashion industry, book publishing, positions with theatre and dance companies, and assistance to MPs. A recent study reveals that 48 per

91 NMWA 1998, s 31(3). Some of the offences created by this section are confined to the employer but the false record offence can be committed by ‘any person’. 92 NMWA 1998, s 31(1). 93 [1894] 1QB 710.

Workplace Welfare and State Coercion  51 cent of internships are unpaid, 27 per cent offer expenses, and 12 per cent, no pay, no expenses.94 Generally, the longer a person stays, the more useful she will become and find herself working rather than watching others work. A person such as V3 can be both privileged and exploited. Many young persons wish to work in fashion, but not that many could afford a point of entry into that industry by working for nothing for twelve months, particularly in London.95 Insisting that work should be paid for at some state enforced minimum rate militates against the exploitation and widens access for persons from all socio-​economic backgrounds. A private members bill96 proposes to limit unpaid work experience to four weeks with the applicable minimum wage rate to be paid once that period has elapsed. Whatever the fate of that bill, the HMRC could at this point in time usefully explore and police the line between work experience and work. It could presume that any internship/​work placement position becomes work per se after four weeks has elapsed, work that must be paid for at the applicable minimum rate.

4.  Is the National Living Wage High Enough? The Living Wage Foundation recommends that employers in London should pay employees at least £10.20 and elsewhere in the UK the hourly rate should not be less than £8.75. The Foundation estimates that because of wage stagnation since 2007, a person on the minimum wage in 2017 (£7.50 then) would have lost £1,809 in annual purchasing power to meet the costs of housing, childcare, transport, and food. The current increase in the NLW is more than offset by the freeze on household benefits entailing average, annual losses of £200 for minimum wage households. By 2020 it is estimated that freezes and cuts on benefits will entail annual losses of £1,000 for these households. Housing costs are a major cause of impoverishment. Home ownership is out of reach for millions with an average house price outside London of £232,554 and an average London price of £482,241.97 The average salary of a first-​time house buyer is £53,000, more in the bigger cities, and £84,000 in London.98 In 1980, when the ‘right to buy’ council homes was introduced, there were 6.5  million council houses, which housed approximately 40 per cent of the population.99 Now there are 2 million council and financially supported social houses and flats. Over 40 per cent of ex-​council houses are in the hands of private landlords. Outside London, the average council/​social housing rent in 2017 was a weekly £102; for privately owned accommodation it was £192. For London, the corresponding figures are 94 See further, Carl Cullinane and Rebecca Montacute, ‘Pay as You Go’ (Sutton Trust 23 November 2018) accessed 31 July 2019. 95 The Sutton Trust estimates that a single person needs at least a monthly net sum of £1,019 to live in London. 96 Sponsored by Lord Christopher Holmes in the House of Lords and Alec Shelbroke MP in the House of Commons. 97 ‘National Statistics UK House Price Index Summary: September 2018’ (HM Land Registry 14 November 2018)   accessed 31 July 2019. 98 Richard Partington, ‘First-​time Buyers: Average Salary Requirement Rises 18% in UK Cities’ The Guardian (27 September 2018) accessed 31 July 2019. 99 The large-​scale house building programme initiated by the Atlee government, together with that government’s creation of the NHS, established the British state as the major provider of shelter and security for a large part of the general population. Conservative governments until Thatcher also built many council houses though often to a lower specification compared to the houses built by Labour.

52  Criminality at Work £132 and £309.100 For persons between the ages of 25–​34, 27 per cent own their own homes, while 46 per cent rent from private landlords. It has been estimated that 33 per cent of those currently paying rent to private landlords will be doing so at the point of retirement and beyond.101 The accommodation provided is often far from ideal. Tenancies are typically for six months only.102 A core aspiration of our imaginary social democratic government was that an individual adult wage earner should be able to feed, clothe, and shelter his or her dependents. Such a modest aspiration was delivered by successive UK governments over many post-​war decades. We are a long way from that now.103 The prevalence of foodbanks and the rise in homelessness starkly evidence the inadequate provision of state-​funded welfare.

100 The rent payments as published by Countrywide Estate Agents, ‘Monthly Lettings Index—​January 2018’ (12 February 2018) accessed 31 July 2019. 101 Assuming merely incremental increases in state and private pensions, very large amounts of housing benefit will have to be paid to these retirees to keep a roof over their heads. 102 For an instructive account of the economic and social consequences of the demise of council housing, see John Broughton, Municipal Dreams: The Rise and Fall of Council Housing (Verso 2018). 103 Two recent films, I Daniel Blake (2016) and Sorry We Missed You (2019) both, directed by Ken Loach, vividly expose the truth about the condition of the working poor in twenty-​first century Britain.

3

Using Criminal Law to Enforce Statutory Employment Rights David Cabrelli*

A.  Introduction It is a trite statement that individual and collective employment rights without enforcement are paper tigers. To the labour lawyer whose work has predominantly focused on the amalgam of the private law and statutory regulation of the contract of employment, a seductive, albeit more difficult, claim is one positing that such enforcement should fall within the exclusive province of the civil law. It is ‘seductive’, to the extent that the intuition of such a specialist would tend to suggest that–​–​being rooted in the contract of employment1—​the employee–​employer relationship is located within the private sphere. This gives rise to the proposition that civil, rather than criminal, proceedings ought to guarantee the vindication of employment rights, that is, that traditional means of enforcing private law, namely civil enforcement, should take the lead. However, it is at once ‘difficult’ because it clearly dismisses a role for the criminal law without explanation or demur. Hence, despite its simplicity, the claim that compliance with statutory employment rights is a matter for the civil law should be suspended until it has been more intensely scrutinized. This approach is particularly important in light of Lord Reed’s reminder of the public character2 of statutory employment rights in R (on the application of UNISON) v Lord Chancellor.3 Having a public nature, something more than simply civil enforcement might be demanded. The following section of this chapter (section B) is of an expository character, being devoted to a mapping out of the key employment rights with a statutory source where an exclusive or shared role for the criminal law is encountered. Afforded equal status in this process is an account of those statutory employment rights where the criminal law is far ­removed from debates concerning enforcement. This descriptive exercise will naturally ­entail a review of the principal labour law statutes.4 Having produced such an account, * Professor of Labour Law, University of Edinburgh. I  am indebted to James Edwards, Andrew Cornford, Anthony Duff, and the editors for discussions regarding the content and writing of this chapter. 1 See Mark Freedland, The Personal Employment Contract (OUP 2003); Mark Freedland and others (eds), The Contract of Employment (OUP 2016). 2 For discussion, see Michael Ford, ‘Employment Tribunal Fees and the Rule of Law:  R (Unison) v Lord Chancellor in the Supreme Court’ (2018) 47 Industrial Law Journal 1, 9–​15, 44–​45; Alan Bogg, ‘The Common Law Constitution at Work: R (on the application of Unison) v Lord Chancellor’ (2018) 81 Modern Law Review 509, 515–​16. 3 [2017] UKSC 51, [2017] 3 WLR 409, 433C–​E (Lord Reed). 4 The Employment Rights Act 1996 (ERA), the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), the Equality Act 2010 (EqA), the National Minimum Wage Act 1998 (NMWA), the Health and Safety at Work, etc Act 1974 (HSWA), and the Working Time Regulations 1998, SI 1998/​1833 (WTR). David Cabrelli, Using Criminal Law to Enforce Statutory Employment Rights In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.003

54  Criminality at Work section C takes a theoretical and analytical turn. It assesses whether contemporary theories of criminal law have the capacity to illuminate the regulatory environment. As part of that process, one of the most compelling criminal law theories is probed within the rubric of the descriptive narrative provided in section B. This exercise is intended to determine whether the legislative position in the UK can be justified in terms of this normative theory. The larger enterprise of which this third section forms part will be conducted by pursuing an evaluative framework throughout, taking labour laws with their foundation in legislation–​–​ as opposed to the common law–​–​as the primary focus.

B.  Charting the Criminal Enforcement of Statutory Employment Rights A cursory glance at the content of the ERA, TULRCA, EqA, NMWA, etc would suggest that Parliament has a tendency to prioritize the civil enforcement5 of contraventions of labour laws, with a casuistic, individual litigation-​driven model generally laid down. Under this framework, compliance and enforcement is channelled principally through the employment tribunal system,6 although the courts operate as a subsidiary or supplementary option: ‘[i]‌n general, statutory employment rights in Britain are enforced by individuals taking cases to the employment tribunals’.7 Three simple illustrations suffice. Section 111 of the ERA prescribes that the right not to be unfairly dismissed at work under section 94 of the ERA is enforceable by an employee presenting a complaint to an employment tribunal. Likewise, claims brought in respect of discrimination law in the workplace are to be presented as a complaint to an employment tribunal under section 120 of the EqA. Meanwhile, the enforcement of unlawful deductions from wages claims under Part II of the ERA8 and equal pay claims under Chapter 3 of Part 5 of the EqA9 is shared between the employment tribunal and the courts. The ubiquity of civil remedies in labour law statutes might suggest a presumption against criminalization in principle, but the most that can be claimed is that the prevailing legislative pattern provides evidence of an underlying political preference in favour of civil enforcement. As noted at the outset, the fact that in practice we encounter such a preference for civil law remedies may also give rise to the normative argument that we ought to eschew a role for criminalization in the field. However, that would be wide of the mark, since it entails the derivation of an ‘ought’ from an ‘is’, that is, the argument that we should reject the criminalization of statutory employment rights because in practice, their enforcement is predominantly confined to the civil law—​is palpably false. Instead, 5 See generally, Gillian S Morris, ‘The Development of Statutory Employment Rights in Britain and Enforcement Mechanisms’ in Linda Dickens (ed), Making Employment Rights Effective (Hart Publishing 2012) 10–​14; for the negative aspects of this model, see Lizzie Barmes, Bullying and Behavioural Conflict at Work (OUP 2016) 38–​47; Dave Renton, Struck Out (Pluto Press 2012) 2–​21. 6 See Linda Dickens, ‘Employment Tribunals and Alternative Dispute Resolution’ in Linda Dickens (ed), Making Employment Rights Effective (Hart Publishing 2012) 29. 7 Morris (n 5) 10. 8 See ERA 1996, ss 13, 23, and 24. An unlawful deduction also constitutes a breach of contract, thus enabling an employee to raise a court action seeking damages. 9 The EqA 2010, s 129 enables a protected individual to present a complaint to an employment tribunal. A common law court action for damages is prescribed by the EqA 2010, s 128: see Abdulla v Birmingham City Council [2012] UKSC 47, [2012] ICR 1419.

Using Criminal Law to Enforce Employment Rights  55 a role for the criminal enforcement of statutory employment rights is undoubtedly legitimate. A separate point is that civil and criminal enforcement in this context should not be viewed as mutually exclusive. As we will see, shared enforcement is not that unusual in the case of employment rights. One of the criticisms of an insistence on a civil litigation framework of enforcement of labour laws centres on its inability to secure more powerful or redistributive outcomes. For example, where certain rights are fundamental in nature or represent a reflection of the collective goals or shared values of a community, there is an argument that more symbolic10 forms of enforcement and remedies are needed. In short, here, civil enforcement is not enough. From the perspective of securing compliance, the absence of any involvement for criminal adjudication will be of concern in many fields of the law. But even more so in the case of labour law, which can only be properly understood in light of its objectives and social/​vocational mission,11 namely to push back against the inequality of bargaining power intrinsic to the employment relationship.12 Of course, the classic counterpoint to the general proposition that labour law is predominantly enforced civilly13 finds its expression in section 33 of the Health and Safety at Work Act 1974 (HSWA). This statutory provision makes it an offence for an employer to fail to discharge various duties or to contravene any of the terms of the multitude of Health and Safety Regulations.14 The only adjunct to criminal proceedings is public agency enforcement by the Health and Safety Executive (HSE).15 As such, orthodoxy is turned on its head. This demands an explanation. Or at the very least an attempt at such a justification, which is a task to which section C of this chapter is dedicated. It may be useful for analytical purposes to evoke a tripartite taxonomy of statutes conferring employment rights, reflective of the varying dimensions of complexity involved in the enforcement of labour laws. The first category is embodied by those statutes that confer employment rights where enforcement is exclusively private or carried out or assisted by a public agency, for example the Equality and Human Rights Commission. At the polar opposite is the third category, where we find exclusively criminal enforcement undertaken by the police and Crown Prosecution Service (CPS) or investigation delegated to specialist agencies such as the Gangmasters and Labour Abuse Authority with prosecutions subsequently conducted by the CPS. The criminal forms of intervention can range from the prescription of more traditional forms of offences carrying the sanctions of imprisonment or fines, to quasi-​criminal public agency enforcement (eg the Certification Officer’s powers in TULRCA, the powers of the HSE under the HSWA, or those of the HMRC in terms of the NMWA), licensing requirements,16 breach of which triggers criminal sanctions, and preventive measures and orders to control managerial 10 However, criminal enforcement may not necessarily be stronger or more powerful than civil litigation, and may, in fact, be weaker, eg owing to the higher standard of proof in the case of criminal trials. 11 See Hugh Collins, ‘Labour Law as a Vocation’ (1989) 105 Law Quarterly Review 468. 12 Paul Davies and Mark Freedland (eds), Kahn-​Freund’s Labour and the Law (3rd edn, Stevens 1983) 18. 13 For other exceptions to the privatized model of justice, see Ford (n 2) 5–​8. 14 The various penalties are set out in the HSWA 1974, sch 3A. HSWA 1974, s 47 expressly disavows civil liability for breach of statutory duty. 15 See Steve Tombs and David Whyte, ‘Reshaping Health and Safety Enforcement: Institutionalising Impunity’ in Linda Dickens (ed), Making Employment Rights Effective (Hart Publishing 2012) 67. 16 See ACL Davies’ c­ hapter 13 in this volume.

56  Criminality at Work behaviour.17 Finally, the second category lying somewhere in between the first and third is the most complex, where the relevant statute lays down both civil and criminal liability, that is, there are overlaps. This second category demonstrates how it is misconceived to present the enforcement of employment rights as necessarily entailing a binary choice between the criminal and civil. We can pick out a limited sample of the most central employment rights conferred by statute18 and whether they correspond to categories 1, 2, or 3. For example, statutory rights such as the right not to suffer direct discrimination or indirect discrimination,19 the right to be supplied with a written statement of the main particulars of employment,20 the right not to be unfairly dismissed,21 and the failure to inform and consult on collective redundancies22 are each enforced civilly through private means or with the assistance of an administrative agency. But there are many other examples. Meanwhile, criminal proceedings are the only way of enforcing rights such as the right of employees to health and safety at work,23 the right of young workers not to be compelled to work in excess of forty hours in a working week,24 and the right to be provided with adequate rest breaks owing to the pattern of an employee’s work.25 Finally, we encounter the statutory entitlement where enforcement is shared between the civil and criminal law, for example in the case of the right to be paid the minimum wage or National Living Wage.26 Two observations can be derived from the preceding exposition of rights falling within the tripartite categories. First, the criminal enforcement of statutory labour laws is scant in comparison with the instances of civil proceedings. This may not be surprising inasmuch as it conforms to the general pattern discussed above. But we need a more reflective and better understanding of the possible reasons for this finding. Here, a pack of explanations jostle for our attention. For instance, an explanation may lie in a lack of specialism on the part of the police and CPS. Another may alight on the absence of proper funding and resourcing in the case of the specialist public agencies tasked with enforcement. Alternatively, we may resort to normative theories of criminalization for assistance, which is a task we turn to in section C below. A second remark is that the aforementioned illustration where enforcement is divided between civil and criminal law is particularly intriguing. What the existence of shared enforcement in the case of the minimum wage suggests is that the basic distinction between civil and criminal liability may be somewhat anachronistic and bear a greater amount of weight than it is currently equipped to carry. In the next section, we delve deeper into these issues, and in much broader terms, we enquire whether the prevailing configuration of enforcement we find in UK labour law statutes is defensible in terms of some overarching normative theory of criminalization.

17 A similar issue arises where there is a crossover between criminal and civil enforcement, eg where a civil breach is clothed with criminal liability in certain circumstances. 18 This analysis is not intended to be exhaustive of each and every statutory employment right in UK law. 19 EqA 2010, ss 13, 19, and 120. 20 ERA 1996, ss 1, 2, 3, and 11. 21 ERA 1996, ss 95 and 111. 22 TULRCA 1992, ss 188, 188A, and 189. 23 HSWA 1974, ss 2–​7 and 33(1)(a). 24 WTR regs 1998, 5A(1), and 29(1). 25 WTR regs 1998, 8, and 29(1). 26 NMWA 1998, s 31(1) and ERA 1996, s 23.

Using Criminal Law to Enforce Employment Rights  57

C.  The Notion of ‘Public Wrongs’ in Criminal Law Theory 1.  Introduction Having provided a sketch of various statutory employment rights that are exclusively enforced via the criminal law or civil law, and the circumstances where we encounter a complex mixture of both civil and criminal compliance measures and techniques, a natural successive point is to assess whether some existing criminal law theory can make sense of, and/​or provide a normative account of, and justification for the forms of enforcement prescribed in the case of a limited range of the statutory employment rights discussed in section B. It should be stressed that this search for a theory is motivated by the desire to explore whether criminalization would be justified in normative terms in relation to the selected range of employment rights. It is an exercise that is analytically distinct from enquiring whether a theory of criminalization can supply an exploratory account for the political choices made by law-​makers in Parliament about criminalization from time to time. This is a distinction of material importance, since there is every possibility that there might be a misalignment between what a normative theory would suggest ought or ought not to be criminalized and what we actually find has been criminalized in practice. If we embark on our enquiry by evoking normative principles and concepts that can be derived from the academic literature that identify when it might be legitimate to criminalize a practice, it is evident that a number of options present themselves as potential candidates. However, for reasons of economy of space, we will restrict the discussion to one: the ‘public wrongs’ theory of criminalization will be taken as the focus of our enquiry. Historically, the public wrongs framework claimed that criminal laws ought to regulate a form of human behaviour where it constituted a wrong done to the public. This does not seem entirely persuasive as a univocal theory of criminal law for two self-​explanatory reasons. Even a mere cursory glance at the law reveals that certain wrongs are controlled by the criminal law even though they (i) cause no direct harm to the public or (ii) have no inherent properties which are public in character.27 In recent years, a more refined incarnation of the ‘public wrongs’ theory has been put forward by Duff and Marshall.28 It is this form of the ‘public wrongs’ theory that can be treated as a conceptually more formidable account for the criminalization of behaviour. It is taken as an evaluative tool to test whether it might have the capacity in normative terms to provide support to those areas of labour law (i) that are the subject of civil enforcement, (ii) that have been earmarked exclusively for criminal enforcement, and (iii) where a breach of employment rights entails both civil and criminal enforcement on a shared basis. The notion of ‘public wrongs’ advanced by Duff and Marshall has undergone a series of evolutions since it was first versed in 1998.29 The most recent articulation focuses on the 27 Although this may lead us to conclude that illustrations of criminalization where there is (a) no harm to the public or (b) nothing public about their nature, are simply illegitimate under the public wrongs theory, rather than sufficient to question its legitimacy. 28 Antony Duff and Sandra E Marshall, ‘Crimes, Public Wrongs, and Civil Order’ (2019) 13(1) Criminal Law and Philosophy 27. 29 Sandra E Marshall and Antony Duff, ‘Criminalization and Sharing Wrongs’ (1998) 11 Canadian Journal of Law and Jurisprudence 7; Antony Duff, ‘Towards a Theory of Criminal Law’ (2010) 84 Proceedings of the Aristotelian Society, Supplementary Volume 1; Antony Duff and Sandra E Marshall, ‘Public and Private Wrongs’ in James Chalmers, Fiona Leverick, and Lindsay Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh University Press 2010) 70; Antony Duff, ‘Responsibility, Citizenship, and Criminal Law’ in Antony

58  Criminality at Work positive and negative embodiments of that theory, as well as their respective implications.30 The positive form of the public wrongs theory is intended to help us understand what we have a reason to criminalize, rather than what we ought to criminalize: a legitimate justification is simply a necessary, albeit not a sufficient, condition for the criminalization of conduct. The fact that conduct X concerns us as living together as members and citizens of a political community—​referred to as the ‘civil order’ in shorthand—​and X is a wrongful kind of conduct within that civil order, means that we have sufficient justification to criminalize it. Turning to the negative version, this is deployed by Duff and Marshall in an additive and more profound way. It is used to cast light on what we have no reason to criminalize, but also what ought not to be criminalized by the law. It claims that we have no legitimate justification to criminalize a conduct A, and we ought not to criminalize it, if it is not (i) a public matter in the sense that it does not concern the ‘civil order’ or (ii) a wrongful kind of conduct within that civil order: in this way, for an activity not to be criminalized, it may be (a) public, but not wrongful, or (b) wrongful, but not public. As such, the value of the negative version of the public wrongs theory to labour law lies in its negative normative edge, that is, how it purports to convey what workplace practices or exercises of the managerial prerogative we ought not to criminalize and helps us understand better those areas of labour law where a conscious decision has been made to eschew the operation of the criminal law. First, a few clarificatory remarks to make about ‘public wrongs’ theory. The notion of a public wrong does not tell us anything about the effect of the relevant conduct on the public, in the sense of whether the public are somehow wronged. It also fails to clarify whether the wrong is in some sense ‘collective’ in nature.31 Likewise, it says nothing about ‘the intrinsic character [of that conduct] as a wrong’, that is, whether it is public or private.32 For example, an inherently private act may constitute conduct that is (i) a ‘public matter’ which is (ii) wrongful. Instead, we are concerned with ‘public wrongdoing’ not ‘moral wrongdoing’33 in terms of the specific framework adumbrated by Duff and Marshall. What this means is that ‘public wrongs’ theory does not correspond to the public/​private dichotomy in traditional legal thought,34 or the debate conducted by labour lawyers as to whether we can distinguish public and private activities according to a spatial conceptualization.35 In this way, the fact that certain key workplace behaviours regulated by statutory labour laws such as dismissal, suspension, etc might take place exclusively in the private sphere between two parties to a horizontal employment relationship does not automatically translate into any claim about the proper or improper criminalization of such activities.36 Instead, the key issue here is Duff and Stuart Green (eds), Philosophical Foundations of Criminal Law (OUP 2011) 125; Antony Duff, ‘Legal Moralism and Public Wrongs’ in Kimberly K Ferzan and Stephen J Morse (eds), Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S Moore (OUP 2016) 95; Antony Duff, The Realm of Criminal Law (OUP 2018) 146–​84; Ambrose Y K Lee, ‘Public Wrongs and the Criminal Law’ (2015) 9 Criminal Law and Philosophy 155, 158. 30 Duff and Marshall, ‘Crimes, Public Wrongs, and Civil Order’ (n 28) 18; Duff, The Realm of Criminal Law (n 29) 235–​37. 31 Marshall and Duff, ‘Criminalization and Sharing Wrongs’ (n 29). 32 ibid 2; Duff, The Realm of Criminal Law (n 29) 146. 33 James Edwards and Andrew Simester, ‘What’s Public About Crime?’ (2017) 37 Oxford Journal of Legal Studies 105, 107. 34 See R v Disciplinary Committee of the Jockey Club (ex parte Aga Khan) [1993] 1 WLR 909 (CA). 35 For example, see X v Y [2004] EWCA Civ 662, [2004] ICR 1634; Pay v Lancashire Probation Service [2003] EAT/​1224/​02/​LA, [2004] ICR 187; Pay v UK [2009] IRLR 139 (ECtHR). 36 Otherwise domestic violence would also slip out of the net. See also the discussion in Edwards and Simester (n 33) 108–​10.

Using Criminal Law to Enforce Employment Rights  59 whether the conduct is (i) a public matter, or (ii) that within the context of that civil order, the conduct is a ‘wrong’.

2.  Applying the Negative and Positive Versions of Public Wrongs Theory Duff tells us two things about the (i)  ‘public’ as opposed to the (ii) ‘wrongfulness’ variable: first, that for a practice to be a ‘public matter’, it must be something that directly bears on the distinctive goals and values of the civil order concerning us as living together as members and citizens of a political community.37 Secondly, workplace conduct will not be a public matter if it is not the ‘business of members of the community [simply] in virtue of their membership [and our mutual citizenship]’.38 As for the wrongfulness criterion (ii), we are informed that this will be met if the conduct either violates or is inconsistent with the shared values of the polity in that civil order.39 This translates into a requirement for a political community with a ‘sufficiently rich shared understanding between at least most of its members about the goals and values that define that community and its civil order’.40 But how do we ascertain whether this negative formulation of Duff and Marshall’s public wrongs theory harbours the capacity to provide a normative justification (i) running counter to criminalization in the case of statutory labour law wrongs that are exclusively enforced via the civil law, (ii) for those workplace practices or omissions that have been left largely to the criminal law for enforcement, and (iii) for areas of shared enforcement? This exercise will involve ascertaining (a) which labour rights do or do not qualify as public wrongs and/​or (b) whether existing legislative patterns of criminalization track those normative distinctions.41 In analysing the salience of the public wrongs theory, we adopt dismissal, discriminatory conduct, and the right to a written statement as three illustrative samples of statutory employment rights that attract civil enforcement, whereas health and safety is taken as the classic embodiment of statutory labour laws that have been earmarked for criminal prosecution. We also invoke an employer’s infringement of the right to receive the National Minimum Wage as an illustration of shared civil and criminal enforcement.42 If we apply the (i) ‘publicness’ and (ii) ‘wrongfulness’ criteria to the selected five statutory rights in reverse order, turning first to the wrongfulness criterion (ii), the question is whether each of these five illustrations do not represent an affront to, or rupture from, such shared values of the community. In the case of discriminatory treatment, the answer is ‘no’, as it clearly does. This is undoubtedly the appropriate response if we call to mind the various powerful social justifications for this statutory body of labour law, for example respect

37 Duff and Marshall, ‘Crimes, Public Wrongs, and Civil Order’ (n 28) 18. 38 Duff, ‘Towards a Theory of Criminal Law?’ (n 29) 5. 39 Marshall and Duff, ‘Criminalization and Sharing Wrongs’ (n 29)  18–​22; Duff and Marshall, ‘Public and Private Wrongs’ (n 29) 70–​72; Duff, ‘Responsibility, Citizenship, and Criminal Law’ (n 29) 125, 139–​40; Antony Duff, Answering for Crime (Hart Publishing 2007) 141–​43; Lee (n 29) 158. 40 Duff and Marshall, ‘Crimes, Public Wrongs, and Civil Order’ (n 28) 18. 41 Of course, there may be a mismatch between (a) and (b), but this does not discredit public wrongs as a normative theory. Instead, it simply means that what has and has not been criminalized by Parliament falls short of the standards set by this theory. 42 We have limited the enquiry in these terms for reasons of economy of space.

60  Criminality at Work for individual dignity43 or fundamental choices;44 the prevention of serious, persistent, and ubiquitous forms of relative disadvantage;45 the recognition of a person’s immutable characteristics;46 or historic stigmatization of certain practices or characteristics.47 As for health and safety infringements giving rise to the harm and injury of workers, we must ask whether they do not represent a breach of the common values underpinning a social and political community. Like discriminatory conduct, the answer again must be negative, bearing in mind that the objective of health and safety laws is the protection of the physical and psychological integrity of workers, which is clearly a fundamental issue.48 In the case of the failure of an employer to issue a statutory written statement, this can be viewed as generating a rift with the community’s common values insofar as an employee has a basic entitlement to understand the basis of his/​her relationship with the hirer of his/​her labour, that is, exactly where he/​she stands. As for the right to be paid the minimum wage, if a society places weight on the dignity of workers and the capacity of wage controls to generate redistributive results,49 there is a strong case to be made for the proposition that a polity’s values will be breached where the earning capacity of some of the workforce is squeezed by the employer so that they struggle to meet their basic needs. In such a context, the deprivation of a wage floor would strike at the society’s shared values and be wrongful. Finally, turning to unreasonable no-​cause dismissals, the position is less clear-​cut, as all depends on one’s personal opinions and moral convictions on the relative strength of countervailing social, economic, and political arguments. Here, we can evoke competing claims concerning the beneficial value of laws restricting dismissals insofar as they limit the scope for failures in the operation of the labour market, as against the contention that strong controls over dismissals entail higher unemployment, lower labour force participation,50 and less efficient, dynamic, and flexible labour markets. As such, the assessment of whether dismissals fall down at the wrongfulness criterion (ii) is more finely balanced, but if one subscribes to, and assumes the existence of a social community wedded to a ‘job security’51 or ‘job property’52 43 Benjamin Eidelson, ‘Treating People as Individuals’ in Deborah Hellmann and Sophia Moreau (eds), Philosophical Foundations of Discrimination Law (OUP 2013) 203; Rory O’Connell, ‘The Role of Dignity in Equality Law: Lessons from Canada and South Africa’ (2008) 6(2) International Journal of Constitutional Law 267. 44 Robert Wintemute, Sexual Orientation and Human Rights Framework (Clarendon Press 1997); John Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167, 169–​74. 45 Tarunabh Khaitan, A Theory of Discrimination Law (OUP 2015) 137–​39. 46 Catherine Dupre, The Age of Dignity:  Human Rights and Constitutionalism in Europe (Hart Publishing 2015); Samuel A Marcosson, ‘Constructive Immutability’ (2001) 3(2) University of Pennsylvania Journal of Constitutional Law 673; Jessica A Clarke, ‘Against Immutability’ (2015) 125 Yale Law Journal 1; Sandra Fredman, Discrimination Law (2nd edn, OUP 2011) 130–​34. 47 Iyiola Solanke, Discrimination as Stigma: A Theory of Anti-​Discrimination Law (Hart 2017) ch 4; Robin A Lenhardt, ‘Understanding the Mark: Race, Stigma, and Equality in Context’ (2004) 79 NYU Law Review 803; Iyiola Solanke, ‘Infusing the Silos in the Equality Act 2010 with Synergy’ (2011) 40 Industrial Law Journal 336, 350–​55. 48 Thus, the claim that they are merely mala prohibita or regulatory criminal law is rejected: see Duff, The Realm of Criminal Law (n 29) 245–​47. 49 Guy Davidov, ‘A Purposive Interpretation of the National Minimum Wage Act’ (2009) 72 Modern Law Review 581, 586–​94; Brisham Rogers, ‘Justice at Work: Minimum Wage Laws and Social Equality’ (2015) 92 Texas Law Review 1543. 50 Juan C Botero and others, ‘The Regulation of Labor’ (2004) 119 The Quarterly Journal of Economics 1339, 1379. 51 Keith D Ewing, ‘Job Security and the Contract of Employment’ (1989) 18 Industrial Law Journal 217; Hugh Collins, ‘Regulating the Employment Relation for Competitiveness’ (2001) 30 Industrial Law Journal 17, 29. 52 Wanjiru Njoya, Property in Work: The Employment Relationship in the Anglo-​American Firm (Ashgate 2007) 6–​7; Claire Mummé, ‘Property in Labour and the Limits of Contracting’ in Ugo Mattei and John D Haskell (eds), Research Handbook on Political Economy and Law (Edward Elgar 2015) 413–​15.

Using Criminal Law to Enforce Employment Rights  61 outlook, the argument can be made that such dismissals would jar quite severely against the common values of that society. In the final analysis, this would mean that the wrongfulness criterion (ii) would be satisfied. Of course, the prevalence of competing contestations here might suggest that public wrongs theory’s implicit faith in being able to identify a civil order with uniform, shared, or common values is entirely misplaced in the industrial relations context, which is a site of sharp political conflict characterized by pluralism and disagreement. In this way, the immersion of Duff ’s theory within the crucible of labour law may give rise to serious doubts about the plausibility of concepts such as the ‘civil order’ and ‘common values’, as well as the operational capacity of ‘public wrongs’ theory more generally. However, Duff would counter this by invoking the pluralist and liberal nature of his conception of the ‘civil order’. Such a formulation recognizes that citizens may reasonably disagree about what is ‘good’, but nonetheless reach consensus on certain basic, minimum values of a substantive and procedural hue relating to the operation and composition of their political community.53 It follows from the preceding analysis that each of the selected five examples of managerial behaviour or failures are indeed ‘wrongful’. We now turn to the requirement that such workplace practices must not be a ‘public matter’ (i). It is not entirely persuasive to argue that no-​cause dismissals, discriminatory workplace behaviour, the failure to adhere to a wage floor, and health and safety norms in employment have no bearing on the distinctive goals and values of the civil order. On the contrary, each of them are surely sites of workplace activity qualifying as the business of members of that social community. In particular, in the case of discriminatory practices, it can be claimed that by setting out one’s stall, an employer has voluntarily transposed its field of activities into the public sphere and as such, the values of the political community in which its employees reside are engaged.54 Seen from this perspective, the case that such examples of workplace conduct ought not to be criminalized also founders on the rock of the ‘publicness’ criterion (i). These rights can be contrasted with the statutory right to receive a written statement, which would appear to have a less obvious public character. Here, the relevance of an employer’s non-​compliance with the shared understandings of the community and defining that polity is not as clear-​cut. However, on balance, there is a strong case for the proposition that the role of the statutory right to a statement in enabling employees to appreciate where they stand vis-​à-​vis their employer incorporates a material and vital core of publicness. It is surely a matter of shared public concern that societal groups who may be subject to the rational or irrational exercise of coercive social power–​–​such as employees by their employers–​–​have full transparency and disclosure of fundamental contractual terms. And if such an analysis is correct, we cannot claim that there is a normative obligation not to criminalize such failures of disclosure. Having established that the negative strand of public wrongs theory provides no support for the proposition that each of our five statutory employment rights should not be criminalized, its positive incarnation–​–​whereby we have a reason to criminalize them—​is also by definition satisfied. In terms of the positive strand, the (i) ‘publicness’ and (ii) ‘wrongfulness’ tests must be met, and the preceding analysis has shown how they indeed are in the case of the five selected examples. However, it is worth recalling that although we have

53 Duff, The Realm of Criminal Law (n 29) 167–​82. 54

Khaitan (n 45) 201–​09.

62  Criminality at Work positive grounds to criminalize each of these five practices, this does not lead automatically to the proposition that we ought to criminalize them. Instead, that would be a false move. The crucial point here is that the positive incarnation of Duff and Marshall’s public wrongs theory stops short of exacting a full ‘normative bite’. How one transitions from (a) having a positive legitimate basis for the criminalization of these forms of workplace conduct to (b) being under an all-​things-​considered absolute obligation to do so (hereinafter referred to as the ‘positive to the absolute’) is an issue to which we now turn. The various countervailing considerations to criminalization must first be assessed, including any possible regulatory alternatives.

3.  Public Wrongs Theory: Getting from the Positive to the Absolute A pressing issue for resolution is whether we are persuaded to take the relevant leap from the (a) positive to the (b) absolute case for criminalization. If not, then the current legal position described in section B above that dismissals, the right to receive a written statement, and discriminatory practices are not matters for the criminal law would be theoretically justified in terms of public wrongs theory, that is, the policy decision to leave these matters to individuals to litigate in the courts and tribunals. But, if we elicit the opposite response, then the conclusion can be drawn that Parliament’s decision not to marshal the criminal law in these three instances is philosophically misconceived in terms of the public wrongs theory.55 Meanwhile, in the case of health and safety infractions, our analysis would be turned on its head, for example if we pose the question whether we ought to make the transition from the positive to the absolute, and our answer is negative, then the subjection of health and safety breaches to the criminal law in the current legal regime can be cast as wrong-​headed as a matter of public wrongs theory. On the subject of such a transition, Duff says the following: first, we do not need to take that step if we have ‘reasons, principled or pragmatic . . . against doing so . . . [or if we] conclude that on balance we have better reason not to criminalize . . .’56 Secondly, we may decide criminalization is only one among other possible ways of responding to public wrongs . . . [eg we may provide] no formal response to [them], and instead leav[e]‌any response to be an informal social matter, or rather [make] it a matter of tort law rather than of criminal law.57

In light of this, do the variety of factors and justifications cited by Duff truly assist, and/​or persuade us to take the relevant jump in the case of the five illustrative employment rights? The response calls into question, in general, the nature of the relevant and appropriate factors and reasons that must be taken into account in evaluating whether to take that step. The difficulty is that the guidance from Duff regarding the relevant issues to factor in at 55 An alternative conclusion is that public wrongs theory is intrinsically defective. But this is a suspect move, since it is not intellectually persuasive to extrapolate from what we see (or do not see) ‘on the ground’ in the case of (the political choices that have or have not been made regarding) criminalization to broader propositions about the lack of value or flaws in public wrongs theory or normative theorizing about criminal law more generally. 56 Duff and Marshall, ‘Crimes, Public Wrongs, and Civil Order’ (n 28) 4. 57 ibid.

Using Criminal Law to Enforce Employment Rights  63 the normative leap stage is so general as to be rather scant; for example Duff ’s most recent work identifies only six factors58 that we should consider. Beyond that, we are left guessing, showing how the positive version of the public wrongs theory is somewhat impoverished as soon as it reaches the second stage of questioning whether there is an absolute obligation to criminalize: it is here that the public wrongs theory seems to break down.59 The fundamental point here is that, in comparison with this second stage concerning whether to take the step from the positive to the absolute case for criminalization, the first stage gateway in the public wrongs theory is extraordinarily wide—​it is difficult to see how any statutory labour right would fail to meet the (i) ‘public’ and (ii) ‘wrongful’ criteria.60 In effect, we must resort to our own capacities for lateral reasoning and call to mind a number of factors that we anticipate would assume a degree of relevance. They can be each grouped into justifications in favour of adopting the relevant leap from the positive to the absolute case for criminalization and secondly, those against doing so. Two sets of distinctions should be made at this juncture. First, there are general factors/​reasons and secondly, rights-​particular factors/​variables. The latter are by definition context-​dependent on the particular right. As for the general variables, these are of relevance and application to each of the five chosen examples. We begin with a consideration of what might constitute the abstract reasons for criminalization. On the positive side, first, it may be that there is something so egregious about infringements of the five statutory employment rights that we ought to adopt punitive61 rather than corrective measures. In that respect, we may conjecture that this is where the harm principle makes its presence felt within the context of the public wrongs theory:62 the more severe the harm done to the employee by these practices or omissions, the more convincing the claim that we ought to take the relevant leap. Secondly, we may wish to subrogate the state to enforcement to ensure consistency in policy and to depart from the individual litigation-​ driven model for the enforcement of these five statutory employment laws. Thirdly, and a point closely related to the second, is that we may believe that state involvement via the criminal law has a degree of merit in propagating a greater level of deterrence of dismissals, etc. The symbolic communicative role of the criminal law in signposting the wrongfulness of a particular activity is important,63 particularly in light of its supplementary deterrent function.64 As is the relevance of the criminal law in securing a (a) formal and authoritative judicial declaration of the culpability of the employer,65 as well as in a public and collective (b) calling to account of the employer.66 Of course, if we do reach the relevant threshold that we demand the criminalization of such five managerial practices, we may also decide that there are powerful reasons to elicit stronger forms of criminal enforcement in the case of deliberate or intentional practices on the part of employers, such as direct discrimination and harassment (as opposed to indirect discrimination). In contrast, given the nature of the 58 Duff, The Realm of Criminal Law (n 29) 297. Each of the six issues are addressed in the discussion in the remainder of this section. 59 Duff decides not to provide a detailed account of how we ought to make this transition: ibid 298. 60 All of the normative work is being done at this second stage. 61 Duff, The Realm of Criminal Law (n 29) 297. 62 Duff himself recognizes this at various points: ibid 296, 298, and 308. 63 ibid 293. 64 ibid 297. 65 ibid. 66 ibid.

64  Criminality at Work harm, in the case of managerial behaviour resulting in physical injury to employees, we may form the opinion that it is irrelevant whether the conduct was unintentional and that criminalization is the only appropriate response. Alternatively, we may decide on a regime where enforcement is shared between the criminal and civil law. Such a shared regulatory response may be appropriate in the case of objectionable forms of behaviour where we feel that we ought to reserve a role for individuals themselves to be involved in enforcement, (eg to leave scope for individual negotiation and settlement) or that the civil law can operate as an auxiliary aid to criminal enforcement, for example as recognized in the case of the minimum wage in the current legal regime. On the negative side of the equation, we can evoke certain factors or values (integral to the civil order of the polity) which suggest that we ought to resist any recourse to the criminal law. For example, the costs of criminal enforcement may be too high and criminalization may be disproportionate in light of the magnitude and extent of the wrong. It may also be impractical to criminalize. A further consideration is that an anxiety may take root that the value of liberty would be undermined if we criminalize,67 that is, that we are illegitimately depriving individuals of their freedom to take remedial action by compelling them to relinquish their private control of enforcement and hand it over to the state. Such an expropriation would be tantamount to the denial of the hugely significant and symbolic sovereignty/​autonomy and prerogative of the individual to retain the decision whether to vindicate his/​her rights where he/​she has been subjected to a wrong, that is, whether it is the individual or the state who should ‘own’ any legal action and ultimately exercise control over the instituting of legal proceedings.68 The devolution of control over enforcement to the state also carries the risk that the relevant prosecution officials decide not to take action for one reason or another. But even where they do act, there is also the danger that they engage in plea bargaining, which would be possible in the shadow of the criminal law. In essence, the state prosecution authorities would have the capacity to do deals. This may engender a negative perception towards any role for state enforcement. Another concern we may harbour is that the powers of the state are so far-​reaching that it would be heavy-​ handed to involve it in the enforcement of these five statutory employment rights, that is, that it is disproportionate to bring the criminal law into play in light of the harm done by the conduct which they regulate. Of course, there is also the higher standard of proof associated with the criminal law, which may lead us down the path of securing fewer positive outcomes. One other possible issue to take into contention is that there is an insufficient basis to criminalize dismissal, discrimination, managerial omissions to issue a written statutory statement or pay the minimum wage, or health and safety breaches because a less restrictive alternative is available in the guise of mala prohibita offences or even civil penalties,69 that is, regulatory law/​administrative enforcement mechanisms as a less compelling form of punishment. Finally, we also have to factor in the reality that the criminalization of each of these workplace practices or failures will have a chilling effect on managerial decision-​making more generally.

67 ibid 297. 68 See Arthur Ripstein, Private Wrongs (Harvard University Press 2016) 269–​72; Alan Bogg, ‘Labour, Love and Futility: Philosophical Perspectives on Labour Law’ (2017) 33(1) International Journal of Comparative Labour Law and Industrial Relations 7, 21. 69 Duff lists and critiques each of these less drastic alternatives in The Realm of Criminal Law (n 29) 280–​92.

Using Criminal Law to Enforce Employment Rights  65 If we place each of these positive and negative factors into the balance, we can form a provisional holistic and general view as to whether the scales balance out in favour of, or against, a role for criminal enforcement. However, this would only be a preliminary conclusion, as we must also identify a swathe of context-​particular issues that we consider significant in the sense described above. If we begin with dismissals, our response to the question whether the unfair dismissal right should be enforced by the criminal law would be largely dependent on our level of acceptance of dismissals in society and our attitude to a dismissal-​free workplace. If the attitude to such exercises of the managerial prerogative is one of intolerance, this would support the establishment of a role for the criminal law. We70 may also harbour a desire to criminalize dismissals to avoid the opportunities for employers to engage in efficient repudiatory breaches of the contract of employment, that is, to ‘profit from their own wrong’. Moving to the negative aspects, a ban on dismissals supported by criminal sanctions would represent a startling and radical intrusion into the managerial prerogative and the employer’s liberty and property rights.71 Another closely related factor to take into account from a managerial property rights angle is whether it is relevant that the employer retains the capacity to substitute labour for capital. The point being made here is whether some margin should be afforded to the employer as a badge of recognition that the employer has given the employee a job where it could otherwise have deployed capital instead. There is also the consideration that the employer needs to stay competitive to ensure employment security. Another salient question is whether it is in any way relevant that the employer’s power of dismissal can be viewed as reciprocal to the employee’s power of resignation, in the sense that it is correlative to the employee’s fundamental freedom to quit? Might this reciprocity temper any claims that we have an absolute duty to criminalize a no-​cause and unreasonable dismissal regime? Turning to discriminatory conduct, there is a potent argument that the intentional forms of ‘prohibited conduct’ in the EqA should be supported by punitive measures, as these forms of behaviour involve more direct and piercing forms of harm, bordering on corrosive malice. We may also criminalize them as an unequivocal manifestation of public solidarity with those possessing the legally protected characteristics adumbrated in section 4 of the EqA. However, it is not entirely clear whether the state has a legitimate entitlement to be involved in the policing of discrimination. On the one hand, we can appreciate how claimants might wish to retain control over legal proceedings instead of relying on the state (through its officials) to take the decision whether to prosecute. Since such practices represent a personal attack on a claimant’s individual dignity and identity, it may be that dispossessing them of the freedom to initiate and steer the litigation process is too much for us to contemplate. On the other hand, we may be reluctant to expect claimants to shoulder the costs of civil enforcement. There is also the public benefit associated with the deterrence of discrimination that can be secured through the intervention of the criminal law, as well as the authoritative judgment that the employer is ‘guilty’ of discrimination and ought to be ‘punished’.

70 Of course, the ‘we’ here depends on the polity’s civil order and the outcome of deliberations and debates between those citizens who have engaged in ‘reasonable disagreement’: ibid 167–​82. 71 See the discussion in Mummé (n 52) 400.

66  Criminality at Work In the case of the rights to be paid the minimum wage and to receive a written statutory statement, it is an obvious point that the employer’s breach causes no physical harm or threat to the employees concerned. However, of course, their financial position is adversely affected in the case of a minimum wage breach. But whether this is sufficient to claim with any authority that such a failure should be criminalized is debatable. It may be that there is a stronger case to be made for criminalization where the employer’s failure to meet the wage floor is a conscious decision, but again, it is open to discussion whether it is warranted to (i) devolve decisions concerning enforcement to the state or (ii) enjoin prosecution authorities to make fine judgement calls about deliberate and inadvertent omissions. In fact, in this context and in the case of managerial failures to issue a written statement, state involvement does seem somewhat over-​blown and disproportionate. It is also problematic that there are clearly other less restrictive alternatives to criminal enforcement which would achieve the requisite objectives, for example civil enforcement, civil penalties, administrative agency, or regulatory enforcement. Finally, we come to health and safety breaches and whether the criminal law should play a part in enforcement. We may argue that the extent of the physical harm done to employees is such that resorting to financial recompense through civil remedies would be bankrupt as a regulatory response.72 However, herein lies a puzzle. If that is true in the case of contraventions of health and safety regulation, then why is it untrue in the case of tort law which also regulates physical injury, where we do find that enforcement is left to the civil law? From another angle, if we decide that it is appropriate to eschew state enforcement, that may be misconceived where the actions of the employer that have led to the physical injury of its employees are reckless or deliberate. There are a variety of possible conceptual frameworks for understanding the outcomes when we place the general and rights-​specific factors above in the balance within the context of the five examples of statutory employment rights. The model adopted is to evoke three particular states that we can plot across a spectrum from a more heightened, to less intensive, set of justifications for us to invoke the criminal law: we can dub these the ‘thick’, the ‘medium’, and the ‘thin’ forms. If we pose each of these general and rights-​ specific questions, and reach the conclusion that the thick form is applicable in the case of each of the five selected employment rights, this will indicate that we have a strong case to criminalize these practices or omissions. At the opposite end of the pole, if the product of this exercise is the thin form, then we can say that we most certainly do not have any legitimate grounds to claim that we ought to criminalize them. And if our deliberations result in the medium form, a relevant series of justifications can be made for both criminal prosecution and civil proceedings, that is, shared enforcement.73 The choice between these three conceptual models is significant since it influences the way we understand the enforcement of these employment rights and the extent to which we can agree that the

72 However, the criminal enforcement of health and safety laws does not adhere to the standard pattern insofar as the police and DPP have no involvement in the process. Instead, the HSE can conduct investigations and enforce violations through enforcement notices (see the HSWA 1974, ss 22 and 23 and HSE v Chevron North Sea Ltd [2018] UKSC 7, [2018] 1 WLR 964). 73 The fact that public wrongs theory does not provide a comprehensive account of when it is appropriate to switch from having a reasonable ground, to having an absolute duty, to criminalize a practice, renders it of limited assistance in identifying the various employment rights where shared enforcement is legitimate.

Using Criminal Law to Enforce Employment Rights  67 current legal position (as regards such enforcement) is aligned with, or falls below the standards set by public wrongs theory. It would also hint at the law being ripe for reform or further development.74 We can benchmark the five statutory employment rights against each of the aforementioned rights-​specific and universal factors, reasons, and variables. The first conclusion that we can take from this exercise is that there are weighty general and context-​dependent reasons for us not to criminalize employers who engage in decisions to dismiss for no cause or unreasonably. For example, it is stretching credulity to suggest that an employer should be punished in such a context, and it is suggested that the employee’s liberty to engage in litigation should not be removed in favour of the state having exclusive control over criminal proceedings, since the latter seems disproportionate to the harm caused. As does any engagement of the higher criminal standard of proof. Likewise, there is a strong likelihood that the deterrence of no-​cause or unreasonable dismissals can be secured through less restrictive means, such as civil litigation. As such, in the context of dismissal, on the application of the public wrongs theory, the overall balance of factors, reasons, and variables accords with the ‘thin’ state. This conforms to the contemporary legal position, which underscores how the deliberations of law-​makers in Parliament meet the expectations set by Duff ’s normative theoretical framework. To that extent, we can claim that Duff and Marshall’s approach to the theorization of what properly belongs to the criminal law possesses a degree of intellectual ballast in the case of no-​cause or unreasonable dismissals. Moving on to health and safety breaches, when we measure them against the yardsticks cited above, we find that they accord with the ‘thick’ state. This means that the current legal position and public wrongs theory conform with one another, that is, predominantly criminal enforcement. Turning to the legal position prioritizing the civil enforcement of managerial omissions to issue written statutory statements of terms and conditions, we also find that it is consistent with the application of public wrongs theory, that is, there is little to suggest such failure ought to be criminalized. As for our findings in the case of rights affording employees protection from discriminatory treatment, the positive version of public wrongs theory suggests shared enforcement between the civil and criminal law when assessed against the yardsticks of deterrence, punishment, preservation of the ‘victim’s’ individual liberty, the desirability of subrogating the state to enforcement, the aptness of the application of the criminal standard of proof, and whether criminalization will have a chilling effect on workplace practices. However, this fails to adhere to the current legal reality, which demonstrates that it falls short of the benchmark set by the public wrongs theory. Likewise, in the case of failures to pay the National Minimum Wage, where the application of the aforementioned variables, factors, etc point towards civil enforcement in contrast to the shared enforcement enshrined in the existing law. The conclusion can be drawn that—​by a slim majority of three to two—​the relationship between the legal position with regard to enforcement and the predictions of the public wrongs theory is, in general, a positive one. As such, the end result of this benchmarking exercise is to provide moderate support for the proposition that the positive incarnation of the public wrongs theory possesses a degree of predictive power in the case of statutory labour laws. 74 However, where there is a misalignment, this should not call into question the normative credentials of public wrongs theory: see nn 41, 55 and 79.

68  Criminality at Work

D.  Conclusion The objective of this chapter was twofold. First to chart some of the areas of statutorily imposed labour law where we encounter criminal enforcement, including where this is an absence of such enforcement, and also to probe where we find overlaps between them. This was primarily a descriptive exercise. Secondly, the account of ‘public wrongs’ in Duff ’s work was harnessed as an evaluative instrument to determine whether criminalization is normatively justified in relation to a limited range of five statutory employment rights. This enabled us to gauge the validity of the actual political choices made by law-​makers concerning the areas earmarked for criminal enforcement in labour law (as well as those areas not chosen for criminal enforcement, or identified for shared enforcement) and to test whether they could be supported by normative theories of criminalization, such as Duff ’s ‘public wrongs’ theory. Chiming with the views of thinkers such as Christie,75 Hulsman,76 and Bianchi,77 like Michael Ford,78 the writer’s intuition was one of scepticism. It was thought that the search for an all-​encompassing normative theory of criminalization—​such as Duff ’s ‘public wrongs’ model—​that would have relevance in the context of statutory labour laws was an exercise born of futility.79 However, to the surprise of the author, the antipodean framing of ‘public versus private’ in the theorization of what properly belongs to the criminal law is indeed of some utility in predicting the prevailing legislative position concerning statutory employment rights. Whilst the results stemming from the adoption of the negative incarnation of public wrongs theory were rather banal, in the case of the positive version, we were taken much further down the track in the search for an account of what should be criminalized in the case of statutory labour laws. Nevertheless, in the final analysis, several notes of caution should be struck so that the workplace relevance of public wrongs theory is not overstated:  first, that the Duff and Marshall account of public wrongs suffers from a marked lack of detail at the critical point at which it is essential to turn from a positive to absolute case for criminalization. The identity of the relevant factors/​variables/​justifications are impressionistic and the outcome of their application to the five employment rights is inherently subjective. This necessitates an element of guesswork as to the filling in of the relevant normative blanks,80 meaning that it is perhaps overly sanguine to make an unreserved positive case for its predictive capacity. This speaks to the reality that the findings drawn from this inherently indeterminate exercise are open to debate, as we may not all agree on how the relevant judgements have been made or the various processes have been applied. Secondly, having surveyed how five prominent statutory labour rights are enforced, and applied the public wrongs construct to them as a sorting principle, what broader claims can be extrapolated from the findings of the exercise adopted is unclear. Hence, further comprehensive research ought to be carried out to test this chapter’s conclusion that this theory possesses a moderate degree of plausibility 75 Nils Christie, ‘Conflicts as Property’ (1977) 17 British Journal of Criminology 1. 76 Louk H Hulsman, ‘Critical Criminology and the Concept of Crime’ (1986) 10 Contemporary Crises 63. 77 Herman Bianchi, Justice as Sanctuary: Toward a New System of Crime Control (Indiana University Press 1994). 78 See Michael Ford’s c­ hapter 21 in this volume. 79 However, an explanatory account of what is found to be criminalized in various areas of law (eg such as labour law) is not what criminal law theorists are looking to achieve, as their objectives are primarily normative. 80 This exercise demonstrates how normative criminal theories and other legal disciplines and modes of enquiry must engage in a dialogue to complete the picture.

Using Criminal Law to Enforce Employment Rights  69 as an account of when criminalization is appropriate in the case of statutory labour rights. Finally, and more profoundly, there is the anxiety that by overly stressing the public nature of some statutory employment rights, the symbolism associated with the adoption of a lexicon of ‘public wrongs’ might underplay the collective and solidaristic origins and nature of labour laws. Here, the concern is with over-​juridification and the general movement away from the social and economic power associated with the collective, which has traditionally underpinned labour law. It would appear to overlook how labour law was forged in the historical crucible of class and social struggle and political discourse. The public wrongs theory is also vulnerable to the charge of being overly focused on the individual private employment relationship and whether the relevant regulated activity is public and wrongful, thus harbouring the potential to undercut the collective objectives that labour law is ultimately seeking to achieve.

4

Where Criminal Law Meets Labour Law The Effectiveness of Criminal Sanctions to Enforce Labour Rights Catherine Barnard and Sarah Fraser Butlin

A.  Introduction Over the last decade, there has been an increased focus on the criminalization of labour law breaches. In particular, we have seen a rise in the use of the coercive arm of the state and a growing number of civil preventive measures in the labour market, backed up by criminal sanction upon breach in regulatory offences, as well as specific offences for certain labour law breaches.1 A key question for labour lawyers is whether criminalization actually works to enforce labour rights.2 In order to answer this question, we consider first, why certain labour law breaches have been criminalized and, in light of the nature and extent of enforcement action that has been taken, does criminalization work? In respect of the first question—​why certain labour law breaches have been criminalized (and why others have not)—​we seek to explore this issue by considering the nature of the offences that have been created and the political framework from which criminalization arose (section C). We will examine four regimes: the working time provisions, partly regulated by the Health and Safety Executive (HSE); National Minimum Wage protection, with some regulation by the HMRC; the work of the Employment Agencies and the Employment Agencies Standards Inspectorate (EASI); and the regulation of gangmasters through the Gangmasters and Labour Abuse Authority (GLAA). We have selected these four areas as the lens for our analysis because they operate across a spectrum of how rights are enforced, ranging from requiring a licence for gangmasters to operate, the breach of which is a criminal offence, through to the mixed criminal and civil enforcement mechanisms of the Working Time Regulations. These diverse regimes help us to examine the location of the boundary between civil and criminal law enforcement because there is a panoply of approaches, each varying across and within the regimes. We contrast these regimes with the legislative scheme dealing with blacklisting where there were considerable public calls for its criminalization and yet the civil route was chosen. This gives us an opportunity to address the question as to why policy-​makers may have opted for particular legal regimes.

1 On which see further c­ hapter 1 of this volume. 2 We leave the questions as to the theoretical justifications for the application of criminal law to the criminal lawyers; compares in particular c­ hapters 5 and 12 of this volume. Catherine Barnard and Sarah Fraser Butlin, Where Criminal Law Meets Labour Law In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.004

Where Criminal Law Meets Labour Law  71 As the political rhetoric shows, one fundamental feature of criminalization is that it sends a signal to employers requiring them to take the labour law breach particularly seriously. But to what extent is this really achieved? This brings us to the second part of the chapter where we consider the question: does criminalization work (section D)? We explore the nature and extent of enforcement action that has been taken by the various enforcement agencies and the level of awareness of enforcement that employers and employees have. We argue that while in general criminalization might send out a particular message that the conduct is not acceptable, the lack of effective enforcement—​and the absence of a civil alternative—​means that, in reality, the criminalization of certain labour law breaches may in fact be political posturing. At best, it acts as a distraction from the more fundamental question of how to achieve compliance. From this point of view, the recent Strategy document produced by the new Director of the Labour Market Enforcement Unit setting out a clear vision for both the basis of criminal enforcement and a strategy might offer a more robust way of using the criminal powers. At worst, where the criminal law operates as a substitute for a private civil right against the employer, the criminalization of a particular offence denies the individual worker the opportunity to bring a civil action and thus leaves them without a remedy at all. However, before we address the two questions around which this chapter is structured, we begin by mapping the powers in our selected areas.

B.  Defining the Powers This section describes the complex mix of regulatory offences and civil liabilities that apply within our four chosen areas. It also details the powers of enforcement across those regimes. We consider this exercise to be necessary: there is a lack of familiarity with the different regimes and a detailed analysis of them enables us to draw some conclusions in relation to what the structure of the legislation can tell us about where the boundary is drawn between criminal and civil liability. Only after a careful description of powers is it possible to conduct some analysis first in relation to the complexity of the legal response and second on the political choices as to which enforcement mechanism to choose. Third, we assess the effectiveness of the chosen mechanism. We are not addressing here the regime within the Modern Slavery Act 2015, as this is dealt with in depth in c­ hapter 18. Moreover, we wish to focus our discussion on labour law breaches where criminalization is more contentious. Nevertheless, the two core offences within the Modern Slavery Act 2015 should be noted for comparative purposes in respect of the regimes that we do consider in this chapter. Section 1 makes it an offence to hold someone in slavery or servitude, or to require someone to perform forced and compulsory labour. Regard must be had to all the circumstances including the personal circumstances that make someone vulnerable and the work required of that person. Section 2 creates a human trafficking offence whereby an offence is committed if a person arranges or facilitates the travel of another person with a view to the victim being exploited. There must be intent to exploit. We turn now to examine our four chosen regimes and regulatory bodies.

72  Criminality at Work

1.  Gangmasters and Labour Abuse Authority The GLAA started life as the Gangmasters Licensing Authority. It was given the task of licensing gangmasters and enforcing the requirements of the Gangmasters (Licensing) Act 2004 (GLA 2004). The provisions of GLA 2004 continue to apply in relation to licensing gangmasters, which is undertaken by the GLAA. In relation to licensing, the GLA 2004 applies to agricultural work, gathering shellfish, and processing or packaging agricultural produce, shellfish, or fish (section 3(1)). Section 12 of the GLA 2004 provides that it is an offence to act as a gangmaster without a licence and, in England and Wales, on indictment the maximum sentence is of ten years’ imprisonment. Under section 13 of the GLA 2004 it is an offence to use an unlicensed gangmaster, carrying with it a maximum sentence, in England and Wales, of fifty-​one weeks’ imprisonment or a fine or both. In addition, where there is a failure to comply with the Gangmasters (Licensing Conditions) Rules 2009, such a failure is actionable by the individual, insofar as it causes damage (section 7). The GLA 2004 gives enforcement officers the power to arrest (section 14); to require the production of records, explanation of records, and further information (section 16(1)(a)–​(c)); and to enter premises (section 16(1)(d)). They may also obtain a warrant to enter premises and remove records and documents (section 17). The obstruction of an enforcement officer acting in the exercise of his functions constitutes a criminal offence with a maximum sentence of fifty-​one weeks’ imprisonment or a fine or both (section 18). The grant of a licence to act as a gangmaster is discretionary (section 7(1)) and the Licensing Standards are applied. There are eight Licensing Standards which cover a range of issues, including the requirement that a gangmaster is a fit and proper person, dealing with pay and tax, preventing forced labour and the mistreatment of workers, accommodation, working conditions, health and safety, recruiting workers, and contractual arrangements and sub-​contracting. For our purposes, the following ‘critical’ standards are of most interest: 2.2: to pay at least the National Minimum Wage or Agricultural Minimum Wage; 3.1: not to subject workers to physical or mental mistreatment or to make threats to workers or others; 3.2: not to restrict a worker’s movement, retain identity papers, not be required to pay more than any sum borrowed and not force or coerce a worker to work against their will; 3.3: not to withhold wages; 4.1: where accommodation is provided, to ensure that it is safe; 7.1: not to charge a fee for work finding services or making them conditional on the use of other fee generating services. The requirement to give a worker the rest periods, breaks, and annual leave to which they are entitled, and the requirement that a worker does not work more than a forty-​eight-​ hour week without express agreement are ‘non-​critical’ standards (Standards 5.1 and 5.2). The right to belong to a trade union and the requirement not to discriminate are also non-​ critical standards (Standards 5.3 and 5.7).

Where Criminal Law Meets Labour Law  73 The GLAA undertakes inspections of all new business, as part of random checks and following a risk assessment.3 When a gangmaster is inspected then the GLAA applies a scoring system. A failure to meet a non-​critical standard results in eight points and a failure of a critical standard is given thirty points. A licence will usually be revoked where the overall mark is over thirty points. Appeals against the refusal or revocation of a licence, the attachment of a condition, or the refusal to transfer a licence are heard by the Gangmasters Licensing Authority Appeal Tribunal.4 In addition to its licensing function, the GLAA was given new powers through the Immigration Act 2016 which, among other things, created Labour Abuse Prevention Officers (LAPOs). LAPOs, who work within the GLAA, have been given additional powers under the Police and Criminal Evidence Act 1984 (PACE) to arrest and search in relation to ‘labour market offences’ (as defined by section 3 of the Immigration Act 2016) across the entire labour market, not just in the specific GLA 2004 sectors. Labour market offences (‘trigger offences’) include offences under the Employment Agencies Act 1973, the National Minimum Wage Act 1998, and the GLA 2004. Specific offences under the Modern Slavery Act 2015 are also included. The consultation and subsequent response suggests that these new powers were being given to seek to tackle ‘high harm, low volume cases of exploitation falling short of those tackled by the National Crime Agency’, an issue to which we return later in the chapter.5 LAPOs only came into operation at the end of April 2017. So far, there have been no prosecutions under LAPO powers, although it appears that there has been an increase in operations by the GLAA by virtue of these powers and six Labour Market Enforcement Undertakings (LMEU) have been issued.6 Finally, under section 14 of the Immigration Act 2016, the GLAA along with the HMRC and the EASI, has the power to request a LMEU. Before doing so, they must believe that a person has committed or is committing a trigger offence. They must then give notice to the relevant person identifying the trigger offence, the reasons for believing that the offence has been or is being committed, and inviting the person to give a relevant undertaking to comply with any prohibitions, restrictions, or requirements. Such prohibitions etc must be just and reasonable (section 15(1)(b)). In addition, the authorities may apply to a court, the magistrates’ court in the England and Wales, for a Labour Market Enforcement Order (LMEO) (section 18). The circumstances in which such an application may be made are broadly similar to when the authority may invite the person to give an LMEU; the two are not mutually exclusive. An LMEO may be sought where it is shown, on the balance of probabilities, that the person has committed or is committing a trigger offence and the court considers it just and reasonable to make the order. This is an order which prohibits or restricts a person from doing anything set out in the order or requires them to do something.

3 See GLAA, ‘How we Inspect and Prosecute’ accessed 2 August 2019. 4 The Gangmasters (Appeals) Regulations 2006. 5 Department of Business Innovation and Skills, ‘Tackling Exploitation in the Labour Market: Government Response’ (January 2016) [16] accessed 2 August 2019. 6 In 2017–​18, the GLAA conducted over 100 operations, with more than 80 of those across sectors outside of the traditional agricultural sector. As a result, the GLAA arrested over 100 people for suspected labour market offences: See 2008 UK Annual Report on Modern Slavery (October 2018)  accessed 2 August 2019.

74  Criminality at Work Provisions are made in relation to variation and discharge of such undertakings and orders. Breaches are punishable by a maximum sentence of two years imprisonment. The Code of Practice (CoP) indicates that LMEUs may be used in parallel or as an alternative to existing powers.7 The appropriate approach is to be determined according to their assessment of the best means of preventing or reducing the risk of further labour market offences being committed by the business in question. The CoP goes on to say that LME undertakings and orders are an additional tool in more serious and persistent cases: namely in cases where existing civil sanctions will not prevent or stop the non-​compliance but prosecution is not yet proportionate. Therefore LME undertakings and orders constitute a mid-​ way sanction and sit at the boundary of civil liability and criminal sanctions.

2.  Employment Agencies and Employment Agency Standards Inspectorate (EASI) The mission of the EASI is described as ‘to work with agencies, employers and workers to ensure compliance with employment rights, particularly for vulnerable agency workers’. They are part of the Department for Business, Energy and Industrial Strategy (BEIS) and are the enforcement body ensuring compliance with the Employment Agencies Act 1973 (the 1973 Act) and the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the 2003 Regulations). The EASI was established after the licensing regime for employment agencies was abolished in 1994.8 The 2003 Regulations, made pursuant to the powers in section 5 of the 1973 Act, include the following key provisions: • to prevent an agency from making the provision of work to a work seeker being conditional on using other chargeable services or hiring or purchasing goods (Regulation 5); • to provide protection from detriment to workers who terminate a contract with the agency or employment business (Regulation 6); • to restrict the use of transfer fees (Regulation 10); • to restrict the withholding of wages from workers (Regulation 12); • to require the agency or employment business to provide, in writing, specific information to hirers and work seekers and obtain agreement to terms and conditions with work seekers (Regulations 13–​19, 21). All breaches of the Regulations are actionable by individuals where damage has been caused (Regulation 30). In addition, by section 5(2) of the 1973 Act, failure to comply with the Regulations constitutes a criminal offence. In addition, section 6 of the 1973 Act makes it an offence for an employment agency or business to demand or receive a fee from any person for finding or seeking to find them employment.

7 Home Office, ‘Code of Practice on Labour Market Enforcement Undertakings and Orders’ (Crown November 2016) accessed 2 August 2019. 8 Deregulation and Contracting Out Act 1994.

Where Criminal Law Meets Labour Law  75 Furthermore, in addition to the criminal offences, section 3A provides that the Secretary of State may apply to an employment tribunal for a prohibition order where a person ‘on account of his misconduct or for any other sufficient reason’ is unsuitable to run an employment agency. It is a criminal offence to fail to comply with such an order (section 3B). Any appeal against an enforcement order is made to the Employment Appeal Tribunal (EAT).9 Finally, criminal offences were created by section 9(3) and section 10 of the 1973 Act where an employment agency or business obstructs an officer or is involved in creating false records. The EASI may now also take advantage of, and operate, the LMEU/​LMEO regime. In June 2017, the EASI published the ‘Enforcement Policy Statement’,10 which sets out the stages and principles of enforcement. It emphasizes that where it has found a breach, it will usually seek compliance by issuing a warning letter setting out the requirements for compliance, the time scale in which to complete this, and any supporting evidence that will be required. Prosecution or a prohibition order may follow. It expressly notes that ‘the purpose of prosecution is condemnatory and a deterrent to others’.11

3.  National Minimum Wage and the HMRC So far we have focused on the mainly criminal powers which can be used against those actors (gangmasters, agencies) conducting their business in a way which contravenes the regulations. We turn now to the situation where the act itself is unlawful: non-​payment of the minimum wage in section B.3 and non-​compliance with the rights in the Working Time Regulations in section B.4. The NMW gives workers the right to be paid at least the National Minimum Wage. The national living wage (NLW) must be paid to workers over the age of 25. An individual worker can bring a claim for failure to pay the NMW/​NLW either as a breach of contract claim in the county court or the employment tribunal, or as a claim for deduction from wages under section 23(1)(a) of the Employment Rights Act 1996 in the tribunal. In addition, the HMRC may also enforce non-​payment of the NMW/​NLW. The HMRC enforcement regime starts with an investigation and may result in a Notice of Underpayment being issued. This notice sets out the arrears of NMW to be repaid and the penalty for non-​ compliance. Where the employer complies with the Notice then enforcement action comes to an end, otherwise payment may be pursued via the civil courts under section 19D(1)(c) of the 1998 Act or in the employment tribunal under section 19D(1)(a) of the 1998 Act.12 The BEIS Policy on HMRC enforcement of the NMW specifically states that ‘where a compliance officer discovers that the NMW has not been paid to a worker or group of 9 Of which there appears to have only been one such appeal: Webster and Burman v DTI EAT/​539/​99. 10 Department for Business, Energy and Industrial Strategy, ‘Employment Agency Standards Inspectorate (EAS):  Enforcement Policy Statement’ (June 2017)  accessed 2 August 2019 (hereafter EAS Enforcement Policy). 11 ibid [10]. 12 Department for Business, Energy and Industrial Strategy, ‘National Minimum Wage Law: Enforcement: Policy on HM Revenue & Customs enforcement, prosecutions and naming employers who break National Minimum Wage law’ (November 2017) accessed 2 August 2019 (hereafter NMW Law Enforcement).

76  Criminality at Work workers, his aim is to ensure that workers receive what they are entitled to as soon as practicable’.13 While this reflects corrective justice concern that is usually understood in civil liability terms, the punitive elements of the enforcement regime have grown in importance.14 Notably the Employment Act 2008 amended the NMW Act 1998 so that notices of underpayment could be issued and penalties were required to be paid (section 19A(1) of the NMW Act1998). The penalty was increased via the National Minimum Wage (Variation of Financial Penalty) Regulations 2014 such that the percentage penalty is now 100 per cent of the total underpayment for all workers, with the maximum penalty being £20,000. Where the underpayments are of more than £20,000 then they will also receive one notice of underpayment per worker or group of workers who have been underpaid by £20,000 or more. Section 152 of the Small Business, Enterprise and Employment Act 2015 (SBEEA) will, when it comes into effect, mean that the maximum financial penalties for NMW underpayment are calculated on a per worker basis such that the more workers an employer underpays, the greater the maximum penalty.15 In addition to these civil liability provisions, under section 31 of the 1998 Act, criminal offences have also been created:

(a) refusing or willfully neglecting to pay the NMW (section 31(1)); (b) failing to keep or preserve relevant records (section 31(2)); (c) offences in relation to the making of false records (sections 31(3) and (4)); (d) intentionally delaying or obstructing an officer or refusing or neglecting to answer questions, provide information, or documents (section 31(5)).

These are summary offences with a maximum sentence of a level 5 fine. The HMRC now also has the LMEU and LMEO regime as a further means of enforcement, which is discussed at B.5, but only in relation to the criminal offences not the matters of civil liability. Finally, the introduction of a ‘naming and shaming’ scheme, which came into effect on 1 January 2011, represented a further mechanism for enforcement. Initially employers were only named where they owed workers at least £2000 and the average per worker was at least £500. This resulted in only one referral. However the scheme was revised on 1 October 2013 with these restrictions removed and between 8 June 2014 and 24 February 2015, 157 employers were named.16 Since then the numbers of employers who have been named and 13 ibid [2.2.3]. 14 On the shifts in enforcement policy generally, Department for Business Innovation and Skills, ‘National Minimum Wage Compliance Strategy’ (March 2010)  [4.8] accessed 2 August 2019. 15 SBEEA, s 152  accessed 2 August 2019. Note the proposals beforehand: David Cameron, ‘Free Movement within Europe Needs to Be Less Free’ Financial Times (26 November 2013) www.ft.com/​intl/​cms/​s/​0/​add36222-​56be-​11e3-​ab12-​00144feabdc0.html#axzz2lpEpnxHv accessed 2 August 2019, and Department for Business, Innovation and Skills (BIS) press release, ‘National Minimum Wage Penalties Increased on Rogue Employers’ (15 January 2014) < www.gov.uk/​government/​news/​ national-​minimum-​wage-​penalties-​increased-​on-​rogue-​employers> accessed 2 August 2019. 16 BIS press release:  ‘National Minimum Wage Rogues to be Publicly Named and Shamed under New Plans’ (23 August 2013)  accessed 2 August 2019; ‘Government Names Employers who Fail to Pay Minimum Wage’ (8 June 2014)  < www.gov.uk/​government/​news/​government-​names-​employers-​ who-​fail-​to-​pay-​minimum-​wage> accessed 2 August 2019; ‘Government Names Employers who Fail to Pay the National Minimum Wage’ (27 November 2014)  < www.gov.uk/​government/​news/​government-​names-​ employers-​who-​fail-​to-​pay-​the-​national-​minimum-​wage> accessed 2 August 2019; ‘Government Names and Shames 37 National Minimum Wage Offenders’ (15 January 2015)  < www.gov.uk/​government/​news/​

Where Criminal Law Meets Labour Law  77 shamed have continued to grow with 260 named on 8 December 201717 and 179 named on 9 March 2018.18 In his May 2018 strategy report, the Director of Labour Market Enforcement and Exploitation expressed concern about what evidence was available on the impact of naming and shaming. His preliminary view was that while there should not be any distinction in relation to financial penalties according to the size of breach, the reputational penalties ‘could be tailored to greater effect, increasing both the deterrence and compliance effect’.19

4.  Working Time and the HSE The Working Time Regulations 1998 (WTR) provide workers with the right to daily rest (Regulations 10(1) and (2)), weekly rest (Regulations 11(1)–​(3)), rest breaks (Regulations 12(1) and (4)), paid annual leave (Regulations 13, 14, and 16) along with specific provision in relation to the armed forces (Regulation 25(3)) and young workers (Regulation 27(2)). These entitlements to rest are enforced in the employment tribunal by an individual worker. An individual worker also has the right not to suffer a detriment or to be unfairly dismissed for objecting to an unlawful requirement or for complaining about a breach of the Regulations (Regulations 31 and 32). In addition, rights are provided to workers in relation to the maximum weekly work (Regulation 4(2)), night work (Regulations 6 and 7), and work patterns that put a person’s health and safety at risk (Regulation 8). There is a requirement for employers to keep relevant records (Regulation 9) and compensatory rest (Regulation 24). These are the ‘relevant requirements’ that the HSE is under a duty to ‘make adequate arrangements for the enforcement of ’ except where workers are employed in premises for which a local authority is responsible. Importantly the HSE does not enforce time off, rest break entitlements, or paid annual leave entitlements. Crucially, the WTR themselves do not provide for remedies for individual workers in relation to the rights that the HSE enforces (although there is some evidence of confusion in respect of this matter before tribunals).20 This stands in stark contrast to the situation under the NMW.

government-​names-​and-​shames-​37-​national-​minimum-​wage-​offenders> accessed 2 August 2019; ‘Government Names and Shames Largest Ever Number of National Minimum Wage Offenders’ (24 February 2015) < www. gov.uk/​government/​news/​government-​names-​and-​shames-​largest-​ever-​number-​of-​national-​minimum-​wage-​ offenders> accessed 2 August 2019. 17 BIS press release, ‘£1.7m Back Pay Identified for a Record 16,000 Workers as 260 Employers are Named and Shamed for Underpaying Minimum Wage Rates’ (8 December 2017)  < www.gov.uk/​government/​news/​17m-​ back-​pay-​identified-​for-​a-​record-​16000-​workers-​as-​260-​employers-​are-​named-​and-​shamed-​for-​underpaying-​ minimum-​wage-​rates> accessed 2 August 2019. 18 BIS press release, ‘Nearly 180 Employers Named and Shamed for Underpaying Thousands of Minimum Wage Workers’ (9 March 2018) < www.gov.uk/​government/​news/​nearly-​200-​employers-​named-​and-​shamed-​for-​ underpaying-​thousands-​of-​minimum-​wage-​workers> accessed 2 August 2019. 19 Director of Labour Market Enforcement David Metcalf, United Kingdom Labour Market Enforcement Strategy 2018/​19 (Crown May 2018) 28 accessed 2 August 2019. 20 See also Barber and others v RJB Mining (UK) Ltd [1999] ICR 679 in which the High Court granted declaratory relief for breaches of reg 4(1), maximum working week.

78  Criminality at Work By Regulation 29(1) employers are guilty of an offence where they fail to comply with a relevant requirement. Such offence may be tried either way (as a summary offence or on an indictment in the Crown Court) and are liable to a fine upon conviction. Employers will also be guilty of an offence under section 33 of the Health and Safety at Work Act 1974 where they, for example, contravene a requirement imposed by an inspector, contravene a requirement or prohibition imposed by an improvement notice or prohibition notice, prevent or obstruct the work of an inspector, or provide false information to them. Broadly an HSE Working Time Officer will investigate complaints and then decide whether to refer the issue to an inspector for more formal enforcement or to provide advice and later follow up.21 The HSE, and the WTR, has not been included in the authorities which may use the new LMEU/​LMEO regime. It is understood that the HSE operates in a similar way to the HMRC in seeking informal compliance first, followed up with prohibition notices and prosecutions being the last resort. However, there is very limited information on enforcement22 with no breakdown of offences provided in the data on prosecutions.23

5.  Office of the Director of Labour Market Enforcement For completeness, it should be noted that the Office of the Director of Labour Market Enforcement (ODLME) was established through the Immigration Act 2016. The ODLME coordinates and brings together HMRC, the EASI, and GLAA. The HSE has not been included but we have been unable to establish any specific justification as to why.24 The aim of this new body, according to the government, is to address illegal immigration and ‘the businesses who exploit cheap labour from overseas’ which damage the labour market and ‘push down wages’ for others.25 The reform was also motivated by concerns about uncoordinated enforcement that can impose excessive burdens.26 A cornerstone in the strategy for ODLME has been the creation of a new post of Director of Labour Market Enforcement and Exploitation. This post has been created to ‘achieve a single set of priorities across enforcement bodies and more flexible allocation of resources’.27 21 Health and Safety Executive, ‘The Working Time Regulations 1998: Guidance on the Legislation Appendix: 6 Flow Diagram’ www.hse.gov.uk/​foi/​internalops/​ocs/​001-​099/​1_​6-​apendices/​app6.pdf accessed 2 August 2019. 22 ibid. 23 Health and Safety Executive, ‘Enforcement Statistics in Great Britain, 2018’ (Crown 31 October 2018) accessed 2 August 2019. 24 See now s 3 of the Immigration Act 2016. 25 The point emerges from David Cameron’s speech when introducing the strategy: ‘PM Speech on Immigration’ (Home Office 21 May 2015) accessed 2 August 2019. The link between the creation of the new agency and illegal immigration was repeated by Theresa May in the House of Commons on 28 May 2015, when she said its aim was ‘to crack down on the exploitation that fuels illegal immigration’. HC Deb 28 May 2015, col 211. 26 See, eg, BIS, ‘Recruitment Sector Legislation:  Consultation on Reforming the Regulatory Framework for Employment Agencies and Employment Businesses’ (January 2013) accessed 2 August 2019 and BIS, ‘Reforming the Regulatory Framework for the Recruitment Sector: Government Response to Consultation’ (July 2013) accessed 2 August 2019. 27 BIS, ‘Tackling Exploitation in the Labour Market: Consultation’ (October 2015) (hereafter BIS, ‘Tackling Exploitation:  Consultation’) [66] https://​assets.publishing.service.gov.uk/​government/​uploads/​system/​uploads/​attachment_​data/​file/​471048/​BIS-​15-​549-​tackling-​exploitation-​in-​the-​labour-​market.pdf accessed 2 August 2019.

Where Criminal Law Meets Labour Law  79 The Director is responsible for setting the enforcement strategy and ensuring delivery of that strategy by the individual enforcement bodies. Individual enforcement agencies remain separate but the Director’s role is to enable better coordination and focus, ‘form[ing] a coherent view of the nature and extent of exploitation and non-​compliance’.28 It is notable that the Director’s aims appear to be different to that of the government: he does not consider his role to be to address illegal immigration, but rather to address illegal working practices.29

6. Preliminary Conclusions When one considers the bodies that have been created, and the powers given to them, across the different regimes, it becomes clear that there are a number of different permutations and models of criminalization that have been established. Intriguingly, the approach to licensing, and the criminalization of breaches of a licence, has shifted from being removed in the employment agencies context in 1994 in search of deregulation, to being introduced in relation to gangmasters in 2004. All the regimes provide for the criminalization of the obstruction of enforcement officers but beyond that the scope, nature, and mechanisms of criminal and civil liability vary considerably. This complexity and variety is further emphasized when the nature of the offences that have been created within each of the regimes is considered: the complexity of the interplay between regulatory offences and civil liability is striking and it is to this that we now turn.

C.  Complexity of the Legal Response Created 1.  Strict Liability Offences The nature of the offences that have been created are varied and broadly operate across a spectrum (see Figure 4.1). At the most stringent level are standalone regulatory offences, including operating as a gangmaster without a licence, failing to comply with the Employment

Gangmasters

Offence to operate without a licence: GLAA enforcement

Employment Agencies Offence of failure to comply with regulations: EASI enforcement

Working Time Offences re max working week, night work, and work patterns: HSE enforcement

NMW

Offence of refusal or wilfully neglecting to pay NMW/NLW: HMRC enforcement

Figure 4.1  Strict liability offences 28 ibid [71]. 29 Director of Labour Market Enforcement David Metcalf, United Kingdom Labour Market Enforcement Strategy—​Introductory Report 1 April 2016–​31 March 2017 (Crown July 2017) 28 accessed 2 August 2019.

80  Criminality at Work Agencies Regulations, or demanding or receiving a fee for finding or seeking employment for someone and failing to comply with a relevant requirement of the WTR. These are strict liability offences: the simple failure to comply, or the act undertaken, is sufficient to prove the offence. The maximum sentences vary considerably however, from ten years’ imprisonment in relation to gangmasters to a simple fine in relation to employment agencies and working time offences.

2.  Offences Requiring an Element of Mens Rea The next ‘level’ of offence is the offence established by the NMW Act 1998. Such an offence is only made out where the person has refused or wilfully neglected to pay the NMW. In other words, there is a specific element of mens rea required. The challenges involved in an offence including such a fault element is highlighted by the discussions which took place regarding whether a new offence of aggravated labour law breach should be created where: [E]‌mployers deliberately, persistently and brazenly commit breaches of labour law and fail to take remedial action. Their pattern of exploitative behaviour neither meets the threshold for Modern Slavery offences . . . nor can it be dealt with satisfactorily through repeated use of existing penalties or offences.30

Despite broad support for this new offence in the consultation responses, following discussions with the Crown Prosecution Service around difficulties in proving the necessary intention, the government decided to move forward with the LMEU/​O rather than creating an offence involving an intention to deprive a worker of their rights.31 Thus it can be seen that the offence created in relation to the NMW is unusual, compared to the other regimes.

3.  Breach of Order Offences The next level down are the ‘breach of order’ offences: in essence, an auxiliary backstop where informal enforcement methods fail to achieve compliance (see Figure 4.2). Here we see the offence of failing to comply with an enforcement order made on application by the EASI or a prohibition notice of the HSE.32 Once again, the gangmasters provisions are stricter in that a licence will (in theory) simply be revoked. The NMW provisions are different to the other regimes: a failure to comply with an NMW enforcement notice results only in civil law liability, not the creation of a regulatory offence. There are similarities in this division when one considers the LMEU/​O provisions (see Figure 4.3):

30 BIS, ‘Tackling Exploitation: Consultation’ (n 27) [90]. 31 In contrast to the offence created by s 2 of the Modern Slavery Act 2015, which does require intent to exploit. 32 Finally, offences are created in relation to obstructing the work of each of the regulatory bodies and the failure to keep proper records, or the creation of fraudulent records. These are of less interest to us for our purposes because they are collateral to the investigative powers of the authorities.

Where Criminal Law Meets Labour Law  81 Gangmasters

Employment Agencies

Working Time

NMW

Offence to operate without a licence: GLAA enforcement

Offence of failure to comply with regulations: EASI enforcement

Offences re max working week, night work, and work patterns: HSE enforcement

Offence of refusal or wilfully neglecting to pay NMW/NLW: HMRC enforcement

No prohibition notice. Only revocation of licence.

Prohibition notice. Breach = criminal offence

Prohibition notice. Breach = criminal offence

Prohibition notice leading to civil liability

Figure 4.2  Breach of order offences

Gangmasters

Employment Agencies

Working Time

NMW

Offence to operate without a licence: GLAA enforcement

Offence of failure to comply with regulations: EASI enforcement

Offences re max working week, night work, and work patterns: HSE enforcement

Offence of refusal or wilfully neglecting to pay NMW/NLW: HMRC enforcement

No prohibition notice. Only revocation of licence.

Prohibition notice. Breach = criminal offence

Prohibition notice. Breach = criminal offence

Prohibition notice leading to civil liability

LMEU/Os

LMEU/Os

No LMEU/Os

LMEU/Os

Figure 4.3  LMEU/​Os

The LMEU/​Os are applicable to gangmasters, employment agencies, and in relation to the NMW. However they are not to be used in relation to working time matters.

4.  Civil Liability Offences The final element to consider in the spectrum is the availability of civil enforcement measures that sit alongside the regulatory offences (see Figure 4.4). The picture in respect of civil liability regimes is much more mixed: with both NMW and EASI, individual workers have civil law statutory remedies that sit in parallel with the criminal provisions. In these contexts, criminal liability is auxiliary to the civil remedies. However, with the WTR an individual worker can seek the enforcement of their right to paid annual leave, rest breaks, daily and weekly rest but there are no free standing statutory rights to enforce the maximum weekly work and night work provisions, other than by way of High

82  Criminality at Work Gangmasters

Employment Agencies

Working Time

NMW

Offence to operate without a licence: GLAA enforcement

Offence of failure to comply with regulations: EASI enforcement

Offences re max working week, night work, and work patterns: HSE enforcement

Offence of refusal or wilfully neglecting to pay NMW/NLW: HMRC enforcement

No prohibition notice. Only revocation of licence.

Prohibition notice. Breach = criminal offence

Prohibition notice. Breach = criminal offence

Prohibition notice leading to civil liability

LMEU/Os

LMEU/Os

No LMEU/Os

LMEU/Os

Civil remedy where non compliance causes damage

Civil remedy where non compliance causes damage

Civil remedies re daily and weekly rest, rest breaks, and annual leave only: individual ET claims

Civil remedy for NMW/NLW

Figure 4.4  Civil enforcement measures

Court declaratory relief for breach of statutory duty. Indeed, the rights that the Regulations provide are such that those rights that an individual can enforce and those enforced by the HSE are mutually exclusive. In those circumstances, criminal liability becomes substitutive rather than auxiliary or additive. In respect of gangmaster matters, individuals may bring a claim for a breach of the Gangmaster Rules where they have suffered damage33 but have no means of enforcing Licensing Standards per se. In those circumstances, all they can do is to complain to the GLAA so that the GLAA can enforce those requirements. The GLAA also has no powers to pay over to the individual, for example, unpaid holiday pay. Consequently the criminal law plays a greater independent role within the scheme of enforcement.

5. Summary Conclusions Taking a step back, it is apparent that the ecosystem of labour market regulation and the interplay between civil and criminal liability is highly complex. At first sight, there appears to be a greater synergy between the GLAA and EASI regimes on the one hand and the WTR and NMW regimes on the other. This could be explained by the fact that the former two regulate the operation of organizations, as opposed to the latter that regulate activities. However, that analysis breaks down when one considers the applicability of LMEU/​ Os, particularly in light of the mixed civil and criminal approach that is taken in relation to LMEU/​Os. It also breaks down when the availability of civil remedies to individuals is



33

Galdikas v Houghton and others [2016] EWHC 1376, [2016] 6 WLUK 226.

Where Criminal Law Meets Labour Law  83 considered. When considering who can enforce the rights and the nature of the regulatory offences themselves, the distinctions across the whole spectrum are muddled and complex. This raises the question as to why the regimes are so different. We do this by considering the political rhetoric surrounding the regimes

D.  Why Have Some Acts of Non-​compliance Been Criminalized? In the previous section we sought to map the rules and means of enforcement across our four chosen areas. We turn now to analyse the structure of the regulatory offences and whether the offences are civil or criminal. We also consider the agencies seeking to enforce the rules. We then turn to examine the political rhetoric surrounding the offences to seek to understand why criminalization has (or not) been selected as an enforcement tool. We shall argue that there is no obvious single explanation as to why the particular smorgasbord of regulatory choices has been made in each of our chosen areas but we suggest the greater use of criminalization is a quick but rather blunt way of demonstrating state disapproval of conduct which might in the past have been stamped on by an effective trade union movement and in certain contexts, by an effective labour inspectorate.

1.  The Political Choices (a) Gangmasters (and blacklisting) The political discourse around the GLAA is emphatically focused on the serious criminal activities that are associated with some gangmasters. Even before the Morecambe Bay cockle picking disaster, debates on the need for the regulation of gangmasters had highlighted the role of professional criminal gangs operating in this area.34 During the second reading of the Bill establishing the licensing regime, Jim Sheridan MP focused on the exploitation that workers suffered and noted that ‘[o]‌ther serious criminal activities are associated with these gangmasters. According to the National Criminal Intelligence Service, the worst gangmasters are known to be involved in both human trafficking and drug smuggling.’35 These sentiments were repeated throughout the debates in both Houses, perhaps best expressed by Roger Williams MP during the third reading: ‘These people form a criminal fraternity, and the more we can do to break its back, the better.’36 The emphasis on criminalization of gangmasters is particularly striking when one compares this to the political discourse dealing with blacklisting. In both contexts, the public pressure to criminalize was considerable and yet different routes of enforcement were taken. The power to make regulations prohibiting blacklists was given to the Secretary of State via section 3 of the Employment Relations Act 1999. However, it was not until after the discovery by the Information Commissioner of the activities of the Consulting Association that the Employment Relations Act 1999 (Blacklisting) Regulations 2010 were brought into force. The Consulting Association held a database of 3213 individuals with information

34

See, eg, Mark Simmonds, HC Deb 10 September 2003, vol 410, cc 331. HC Deb 27 Feb 2004, vol 418, cc 518. 36 HC Deb 21 May 2004, vol 421, cc 1227. 35

84  Criminality at Work about their trade union involvement that was covertly collected and supplied to a group of building companies. In the light of the gangmasters’ regime, it is perhaps surprising that the blacklisting regime is entirely one of civil liability, enforced through the county court or employment tribunal. The rights created are individual rights, with no overarching enforcement body available to enforce rights on behalf of, or in place of, individual workers. There had been numerous calls from a number of sectors, including during Parliamentary debates, for blacklisting to be criminalized, and these calls continue today. Parliamentary debates continue to focus on the lack of proper punishment for breaches, that ‘no one has ever been brought to book properly’.37 As Jack Dromey put it ‘no user company has been punished for blacklisting. No director has ended up in the dock, and that is completely wrong . . .’.38 Initially these calls for criminalization were rejected because the practice was believed to be uncommon, mirroring the rationale for declining to implement any Regulations on blacklisting before 2010. Indeed, this view appears to remain in some parts of the political arena. Vince Cable, responding in an Opposition Day motion debate in 2013, said that if blacklisting practices were continuing then that would need to be investigated and ‘we might well need legislative change’ to strengthen the Regulations. The Explanatory Memorandum to the Regulations said that ‘[b]‌lacklisting is an uncommon practice and few legal actions are therefore likely to arise’.39 At the same time, a further seam of argument was, and is, that financial penalties are adequate and provide a ‘powerful deterrent’ such that there is no need for either criminalization nor a separate public body to enforce rights. This may provide much of the explanation as to why blacklisting has not been criminalized because when the gravest labour market exploitation is considered, there may be very serious criminal activities also in play such as drug trafficking, prostitution, and child labour. By comparison, the gravest blacklisting resulted in significant economic and occupational losses but does not overlap with other matters that are obviously criminal. Nevertheless, this does not tell the whole story. We think that there is a further significant political rationale that explains more clearly why blacklisting has not been criminalized, namely the alignment of blacklisting protection with anti-​discrimination law. The Explanatory Memorandum makes clear the distinction: There are provisions in existing trade union law (principally found in section 137, 138, 146 and 152 of the Trade Union and Labour Relations (Consolidation) Act 1992) which protect individuals against discrimination in employment on grounds of their trade union membership and activities. The blacklisting of trade unionists is a practice which facilitates anti-​union discrimination.

This is repeated in the Final Impact Assessment produced in January 2010: ‘[b]‌lacklisting facilitates and encourages unlawful discrimination against trade unionists and compromises a fair system of employment relations’. Thus by categorizing blacklisting as an adjunct to discrimination, it places it within the framework of statutory torts and marries it up with

37 Chuka Umunna, Labour MP for Streatham, HC Deb 5 September 2017, vol 628, col 68WH. 38 Jack Dromey, Labour MP for Birmingham Erdington, HC Deb 5 September 2017, vol 628, col 77WH. 39 The Employment Relations Act 1999 (Blacklists) Regulations 2010, SI 2010/​493, Explanatory Note [12] accessed 2 August 2019.

Where Criminal Law Meets Labour Law  85 the provisions of the Equality Act 2010. Blacklisting is said to be unacceptable and regulation is required to ‘stamp out this practice’. By aligning blacklisting with discrimination, it locates blacklisting within the civil law domain.

(b) NMW, WTR, and employment agencies In respect of the other three regimes: NMW, WTR, and the regulations relating to employment agencies, the discourse is different again. It sits between the civil and criminal law. The concern is both to ensure minimum standards of protection for vulnerable workers against unscrupulous employers and also to ensure that ‘good employers’ are not undercut by bad ones, who seek to profit from exploiting workers.40 So it is that in these schemes there is a need . . . to balance the potential burdens on business of the structure of the regulation itself against the need to ensure that individuals receive their rights and are adequately protected; and that the economic as well as the social benefits we envisage flowing from a national minimum wage do indeed ensue.41

The discourse is also mixed in relation to the basis for the recent creation of the ODLME. In the Government’s Response to the Consultation prior to the Immigration Act 2016, it was noted that ‘[w]‌here employers are exploiting their workers by non-​compliance with employment law, the Government steps in to enforce legislation in some circumstances, for example where it is believed that there is a higher risk of exploitation or vulnerability’.42 It goes on to note: [F]‌eedback from enforcement agencies suggests that there has been a change in the nature of non-​compliance with labour market regulation over time. This has seen a shift from the more general abuses of employment regulation towards increasing organized criminal activity involving serious and organized crime gangs infiltrating labour supply chains across a number of sectors to exploit workers.43

This is reflected in the Explanatory Memorandum to the Immigration Act 2016 which states: [T]‌he Government believes that labour market exploitation is an increasingly organized criminal activity and that government regulators that enforce workers’ rights need reform and better coordination. The Conservative Party Manifesto also committed to introduce tougher labour market regulation to tackle illegal working and exploitation.44

40 See, eg, HC Deb 27 October 1998, vol 318, cc 213–​42 on WTR and HC Deb 16 December 1997, vol 303 cc 162–​239 on NMW. 41 Secretary of State for Trade and Industry on Second Reading of NMW Bill (See HC Deb (n 40) cc 170). 42 Immigration Act 2016, Commentary on Provisions of the Act, at p 5  accessed 2 August 2019. 43 At [42]. 44 Immigration Act 2016, Commentary on Provisions of the Act accessed 2 August 2019.

86  Criminality at Work In addition, it has been emphasized that the aim of the ODLME is to address illegal immigration and ‘the businesses who exploit cheap labour from overseas’ which damage the labour market and ‘push down wages’ for others.45 It must be recalled that the establishment of the ODLME arose in parallel with a clamp down on illegal migration and the political discourse was primarily concerned with stamping out illegal migration, rather than enhancing labour market protections.46 The political focus on criminality fits within that framework. However, the tone of the recent strategy promulgated by the Director of the ODLME is quite different. While he discusses serious and organized crime, this is always tied together with the work on modern slavery and that of the Independent Anti-​Slavery Commissioner. Consequently, . . . the purpose of the Strategy . . . is straightforward. First, to protect vulnerable workers. Second, to try to ensure that the majority of good compliant firms and other organizations are not undercut, and possibly driven out of business, by unscrupulous non-​compliant competitors.47

The delineation by the Director between serious crime and modern slavery on one hand and the less serious wrongs on the other is hardly surprising and reflects wider political rhetoric.48 However, it appears that the focus may be on the more serious forms of exploitation rather than the high volume, but less serious, breaches and this represents a significant strategic choice by the architects of this criminalization regime. The Director of the ODLME’s report makes explicit that the basis for the strategy is the interaction between the deterrence and compliance theories. He emphasizes in c­ hapter 2 that ‘the intended aim of enforcement tools is to encourage compliance and deter employer non-​compliance . . . the most effective enforcement approach is likely to be some mix of [compliance and deterrence]’.49 He notes that the three enforcement bodies take very different approaches with the EASI taking a primarily compliance (educative) approach, the GLAA taking a mixed approach, and the HMRC treating identified non-​compliance with a deterrence-​based approach.50 His conclusion is that: The compliance approach is premised on the idea that violations of employment regulations are the result of employer ignorance and incompetence. I recognize that a large part of noncompliance can be tackled in this way . . . I have concerns that both the chances of being investigated by enforcement officers and the scale of financial penalties for those found to be non-​compliant are too low. Not only does this provide little incentive for employers to comply, but some employers are actively discounting these costs as part of their wider business model.51 45 ‘PM Speech on Immigration’ (n 25). The link between illegal immigration and the ODLME was repeated by Theresa May in the House of Commons: HC Deb 28 May 2015, col 211. 46 Judy Fudge, ‘Illegal Working, Migrants and Labour Exploitation in the UK’ (2018) 38(3) Oxford Journal of Legal Studies 557. 47 Metcalf, ‘Labour Market Enforcement Strategy 2018/​19’ (n 19) [1.3]. 48 Theresa May PM, ‘Defeating modern slavery: article by Theresa May’ (31 July 2016) accessed 2 August 2019. 49 Metcalf, ‘Labour Market Enforcement Strategy 2018/​19’ (n 19) 32. 50 ibid 33. 51 ibid 33.

Where Criminal Law Meets Labour Law  87 Thus, rather than emphasizing either the punitive nature of criminal sanctions, as we see in much of the political discourse, or the worker protective perspective, the emphasis of the LMEU is on deterrence. In many ways the deterrence approach is better aligned to the work and employment context because, particularly in relation to lower level violations, the economics involved and the relative power between worker and employer play a more significant role. In addition, the Director acknowledged the challenges in relation to holiday pay and encouraged enforcement bodies to pursue these issues where they could.52 He also noted that ‘operational focus through complaints-​led investigations’ should remain in sectors that would not necessarily score highly on their harm metric but where there was, ‘a high volume of complaints about low harm breaches, such as hairdressing for the HMRC NMW/​NLW team’. The strategy document appears to be suggesting focusing civil penalties and ‘educative’ measures on high volume/​low exploitation breaches and reserving the criminal penalties for very serious breaches, in which collaboration with the Anti-​Slavery Commissioner and the police would be encouraged. However, the Director’s analysis regarding the naming and shaming process does not quite fit into this structure: As discussed above, the publicity arising from the naming rounds can often focus on the larger, household-​name employers as BEIS lists employers who have failed to pay minimum wages in descending order of total wage arrears. However, this often masks the relative financial severity of the non-​compliance taking place for individual workers. Taking the December 2017 naming round as an example, the Best Connection Group topped the list and owed £469,000 in unpaid wages, equating to £183 per worker. Across the 260 employers named in this round, a total of £1.764 million was owed to around 16,400 workers, averaging less than £108 each. In fact, almost 11,000 workers were owed less than £50 each. By contrast, five workers had each been underpaid by over £11,000 and a further 15 by over £3,000 (BEIS, 2017e).53

The report goes on to suggest differentiating the public measures taken against companies where the sums per worker are smaller. However, for us, this raises concerns that the focus on more serious exploitation may limit the impetus to tackle high volume, lower exploitation breaches.

(c) Summary conclusion Putting the LMEU work to one side, and to which we will return towards the end of the chapter, the political rhetoric is very mixed and does not provide a particularly clear basis to explain the choices as to whether to go down a criminal or a civil route or a hybrid approach. The one exception to this is in respect of modern slavery where the Modern Slavery Act and the Immigration Act 2016 need to be understood as an integrated legislative approach where criminalization of employer conduct is at the forefront of the regime. Outside modern slavery, we can surmise various explanations for the mixed approach. It may well be that the criminalization of labour law breaches has arisen in the context of increased deregulation. In other words, as red tape has been cut to free businesses to operate

52 53

ibid 106. ibid 58.

88  Criminality at Work as they wish, there has been a need to find new and different types of enforcement. It could also be argued that with the significant reduction in the coverage and density of trade union membership in the labour market other mechanisms have been developed to address the failure of collectivism. But we suspect that there is a third and probably more persuasive justification: effectiveness of the enforcement. Criminalization is portrayed as necessary when the breach is sufficiently serious, both for the individual and for society as a whole. In other words, criminalization of labour breaches sends a signal to employers that certain rules are important and must be complied with. Thus, success, or otherwise, of criminalization is to be measured by whether employers change their behaviour. Behavioural change is very difficult to show. However, employers will not change their behaviour if the risk of enforcement, whether actual or potential, is limited. That leads us to consider the enforcement of rights in the regimes that we are considering. Enforcement is not a direct proxy in evaluating effective deterrence. However, we argue that only if employers are likely to be caught might that prompt a change their behaviour. So in the next section we look at the effectiveness of the various enforcement regimes.

E.  Effectiveness of Enforcement Action So, in this section we consider the nature and extent of enforcement action. We consider this in two senses: the nature and extent of actual enforcement and the perception of the risk of enforcement.

1.  The Nature and Extent of Enforcement The most recent BEIS policy on enforcement of the NMW by the HMRC was published in November 2017.54 It states that the HMRC will instigate criminal investigations ‘when appropriate to bolster our overall enforcement strategy’. They emphasize that in relation to prosecutions, the HMRC will focus on the most serious cases where the NMW offences form part of a pattern of criminality and where prosecution ‘will do most to deter employers from deliberately flouting the law’. Civil enforcement may be taken alongside prosecutions to ensure that workers are repaid.55 The funding for this enforcement work by the HMRC in 2017–​18 was £25.3 million, equating to over 399 full-​time equivalent staff members.56 It is clear that enforcement overall has increased considerably both in terms of criminal prosecutions and civil enforcement. There have been fourteen successful prosecutions by the HMRC since 2007, four of which were in 2016–​17.57 The arrears recovered for workers has also significantly increased. The sums recovered were consistently between £3.2 million

54 BIS, ‘National Minimum Wage Law Enforcement Policy’ (n 12) [4.2]. 55 ibid [4.1]. 56 Metcalf, ‘Labour Market Enforcement Strategy 2018/​19’ (n 19). 57 Alison Thewliss, ‘Minimum Wage: Prosecutions:Written question –​58353’ (asked 20 December 2016, answered by Jane Ellison 9 January 2017) accessed 2 August 2019. See also Metcalf, ‘Labour Market Enforcement Strategy 2018/​19’ (n 19) 23–​24.

Where Criminal Law Meets Labour Law  89 and £4.6 million per year from 2009–​10 to 2015–​16. However, in 2016–​17 this increased to £10.2 million and increased again in 2016–​17 to £10.9 million. There does not appear to be a correlation between the amount of arrears and the number of closed cases with arrears. There has, however, been a significant increase in the number of workers for whom arrears have been recovered, rising from 19,245 in 2009–​10 to 98,150 in 2016–​17.58 In the employment tribunal only 1383 claims were brought between April 2012 and April 2017. There is very limited information available on enforcement by the HSE, or the funding provided to it for enforcement work,59 with no breakdown of offences provided in the data on prosecutions.60 When we considered the Public Register of Notices concerning working time, in the previous five years, it revealed just nine entries of which two were immediate prohibition notices and seven improvement notices. 61 Only three of the notices expressly dealt with working time matters, the others detailed various health and safety matters with working time simply highlighted as a further breach but without any detail. In addition, the historic register revealed one further case. No cases dealing with working time were found on the Prosecutions Register. However one reference in a press report was found to a prosecution in 2003.62 There appears to be very limited enforcement of working time by the HSE with no, or virtually no, hard enforcement applied. This is particularly striking when one considers the numbers of claims that have been brought in the employment tribunals for unpaid holiday pay. The official statistics for the employment tribunals show that from April 2012 to April 2017, there were 247,291 claims that included a claim relating to working time. In Q1 of 2017–​18 there were 1728 claims brought. The EASI’s enforcement action has also been very limited. The government funding for enforcement is strikingly small: just £0.5 million core budget.63 The Annual Reports from 2009 to 2016 show a fluctuating, but seemingly reducing, level of enforcement activity with the majority of enforcement activity being sending warning letters.64 The number of those prohibited or prosecuted is very low indeed. In 2016–​17 there was just one prosecution and one prohibition.65 The current list of prohibited individuals stands at just ten.66 In the political discourse for these three regimes, the emphasis was on a balance between protecting vulnerable workers and limiting the burden of regulation particularly on good employers. It is interesting to note that this appears to be reflected in the enforcement

58 BIS, ‘National Living Wage and National Minimum Wage: Government Evidence to Low Pay Commission on Compliance and Enforcement’ (July 2017) accessed 2 August 2019. 59 HSE, ‘WTR Guidance’ (n 21). 60 HSE, ‘Enforcement Statistics’ (n 23). 61 accessed 2 August 2019. 62 ‘News: Working Time Regulations—​First HSE Prosecution’ Business Advice Directory (29 September 2003) accessed 2 August  2019. 63 BIS, ‘National Minimum Wage Law Enforcement Policy’ (n 12) [4.1]. 64 For further detail, see Table 4.1. See also BIS, Employment Agency Standards Inspectorate: Annual Report 2015–​2016 (July 2016) accessed 2 August  2019. 65 Metcalf, ‘Labour Market Enforcement Strategy 2018/​19’ (n 19) 26 66 BIS, ‘Guidance: People Prohibited from Running an Employment Agency or Business’ (23 February 2018) accessed 2 August 2019.

90  Criminality at Work strategies: there have been very few prosecutions and a strategy of seeking informal compliance first has been utilized. However, it is particularly interesting that where there has been extremely limited enforcement by the HSE, there has been the greatest level of enforcement within the employment tribunals. While the type of claims brought within the tribunal and those by the HSE are different, it is fair to posit that the level of compliance with the right to annual leave is likely to be similar to the other working time rights. With regard to the GLAA, detailed data are provided in Table 4.1 (below, page 91). In 2014 it was said that the emphasis of the GLAA was moving to cases where criminal activity is alleged.67 Initially this seemed to be the case with a reduction in revocations and signs of an increase in prosecutions. However, it has not now been followed through with a consistent increase in prosecutions. In the Strategy report it is noted that in each of 2015–​ 16, 2016–​17, and 2017–​18 the GLAA took five prosecutions but no detail is provided as to which sections the offences were charged under.68 Even this represents a reduction from a high of twenty-​five offences charged in 2012–​13 and nine in 2014–​15. Consequently, the enforcement action of the GLAA appears to be becoming more limited in scope and number of successful actions. As noted above there have been no prosecutions under the new powers of LAPOs.69 The limited number of prosecutions by the GLAA is somewhat surprising, particularly given the strong political rhetoric and the concerns as to serious criminal involvement in gangmasters. However, this is perhaps reflective of two things: firstly the use of modern slavery provisions for the most serious crimes (ie those adverted to in the Parliamentary debates),70 and secondly, the strategy adopted by the ODLME which merges the GLAA concerns with those of the HMRC and HSE seeking to balance both the protection of vulnerable workers and preventing unfair competition by unscrupulous, non-​compliant competitors. However, the government funding provided to the GLAA in 2017–​18 is noteworthy, at £7.1 million equating to 104 FTE staff members.71 Nevertheless, the apparent reduction in enforcement generally by the GLAA is surprising. Drawing these points together it is clear that when the data on prosecutions is considered the degree of actual criminal enforcement is very low indeed. The focus of the authorities is now on the most serious infringements of workers’ rights and with it, an inevitable emphasis on issues of modern slavery. That may, of course, be right in policy terms. However, it is not reflective of the legislative provisions which sanction simple breaches of, for example, the WTR by way of criminal penalty. The legislative choice is one of criminalization; the practical implementation is one of encouraging compliance with the criminal law operating as an auxiliary backstop.

67 Department of Environment and Rural Affairs, Report of the Triennial Review of the Gangmasters Licensing Authority (Crown April 2014) . 68 Metcalf, ‘Labour Market Enforcement Strategy 2018/​19’ (n 19) 25. 69 Further statistics are available in Annual Report on Modern Slavery (n 6). 70 Although it is notable that the number of prosecutions under the Modern Slavery Act have also been limited compared to the number of modern slavery crimes recorded: Virginia Mantouvalou, ‘The UK Modern Slavery Act 2015 Three Years On’ (2018) 81(6) Modern Law Review 1017. 71 Metcalf, ‘Labour Market Enforcement Strategy 2018/​19’ (n 19).

828

714

603

781

No data available

Section 12 Offence

14

8

11

5

9

5

2012–​13

2013–​14

2014–​15

2015–​16

2016–​17

Year

2010–​11

2011–​12

2012–​13

2013–​14

2014–​15

2015–​16

194

23

46

229

407

0

0

1

15

4

3

Section 13 Offence

782

186

320

1479

2146

2065

0

0

0

0

0

Section 18 Offence

GLAA enforcement data1

275

133

179

471

602

917

647

1 GLAA, ‘Convictions Total’ accessed 2 August 2019.

£83,000

4

2

5

1

2

1

0

3

4

7

3

1

1

Prosecutions

0

1

2

2

0

8

2

Prohibitions

9

15

16

18

13

15

30

31

Revocation without immediate effect

No data available

No data available

£169,184

£128,523

£295,010

£204,000

Monies recovered

Revocation with immediate effect

3

643

2011–​12

243

2236

Warning letters sent

2017–​18

958

2010–​11

164

Total infringements found on all cases

3

1714

2009–​10

Targeted inspections in high risk areas /​follow up inspections

EASI enforcement data

2016–​17

Complaints received

Period

Table 4.1  Enforcement statistics

Where Criminal Law Meets Labour Law  91

92  Criminality at Work

2.  The Risk of Enforcement It is clear that very few workers, or indeed employers are aware of the work of the enforcement bodies HMRC, GLA, HSE, and EASI. In a recent study concerning the enforcement of employment rights by EU-​8 migrant workers, the authors individually interviewed twenty EU-​8 migrant workers and held five focus groups.72 Most of the participants were Polish, Lithuanian, or Latvian nationals. They had diverse occupational backgrounds, ranging from agricultural, retail, and administrative work, to dentistry and computer science. Most had been resident in the UK for two years; some had been working in the UK since accession of their home countries to the EU in 2004. None of them knew of the existence of the HMRC, GLA, EASI, or the HSE. In 2011 a Department for Business, Innovation and Skills (BIS) study found little awareness among employers about the potential for inspection and enforcement by the HMRC of the NMW and no awareness of the potential for criminal proceedings.73

F.  Conclusions In light of this analysis, what can be said of the success or otherwise of criminalization? The ideas and rationale for criminalization are muddled. Outside very serious cases of labour exploitation (such as via the Modern Slavery Act 2015), there is relatively little clarity on what criminalization is seeking to achieve in respect of breach of labour standards which are less serious. When the structure of the legislation is considered, there is little correlation between the nature of offences and means of enforcement, still less the relative budgetary provisions for the different enforcement agencies, and the political rhetoric that surrounded the establishment of the different regimes. The position is particularly confused and confusing when individual rights are set against enforcement by the enforcement bodies: there is little logic to when or why individuals can bring a claim and when it must go via an enforcement body. In this sense, the criminal law can become a two-​edged sword for the victims: they lose the right to bring a claim and are disempowered in the process. Of course, the enforcement bodies have an important role to play in protecting the most vulnerable in society and to bring claims and enforce rights that they would not otherwise be able to deal with. However this only holds good if (i) enforcement is in fact happening and (ii) at the very least, the enforcement bodies are known amongst those vulnerable workers as ‘their’ protective body. But we know that this is not the case. As we have shown above, actual enforcement is surprisingly limited. Moreover, the picture is also one of employers having very little awareness of the risk of enforcement action, either through potential criminal processes or from experiencing civil law action. When considering the degree to which civil liability is imposed on organizations that too is limited, particularly when the most vulnerable groups of workers are considered. It is 72 Catherine Barnard and Sarah Fraser Butlin, ‘Beyond Employment Tribunals: Enforcement of Employment Rights by EU-​8 Workers’ (2018) 47(2) Industrial Law Journal 226. 73 BIS, ‘Employment Relations Research Series No 121: Research into Employers’ Attitudes and Behaviours towards Compliance with UK NMW Legislation’ (October 2011)  accessed 2 August 2019.

Where Criminal Law Meets Labour Law  93 now accepted that while tribunal fees were in place, they placed a significant restriction on workers’ ability to pursue a claim in the tribunal.74 However, there are other obstacles that also exist and the level of enforcement in terms of bringing a claim is relatively low.75 When EU-​8 workers are considered, as an example of a vulnerable group, very few bring claims: a study published by one of the authors in 2016 showed that between 2010 and 2012 inclusive, the employment tribunals disposed of at most 1548 claims brought by EU-​8 migrant workers out of an annual case disposal total of over 100,000.76 The reasons are many and various,77 but the important point for our purposes is that civil enforcement of rights is also generally low. So we are left with a picture of considerable and growing criminalization when one considers the ‘law on the books’. But when one considers ‘law in practice’, there is little enforcement taking place. Although deterrence cannot be measured by enforcement statistics, the very limited level of enforcement tends to suggest that in truth the criminalization of labour law breaches is simply ineffective political signalling: politically it can be said that labour law breaches are being taken seriously but little is done in practice. Nevertheless, we detect a source of optimism. On 9 May 2018 the Director for Labour Market Enforcement published the UK Labour Market Enforcement Strategy 2018 to 2019.78 This Strategy document set out the severe limitations in the data available dealing with the nature and scale of non-​compliance with labour rights. However, he also identified modern slavery as the ‘extreme end’ of the enforcement spectrum and sat it primarily within the remit of the police and national crime agency. The Director also set out his framework for effective enforcement focusing on prioritization, deterrence, sustainability, and dealing with system-​wide effects. Importantly he emphasized that the most effective enforcement approach was a mix of compliance, that is supporting compliance by employers and promoting rights and the awareness of rights, and deterrence. The Strategy noted the Director’s concern that the chances of being investigated by enforcement officers and the scale of financial penalties for those who are non-​compliant are too low. This, he noted, gave little incentive to employers to comply and that some employers were actively discounting these costs as part of their whole business model. The Director’s proposals included:

• • • • • •

a significant increase in the size of civil penalties; an increased use of reputational penalties; an increase in the use and publicity of prosecutions; encouraging the use of LMEU/​Os; shifting towards more proactive enforcement; and greater use of joint working.

We would suggest that this Strategy represents a significant and positive change in the direction of travel. Firstly, the Director of the LMEU appears to have a clear focus on what 74 See R (on the application of Unison) v Lord Chancellor [2017] UKSC 51, [2017] 3 WLR 409. 75 On which see further Nicole Busby and Morag McDermont, ‘Access to Justice in Employment Disputes: Private Disputes or Public Concerns’ in Ellie Palmer, Tom Cornford, Yseult Marique, and Audrey Guinchard (eds), Access to Justice: Beyond the Policies and Politics of Austerity (Hart 2016) 175–​96. 76 Catherine Barnard and Amy Ludlow ‘Enforcement of Employment Rights by EU-​8 Workers in Employment Tribunals’ (2016) 45(1) Industrial Law Journal 1. 77 ibid. 78 Metcalf, ‘Labour Market Enforcement Strategy 2018/​19’ (n 19).

94  Criminality at Work criminalization is seeking to achieve. Secondly, he has carefully divided the ‘lower tier’ breaches from the most serious cases of modern slavery. This is critical to their success: the underenforcement of lower tier rights will only serve to undermine the rights themselves. It may be that the LMEU represents a wind of change bringing true enforcement, both actual and potential, and will result in changes to employer behaviour.

PART II

L A B OU R WRONG S AS PU BL IC  W RONG S

5

Exploitation at Work Beyond a ‘Criminalization’ or ‘Regulatory Alternatives’ Dichotomy Jennifer Collins*

A.  Introduction Identifying a legally appropriate response to exploitation in work relations is normatively complex. The coercive arm of the state, propelled by political, social and institutional pressures, is increasingly utilized to criminalize exploitation in its various guises. Although exploitative conduct is already criminalized via other offences, specific exploitation offences have recently been enacted, spurred by demands for ‘fair labelling’.1 The line between criminal law and civil law measures has become blurred, with new civil preventive orders backed up by criminal sanction on breach.2 Licensing regimes have been imposed in expanded areas of the labour market, to be enforced by regulators with increased powers to penalize breaches.3 A criminal and civil law response to a particular problem is not new or remarkable. The existence of civil law measures does not preclude criminalization, and vice versa. Nor is the division between civil and criminal law measures always strict.4 However, the theme of exploitation in work relations has produced an increasingly polarized set of positions ‘for’ or ‘against’ criminalization. Of late, complaints have been made about the deleterious effects of criminalization of exploitation in work relations. Judy Fudge has argued that the legal characterization of ‘unfree labour’ in both the Modern Slavery Act 2015 and the Immigration Act 2016 supports criminalization ‘as the “best” instrument’ for censuring ‘morally culpable individuals’.5 Her argument is that the effects of criminalization, deployed in a political environment that welcomes a ‘law and order’ policy agenda, over-​bear other areas of law (such as labour law) which are worker-​protective in ameliorating labour exploitation.6 A further unwelcome effect of criminalization exists for workers bearing irregular work status who can be seen as a ‘threat to working people’s living standards’.7 In this way criminalization * Senior Lecturer in Law, University of Bristol Law School. I am very grateful to Andrew Ashworth, Alan Bogg, Mark Freedland, and Virginia Mantouvalou, and to participants at Criminality at Work in June 2018 for comments and suggestions. 1 Modern Slavery Act 2015, ss 1–​2; CN v UK (2013) 56 EHRR 24. 2 See Jennifer Collins and Andrew Ashworth, ‘The Preventive Role of the Criminal Law in Employment Relations’ in this volume. 3 Immigration Act 2016, s 11(2). There has also been appeal to regulatory measures without reinforcement from the criminal law, eg Modern Slavery Act 2015, s 54. 4 Richard Macrory, ‘Sanctions and Safeguards: The Brave New World of Regulatory Enforcement’ (2013) 66 Current Legal Problems 233; Richard Macrory, Regulatory Justice: Making Sanctions Effective (TSO 2006). 5 Judy Fudge, ‘Modern Slavery, Unfree Labour and the Labour Market:  The Social Dynamics of Legal Characterization’ (2017) 27 Social and Legal Studies 414, 429. 6 ibid. 7 ibid 430. Jennifer Collins, Exploitation at Work In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.005

98  Criminality at Work of exploitation can be linked with an anti-​immigration agenda, further corroding the protective remit of labour law and human rights law for society’s most vulnerable workers. Together these arguments have led Fudge to harden her position ‘against’ criminalization of exploitation in work relations in favour of alternatives.8 This valuable work, which highlights an under-​explored and under-​theorized intersection between the criminal law and other branches of the law, provides impetus for the arguments of this chapter. First, I unpack and critically analyse two sets of criticisms of using the criminal law to regulate exploitation in work relations. The ‘internal’ critique is that criminalization can only penalize the most extreme forms of exploitation and unfree labour in work relations, neglecting long-​standing reasons for worker-​precarity. The second ‘external’ critique is that criminalization of exploitation, deployed in the current political climate of a hostile environment, unduly privileges criminalization over other areas of law and enforcement, which impedes the protection of vulnerable workers. Responding to the internal critique, I argue for detailed analysis of the reinforcement function of the criminal law in regulating exploitation at work through regulatory criminal law measures. There is no reason to think that criminal law is by definition linked to immigration controls: this is a politically contingent issue which is not inherent in the choice of criminal law as a regulatory technique. In fact, the criminal law might operate as an auxiliary means of enforcing basic labour standards, such as breach of standards found in the National Minimum Wage 1998. To date the potential variety of criminal law responses available has been overlooked and criminal law theorists can shed new light on this matter. On the ‘external’ critique, I open up new critical space for deciding how a criminal law response to exploitation in work relations ought to be fashioned. Building on and developing Andrew Simester and Andreas von Hirsch’s work on principled criminalization, I argue that careful thought needs to be given to the ways in which decisions between regulatory channels ought to be made once an in-​principle case for criminalization has been established.9 This is not the only complex question which arises in thinking about the criminalization of exploitation in the context of work relations. But it is a key point at which concerns about ameliorating negative consequences for vulnerable workers can be taken into account. At this point, a rigid position ‘for’ or ‘against’ criminalization ought to be resisted in favour of a ‘multidimensional regulatory model’.10 Specifically, I develop this notion of a richer and more nuanced regulatory mix by elaborating further principles and constraints to criminalizing exploitation in work relations. This must include appraising criminalization in its wider regulatory context, as well as more nuanced arguments about the appropriateness of criminal law interventions which include ‘regulation plus crime’ measures. The issue of enforcement is flagged as pivotal, and herein I identify concerns about current enforcement of criminal law measures relating to exploitation in work relations. This chapter is structured as follows. Section B sets out the conceptual framework, before turning in section C to consider limitations of criminalizing exploitation at work. Section 8 Judy Fudge, ‘The Dangerous Appeal of the Modern Slavery Paradigm’ Open Democracy (25 March 2015)

accessed 3 October 2018. 9 AP Simester and Andreas von Hirsch, Crimes, Harms and Wrongs: On the Principles of Criminalization (Hart Publishing 2011) 193–​98. Both civil law and criminal law channels could be considered defensible. 10 Judy Fudge and Deirdre McCann, Unacceptable Forms of Work:  A Global and Comparative Study (International Labour Office 2015) accessed 3 October 2018.

Exploitation at Work  99 D highlights uncertainty involved in considering regulatory alternatives to criminalization. Section E develops arguments which ought to inform this decision-​making as multidimensional, reflecting on the precise nature of criminal law measures proposed and on broader issues of enforcement.

B.  The Conceptual Framework In this section I build the conceptual framework by addressing three key questions. First, how does exploitation connect to the sphere of ‘work’ (broadly encompassed)? Second, what do we mean by exploitation in work relations? Third, does the state have a mandate to curb strongly exploitative practices and/​or interpersonal exploitation, and must it do so using the criminal law?

1.  Connections between ‘Exploitation’ and ‘Work’ Exploitation thrives in situations where one party is vulnerable, allowing an exploiter the opportunity to exert control over another person.11 Work relations provide a context of vulnerability for workers in at least three ways. First, workers occupy a subordinate position in the labour market—​a position of situational vulnerability.12 This view is supported by Kahn Freund’s foundational argument that the justification for labour law is ‘to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship’.13 Second, the vulnerability of workers to exploitation is compounded for those who are deemed by law to have irregular, semi-​ precarious or precarious work status, as identified by the Council of Europe Commissioner for Human Rights and the European Court of Human Rights.14 Workers who require permission to continue to reside in a country may have this permission withdrawn at any time, such as by evidence provided by an employer.15 This is vulnerability created by labour market structures which disempowers certain groups of workers from enjoying full rights in employment relations.16 As argued powerfully by Virginia Mantouvalou, the position of vulnerability for workers is created by law—​a form of ‘legislative precariousness’.17 Nicola Countouris identifies several other ‘legal determinants of precariousness’ in personal work relations, including through classifying a worker as informal or self-​employed 11 Allen Wood, ‘Unjust Exploitation’ (2016) 54 The Southern Journal of Philosophy 92, 96. 12 Borrowing Farmer’s language, see Lindsay Farmer, Making the Modern Criminal Law (OUP 2016) 167. 13 Paul Davies and Mark Freedland (eds), Kahn-​Freund’s Labour and the Law (3rd edn, Stevens 1983) 18. 14 Council of Europe Commissioner for Human Rights, ‘The Human Rights of Irregular Migrants in Europe’ (CommDH/​IssuePaper 2007) 1, 7; Siliadin v France App no 73316/​01 (ECtHR, 26 October 2005), Rantsev v Cyprus and Russia App no 25965/​04 (ECtHR, 7 January 2010), CN v the UK (n 1), noted by Siobhán Mullally and Clíodhna Murphy, ‘Migrant Domestic Workers in the UK: Enacting Exclusions, Exemptions, and Rights’ (2014) 36 Human Rights Quarterly 397, 399. 15 Alan Bogg and Tonia Novitz, ‘Links Between Individual Employment Law and Collective Labour Law’ in Cathryn Costello and Mark Freedland (eds), Migrants at Work:  Immigration and Vulnerability in Labour Law (OUP 2016) 362. 16 See Clíodhna Murphy, ‘The Enduring Vulnerability of Migrant Domestic Workers in Europe’ (2013) 62 International & Comparative Law Quarterly 599. 17 Virginia Mantouvalou, ‘The Right to Non-​Exploitative Work’ in Virginia Mantouvalou (ed), The Right to Work: Legal and Philosophical Perspectives (Hart Publishing 2015) 60.

100  Criminality at Work (precariousness through ‘employment status’) or through denying job security (‘temporal precariousness’).18 A third source of vulnerability is that some workers, especially precarious workers such as undocumented migrant workers, have a kind of ‘double vulnerability’ to exploitation. The first layer comes through their subordinate position, outlined above, which may be exacerbated by law. But a second layer arises because they may be less able to protect themselves from exploitation, for example, by reporting what they experience and/​ or by having others to advocate on their behalf.19 Where an immigration agenda is vigorously pursued alongside identification of victims of modern slavery, for example, there is a strong disincentive for victims to report through the UK’s National Referral Mechanism (NRM). Where victims do report through the NRM they may obtain a positive Reasonable Grounds NRM decision. This grants temporary status to remain in the UK but does not regularize work status.20 Two leading anti-​trafficking charities note that ‘all a referral into the NRM has done is disrupted an exploitative situation’, with no guaranteed results. They note that vulnerable workers who ‘are dependent on any wages they do receive, no matter how low’ are likely to ‘decline a referral into the NRM, preferring to avoid contact with the authorities’.21 This lack of accountability analysis extends widely given an increasingly precarious workforce in England and Wales.22 For example, gig economy workers on zero-​hour contracts face significant challenges in establishing employee or worker status, depriving them of basic protections such as National Minimum Wage and Living Wage or working time protections.23 Incursions into statutory rights are just one example of ‘regulatory indeterminacy’ in the labour market.24 FLEX notes that the use of subcontracting and outsourcing in employment relationships ‘obscure[s]‌responsibility for workers’ rights’.25 These factors pull together to create significant barriers to workers of various employment statuses actually reporting exploitation. The argument here is that vulnerabilities of workers (inherent in the work relation, created/​exacerbated by law, compounded by real or perceived restrictions on workers’ ability to challenge or report their treatment) and the attendant control held by employers, provides opportunity for exploitation. This is therefore a far more modest statement than scholarship around exploitation which draws on the work of Karl Marx.26 The Marxist contention is that the relationship between capital (owned by employers) and workers is exploitative, though not necessarily unjust. Control of capital as a means of production makes workers

18 Nicola Countouris, ‘The Legal Determinants of Precariousness in Personal Work Relations:  A European Perspective’ (2012) 34 Comparative Labor Law and Policy Journal 21. 19 Murphy, ‘Enduring Vulnerability’ (n 16) 603. 20 The Anti-​Trafficking Monitoring Group and Human Trafficking Foundation submission of the UN Special Rapporteur on Contemporary Forms of Slavery (March 2017)  accessed 3 October 2018. 21 ibid. 22 See ‘Symposium issue’ (2012) (34)(1) Comparative Labor Law and Policy Journal. 23 CAC, Independent Workers’ Union of Great Britain (IWGB) v RooFoods limited T/​ A Deliveroo Case Number: TUR1/​985 (2016) (14 November 2017). See Employment Appeal Tribunal on Uber, Appeal No UKEAT/​ 0056/​17/​DA. 24 Fudge and McCann (n 10) 10. 25 Focus on Labour Exploitation (FLEX), ‘Tackling Exploitation in the Labour Market Consultation’, 17  accessed 3 October 2018. 26 See Alan Wertheimer, Exploitation (Princeton University Press 1999).

Exploitation at Work  101 vulnerable. On this view vulnerability necessarily results in exploitation because ‘in order to work, and therefore in order to live, the vulnerable people must sell their labour-​power to capitalists on terms advantageous to capitalists’.27

2.  What is Exploitation in Work Relations? Exploitation is a normatively complex idea, reflecting its complex reality. My own view is that we should not aspire to reduce the phenomenon down to a single neat definition or normative account. We can identify a cluster of serious (and less serious) wrongs of exploitation which manifest in work relations to various degrees at different times.28 Slavery, servitude, and forced labour might be identified as the core of serious exploitation in work relations. But the reality may be that even apparently consensual relationships between employers and workers represented contractually may be tainted by exploitative wrongdoing. Exploitation in work relations can change over time, prompting Skrivankova’s point that exploitative work relations should be viewed across a continuum ‘ranging from the positive extremity (desirable situation) of decent work to the negative extremity of forced labour’.29 It follows that some forms of exploitation at work are not very serious at all. Likewise, certain forms of very serious wrongs, such as rape, perpetrated against a trafficked worker—​ who we can clearly identify as exploited—​usefully stand alone from exploitation. This analysis carries implications for criminal lawyers who require clear definitions of serious wrongful conduct for a proposed offence. For the purposes of this chapter I propose a focus on certain core, serious, and clearly defined examples of exploitation in work relations. Exploitative conduct at the penumbra of a core of exploitation may fail to ­satisfy principles for criminalization or constraints to criminalization. That the criminal law does not penalize the full range of serious exploitative conduct has been a critique of its r­ esponse to exploitation in work relations, and I appraise this argument in section C below. It may also be the case that criminal lawyers are inclined to focus on i­ nterpersonal ­exploitation as a variety of exploitation, perhaps spurred by the presentation of ‘core’ exploitation ­offences found in sections 1–​4 of the Modern Slavery Act 2015. This may include extension of which agents count as personal. Criminal liability may include corporate employers and agencies who may be in the chain of exploitation.30 For example, the 2015 Act also introduced transparency obligations on companies in relation to exploitation in supply chains, albeit enforced by civil law measures. Is this an implicit normative view of the type of exploitation (ie interpersonal) which could properly count as a criminal ­offence? Labour lawyers will be hesitant to confine a notion of exploitation to the interpersonal variety, reflected in a concern not to limit a conception of the employer to a human ‘master’ or ‘master and servant law’.

27 Wood (n 11). 28 For example, see FLEX, ‘Shaky Foundations:  Labour Exploitation in London’s Construction Sector’ (2018) accessed 3 October 2018. 29 Klara Skrivankova, Between Decent Work and Forced Labour:  Examining the Continuum of Exploitation (Joseph Rowntree Foundation 2010) 18. 30 See JHA Anupam, ‘The Law on Trafficking in Persons: The Quest for an Effective Model’ (2018) 8 Asian Journal of International Law 225.

102  Criminality at Work The question remains: what is serious exploitation as it manifests in work relations? The equivalent of ‘exploit’ is to ‘use’. The challenge is to explain when exploitation amounts to unfair or wrongful use of another person.31 In the context of the employment relations, this value-​ judgment in turn expresses a political view on the boundary between legitimate and illegitimate work.32 The following three elements are key building blocks of a working definition of serious exploitation in work relations. First, exploitation typically requires a worker’s vulnerability vis-​à-​vis an employer, employment agency, corporation, or state agency. This vulnerability may be created by law or otherwise.33 In the work context, this position of vulnerability provides the means for an employer, employment agency, corporation, or state agency to take advantage. The gist of exploitative wrongdoing is tied to the fact that, by targeting an individual who is in a position of vulnerability, an exploiter hopes to gain easy advantage over them. A secondary reason for doing so is that a worker in a position of vulnerability may be less likely to report their ill-​treatment and/​or it may be difficult to build a case based upon their evidence. I argued in section B(1) above that workers are necessarily in a position of vulnerability in relation to employers and state agencies, and that this vulnerability is heightened for precarious workers, such as workers who lack legal work status. Second, serious exploitation involves abuse of that vulnerability through predatory conduct or predatory working practices. The concept of ‘predation’ provides us with grounds to say that an employer, employment agency, or corporation has used a vulnerable worker. Predatory conduct may include recruitment of workers who are deceived about the nature of the work on offer and/​or the standard of working conditions, or through charging fees for arranging work which may place a worker in a position of debt-​bondage.34 Predatory working practices might include the insertion of ‘sham’ substitution clauses in a worker’s terms of employment; poor working conditions which breach health and safety regulations; a refusal to pay holiday pay, overtime, or to give adequate annual leave; ‘cash-​in-​hand’ payments which are not accompanied by a pay slip, or non-​payment of National Minimum Wage.35 It may appear that a worker is ‘on board’ with these arrangements. Third, exploitation in work relations involves predatory abuse of a vulnerable person which leads to gain for an exploiter, agency, or corporation.36 Intent to gain is likely to be a reason—​often the main reason—​why a person, agency, or corporation engages in exploitative conduct, demonstrating an exploiter’s benefit from taking unfair advantage.37 But it is relevant in a strong account of exploitative wrongdoing that an exploiter makes a gain in practice as an output of exploitation. The first point to note is that an exploiter may not be the only party who gains. There may be some advantage to those who are exploited through having a job rather than being unemployed, for example. Alan Wertheimer characterizes

31 Jennifer Collins, ‘Exploitation of Persons and the Limits of the Criminal Law’ [2017] Crim LR 167. 32 Mimi Zou, ‘The Legal Construction of Hyper-​Dependence and Hyper-​Precarity in Migrant Work Relations’ (2015) 31 International Journal of Comparative Labour Law and Industrial Relations 141, 159–​60, citing Robert Steinfield, ‘Coercion/​Consent in Labour’ (2010) COMPAS Working Paper No 66, 13. 33 cf Mantouvalou (n 17) 49. Gangmaster and Labour Abuse Authority (GLAA), The Nature and Scale of Labour Exploitation Across All Sectors Within the United Kingdom (May 2018) 9 accessed 3 October 2018. 34 Examples given in this paragraph are highlighted in GLAA (n 33). 35 Alan Bogg, ‘Sham Self-​Employment in the Supreme Court’ (2012) 41(3) Industrial Law Journal 328. 36 Wood (n 11). 37 cf Stephen Wilkinson, Bodies for Sale: Ethics and Exploitation in the Human Body Trade (Routledge 2003) 20.

Exploitation at Work  103 this as ‘mutually advantageous’ exploitation.38 Second, there may be no actual gain to an exploiter in practice—​exploitation will have various effects in the real world. This is less likely in the work context, but possible. It is important to focus on the position of the parties, how a vulnerable person has been used through predatory conduct, as well as whether the transaction leads to gain for one party that is greater than the other.39

3.  What are the State’s Obligations? What are the state’s obligations in relation to criminalizing exploitation at work? Only a brief summary can be provided here.40 A large number of international obligations set out the right of individuals to be protected from various forms of exploitation. Most notably there is protection against the most serious forms of labour exploitation (slavery, servitude, and forced labour)41 and against sexual exploitation.42 A bold development in the European Court of Human Rights’ jurisprudence has been to read into Article 4 of the European Convention on Human Rights (ECHR) a right not to be subjected to human trafficking.43 There is additional and specific protection for children from exploitation.44 Criminal law measures may need to be implemented in order to secure these rights where existing measures are held to be insufficient.45 The Strasbourg court in Siliadin imposed positive duties upon states ‘to adopt criminal law provisions which penalize the practices referred to in Article 4 [ECHR] and to apply them in practice’ in order to keep pace with international developments.46 Alongside duties on the state to enact criminal law measures, international human rights obligations and EU legislation may require effective investigatory machinery and procedures in relation to exploitation.47 Questions about criminalizing exploitation must be grounded in a normative basis for state action, which addresses the proper limits of state power. I have argued elsewhere that republican political theory most clearly points in the direction of a foundational duty upon the state to address non-​domination.48

C.  Limitations of Criminal Law Interventions There are rules and principles specific to individual legal domains which guide the establishment of an in principle case for legal intervention. In ‘neo-​classical’ criminal law we begin from the position of ensuring respect for an individual’s personal autonomy to make 38 Wertheimer (n 26). 39 cf Wood (n 11). 40 For more fulsome treatment, see Collins (n 31) 170–​73. 41 Universal Declaration of Human Rights, art 4; ECHR, art 4; ILO Declaration of Fundamental Principles and Rights at Work. 42 The European Parliament approved the Committee on Women’s Rights and Gender Equality’s Report on Sexual Exploitation and Prostitution and its Impact on Gender Equality (2013/​2130(INI)) in March 2014. 43 Rantsev (n 14). 44 See UN Convention of the Rights of the Child, arts 32, 34, 35; Council of Europe, Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse, art 1. 45 In CN v UK (n 1). 46 Siliadin (n 14). 47 Palermo Protocol, arts 4, 5; Protocol of 2014 to the Forced Labour Convention, art 1; Council of Europe, Convention on Action Against Trafficking in Human Beings CETS 197 2005, art 18. 48 Collins (n 31).

104  Criminality at Work free and unconstrained choices, with state intervention only in principle justifiable where there has been serious and public wrongdoing, harm or the risk of harm, and a fault requirement. If criminal law measures can be defended beyond satisfying these threshold requirements, they will have both a censuring and preventive rationale.49 Inherent in a system of criminal law is a regulatory function. But the criminal law in England and Wales also has a direct regulatory dimension through the means of ‘regulation plus crime’ offences. A large body of regulatory criminal law exists, though these are not openly categorized as such. Here, the criminal law’s role is one of reinforcement, ensuring that breaches of non-​criminal regulatory measures are censured.50 The argument explored in this section is that there is tension in using the criminal law’s censuring and preventive functions in relation to exploitation in work relations because of its potential to produce counter-​productive effects for vulnerable workers. What is the precise nature of these criticisms and are they convincing? My focus here is on general effects of criminalization rather than the specific effects of a particular criminal law measure.

1.  ‘Internal’ Limitations of Criminalization Two arguments highlight ‘internal’ limitations of criminalization. The first is that criminalization of exploitation in work relations penalizes only the most extreme forms of exploitation in employment relations. This leaves other less serious manifestations of exploitation in the work sphere, which are nevertheless characterized by ‘hyper-​dependency’ or ‘hyper-​ precarity’, either to non-​criminal measures or unregulated.51 The second is that criminalization neglects longstanding reasons for worker-​precarity, and for some workers, their exclusion from full labour law protections.52 For example, migrant workers working in certain sectors occupy a position of precariousness which criminalization does not address. The point underlying the first criticism is that it is extremely important how exploitation is legally defined for the purposes of criminal law offences.53 If an offence definition defines exploitative conduct too narrowly/​at the most extreme end of a spectrum of exploitation, criminal law censure will only address a narrow range of employers, employment agencies, corporations, or state agencies involved in exploitation at work. This is not a radical suggestion to many criminal lawyers.54 The criminal law must select the most serious cases of public wrongdoing which causes harm or the risk of harm, alongside other thresholds to criminalization. The most robust case for criminalization must be put forward, and this will involve an argument about serious wrongdoing, and so on. Even then, countervailing considerations to criminalization must be considered. For example, criminalization must not come at the expense of protecting rule of law ideals and an individual’s right to personal autonomy.55 The costs of criminalization must not be disproportionate to the wrongful 49 Andrew Ashworth and Lucia Zedner, ‘Just Prevention: Preventive Rationales and the Limits of the Criminal Law’ in RA Duff and Stuart Green (eds), Philosophical Foundations of Criminal Law (OUP 2011). 50 ibid 283. 51 Zou (n 32) 160. 52 Judy Fudge, ‘Modern Slavery and Migrant Domestic Workers: The Politics of Legal Characterization’ (The Foundation for Law, Justice and Society 2016). 53 Julia O’Connell Davidson, ‘Editorial: The Presence of the Past: Lessons of History for Anti-​Trafficking Work’ (2017) 9 Anti-​Trafficking Review 1, 7. 54 cf Farmer (n 12). 55 John Stanton-​Ife, ‘What is the Harm Principle For?’ [2014] 10(2) Criminal Law and Philosophy 329.

Exploitation at Work  105 harm (or harm prevention) targeted by the criminal law.56 There will also be constraints like privacy to consider.57 Another set of considerations is the possibility of appropriate regulatory alternatives. It must be demonstrated ‘that the criminal law offers the most appropriate method of regulation, being preferable to alternative methods of legal control that are available to the state’.58 Given the real-​life complexity of exploitation in the sphere of work (of various types and degrees, changing over time, see section B above), it is not surprising that some exploitative wrongdoing will fall through the cracks when constructing the strongest normative account of exploitative wrongdoing for the purposes of criminalization arguments. This critique ought to remind us that the legal and political characterizations of a problem are linked.59 Criminalization can too easily be used as a political ‘trump card’ in relation to exploitation, signalling that exploitation has been adequately dealt with.60 While the criminal law can be used as ‘a kind of politics of recognition, used as a way of demonstrating a commitment to the vulnerable or insecure’, as Lindsay Farmer argues, there are difficulties in using extreme examples of exploitation in work relations as the legal representation of this class of wrongdoing.61 Julia O’Connell Davidson powerfully notes in relation to the human trafficking discourse that an [E]‌mphasis on raw physical suffering found in ‘modern slavery’ discourse helps to rein the term ‘trafficking’ back onto territory where politicians who have no interest in defending or extending the rights of either migrants or workers are more comfortable.62

Political discourse can inhibit an appropriate legal response by assuming that by punishing some exploitative conduct all serious manifestations of exploitation are addressed. The second criticism is that the criminal law is ill-​equipped to deal with sources of vulnerability to exploitation. But this prompts the need for further reflection on the reinforcement function of the criminal law through regulatory criminal law measures. If the criminal law should not be confined to censuring serious exploitative wrongdoing, might it make a greater contribution to addressing the vulnerability of highly precarious workers? There are ways in which the criminal law can deal with systemic failures, too, such as through secondary offences. One would expect a well-​ordered state to ameliorate the legal determinants of vulnerability alongside criminalization measures—​pursuing both as part of a coherent and joined up public strategy. I argue that there is a need for a multifaceted legal response to serious exploitation in work relations, which may include, but must extend beyond, criminalization.

56 Ashworth and Zedner, ‘Just Prevention’ (n 49) 244. 57 Simester and von Hirsch (n 9). 58 ibid 189. 59 See Fudge, ‘The Dangerous Appeal of the Modern Slavery Paradigm’ (n 8) 5; Bridget Anderson, ‘Migrant Domestic Workers: Good Workers, Poor Slaves, New Connections’ (2015) 22 Social Politics 636, 645. 60 Andrew Ashworth, ‘Is the Criminal law a Lost Cause?’ (2000) 116 Law Quarterly Review 225. 61 Farmer (n 12) 106. 62 O’Connell Davidson (n 53) 7.

106  Criminality at Work

2.  ‘External’ Limitations of Criminalization One important and under-​theorized insight to come from recent scholarship is a strong critique of the ways in which criminalization of exploitation interacts with other legal disciplines.63 Around the topic of exploitation in work relations, labour law, criminal law, immigration law, and human rights law overlap. These branches operate ‘simultaneously along and across different scales and institutions and they have varying degrees of influence on one another’.64 The issue as to how these legal interventions ‘fit’ together is key to establishing effects on precarious workers.65 Fudge has argued that criminalizing forms of exploitation in work relations has been inextricably linked with criminalizing breaches of immigration rules.66 This has been the case rather than offering protection to seriously exploited workers regardless of legal status.67 In Fudge’s words, the fatal flaw is that ‘[t]‌he human rights of exploited workers are brought under the gravitational sway of an agenda that strengthens the government’s powers to control and punish at the same time as it closes borders’.68 The Modern Slavery Act 2015 and the Immigration Act 2016 are used as illustrative examples. As is well known, both Acts were justified by the government in part or in whole as measures to address labour exploitation. The Modern Slavery Act 2015 targets exploitation through the enactment of two key offences penalizing modern slavery and human trafficking, both attracting maximum sentences of life imprisonment.69 Fudge argues that the 2015 Act is driven by a concern with ‘cross-​border slavery and trafficking and not with forced labour or trafficking for the purpose of labour exploitation that occurs within the United Kingdom’.70 The precise basis for this claim is not altogether clear. In part, it appears linked to the 2015 Act’s failure to define slavery and in its failure to offer labour law protections.71 That a criminalization approach is inextricably linked with sanctioning breaches of immigration rules is better supported by the Immigration Act 2016, which created an offence of illegal working.72 It is an offence for a person ‘subject to immigration control’ to work when disqualified from doing so because of their immigration status, if they have reasonable cause to believe that this is the case. The offence attracts a maximum sentence of six months’ imprisonment and/​or a fine.73 An amended offence of employing an illegal worker extends to those who are disqualified from employment by reason of the employee’s immigration status if an employer has reasonable 63 Fudge, ‘Modern Slavery, Unfree Labour and the Labour Market’ (n 5) 13–​14. 64 Judy Fudge, ‘Migrant Domestic Workers in British Columbia, Canada: Unfreedom, Trafficking and Domestic Servitude’ in Joanna Howe and Rosemary Owens (eds), Temporary Labour Migration in the Global Era:  The Regulatory Challenges (Bloomsbury 2016) 157. 65 Fudge, ‘Modern Slavery, Unfree Labour and the Labour Market’ (n 5) 12. 66 ibid 17; Ana Aliverti, ‘Making People Criminal: The Role of the Criminal Law in Immigration Enforcement’ (2012) 16(4) Theoretical Criminology 417. 67 Candice Morgan, ‘Modern Slave or Illegal Worker? The Haze Around Modern Slavery and its Implications’ British Politics and Policy Blog (17 Nov 2017) accessed 3 October 2018, argues that law enforcement officers ‘are being presented with two separate agendas: on the one hand, “hostile environments” and the removal and deportation of the undocumented person; on the other, the identification and rescue of the “modern slave”.’ 68 Fudge, ‘The Dangerous Appeal of the Modern Slavery Paradigm’ (n 8). 69 Modern Slavery Act 2014, ss 1–​4. 70 Fudge, ‘Modern Slavery, Unfree Labour and the Labour Market’ (n 5) 14. 71 ibid 14. 72 Immigration Act 2016, s 34, inserted into Immigration Act 1971, s 24B. 73 ibid, s 34(3)(4). To be amended to fifty-​one weeks’ imprisonment when s 281(5) of the Criminal Justice Act 2003 comes into force. See Immigration Act 2016, s 34(5) on confiscation orders upon conviction.

Exploitation at Work  107 cause to believe that this is the case.74 The offence carries a maximum sentence of five years’ imprisonment, increased from two.75 An offence of increased severity sits alongside possible civil law penalties of either a £15,000 or £20,000 fine.76 Fudge’s argument is that in these offences punishing and preventing ‘illegal work by migrants is entwined with the goal of preventing labour exploitation’.77 The driver, Fudge argues, is political: [G]‌overnments that embrace a ‘law and order’ agenda and that tend to demonize migrant workers as a threat to their own citizens imbue the criminal law jurisdiction with a great deal more force than that of labour law when it comes to addressing the exploitation of migrant domestic workers.78

The effect of the political and social environment is to repel worker-​protective measures found in labour law and human rights law.79 This is exacerbated by the illegality doctrine, where a crime committed by a worker bearing illegal work status sometimes bars enforcement of labour standards in the civil court.80 Should criminalization of exploitation in work relations be sidelined on this basis? Two points bear further emphasis. First, criminalization deployed in a political and legal context of stringent immigration control has powerful effects upon precarious workers. It creates further barriers to vulnerable workers reporting their exploitation, particularly where workers lack regular migration and/​or work status. Mantouvalou notes that undocumented migrant workers will be concerned not to alert the authorities to their presence in the UK, given the threat of deportation.81 Vulnerability is further increased where the same body or bodies are charged with both the protection of vulnerable workers from exploitation and the enforcement of immigration rules, or where there is information-​sharing between bodies responsible for enforcement.82 At a minimum robust rights in the criminal law must be given to those who are identified as victims of exploitation and/​or trafficking.83 This has not been the case in the Immigration Act 2016.84 Second, some evidence suggests that the enforcement of immigration rules using the criminal law can take priority over the protection of vulnerable workers who hold irregular work status via so-​called ‘exploitation’ offences.85 A recent EU Agency for Fundamental Rights report highlighted that in the EU, ‘Police generally tend to treat severely exploited third-​country nationals in an irregular situation as “illegal” workers first, rather than as

74 Immigration, Asylum and Nationality Act 2006, ss 21, s 35(3). 75 ibid s 35(4). 76 ibid s 15. 77 Fudge, ‘Modern Slavery, Unfree Labour and the Labour Market’ (n 5) 14. 78 ibid 4. 79 Zou (n 32)  160; Judy Fudge and Kendra Strauss, ‘Migrants, Unfree Labour, and the Legal Construction of Domestic Servitude: Migrant Domestic Workers in the UK’ in Cathryn Costello and Mark Freedland (eds), Migrants at Work (OUP 2014) 161–​62. 80 cf Hounga v Allen [2014] UKSC 47, [2014] 1 WLR 2889 [34], [52]. 81 Mantouvalou (n 17) 51. 82 Anderson (n 59) 644. 83 See Diane Taylor, ‘Modern Slavery Ruling May Lead to More Victims Getting Leave to Remain’ The Guardian (14 February 2018) accessed 3 October 2018. 84 Anne Davies, ‘The Immigration Act 2016’ (2016) 45 Industrial Law Journal 431. 85 Mullally and Murphy (n 14) 424.

108  Criminality at Work victims of crime’.86 There is a wider question about whether it is normatively defensible to prioritize immigration crimes over exploitation crimes. Irregular workers may be ‘immediately verifiable’ whereas exploitation is often hidden making identification difficult, coupled with strong pressure upon law enforcement agencies to reduce immigration.87 But there may be a stronger argument from principle that exploitation offences are more serious than immigration crimes, and that their enforcement should therefore be prioritized. Candace Morgan’s point is important: ‘There seems to be a complete disconnect in relation to the prospect that those exploiting the “modern slave” are able to do so because of the hostility towards the rhetorical “migrant”.’88 Criminalization of exploitative practices at work does not operate in a legal vacuum. The interaction of criminal law measures with other legal interventions has important effects for precarious workers. Nevertheless, I argue that the criminal law is not by definition linked to immigration control: this is a politically contingent issue which is not inherent in the choice of criminal law as a regulatory technique. Punishing traffickers via the Modern Slavery Act is significantly different from criminalizing victims as in the Immigration Act 2016, even if systemic difficulties which perpetuate exploitation remain unaddressed by the 2015 Act. There is a wider range of criminal law measures available than mala in se offences, and these measures may be used to ameliorate the determinants of vulnerability to exploitation. I argue that there is critical space within criminal law theory to consider the broader legal picture when interrogating a case for criminalization of exploitation in work relations.

D.  Criminalization and Regulatory Alternatives: A Key Juncture How should a criminal law response to exploitation in work relations be fashioned? Is it possible to consider how branches of the law can be used productively, so as not to undermine protections offered to vulnerable workers from exploitation? This is an emerging research agenda. First, there is a choice as to how to characterize an issue legally. Consideration must be given to ‘the different aims and functions of . . . areas of law (distributive or corrective justice, regulation, and so on)’.89 While there may be justification for civil law and/​or regulatory measures and criminal law measures it is of critical importance that criminalization should not be seen as inevitable. The politicization of the issue of legal characterization of exploitation must be resisted. Second, progress can be made in considering limits to criminal law interventions by (artificially) disaggregating a principled criminalization process into three stages. First, an in principle case for criminalizing a form of exploitation in work relations must be established. If we put to one side ‘co-​ordination offences’, serious public wrongdoing is a necessary pre-​ requisite to criminalization. This threshold requirement is tied up with the criminal law’s strong communicative function. Anthony Duff and Stuart Green note that criminalization communicates to an offender, any victims and ‘the wider community that a public wrong 86 EU Agency for Fundamental Rights, ‘Severe Labour Exploitation: Workers Moving Within or Into the EU’ (Publications Office EU 2015) 90. 87 ibid 90. 88 ibid 90. 89 Farmer (n 12) 121.

Exploitation at Work  109 was committed’.90 It would be manifestly unfair, even ‘morally defamatory’, to ‘publicly convey that [a defendant] acted reprehensibly having established nothing of the kind’.91 Arguably, while the community is not necessarily the victim of wrongdoing, it holds responsibility for censuring as ‘the appropriate body to bring proceedings and impose punishment’.92 This is certainly a plausible argument, but it requires explanation of the reasons why the community is better placed than an individual to hold responsibility for administering punishment. This may be because the state can punish more effectively than ‘lay’ punishment administered by citizens. It may also reflect a concern to ensure that fair processes are upheld and a defendant’s rights protected, since the community would normally hold responsibility for this. A fault requirement ought also to accompany a requirement for serious public wrongdoing. Criminal censure should be reserved for those who act culpably, so excluding situations where harm is caused accidentally.93 Added to these requirements is the need for harm.94 A harm threshold is crossed if the criminalization of conduct will proportionately prevent harm or the risk of harm to others. A harm principle can be used to justify almost any criminal sanction on the basis that it will prevent the risk of harm to others.95 A second stage is required: further constraints or countervailing reasons against an in principle case for criminalization must be considered. ‘Negative constraints’ include ensuring that criminalization respects the need for legal certainty, proportionality, and a person’s right to autonomy, among others.96 We noted in section C above that regulatory alternatives to criminalization must be considered, with the criminal law identified as the ‘most appropriate method of regulation, being preferable to alternative methods of legal control that are available to the state’.97 There are not firm criteria for making this decision. Third, the issue of how criminal law measures are interpreted and enforced in practice is part of a principled system of criminalization.98 A criminalization process involves not only choosing the appropriate regulatory channel, but includes evaluating how that channel will be interpreted in practice and its effects in the real world. I want to highlight the critical importance of these second and third stages in appraising the criminalization of exploitation in work relations—​consideration of good reasons not to criminalize, and the issue of enforcement. The question to be asked when considering alternatives is this: what other regulatory alternatives exist and why should criminal law measures be regarded as more appropriate than these measures (effectiveness being side-​lined as it can too easily be assumed that effectiveness must be the touchstone, without reflecting on whether it is appropriate to use the criminal law in this way)?99 These alternatives may 90 RA Duff and Stuart Green, ‘Introduction’ in RA Duff and Stuart Green (eds), Defining Crimes: Essays on the Special Part of the Criminal Law (OUP 2005) 9. 91 James Edwards, ‘Publication Review: Crimes, Harms, and Wrongs by AP Simester and Andreas von Hirsch’ [2012] Criminal Law Review 75. 92 Grant Lamond, ‘What is a Crime?’ (2007) 27 Oxford Journal of Legal Studies 621. 93 Andrew Ashworth, ‘Conceptions of Overcriminalization’ (2008) 9 Ohio State Journal of Criminal Law 507, 411. 94 JS Mill, On Liberty (first published 1859, Harmondsworth 1979). On the meaning of ‘harm’, see Andreas von Hirsch and Nils Jareborg, ‘Gauging Criminal Harm: A Living-​Standard Analysis’ (1991) 11 Oxford Journal of Legal Studies 1. 95 Andrew Ashworth and Lucia Zedner, Preventive Justice (OUP 2014) 104. 96 Simester and von Hirsch (n 9) 189, 211: ‘The criminal law is a powerful, expensive, and invasive tool. It should not be deployed lightly.’ 97 ibid 189. 98 ibid 189. 99 Andrew Ashworth, ‘Positive Duties, Regulation and the Criminal Sanction’ [2017] Law Quarterly Review 606.

110  Criminality at Work be regulatory (including civil penalties), licensing, or labour law measures, among others. It is an issue of decision-​making between regulatory channels. The least intrusive measures ought to be used, ensuring citizens’ personal autonomy and other core rights. We must consider the different modes of vindicating these rights as well as procedural protections in play when considering the strength of alternatives to criminalization. This requires appraisal of the content, type and scope of a proposed criminal law measure against a proposed alternative whose content, type and scope must also be appraised. There is scope for a great deal of ‘untidiness’ here. It is an area of considerable conceptual ambiguity providing opportunity for arbitrary decision-​making, driven by political interests. I argue that this is a key juncture in the characterization of legal interventions regarding serious exploitation. Moving beyond the tendency for positions to harden ‘for’ or ‘against’ criminalization when considering exploitation in work relations, I want to argue that it is at this site that criminal lawyers can emphasize that criminalization and regulatory alternatives do not have to be thought of as alternatives. Fudge and McCann have argued that it is important to establish a multidimensional regulatory model for unacceptable forms of work, and that idea bears development in this context. This involves designing and implementing ‘regulatory interventions that are integrated and dynamic, and that will have the broadest and most sustainable effect’.100 The best mode of regulatory design and implementation must be scrutinized in tackling unacceptable forms of work.101 Developed in the exploitation at work context, this will require clear focus on what forms of exploitation are considered unacceptable, as well as consideration of enforcement techniques and the amount of discretion given to state bodies/​enforcement agencies. It might be that the best regulatory mix involves criminal law and other forms of law operating in tandem with each other. Choices between different areas of the common law in curating a defensible legal response to exploitation need to be considered, and reasons provided for taking one path or the other, or both. For example, would criminalization, or not criminalizing, leave the vulnerable exposed to serious exploitation in work relations? Given what is at stake, criminal lawyers need to sharpen their analysis of regulatory alternatives and enforcement questions around the theme of exploitation at work.

E.  Multidimensional Regulation: Further Principles and Constraints I have argued that principled decision-​making between regulatory channels is a key and under-​theorized juncture in appraising criminalization arguments about exploitation in work relations. I have also argued that the best regulatory mix may involve the criminal law and other forms of law operating in tandem. The aim of this section is to advance this analysis by elaborating further principles. First it is important to be precise about what we are comparing. What is currently missing from critiques of the role of criminalization in regulating exploitation at work is a more

100 Fudge and McCann (n 10) 53. See Deirdre McCann and Jill Murray, ‘Prompting Formalization Through Labour Market Regulation: A “Framed Flexibility” Model for Domestic Work’ (2014) 43(3) Industrial Law Journal 319, 330. 101 Fudge and McCann (n 10).

Exploitation at Work  111 nuanced view of the range of criminal law measures available.102 The choice is not simply between criminal law measures and various forms of civil law interventions. It is conceivable that the criminal law may have a role to play in censuring serious exploitation in work relations and a regulatory role to play. As noted above, the criminal law might be used as an auxiliary means of backing up the enforcement of basic labour standards. Moreover, a different set of considerations will be relevant when comparing whether a criminal law regulatory response is more appropriate than civil law measures, than in comparing the strength of a punitive response against civil law measures. I return to this below. Turning to the distinction drawn between ‘mala in se’ offences and regulatory offences, can further principle be supplied when considering the strength of regulatory alternatives and criminalization? Beginning with ‘mala in se’ type proposals in relation to exploitation, the case for criminal sanction is strongest where an in principle case is supported by serious wrongfulness, harm or the risk of harm, and a high level of culpability. For the most serious forms of exploitation in work relations, it is hard to think that there is a case for civil and/​or regulatory measures being used without supporting criminal law measures. This must be the case in relation to the criminalization of modern slavery via the Modern Slavery Act 2015.103 We require what is distinctive from the criminal law—​a strong condemnatory state response which penalizes serious wrongdoing. Criminalization is not necessarily a last resort, only justifiable when other measures are ineffective.104 Simester and von Hirsch remind us that this is because criminalization communicates the ‘normative status’ of a serious offence. Furthermore, state action may be required, despite the presence of effective alternatives, in order to bear the burden of instigation, prosecution, and punishment on behalf of private individuals. This contributes to the rule of law, which requires consistent enforcement of legal rights in similar cases.105 Of course relevant objections must be addressed. These may include the high costs of criminalization; criminalization’s effectiveness; and ensuring legal certainty (which could be undermined if a wrong of exploitation cannot be readily defined at law or if judges were unable to adjudicate on the true nature of the exploitative wrong because the offence was drafted too broadly.)106 Where there is strength to criminal law measures, four further issues ought to be taken into account. First, of concern is the scope for easy slide between regulatory channels. The offence of employing an illegal worker is a case in point.107 The move from (administrative) regulatory measures to a serious offence with a maximum of five years’ imprisonment for an employer’s failure to comply with checking immigration status is unjustifiable.108 There must be a guarantee of justifying the specific measure that is being proposed. Second, the issue of enforcement is key. Matters of procedure and prosecutorial policy—​ ‘the everyday practices of criminalization’—​shape the substantive criminal law and keenly determine the effects of criminalization on vulnerable workers.109 One of the advantages 102 Fudge, ‘Modern Slavery, Unfree Labour and the Labour Market’ (n 5); Morgan (n 67). 103 On the duty to enact criminal offences, see Siliadin (n 14). 104 Simester and von Hirsch (n 9) 197–​98. 105 ibid 198. 106 James Edwards, ‘Justice Denied: The Criminal Law and the Ouster of the Courts’ (2010) 30 Oxford Journal of Legal Studies 725. 107 Immigration Act 2016, s 35. 108 Ashworth, ‘Positive Duties, Regulation and the Criminal Sanction’ (n 99). 109 ibid 421.

112  Criminality at Work of a coercive state response is that it involves a state-​led criminal process and higher procedural protections.110 The onus of bringing proceedings is borne by the state rather than placed on precarious workers who may struggle to access legal services. Where a confiscation order and a conviction have been secured under sections 1, 2 or 4 of the Modern Slavery Act 2015, section 8 requires a court to consider whether a reparation order can be given in order to provide victims of slavery and trafficking with compensation. No slavery and reparation orders had been made as of 23 November 2017.111 As part of a wider legal commitment to precarious workers who have been exploited in serious ways, more ought to be done to ensure that victims are compensated. This requires reconsideration of the scope of section 8.112 It may also support an argument for civil law measures, which stand alongside or independently from criminalization. This is because higher procedural protections in the criminal law may mean that enforcement of criminal law measures is more difficult.113 A third principle is to detach criminalization of exploitation from immigration enforcement. It is disappointing that this has not been the case in the Immigration Act 2016. Section 13 amends the Gangmasters (Licensing) Act 2004 to permit the Gangmasters and Labour Abuse Authority (GLAA) to request assistance from the chief police officer, the Director General of the National Crime Agency, or an immigration official if this would facilitate the GLAA’s fulfilment of its functions. The recipient of a request ‘must respond to it in writing within a reasonable period’.114 The GLAA’s remit has expanded considerably. It has powers of enforcement in relation to the Employment Agencies Act 1973 and the National Minimum Wage Act 1998. But its powers also now extend to enforcing the serious ‘core’ exploitation offences of the Modern Slavery Act 2015 where there is a connection to the labour market.115 Anne Davies notes that in linking the GLAA with immigration enforcement, a worker-​protective function may be undermined, ‘since workers may be afraid to seek help from the GLAA if they fear this might ultimately lead to their deportation’.116 Ana Aliverti’s research has found that, in practice, the enforcement of immigration offences ‘reveals that criminal law is often used against foreigners in breach of immigration rules when immigration measures . . . are ineffective or impracticable’.117 Moreover, whether or not immigration offences have a principled basis in criminal law must be carefully established rather than assumed. Aliverti has elegantly argued that a large number of immigration crimes in fact amount to a misuse of the criminal law because they criminalize conduct that is not seriously wrongful. Aliverti highlights that coercive immigration controls have been used both as a threat and in order to circumvent difficulties in deporting ‘irremovable’ migrant workers or in preventing their arrival into the UK.118 But this is to let the aim of selective and politically motivated state enforcement overpower the need for principled development of the modern criminal law. The criminal law requires a high level of legal 110 Note that the standard of proof in criminal law can vary in serious cases, see Salabiaku v France (1988) 13 EHRR 379. 111 HL Deb 23 November 2017  accessed 3 October 2018. 112 Argued by Baroness Hale, Taiwo v Olaigbe; Onu v Akwiwu [2016] UKSC 31, [2016] 1 WLR 2653 [34]. 113 See Danilenkov v Russian Federation App no 67336/​01 (30 July 2009). 114 Immigration Act 2016, s 22A(6). 115 Modern Slavery Act 2015, ss 1, 2. 116 Davies (n 84) 434. 117 ibid 425. 118 Aliverti (n 66) 426.

Exploitation at Work  113 certainty and commitment to rule of law values, for example. Effective protections against immigration offences for those who have been victims of a substantive exploitation offence ought also to be considered. Fourth, there may be political will for criminalization of the most serious forms of exploitation in work relations via ‘mala in se’ offences, but less political appetite for labour law protections which are adequately enforced. Criminal lawyers must play their part in highlighting the importance of a multidimensional approach to exploitation in work relations. A ‘multidimensional regulatory model’ is required for the most egregious forms of unacceptable work.119 This involves protecting and raising labour standards as a priority. The regulatory capacities of the criminal law in addressing exploitation in work relations must also be scrutinized in relation to regulatory alternatives. In this part of the criminal law a deterrent function is at the fore, with criminalization offering a ‘decisive coordinating and signalling device’.120 It is of importance that regulatory measures with criminal sanctions attached are not justified on the basis of effectiveness and efficiency alone. The appropriateness of a regulation plus crime measure as opposed to a regulatory alternative must be defended. In determining the criminal law’s appropriateness, we need to isolate ‘what is distinctive about the criminal law’s regulatory aspect’ as compared with regulatory alternatives backed up by, for example, administrative sanctions.121 We turn first to regulatory measures backed up by criminal sanction. The criminal law is used as a flexible tool to support licensing regimes which are regulated by various licensing authorities, for example.122 Use of regulatory criminal law provides scope to regulate poor employment practices which can be linked to exploitative relationships at work. The International Labour Organization (ILO) has identified a strong link between forced labour as a core example of exploitation and ‘multiple simultaneous violations’ of labour law standards.123 Multiple forms of less serious exploitation (eg wage theft, low-​level harassment) provide structural underpinning to more serious forms of exploitation such as forced labour. The current political focus on forced labour and human trafficking obscures other types of serious exploitation in work relations. There is a wide spectrum of exploitative conduct and regulatory offences may be better suited to responding to this complexity.124 A key principle is that regulatory offences ought to be reserved for serious breaches of regulatory standards. The Macrory Sanctions Review argued that, although the criminal law is a core part of any regulatory regime, its use must be constrained.125 It may be a reason in favour of a regulatory offence that an individual or company blatantly disregards regulatory standards, gaining in the process, for example.126 Deliberate and ongoing breaches 119 Fudge and McCann (n 10). 120 Nicola Lacey, ‘Criminalization as Regulation: The Role of the Criminal Law’ in Christine Parker, Colin Scott, Nicola Lacey and John Braithwaite (eds), Regulating Law (OUP Oxford) 144, 154. 121 ibid 145. Administrative sanctions may involve variable or fixed monetary administrative penalties or statutory notices, see Richard Macrory, ‘Sanctions and Safeguards: The Brave New World of Regulatory Enforcement’ (2013) 66 Current Legal Problems 233, 248. 122 Simester and von Hirsch (n 9). On flexibility, see Ian Ayres and John Braithwaite, Responsive Regulation (OUP 1992) 36. 123 Fudge and McCann (n 10) 38: Labour Inspection Convention, 1947 (No 81), and the Labour Inspection (Agriculture) Convention, 1969 (No 129); the Employment Policy Convention, 1964 (No 122); the Private Employment Agencies Convention, 1997 (No 181); and the Employment Relationship Recommendation, 2006 (No 198); (2013) Strengthening Action to End Forced Labour  9–​10. 124 See section B above for discussion; EU, ‘Severe Labour Exploitation’ (n 86) 34–​36. 125 Macrory, Regulatory Justice (n 4). 126 Macrory ‘Sanctions as Safeguards’ (n 4) 240.

114  Criminality at Work of employment standards, noted above as linked to forced labour as a form of exploitation, might also provide a reason in favour of criminal law measures. So could deliberate ongoing failure to have the correct licence in place, with associated financial gains, in a regulated industry. The Sanctions Review was clear that an ‘inadvertently secured financial gain through non-​compliance with a regulatory scheme’ was not a clear candidate for criminal law measures.127 The concern here is that criminalization could seem ‘heavy-​handed’, jeopardizing the criminal law’s communicative function in censuring and preventing wrongdoing.128 Macrory notes that ‘because under-​taking a criminal prosecution is a serious and resource-​heavy activity, there might be instances of under-​enforcement’.129 It should be noted that enforcement is once again key. Arguably there is an access to justice point in favour of criminal law sanctions for victims of regulatory breaches, as the state will bring action and must follow due process.130 However, this prompts an important question about who is going to undertake the issue of enforcement. Are we expecting the police and the Crown Prosecution Service to do so, in the present climate where they are overstretched? Some specialist enforcement agencies, such as the GLAA and HMRC (NMW/​NLW), have received significant increases of funding to assist in the broad task of labour market enforcement in recent years.131 But there are concerns that these bodies are too closely tied to immigration enforcement and that this will undermine their role in penalizing serious exploitation in work relations. There is growing evidence that regulatory measures detached from criminal sanctions may better enable the strategic targeting of unacceptable forms of work.132 One notable example is the idea of ‘regularisation’.133 Clíodhna Murphy has highlighted the importance of the Irish government’s implementation of an ‘Atypical Scheme for non-​EEA crew in the Fishing Fleet’ as a model of good practice in drafting legal measures which are responsive in tackling serious exploitation in personal work relations.134 This involves an administrative measure to regularize a worker’s immigration and employment status for a set period of time. The fishing industry has been identified as rife with labour exploitation given precarious employment contracts, seasonal work, and unregulated working conditions and holidays.135 Murphy notes that the scheme is ‘an attempt to address the vulnerability to labour exploitation of a group of migrant workers primarily through the medium of ordinary employment and immigration regulation’ rather than through criminalization, such as the measures adopted in the Modern Slavery Act 2015.136 Murphy argues that ‘a focus on protective labour law regulation and enforcement’ is likely to be more responsive to the realities of exploitation which is on a continuum, whilst recognizing that these measures will not 127 ibid 242. 128 ibid 242. 129 ibid 242. 130 On uncertainty regarding the future of licensing and the GLAA, see Davies (n 84) 434–​45. 131 With recommendations from the Director of Labour Market Enforcement for increased enforcement resources for the Employment Agency Standards (EAS), see David Metcalf, ‘United Kingdom Labour Market Enforcement Strategy 2018/​19’ (HM Government: May 2018) 54. 132 Fudge and McCann (n 10) 61 ff. 133 EU, ‘Severe Labour Exploitation’ (n 86) 44. 134 Clíodhna Murphy, ‘Tackling Vulnerability to Labour Exploitation Through Regulation: The Case of Migrant Fishermen in Ireland’ (2017) 46(3) Industrial Law Journal 417. 135 ILO, Caught at Sea: Forced Labour and Trafficking in Fisheries (ILO 2013); Kitty Holland, ‘Ghanian Men in Possible Trafficking Case are in State Care’ The Irish Times (16 April 2018) accessed 3 October 2018. 136 Murphy, ‘Tackling Vulnerability to Labour Exploitation Through Regulation’ (n 134).

Exploitation at Work  115 address the underlying issue of power imbalance in work relations as a source of vulnerability for migrant workers. Much will turn on the exercise of the powers of regulators and on how the regulators themselves will be held to account. The Macrory report notes that: ‘A system that allows greater use of civil penalties gives considerable power to regulators and deliberately by-​passes the automatic involvement of independent courts or tribunals in each and every case.’137 Arguably they are better placed than the police and CPS to enforce labour standards while being cognizant of the wider regulatory environment.138

F.  Conclusion I have examined arguments about limitations of criminalization in responding to exploitation in work relations. For example, the prioritization of enforcement of immigration crimes over exploitation offences, perhaps because irregular workers are more ‘immediately verifiable’, is objectionable. But recognizing limitations prompts the need for reflection on how the criminal law’s response to exploitation in work relations ought to be shaped moving forward. A rigid position ‘for’ or ‘against’ criminalization ought to be rejected in favour of fleshing out how future decisions to utilize the criminal law to respond to exploitation in work relations ought to be fashioned. The criminal law is a powerful coercive tool, but it also has a regulatory dimension which can complement some of the limitations of administrative measures which stand alone. The enforcement of criminal law measures (both ‘mala in se’ and regulatory criminal law) is an important aspect of a principled criminalization enquiry. The criminal law can play a part in enhancing labour standards, too. As I have shown, there is critical space within criminal law theory to interrogate this potential.

137 Macrory, ‘Sanctions as Safeguards’ (n 4) 257. 138 See Fudge, ‘The Dangerous Appeal of the Modern Slavery Paradigm’ (n 8) 6ff, for an argument in favour of a central labour inspectorate, and for the GLAA to be detached from enforcing immigration controls.

6

The Duty of Loyalty and the Scope of  the Law of Fraud Hugh Collins

A.  Criminalization as an Additional Deterrent for Civil Wrongs In the UK, criminal law has always provided one of the major tools for the regulation of the employment relation and labour markets. The criminal justice system serves at least three distinct functions in connection with employment. First, criminal law may provide the sanction to back up a government policy aimed at regulating the size and operation of the labour market. In the past, the criminal justice system controlled internal migration of workers within the national borders,1 whereas today it creates draconian measures to buttress prohibitions on cross-​border economic migration.2 As well as fines, imprisonment, and deportation, under laws to control immigration, all the earnings from work obtained by the irregular migrants are liable to confiscation under the Proceeds of Crime Act 2002, subject only to a loose test of the proportionality of the punishment of deprivation of property.3 Secondly, in recent times probably the most frequent use of criminal sanctions in connection with employment has been as an ingredient of a particular kind of regulatory strategy. From time to time the legislature has created an enforcement agency to secure compliance with a regulatory standard, such as a minimum wage, maximum working hours, or health and safety standards in the workplace. In order to be effective, this enforcement agency needs certain powers, such as entry of premises and inspection of documents, and it needs to be able to order employers to comply precisely with regulatory standards. These orders must be backed up by the threat of a sanction. At the apex of an ‘enforcement pyramid’4 of sanctions will be the threat of a criminal sanction, in order to ensure that ultimately employers have no choice but to comply with the regulatory regime. Thirdly, the criminal law has been used as an additional deterrent against breach of civil obligations by either the employer or the employee. Why are criminal sanctions thought to be sometimes necessary in addition to claims for breach of contract or the commission of a tort? The general answer seems to be that, in line with the justification for many criminal offences, in the law-​maker’s view, the seriousness of the harm caused by the breach of the 1 Statute of Labourers 1351 (Edward III); Statute of Artificers 1563 (5 Eliz 1 c 4). 2 Immigration Act 2016, s 34 creates a new offence in Immigration Act 1971, s 24B of illegal working, punishable by up to fifty-​one weeks’ imprisonment. Immigration, Asylum and Nationality Act 2006, s 21 (as amended by Immigration Act 2016, s 35), sets out the offence of employing an illegal worker. 3 Proceeds of Crime Act 2002; R v Carter [2006] EWCA Crim 416, [2006] 2 WLUK 133; Paulet v UK App no 6219/​08 (13 May 2014); R v Waya [2012] UKSC 51, [2013] 1 AC 294. 4 Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (OUP 1992). Hugh Collins, The Duty of Loyalty and the Scope of the Law of Fraud In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.006

The Duty of Loyalty and the Law of Fraud  117 civil obligation merits an approach that maximizes the deterrence provided by the law.5 That seems to have been a reason for enacting the Master and Servant Act6 that imposed criminal sanctions for workers leaving their jobs without permission. Employers argued that the serious harm to their businesses caused by industrial action or employees quitting for better wages offered by other employers had to be met by threats of criminal sanctions, because the civil sanctions of claims of damages for breach of contract against impecunious industrial workers were insufficient to deter this behaviour. In modern times, criminal sanctions have been introduced selectively to provide additional protections for workers. The Modern Slavery Act 2015 provides an example of the introduction of criminal penalties as a deterrent sanction for what are almost certainly torts like false imprisonment and breaches of contract. In this third function of criminal law in connection with employment, the addition of a bespoke criminal offence tries to augment the deterrent effect of the civil law (and any other existing criminal offences). Though rarely mentioned in books on labour law, the law of fraud and related offences has been applied regularly to employment relations. It has performed this third function of criminalization. It supplies a deterrent in addition to possible remedies in civil law such as damages for conversion, deceit, and breach of contract. Today, many instances of frauds committed by employees can also be charged as theft, because, if the deceit was successful, the employer’s property would had been appropriated by the employee. Under the old Larceny Acts, however, the need for employees actually to take the employer’s property away physically led to the development of new offences such as embezzlement and false accounting that could encompass the typical financial frauds conducted by managers, stewards, and other white-​collar workers.7 When the law of theft was reformed in the Theft Act 1968, it replaced the law of embezzlement with an offence of obtaining property by deception,8 and revised other offences such as false accounting.9 That reform proved inadequate. For instance, it did not include obtaining services by deception, so that although an employee who lied to obtain a job might be guilty of an offence of fraud (though only if wages counted as property),10 an employer who persuaded an employee to work for him with no intention to pay for the work would not be guilty of a criminal offence at all. Although that ‘loophole’ (a term that suggests perhaps inaccurately that an accidental mistake was made initially in 1968) was closed by a fresh statute in 1978,11 the handling of fraud and related problems in the new legislation was marked by the adoption of rules that simultaneously and quite remarkably created offences that were at the same time both vague and highly fact specific, as Parliament tried to fill apparent gaps as they popped up in the criminal courts. For instance, there was the crime of ‘making off without payment’ to cover the instance of someone leaving a restaurant without paying the bill,12 and the offence of ‘obtaining a

5 Andrew Ashworth, Principles of Criminal Law (Clarendon 1991) ch 2. 6 Master and Servant Act 1823 (4 Geo IV c 34), mostly repealed by Employers and Workmen Act 1875 (38 & 39 Vict c 90). 7 Larceny Act 1861, ss 82 and 83; Larceny Act 1916, ss 18 and 19. 8 Theft Act 1968, s 15. 9 Theft Act 1968, s 17. 10 If not, there was a specific offence in Theft Act 1968, s 16 of using deception to obtain the opportunity to earn money in employment. 11 Theft Act 1978, s 1. If the employer avoids making a false or misleading statement, this conduct of cheating on wages may be covered by Fraud Act 2016, s 11 (‘obtaining services by deception’). 12 Theft Act 1978, s 3.

118  Criminality at Work pecuniary advantage’ to cover cases where an entry in a bank account had been fraudulently adjusted.13 Now, following detailed work by the Law Commission,14 the whole law of fraud has been reformed by the Fraud Act 2006. The statute is intended as a codification of the field. Broadly in line with the recommendations of the Law Commission, section 1 creates three ways in which the offence of fraud may be committed. These three versions are set out in detail in sections 2–​4. My initial purpose is to map and understand where the Act criminalizes the conduct of employees and employers in order to provide an additional deterrent against a breach of contract. What emerges in the discussion is that many of these criminal offences under the Fraud Act 2006 are parasitic on the existence of civil wrongs in the form of breach of contract or tort. In other words, the actus reus of the offence is often comprised in part by a breach of a civil obligation in tort or contract. Unfortunately, in this area of the law of the contract of employment, it is often contested whether or not a civil obligation exists in the first place and what kind of obligation it imposes. As a consequence, in tension with the values of the rule of law and Article 7 of the European Convention on Human Rights, the effect of the Fraud Act 2006 is to criminalize conduct of employers and employees where there is a great deal of uncertainty about what conduct is prohibited. Indeed, there is perhaps no greater area of uncertainty and confusion in the common law of the contract of employment than questions about the existence, scope, application, and the correct label for what is variously described as a duty of loyalty, a duty of fidelity, a duty of confidence, a duty of mutual trust and confidence, or a duty of good faith owed by employees to employers.15 In order to clarify the scope of the criminal law, the chapter therefore devotes considerable space to an investigation of the civil law regarding the duty of loyalty. In particular, it compares the different obligations of disclosure and duties to protect the financial interests of the other party that apply to employers and employees. In pursuit of that endeavour, the discussion draws on the idea that contracts of employment are properly classified as ‘relational contracts’. Within relational contracts there are typically implied obligations of loyalty and good faith in performance that do not arise in ordinary commercial and consumer transactions. These implied obligations are necessary to achieve an efficient functioning of this kind of contract. The question is when these implied obligations provide the necessary civil obligation, breach of which may satisfy an ingredient of the criminal offence of fraud. Having attempted to clarify the scope of the criminalization of breach of civil wrongs brought about by the Fraud Act 2006 in connection with employment, the final task to be considered is whether or not this criminalization appears to be a necessary and proportionate deterrent to reinforce the existing sanctions for civil wrongs. Ashworth notes that many property offences involve trivial harms, so that it is arguable that the principle that criminal law should only be used for significant challenges to social order often seems to be ignored in this context, especially given that there are usually civil remedies available to a victim.16 In some instances of fraud, it is arguable that there has been no harm caused at all. For example, if a worker obtains a job by lying about his or her experience, although that



13

Theft Act 1978, s 16. Law Commission, Fraud (Law Com No 276 2002). 15 Marathon Asset Management v Seddon [2017] EWHC 300 (Comm), [2017] ICR 791 [111]. 16 Ashworth, Principles (n 5) 325. 14

The Duty of Loyalty and the Law of Fraud  119 action is probably a criminal fraud, if the worker in fact performs a good job in return for the wages, it is unclear what harm to the employer may have been caused. Obtaining a job by a lie is and should be a civil wrong; the issue is rather whether it should also, in addition, be a criminal offence. It will be argued, in conclusion, that the criminalization of breaches of the duty of loyalty by employees represents an unconscious appeal to the moral values of a bygone era when unfaithful servants were believed to deserve severe punishment.

B. Fraudulent Omissions The three ways in which the offence of fraud may be committed under the Fraud Act 2006 extend beyond the common usage of the word fraud in several respects. Here we will focus in particular on the extension to omissions in the form of a failure to inform the other party of facts, thereby intending to cause the other party a loss or a risk of loss. This emphasis is partly dictated by the consideration that omissions constitute the area of greatest uncertainty about the scope of civil obligations, so that for these criminal offences that are parasitic on a civil wrong, this will also be the greatest area of uncertainty about the scope of the criminal law. The emphasis on disclosure of information is also influenced by the wider concern of this chapter to assess whether the criminalization of civil wrongs is proportionate. Since omissions are only exceptionally regarded as deserving of punishment in criminal law,17 the criminalization of omissions to disclose information is likely to be the area that proves most questionable when we come to assess it according to a test of proportionality.

1.  False or Misleading Representation Under the Fraud Act 2006, section 2 it is an offence dishonestly to make a false representation, whether express or implied, in order to make a gain or to cause loss or a risk of loss to another. A representation is false if the person making it knows that it is untrue or misleading. It is worth analysing a few elements of this offence that are shared by the other two versions of the offence of fraud committed by omissions. Like all property offences in the criminal law, fraud requires proof of dishonesty. The Supreme Court recently reformulated the guidance to be given to a jury on the question of the meaning of dishonesty. Speaking for the court, Lord Hughes said: When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-​ finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.18

17 Andrew Ashworth, ‘Criminalising Omissions’ in Andrew Ashworth, Positive Obligations in Criminal Law (Hart Publishing 2013) ch 2; Andrew Ashworth, ‘Positive Duties, Regulation and the Criminal Sanction’ (2017) 133 Law Quarterly Review 606. 18 Ivey v Genting Casinos (UK) Ltd t/​a Crockfords [2017] UKSC 67, [2018] AC 391 [74].

120  Criminality at Work Thus, a finding of dishonesty depends on the objective standards of ordinary decent people, as applied to the facts as they were known to and understood by the defendant. Like the two other versions of the offence, section 2 creates an inchoate offence in the sense that the false statement has to be made with a view to achieving a gain or causing a loss, but it is not necessary for any gain or loss to be proven to have occurred. Nor need the loss be a certain foreseeable consequence of the fraud, if successful, because merely intending to create a risk of loss is sufficient. Thus, in a case where an employer is uncertain that it will be able to pay the wages at the end of the week, but nevertheless asserts expressly or impliedly that it will be able to pay wages, knowing that statement to be untrue or misleading, the employer has intentionally caused a risk of loss and so (subject to the question of dishonesty) the crime is complete, even though, at the end of the week, fortuitously the employer has sufficient funds to cover the wage bill. Similarly, if an employee lies about his or her experience in order to get a job, the crime has been committed by the hope of making a gain in the form of wages, even if the employer would have hired the worker for the job without the lie. In other words, the actus reus of the offence that is described in the statute is in fact an attempt rather than a successful and completed obtaining of another’s property or services. According to Ashworth, oddly it seems possible that there could be a valid charge of an attempt to commit this offence of (an attempted) fraud.19 It should be noted further that, unlike the civil law of deceit or misrepresentation, the criminal offence of fraud does not require the statement to be demonstrably false in fact. It is sufficient if the representation is misleading and the defendant is aware that it is likely to mislead someone else. In extending the criminal law to misleading statements, this provision replicates a similar extension in regulatory offences, such as those protecting consumers against misleading advertising and mis-​selling of products and services.20 But fraud offences differ from those consumer offences owing to the requirement of dishonesty and the potential severity of the sanction. Conviction of the three versions of fraud results, on summary conviction, to imprisonment for a term not exceeding twelve months or a fine, and on conviction on indictment, to imprisonment for a term not exceeding ten years, or to a fine, or to both.21

2.  Fraud by Failure to Disclose Information The Fraud Act 2006, section 3 provides that: A person is in breach of this section if he—​ (a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and (b) intends, by failing to disclose the information—​ (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss.



19

Andrew Ashworth, ‘A New Generation of Omission Offences?’ [2018] Criminal Law Review 354, 355–​56. The Consumer Protection from Unfair Trading Regulations 2008, SI 2008/​1277. 21 Fraud Act 2006, s 1. 20

The Duty of Loyalty and the Law of Fraud  121 Some of the elements of this version of fraud, such as the dishonesty and its inchoate character, are the same as the core offence in section 2. But instead of an action such as telling a lie, this version of fraud consists of conduct in the form of an omission: a failure to disclose to another person information which the defendant is under a legal duty to disclose. In general, therefore, the scope of this offence will depend on two crucial issues: first, was there a legal duty to disclose information, and second, was the defendant dishonest by reference to the standards of ordinary decent people. The statute provides no further elaboration on the issue of when there will be a legal duty to disclose information. In its preparatory work, the Law Commission clearly assumed that the incidence of a legal duty to disclose information would be dependent on civil law. The Commission report stated: Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).22

The possible application of section 3 to employment arises primarily because the express or implied terms of the contract of employment may impose duties of disclosure of information on either party. If there is a breach of such a term by reason of a failure to disclose information, in order to constitute a criminal offence, the remaining issues would be whether that party intended to make a gain or expose the other to a risk of loss, and, crucially, whether there was dishonesty.

3.  Fraud by Abuse of Position Section 4 of the Fraud Act 2006 states: (1) A person is in breach of this section if he—​ (a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, (b) dishonestly abuses that position, and (c) intends, by means of the abuse of that position—​ (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss. (2) A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.

This third way that fraud can be committed shares the features of the other offences in that it criminalizes the inchoate form of the actus reus and the fault element is a requirement of dishonesty. The actus reus is the abuse of a position in which a person is expected to



22

Law Commission, Fraud (n 14) [7.28].

122  Criminality at Work safeguard, or not to act against, the financial interests of another. Like the previous one, this offence can be committed by an omission, so that a failure to safeguard the financial interests of another could also amount to the offence. That feature of the offence raises the question of what kinds of position will incur this positive obligation. It is clear from the report of the Law Commission that an obligation to safeguard the financial interests of another is likely to arise in positions that would be described in civil law as fiduciary positions. Nevertheless, the Commission insists that a fiduciary relationship should not be necessary.23 The Commission states explicitly that the necessary relationship can be present between employer and employee.24 The report gives the example of an ‘employee who, without the knowledge of his employer, misuses his or her position to make a personal profit at the employer’s expense’.25 The Commission describes the kinds of relationship that trigger section 4 as ones where ‘the victim voluntarily put the defendant in a privileged position, by virtue of which the defendant is expected to safeguard the victim’s financial interests or given the power to damage those interests’.26 Since every contractual relationship tends to create the possibility of one party damaging the financial interests of the other by, for instance, not paying for the goods or services ordered, the scope of this offence is potentially extremely broad unless sufficient weight is attached to the notion of what the Law Commission called a ‘privileged position’, or what the statute refers to a ‘position’ that can be abused. In agreement with that view, in R v Valujevs27 the Court of Appeal interpreted section 4 to require a position ‘akin to a fiduciary relation’. In their view, that requirement would not be satisfied in ordinary commercial and employment relations. In that particular case, however, it was said that there was evidence of the necessary privileged position. The case concerned an unlicensed gangmaster, who received payments from customers that should have been passed on to the workers as wages, but who withheld substantial amounts on unwarranted grounds such as payment of rent and other charges. In law, the position of the gangmaster was arguably akin to that of agent for the workers, so that the duty of an agent to protect the interests of a principal was present to some extent. The relevant legislation on gangmasters provided support for the view that in this relationship gangmasters were legally charged with responsibilities that arose from their position of control over the workers.28 Although a position akin to a fiduciary should suffice for section 4(1)(a), it is not a necessary condition, as Jennifer Collins points out.29 According to the text of the statute, it should also apply to positions where one person has the power to harm the economic interests of

23 Nor, incidentally, is it sufficient for the offence to be committed that there should have been a breach of fiduciary duty. It should be appreciated that the requirement of dishonesty removes the strict liability characteristic of many fiduciary duties in civil law. Not all breaches of fiduciary duty will therefore be regarded as fraud under this section, because only some of them are likely to be regarded as dishonest by ‘ordinary decent people’. For instance, a fiduciary who believes that the beneficiary had agreed or would agree to a particular use of his or her position is unlikely to be found to be dishonest, even though the misuse of the fiduciary position would result in a civil remedy being available to a beneficiary. 24 Law Commission, Fraud (n 14) [7.38]. 25 ibid [7.36]. 26 ibid [7.37]. 27 R v Valujevs [2014] EWCA Crim 2888, [2015] QB 745. 28 Gangmasters (Licensing) Act 2004; Gangmasters Licensing Authority Licensing Standards 2012. 29 Jennifer Collins, ‘Fraud by Abuse of Position and Unlicensed Gangmasters’ (2016) 79 Modern Law Review 354, 359.

The Duty of Loyalty and the Law of Fraud  123 another and there is an expectation that the power should not be exercised. Employers and employees will normally find themselves in a position where they have the practical ability to harm the interests of the other. An employer can abuse its position in various ways such as demanding extra unpaid work or imposing unilateral wage cuts, and employees can shirk on the job or damage their employer’s property. The question is whether the contract of employment creates the kind of privileged position that is associated with expectations that both parties will and should refrain from acting in a self-​interested way that may involve harming the other. Whilst the contract of employment does not create a fiduciary relationship, as will be discussed below, it is best described as a type of relational contract, in which legal duties of good faith signal the existence of such an expectation.

C. Relational Contracts This brief review of the provisions of the Fraud Act 2006, especially as they relate to liability for omissions in the context of employment relations, has revealed that the scope and application of the variations on the criminal offence of fraud in sections 3 and 4 of the Fraud Act 2006 depend to a considerable extent on the existence of obligations in civil law.30 One important question is when, if at all, does the civil law impose an obligation on the parties to a contract of employment to disclose information? A second question is when, if at all, does the civil law impose an obligation on the parties to a contract of employment to safeguard the financial interests of the other party or at least to warn them against potential harm to their material interests? Before considering those questions in detail, it is useful to explore the characteristics of the contract of employment as a relational contract, for that will cast considerable light on the proper scope of liability for omissions in that context. The contract of employment is to some extent governed by the general law of contract. Notoriously, the general law of contract in the common law rarely imposes implied duties to disclose information.31 Nor does the law of contract require the parties to look after the interests of the other party. Instead the general law of contract permits each party to give priority to its own interests. Yet there are some kinds of contract where that general approach does not hold. There are special kinds of contracts, such as partnerships and agencies, where the parties owe some fiduciary obligations that are likely to require duties of disclosure and protecting the interests of the other. In addition, there are relational contracts where the right exclusively to look after one’s own interests is modified by an implied obligation to perform in good faith.32 It is often asserted that contracts of employment are relational contracts.33 Sometimes that label means little more than the point that these contracts involve personal relationships 30 Though often criminal courts are reluctant to investigate civil law questions: David Ormerod, ‘The Fraud Act 2006—​Criminalizing Lying?’ [2007] Criminal Law Review 193, 206. 31 Hugh Collins, ‘Implied Duty to Give Information During Performance of Contracts’ (1992) 55 Modern Law Review 556. 32 Yam Seng Pte Ltd v International Trade Corporation Ltd [2013] EWHC 111, [2013] All ER (Comm) 1321 (QB). 33 Johnson v Unisys Ltd [2001] ICR 480 [16] (HL); approved in Braganza v BP Shipping Ltd [2015] UKSC 17, [2015] ICR 449 [54] (Lords Hodge and Kerr). Robert C Bird, ‘Employment as a Relational Contract’ (2005) 8 University of Pennsylvania Journal of Labor and Employment Law 148; Matthew Boyle, ‘The Relational Principle of Trust and Confidence’ (2007) 27 Oxford Journal of Legal Studies 633; Mark Freedland, The Personal Contract of Employment (OUP 2003) 88; Douglas Brodie, ‘How Relational is the Employment Contract?’ (2011) 40 Industrial Law Journal 232; Jonathan Levin, ‘Multilateral Contracting and the Employment Relationship’ (2002) 117 Quarterly Journal of Economics 1075.

124  Criminality at Work because the work has to be performed personally by the employee. Sometimes it means that the parties to this contract are expecting it to last for a substantial period of time and, in that sense, they will be forming an ongoing relationship rather than merely making a one-​off discrete exchange. While that may be true in many instances of employment, a long-​term contract is not a necessary incident of relational contracts, and nor does its long-​term nature give rise to any special legal obligations of the kind envisaged in relational contracts.34 The legal relevance of describing contracts of employment as relational contracts concerns primarily the implied obligations that arise under the contract.35 The legal category of relational contract recognizes that certain kinds of contract cannot be set out in a determinate way in advance through the express terms of the contract.36 Either expressly or impliedly the parties to such contracts must undertake open-​textured obligations to cooperate in order to bring the purpose of the contract to fruition. At the same time as being cooperative, however, the parties are entitled to look after their own interests in order to ensure that they receive the expected pay-​offs from the contractual undertaking. A relational contract is thus partly an arm’s-​length contract and partly an integrated system of production in which the parties have to be loyal to the common purpose. The parties must both cooperate and compete.37 This duty to cooperate in order to make the venture successful may require from the parties many different kinds of particular duties according to the circumstances. Because it is impossible to pin down in advance what these obligations of cooperation may entail, it is more convenient to say that there is a duty to perform the contract in good faith. This implied duty to perform a relational contract in good faith can be regarded as a term implied by law into contracts that are properly classified as relational contracts.38 It is a term that is inserted not on grounds of fairness but rather because it is necessary for the business efficacy of these kinds of contracts.39 Relying to some extent on Australian authorities,40 Leggatt J has usefully summarized the implied requirement of good faith in relational contracts in these terms: [A]‌n obligation to act honestly and with fidelity to the bargain; an obligation not to act dishonestly and not to act to undermine the bargain entered or the substance of the contractual benefit bargained for; and an obligation to act reasonably and with fair dealing having regard to the interests of the parties (which will, inevitably, at times conflict) and to the provisions, aims and purposes of the contract, objectively ascertained . . . the obligation of fair dealing is not a demanding one and does no more than require a party to refrain from

34 Hugh Collins, Regulating Contracts (OUP 1999) 142. 35 Hugh Collins, ‘Is a Relational Contract a Legal Concept?’ in Simon Degeling, James Edelman, and James Goudkamp (eds), Contract in Commercial Law (Thomson Reuters 2016) ch 3. 36 Charles J Goetz and Robert E Scott, ‘Principles of Relational Contracts’ (1981) 69 Virginia Law Review 1089. 37 Mark Amstutz and Gunther Teubner (eds), Networks:  Legal Issues of Multilateral Co-​operation (Hart Publishing 2009); Gunther Teubner, Networks as Connected Contracts (ed Hugh Collins, Hart Publishing 2011). 38 Sheikh Tahnoon Bin Saeed Bin Shakhboot Al Nehayan v Kent (aka John Kent) [2018] EWHC 333 (Comm), [2018] 2 WLUK 528. 39 For discussion of how terms are implied by law, see Elizabeth Peden, ‘Policy Concerns behind Implications in Law’ (2001) 117 Law Quarterly Review 459; Hugh Collins, ‘Implied Terms: The Foundation in Good Faith and Fair Dealing’ (2014) 67 Current Legal Problems 297; Lord Neuberger in Marks & Spencer Plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2015] UKSC 72 [2016], AC 742. 40 Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50 [288] (Allsop CJ).

The Duty of Loyalty and the Law of Fraud  125 conduct which in the relevant context would be regarded as commercially unacceptable by reasonable and honest people.41

In the context of a commercial contract, in identical terms to those used in employment, the implied term has also been described as a duty not to destroy the mutual trust and confidence that underpins the contract.42 Although the duty to perform a relational contract in good faith does not lay down precise requirements and depends on the context of each transaction to some extent, the duty will typically require disclosure of certain information in particular contexts. One party may hold or obtain information that should be shared in order to make the common purpose of the contract more likely to be successful or to prevent the venture from becoming a failure.43 The duty of disclosure may not be strictly speaking necessary for the contract to be performed to some extent, but the duty is necessary if the project is to prosper in the way the parties reasonably expected. In contracts of employment the principal mechanism for achieving cooperation without specifying the performance obligations completely in the express terms of the contract is to grant one party, the employer, the legal right to issue orders to the other party, the employee, who is required normally to comply with those instructions. Implied terms of the contract supplement that basic structure in ways that impose the kinds of good faith obligations that are required in relational contracts. For employers, the good faith obligation is usually described as the implied term of mutual trust and confidence.44 For employees, the good faith obligation is described variously as a duty of performance in good faith, a duty of fidelity, a duty of cooperation, a duty of loyalty, and also the implied term of mutual trust and confidence.45 Although different nuances may be attributed to these various formulations of the implied terms that arise in contracts of employment, they function in the same way to supplement the express terms for the purpose of supporting the requirement of cooperation in a contract that is incomplete by design.

D.  Obligations of Disclosure in the Contract of Employment We can now return to address the question of whether there is a duty of disclosure in the contract of employment that is likely to satisfy the requirement of the Fraud Act, section 3 of a ‘failure to disclose to another person information which he is under a legal duty to disclose’. As predicted by the theory of relational contracts, there is no general duty of disclosure imposed on the parties to a contract of employment. Unlike a contract of insurance, employment is not a contract uberrimae fidei. Nevertheless, obligations to disclose information can arise under statute, the express terms of the contract, and implied terms of the contract. 41 Sheikh Tahnoon (n 38) [176], referring also to Bristol Groundschool Ltd v Intelligent Data Capture Ltd [2014] EWHC 2145 (Ch), [2014] 7 WLUK 58 [295] and Astor Management AG v Atalaya Mining Plc [2017] EWHC 425 (Comm), [2018] 1 All ER (Comm) 547 [98]. 42 D&G Cars Ltd v Essex Police Authority [2015] EWHC 226 (QB). 43 For example, Yam Seng Pte Ltd v International Trade Corporation Ltd [2013] EWHC 111, [2013] All ER (Comm) 1321 (QB). 44 Douglas Brodie, ‘The Heart of the Matter: Mutual Trust and Confidence’ (1996) 25 Industrial Law Journal 121. 45 Hugh Collins, Keith D Ewing, and Aileen McColgan, Labour Law (CUP 2012) 143.

126  Criminality at Work The general statutory duties of disclosure placed upon employers mostly concern the need to ensure transparency with respect to the terms of the contract and how remuneration has been calculated.46 Such obligations of transparency have occasionally been supplemented by implied terms.47 There are also statutory obligations of disclosure placed on employers in connection with collective bargaining and consultation bodies.48 In addition, workers in particular professions may incur special duties of disclosure in connection with such matters as safeguarding children or regulation of financial markets. Apart from those statutory duties, the courts have not in general imposed broader implied duties of disclosure or duties to provide information during performance of the contract.49 They have treated the contract of employment as much like other commercial contracts, so that both parties need to look after their own interests. Exceptionally, however, duties of disclosure may arise in particular circumstances through two terms implied by law into contracts of employment: the implied term of mutual trust and confidence, and the implied term of the duty of loyalty.50

1.  Mutual Trust and Confidence One way in which mutual trust and confidence can be undermined is by the discovery of fraud or deceit.51 Breach of the duty may also be committed by failures to disclose material information that is regarded as crucial to the continuation of the relationship. The leading case, Mahmoud and Malik v BCCI,52 may be regarded as a breach of the implied term of mutual trust and confidence by concealment and a failure to disclose the corrupt dealings of the bank. Bournemouth University v Buckland53 involved a failure to disclose information: the chair of the examination board had the scripts remarked and failed to consult Professor Buckland about the change. In Visa International Service Association v Paul,54 the employer was held to be in breach of the implied term by failing to notify the applicant, who at that time was on maternity leave, of a vacancy for which the applicant regarded herself as suitable. These examples of breaches of the implied term of mutual trust and confidence reveal that it does impose duties on employers to disclose information, though only when the omission is serious and is therefore likely to lead to a breakdown in trust and confidence. It can provide the basis for an obligation of disclosure that would satisfy section 3 of the Fraud Act 2006. In principle, the implied term of mutual trust and confidence applies to both parties, so in theory it might be used to impose duties of disclosure on employees. In practice,

46 Employment Rights Act 1996, ss 1, 8, 13. 47 Scally v Southern Health and Social Services Board [1992] 1 AC 294 (HL). 48 Trade Union and Labour Relations (Consolidation) Act 1992, s 181; Information and Consultation of Employees Regulations 2004, SI 2004/​3426. 49 Reid v Rush & Tompkins Group Plc [1990] ICR 61 (CA); Crossley v Faithful & Gould Holdings Ltd [2004] EWCA Civ 293, [2004] ICR 1615. 50 For present purposes, it is assumed that these implied terms are different, though the implied obligations are certainly not unrelated to each other. 51 For example, Post Office v Roberts [1980] IRLR 347 (EAT). 52 [1998] AC 20 (HL). 53 [2010] EWCA Civ 121, [2010] ICR 908 (CA). 54 [2004] IRLR 42 (EAT).

The Duty of Loyalty and the Law of Fraud  127 however, another implied term, the duty of loyalty or fidelity, has been used for centuries to govern the scope of duties of disclosure imposed on employees.

2.  The Duty of Loyalty or Fidelity Under the common law, the duty of loyalty owed by an employee to an employer arises through a term implied by law. The duty is also described as a duty of fidelity and of performance in good faith. The employee’s duty of loyalty requires both performance of the job in a way that serves the interests of the employer and prohibits conduct outside work that may have an adverse impact on the employer’s business interests including its reputation. Employees who denigrate their employer’s business or products are likely to be justifiably dismissed for misconduct, because it is a breach of the implied duty of loyalty. Whistleblowers usually break the implied duty of loyalty when in support of the public interest they report an employer’s misconduct to an outside body such as a regulator or a newspaper, so they require a special exemption for their protection.55 The implied term also requires employees to respect information acquired in confidence, though this duty also arises in tort on the receipt of confidential information.56 Breach of the implied term by the employee is a ground for an employer to justify summary dismissal and to avoid paying damages for wrongful dismissal at common law. Breach of the term can also provide the basis for a claim for an injunction or for compensatory damages. Through express terms of the contract, employers may impose more onerous legal duties of disclosure, confidentiality, and loyalty. To what extent does the implied duty of loyalty impose a duty on employees to disclose information to their employer? As a relational contract, the contract of employment is only likely to require disclosure when it is required as part of the cooperative endeavour to make the performance of the contract successful or at least not to prevent its success. A duty of disclosure seems likely to arise when the employee possesses information that if disclosed would prevent a loss to the employer, provided that such a disclosure would not harm the employee’s own interests under the contract. The courts have held that a duty to disclose information arises where an employee knows about the wrongdoing of other employees. For instance, an employee should tell the employer that a fellow employee is stealing from the business.57 Similarly, an employee should tell the employer that fellow employees are secretly setting up a rival business to the employer’s business in breach of their obligations of loyalty.58 These cases imposing a duty of disclosure concern harm to the employer’s business caused by other employees, but do not require, according to Bell v Lever Bros Ltd,59 the employee to disclose his or her own misconduct. As Lord Atkin said in that case, The servant owes a duty not to steal, but, having stolen, is there superadded a duty to confess that he has stolen? I am satisfied that to imply such a duty would be a departure from 55 Employment Rights Act 1996, pt IVA. 56 Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 [14]. 57 Bell v Lever Bros Ltd [1932] AC 161 (HL). 58 Swain v West (Butchers) Ltd [1936] 1 All ER 224, [1936] 3 All ER 261 (CA); Sybron Corp v Rochem [1984] Ch 112 (CA). 59 [1932] AC 161 (HL).

128  Criminality at Work the well established usage of mankind and would be to create obligations entirely outside the normal contemplation of the parties concerned.

This distinction fits the model of the contract of employment as a relational contract well. Although employees can look after their own interests by not confessing their own misconduct and mistakes, their duty of loyalty requires them to report to the employer the misconduct of other employees that is likely to harm the interests of the employer’s business and thus undermine the success of the employment relationship. But the distinction can lead to some surprising results. Consider whether a worker must disclose to his or her employer that he or she took industrial action on a particular day and that, therefore, following Miles v Wakefield,60 the employer is entitled to reduce wages on a pro-​rata basis? On the assumption that there is no express term of the contract of employment that imposed such an obligation to disclose participation in strike action, is there an implied obligation that requires an employee to volunteer the fact and extent of participation in industrial action? If it is correct that there is no additional duty to report one’s own misconduct to the employer, assuming strike action is misconduct, disclosure of one’s own strike action is not required by the implied duty of loyalty. On the other hand, there may be a duty to report that other employees have taken industrial action and a failure to report that misconduct would appear to be a breach of the duty of loyalty. Given that strike action is hard to take on one’s own, it seems that a duty of disclosure will arise indirectly in every case of industrial action. Thus, subject to the issue of dishonesty, a failure to inform an employer that others are on strike may satisfy the main ingredient of the Fraud Act, section 3, whereas there appears to be no duty to admit to one’s own participation in industrial action. Although it is no longer in general a crime for workers to take industrial action, the surprising result of this analysis is that it is possibly a crime of fraud for employees not to inform their employer that their co-​ workers have taken industrial action. Juries may not agree, however, that a failure to snitch on one’s co-​workers amounts to dishonesty. The suggestion that the implied duty of loyalty imposes a duty to betray co-​workers but not confess one’s own misconduct is inevitably speculative in the absence of any closely relevant legal authorities and clear principles. The extent of the civil obligation appears to depend in Lord Atkin’s judgment on the vague standard of the ‘well established usage of mankind’. That phrase tells us that the scope of the duty of disclosure is determined ultimately on customary morality or orthodox views about right and wrong. Yet those moral views are often ambiguous and contested, especially in examples of white-​collar crime such as the presentation of unduly favourable accounts, where the victims are potentially a large and undetermined class of investors or consumers.61 Furthermore, if the ‘well established usage of mankind’ is the linchpin, judgments involved in determining the incidence of employee’s duties of disclosure under the implied duty of loyalty seem to be analogous to the issue raised in the test of dishonesty under the criminal law of what ordinary decent people would think. If so, an appeal to customary moral standards and orthodox views both serves to determine the scope of the actus reus of the offence of fraud by omission under section 3 of the Fraud Act 2006 by identifying when there is a duty of disclosure under



60 61

Miles v Wakefield Metropolitan Borough Council [1987] AC 539 (HL). Stuart F Green, Lying, Cheating, and Stealing: A Moral Theory of White-​Collar Crime (OUP 2006).

The Duty of Loyalty and the Law of Fraud  129 the contract of employment and also to determine whether the employee satisfies the fault element of dishonesty for a criminal offence.

E.  Duties to Safeguard the Financial Interests of the Other Party The second question raised above about the civil law governing the contract of employment is whether there is a duty placed on either the employer or the employee to safeguard the interests of the other party. If such a duty exists, it seems likely that the duty would normally be satisfied by giving a warning to the other party about a risk to their financial interests. Suppose, for instance, that during performance of the job an employee realizes that an external contractor is about to become insolvent, which creates a risk of loss for his or her employer. The question is whether the employee is under a duty to warn the employer about this risk of loss? In other cases, perhaps action on the part of the employee might be required, such as locking a door or blocking an account. Although these duties may not be onerous, in ordinary commercial transactions one party would not be required to take such steps to safeguard the financial interests of the other party unless that was the purpose of the contract. The suggestion that employers owe such a duty to safeguard the financial interests of employees has so far been rejected. In Crossley v Faithful & Gould Holdings Ltd62 the claimant suffered a nervous breakdown and after a period of sick leave agreed to take early retirement. Under the terms of the employer’s long-​term disability insurance scheme, the claimant was entitled to benefits provided he remained in employment. His entitlement therefore ceased on taking retirement. Mr Crossley claimed that, by failing to alert him to this consequence of taking early retirement, the employer had breached an implied term of the contract of employment. The Court of Appeal rejected the claim, holding that there is no standard implied term in all contracts of employment that an employer will take reasonable care of an employee’s well-​being, nor an implied duty for an employer to give an employee financial advice in relation to benefits accruing from his employment. If the employer voluntarily assumes the responsibility to give advice and to help the employee, however, the employer may be liable in negligence for failing to provide careful advice.63 If there is no general duty placed on employers to safeguard the financial interests of employees, does the law place such a duty on employees? The answer to that question depends on the scope of the implied duty of loyalty or fidelity. The origins and development of this implied duty in the contract of employment are contested.64 Older cases do not make sharp distinctions between types of employee, such as managers and servants, and between agents and employees. Nor is it always clear in the past whether courts were considering implied terms in the contract or the imposition of mandatory equitable duties akin to fiduciary duties. The use of language such as ‘fidelity’ seems to confuse the question of whether the discussion concerns a contract term or the imposition of an equitable duty. It now seems clear, however, that the implied duty of loyalty or fidelity 62 [2004] EWCA Civ 293, [2004] ICR 1615 (CA), following University of Nottingham v Eyett [1999] ICR 721 (ChD). 63 Lennon v Commissioner of Police of the Metropolis [2004] EWCA Civ 130, [2004] IRLR 385 (CA). 64 Robert Flannigan, ‘The [Fiduciary] Duty of Fidelity’ (2008) 124 Law Quarterly Review 274; Andrew Frazer, ‘The Employee’s Contractual Duty of Fidelity’ (2015) 131 Law Quarterly Review 53.

130  Criminality at Work in the contract of employment needs to be distinguished sharply from a fiduciary relationship. Unlike for instance the creation of the position of a trustee under a trust or an appointment as a director of a company, the contract of employment does not make the employee a fiduciary.65 If it did, an employee would always have to place the interests of the employer above his or her own and avoid getting into situations of conflict of interest. The duties under a relational contract are not to put the interests of the other party first, as would be the case in a fiduciary relationship, but rather to be loyal to the purpose of the transaction and not take action that would prevent its purpose from being achieved. The purpose of the contract does include the provision of worthwhile pay-​offs for both parties. Both parties can have regard to their own interests in determining how they will perform the contract. What they cannot do under the duty of loyalty is to subvert the purpose of the contract itself. In other words, there is not a duty placed on the employee to safeguard the financial interests of the employer, but rather one to refrain from subverting the purpose of the contract in a way that harms the interests of the employer. Nevertheless, it is true that sometimes employees incur fiduciary obligations or at least fiduciary-​like obligations.66 How can they have fiduciary obligations if they are not fiduciaries? Apart from well-​established fiduciary relationships such as trusts, the law sometimes imposes fiduciary obligations in order to provide a more effective civil remedy for breach of an obligation such as a breach of contract. As Matthew Conaglen explains, the purpose of the imposition of fiduciary duties or remedies in such case is as a mechanism to provide greater reassurance that non-​fiduciary duties will be performed.67 In other words, in order to ensure that the employee does in fact perform the contract loyally or faithfully, equity may insert a fiduciary obligation or equitable remedy on top of any remedy for damages for breach of contract. These equitable remedies will usually be either an injunction, such as a ‘springboard injunction’ against the unauthorized use of confidential information,68 or a claim to account for profits made by misuse of the employee’s position. The remedy of an account of profits ensures that there is no financial incentive for the breach of duty of loyalty even where the employer has suffered no loss. A-​G v Blake illustrates a particularly dramatic instance of such a remedy, when the UK government succeeded in a claim for all the royalties from the memoirs of Blake, who had been a traitorous secret agent, on the ground that he had broken his express confidentiality agreement (both by publishing the book and of course spying for the Russians).69 In order to combat the temptation of misuse of the employer’s property or money, the law imposes a fiduciary duty on the employee with the effect that the employee has a duty to account for the property and any secret profits. For example, where the employee controls the employer’s property or money as part of the job, the implied duty of loyalty or fidelity requires the employee to use that property or money for the employer’s purposes and not for the employee’s own benefit. The use of another’s property including intellectual property without permission in order to

65 University of Nottingham v Fishel [2000] ICR 1462, 1491 (Elias J); Marathon Asset Management v Seddon [2017] EWHC 300 (Comm), [2017] ICR 791 [170]. 66 Douglas Brodie, ‘The Employment Relationship and Fiduciary Obligations’ (2012) 16 The Edinburgh Law Review 198. 67 Matthew Conaglen, Fiduciary Loyalty:  Protecting the Due Performance of Non-​Fiduciary Duties (Hart Publishing 2010) 68 Roger Bullivant Ltd v Ellis [1987] ICR 464 (CA). 69 [2000] UKHL 45, [2001] 1 AC 268 (HL).

The Duty of Loyalty and the Law of Fraud  131 obtain a personal benefit is likely to result in an order to pay for the use of it at the ordinary market rate,70 or to account for the profits made from its unauthorized use. This use of equitable remedies to add to the deterrence of remedies for breach of contract arises in many employment contexts. The duty of loyalty requires an employee not to set up a business in competition with the employer or in a way that subverts the business interests of the employer. In a recent example, Samsung Semiconductor Europe v Docherty,71 the employee set up a business that supplied services to his employer, and was then in a position in his employment to ensure that his contracting business received favourable contracts. For that breach of loyalty, the employee was required to account for all the payments received by contracting business from his employer. Such a case does not demonstrate that an employee is a fiduciary. Rather it shows that in some instances, to ensure an effective remedy for breach of the contractual duty of loyalty, the courts are prepared to impose the equitable remedy that would have been applied had there been a breach of a fiduciary duty. This analysis of the duty of loyalty casts light on the scope of section 4 of the Fraud Act 2006 in its application to employment. As a relational contract, it is not generally true that the contract of employment places the parties under a contractual or equitable fiduciary duty to safeguard the financial interests of the other. In so far as the Law Commission suggested to the contrary by saying that section 4 applied to employment in general, that contention seems incorrect. With regard to employers, the civil law does not recognize a general duty of loyalty or an expectation that employers should safeguard the financial position of employees. With regard to employees, under the contractual duty of loyalty or fidelity, there is similarly no duty to safeguard the financial interests of the employer in general. Instead, under the logic of relational contracts, an employee is in a position where there is an expectation that the employee should not harm the interests of the employer whenever that harmful conduct will fundamentally undermine the purpose of the employment relation rather than simply benefit the employee. Although the Law Commission rejected the view that the presence of fiduciary duties should be essential under section 4, a more nuanced view may be more helpful. It might be argued that the kind of position required under section 4 is only likely to exist when the civil law provides equitable remedies in addition to the ordinary remedy of damages for breach of contract. We have noted that in particular contexts, employees may be subject to equitable remedies such as the action to account for secret profits that are available to remedy particular instances of breach of the contractual duty of loyalty. Where such equitable remedies are available for breach of the contractual duty of loyalty, there is a stronger case for holding that the condition of an expectation of safeguarding position set in section 4(1)(a) of the Fraud Act 2006 has been met. In the absence of such an equitable remedy, the civil law merely provides compensation for losses, a liability that can arise without any kind of special position or relationship. If that analysis of the civil law and its application to section 4 of the Fraud Act 2006 is correct, the most common instances where criminal fraud may take place under section 4 of the Fraud Act 2006 are likely to involve employees who are taking steps to set up a rival business or are using their employer’s resources to make a secret profit for themselves. They may breach their duty of loyalty under the contract of employment by taking confidential

70 71

Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246 (CA). Samsung Semiconductor Europe v Docherty [2011] CSOH 32, 2011 SLT 806.

132  Criminality at Work information from the employer and passing it to others or by diverting potential contracts to their own business. In such cases of breach of the duty of loyalty, it seems possible to argue that there has been an abuse of a position by harming the financial interests of the employer. The employee’s breach of the implied duty of loyalty would likely suffice for a finding of dishonesty.

F.  Over-​criminalization? The final question is whether the Fraud Act 2006 unnecessarily or disproportionately brings to bear the criminal law to sanction what are already breaches of contract that give rise to liability under the civil law of the contract of employment. Are the additional criminal sanctions provided in sections 3 and 4 of the Fraud Act 2006 necessary and proportionate? The courts have been alert to the need to develop equitable remedies that deprive employees of any gains resulting from their breach of duties of loyalty and fidelity. Indeed, A-​G v Blake may be an instance, when properly analysed, of where there was no breach of contract because the information was no longer confidential, yet the court imposed the duty to account in any case to strip the traitor of the fruits of his labours. Where an employee has made a secret profit by using the employer’s equipment, for instance, not only is the employee liable for damages for breach of contract but also the employee must account for any profits made through the use of the employer’s property. If this claim to account is successful, it removes any benefit that may have arisen from the breach of contract. As a deterrent, the action to account for profits or to pay a fair price for use of property is particularly useful where the employer may have suffered no loss from the unauthorized use of the property by the employee. Given that the civil law has already provided this super-​remedy that involves the stripping of any gain as well as compensation for any loss, why is it necessary to add to the deterrence by making this conduct a criminal offence as well? One common justification for the imposition of a criminal offence is to prevent serious harm. Yet the civil law can use damages to compensate for any harm in the context of employment. In fact, in many of these cases, there is in fact no harm done to the employer at all. Indeed, the employer in a sense may obtain a windfall from any equitable remedy, because the employee has produced wealth from a resource that the employer was not using at that time, which the employer then acquires through the action to account for secret profits. Why is it necessary therefore to criminalize such activities as well? Far from there being serious harm that is not being deterred by the civil law, the civil remedies here can almost be described as extravagant. Furthermore, we should remember that the economy benefits in general from former employees starting up their own businesses, including those in competition with their former employers. The criminalization of actions of employees who take short-​cuts in the process of setting up a competitive business may also deter those who play by the rules of competition and restraint of trade as well. It is unclear, therefore, that the criminalization of breaches of the duty of loyalty can be justified by the need to deter serious harm. Is there another justification for the use of the criminal law in this context? Because an employer is not under the same duty of loyalty, employers are much less likely than employees to fall within sections 3 and 4 of the Fraud Act 2006. Though partly modified by the development of the implied term of mutual trust and confidence, the asymmetry of the

The Duty of Loyalty and the Law of Fraud  133 duty of loyalty harks back to the law of master and servant, in which the master lawfully exercised prerogative powers and the servant was utterly subordinate. As a member of the household, disloyalty by a servant was regarded as a betrayal of trust. A disloyal servant is a cancer in the heart of the home. Infidelity of a servant was more than a breach of contract; it was regarded as a grave moral wrong and a subversive threat to the social order. In the context of employment, the Fraud Act 2006 may unconsciously be responding to that tradition by seeking to criminalize at least some breaches of the contractual duty of loyalty because they are regarded as serious moral wrongs that deserve not only civil sanctions but criminal ones as well. If that is correct, embracing a moral attitude that harks back to a bygone age, criminal law is being used here to express a moral condemnation of disloyal servants.

7

Wage Theft as a Legal Concept Sarah Green*

A.  Introduction This chapter will address the question of whether any of the poor employer payment practices commonly and colloquially referred to as wage theft amount in substance to the current statutory offence of theft, as defined by the Theft Act 1968. Since this offence requires that the defendant appropriate property belonging to another dishonestly and with the intention1 permanently to deprive the other of that property, it is not immediately clear that the practices referred to above would fit this definition. The analysis here first considers, therefore, whether the current offence of theft should be modified so as to accommodate those practices so often given the label of wage theft. Since the challenges of this are not inconsiderable, given the pedigree of the concepts already in use, the analysis concludes by reflecting on whether the current statutory offence of fraud by abuse of position is in fact already an ideal fit for such wrongful employment practices, suggesting that perhaps ‘wage fraud’ might be a more appropriate label to apply.2

B.  What is ‘Wage Theft’? In general public discourse, the label ‘wage theft’ has been applied to various unscrupulous employer practices. Whilst all of these are quite varied in terms of their conduct and execution, their consequences for the affected employees are similar: each deprives the victims of what is lawfully due to them as remuneration for their labour. A recent empirical investigation, funded by Trust for London, has identified several common employer practices, which currently attract the label of wage theft: Key Informant interviews and our examination of Employment Tribunal judgments suggest that unpaid wages may present in several forms simultaneously (combinations of deductions from wages, unpaid overtime, withholding holiday pay, failing to pay statutory * I would like to thank Alan Bogg, Bob Sullivan, Nicholas J McBride, and Paul S Davies for the comments and insights they were willing to share, all of which contributed to the best parts of this chapter. Any errors or oversights remain my own. 1 Since many employers will be corporate in form, the extension of any crime of mens rea to them will inevitably give rise to questions of attribution. This is not an issue which can be accommodated within the parameters of the current discussion. 2 For the significance of fair labelling, see, inter alia, Glanville Williams, ‘Conviction and Fair Labelling’ (1983) 42 Current Legal Problems 85 and James Chalmers and Fiona Leverick, ‘Fair Labelling in Criminal Law’ (2008) 71 Modern Law Review 217. Sarah Green, Wage Theft as a Legal Concept In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.007

Wage Theft as a Legal Concept  135 pay, or paying allegedly ‘self-​employed’ workers below the NMW), and be accompanied by other abuses of workers’ rights such as failure to provide payslips or written terms of employment.3

There are, therefore, several forms of employer activity that fall within the remit of the current discussion. Perhaps the most significant of these is the failure to pay monies due either under the contract of employment or under statute (such as the National Minimum Wage Act 1998 and the Equality Act 2010). Another example is the practice of making wage deductions in a way which defeats compliance with statutory requirements, such as using employees’ pay to cover uniform or equipment expenses. In addition to these activities, employers have also been said to commit wage theft by failing to make the requisite pension contributions on an employee’s behalf and by not paying holiday pay which is lawfully due.4 The same term has also been used to describe less direct means of reducing employee pay receipts, such as abuse of tipping, and the mislabelling of employees as being self-​employed, a practice which both denies them the benefit of certain statutory protections, and saves the employer resources. There is little doubt, therefore, that all of these employer activities (and this is not an exhaustive list) are both wrongful and deserving of legal censure. The question remains, however, whether the criminal offence of theft is really the most appropriate vehicle for dealing with these forms of behaviour. Whilst, particularly for non-​lawyers, theft is perhaps the most obvious offence to associate with the taking by one party of something which intuitively belongs to another, there are several technical reasons why such an association is not necessarily an apt one.

C.  Is ‘Wage Theft’ Theft? Section 1 Theft Act 1968 contains the definition of theft: 1. Basic definition of theft. (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and ‘thief ’ and ‘steal’ shall be construed accordingly.

The definition of what amounts to ‘property’ for this purpose is contained in section 5: ‘Property’ includes any money and all other property, real or personal, including things in action and other intangible property.5

3 Nick Clark and Eva Herman, ‘Unpaid Britain:  Wage Default in the British Labour Market’ (Middlesex University November 2017) 10 accessed 2 August 2019. 4 See David Metcalf, United Kingdom Labour Market Enforcement Strategy 2018/​19 (HM Government May 2018) 15 accessed 2 August  2019. 5 Theft Act 1968, s 4(1).

136  Criminality at Work Thus, theft has a distinctive shape. It is concerned with those situations in which victims are ousted from a pre-​existing relationship with assets over which they have established rights. There are two interdependent issues, therefore, which arise when attempting to apply this offence to the wrongful payment practices identified above. The first arises from that requirement for a pre-​existing relationship between an employee and the funds in the possession of the employer which, whilst due to the employee according to legal rules, have not, at or before the time of the employer’s wrongful action, been transferred to her. The second problem lies in theft’s requirement of appropriation: a requirement only satisfied when a defendant assumes the rights already held by the victim over the property in question. The first question is therefore whether monies due to be paid over under a contract and/​ or a statutory requirement (such as the National Minimum Wage Act or the Equality Act), could be said to be the property of the employee. Such a classification would be necessary before they could be said to ‘belong to another’6 and before the employer could be deemed to have appropriated them. It might, however, be that the monies claimed are not capable of amounting to property for legal purposes: the law does not always equate what someone is owed with something she owns. In other words, there is an important forensic difference between saying ‘that is mine; give it to me’ and ‘I performed services for you; pay me what they are worth’. In some cases, therefore, it is not even clear that the employer has appropriated anything which could be said to be the ‘property’ of the victim. Second, even where what is claimed by the employee is recognized by the law as the proper subject matter of property rights (and, as a consequence of the Theft Act, section 4, the criminal law category is more accommodating than that of the civil law),7 this will not always be sufficient. The appropriation element of the offence means that the temporal order of events will be crucial in distinguishing between those situations which might amount to theft and those which do not. In other words, the questions that will need to be answered are whether the subject matter of the victim’s property rights existed, and whether the victim had the relevant interest in it, before the employer performed any action which could amount to appropriation of that subject matter.

D.  Is What the Employee Has Lost ‘property’ for  the Purposes of the Theft Act 1968? There are two remedies available in principle to an unpaid employee:  an action for the agreed sum, which is a debt claim; or an action in damages. The former, being a claim for the enforcement of the primary obligation of the employment contract and not, therefore, subject to the rules on mitigation, penalties, or remoteness,8 is preferable from the employee’s point of view:

6 As required by s 1(1). 7 See Sarah Green, ‘Theft and Conversion:  Tangibly Different?’ (2012) 128 Law Quarterly Review 564, 565: ‘ “Property” includes money and all other property, real or personal, including things in action and other intangible property’ (Theft Act 1968, s 4(1)). ‘ “Goods” includes all chattels personal other than things in action and money’ (Torts (Interference with Goods) Act 1977, s 14(1)). 8 Jervis v Harris [1996] Ch 195. It is also both procedurally and substantively easier for debt claimants to obtain summary judgment: Civil Procedure Rules Part 24.

Wage Theft as a Legal Concept  137 Debt is perhaps the oldest and arguably the most important example of a thing in action. A debt is an obligation that consists of a duty to pay a specified sum of money, either on demand or at a future date that may either be fixed or dated according to an event that is sure to happen. A contingent obligation to pay a sum of money is not a debt. To be a debt, a money obligation must have accrued due though it may not yet be payable. A debt will not accrue due if it arises only in consequence of work to be performed and that work has not yet been carried out. Nevertheless, apart from the classification of an entitlement to be paid in the future as a debt, the extension of the category of things in action to accommodate contractual rights has this consequence. A right to be paid under a contract for work to be done in the future under that contract, though not a debt, is a thing in action and therefore assignable. This principle, nevertheless, will not apply in bankruptcy or insolvent liquidation where the performance for which the payment is to be made has not yet been rendered at the date of the insolvency proceedings. A debt may be either legal or equitable. An action for damages is not a debt unless and until judgment is signed for the claimant.9

The question of which is available in any given case is determined by the terms of the contract and the facts of any given situation: where a specific sum is due, the primary remedy for debt is available, but where such remuneration has not been specified, or has not yet become due, the employee is generally restricted to a claim in damages, and an enforcement of the employer’s secondary obligation only. An action for damages is distinct from a debt, and does not become a debt unless and until judgment is signed for the claimant.10 There is no doubt that a debt, as a classic example of a chose in action, would come within the category of property capable of being stolen for the purposes of the Theft Act. A damages claim is also a chose in action, and therefore potentially included within the section 4 definition in its own right. This does not, however, mean that a debt claim and a damages claim would have the same implications for any potential property offence. It is the nature of a debt claim that the subject matter of the victim’s property rights exists prior to the wrongful refusal to pay it. Incurring a debt (whilst not of course wrongful eo ipso) does generate property rights in the creditor, which then form the basis of any subsequent action for failure to pay that debt. Thus, in the employment context, the recognition of a debt gives the disappointed employee a pre-​existing right, of which the employer’s wrongful payment practices can deprive her. A damages claim on the other hand does not, by definition, arise as a phenomenon until after the relevant activity of the employer has taken place. Even then, the claim is not something of which the employer’s activity can deprive the victim: on the contrary, the employer’s activity is what generates the claim in the first place. For the purposes of the Theft Act, ‘appropriation’ is: Any assumption by a person of the rights of an owner . . . and this includes where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.11



9

Michael Bridge and others (eds), The Law of Personal Property (2nd edn, Sweet & Maxwell 2017) [4-​008]. Ex p Charles (1811) 14 East 197, 104 ER 576; Jones v Thompson (1858) E B & E 63, 120 ER 430. 11 Theft Act 1968, s 3(1). 10

138  Criminality at Work It is, therefore, impossible for the employer to appropriate the chose in action which is the damages claim. This is a highly significant distinction, and one which makes a debt claim, but not a damages claim, susceptible in principle to theft. Since both claims are based on the same harm to the employee, and since assigning them to one or other category can, as we will see, often be a matter of technical nuance, allowing the distinction to have such a potent practical effect on any criminal liability would seem undesirable at the very least. The underlying wrong is the same in both instances, yet the criminal law’s approach diverges without any obvious justification. The limits of this analysis have recently been tested before the Employment Appeal Tribunal (EAT). Under the Employment Rights Act 1996 (ERA), the Secretary of State has an obligation to pay any debts owed by employers to employees constituted by ‘arrears of pay’ in the event of the former’s insolvency. It provides as follows: If, on an application made to him in writing by an employee, the Secretary of State is satisfied that: (a) the employee’s employer has become insolvent, (b) the employee’s employment has been terminated, and (c) on the appropriate date the employee was entitled to be paid the whole or part of any debt to which this part applies, the Secretary of State shall, subject to section 186, pay the employee out of the National Insurance Fund the amount to which, in the opinion of the Secretary of State, the employee is entitled in respect of the debt.

To be granted a payment from the National Insurance Fund, the employee must be entitled to payment of the debt on ‘the appropriate date’. The appropriate date is defined by section 185 of the ERA and varies according to the nature of the debt claimed. For the purposes of arrears of pay, the appropriate date is the date on which the employer became insolvent. In Graysons Restaurants Ltd v Miss C Jones and others v Secretary of State for Business, Energy and Industrial Strategy,12 the EAT considered whether equal pay arrears, claimed under section 1 of the Equal Pay Act 1970, (now section 66 Equality Act 2010) but not yet determined or quantified, could count as arrears of pay, and so as a debt, for the purpose of section 182: I accept that an equal pay claim may result in a damages award as opposed to an ‘arrears of pay’ award. However, that is not to say that an employment tribunal simply has a choice to label what is clearly an award of arrears of pay as one of damages. The power to award damages is there to reflect a different sort of equal pay claim. The Equal Pay Act 1970 and the Equality Act 2010 are not concerned solely with ‘pay’ but with contractual terms. The protection applies to benefits in kind, which must, if there is to be a successful remedy, be converted to a monetary value. A successful claim of this type is likely to result in an award of damages, not an award of ‘arrears of pay’. It seems to me however, that as a matter of contractual analysis, rather than election, these proceedings are not concerned with damages claims but with arrears claims.



12

2017 WL 05892028.

Wage Theft as a Legal Concept  139 In any event, as already indicated section 184 does not require the amount for which the Secretary of State is liable to be classed as a ‘debt’ at common law. For example, the provision in section 184(1)(b) for ‘any amount which the employer is liable to pay the employee . . . for any failure of the employer to give the period of notice required by section 86(1)’ cannot necessarily be regarded as a ‘debt’ on common law principles, and may properly be seen as a damages claim. The Secretary of State is however expressly made liable to pay it in cases of insolvency under Part XII, and it is treated as a debt for these purposes. The focus is not on whether the claim is a ‘debt’ at common law but whether it is one for ‘arrears of pay’. If it is a claim for arrears of pay it falls within one of the categories of debt exhaustively defined by section 184(1) of the ERA and therefore is a debt claim within the meaning of section 182. It does not matter that there may also be the facility within the Equality Act and/​or the Equal Pay Act for a tribunal to make an award of damages in appropriate circumstances.13

This judgment demonstrates the extent to which the classification of any given claim, in terms of debt or damages, is dependent upon the specific factual context in which it happens to arise. This has long been true of the common law, and is a phenomenon entrenched by the statutory ‘attribution’ of the label of debt to claims of a certain nature, regardless of whether they would be regarded as debts by virtue of common law analysis. In Graysons itself, for example, the claimants had already performed work for their employer before the date of insolvency, and their work had been rated as equivalent to work done by their male comparators, although they had been paid less for doing it. Whilst those equal pay claims had yet to be formally quantified by the time of the Graysons hearing, the relevant work had been carried out, comparators applied, and the existence of a shortfall thereby identified. Since all that remained was for the calculations to be carried out (the results of which were already pre-​determined, as it were, albeit not yet known), the EAT deemed the equality pay which would in due course be quantified by those calculations to be ‘arrears of pay’ and therefore debts for the purposes of the ERA. By contrast, the right to be paid under a contract for work to be done in the future, whilst being a chose in action and assignable,14 does not amount to a debt, and remains the subject of an action in damages. Such a claim for damages would amount to ‘property’ susceptible to appropriation for the purposes of the Theft Act 1968, as in fact would a claim under the Equality Act for benefits in kind. As established above, however, the damages claim is one that is created, rather than appropriated, by the wrongful practices of employers, and so is not susceptible to the offence of theft. The precise location of the employer’s wrongful behaviour in this context seems not to align with the form of the current statutory offence of theft. In order for the chronological structure of poor employer payment practices to fit the framework for theft, the employee’s proprietary interest in the monies lawfully due would need to arise prior to those actions of the employer which amounted to the purported appropriation. The only way, therefore, in which the factual matrix of poor payment practices can be made to fit the theft model would be for the law to recognize an anterior property right of the employee in the employer’s funds, so that the latter’s failure to pay lawful wages would amount to an appropriation of those funds.

13

14

2017 WL 05892028 [37]–​[39]. Brice v Bannister (1878) 3 QBD 569.

140  Criminality at Work Such an anterior property right would exist were the unpaid monies in the hands of the employer to be subject to a trust in which the employee or employees had a beneficial interest. This proprietary right would clearly then precede the employer’s failure to transfer that money to the employee, thus potentially constituting an appropriation sufficient for the offence of theft.15 There are, however, a number of conceptual obstacles to such an analysis. A constructive trust would need, for English courts at least, to be institutional rather than remedial in nature: In England, the constructive trust has generally been regarded as a substantive institution rather than a remedy. The distinction between these two explanations of the trust is uncertain, owing to a lack of clear definition of the terms used. The commonly accepted distinction is that an institutional constructive trust arises independently of any court order, once the facts on which the creation of the trust depends have occurred. The function of the court is merely to declare its prior existence. A constructive trust would be remedial if it depended on an order of the court for its creation.16

This means that the proprietary right of the employee in the funds would need to have arisen by operation of law and not depend for its existence on discretionary imposition by the court. The recognition of an institutional constructive trust would require an employer, on receiving any money which might be earmarked as owing to an employee, to be regarded as retaining that money unconscionably, or as having received it as an agent of the employee in breach of fiduciary duty.17 The problem with the first of these is again temporal. In order for the employee’s proprietary right to precede any purported appropriation, the employer’s unconscionable retention would also need to occur in advance of that appropriation. Presuming the employer’s failure lawfully to pay her employees amounts to the appropriation, she would have to be deemed to have unconscionably retained the money she should so have paid before she failed to pay it over. In other words, she would need to be regarded as wrongfully keeping the money lawfully owed to her employees before it became due. This is hardly a tenable account of the situation. An alternative potential analysis, which does not come up against the unconscionability problem, would be to make an analogy with the vendor–​purchaser constructive trust, which arises on the conclusion of a valid, specifically enforceable sales contract,18 at which point the vendor becomes a trustee of the property in which the purchaser acquires a beneficial interest: [T]‌he moment you have a valid contract for sale the vendor becomes in equity a trustee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser, the vendor having a right to the purchase-​money, a charge or lien on the estate for the

15 Although, even then, there might remain an issue of lack of specificity where the employee’s claim is one for damages rather than for a defined sum. 16 John McGhee (ed), Snell’s Equity (33rd edn, Sweet & Maxwell 2014) [26-​014]. 17 Although there are other wrongs which can lead to the recognition of an institutional constructive trust, none of these would be applicable to the factual framework of poor employment payment practices. See Snell’s Equity (n 16) ch 26. 18 Applicable to all contracts for sale of land, but also applicable to contracts for the sale of personality, if specifically enforceable (such as the sale of shares in a private company). See Jacob Meagher, ‘(Re-​defining) the Trust of the Specifically Enforceable Contract of Sale–​–​the Vendor Purchaser Constructive Trust’ (2018) 24 Trusts & Trustees 266, 266.

Wage Theft as a Legal Concept  141 security of that purchase-​money, and a right to retain possession of the estate until the purchase-​money is paid, in the absence of express contract as to the time of delivering possession.19

There is no requirement of unconscionability here,20 just the formation of a contract with specific characteristics. Were a similar analysis to be applied to the employment context, the employer would, on the making of an employment contract, be deemed to become a trustee of any monies earmarked and segregated for the employee’s remuneration, and the employee would gain a beneficial interest in the same. Not only is such earmarking an unusual practice for employers to adopt, but this form of constructive trust will be recognized only ‘if and so far as’,21 and ‘if and so long as’,22 ‘a Court of Equity would under all the circumstances of the case grant specific performance of the contract’23.24 The obvious challenge to the making of any such analogy would be the fundamental and significant difference between contracts of employment and contracts for the sale of land. It is difficult to imagine two types of contract further removed from one another, particularly in remedial terms, than these two.25 Section 236 of the Trade Union and Labour Relations (Consolidation) Act 1992 states ‘no court shall issue an order compelling an employee to do any work or attend any place for the doing of any work’. 26 Whilst the position with regard to the specific performance of employers’ duties is not statutory, nor quite so definitive, the instances in which such a remedy has been granted are exceptional and uncommon.27 Specifically, in relation to the obligation of an employer to remunerate her employees, Lord Sumption has said: The traditional insistence of the courts that contracts of employment are not specifically enforceable has not, at least in the last half century, been dogmatically applied to every obligation under such contracts. It is important to distinguish between the core obligations which provided the original rationale of the rule, and what for want of a better word I will call collateral obligations . . . The core obligations are those which are fundamental to the continued existence of the employment relationship, essentially the obligation of the employee to work and the concomitant obligation of the employer to continue to employ and pay him. When courts say, as they always have, that a contract of employment is not specifically enforceable, they are almost always talking about obligations of this kind.28

19 Lysaght v Edwards (1876) 2 Ch D 499 MR, 506. Although, for the true nature of this trusteeship, see Sir George Jessel MR, at 506, and Meagher (n 18) 295. 20 Since it applies regardless of whether one, both, or neither of the parties wish to continue with the transaction. 21 Howard v Miller [1915] AC 318, 326 PC (BC). 22 Jerome v Kelly [2004] UKHL 25, [2004] 1 WLR 1409 [29] and [32]. 23 Howard v Miller (n 21) 326. See also Bevin v Smith [1994] 3 NZLR 648 (CA), 659–​60; Chi Liung Holdings Sdn Bhd v Attorney General [1994] 2 SLR 354 (CA) 364; Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57, (2003) 217 CLR 315 [53]; First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd (2011) 13 ITELR 599 (HKCA) [73]. 24 Peter Turner, ‘Understanding the Constructive Trust between Vendor and Purchaser’ (2012) 128 Law Quarterly Review 582, 582 (footnotes from original). 25 Trade Union and Labour Relations (Consolidation) Act 1992, s 236. 26 Although see Douglas Brodie, ‘Specific Performance and Employment Contracts’ (1998) 27 Industrial Law Journal 37, for an argument that the remedy of specific performance should not be so limited. 27 See Powell v London Borough of Brent [1988] ICR 176; Wadcock v London Borough of Brent [1990] IRLR 223; Keith Ewing, ‘Remedies for Breach of the Employment Contract’ [1993] CLJ 405; and, more recently, Ashfield v Royal National Theatre [2014] EWHC 1176, [2014] 4 All ER 238. 28 Geys v Société Générale, London Branch [2012] UKSC 63, [2013] 1 AC 523 [120] (emphasis added).

142  Criminality at Work The core obligation of the payment of wages is not an obvious subject for specific enforceability.29 Not only are damages likely to be deemed an adequate remedy for the employer’s wrong in such an instance,30 but the enforceability of the employer’s obligation to pay cannot be balanced by a corresponding enforceability of the employee’s obligation to work.31 The fact, therefore, that specific performance is the rule in relation to contracts for the sale of land, and the exception in relation to employment contracts, means that any purported analogy with the vendor–​purchaser constructive trust is unlikely to succeed. The fiduciary analysis is barely more promising. Although the question of whether an employee is regarded as a fiduciary of her employer’s property is one that has been the subject of a considerable amount of attention, both academic and judicial,32 the nature of the employer’s fiduciary status has not received a comparable assessment. Considering the history of the employment relationship, this is perhaps unsurprising: during the course of employment, there have always been many situations in which an employee has been given some form of responsibility for her employer’s property, so the question was bound to arise. By contrast, there have been far fewer situations in which an employer has had reason to have any sort of relationship with her employees’ property, meaning that this issue has attracted far lesser attention. A fiduciary has been described by Millet J as: [S]‌omeone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-​ minded loyalty of his fiduciary.33

Whilst the first part of this description, with its explicit reference to trust and confidence, presents an obvious analogy with the employment relationship, the second part, in referring to ‘single-​minded loyalty’ bears much less resemblance to the position of an employer in relation to her employee. The varied commercial objectives and incentives to which employers are subject are on one view fundamentally incompatible with the existence of such elevated standards of loyalty to those in their employ. The more balanced relationship characterized by the implied duty of trust and confidence is a far more authentic

29 Edwin Peel, Treitel on the Law of Contract (15th edn, Sweet & Maxwell 2015) [21-​016]–​[21-​050]. 30 Although for the countervailing argument, see Brodie, ‘Specific Performance and Employment Contracts’ (n 26) 43. 31 Peel (n 29) [21-​046]. 32 See, eg, Reading v Attorney General [1951] AC 507; Hospital Products v United States Surgical Corporation [1983] HCA 64; Neary v Dean of Westminster [1999] IRLR 288; Nottingham University v Fishel [2000] IRLR 471; David Cabrelli, ‘The Implied Duty of Mutual Trust and Confidence: An Emerging Overarching Principle?’ (2005) 34(4) Industrial Law Journal 284; James Edelman, ‘When do Fiduciary Obligations Arise?’ (2010) 126 Law Quarterly Review 302. See also Douglas Brodie, ‘The Employment Relationship and Fiduciary Obligations’ (2012) 16 Edinburgh Law Review 198, in which he takes the view that the employee subject to the implied duty of trust and confidence cannot thereby be a fiduciary in relation to her employer because the relationship is reciprocal in nature. Given, however, that Brodie is considering the question from this perspective, it is perhaps less surprising that he arrives at this conclusion, particularly given that his argument relies to some extent on the lack of vulnerability on the part of the employer. 33 Bristol & West Building Society v Mothew [1996] EWCA Civ 553.

Wage Theft as a Legal Concept  143 representation of the employment matrix.34 Recently, Murray has given this very question detailed consideration:35 [T]‌he contract of employment does not place an obligation of loyalty on the employer: there is no contractual equivalent for the employer of the employee’s contractual duty of fidelity. The implied contractual term which requires both parties to a contract of employment not to act in a way that is likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee . . . does not perform this function . . . There is a misleading coincidence of language here—​the contractual term’s reference to a relationship of trust and confidence, and the language of equity about relationships of trust and confidence that give rise to fiduciary obligations. In fact, the two concepts are distinct.36

Ultimately, however, Murray concludes that The engagement of labour . . . necessarily involves a relationship of trust and confidence requiring the employing entity to place the interests of the worker above their own within a particular narrow sphere. This sphere has been defined as the bundle of assets inherent in the employee to which the employer necessarily gains complete access . . . Just as equity continues to deter inappropriate misuse of access to the employer’s business interests by the employee . . . existing principles of law require that a fiduciary duty be imputed to the employer in respect of the employee’s capacity to engage in future economic activity.37

It remains to be seen whether the courts would agree with Murray’s argument. Her reference to the particular power dynamic between employer and employee has the most potential persuasive force. It was a point made earlier by Brodie when he was making the rather different argument that employees should not be regarded as fiduciaries of their employers’ interests: Over the last 30  years the judicial view of the nature of the employment contract has changed and, as a result, there have been significant changes to the content of the contract. Traditionally the employment contract would have been viewed as commercial in nature and therefore giving rise to a relationship which was not fiduciary: ‘fiduciary obligations are seldom present in dealings of experienced businessmen of similar bargaining strength acting at arm’s length’. Now we view the employment relationship differently; the common law no longer disregards the imbalance of power that is the hallmark of employment relations. In Slaight Communications v Ron Davidson the Canadian Supreme Court endorsed the following passage from Kahn-​Freund’s seminal work, Labour and the Law: ‘The relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power’. In a similar vein in Malik v BCCI it was said that: ‘An employment contract creates a close personal relationship, where there is often a disparity of power between the parties. Frequently the employee is vulnerable’. Recognition of the power imbalance and 34 Mark Freedland, The Personal Employment Contract (OUP 2003) 177. 35 Jill Murray, ‘Conceptualizing the Employer as Fiduciary: Mission Impossible?’ in Alan Bogg and others (eds), The Autonomy of Labour Law (Hart 2015). 36 ibid 347. 37 ibid 365.

144  Criminality at Work consequent vulnerability in employment relations is important in the current context and, in my opinion, makes it highly improbable that the employment relationship will move into the world of fiduciary relations. Fiduciary obligations exist to protect the vulnerable. In her influential judgment (though in fact dissenting) in Frame v Smith Wilson J stated that relationships in which a fiduciary obligation have been imposed possess three general characteristics; one of which is that the beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. Vulnerability of this nature will often be present in a fiduciary relationship but viewing the employer as being at the mercy of the employee seems counterintuitive. Can it really be said that the employer is vulnerable?38

This recognition of the power imbalance between employers and employees is of course a reason for recognizing an employer as a fiduciary in relation to her employees’ property, as opposed to the converse situation discussed by Brodie. Even were it to succeed in that context, however, there is a further obstacle to the constructive trust analysis. The likely absence of a defined fund from which such monies are to be paid means that the trust device is unlikely to be of much assistance to many unpaid and underpaid employees. In order for a trust to arise, there needs to be sufficiently certain subject matter on which it can be imposed. In situations involving the poor employment practices outlined here, this would require the monies due to the employees to be identified at least to the extent of being a specific proportion of a particular fund, from which the employer was bound to pay the employee.39 Whilst a particular fund of this nature could come into existence in the form of a ‘tronc’ or pool of tips,40 and the failure of employers properly to distribute such gratuities is another practice often referred to as being an instance of wage theft, it is clear that tips are not classed as wages, at least for the purposes of the National Minimum Wage Regulations 1999.41 In Revenue and Customs Commissioners v Annabel's (Berkeley Square) Ltd,42 Rimer LJ described the proprietary implications of a tronc, administered by a third party troncmaster43 thus: upon payment to the troncmaster, the money becomes held by him upon trust for the employees, because that is to attribute a legal interpretation to the arrangement that reflects a realistic business analysis of it; although I regard it as artificial to add the suggested secondary trust since I can envisage no circumstances in which the money so paid would not be enforceably distributable between the employees. If, however, any remote circumstances were to arise in which there could be no such distribution, there would no doubt then be a resulting trust in favour of the employer. But that remote possibility does not mean that, at the point of payment to the troncmaster, the employer retains any relevant beneficial interest in the money. At that point the money becomes instead held by the troncmaster 38 Brodie, ‘The Employment Relationship and Fiduciary Obligations’ (n 32) 208. 39 See Snell’s Equity (n 16) [22-​016]–​[22-​020]. 40 This is a common means of dealing with gratuities–​–​tips are pooled and segregated into the fund or tronc, and then entrusted to an administrator or troncmaster, who distributes them according to an agreed set or rules as to entitlement. 41 Revenue and Customs Commissioners v Annabel's (Berkeley Square) Ltd and others [2009] EWCA Civ 361, [2009] 4 All ER 55. 42 ibid. 43 This is usually an employee, such as a wages clerk or clerical assistant.

Wage Theft as a Legal Concept  145 upon a discretionary trust for the employees; and each of the latter could, in default of the due execution of the trust, sue for such execution. The beneficial entitlement to the money is, pending distribution, in the employees; but until the money is actually paid to them by the troncmaster, none can claim to have been paid.44

On facts such as these, therefore, the employees for whom the funds in the tronc were intended would have something which could form the subject matter of a theft. By the same arrangement, however, the employer also loses the responsibility to pay the tronc monies out, since that falls to the troncmaster. As a result, any appropriation by the employer would require active removal from the tronc, as opposed to an omission to administer it correctly. The troncmaster, on the other hand, could, by failing to pay out of the tronc according to the agreed rules,45 thereby appropriate the monies in which the employees have a collective beneficial interest. If done dishonestly, and with the intention permanently to deprive the employees of it, a potential theft arises. Whilst these actions of both the troncmaster and the employer are conceivable and not perhaps unlikely, they are not normally referred to as instances of wage theft, since their performance is not necessarily facilitated by the employment relationship, and they do not (at least technically) involve an interference with wages. It could be argued that the exclusion of tips and gratuities from the definition of wages for the purposes of minimum wage legislation is a technical nicety, amounting to an attempt by the courts to safeguard, rather than to reduce, the entitlement of employees. It could then follow from this that such an exclusory device should not be used in a different context if its effect thereby is to deny employees a means of protection. Were such an argument to succeed, any action of an employer which required a troncmaster to make any deductions from the tronc prior to its distribution (such as the imposition of fee to cover its administration) could be regarded as an appropriation of ‘wages’. In R v Darroux,46 however, the Court of Appeal distinguished between a defendant who directly controlled the assets alleged to be the subject of theft and one whose actions were merely causally operative in reducing their value. The former set of facts was held to fit the theft framework, whilst the latter was a ‘paradigm example of fraud by false representation’,47 lacking as it did any assumption of the rights of an owner, and should therefore have been charged as such. This analysis precludes the application of theft to any interference by employers with a tronc, since, as we have seen, they lack the requisite element of direct control. The same analysis also excludes any form of ‘truck’ from the remit of theft, since the effect of that practice, in compelling the expenditure of wages in a particular way, is a causal reduction in the money which employees ultimately have at their disposal, rather than a direct action in relation to it. In a broader sense, the Court’s response to the factual matrix in Darroux suggests that charging employers engaged in wrongful payment practices with theft puts the focus of the action on what the employer has gained from her actions, rather than with the essence of what makes her behaviour wrongful. One of the undesirable consequences of this it that a successful charge of theft depends on the employer having made a gain or profit from such 44 Revenue and Customs Commissioners v Annabel's (Berkeley Square) Ltd (n 41)[39]. 45 In Annabel’s, the allocation was done according to a points-​based system, worked out on the basis of relative lengths of service–​–​ibid [14] (Rimer LJ). 46 [2018] EWCA Crim 1009, [2018] 3 WLR 911. I would like to thank Nicholas J McBride for drawing my attention to this decision. 47 ibid [2]‌(Davis LJ).

146  Criminality at Work wrongdoing, since without this, there is nothing on which a purported appropriation can bite. It is not obvious why a dishonest but commercially successful employer should be punished, whilst an equally dishonest but more hapless or less able defendant should escape censure for the same behaviour. It is clear, therefore, that, from a criminal law perspective at least, the shape and tenor of the offence of theft is not the most natural fit with the wrong of exploitative payment practice, or with its consequent harms. The offence of fraud, as suggested by the Court in Darroux, is a more appropriate paradigm.

E. Wage Fraud Under the Fraud Act 2006, fraud is a single substantive offence, which can be committed in three different ways: by false representation; by failing to disclose information; and by abuse of position. The offence is committed even in the absence of the defendant’s gain, the victim’s loss, or even the victim’s deception; all that is required is that the defendant commit the actus reus of the offence dishonestly and with the intention thereby of causing a loss or of making a gain. This is significant for current purposes because it will often be the case, in situations involving sharp employers and vulnerable individuals, that the latter will not in fact be deceived by anything employers have said to them regarding their prospects of pay and conditions. Rather, the vulnerability of the position of such individuals, and the inequality of bargaining power in the relationship between them and their employers (as well as in the absolute sense) means that they are likely to enter into exploitative contracts, despite being aware of their unlawful nature. This should not dilute the employer’s culpability for creating and maintaining such unlawful arrangements for their own gain. Of the three ways in which fraud can be committed, the means of abuse of position, set out under section 4 of the Fraud Act 2006, would seem best to fit the ‘wage theft’ scenario. Whilst it is not inconceivable that an employer might in some factual contexts have a duty to disclose certain information, or not to make false representations, the description of an employer as being in a position in which she is expected not to act against the financial interests of another person is the most universally applicable of the three statutory categories of fraud to the relationships examined here. Section 4: Fraud by abuse of position (1) A person is in breach of this section if he: (a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, (b) dishonestly abuses that position, and (c) intends, by means of abuse of that position: (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to risk of loss (2) A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.48



48

Fraud Act 2006.

Wage Theft as a Legal Concept  147 Some idea of what is required in terms of the ‘position’ occupied by the defendant can be gleaned from the Law Commission report from which the Act derives: The necessary relationship will be present between trustee and beneficiary, director and company, professional person and client, agent and principal, employee and employer, or between partners . . . In nearly all cases where it arises, it will be recognized by the civil law as importing fiduciary duties, and any relationship that is so recognized will suffice. We see no reason, however, why the existence of such duties should be essential.49

This lends weight to the argument that wage fraud might in this context be a more intuitively appropriate term to use than wage theft. The former offence, it might be said, is better at criminalizing the essence of the wrong in terms of unscrupulous employment and payment practices: the exploitative actions of the employer, rather than the removal of something which once belonged to the employee. One reason why the Fraud Act offences might work well here is their inchoate nature, in that it does not matter that the victim was not in fact deceived. A common problem for those in a very weak employment bargaining position is not that they are deceived by employer promises, but that they have no choice about the terms they accept. It is the exploitation of this set of circumstances which characterizes the employer’s wrong in this context, and which would be accommodated by the offence of fraud under the 2006 Act. Section 4(2) also explicitly includes omissions as well as acts, meaning that the failure to pay is far more easily accommodated here than it would be by the requirement of an active appropriation under theft. Fraud requires dishonesty and an intention to gain or to cause loss or risk of loss in money or property. Gain and loss are defined in the following way: Section 5: ‘Gain’ and ‘loss’ (1) The references to gain and loss in sections 2 to 4 are to be read in accordance with this section. (2) ‘Gain’ and ‘loss’: (a) extend only to gain or loss in money or other property; (b) include any such gain or loss whether temporary or permanent; and ‘property’ means any property whether real or personal (including things in action and other intangible property). (3) ‘Gain’ includes a gain by keeping what one has, as well as a gain by getting what one does not have. (4) ‘Loss’ includes a loss by not getting what one might get, as well as a loss by parting with what one has.

Subsections 3 and 4 provide a broad definition; one which fairly easily accommodates both the type of loss and the type of gain seen in a ‘wage theft’ situation. Whilst an employer will often gain in the sense of making greater margins of profit by paying her employees less money than she lawfully should, she will always gain in the sense of keeping for herself the



49

Law Commission, Report on Fraud (Law Comm 276, 2002) [738].

148  Criminality at Work difference between what she should pay those workers and what she does in fact pay them. As far as the worker’s loss is concerned, subsection 4 is comprehensive; covering both the shortfall in lawful monies due, as well as any instances of mandated payment for essential work items, such as uniform or equipment. The intention element of the fraud offences need only be of the non-​core Woollin variety,50 meaning that a defendant will be deemed to have intended an outcome where she is certain or virtually certain that a particular consequence will result from her actions. In employment practice terms, this means that an employer who promises a particular level of payment to a worker, knowing that her ability to pay that sum depends upon a particular set of receipts or stream of income that are very unlikely to materialize, will be guilty of fraud. The inchoate mode of the offence means that she does not have to gain anything so long as she intended (in at least the Woollin sense) to gain by so doing: an employer cannot therefore claim that the failure to make a profit means that she cannot be guilty of wage fraud. Like theft, much of the effect of the fraud offences will be determined by the dishonesty element and, consequently, by the state of the employer’s mind. Since the Supreme Court decision in Ivey v Genting Casinos,51 a jury deciding if a particular course of conduct is dishonest will be asked to consider whether the conduct in question would be regarded as dishonest by the standard of the ordinary honest person, but in the light of the facts known or believed by the defendant. It is no longer necessary for the defendant subjectively to believe that her conduct was dishonest according to those standards.52 As Virgo has pointed out, Ivey has led to a ‘dissonance between the objective test of dishonesty and the subjective test of recklessness’ which he regards as having particularly unfortunate implications for the offence of theft. Virgo’s specific issue with this, however, arises from the already expanded remit of theft, meaning that the offence can be committed in the absence of an adverse interference with civil law property rights.53 This, combined with an objective test of dishonesty, risks criminalizing that which might not properly be regarded as the concern of the criminal law. Although appropriation is not relevant to fraud, the question remains whether an employer who abuses his position in relation to an employee, and does so in a way which an ordinary honest person would regard as dishonest but he himself does not, should be subjected to the scrutiny and possible punishment of the criminal law. The answer to this question depends of course on the relative functions and objectives attributed to each sphere of the law; accounts of which are neither unanimous nor static. Much of the analysis above has been conducted from the perspective of the civil law’s consequential effect on the criminal law. Traditionally, this has been the direction of conceptual travel: [D]‌istributive factors are not the concern of the criminal law, since it is not for the criminal law to decide when property rights exist. Rather, property offences exist primarily to reinforce and protect those rights once recognized by the civil law. Indirectly, therefore, 50 AP Simester and others, Simester & Sullivan’s Criminal Law:  Theory and Doctrine (6th edn, Bloomsbury 2016) 626. 51 [2017] UKSC 67, [2018] AC 391. 52 This had been the second limb of the test in R v Ghosh [1982] QB 1053, overruled by the Supreme Court in Ivey (n 51). 53 In R v Hinks [2001] 2 AC 241, the House of Lords upheld the conviction of a defendant for theft where the appropriation required by the criminal law was constituted by the receipt of a gift of indefeasible title at civil law. In other words, the defendant received valid title to property transferred to her voluntarily by her victim, but was nonetheless convicted of stealing it.

Wage Theft as a Legal Concept  149 property offences are not merely a means to protect individuals’ autonomous rights over property, but also a tool for reinforcing political decisions about the distribution of scarce resources in society. Prima facie rules of property arise in the civil law for a variety of underlying reasons. Yet the criminal law does not look behind the prima facie rules. It takes ownership, and its facets, as an axiom.54

Recently, however, Farmer has suggested that there has been a diversion of such thinking: [T]‌he criminal law is pulling away from definitions of property in the civil law. It is not always concerned with the precise nature of property rights or the formal legality of contracts but with the permissibility of modes of acquisition. As a consequence, civil law does not necessarily define a boundary or limit to the scope of the criminal law, as conduct which is judged to be fraudulent or dishonest or exploitative runs the risk of falling foul of the criminal law irrespective of the status of the transaction in civil law. Second, the aims of the criminal law are no longer about protecting property as such, or protecting property rights as defined in the civil law; they are protecting the interests of the vulnerable against conduct which poses a threat to the security of property and the securing of confidence in institutions such as the market in which property is transferred. This is not necessarily driven by actual harm to actual victims, but by the risk of harm. The point here is not only that such conduct is inchoate—​or even ‘pre-​inchoate’—​it is that harms are conceived in relation to an abstract class of victims (the vulnerable) and to an abstract conception of a system of property rights. Third, it is arguable this area is now shaped by a kind of ‘public responsibility’ consisting in the need to show respect for the property interests of others. This is less a sense of subjective awareness of particular outcomes (and so differs in a strict sense from Fletcher’s idea of subjective liability) than the responsibility not to act towards the property of others in a way which others (or the criminal law) would regard as dishonest or fraudulent or which might undermine trust in the security of property. Overall this contributes to a sense that this area of the law is changing in a way which increasingly pulls it away from its eighteenth century roots, protecting different kinds of interests in different kinds of property. Indeed, the inexorable rise of the concept of dishonesty has led certain commentators to identify the area as that of ‘crimes of dishonesty’ rather than property. Not only does this shift the focus of the law, but it also makes it potentially limitless as there is little or no reason why all dishonest contracts or business dealings should not be subject to the criminal law; and indeed that criminal law remedies may be available even where there is no possibility of a civil remedy.55

The time might well be ripe, therefore, for the criminal law to play a part in protecting vulnerable employees from behaviour that would previously have fallen outside of its remit. If Farmer’s argument is accepted, such an extension would be justified by the need to safeguard the institutional integrity of property, and of the labour market. The presence of criminal sanctions would undoubtedly do much to mitigate the fact that, for many vulnerable employees, civil action is simply not a viable option, in terms of financial resources, knowledge, capacity, or awareness. For those not convinced by this argument, and to whom

54 55

Simester & Sullivan’s Criminal Law (n 50) 493. Lindsay Farmer, Making the Modern Criminal Law: Criminalization and Civil Order (OUP 2016) 223.

150  Criminality at Work the alignment of poor payment practices with the stigmatic statutory offence of fraud would seem to be overstepping the mark in terms of both sanction and reputational consequence, the middle ground could be covered by a bespoke statutory offence which defined its own terms and outcomes, such as the one in force in Canada from 1935 to 1955.56 In evaluating the short lifespan of this particular statutory initiative, Tucker concludes: Perhaps the lesson of history for activists is that the invocation of the symbolic image of criminal law is more powerful than its actual application against employers. As a result, current wage theft campaigns are not focused on criminalizing employer wage violations, but rather on changing public perceptions of the seriousness of the problem in order to pressure provincial governments to better enforce regulatory laws. Whether this strategy is more successful than making wage theft a crime remains to be seen.57

The social, political, and economic backdrop to the early part of the twenty-​first century, however, is far removed from the one against which the Canadian experience occurred. As Farmer has suggested, the inclination to protect individual property rights from interference by those in a position to abuse an imbalance in power is currently in the ascendant. This should bode well for any contemporary attempt to formulate a statutory means of regulating employer payment practices. In the meantime, however, and for the reasons already rehearsed, dealing with wrongs of this nature is a job better suited to the offence of fraud than to the offence of theft.

56 See Eric Tucker, ‘When Wage Theft Was a Crime in Canada, 1935–​1955: The Challenge of Using the Master’s Tools Against the Master’ (2017) 54 Osgoode Hall Law Journal 933. Although, as Tucker notes, only one employer was prosecuted during the twenty years of this offence being in force. 57 ibid 957.

8

The Criminalization of Workplace Harassment and Abuse An Over-​Personalized Wrong? Alan Bogg and Mark Freedland

A.  Introduction The wrong of harassment and bullying in the workplace has attracted intense public attention in the wake of high-​profile revelations of widespread abusive practices in the entertainment and media sectors. This exposure of abusive practices, hitherto shrouded in secrecy and silence, have tended to present this wrong in highly personalized terms. This personalized framing has fitted popular narratives of harassment, which have been constructed around the very famous protagonists alleged to have engaged in multiple forms of egregious abuse. The seriousness of the issue has led to widespread calls for the increased use of criminal law to punish the perpetrators of harassment and abuse severely. There is already a significant body of law regulating workplace harassment, and some of that is based in the criminal law. We focus here on the Protection from Harassment Act 1997 (PHA), which makes provision for criminal and civil liability in respect of harassment. We argue that there has been a ‘dragging’ effect which the present form of criminalization of workplace harassment has had upon the general regulation of workplace harassment and bullying (section B); secondly, we put forward a particular notion of criminalization as over-​personalization which may help to explain that negative or dragging effect (section C); thirdly, we consider some recent reform proposals in the International Labour Organization (ILO) and the House of Commons Select Committee on Women and Equalities. These engagements suggest a different possible approach to the criminalization of workplace harassment and bullying which avoid those negative effects. This is based upon a model of employer safeguarding duties, which adopts a more structural perspective on harassment and so avoids some of the limitations of personalized criminalization under the PHA (section D); finally, we consider the desirable shape of criminalization in the light of human dignity, a value that has an architectonic role in harassment law. We suggest that the principle of human dignity supports: (i) the criminalization of employer safeguarding duties; (ii) maintaining and supporting the opportunities for individual workers to seek redress for rights-​violations in the ordinary courts; (iii) dispensing with enquiries into victim consent in liability for workplace abuse (section E). In the conclusion, we propose a new area for research, ‘bargaining in the shadow of the criminal law’, to examine ways in which trade unions can be integrated more deeply into the criminal enforcement process. Alan Bogg and Mark Freedland, The Criminalization of Workplace Harassment and Abuse In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.008

152  Criminality at Work

B.  The Negative Effect of the Criminalization of Workplace Harassment in its Present Form The main part of our argument therefore begins with the claim that the present form of criminalization of workplace harassment has had a negative or dragging effect upon the general regulation of workplace harassment and bullying. We take as our starting point for this contention Lizzie Barmes’ magisterial analysis, both doctrinal and empirical, of the whole body of law concerning workplace harassment and bullying, which is presented in her monograph on Bullying and Behavioural Conflict at Work.1 In that work Barmes surveys the extensive apparatus of individual employment rights law which bears upon workplace harassment and bullying and indeed upon what she designates as a broad category of ‘behavioural conflict at work’. This elaborate juridical apparatus consists of elements of the statute law of unfair dismissal and employment discrimination, and of the common law of contract and tort—​and it includes the provisions of the PHA which are our special concern in this chapter because it is they which bring about the criminalization of workplace harassment and bullying. Although Barmes clearly regards this body of law as impressive in its extent, she is by no means approving of its regulatory effectiveness in controlling workplace harassment and bullying. On the contrary, the ‘central finding’ of her study is that ‘individual labour and equality rights, as currently legislated, implemented, and enforced in the UK, overall enhance the status quo by supporting traditional workplace hierarchy and marginalizing more plural, collective ways of being’.2 For her, the sheer elaborateness of this body of law constrains its practical impact upon workplace harassment and bullying; and in the course of making out that argument she refers quite extensively to the counter-​productive complexities of the PH—​that being the legislation which set up a particular combination of and interplay between civil and criminal liability for harassment.3 Although originally primarily aimed at the particular phenomenon of ‘stalking’,4 it has been interpreted as applying to various kinds of workplace behaviour of an equivalent seriousness and impact.5 1 Lizzie Barmes, Bullying and Behavioural Conflict at Work: the Duality of Individual Rights (OUP 2015), reviewed by Alan Bogg (2017) ‘Lizzie Barmes: Bullying and Behavioural Conflict at Work: The Duality of Individual Rights’ 44 Journal of Law and Society 702–​08. 2 ibid 1. 3 The crucial provisions of the Act are: Section 1: Prohibition of harassment. (1) A person must not pursue a course of conduct—​ (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.  . . .  Section 2: Offence of harassment. (1) A person who pursues a course of conduct in breach of section 1(1) . . . is guilty of an offence. (2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine, . . . or both.  . . .  Section 3: Civil remedy. (1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question. (2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment. 4 Lord Mackay, introducing the Bill on its Second Reading in the House of Lords, HL Deb 24 January 1997, vol 577, cols 917–​43, at col 917, referred in particular to ‘stalking, racial harassment, or anti-​social behaviour between neighbours’. 5 See Barmes (n 1) 89–​92.

The Criminalization of Harassment and Abuse  153 Our argument, specifically focusing upon the effect of the criminalization of workplace harassment by the PHA, suggests that there is a particular problem here which goes beyond the general concerns about the complexity of this legislation. It exemplifies Barmes’ worries about the working of an individual rights system and culture in the employment sphere. Her survey of the working of the PHA in the employment sphere suggests that the criminal offence of harassment has not been frequently prosecuted in that sphere, and that the Act’s provision for civil liability has been of greater practical significance. However, in the development and interpretation of the civil liability provisions, the courts have been keenly aware that these civil and criminal liabilities are tightly yoked together, forming a composite enforcement mechanism for the Act’s prohibition of harassment. In that situation, Barmes’ survey discloses various instances in which the courts’ awareness of the criminal dimension of workplace harassment has tended to constrain their approach to the more frequently invoked civil liability provisions. This dragging effect of the criminalization of workplace harassment upon the civil deployment of the PHA can be seen in a set of cases starting with and stemming from the leading case concerning employers’ vicarious civil liability for harassment of workers by members of their own staff, that of Majrowski v Guy’s and St Thomas’s NHS Trust.6 The House of Lords judges were decidedly reluctant to concede the principle of vicarious civil liability for harassment in the employment context; they clearly felt that they were opening the floodgates to a spate of possibly unmeritorious claims, and they were anxious to impose a restrictive approach upon the adjudication of such claims. In order to sustain and justify this restrictive approach, Lord Nicholls famously invoked the need for caution arising from the parallel co-​existence of civil and criminal liability: Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2.7

Barmes’ analysis goes on to show how the idea of this dragging effect of the criminal liability upon the civil liability was to find considerable favour with the courts, in an ascent which reached its zenith in the Court of Appeal in Sunderland CC v Conn,8 where all the three judges were agreed that workplace harassment should attract civil liability only where it was ‘of such gravity as to justify the sanctions of the criminal law’9 or ‘of an order that would sustain criminal liability and not merely civil liability on some other register’10 and where one of them expostulated: [W]‌hat on earth is the world coming to if conduct of the kind that occurred in the third incident can be thought to be an act of harassment, potentially liable to giving rise to criminal proceedings punishable with imprisonment for a term not exceeding six months, and to a claim for damages for anxiety and financial loss?11

6

[2006] UKHL 34, [2007] 1 AC 224. ibid [30]. [2007] EWCA Civ 1492, [2007] 11 WLUK 121. 9 ibid [12] (Gage LJ). 10 ibid [18] (Buxton LJ). 11 ibid [19] (Ward LJ) (emphasis added). 7 8

154  Criminality at Work Although, as she demonstrates,12 this dragging effect was at least somewhat mitigated by the Court of Appeal in Veakins v Keir Islington Ltd,13 it has nevertheless retained significant traction upon adjudications of this kind. That, we wish to argue, is because the courts were responding to an underlying intuition about the way in which criminal liability and civil liability had been interrelated by the PHA, and the specific role of criminalization in that legislative scheme. In fact, the central issue in Majrowski, the employer’s vicarious liability for the employee’s statutory tort of harassment, exposed in an acute form the underlying judicial concern with the personal nature of the wrong. Lord Nicholls described the wrong of harassment as comprising ‘conduct of an intensely personal character between two individuals’.14 He did not regard this as an insuperable difficulty for the employer’s vicarious liability. Indeed, he identified other civil wrongs such as assault and battery which also attracted vicarious liability.15 Each of these civil wrongs could attract criminal liability, and each could also be described as ‘intensely personal’ in nature. Indeed, their personal character may have made them particularly apt for criminalization. By contrast, although Lady Hale shared Lord Nicholls’ view of the ‘personal character’ of the harassment wrong, she was rather more reluctant to reach the conclusion that the Act included vicarious liability: The promoters of the Act might well have thought that this intense focus on the perpetrator and getting him to stop would not be helped, and might even be hindered, by making the employer vicariously liable. Vicarious liability . . . does not depend upon the employer having done anything wrong or even having broken any legal duty imposed upon him.16

Under the discrimination law framework, where there is no criminal liability for discrimination and harassment, the judicial approach to vicarious liability has been more strongly purposive, in contrast to the reluctant tenor of some of the judgments in Majrowski.17 There has been a significant expansion of vicarious liability in recent years, with some of those cases arising in the context of institutional sexual abuse.18 The specific reservations in Majrowksi about vicarious liability for statutory torts that are also crimes would likely be more muted today. Nevertheless, there are deeper puzzles about the interactions between criminal and civil liability that underlie Majrowski. These puzzles, which concern the personal nature of the wrong, remain highly pertinent. We identify three such issues. First, the criminal law is anchored in the fundamental value of individual autonomy and personalized responsibility. As Simester and Sullivan account for it, ‘in a liberal community, the concern with autonomy is fundamental. If the law is to acknowledge and respect individuals as independent members of society, then it must judge them according to their own actions, and not those of others.’19 This has significant ramifications for the structures of liability in crime and tort. In criminal law, vicarious liability and other forms of third-​party 12 Barmes (n 1) 155–​56. 13 [2009] EWCA Civ 1288, [2009] 12 WLUK 33. 14 Majrowski (n 6) [25] (Lord Nicholls). 15 ibid [26]. 16 ibid [68] (Lady Hale) (emphasis added). See also Lord Brown [81] and Lord Hope [43] on the personalized character of the harassment wrong and the resulting tensions with vicarious liability. 17 See, eg, Jones v Tower Boot Co Ltd [1997] 2 All ER 406, [1997] ICR 254. See now Equality Act 2010, s 109. 18 See, eg, Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 AC 1. 19 Andrew P Simester and others (eds), Simester and Sullivan’s Criminal Law (6th edn, Bloomsbury 2016) 15.

The Criminalization of Harassment and Abuse  155 liability (eg the liability of employers for the foreseeable harassment perpetrated by customers and service-​users against employees) should have no role. The paradigm forms of criminal liability would be either as principal or as secondary party in assisting or encouraging the primary wrong. In each case, criminal liability attaches to the individual’s own culpable acts rather than the attribution of liability for the wrongs of another. By contrast, vicarious liability and third-​party liability may have an extensive role in formulating legal responses to harassment as a statutory tort. Some of the difficulties in Majrowski may have stemmed from the integration of criminal and civil liability into a single statute based upon a common behavioural standard, and a normative spill-​over from the criminal law into the law of torts. There may well be advantages, particularly in terms of clarity, in reforming the law on workplace harassment through a single statute. However, even if reform is implemented in this way, there may be good reasons to develop different behavioural standards for the different purposes of criminal and civil liability.20 Furthermore, the principle of individual autonomy would justify distinctive structures of liability for the criminal and statutory tort variants of workplace harassment. The difficulty in Majrowski was that the existence of criminal liability cast a shadow over the development of vicarious liability for the tort. Secondly, the existence of concurrent criminal and civil liability for the same wrong raise complex issues, particularly with respect to the dignity of the victim. We shall explain this specific meaning of dignity in section E. The initiative in prosecuting crimes lies with the state and the victim occupies a more passive role in the criminal process.21 By contrast, in private law the normative power to seek redress in a public court lies with the right-​ holder.22 The overlap of criminal law and private law can create procedural difficulties, such as whether to suspend civil proceedings in circumstances where a criminal prosecution is being pursued in relation to the same wrong.23 Different regulatory regimes have adopted different approaches to this interaction. In the health and safety context, criminal liability now operates as the exclusive mechanism for addressing statutory health and safety breaches following the repeal of the civil right of action in section 61 of the Enterprise and Regulatory Reform Act 2013 (ERRA).24 In relation to assault and battery, section 45 of the Offences against the Person Act 1861 provides for civil proceedings to be barred for the same cause following a summary hearing in the magistrates’ courts. Any reform of harassment law must ensure that criminal and civil liability are aligned so as to ensure respect for the victim’s dignity. The structure of private law remedies, based on the right-​holder’s normative power to seek redress, is more sensitive to those dignity-​based concerns than the criminal law. This would rule out regulatory approaches that extinguish liability in private law, such as that recently adopted in health and safety law by ERRA, section 61.

20 For example, there appear to be differences between the definitional elements of battery as tort and battery as crime: see Paula Giliker, Tort (6th edn, Sweet & Maxwell 2017) 427. Such divergence may be justified by the different goals of criminal law and tort law. Divergences might also reflect the need to insist upon a more stringent normative threshold for criminalization, reserving the criminal law for the more serious forms of wrong. 21 Matthew Dyson and John Randall, ‘England’s Splendid Isolation’ in Matthew Dyson (ed), Comparing Tort and Crime: Learning from across and within Legal Systems (CUP 2015) 18, 58 22 Arthur Ripstein, Private Wrongs (Harvard University Press 2016) 271–​72. 23 Matthew Dyson, ‘The Timing of Tortious and Criminal Actions for the Same Wrong’ (2012) 71 Current Legal Problems 85. 24 Michael Ford, ‘The Criminalization of Health and Safety at Work’ in Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring (eds), Criminality at Work (OUP 2020) ­chapter 21.

156  Criminality at Work Thirdly, the preoccupation with the personal character of the harassment wrong obscures the possibility of other non-​personalized forms of liability for employers. There is some recognition of this dimension by Lord Nicholls in Majrowski when he acknowledged that ‘although the victim must be an individual, the perpetrator may be a corporate body’.25 However, this represents only a very modest departure from the personalized framing of the harassment wrong: the ‘corporate body’ is still being conceptualized as a ‘perpetrator’ of interpersonal violence on an individual victim. We think that this model of liability is too restrictive. It might be better to frame the employer’s duty as a safeguarding duty to maintain a healthy and dignified place of work. In this respect, it would have some similarities with the statutory duties that currently exist under health and safety legislation. This would also give a more structural perspective on the phenomenon of harassment. Acts of personalized harassment generally occur within a wider context of toxic organizational structures, norms and practices that create unacceptable psychosocial risks for workers. These risks are intensified in contexts of workplace precarity and insecurity, such as employment on zero-​ hours contracts.26 In its 2018 report Turning the tables: Ending Sexual Harassment at Work, the Equality and Human Rights Commission proposed the introduction of a mandatory duty on employers to take reasonable steps to protect workers from harassment and victimization in the workplace, as a basis for triggering changes in workplace culture.27 This form of corporate liability operates independently of the personal liability of individual harassers. It is thus distinct from vicarious, third-​party, and accessory liability, where the employer’s liability depends upon an act of interpersonal harassment. Liability is focused on the employer’s freestanding responsibility to maintain a workplace where workers are secure from violence and harassment and can work in circumstances of freedom and dignity. This statutory duty could form the basis for a new criminal offence, alongside the existing structures of criminal and civil liability focused on harassment as a personalized wrong.

C.  The Over-​personalization of Workplace Harassment as a Criminal Offence The argument of the previous section exposed a deep underlying issue about the way in which workplace harassment had been criminalized by the PHA. In that previous section, we were concerned with the incidental effect of that particular form of criminalization upon the interpretation and adjudication of parallel civil liability which that Act created. It is now necessary to consider the nature and aspect of this criminalization in and of itself. We contend that the PHA designed the offence of harassment as an essentially personal one, in a way which was not entirely suitable to its functioning in the workplace context. While this personalized conception was suitable for the social problem of stalking, a problem the

25 Majrowski (n 6) [19] (Lord Nicholls). 26 Laura Bates, ‘ “I Wasn’t Protected at All”: Why Women are Made Vulnerable by Zero-​hours Contracts’ The Guardian (19 March 2018) accessed 30 April 2019. 27 Equality and Human Rights Commission, ‘Turning the Tables:  Ending Sexual Harassment at Work’ (27 March 2018) 13 accessed 30 April 2019.

The Criminalization of Harassment and Abuse  157 legislation was designed to address, its application to the distinctive dynamics of workplace harassment has been highly problematic. In order thus to develop our argument, it will be helpful to look at the PHA from a regulatory perspective, following the analytical path taken by Nicola Lacey in her essay of 2004 on ‘Criminalization as Regulation’.28 That chapter sought to break down a divide which in her view had grown up between criminal lawyers and regulatory scholars, in that criminal lawyers were focusing on . . .  the traditional sphere of ‘real crime’—​roughly equating to those offences requiring proof of ‘mens rea’ or ‘fault’ while regulation scholars . . . have tended to focus their attention on . . . regulatory norms . . . ; they , conversely, have paid relatively little attention to the terrain of ‘real crime’, such as serious offences against property or the person . . . 29

She thereby invokes, in a modern guise, the traditional criminal lawyers’ distinction between ‘mala in se’ and ‘mala prohibita’, and justly argues that this distinction should not form a frontier between the territory of criminal law scholars and that of regulatory scholars. This analysis provides a vantage point from which to re-​examine section 2 of the PHA. On the one hand, the Act seems to fit within Nicola Lacey’s stereotype of ‘regulatory criminalization’; we might thus imagine that the 1997 Act was introducing new regulatory offences rather than creating ‘real crimes’. Indeed, at one point in her essay she almost seems to say as much: [T]‌here is a . . . vivid . . . sense in which regulatory criminal law, at least in Britain, is on the increase . . . In the last decade, substantial pieces of criminal legislation have averaged more than one a year in England and Wales . . . most of [this] legislation includes a scattergun array of new offences—​covering . . . newly perceived social problems ranging from overloud ‘raves’ through joy-​riding to harassment, paedophile offences, and international terrorism.30

Yet on closer examination, the legislator in fact created what has been understood and constructed by the courts as a new ‘real crime’. In the previous section of this chapter, we saw how strongly the courts had imputed that character of ‘real crime’ to the section 2 offence, and how that imputation had indirectly impacted on their approach to the construction of the civil liability for the statutory tort. One very important facet of this construction of the offence of harassment as a ‘real crime’ has been to understand it as a particularly personal offence—​truly, a new kind of offence against the person, the infliction of an unacceptable course of conduct upon one person by another person as a form of interpersonal violence. The interpretation of section 2 as it has operated in the context of the workplace, which we reviewed in the previous section, reveals a perception of it as being intensely and archetypally bound up with the personalities of a human perpetrator and a human victim and with the essentially interpersonal relations

28 Nicola Lacey, ‘Criminalization as Regulation: The Role of Criminal Law’ in Christine Parker and others (eds), Regulating Law (OUP 2004). 29 ibid 144–​45. 30 ibid 163 (emphasis added).

158  Criminality at Work between them. This might seem entirely obvious and uncontroversial within the paradigm of ‘stalking’ around which the offence was primarily constructed. How could the practice of ‘stalking’ be legally understood and legally encapsulated in any less personal way? However, in the different context of the criminalization of bullying and abusive behaviour in the workplace, the framing of harassment as an entirely personal offence might be regarded as not being a necessary choice, even as being an egregious one. This will become more apparent when the criminalization of workplace bullying and harassment is subjected to a regulatory rather than a doctrinal scrutiny—​when, in other words, we pursue the question of how well this ultimately personal characterization of the offence of harassment fulfils the regulatory purpose of the PHA and the regulatory needs of the workplace. Engaging in the that kind of scrutiny, we might well conclude the criminalization of workplace harassment by the 1997 Act has turned out to be in significant respects an over-​personalized one, disabling the Act from fulfilling its proper function in the workplace context. We can identify this over-​personalization more precisely by recognizing that it occurs in three aspects of the formulation of the offence of harassment under the 1997 Act: firstly in the conception of the perpetrator as an individual person, secondly in the conception of the victim as an equally individual person, and thirdly in the conception of the infliction of the harassment as a correspondingly individual course of conduct between them. As we saw in the previous section, the actual deployment of the criminal offence of harassment in the workplace context has apparently been very limited, but its conceptualization in this highly personalized way has clearly shaped and influenced the framing and handling of the associated civil liability; and it is very apparent from Barmes’ survey of the adjudication of the civil liability cases that they are handled in exactly that individualized fashion.31 There is a further and even more significant concern about the way in which the 1997 Act has personalized its conception of the perpetrator of the harassment, and hence in turn its conception of the conduct which amounts to harassment. In a way which might be necessary and appropriate to pin down the paradigm of ‘stalking’, around which the Act was originally constructed, the Act understands the perpetrator of harassment to be the human actor who is immediately engaged in the conduct which fulfils the definition of the offence of harassment. The problem is that, in the workplace context, this serves to marginalize or even to suppress an awareness of the institutional role of the employing organization in supporting organizational structures, norms, and practices that facilitate and enable the bullying or abusive behaviour. All this seems to us to indicate the existence of a deep-​seated regulatory problem about the over-​personalized criminalization of workplace harassment by the PHA. In the next section, we turn to consider how criminalization has been framed as a regulatory response to workplace harassment in recent reform proposals at the international and national levels. These incipient reform efforts are promising in moving beyond the limitations of the personalized wrong model in the PHA.



31

Barmes (n 1) 157.

The Criminalization of Harassment and Abuse  159

D. Reform Proposals and the Role of the Criminal Law 1.  Regulatory Activity at the International Labour Organization In 2015 the governing body of the ILO placed a standard-​setting item on the agenda of the 107th Session of the International Labour Conference (May–​June 2018) on ‘Violence against women and men in the world of work’. There was also an extensive report authored by Dr Jane Pilinger in 2017 on Violence and Harassment against Women and Men in the World of Work, which provided a comprehensive assessment of the law and trade union practices on violence and harassment at work across the world.32 The deliberations around a draft instrument revealed the reluctance of some member states to support a strong role for criminalization.33 Furthermore, the International Labour Office identified a diverse mix of current regulatory practices in responding to harassment and violence at work, ranging across labour law, discrimination law, criminal law, and health and safety law.34 While it took the view that criminal prohibitions ‘can be useful for extreme cases of violence and harassment’,35 the criminal law was unlikely to be sufficient. The procedural burdens of the criminal process, such as rules on burden of proof and witnesses, limited the effectiveness of the criminal law as a regulatory tool. It was better to ‘allow victims to seek a variety of remedies depending on the nature of the act, and the type of work relationship and conditions they are working under’.36 Following a consultation process and discussion at the International Labour Conference, there have now been enacted, at the ILO Centenary Conference in June 2019, a Convention and Recommendation Concerning the Elimination of Violence and Harassment in the World of Work.37 These instruments provide some interesting insights into the anticipated role of criminalization. While criminalization is accorded a potential regulatory role, the instruments are somewhat tentative on the utilization of criminal law as a form of labour regulation. This may reflect the caution towards criminalization expressed by some member states during the consultation process.38 Article 1 of the Convention sets out a broad and inclusive definition of ‘violence and harassment’ which . . . refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-​based violence and harassment . . . 32 Jane Pillinger, ‘Violence and Harassment Against Women and Men in the World of Work’ (International Labour Organization 2017) www.ilo.org/​actrav/​info/​pubs/​WCMS_​546645/​lang-​-​en/​index.htm accessed 30 April 2019. 33 International Labour Office, Ending Violence and Harassment in the World of Work: Report V (2) (ILC 107th Session 2018) (hereafter ILO, Report V(2)) 59  accessed 3 August 2019. 34 International Labour Office, Ending Violence and Harassment against Women and Men in the World of Work:  Report V (1) (ILC 107th Session 2018) (hereafter ILO, Report V(1)) 47  accessed 3 August 2019. 35 ibid 48. 36 ibid 48. 37 Violence and Harassment Convention, 2019 (No 190) and Violence and Harassment Recommendation, 2019 (No 206). 38 ILO, Report V(2) (n 33) 58–​59

160  Criminality at Work Furthermore, ‘worker’ includes ‘persons working irrespective of their contractual status, persons in training, including interns and apprentices, workers whose employment has been terminated, volunteers, jobseekers, and job applicants.’ The ‘core principles’ in Article 4 propose ‘an inclusive, integrated and gender-​responsive approach’ to regulation. This envisages a ‘comprehensive strategy’ which includes ‘sanctions’ and ‘ensuring access to remedies and support for victims’. The Recommendation provides further, in Point 2, that In adopting and implementing this integrated approach, Members should address violence and harassment in the world of work in labour and employment, occupational safety and health, equality and non-​discrimination law, and in criminal law, where appropriate.

Moreover, the two instruments accord a particular emphasis to a health and safety approach to harassment and violence. Article 9 of the Convention requires the adoption of laws ‘requiring employers to take appropriate steps commensurate with their degree of control to prevent violence and harassment in the world of work’. This includes, in particular taking steps to ensure, so far as is reasonably practicable: consultation with workers and their representatives, the adoption and implementation of a workplace policy on violence and harassment, and the integration of psychosocial risks into the management of workplace hazards. The Recommendation at Point 8 further stipulates that Particular attention should be paid to the hazards and risks that: (a) arise from working conditions and arrangements, work organization and human resource management, as appropriate; (b) involve third parties such as clients, customers, service providers, users, patients and members of the public; and (c) arise from discrimination, abuse of power relations, and gender, cultural and social norms that support violence and harassment.

Overall, the ILO instruments reflect a regulatory approach to criminalization. This is based on a concern with outcomes, such that the criminal law should be deployed where it makes a positive contribution to the elimination of harassment and violence in the workplace. In this respect, the instruments do not seem to differentiate between regulatory ­typologies. There is nothing distinctive about the criminal law as a regulatory approach, that would warrant special caution in its utilization. This may reflect a ‘labour law’ perspective on the criminal law, which focuses more on its effectiveness in securing decent work than concerns about whether criminalization is normatively justified. In the view of the International Labour Office, ‘the obligations placed on member States under the proposed Conclusions are broad enough to allow for flexibility in how various forms of violence and harassment are addressed, as long as this is effective’.39 Part IV of the Convention is concerned with ‘protection and prevention’ and part V of the Convention ‘enforcement and remedies’. The instruments are strongly influenced by a ‘health and safety’ model of labour rights. In our view, this would be accommodating of ‘corporate’ liability for employing entities, corresponding to a duty to mitigate the risks and hazards associated with ‘unequal power relations’ and ‘gender, cultural and social norms’. In this respect, the ILO approach could transcend the limitations of a personalized framing of harassment wrongs under the

39 ILO, Report V(2) (n 33) 24 (emphasis added).

The Criminalization of Harassment and Abuse  161 PHA, and lead to wider organizational and structural changes in the workplace. However, the ILO would appear to be agnostic on the question of whether this corporate duty should be enforced through criminal or civil law: that will depend upon an assessment of regulatory effectiveness There is also a strong emphasis on empowering the agency of victims to seek redress through the civil law and the ordinary courts. The ILO approach seems to preclude the displacement of civil law remedies by criminalization, and this would rule out the strategy of ‘deregulatory criminalization’ as seen in the domestic health and safety law context through ERRA, section 61. This is reflected particularly in Article 10 of the Convention, which requires ‘easy access to appropriate and effective remedies and safe, fair and effective reporting mechanisms’. The Recommendation further provides in Points 14–​17 for a range of effective remedies such as reinstatement, compensation for material and non-​material losses, and provisions on legal fees, specialized support and counselling, and legal advice. The recognition that harassment can be perpetrated by co-​workers, customers, and service-​users would also support different bases of liability, such as vicarious, third-​party, and accessory liability. We think that respect for personal autonomy would require that forms of imputed liability, such as vicarious and third-​party liability, be limited to civil wrongs. By contrast, accessory liability as an independent form of wrongdoing could apply to both civil and criminal wrongs. This complex framework of liability would necessitate both civil and criminal law norms in an integrated structure.

2.  Regulatory Activity in the House of Commons Women and Equalities Committee In 2018 the House of Commons Women and Equalities Committee published its report, ‘Sexual Harassment in the Workplace’.40 The report was prompted by the powerful mobilization through the #MeToo movement and the widespread publicity around harassment in the entertainment industry. In the words of the report, the inquiry was ‘a way to harness the momentum of #MeToo to produce practical recommendations for change’.41 The Select Committee adopted a narrower focus than the ILO, framing its proposals specifically around sexual harassment rather than a more general concern with harassment and violence at work. The report identified the range of existing legal measures to address sexual harassment in the workplace. This includes specific provisions under the Equality Act 2010.42 The Committee also noted the existence of criminal offences for more serious forms of sexual harassment, such as the PHA, various offences under the Sexual Offences Act 2003 and the Criminal Justice and Courts Act 2015.43 Despite these prohibitions in civil and criminal law, the Committee nevertheless identified sexual harassment as an endemic problem in UK

40 Women and Equalities Committee, Sexual Harassment in the Workplace:  Fifth Report of Session 2017–​19 (HC 2017–​19 725)  https://​publications.parliament.uk/​pa/​cm201719/​cmselect/​cmwomeq/​725/​725.pdf accessed 3 August 2019. This Committee is currently engaged in an inquiry into the use of non-​disclosure agreements (NDAs) in discrimination cases. 41 ibid 5. 42 Equality Act 2010, s 26. 43 WEC, Sexual Harassment (n 40) 5–​6.

162  Criminality at Work workplaces which required an urgent regulatory response.44 In contrast to the current ILO approach, which adopts a parsimonious approach to criminal sanctions, the criminal law occupies a more prominent role in the Select Committee’s reform proposals. It is configured around a regulatory approach to criminalization, assessing the utility of the criminal sanction as an instrument for securing behavioural change. This is reflected in two main features of its approach. First, the centerpiece of the Select Committee’s proposals is a mandatory duty on employers to take reasonable steps to protect workers from harassment and victimization in the workplace. This builds upon an earlier proposal to that effect by the Equality and Human Rights Commission. The Committee identified appropriate regulatory models for such a duty in the money-​laundering and personal data contexts, where regulators are able to impose a range of powerful civil and criminal sanctions for breaches, including unlimited fines and professional disqualification for individual offenders.45 According to the Committee, such a duty would alleviate the burden on individuals in tackling workplace harassment. It would also respond to the wider problems of organizational culture, social norms, and power structures that cannot be addressed effectively by personalized perpetrator liability. This duty would be supported by a code of practice providing clear guidance to employers on the steps needed to avoid liability. Like the ILO approach, this avoids the limitations of the personalized approach of the PHA. In contrast to the ILO approach, the Committee draws a much stronger connection between the employer duty and criminal sanctions. However, this link is justified from within the domain of regulation theory rather than the domain of criminal law and ‘real crime’. That is to say, the Committee is more preoccupied with the criminal sanction’s likely effectiveness in prompting organizational change, rather than the principled attribution of blame and censure to culpable wrongdoing. Secondly, the Committee’s proposed approach to the criminal–​civil law interface reveals a complex isomorphic interaction between these two bodies of law, with the criminal law reshaping the civil law in potentially productive ways. This provides an interesting contrast with the negative ‘drag’ effect of the criminal law on the civil law in the PHA. The Committee adopts a critical view of the individual enforcement paradigm. The legal process can be arduous, expensive, and traumatizing for individual complainants. These problems are exacerbated for the most precarious workers, who are also more likely to be exposed to sexual harassment. Concerns about legal costs, low compensation awards, and time limits on complaints compound these difficulties.46 We have already encountered a potential regulatory response to such problems, notably the technique of ‘deregulatory criminalization’ under health and safety law, channelling enforcement through an exclusive criminal law mechanism. The Committee avoids this crude and opportunistic strategy, and instead adopts what we term an isomorphic reform strategy. It is isomorphic because the individual civil enforcement paradigm is improved through the imitation of criminal law techniques. For example, the Committee recommends the use of special measures in court, such as a prohibition on defendant cross-​examination or complainant anonymity, imitating measures in the criminal justice system.47 At the remedial

44

ibid ch 1. ibid 12. 46 ibid  28–​33. 47 ibid 33. 45

The Criminalization of Harassment and Abuse  163 level, the Committee recommends the introduction of punitive damages for individual claims.48 It also proposes the reintroduction of powers to make wider recommendations to the employer in discrimination cases, so that individual litigation could prompt wider organizational changes to address ‘toxic organizational culture’.49 This would be convergent with the regulatory focus of the proposed employer duty to take reasonable steps to prevent harassment, enforced through the criminal law. Finally, there is extensive discussion of the misuse of non-​disclosure agreements (NDAs) in harassment cases, particularly in settlement agreements. In particular, the report addresses the inclusion of gagging clauses in NDAs which, though unenforceable, are intended to deter the complainant’s cooperation with public criminal law enforcement.50 To ensure that individual civil litigation does not subvert the criminal process and obstruct public efforts to address systemic organizational problems, the Committee also proposed the introduction of a new criminal offence where an employer or professional adviser propose ‘a confidentiality clause designed or intended to prevent or limit the making of a protected disclosure or disclosure of a criminal offence’.51 We think that the Committee’s isomorphic framing of the criminal–​civil interaction is extremely promising, although the prospects for extensive legislative action appear to be slim at the current time.52

E.  Justifying a Role for Criminalization in Harassment Wrongs: The Role of Human Dignity Dignity has an architectonic role in the law on harassment. The violation of dignity is identified as a core element of the civil wrong of harassment in section 26 of the Equality Act 2010. Often, dignity is used as a basis for framing the character of the wrongs and harms of workplace harassment. For example, Rosa Ehrenreich Brooks introduces the idea of sexual harassment as a ‘dignitary harm’: [B]‌y humiliating, intimidating, tormenting, pressuring, or mocking individuals in their places of work, sexual harassment is an insult to the dignity, autonomy, and personhood of each victim; such harassment violates each individual’s right to be treated with the respect and concern that is due to her as a full and equally valuable human being.53

Or consider Elizabeth Anderson’s account of harassment as a ‘dignitary injury’: ‘On the dignity account, what is wrong about sexual harassment is that it coerces, threatens, torments, intimidates, insults, humiliates, and degrades its victims. These are dignitary injuries, harms to an individual’s standing as a person.’54 48 ibid 30. 49 ibid 36. 50 ibid 41. 51 ibid 45. 52 See Women and Equalities Committee, Sexual Harassment in the Workplace:  Government Response to the Committee’s Fifth Report of Session 2017–​19 (HC 2017-​19 1801)  accessed 3 August  2019. 53 Rosa Ehrenreich Brooks, ‘Dignity and Discrimination: Toward a Pluralistic Understanding of Workplace Harassment’ (1999) 88 Georgetown Law Journal 64, 16. 54 Elizabeth Anderson, ‘Recent Thinking about Sexual Harassment: A Review Essay’ (2006) 34 Philosophy and Public Affairs 284, 292.

164  Criminality at Work The value of dignity’s role in harassment law is contested. For example, the individualized focus on dignity might obscure the structural inequalities that pervade the practices of harassment.55 Anderson has also criticized the way in which dignity deflects attention from ‘the sexist content of nearly all harassment, it individualizes and depoliticizes the wrong’.56 For the purposes of this chapter, we propose to bracket these disagreements about dignity as a basis for a normative account of the wrong of harassment. Instead, we are interested in exploring the specific role of dignity in understanding the overall shape of the criminal law as a regulatory response to harassment in the workplace. We suggest that the principle of human dignity supports: (i) the criminalization of employer safeguarding duties; (ii) maintaining and supporting the opportunities for individual workers to seek redress for rights violations in the ordinary courts; (iii) dispensing with enquiries into victim consent in liability for workplace abuse.

1.  Employer Duties and the Criminal Law Both the ILO and the Women and Equalities Select Committee have identified employer duties as central to progressive legal reform. In so doing, they are recognizing and applying a particular modern understanding of the very idea of ‘the employer’ which it is most important to recognize. This modern understanding of the idea of the employer stands in contrast to an earlier conceptualization of the employer as a single (stereotypically male) human being—​as the ‘master’ who famously figures as the player of the employing role in the ‘Law of Master and Servant’. The contrasting modern understanding, conditioned by historical change in the patterns of productive activity and work relations, envisages the employing role as being archetypally played by an organization or an enterprise. The organization or enterprise may be large or small, but even if it is very small the placing of an employer duty upon it assigns an essentially institutional and structural character to that duty and indeed to the wrong or the harm which it is the object of that duty to avoid or to control. This marks an important departure from the personalized model of duties and of wrongs which underlies the PHA. We suggest that this personalized formulation of the wrong is aligned with the understanding of abuse that is perpetrated in family relations. Indeed, we would regard the PHA as an important precursor to the public recognition of domestic abuse as a distinctive criminal wrong.57 This non-​personalized formulation of the duty marks a regulatory divergence between domestic abuse and workplace abuse. Is this divergence desirable? The spheres of work and family are related in important ways. The articulation of those linkages has been central to feminist work on sexual harassment. As Reva Siegel has argued, ‘the woman’s rights movement had begun to analyze the political economy of heterosexuality in a way that took as structurally interconnected the institutions of marriage and market’.58 In the hands of feminist legal theorists such as Catharine MacKinnon, this structural perspective on sexual harassment exposed the deep continuities between domination 55 Susanne Baer, ‘Dignity or Equality? Responses to Workplace Harassment in European, German, and US Law’ in Catharine A MacKinnon and Reva B Siegel (eds), Directions in Sexual Harassment Law (Yale University Press 2003). 56 Anderson (n 54) 310. 57 See Victor Tadros, ‘The Distinctiveness of Domestic Abuse: A Freedom Based Account’ (2005) 65 Louisiana Law Review 989. 58 MacKinnon and Siegel, Directions (n 55) 8.

The Criminalization of Harassment and Abuse  165 in the family and work relations: ‘men extracting sex from economically dependent women reiterate a coercive relationship that organizes heterosexual relations in marriage and the market both’.59 From a different perspective, recent work in republican political theory has further reinforced the salience of treating the spheres of work and family as engaging common normative concerns.60 Work relations and marital relations are both sites of domination in civil society, and the eradication of domination from work life and family life is a focus of republican public policies. These continuities may have provided an implicit normative justification for the extension of the PHA model, from the regulation of domestic abuse (in the form of stalking) to the regulation of workplace harassment and abuse. Is this recent move towards employer duties a mistake? We do not think so. In contrast to domestic abuse, which is an interpersonal wrong perpetrated in intimate relationships, the paradigm case of workplace harassment is triadic. It certainly involves interpersonal abuse by a harasser of a victim of harassment. It also encompasses the employer. The employer enjoys ‘practical authority’ to direct the running of the enterprise through the organizational rules constituted by the employment contract.61 These organizational rules can provide a context where interpersonal abuse either propagates or is eradicated. This marks a critical difference between work relations and family relations. It would be inconceivable to describe the marriage relation of husband and wife as ‘a relation of practical authority, which is constructed and confined by rules’.62 The employer is an appropriate object of regulation in this triad because of its extensive labour market power, and its capacity to eradicate the structural conditions of ­harassment. This dimension of authority and power means that the case for employer criminalization is particularly strong. There are two aspects to this argument. First, and from a more regulatory perspective, the employer’s authority in work relations means that it is better placed to secure positive behavioural changes in the workplace. It can exercise its authority in positive ways to induce cultural, organizational, and structural changes in its employment arrangements. There is no party that obviously corresponds to this in the domestic abuse context, which in its paradigm case is a bilateral wrong between two individual persons. Secondly, and from a more normative dignitarian perspective, the employer’s authority means that its actions and omissions poses a far greater risk to the worker’s dignity interests than those of other private actors, such as co-​workers. The potential of the employer to cause significant dignitarian injuries makes it a stronger candidate for coercive regulation than private individuals. Let us begin with the regulatory argument. Lacey has emphasized the importance of designing criminalization so as to concentrate upon the actors most capable of positive behavioural change, and so elicit and draw upon their best capacities to bring about such a positive change.63 In this sense, it seems to us to be potentially profitable to use regulatory criminalization to impose institutional safeguarding duties upon employing enterprises rather than using the criminal law purely to punish or deter individual offenders. She also emphasizes the importance of designing the interventions of criminal law so that they form the 59 MacKinnon and Siegel, Directions (n 55) 17. 60 See, eg, the approach in Robert S Taylor, Exit Left (OUP 2017), which has chapters on ‘family’ and ‘market’. 61 Hugh Collins, ‘Is the Contract of Employment Illiberal?’ in Hugh Collins, Gillian Lester, and Virginia Mantouvalou (eds), Philosophical Foundations of Labour Law (OUP 2019) 54–​55. 62 ibid 67. 63 Compare Lacey (n 28) 151, where she refers to ‘the regulatory system’s approach to its subjects’ capacities’, saying that ‘[t]‌his is, perhaps, yet more important than the issue of motivational assumptions for modern criminal law, which proclaims as one of its central doctrines that the subjects of criminalization are . . . self-​determining agents capable not only of rational choice but of taking responsibility for their choices . . .’.

166  Criminality at Work apex of the pyramid of institutional regulation and social regulation of a diffused and pluralistic character.64 In this respect also, the use of the criminal law to impose institutional safeguarding responsibilities might seem a more promising approach than the pursuit of individual perpetrators for ‘real crimes’ of bullying in the workplace, as being more likely to bring about change in institutional practice and culture. This marks an important difference from the case of domestic abuse. Now let us consider the dignity argument. From a dignitarian perspective, Khaitan has endorsed the moral importance of the distinction between vertical and horizontal relationships in enforcing duties to respect dignity.65 In so doing, he builds on a distinction drawn by Margalit between the ‘decent society’ (‘whose institutions do not humiliate people’) and the ‘civilized society’ (‘whose members do not humiliate one another’).66 According to Margalit, there is a much stronger case for using coercion to enforce the ‘decent society’ over the ‘civilized society’. Why might this be so? Margalit provides two reasons. First, restricting humiliating expression by natural persons acting in a private capacity will engage the fundamental human freedoms of those persons, such as their freedom of expression. By contrast, institutions would have a much weaker claim to fundamental human rights’ protections because they are not persons. Secondly, the harm of institutional humiliation is more damaging and pervasive than the harms caused by personal acts of humiliation.67 Institutional humiliation by public institutions has a symbolic dimension that personal acts of humiliation lack. To be demeaned in this way is more corrosive of the public standing of citizens than acts of humiliation by private citizens. It is therefore a stronger candidate for coercive restriction. In sum, there is a stronger case for legislating for a ‘decent society’, because the harms of institutional humiliation are more corrosive and the countervailing rights-​based arguments against criminalization are far weaker. Where should employers be positioned in this mapping? Labour law has always challenged the distinction between vertical and horizontal relations. The distinction between the ‘decent society’ and the ‘civilized society’ is a difference of degree, and we would locate employers towards the former end of the spectrum. Employers wield significant economic power, and consequently the dereliction of safeguarding duties can have catastrophic effects on the dignity of workers. The personification of employers, as in the old terminology of ‘master and servant’, is a simulacrum that obscures the reality of employers as complex institutional entities. A decent labour market, offering a wide range of employment opportunities free from abuse and harassment, should be regarded as an institutional element of the ‘decent society’. Employers occupy a different position in the basic institutional structure, compared with the individual workers who engage in the humiliating treatment of co-​workers. The humiliation caused by derelict employers is more corrosive, akin to institutional humiliation in the public sphere. Employers also have a more attenuated claim that their human rights have been infringed by criminalization, because they are organisations rather than real persons. In sum, the institutional harms of employers are far more serious, and the 64 Compare Lacey (n 28) 150 where she refers to John Braithwaite’s theory of the regulatory pyramid and comments that ‘in terms of this analysis, one could say that the most important regulatory work in relation to criminalization in fact goes on below the bottom of the pyramid, consisting in the personal internalization of norms or general receptivity to peer pressure which secures voluntary compliance . . . The pyramid, perhaps, is focused on the tasks of monitoring and enforcement, rather than that of standard-​setting.’ 65 Tarunabh Khaitan, ‘Dignity as an Expressive Norm:  Neither Vacuous Nor a Panacea’ (2012) 32 Oxford Journal of Legal Studies 1, 16. 66 Avishai Margalit, The Decent Society (Harvard University Press 1996) 1. 67 ibid 171–​72.

The Criminalization of Harassment and Abuse  167 countervailing human rights arguments far weaker, when considering criminal sanctions for employers. For individual harassers, by contrast, the arguments for and against criminalization are more finely balanced. Accordingly, we think that dignity considerations provide a normative prop to the regulatory arguments supporting the use of criminal law to enforce the employer’s safeguarding duties. This provides something of a response to Anderson’s and Baer’s concerns about dignity ‘individualizing’ or ‘depoliticizing’ the wrong of harassment. On Margalit’s approach, attacks on dignity can be readily understood as harms possessing a public dimension, rooted in unjust political and economic structures. In this way, dignity can provide support to the general approach of the Women and Equalities Select Committee in linking employer duties to a more punitive approach. Criminalization need not be aligned with an over-​personalized framing of criminal wrongs.

2.  Dignity and the Relationship between Criminal and Civil Law Harassment wrongs are often presented as assaults on human dignity. Much of the reported case-​law on harassment presents narratives where a worker is demeaned, degraded, or humiliated so that her social standing amongst her peers is attacked and undermined. Given the particular character of this wrong, the law’s response to dignity violations must be particularly sensitive to considerations of human dignity. The legal response must not compound the original wrong by further undermining the victim’s dignity. Ideally, the law should provide ways of reaffirming the dignity of the victim through its own processes and remedies. Jeremy Waldron’s work on human dignity provides some important insights into the connections between dignity, social rank, and the structure of the legal process.68 According to Waldron, dignity should be understood as denoting the high and noble rank of all human beings. In this way, there is a ‘levelling up’ to aristocratic rank so that all human beings are assigned the same high social standing. The legal system performs a critical role in the constituting of noble rank on equal terms to everyone. There are three dimensions that are particularly relevant to our discussion here. First, Waldron identifies the ‘dignity of being a right-​bearer’:  ‘Right-​bearers stand up for themselves; they make unapologetic claims on their own behalf; they control the pursuit and prosecution of their own grievances.’69 Secondly, the requirement of a public hearing and due process is another way in which the legal system respects dignity. Again, as Waldron explains, the legal process contributes to dignity in the following ways: [Litigants] have an opportunity to make submissions and present evidence, and confront, examine, and respond to evidence and submissions presented from the other side. Not only that, but both sides are listened to by a tribunal that is bound to respond to the arguments put forward in the reasons that is eventually gives for its decision.70

The forum of the public court also enables the participants to shape the development of the law itself, by presenting arguments based upon the best interpretation of the law’s demands.71 Finally, Waldron identifies legal representation as an integral element of the legal

68

Jeremy Waldron, Dignity, Rank, & Rights (OUP 2015). ibid  49–​50. 70 ibid 54. 71 ibid 55. 69

168  Criminality at Work system’s respect for dignity.72 Access to representation gives a voice to those who might otherwise be bewildered, cowed, or confused by the technicalities of legal doctrine and the legal process. It is particularly important for those in a situation of social precariousness, so that they can regain their dignified bearing in the courtroom even where that bearing has been trampled upon in the workplace. How can legal responses to dignitarian wrongs ensure that dignity is at least upheld in the ensuing legal response? We suggest that Waldron’s dignity argument indicates a need for caution around criminalization. Criminalization undoubtedly has an important role in securing respect for human dignity. However, criminalization should not displace the ‘dignity of the right-​bearer’ in exercising normative power over the vindication of her own rights. The criminal process can disempower the victim in various ways. The decision whether to pursue a prosecution is in the hands of a state agency rather than the victim herself. The difficulties with this are especially acute when enforcement agencies experience significant resource constraints on their work.73 In the criminal trial, the victim loses control of the legal process. She becomes a witness rather than a right-​bearer. It is important, therefore, that the criminal law operates in auxiliary mode, punishing and deterring culpable behaviour that would infringe the worker’s right not to be treated in a degrading or humiliating fashion. It should nevertheless be possible for the worker as a dignified bearer of rights to seek redress in the civil courts for violations of her individual rights. This would exclude the strategy of ‘deregulatory criminalization’ as under UK health and safety law. It is not sufficient for the legal system to provide formal access to those rights. As the Select Committee observed, the burden of individual litigation has been oppressive for the most vulnerable workers. The discourse of aristocratic dignity will sound rather hollow to workers on zero-​hours contracts who have been sexually harassed and where they do not have public support to pursue their legal claims. Substantive respect for the dignity of the precarious necessitates an array of procedural reforms to support them in their dignity as right-​bearers. This should include at a minimum: (i) legal aid and access to legal representation in civil litigation; (ii) ensuring that NDAs are strictly regulated so that they are only enforceable where there is genuine consent, the worker has received advice from an independent legal representative, and the scope of confidentiality does not obstruct the worker’s cooperation with any criminal investigation of wrongdoing; (iii) finally, the use of mandatory private arbitration clauses should be prohibited in harassment cases. In the recent US case of Epic Sys Corp v Lewis, a majority of the US Supreme Court upheld the preclusion of group claims by mandatory arbitration clauses.74 The system of mandatory private arbitration is antithetical to respect for dignity. The proceedings and judgments are private, so that ‘the public has no way of knowing whether the laws are being faithfully enforced. The law will have disappeared from public view.’75 This undermines the ability of the right-​ holder to enforce or shape the law in an authoritative court. It also blocks an important opportunity for her to regain her public standing through public institutional recognition. In conjunction with this secrecy, the preclusion of group claims impedes the ability of workers to achieve systemic reforms through class actions. This imposes severe constraints on the 72 ibid  61–​62. 73 WEC, Sexual Harassment (n 40) 19–​20. 74 138 S Ct 1612 (2018). 75 Matthew Finkin, American Labor and the Law: Dormant, Resurgent, and Emergent Problems (Wolters Kluwer 2019) 59.

The Criminalization of Harassment and Abuse  169 solidaristic potential of civil litigation, which we would regard as being of overwhelming importance in the harassment context.76 In our view, respect for dignity entails that mandatory arbitration should be prohibited in harassment cases.77

3.  Dignity and the Role of Consent Individual perpetrators of harassment may be liable under a complex web of civil and criminal provisions. In addition to the PHA, there may be personal liability under the Equality Act 2010, section 26 which addresses the wrong of harassment separately from direct discrimination. The most serious instances of harassment may be addressed through the general criminal law. Where there is sexual touching, this could fall within the scope of sexual assault under section 3 of the Sexual Offences Act 2003. Serious cases of violence causing injury could fall within the scope of various offences under the Offences Against the Person Act 1861, such as assault occasioning actual bodily harm (section 47), malicious wounding or infliction of grievous bodily harm (section 20), or wounding or causing grievous bodily harm with intent to do some grievous bodily harm (section 18). Questions of consent are central to many of these different forms of liability. For example, harassment under section 26 of the Equality Act 2010 specifies that the relevant conduct must be ‘unwanted’. For the offence of sexual assault, V must not consent to the touching and D must lack a reasonable belief in V’s consent. Non-​consent is integral to the criminal wrong. For offences against the person involving the infliction of injury, consent to injury sometimes operates as a defence to criminal liability where the situation falls within a legally recognized category. One such category which will sometimes be relevant to workplace violence is ‘horseplay’. Accordingly, legal liability will often turn upon a determination of the victim’s consent. What is the appropriate role of consent in a reformed law of workplace harassment? From an enforcement perspective, unsympathetic personal evaluation is often apt to be the fate of those claiming to have been the victims of workplace bullying or harassment where questions of consent are central to liability.78 In Munchkins Restaurant Ltd v Karmazyn, for example, waitresses were exposed to intrusive sexualized questioning by their employer, required to wear short skirts at work, and pornographic material had also been shown to the waitresses.79 The employer had argued that the sexualized badinage had been initiated or welcomed by the workers, and that their acquiescence in the behaviour provided evidence that this was the case. Although the employer lost the appeal, issues of consent were central to the case. Should consent be retained as an element in the liability test for harassment? Dan-​Cohen has argued in favour of a dignity principle, that ‘the main goal of the criminal law is to defend the unique moral worth of every human being’, as an alternative to the 76 Protests in the wake of #MeToo at Google and Facebook has led to the retraction of mandatory arbitration clauses in sexual harassment cases at those companies: see Moira Donegan, ‘Why Can Companies Still Silence us with Mandatory Arbitration?’ The Guardian (8 January 2019) accessed 30 April 2019. 77 We would favour a system of anonymity for harassment complainants in civil litigation, along the lines suggested by the Select Committee. 78 Indeed, this kind of normative evaluation has already been a feature of the PHA where consent is not an element of the legal definition: see Barmes (n 1) 156–​60. Consent may be expected to intensify this feature of adjudication. For a critical discussion of ‘unwelcomeness’ in harassment law, see Jane Larson, ‘Sexual Labor’ in MacKinnon and Siegel, Directions (n 55). 79 Munchkins Restaurant Ltd v Karmazyn [2010] EWCA Civ 1163.

170  Criminality at Work liberal harm principle in determining the scope of the criminal law.80 Under the harm principle, consent is central to determining whether there should be criminalization.81 Dan-​ Cohen invites us to consider the judgment in State v Brown to test our intuitions about the role of consent.82 In Brown, the defendant beat his alcoholic wife, when she drank alcohol, in order to deter her drinking. This was alleged to be pursuant to an agreement between the parties. The court rejected the defence of consent.83 From the perspective of the harm principle, the decision would seem to be puzzling: volenti non fit injuria is a liberal principle. Criminalizing this consensual violence seems to impede the victim’s autonomy interests and her welfare interests, because she is prevented from participating in an arrangement that she willingly assented to and which she regards as welfare-​enhancing. However, Dan-​ Cohen invites us to consider Brown from the perspective of the dignity principle:  ‘The fact that physical violence does ordinarily hinder both welfare and autonomy is reason enough to render it a blatant manifestation of disrespect.’84 This ‘expressive significance’ would be communicated even in situations, like Brown, where the typical markers of violence (violation of autonomy and welfare) are not present. The treatment of the wife is demeaning and degrading, and it is uncivilized for the criminal law to defer to consent in these circumstances. For our own purposes, we think that R v Aitken might require reconsideration in the light of Dan-​Cohen’s dignity principle.85 In Aitken, an RAF officer suffered serious burns after he had been doused with white spirit and ignited. According to the court, the fellow officers ‘took hold of, and grabbed him. He resisted, but because of the amount which he had drunk he struggled only weakly . . . Aitken that night said that Gibson had gone up “like a torch”.’86 Gibson suffered 35 per cent burns of a life-​threatening nature. According to the Court of Appeal, the issue of consent should have been put to the jury by the trial judge and the convictions under section 20 for malicious infliction of GBH were quashed. ‘Rough and undisciplined horseplay’ was an exceptional category where a valid consent could be operative as a defence to criminal liability under section 20. Further, Gibson’s continued presence at the social event might be construed as evidence of consent to the injuries that resulted. We are sceptical about the defensibility of this ‘horseplay’ category in offences of violence, and the requirement under section 26 of the Equality Act 2010 that conduct should be ‘unwanted’. The very idea of ‘horseplay’ as an exceptional exculpatory category in the criminal law serves to reinforce the norms of toxic masculinity that operate in exclusionary ways in many workplaces. Where a worker has sustained serious injuries in testosterone-​ and alcohol-​fuelled japes in the workplace, or conduct has the purpose or effect of ‘violating B’s dignity’ or ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’ as under section 26 of the Equality Act 2010, there should be liability regardless of consent. The dignity principle provides a strong argument for not deferring to the victim’s consent. In many cases, apparent consent is likely to be vitiated by the existence of power asymmetries in the labour market. In rare cases where such treatment might be

80

Meir Dan-​Cohen, Harmful Thoughts (Princeton University Press 2002) 150. See, eg, Joel Feinberg, The Moral Limits of the Criminal Law Volume 1: Harm to Others (OUP 1987) 115–​17. 82 364 A 2d 27 (NK Super Ct Law Div 1976), aff ’d, 381 A2d 1231 (NJ Super Ct App Div 1977). 83 Dan-​Cohen (n 80) 154. 84 Dan-​Cohen (n 80) 162. 85 R v Aitken [1992] 1 WLR 1006. 86 ibid 1009–​10. 81

The Criminalization of Harassment and Abuse  171 welcomed by victims, this compounds rather than ameliorates the degradation. In Dan-​ Cohen’s terms, a case like Aitken represents an instance of expressive disrespect, and public institutions and laws should have no part in enabling that. The law should never facilitate human degradation.

F.  Conclusion: Bargaining in the Shadow of the (Criminal) Law Workplace harassment is one of the most challenging regulatory issues of our time. We have argued that the criminal law has a legitimate and important role in eradicating all forms of abuse and harassment at work. Comparative studies should examine the existing models of criminal regulation to identify some of the virtues and vices of specific models of criminalization.87 Recently, progressive reform strategies have positioned the employer’s safeguarding duties, on a health and safety model, as central to this next wave of harassment law. This would transcend the limitations on effective enforcement where harassment is conceptualized as a personalized wrong. This has beset the existing law on harassment, especially under the PHA. Drawing upon the dignity literature, we have identified three areas for reform attention: (i) criminalization of employer safeguarding duties; (ii) ensuring that criminalization does not impede the opportunities for individual workers to seek redress for rights violations in the ordinary courts; (iii) dispensing with enquiries into victim consent where a victim experiences serious injury from workplace ‘mobbing’ or where there is harassment under section 26 of the EA. Whatever the shape of legal reform on paper, it is vital that this is translated into real cultural and organizational change in the workplace. As Lauren Edelman has demonstrated, workplace harassment policies can easily become an exercise in defensive ‘window dressing’, designed to block legal liability in harassment claims rather than to prompt deep and enduring change in the workplace.88 Genuine change must be led by the inclusion of audible and diverse voices in the management of workplaces at all levels.89 Lizzie Barmes has also emphasized the need for ‘widening participation in implementation and enforcement as an emancipatory legal device’.90 This will require new forms of collective bargaining and union organizational strategies, and the forging of alliances with social movements that have grown out of the #MeToo mobilization. We suggest that the next wave of activism should explore the possibilities of ‘bargaining in the shadow of the criminal law’. In a recent report, the NASUWT, the Teachers’ Union sought judicial review of a decision not to prosecute pupils who had engaged in ‘upskirting’ of female teachers.91 This led to a successful conviction of a former pupil. Unions must explore the potential of litigation as a point of 87 See, eg, the chapters on criminal harassment laws in Israel and France: Orit Kamir, ‘Dignity, Respect, and Equality in Israel’s Sexual Harassment Law’ (561) and Abigail Saguy, ‘French and American Lawyers Define Sexual Harassment’ (602) in MacKinnon and Siegel, Directions (n 55). 88 Lauren B Edelman, ‘How HR and Judges Made It Almost Impossible for Victims of Sexual Harassment to Win in Court’ Harvard Business Review (22 August 2018) accessed 30 April  2019. 89 ibid. See also Marion Crain and Ken Matheny, ‘Sexual Harassment and Solidarity’ (2019) 87 The George Washington Law Review 56. 90 Barmes (n 1) 261. 91 Richard Adams, ‘Female Teachers Need Protection from Sexual Harassment, Says Union’ The Guardian (21 April 2019) accessed 30 April 2019.

172  Criminality at Work leverage in the criminal process, and to reflect on the possibilities for a new role as ‘private prosecutors’ in appropriate cases. This would give workers a stronger independent voice in the criminal process. This would enhance their dignity. In turn, public agencies should explore ways of working with unions collaboratively on enforcement, so that legal reform leads to enduring cultural change. In the next wave of harassment law, the criminal law has an important part to play in securing dignity at work for all workers.

9

Sex, Work, and Criminalization Michelle Madden Dempsey

A.  Introduction In addressing the topic of sex, work, and criminalization, a preliminary question presents itself: is commercial sex properly regarded as work?1 That is, is the commercial sex trade simply another labour market in which some people seek to earn money in exchange for providing a service—​just like accountancy?2 A secondary question follows: if there are salient distinctions between commercial sex and work, what implications might these distinctions have regarding the proper role of criminal law in regulating or prohibiting commercial sex? This chapter examines the role of criminalization in the context of commercial sex. The examination proceeds in three parts. First, as a preliminary matter, the chapter sets out a framework for conceptualizing various kinds of commercial sex, in hopes of bringing some clarity to the discussion that follows. Second, the chapter explores three key philosophical issues that arise when considering sex as a form of labour. Third, the chapter provides a normative account of criminalization that illuminates four perspectives on the proper role of the criminal law when it comes to commercial sex.

B.  Conceptualizing Commercial Sex: From Sex Work to Modern Slavery This section offers a taxonomy of various ways in which commercial sex is often conceptualized in modern political and legal discourse. Note that this section does not attempt to offer an original analysis of commercial sex or criminal offences involving commercialized sex acts.3 Rather, it merely sets out the various ways in which commercial sex has been understood by others, without defending any conclusions as to which account best reflects the relevant phenomena. The hope is that by surveying and stipulating the meaning of various labels used to refer to commercial sex, this section will clarify some relevant debates, albeit without resolving them.

1 For a strongly negative answer to this question, see Janice G Raymond, Not a Choice, Not a Job: Exposing the Myths about Prostitution and the Global Sex Trade (Potomac Books 2013). 2 For a suggestion that it is, see ‘Cheltenham Lib Dem Chair Quits after Sex Worker Debate’ BBC News (19 September 2016) accessed 24 August 2018. 3 For an illuminating analysis along these lines, see Stuart Green, ‘What Counts as Prostitution?’ (2016) 4 Bergen Journal of Criminal Law and Criminal Justice 65. Michelle Madden Dempsey, Sex, Work, and Criminalization In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.009

174  Criminality at Work

1. Commercial Sex As an umbrella term, this chapter will use the term commercial sex to refer to the exchange of sexual services for valuable consideration.4 For simplicity, the understanding of sexual services will centre on paradigmatic acts such as vaginal, anal, or oral sexual intercourse, rather than more indirect services such as phone sex, webcamming, etc.5 Similarly, the exchange of valuable consideration will be understood to include typical methods of commercial exchange (eg money), rather than jewellery, holidays, expensive dining, etc.6 Given the politically charged debates surrounding this topic, and the resulting impossibility of finding universally acceptable labels in this context, it is hoped that commercial sex will serve as an adequately neutral descriptor of the phenomena, without presupposing anything about the circumstances under which any given commercial sex exchange occurs.7

2. Sex Work The term sex work will be used to refer to commercial sex occurring under circumstances in which the persons providing sexual services: (1) regard the commercial sex as a form of labour; and (2)  prefer to engage in commercial sex over alternative options, despite (3) having an adequate range of valuable alternatives for engaging in forms of labour that are consistent with human flourishing. Sex work may involve independent contractors and/​ or people working with a manager or engaging in commercial sex in brothels. The first two criteria used to define sex work above incorporate subjective criteria, while the third depends on objective considerations. First, persons providing sexual services must subjectively regard themselves as engaging in a form of labour.8 Second, persons providing sexual services must have a subjective preference to engage in commercial sex as labour. Third, this subjective preference must be formed under conditions in which the person has an objectively adequate range of objectively valuable options to engage in alternate forms of labour that are consistent with an objective account of human flourishing. Thus, according to this understanding, whether one is engaged in sex work is not merely a matter of one’s subjective interpretation; rather, it incorporates objective criteria consistent with what Andrea Veltman calls meaningful work.9 Whether work is meaningful depends not merely on whether it is consistent with the exercise of personal autonomy. Rather, the key dimensions of meaningful work are multifaceted and include: 4 This definition roughly tracks the ‘Commodification of Sexual Activity’ in Canada’s recently revised statutory framework, Protection of Communities and Exploited Persons Act 2014. The word prostitution has often been used to refer to the umbrella category which is, here, referred to as commercial sex. Given the negative connotations historically associated with the term prostitution and its variants (eg ‘prostitute’), this chapter will avoid its use, aside from when quoting it in the work of others. 5 Teela Sanders and others, Internet Sex Work: Beyond the Gaze (Palgrave MacMillan 2018) 17–​18. 6 As such, phenomena such as ‘sugar dating’ may either involve marginal cases of commercial sex, or more central cases, such as those which include an explicit exchange of sex for money or tuition payments. Natalie Ktena, ‘I’m a Sugar Baby to Pay My Way Through Uni’ BBC Three (5 October 2018) accessed 10 October 2018. 7 Emily St Denny, ‘“The Personal is Political Science”: Epistemological and Methodological Issues in Feminist Social Science Research on Prostitution’ (2014) 16 Journal of International Women’s Studies 76. 8 As such, those who exchange sexual favours in the context of a financially beneficial arrangement would not be regarded here as engaged in sex work. See (n 6). 9 Andrea Veltman, Meaningful Work (OUP 2016) 105–​41.

Sex, Work, and Criminalization  175 [D]‌eveloping or expressing talents and capabilities, earning recognition, acquiring or reinforcing virtues, . . . [and] integrating elements of a life by reflecting [one’s] deeply held values and commitments. . . thus helping to render the patchwork of life more coherent or consistent.10

No doubt, different forms of work, carried out in various social contexts, can be more or less meaningful according to both subjective and objective criteria. Thus, it is best to avoid drawing too sharp a distinction between sex work, understood here as meaningful work, and commercial sexual exploitation (discussed below). That said, however, in determining whether any particular commercial sex act constitutes sex work, it is important to keep in mind the extent to which meaningfulness as work is constrained by the patriarchal and economic structural inequalities which shape the actual experiences in the commercial sex industry in any given society.11

3.  Commercial Sexual Exploitation The term commercial sexual exploitation will be used to refer to commercial sex occurring under circumstances in which the persons providing sexual services do so under conditions in which they lack an adequate range of valuable alternatives for engaging in other forms of labour that are consistent with human flourishing. As with sex work, commercial sexual exploitation may involve independent contractors and/​ or people working with a manager (here, a role better labelled ‘pimp’) or in a brothel. Importantly, this definition is entirely objective: the subjective preferences of the person providing sexual services does not determine whether the activity counts as commercial sexual exploitation. As such, a person might choose commercial sex as a preferred form of labour, yet still be understood as one who is involved in commercial sexual exploitation rather than sex work. The key to distinguishing sex work from commercial sexual exploitation is wholly objective: does the person providing sexual services have an adequate range of valuable alternatives for engaging in meaningful work? Notably, these criteria are objective in the sense of establishing normative baselines, not merely empirical baselines.12 That is, the appropriate question for determining whether commercial sex counts as sex work or commercial sexual exploitation is whether the person providing sexual services is made worse off relative to where she has a right to be, not relative to what her status quo would be without recourse to commercial sex, or her subjective views about her own entitlements.13 A particularly exploitative form of commercial sexual exploitation is sex trafficking. As defined in the UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons 10 ibid. 11 See discussion at nn (29–​35) below. 12 On normative (moralized) and empirical baselines, see Alan Wertheimer, Exploitation (CUP 1996) 22–​23; Alan Wertheimer, Consent to Sexual Relations (Princeton UP 2003) 166–​67. 13 ‘Exploitation therefore does not necessarily harm its victim in the sense of making her worse off than she would have been, had the exploiter never interacted with her at all. Rather, it makes its victim worse off than she should have been, had she been treated fairly.’ Matt Zwolinski and Alan Wertheimer, ‘Exploitation’ Stanford Encyclopedia of Philosophy (2016) accessed 24 July 2018.

176  Criminality at Work (Palermo Protocol), commercial sexual exploitation of children (under 18 years of age), or of adults which occurs by any of the following means constitutes sex trafficking: [T]‌hreat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. 14

Importantly, according to the Palermo Protocol definition, there is no requirement that the trafficking victim be transported either across borders or within a jurisdiction—​which marks a distinction from UK law.15 Rather, the key to distinguishing sex trafficking from other forms of commercial sexual exploitation rests on one of two considerations:  (1) whether the victim is a child; or (2) (where the victim is an adult) whether a third party (or parties) has employed any of the illicit means listed for the purpose of exploiting the victim. As such, unlike sex work and other forms of commercial sexual exploitation, sex trafficking (as understood herein) does not include independent contracting for commercial sex, but rather assumes the involvement of a trafficker (eg pimp, brothel-​keeper, etc).16

4. Modern Slavery The term modern slavery, often used in political advocacy, has gained new prominence in legal discourse in virtue of its adoption into UK law in the Modern Slavery Act 2015. As the Act’s explanatory notes proclaim, ‘[m]‌odern slavery is a brutal form of organized crime in which people are treated as commodities and exploited for criminal gain’.17 Three features of this definition of modern slavery bear noting. First, it seems to presuppose that modern slavery will involve an organized group of exploiters, rather than, say, an individual pimp exploiting a sex trafficking victim.18 Second, the person providing sexual services is conceptualized as entirely without agency: there is no choice amongst adequate valuable options (as in sex work), nor is there any choice amongst inadequate or low-​value options (as in commercial sexual exploitation and some forms of sex trafficking). The victim of modern slavery is conceptualized as a commodity—​a thing being bought and sold, not a person engaging in a commercial sex act.19 Third, modern slavery is integrally related to broader 14 United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime [2000] UN Doc A/​55/​383, art 3(a). 15 As noted below, UK law regarding sex trafficking emphasizes the salience of transportation and border in conceptualizing sex trafficking. This is so, despite the UK’s ratification of the Palermo Protocol in February 2006. Michelle Madden Dempsey, Carolyn Hoyle, and Mary Bosworth, ‘Defining Sex Trafficking in International and Domestic Law: Mind the Gaps’ (2006) 26 Emory International Law Review 137. 16 In this sense, the definition of sex trafficking adopted here is narrower than some legal definitions which do not require third-​party involvement. Mary Graw Leary, ‘Dear John, You are a Human Trafficker’ (2017) 68 South Carolina Law Review 415. 17 Explanatory Notes to the Modern Slavery Act 2015 [4]‌. 18 While the legal definition of trafficking in section 2 of the Act does not require that exploiters act in a group, the rhetoric surrounding modern slavery and law enforcement priorities suggest the offence is understood as a matter of group criminality. Thank you to Alan Bogg for raising this point. 19 Note that as a matter of legal definitions, the lines between trafficking and slavery are less clear than the framework set out here. In Rantsev v Cyprus and Russia App no 25965/​04 (ECHR, 7 January 2010) 282, the Court found that ‘trafficking in human beings, by its very nature and aim . . . treats human beings as commodities to be bought and sold’, and as such considered it unnecessary to identify whether trafficking constitutes ‘slavery’, ‘servitude’ or ‘forced and compulsory labour’ in order to find that ‘trafficking itself . . . falls within the scope of Article 4 of the Convention’.

Sex, Work, and Criminalization  177 concerns about border crossing and undocumented immigration. Again, according to the explanatory notes, ‘[m]odern slavery . . . is an international problem and victims may have entered the United Kingdom legally, on forged documentation or clandestinely . . .’.20 Addressing modern slavery thus seems more focused on regulating borders and preventing or punishing irregular migration, rather than creating conditions in which all persons have an adequate range of valuable options from which to choose labour that is conducive to their human flourishing.21 Drawing sharp distinctions between these different forms of commercial sex is at once illuminating and dangerous. One benefit of distinguishing these conceptions is that it allows us to consider how commercial sex operates in a given society and thus develop laws and policies that better respond to these realities. For example, if the overwhelming amount of commercial sex involves commercial sexual exploitation, sex trafficking, or modern slavery, then it makes little sense to develop a legal scheme premised on the false assumption that, in fact, most commercial sex is simply sex work. Yet, there are significant risks associated with drawing these kinds of distinctions. Not least of which, there is a danger that drawing sharp lines between the categories may suggest a lack of fluidity in any given person’s experience of commercial sex. For example, someone who engages in sex work at one time might, at another, lack an adequate range of valuable alternatives (and thus fall into commercial sexual exploitation), and may eventually come to be exploited by a third party (thus falling into sex trafficking). Whatever the benefits or drawbacks of such distinctions, however, it is hoped that this survey adds some clarity to the exploration of sex, work, and criminalization that follows.

C.  Commercial Sex as Labour: Three Philosophical Issues This section examines three philosophical issues that arise when viewing sex as a form of labour: commodification of sex; structural inequalities; and adaptive preferences. By philosophical issues, here, I mean to highlight that the examination below is not stipulative (as was the case in the previous section), nor does it directly respond to questions regarding the best legal scheme to adopt, all-​things-​considered, when it comes to commercial sex (as will be the case in the final section). Rather, this section merely unpacks three considerations that might prove useful in undertaking such an all-​things-​considered evaluation.

1.  Commodification of Sex The first philosophical issue centres on the worry that commercial sex—​in whatever conceptualization, from sex work to modern slavery—​involves the commodification of sex.

20 Seemingly as a bit of an afterthought, the passage continues, ‘. . . or they may be British citizens living in the United Kingdom’. Explanatory Notes (n 17) [4]‌. 21 Moreover, the broader legislative framework suggests not only a lack of political will to remedy conditions that create vulnerability to exploitation, but actually creates new vulnerabilities, such as the creation of an offence of ‘illegal working’ in Immigration Act 2016. Virginia Mantouvalou, ‘The UK Modern Slavery Act 2015: A “Splendid Piece of Legislation”?’ UK Labour Law Blog (6 September 2018) accessed 15 October 2018.

178  Criminality at Work This concern is on display most clearly when it comes to modern slavery, which as noted above, conceptualizes the victim as a literal commodity, being bought and sold ‘for criminal gain’.22 But what of sex engaged in for the commercial gain of the person who provides the sexual service? Do such cases still raise concerns regarding commodification? According to Elizabeth Anderson, the commodification argument grounds a strong objection to commercial sex, insofar as commodification ‘destroys the kind of reciprocity required to realize human sexuality as a shared good’.23 Such reciprocity, she argues, is only realized ‘when each partner reciprocates the other’s gift in kind, offering her own sexuality in the same spirit in which she received the other’s—​as a genuine offering of the self ’.24 Hallie Liberto counters these concerns by arguing that commercial sex need not include genuine commodification insofar as it involves merely ‘alienation in a weak sense’, in which the person providing sexual services retains the right to opt out at any time.25 Similarly, Cecile Fabre argues that persons providing sexual services in a commercial sex sell neither their bodies nor themselves—​and while the commercialization of sex might be regarded by some as an intimate experience that would give rise to the kinds of concerns Anderson raises, Fabre argues there is little reason to suppose that commercial sex is universally experienced as such.26

2.  Commercial Sex and Structural Inequalities A second philosophical issue that can helpfully contribute to an all-​things-​considered evaluation of how the law should respond to commercial sex concerns the relationship between commercial sex and structural inequalities. As typically practised, commercial sex is both a cause and consequence of structural inequalities, especially at the intersection of patriarchy and economic inequality. As Debra Satz observes, ‘[p]‌rostitution shapes and is itself shaped by custom and culture, by cultural meanings about the importance of sex and about the nature of women’s sexuality and male desire’.27 Moreover, as the former UN Special Rapporteur on Trafficking observed: Some prostitute-​users actively seek prostituted women and children of different nationalities, races or ethnic groups for the purpose of exploiting these power disparities, engaging in a ‘highly sexualized form of racism’, by which they rationalize to themselves that woman and children of different races, nationalities or ethnic groups are not harmed by sexual exploitation.28 22 Explanatory Notes MSA (n 17) [4]‌. 23 Elizabeth Anderson, Value in Ethics and Economics (Harvard UP 1993) 153–​54. See also, Margaret Radin, Contested Commodities (Harvard UP 1996). 24 Anderson (n 23). 25 Hallie R Liberto, ‘Normalizing Prostitution Versus Normalizing the Alienability of Sexual Rights: A Response to Scott A Anderson’ (2009) 120 Ethics 138. 26 Cécile Fabre, Whose Body is It, Anyway? Justice and the Integrity of the Person (OUP 2006) 154–​85. Similar issues arise in the context of commercialized care work. See Hayes (this volume). 27 Debra Satz, Why Some Things Should Not Be for Sale: The Moral Limits of Markets (OUP 2010) 146. 28 Sigma Huda, ‘Integration of The Human Rights of Women and a Gender Perspective’ UN Doc E/​CN 4/​2006/​ 62 (20 February 2006), quoting Julia O’Connell Davidson and Julia Sanchez Taylor, Child Prostitution and Sex Tourism: Dominican Republic (ECPAT International, Bangkok, Thailand 1996) 16–​17.

Sex, Work, and Criminalization  179 It is worth noting an important distinction between concerns regarding commodification, on the one hand, and structural inequalities, on the other. Commodification arguments focus on the risk of either treating bodies as commodified objects, or the dehumanizing effects of treating an activity so central to our humanity (sexual intimacy) as something to be bought and sold. In both instances, the concern is primarily about the dehumanizing effects of commercial sex. The structural inequality concern, conversely, focuses on the ways in which persons who sell sex—​fully human persons (most often female/​femme persons)—​are subjugated to the will, wishes, desires, and whims of other human beings (most often male persons). As Kate Manne observes, the problem is not so much that patriarchal inequality denies the humanity of women, but rather places them structurally in the role of ‘human giver’ as opposed to ‘human being’.29 ‘A giver’, she explains: [I]‌s . . . obligated to offer love, sex, attention, affection, and admiration, as well as other forms of emotional, social . . . and caregiving labor, in accordance with social norms that govern and structure the relevant roles and relations.30

The structural inequality concern is clearly not limited to commercial sex: it pervades social life. It both constitutes and perpetuates a range of precious work conditions.31 The point here, however, is that commercial sex is both constitutive of and perpetuates structural inequalities, especially those grounded in patriarchal social forms (sex discrimination, sexism, misogyny). In that sense, exploitation in the commercial sexual industry is a result of patriarchal-​precarity that forms the social context for commercial sex work generally. 32 Commercial sex can be perceived as empowering for individual women, given the poor alternatives that are realistically available. (For, at least when sex is commercialized, women get compensated—​and they do so in a way that does not tie them to any individual husband, etc.33) Yet, as Overall observes, ‘engaging in sex work is “buying into the patriarchal version of independence” ’, and thus does nothing to challenge patriarchal social norms according to which women are structurally positioned as human-​givers, in service of men.34 Ultimately, then, the structural inequality concern illuminates the sense in which commercial sex serves to perpetuate, rather than subvert, such inequalities.35

29 Kate Manne, Down Girl: The Logic of Misogyny (OUP 2018). 30 ibid 301. 31 See Jennifer Collins, ‘Exploitation At Work:  Beyond a “Criminalization” or “Regulatory Alternatives” Dichotomy’ (Chapter 5 of this volume) for discussion of various worker-​precarities. 32 See text at (nn 27–​35). 33 As Engels observed, a married woman ‘only differs from the ordinary courtesan in that she does not let out her body . . . as a wage worker, but sells it once and for all into slavery’. Friedrich Engels, The Origin of the Family, Private Property and the State (International Publishers 1970) 134. 34 Christine Overall, ‘What’s Wrong with Prostitution? Evaluating Sex Work’ (1992) 17 Signs: Journal of Women in Culture and Society 705, 724, quoting Judy Helfand, ‘Silence Again’ in Frederique Delacoste and Priscilla Alexander (eds), Sex Work: Writings by Women in the Sex Industry (Cleis Press 1987) 99–​103. 35 Laurie Shrage, ‘Should Feminists Oppose Prostitution?’ (1989) 99 Ethics 347, 352.

180  Criminality at Work

3.  Commercial Sex and Adaptive Preferences A third philosophical issue that arises when viewing sex as a form of labour is a concern regarding what is referred to as adaptive preferences.36 On one level or another, most everyone’s preferences adapt to the range of options that are realistically available, and these adaptive preferences often shape our choices when it comes to our labour. If one is initially inclined to have preferences that are practically out of reach, or that will result in the loss of other valuable options, one’s preferences will often adapt to the realities one faces. Consider a girl with a natural curiosity regarding the sciences and a preference to become an astrophysicist, who is unable to pursue higher education (for reasons of gender, economics, etc). Add to this the frequent reminders of the importance of marriage and motherhood, the recognition that men in her culture are less likely to prefer marriage to a highly educated woman, and the lack of structural support for women who wish to have a demanding professional career and raise a family. Eventually the girl chooses to abandon her preference for astrophysics and instead become a school science teacher. This way, she can continue to cultivate her interest in science, marry, and have time to spend raising her children. There is no doubt that her choice to become a science teacher, wife, and mother are choices that are genuine and should be respected. Yet, her ultimate preference to pursue those goals was shaped (adapted) by the range of realistic opportunities available to her.37 Oftentimes the influence of social structures, clearly defined social roles, and the limited range of realistic options associated with those roles, will result in adaptive preferences originating from the outset: one’s initial preferences adapt as they come into being, and so map onto the range of options available. In those cases, there is no phenomenological experience of having given up the path one truly preferred—​there is simply the development of a genuine preference for a life that is within reach and will secure a range of goods that are genuinely worth having. Considered in the context of commercial sex, it seems entirely possible that some people (especially female/​femme people) might come to have adaptive preferences to engage in sex work. Particularly in light of patriarchal social scripts that value women and girls for their sexuality and structural inequalities that limit the range of valuable alternatives, it makes sense that some people prefer to engage in commercial sex as their labour.38 Moreover, as Khader explains, adaptive preferences do not (necessarily) undermine people’s capacity for autonomy. ‘People can form adaptive preferences and remain autonomous agents with reflective capacities and senses of what matters to them’.39 As we will see, viewing adaptive 36 John Elster, Sour Grapes: Studies in the Subversion of Rationality (CUP 1983) 2; Serene J Khader, Adaptive Preferences and Women’s Empowerment (OUP 2011) 17. On Khader’s account, adaptive preferences are defined as ‘preferences inconsistent with basic [human] flourishing that a person developed under conditions nonconductive to basic flourishing and that we expect her to change under conditions conducive to basic flourishing’. The term as used above tracks Khader’s account more closely than Elster, insofar as it endorses Khader’s view that adaptive preferences are neither ‘subversions of rationality’ nor autonomy deficits. 37 Martha Nussbaum, Women and Human Development: The Capabilities Approach (CUP 2001). 38 As burlesque entertainer, the Incredible, Edible Akynos, puts it: ‘In a misogynist, sexually repressive culture, where men still earn more than women, jobs are scarce, college education is proving to be a farce, and far too many men emotionally and physically take advantage of females without repercussion, how can a woman redeem herself? She can take a stand and refuse to be played like a mindless twit. Despite the misogynist nature of our society, the fact remains that sex still sells. The good girls aren’t the only ones that finish on top. Selling sex can be the way men learn how to treat women. And how women can learn their proverbial worth.’ Ravishly, ‘Is Sex Work Empowering or Enslaving? 12 Experts Weigh in’ Huffington Post (18 October 2014) accessed 28 October 2018. 39 Khader (n 36) 17–​18, 74–​106.

Sex, Work, and Criminalization  181 preferences as consistent with the exercise of autonomy is important for what follows in our discussion of commercial sex and criminalization, for it suggests at least the possibility that engaging in sex work can be genuinely consensual.

D.  Criminalization and Commercial Sex Historically, the criminal law has taken an interest in commercial sex primarily for the purpose of controlling and punishing persons (mostly female/​femmes) who provide sexual services.40 While commercial sex was not illegal in England, it was ‘surrounded by so many legal restrictions as to be illegal in all but name’.41 Indeed, [P]‌rostitutes were penalized by the legal system simply because they were prostitutes. Actions which would not constitute an infringement of the law by ‘respectable’ women [such a loitering] were illegal if committed . . . by women thought to be prostitutes.42

Views regarding the proper response of the criminal law to commercial sex had begun to shift by the time the Wolfenden Committee Report on Homosexual Offences and Prostitution was published in 1957.43 Taking the view that commercial sex was largely consensual, the Wolfenden Committee endorsed an approach to commercial sex which employed the criminal law as a deterrence for the sake of preventing public nuisance.44 Despite this significant shift, the focus of the criminal law’s interventions remained primarily on the persons (mostly female/​femmes) providing sexual services. Then, as now, the criminal law is less frequently used to target abusive pimps or those (mostly men) who buy sex.45 As a result, ‘a significantly higher number of women than men are convicted [of commercial sex offenses], [and] [o]‌f those convicted, a significantly higher number of women have multiple convictions’ for these offences.46 Alongside these domestic criminal laws, the broader legal regimes addressing commercial sex have long made a sharp distinction between commercial sex that was regarded as freely chosen versus that which was understood as forced. When commercial sex was regarded as freely chosen, those selling sex were targeted by criminal law (as noted above).47 40 For example, the Contagious Diseases Acts of the 1860s authorized the forced medical examination and detention of women suspected of being involved in commercial sex. Judith Walkowitz, Prostitution in Victorian Society (CUP 1980). 41 Paula Bartley, Prostitution: Prevention and Reform in England, 1860–​1914 (Routledge 2000) 4. 42 ibid. 43 Wolfenden Committee Report on Homosexual Offences and Prostitution (HMSO 1957). 44 For critique, see Michelle Madden Dempsey, ‘Rethinking Wolfenden:  Prostitute-​Use, Criminal Law, and Remote Harm’ [2005] Criminal Law Review 444. 45 Although, several recent high-​profiles of abusive trafficking rings have been well-​publicized. ‘Oxford Gang Found Guilty of Grooming and Sexually Exploiting Girls’ The Guardian (14 May 2013) accessed 3 August 2019. As for prosecuting sex buyers, while the offence of ‘Paying for Sexual Services of a Prostitute Subjected to Force etc’ was enacted in 2010, it remains more a matter of ‘law on the books’ rather than ‘law in action’. Sexual Offences Act 2003, s 53A, inserted (1 April 2010) in the Policing and Crime Act 2009. Tellingly, despite the fact that other ‘commercial sex + force’ type offences were moved to the Modern Slavery Act 2015, this offence (targeting buyers) remained in the Sexual Offences Act. 46 The Queen on The Application Of (1) QSA, (2) Fiona Broadfoot (3) ARB v (1) Secretary of State for the Home Department, (2) Secretary of State for Justice [2018] EWHC 407 (Admin) (QB), [2018] 1 WLR 4279 [78]. 47 Bartley (n 41).

182  Criminality at Work Yet, when commercial sex was regarded as forced, and the victims were deemed worthy, it was then framed as a problem of ‘white slavery’.48 While the Modern Slavery Act 2015, discussed above dropped the recognizably racist restriction to ‘white slavery’, this modern criminal legal scheme nonetheless endorses the sharp distinctions between modern slavery and other forms of commercial sex.49 The effect of doing so is to place some commercial sex beyond the scope of criminal law’s concern. For example, by focusing only on the most extreme cases, such as those involving kidnapping, threats of death, and serious violence—​and limiting the scope of concern to modern slavery and trafficking involving undocumented immigrants—​the law fails to address exploitation and harms in the domestic commercial sex industry. With this brief descriptive outline of the relationship between commercial sex and criminal law in view, this chapter now sets out a normative account of criminalization and puts it to use in considering various arguments regarding the proper role of criminalization when it comes to commercial sex.

1.  Criminalization and Commercial Sex: A Normative Account A normative account of criminalization aims to set out ‘the principles and values that should guide decisions about what to criminalize and about how to define offenses’.50 As Duff, et al have rightly observed: [N]‌o philosophical account of the criminal law can be expected by itself to yield determinate conclusions about what ought to be criminalized in a particular social, political, and historical context—​though such accounts should have something to say about the kinds of considerations, both practical and principled, that should be relevant, and how they should be evaluated.51

This section aims to set out some of the principled considerations that should guide our thinking about criminalization and commercial sex (more practical considerations will be examined in the following sections below). Three key principles will guide our discussion regarding criminalization and commercial sex: the principle of minimalism; modest legal moralism; and the harm principle. First, the principle of minimalism provides that criminalization ‘should be reserved for the most serious invasions of interests’.52 Endorsing a principle of minimalism entails recognition that law should typically be regarded as a ‘last resort’, given that there are oftentimes less restrictive and punitive means available. As Andrew Ashworth observes, ‘[public] 48 International Convention for the Suppression of the White Slave Traffic 1910. 49 This sharp distinction is almost universally rejected in feminist political discourse, but advocates are divided as to which category should be abandoned: modern slavery, or sex work? Jo Doezema, ‘Loose Women or Lost Women? The Re-​emergence of the Myth of White Slavery in Contemporary Discourses of Trafficking in Women’ (2000) 18 Gender Issues 23; Julie Bindel, ‘Most “Sex Workers” are Modern-​Day Slaves: Prostitution is Rarely, if Ever, a Choice’ The Spectator (19 August 2017) accessed 15 May 2018. 50 RA Duff and others, ‘Introduction:  Towards a Theory of Criminalization?’ in RA Duff and others (eds), Criminalization: The Political Morality of the Criminal Law (OUP 2014) 1. 51 ibid 19. 52 Andrew Ashworth, Principles of Criminal Law (OUP 2006) 33.

Sex, Work, and Criminalization  183 morality, social convention, and peer pressure are three informal sources of control, and in many spheres it seems preferable to leave the regulation of certain unwelcome behaviour to those forces’.53 This principle counsels in favour of public education campaigns, civil legal remedies, and other non-​punitive approaches to transforming social norms that sustain and perpetuate inequalities and exploitation, rather than using the blunt instrument of criminalization to eliminate the causes and consequences of the commercial sex industry. Second, modest legal moralism is a principle of criminalization ‘according to which only certain kinds of wrong are even in principle candidates for criminalization’.54 The central idea here is that the criminal law ought not be used to address any and all kinds of wrongs—​ but only public wrongs—​that is, wrongs which the public (here, the state) would be justified in condemning and punishing.55 As such, even if there is something wrong about commercial sex, that fact provides no reason in favour of criminalization unless it is a public wrong.56 The basic idea here is simply that some wrongs are simply ‘not the criminal law’s business’.57 For example, recall Elizabeth Anderson’s argument that commercial sex is wrong insofar as it ‘destroys the kind of reciprocity required to realize human sexuality as a shared good’.58 Consistent with modest legal moralism (although not relying on that terminology) Anderson recognizes, this fact alone does not provide a reason to criminalize commercial sex.59 The third key principle that should guide criminalization regarding commercial sex is the presumption of non-​interference, grounded in the harm principle. According to its most recognizable formulation, this principle provides that ‘the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others’.60 Importantly for our discussion, the harm principle must be read alongside a modifying maxim: volenti non fit injuria (to one who consents, no wrong is done).61 The scope and meaning of the harm principle and volenti maxim, as a unified whole, is complicated and subject to much debate.62 One point of widespread agreement, however, is that where people choose to engage in some activity based on a genuine preference to do so, under conditions where they enjoy an adequate range of valuable alternatives consistent with human flourishing, there is a strong case to be made against the criminal law interfering with that choice. Let us refer to this as the presumption of non-​interference. That said, in applying this presumption, one must be attentive not only to direct harms, but to indirect harms as well. Direct harms include those core criminal offences such as battery,

53 ibid. 54 Antony Duff, The Realm of Criminal Law (OUP 2018) 75. 55 Here, I leave aside my standing debate with Duff regarding what such justification would entail. Michelle Madden Dempsey, ‘Public Wrongs and the “Criminal Law’s Business”:  When Victims Won’t Share’ in Rowan Cruft, Matthew Kramer, and Mark Reiff (eds), Crime, Punishment and Responsibility: The Jurisprudence of Antony Duff (OUP 2011); Duff, Realm (n 54) 94–​101. 56 For example, recall Elizabeth Anderson’s argument that commercial sex is wrong insofar as it ‘destroys the kind of reciprocity required to realize human sexuality as a shared good’. Anderson (n 23) 153–​54. Consistent with modest legal moralism (although not relying on that terminology) Anderson recognizes, this fact does not provide a reason to criminalize commercial sex. Anderson (n 23) 150–​58. 57 Duff, Realm (n 54) 76, quoting ‘Wolfenden’ (n 43) [61]. 58 Anderson (n 23) 153–​54. 59 Anderson (n 23) 150–​58. 60 John Stuart Mill, On Liberty (first published 1859, Dover Publications 2002) 8. 61 Joel Feinberg, Harm to Others: The Moral Limits of the Criminal Law (vol. 1) (OUP 1984) 35–​36. 62 Michelle Madden Dempsey, ‘The Volenti Maxim’ in Peter Schaber and Andreas Müller (eds), The Routledge Handbook of the Ethics of Consent (Routledge 2018).

184  Criminality at Work rape, murder, etc, (malum in se offences) in which the conduct targeted for criminalization bears a direct causal link to the harm sought to be prevented by the criminal law.63 Indirect harms, however, involve conduct that contributes to causing the harm sought to be prevented by the criminal law. In what follows, this chapter will apply these normative principles of criminalization to four different accounts of commercial sex:  commercial-​sex-​as-​work; commercial-​sex-​ as-​exploitation; commercial-​sex-​as-​modern-​slavery; and commercial-​sex-​as-​varied. Each section below explains how the particular account under examination draws upon one or more of the conceptualizations of commercial sex outlined in the first section of this chapter, and takes into consideration the philosophical issues discussed in section B. As we will see, each account differs rather dramatically as to the appropriate relationship between commercial sex and the criminal law.

2.  Criminalization and ‘Commercial-​Sex-​as-​Work’ As its name suggests, the ‘commercial-​sex-​as-​work’ account views commercial sex as a legitimate labour market. It draws upon the conceptualization of commercial sex as sex work—​the exchange of sexual services for valuable consideration, under circumstances in which the persons providing sexual services: (1) regard the commercial sex as a form of labour; and (2) prefer to engage in commercial sex over these alternative options, despite (3) having an adequate range of valuable alternatives for engaging in forms of labour that are consistent with human flourishing. On this account, the appropriate role for criminalization is limited to egregious abuses (malum in se criminal offences), along with basic health and safety regulations (mala prohibita criminal offences). Since commercial sex is understood as sex work, and sex work is understood as a choice based on a genuine preference from amongst an adequate range of valuable alternatives consistent with human flourishing, the harm principle (along with volenti maxim) grounds a strong presumption of non-​interference by the criminal law. That point holds even if the preference to engage in sex work is an adaptive preference (for, as explained above, adaptive preferences are not inconsistent with autonomous choice).64 Pursuant to the principle of modest legal moralism, arguments in favour of criminalizing commercial sex on grounds of commodification are deemed insufficient to overcome this presumption of non-​interference. Perhaps the strongest argument in favour of criminalizing commercial sex according to a sex-​as-​work account is based on the notion of indirect harm, grounded in the claim that commercial sex perpetuates structural inequalities of gender, economics, etc. Still, pursuant to the principle of minimalism, before such concerns could overcome the presumption of non-​interference, it must be established that alternative methods are insufficient to address this problem, such that criminalization would, in fact, be a last resort. Given that this account assumes that people providing sexual services are choosing to do so

63 A malum in se offence is deemed wrong in and of itself and thus forms the core criminal offences; whereas mala prohibita offences are deemed wrong because they are prohibited. The distinction is well recognized but, admittedly, unstable and perhaps more obscuring than clarifying. Duff, Realm (n 54) 20–​22. See below at text to (n 69) for questions regarding how this distinction applies in health and safety regulations regarding condoms. 64 Text and notes at (n 36–​39).

Sex, Work, and Criminalization  185 from amongst an adequate range of valuable options, any concerns regarding the tendency of commercial sex to perpetuate structural inequality in general are deemed inadequate to overcome the presumption of non-​interference. A sex-​as-​work account does, however, take on board the fact that sex workers face violence and abuse (that would clearly count as malum in se criminal offences) at rates far higher than typical labourers.65 Yet, the preferred response to this fact under this account is to demand that the criminal law respond to such violence by directly holding accountable those who perpetrate it, rather than enacting a blanket prohibition on sex work. That is, the criminal law should investigate, arrest, and prosecute sex buyers and others who commit rape, battery, murder, etc. Moreover, in so doing, police and prosecutors should treat sex workers with respect and dignity, affording them the full protections of criminal laws designed to prevent such malum in se violence.66 When it comes to the health and safety of sex workers, the role of the criminal law becomes more complicated. First, it is somewhat difficult to determine if the conduct at issue would best be understood as mala prohibita (as most labour health and safety laws would generally be understood), or whether the conduct should be regarded as malum in se. Take the example of condom use. Clearly, criminal regulation designed to protect the health and safety of sex workers would include a requirement that sex buyers use condoms. What, then, if a sex buyer slips off the condom mid-​coitus? Does this conduct merely violate a mala prohibita regulation designed for the promotion of health and safety—​or does it negate the consent of the sex workers and thus constitute the malum in se offence of rape?67 Another complication regarding health and safety laws in the context of sex work arises by virtue of the fact that such laws generally apply to employers for the protection of employees.68 Yet, where one engages in sex work as an independent contractor, it is not clear how the sex-​as-​work account would wish to design laws to provide health and safety protections. Moreover, as Adrienne Davis observes, even in contexts where there is a clear employer–​employee relationship, ‘there are unique characteristics of sex work that make it much harder to assimilate . . . current [health and safety] regulatory regimes’ into this context.69 For example, ‘monitoring and enforcing health and safety violations [for sex work occurring] in streets, private homes, hotels, and the like will be highly challenging’ due to the lack of a fixed worksite.70 So, too, in fixed worksites such as brothels and strip clubs, commercial sex often takes place in private rooms, and ‘it is during these proximate interactions, while isolated from others, that clients are most likely to’ engage in conduct that jeopardizes the health and safety of sex workers.71 Thus, even with the best intentions of doing so, designing effective health and safety regulations may prove especially difficult in the context of sex work. 65 Hilary Kinnell, Violence and Sex Work in Britain (Willan Publishing 2008). 66 Rebecca Campbell and Hilary Kinnell, ‘ “We Shouldn't Have to Put Up with This”:  Street Sex Work and Violence’ (2000) 42 Criminal Justice Matters 12. 67 Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), [2011] 11 WLUK 63; AP Simester and others, Simester and Sullivan’s Criminal Law: Theory and Doctrine (4th edn, Hart 2010) 475. 68 Ford (this volume). 69 Adrienne D Davis, ‘Regulating Sex Work: Erotic Assimilationism, Erotic Exceptionalism, and the Challenge of Intimate Labor’ (2015) 103 California Law Review 1195. 70 ibid 1201. 71 ibid 1252.

186  Criminality at Work

3.  Criminalization and ‘Commercial-​Sex-​as-​Exploitation’ A commercial-​sexual-​exploitation account (CSE account) recognizes a strong distinction between commercial sex and labour, due to the structural inequalities, abuse, and ­relative lack of autonomy experienced by people who sell sex. That is, while the sex-​as-​work ­perspective views people who provide sexual services as freely choosing from amongst an adequate range of valuable options, a CSE account accuses the sex-​as-​work account of being naïve to the practical realities of commercial sex. According to the CSE account, people rarely if ever choose to sell sex in this robustly free and empowered sense—​which is to say, very little if any commercial sex actually constitutes sex work. Since commercial sex is understood as exploitative under the CSE account, the harm principle (along with volenti maxim) grounds a considerably weaker presumption of non-​interference by the criminal law.72 Indeed, the tendency of commercial sex to perpetuate structural inequalities of gender, economics, etc, and thus increase the prevalence of commercial sexual exploitation, is typically viewed as sufficient to overcome this presumption. (Although, consistent with the principle of minimalization, the CSE account does not look exclusively to punitive criminalization to address these concerns. Instead, public education campaigns and diversion from criminal courts feature prominently in the CSE account’s toolbox.73) Moreover, while concerns regarding commodification do not, on their own, establish a case in favour of criminalization, they are thought to lend weight insofar as the commodification is particularly gendered. For, according to a CSE account, the gendered commodification of sex reinforces the structural inequalities that make commercial sex a proper target of criminalization. That said, the case in favour of criminalizing commercial sex according to a CSE account is directed only towards those actors who benefit from the exploitation. Specifically, the targets of criminalization on the CSE account include only pimps/​traffickers and sex buyers—​not those providing sexual services.74 According to a CSE account of commercial sex, the conduct of pimps/​traffickers are viewed as causing direct harm insofar as they are engaged in conduct of abusing structural and individual vulnerabilities, such as patriarchal-​precarity, of those whom they exploit.75 As such, these actors are deemed to be committing malum in se offences and are proper targets of criminalization and punishment proportionate to the seriousness of their offences. When it comes to sex buyers, however, matters are somewhat more complicated. It is not clear on this account that sex buyers cause direct harm.76 Rather, on a CSE account, sex

72 As Jennifer Collins observes, ‘there is a need for a multi-​faceted legal response to serious exploitation in work relations, which may include, but must extend beyond, criminalization’. Collins (this volume). 73 For examples of the range of non-​criminal approaches consistent with a CSE account of commercial sex, see the initiatives undertaken by the Ending Exploitation Collaborative accessed 3 November 2018. 74 A CSE account of commercial sex, and the kind of criminalization policies outlined above, inform what is referred to as the ‘Nordic Model’—​which, presently, has been adopted in Sweden, Norway, Iceland, Canada, France, Northern Ireland, the Republic of Ireland, and Israel. Michelle Madden Dempsey, ‘Sex Trafficking and Criminalization: In Defense of Feminist Abolitionism’ (2010) 158 University of Pennsylvania Law Review 1729. 75 See text at (nn 27–​35) regarding patriarchal-​precarity. 76 Although, of course, a CSE account also takes on board the facts discussed above regarding malum in se ­offences (rape, battery, etc) often committed by sex buyers. Text and notes (nn 66–​67). The discussion here ­concerns sex buyers who do not commit such offences, but merely purchase sex.

Sex, Work, and Criminalization  187 buyers are understood as committing indirect harms by creating the market demand that drives the commercial sex trade in which sex sellers are exploited.77

4.  Criminalization and ‘Commercial-​Sex-​as-​Modern-​Slavery’ The ‘commercial-​sex-​as-​modern-​slavery’ account takes a significantly different view of the practical realities of the commercial sex trade and, not surprisingly, presents its own recommendations when it comes to the proper scope of criminalization. We can begin by identifying two distinct perspectives which inform this account. The first is a socially conservative, morally puritanical perspective which assumes that anyone providing sexual services for compensation must be doing so under threat of force, or other form(s) of extreme third-​ party coercion. On this view, the paradigmatic victim is a young, innocent, helpless girl who has been tricked, kidnapped, or otherwise forced into sex-​trafficking/​modern slavery.78 The second is a socially progressive, feminist perspective, which views the commercial sex industry as fundamentally grounded in structural inequalities of gender, race, sexuality, class, and economic injustice. On this view, the commercial sex trade is neither ‘just work’ like any other labour market, nor is it merely a matter of exploitation. It is, rather, a matter of what Kathleen Barry famously coined, ‘female sexual slavery’.79 As its name suggests, this account conceptualizes commercial sex as consisting mostly of modern slavery. Accordingly, as noted above, the person providing sexual services is understood to be entirely without agency, and the volenti maxim thus does nothing to ground a presumption of non-​interference from the criminal law. Rather, according to this account, the harm principle is clearly satisfied on grounds that the victims of modern slavery are subjected to direct non-​consensual harms. Moreover, the wrongful conduct and harms inflicted on its victims are of the worst kind—​malum in se offences involving violence and threats resulting in literal enslavement. As such, the wrongs committed easily satisfy the threshold of constituting public wrongs (thus satisfying the principle of modest legal moralism). Finally, on the commercial-​sex-​as-​modern-​slavery account, the wrongdoers are understood to be working in coordinated groups (‘organized crime’80) which require the full investigatory resources and punitive force of the criminal justice system. Thus, while the principle of minimalization plays a restraining role in the other accounts surveyed above, it bears little force when it comes to criminalizing those who perpetrate modern slavery. When it comes to criminalizing sex buyers, however, matters again become slightly more complicated. Where someone buys sex from a victim of modern slavery, the sexual act is understood as tantamount to rape, in light of the utter lack of autonomy exercised by the victim.81 For recall that on this account, the victim is understood as having been subjected to ‘a brutal form of organized crime in which people are treated as commodities and

77 Dempsey, Feminist Abolitionism (n 74) 1752–​62. 78 Janie A Chuang, ‘Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-​Trafficking Law and Policy’ (2010) 158 University of Pennsylvania Law Review 1655. 79 Kathleen Barry, Female Sexual Slavery (NYU Press 1984). 80 Text and notes (n 17). 81 Evelina Giobbe, ‘Prostitution:  Buying the Right to Rape’ in Ann Wolbert Burgess (ed), Rape and Sexual Assault III: A Research Handbook (Garland Science 1991).

188  Criminality at Work exploited for criminal gain’.82 Not surprisingly, then, criminalization of buyers is deemed appropriate in such cases.83 As noted above, criminalization under the ‘commercial-​sex-​as-​modern-​slavery’ account focuses primarily on organized criminal gangs recruiting or kidnapping victims and subjecting them to modern sexual slavery. While neither of the two perspectives that motivate this account (conservative religious and progressive feminist) incorporate a particular focus on border security or irregular migration, there is little doubt that recent political and legal discourses have adopted the modern slavery discourse to motivate concerns regarding immigration and justify harshly punitive state action against refugees and other irregular migrants.84 In so doing, this account: [C]‌ondemn[s] as ‘modern slavery’ the application of coercive pressures on migrants [by non-​state actors], but simultaneously  . . .  endorse[s] the application of ever more coercive pressures on migrants by states, often in the name of protecting them from ‘modern slavery’.85

5.  Criminalization and ‘Commercial-​Sex-​as-​Varied’ The three accounts outlined above embrace starkly divergent understandings of commercial sex and recommend correspondingly different roles for criminalization. This final account, however, adopts a more complex understanding of commercial sex, as potentially encompassing each of the other three accounts, to greater or lesser extents. On the ‘commercial-​sex-​as-​varied’ account, there is room to accommodate an understanding of commercial sex as either sex work, commercial sexual exploitation, and/​or modern slavery. This account recognizes that multiple variables intersect in any given society, and in any individual person’s experience, to shape and inform whether they are engaging in sex work, being subjected to commercial sexual exploitation, or are a victim of modern slavery. Recognizing the explanatory power of each of these different accounts . . .  has the potential to move discourse away from the master narratives currently employed in existing debates about the commercial exchange of sexual acts . . . and how the law should and may respond to them.86

In addition to acknowledging the potential diversity of commercial sex, the commercial-​ sex-​as-​varied account embraces many of the criminalization recommendations on offer from each of the three previous accounts. For example, this account counsels in favour of using the full investigatory and punitive force of the criminal law to address malum in se 82 Explanatory Notes MSA (n 17) [4]‌. 83 The more controversial view is whether such criminal penalties should apply even in cases where the sex buyer is not aware that the person providing sexual services is a victim of modern slavery, as in Sexual Offences Act 2003, s 53A (‘Paying for Sexual Services of a Prostitute Subjected to Force etc’). 84 Text and notes (nn 20–​21). 85 Julia O’Connell Davidson, ‘New Slavery, Old Binaries: Human Trafficking and The Borders of “Freedom” ’ (2010) 10 Global Networks 244, 255. 86 Debra M Haak, ‘Re(de)fining Prostitution and Sex Work:  Conceptual Clarity for Legal Thinking’ (2019) Windsor Review of Legal and Social Issues 40.

Sex, Work, and Criminalization  189 violence committed against people engaged in commercial sex, no matter what conceptualization of commercial sex is at issue. Additionally, it views both violent and non-​violent exploitation by pimps and/​or traffickers as serious public wrongs that inflict direct harms which cannot adequately be addressed through non-​criminal means. As Collins observes with respect to seriously wrongful exploitation in other employment contexts, criminalization is appropriate in such cases because ‘we require what is distinctive from the criminal law—​a strong condemnatory state response which penalizes serious wrongdoing’. Thus, consistent with the normative principles of criminalization discussed above, this account endorses criminalization of anyone who exploits persons providing sexual services.87 Once again, however, when it comes to criminalization of sex buyers, matters become rather more complicated. Given the potential diversity of commercial sex in any given society, this account acknowledges that some of it may constitute sex work. If so, then (as discussed above) there is a strong presumption in favour of non-​interference by the criminal law.88 This presumption, however, is not irrebuttable. The question then remains: what considerations might be sufficient to justify criminalizing sex buyers in a context where (at least some of) the commercial sex counts as genuine sex work, rather than constituting commercial sexual exploitation or modern slavery? In answering this question, it is helpful to disaggregate two versions of the commercial-​ sex-​as-​varied account. One version of (let us call it the delineated-​market-​segments version) holds that distinctions between sex work, commercial sexual exploitation, and modern slavery reflect sharply delineated market segments, such that the legalization of sex buying (market demand) in one segment will not impact the number or frequency of sex buying activity in other segments. If this version is correct, then it may be possible to permit market demand to flourish unrestricted when it comes to sex work, while still prohibiting the purchase of sex in segments that involve commercial sexual exploitation and/​or modern slavery. The other version of the commercial-​sex-​as-​varied account (let us call it the non-​ delineated-​market-​segments version) cautions that permitting market demand to flourish unrestricted when it comes to sex work is likely to increase market demand across all forms of commercial sex, including commercial sexual exploitation and modern slavery. The most plausible version remains a matter for further investigation, but recent empirical research suggest that the non-​delineated market version reflects current conditions.89 If permitting market demand to flourish unrestricted with regard to sex work results in an increase in sex buying activity when it comes to commercial sexual exploitation and/​ or modern slavery, then the normative principles of criminalization outlined above may favour criminalizing the purchase of sex per se. For, while commercial sex occurring in the context of sex work would still be entitled to a strong presumption of non-​interference, that presumption may be overcome insofar as increased market demand increases commercial sexual exploitation and modern slavery. To better understand the gist of this argument, let us start with the plausible assumption that where buying sex is not criminalized, there will be a larger number of people seeking to buy sex (and perhaps buying sex at greater frequencies) than there otherwise would be. 87 Text and note (n 53). We require what is distinctive from the criminal law—​a strong condemnatory state response which penalizes serious wrongdoing. 88 Text and notes (nn 60–​62). 89 Seo-​Young Cho, Axel Dreher, and Eric Neumayer, ‘Does Legalized Prostitution Increase Human Trafficking?’ (2013) 41 World Development 67.

190  Criminality at Work That is, market demand for commercial sex will increase as compared to the level of demand that would exist if buying sex were prohibited by criminal law. The question then presents itself: how will this increased market demand be met? Consider two alternatives. First, the increased demand will be met by a large enough supply of people who voluntarily choose to perform sex acts for money, and they do so under non-​exploitative and non-​ abusive conditions. If this happens, then the increased demand for commercial sex will lead to an increase only with respect to sex work, not commercial sexual exploitation or modern slavery. Second, there will not be a large enough supply of people who choose to perform sex acts for money, or they will choose to do so under exploitative or abusive conditions. If this happens, then the increased demand for commercial sex will be met by people providing commercial sex under conditions that constitute commercial sexual exploitation and/​ or modern slavery.90 According to an analysis conducted by Cho, Dreher, and Neumayer, the second answer reflects the reality of what has happened in multiple jurisdictions: even though buyers would prefer to buy sex from sex workers and not from people subjected to commercial sexual exploitation or modern slavery, the scale effect of increased market demand nonetheless increases exploitative and abusive forms of commercial sex, because there are not enough people on the supply side who are engaging in commercial sex under conditions that are non-​exploitative.91 All of this suggests that the criminal law may have a justifiable role to play in prohibiting the purchase of sex per se, if legalization would increase demand and thus increase commercial sexual exploitation and/​or modern slavery. Of course, the principle of minimalism would still counsel in favour of non-​criminal solutions (eg education) to reduce demand and thus prevent an increase in commercial sexual exploitation and/​or modern slavery. However, if non-​criminal alternatives proved inadequate, then criminalizing the purchase of sex per se could be justified.92

E.  Conclusion This chapter has offered a taxonomy of ways in which commercial sex is often conceptualized in modern political and legal discourse, addressed various philosophical issues that arise when viewing sex as a form of labour, and set out a normative account of the proper role of criminalization when it comes to commercial sex. Let us end by returning to the first question raised at the outset of this chapter: Is commercial sex properly regarded as work? The account offered here concedes that while it is possible to conceptualize commercial sex as sex work, there is no universal answer to the question of whether commercial sex actually is, in practice, properly regarded as work. Rather, most or all instances of commercial sex might just as well be best regarded as commercial sexual exploitation or even modern slavery. That is to say, merely acknowledging that commercial sex can be conceptualized as work does not justify the conclusion that commercial sex is, in fact, properly regarded as work. Rather, the answer to our question depends on the extent to which the actual practice 90 In terms of economic theory, the market demand for commercial sex will experience a substitution effect: since the supply of non-​exploitative/​non-​abusive commercial sex will be insufficient to meet the demand for commercial sex, those seeking to buy sex will substitute with exploitative and/​or abusive forms of commercial sex. 91 Cho, Dreher, and Neumayer (n 89). 92 Dempsey, Rethinking Wolfenden (n 44); Dempsey, Feminist Abolitionism (n 74).

Sex, Work, and Criminalization  191 of commercial sex in a given society is shaped by precarities such as patriarchal, economic, and other structural inequalities. When placed into dialogue with the normative account of criminalization set out herein, the implications are two-​fold. First, rather uncontroversially, criminalizing pimping, trafficking, and buying sex is permissible in circumstances where, in practice, commercial sex constitutes commercial sexual exploitation and/​or modern slavery. Second, perhaps more controversially, where the commercial sex industry is varied (that is, where some of the commercial sex is sex work, some is commercial sexual exploitation, and some is modern slavery), then the criminal law may have a justifiable role to play in prohibiting the purchase of sex per se, in order to reduce market demand that would otherwise increase commercial sexual exploitation and/​or modern slavery.

10

The Work of Sex Work Prostitution, Unfreedom, and Criminality at Work Katie Cruz*

A.  Introduction The central and uniting demand of the sex worker rights movement around the world is the decriminalization of consensual adult sex work. This is based on the recognition that criminal law intervention makes sex workers less, rather than more, safe and that sex workers are engaged in a legitimate form of work, not the commission of a crime. A core task of activists and academics has been amassing evidence that criminalization of the seller, buyer, and associated activities impacts negatively on the safety and well-​being of sex workers. The core focus of this chapter is the claim that sex workers, and specifically prostitutes, are engaged in a legitimate form of work that should not be criminalized.1 In activism and scholarship there are two perspectives that contest criminalization on the basis that sex work, including prostitution, is a legitimate form of work. The first focus is on the sex of sex work. The second focus is on the work of sex work. Those who take the latter perspective charge those who take the former with paying insufficient attention to the working conditions and lives of sex workers as workers. Academics and activists who focus on the work of sex work therefore argue for full decriminalization of consensual sex work and the extension of labour law protections. If achieved, such changes would necessitate engagement with the actual and desirable application of criminal law to personal work relations. However, those who focus on the work of sex work have not thought through the implications of their demands for labour rights and criminalization in the (sex)workplace. This chapter has four parts. The first part is contextual. I outline the case for decriminalization of adult consensual sex work, and more specifically prostitution, on the grounds of safety and well-​being. I then move on to contesting criminalization on the basis that prostitution is a legitimate form of work, drawing attention to a focus on either the sex or work of prostitution. In previous research, I have argued that the work position often conflates de jure with de facto access to labour rights. In the second part, I extend this argument and propose that the work perspective pay greater attention to the continuing role of criminalization in the (sex)workplace in decriminalized jurisdictions. Third, I outline a Marxian * I would like to thank Manuel Cruz, Alan Bogg, Mark Freedland, Julia O’Connell Davidson, Jacqueline Sanchez Taylor, Katie Bales, and Michael Ford QC who have all generously engaged with the ideas in this paper. Special thanks goes to Manuel for his top-​notch editorial skills. 1 My use of the term prostitution may seem jarring and confusing to some, particularly given its strong association with abolitionist and radical feminisms. I use the term to refer to a specific form of sex work that involves, but is not limited to, payment for a particular service (intercourse) that is immediately consumed by the customer and not filmed and turned into content for further consumption. I use the term sex worker to refer to those who perform this work. Katie Cruz, The Work of Sex Work In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.010

Prostitution, Unfreedom, and Criminality at Work  193 methodology for describing and evaluating criminalization of personal work relations. Fourth, I apply this methodology and offer the work position some provisional remarks about the potential of worker-​protective criminal and civil laws for addressing the unfreedom of sex worker employees of brothels in England and Wales (if prostitution related activities were decriminalized). I focus on criminal and civil laws that relate to health and safety and coerced or forced labour because these are laws that those who view prostitution as work support. However, I spend a relatively short amount of time applying my methodology to these laws. Instead, I spend a good chunk of this chapter focusing on why criminality at work is an important issue for those who view prostitution as work and how it can be engaged with from a Marxian perspective. Overall, I hope to incite future lines of enquiry, debate, and discussion with the sex worker rights movement, union activists, labour and criminal lawyers, about the relationship between criminality at work and worker freedom.

B.  The Case for Decriminalization: Safety, Sex, and Work Sociologists and socio-​legal scholars argue that we are in the midst of an ‘unprecedented rise in, and increased visibility of, sexual commerce and consumption and a corresponding growth in associated forms of regulation’.2 It may be impossible to cite reliable statistics on differentiation (eg the social and economic positioning of the sex workforce) and size of the sex industry (eg the number of brothel-​based workers compared to street workers). Sexual commerce has, however, diversified as a result of the shift to post-​industrial economies (in which service work and consumption dominate, leading to the expansion of leisure and night-​time economies); changing patterns of female migration as women move across the world to secure futures for themselves and their families (no doubt related to the swelling global reserve army of labour following new rounds of primitive accumulation and mass dispossession); postmodern sexual attitudes (wherein the marketization of sex is increasingly acceptable, leading to increased consumption and visibility); and technological transformations (the proliferation of online pornography, web-​camming, and online advertising).3 There is also diversity within each type of sex work. The focus of this chapter, prostitution, ‘is extremely differentiated’. For example, female prostitution: [R]‌anges from well-​paid self-​employed workers, working in private apartments with a high degree of control over their work and providing services beyond ‘intercourse’ (the girl friend experience, companionship, attending events, conversation) to women working on

2 Jane Scoular and Teela Sanders, ‘Introduction:  The Changing Social and Legal Context of Sexual Commerce: Why Regulation Matters’ (2010) 37(1) Journal of Law & Society 1. 3 See, eg, Mechthild Hart, ‘Women, Migration, and the Body-​Less Spirit of Capitalist Patriarchy’ (2005) 7(2) Journal of International Women’s Studies 1; Barbara Ehrenreich and Arlie Hochschild (eds), Global Woman:  Nannies, Maids, and Sex Workers in the New Economy (Metropolitan Books 2002); Jane Scoular and others, ‘Away from Prying Eyes? The Urban Geographies of “Adult Entertainment” ’ (2008) 32(3) Progress in Human Geography 363; Elizabeth Bernstein, Temporarily Yours:  Intimacy, Authenticity, and the Commerce of Sex (University of Chicago Press 2007); Katie Cruz, ‘Beyond Liberalism: Marxist Feminism, Migrant Sex Work, and Labour Unfreedom’ (2018) 26(1) Feminist Legal Studies 65; Sue Ferguson and David McNally, ‘Precarious Migrants: Gender, Race and the Social Reproduction of a Global Working Class’ in Leo Panitch and Greg Albo (eds), Transforming Classes: Socialist Register (Merlin Press 2015) 1–​23.

194  Criminality at Work the streets or in brothels, in assembly line conditions, tightly supervised and often in fairly risky situations.4

Sex worker rights activists and scholars argue that prostitution is a form of sex work and must be decriminalized. In this part, I outline two perspectives that argue for decriminalization on the basis that prostitution is a legitimate form of work. The first focus is on the sex of prostitution and criminalization is understood to stem from the illegitimate and irrational stigmatization and ‘othering’ of sex workers’ private choice of sexual practice or sexual profession. The second focus is on the work of prostitution and criminalization is understood to label as a sexual offence what is in fact a highly gendered and racialized economic exchange, and to act as a barrier to accessing labour rights and protections. This distinction is important because the latter proponents charge the former with paying insufficient attention to the working conditions and lives of sex workers as workers. The prostitution as work perspective also disrupts the claim that those who do not equate prostitution with sexual exploitation are necessarily liberal or ‘sex work’ feminists, narrowly focused on defending it as a meaningful vocation, or an expression of individual choice and sexual agency.5 I make two observations about the work position. First, it contains a nuanced sociological understanding of the work of prostitution, which is persuasively connected to calls for decriminalization. However, those who view prostitution as work tend to (incorrectly) assume that sex workers in prostitution have labour rights and that criminalization ends when labour regulation begins.6 I pause, however, to briefly outline the rigorously evidenced harm reduction and safety case for the decriminalization of adult consensual sex work being made by sex-​worker-​rights activists, academics, and non-​governmental organizations.

1.  Safety and (De)criminalization Sex worker rights activists and their allies and are united on the need for decriminalization of prostitution-​related activities. Criminalization makes sex work less safe for those selling sex and normalizes their abuse by clients and third parties, including bosses and the police. For ten years I have been organizing with sex worker rights and anti-​capitalist feminist groups in London, Jamaica, and with European-​based organizations that support decriminalization. I have conducted empirical research with sex workers and sex worker rights activists in the UK and Jamaica, and I have co-​written an article based on empirical research with the Argentinian sex worker rights organization AMMAR.7 As a result, 4 Camille Barbagallo and Silvia Federici, ‘Introduction’ (2012) 15 (Winter) The Commoner, Care Work and the Commons 1. 5 Catharine MacKinnon, ‘Trafficking, Prostitution, and Inequality’ (2011) Harvard Civil Rights-​Civil Liberties Law Review 271; Michelle Madden Dempsey, ‘Sex Trafficking and Criminalization:  In Defense of Feminist Abolitionism’ (2010) 158 University of Pennsylvania Law Review 1729; Sheila Jeffreys, The Industrial Vagina: The Political Economy of the Global Sex Trade (Routledge 2008). 6 This relative lack of attention to legal details when compared to the careful sociological explanation of the work of sex work has been commented upon in relation to academic research: Jane Scoular, The Subject of Prostitution: Sex Work, Law and Social Theory (Routledge 2015). My argument is that activists are also prone to this asymmetry of attention. 7 Katie Cruz, ‘Unmanageable Work, (Un)liveable Lives: The UK Sex Industry, Labour Rights and the Welfare State’ (2013) 22 Social Legal Studies 465; Katie Cruz, Within and Against the Law: UK Sex Worker Rights Activism and the Politics of Rights (PhD thesis, University of Nottingham 2015); Cruz, ‘Beyond Liberalism’ (n 3); Katie Cruz, Julia O’Connell Davidson, and Jacqueline Sanchez Taylor, ‘The Tourism Industry in Jamaica: Work, Slavery, Freedom?’

Prostitution, Unfreedom, and Criminality at Work  195 I agree with this consensus, which has found a foothold in some countries as well as national and international organizations. The countries that have decriminalized (some, not all) prostitution-​related activities include New Zealand, Australia (New South Wales, Queensland), Germany, Netherlands, and USA (Nevada). Reviews of existing research and consultation with sex workers and activists have been conducted by organizations that have no necessary investment in favouring decriminalization. After two years of primary and secondary research in Papua New Guinea, Hong Kong, Norway, and Argentina, in 2015 Amnesty International passed a resolution supporting decriminalization of all aspects of consensual adult sex work. The policy advocates the repeal, and commitment not to introduce, laws that criminalize the sale, purchase, and organization of sex-​work-​related activities, including brothel-​keeping. This is defended as a human rights position and harm-​reduction strategy to protect sex workers from abuse and violence. Amnesty International’s research has confirmed that laws criminalizing buyers and the organization of sex work related activities (such as brothel-​keeping) force sex workers to work in conditions that compromise their safety and discourage them from approaching the police for protection. It therefore recognizes the harm of criminal laws beyond those that directly target individual sex workers.8 Laws that criminalize buyers are framed as tackling demand but ‘in practice they can lead to sex workers having to take risks to protect their clients from detection by law enforcement, such as visiting locations determined only by their clients’.9 And even when not directly criminalized, sex workers are reluctant to turn to the police when crimes against them are committed. This is because the existence of laws that treat sex-​work-​related activities as a crime effectively allow the police to treat sex workers as criminals and sexual objects. The police are known to respond by arresting sex workers for prostitution-​related activities, closing or monitoring brothels with the attendant actual or potential fear of loss of earnings, denying that a crime has occurred or failing to investigate, practising extortion and enforcing sexual violence, including rape.10 In December 2018, a synthesis of all existing qualitative and quantitative data on the effects of criminalization on the health and well-​being of sex workers was published. The authors concluded ‘that, collectively, lawful or unlawful repressive policing practices linked to sex work criminalization (partial or full) are associated with increased risk of infection with HIV or STIs, sexual or physical violence from clients or intimate partners, and condom-​less sex’.11 Like Amnesty International’s policy, this report demonstrates that criminal laws that impact negatively on sex workers include those that criminalize the seller, buyer, and associated activities. Support for decriminalization on the basis that it makes the sale of sex safer has been voiced for some time. Feminist historian Judith Walkowitz describes a ‘shared assessment across generations of feminist historians in the US and UK’ about the modern history of 7(s1) Journal of the British Academy 191; Kate Hardy and Katie Cruz, ‘Affective Organizing:  Collectivizing Informal Sex Workers in an Intimate Union’ (2018) 63(2) American Behavioral Scientist 244. 8 Amnesty International, ‘Global Movement Votes to Adopt Policy to Protect Human Rights of Sex Workers’ (11 August 2015) www.amnesty.org/​en/​documents/​pol30/​4062/​2016/​en/​ accessed 23 April 2019. 9 ibid 13. 10 ibid 13; Cruz and others, ‘The Tourism Industry in Jamaica’ (n 7). 11 Lucy Platt and others, ‘Associations between Sex Work Laws and Sex Workers’ Health: A Systematic Review and Meta-​analysis of Quantitative and Qualitative Studies’ (2018) 15(12) PLOS Medicine 1, 42.

196  Criminality at Work prostitution that ‘positioned prostitution at the intersection of class and gender’. This perspective dates to the 1970s and ‘stands in contrast to the fierce disputes around sex work raging in other fields of study today’. Three key observations make up this consensus: (1) that prostitution is sexual labour, ‘an integral part of the survivalist strategy of the poor over many centuries’, (2) that ‘intensified policing had negative effects on women in the trade’, and (3) scepticism about ‘political campaigns, including feminist campaigns that repeatedly ended in legislation and other state actions that marked sex work from other forms of labour’.12 Longstanding sex worker rights organizations share this consensus. The English Collective of Prostitutes (ECP) is a UK-​based grassroots organization that also dates to the 1970s. For decades the ECP have provided legal casework support for women prosecuted with prostitution-​related offences, including brothel-​keeping charges faced by women working collectively.13 Like Walkowitz and other feminist historians, the sex worker rights movement and academics also insist that prostitution is a legitimate form of work and should not be criminalized. I now turn to the substance of this demand.

2.  Prostitution as Sex, Prostitution as Work ‘My Body, My Business’ is a key slogan of the sex worker rights movement. It usefully encapsulates the movement’s focus on the sexual nature of prostitution to ground the claim that it is work that should not be criminalized. Activists and academics who take this approach draw comparisons between sex workers and other marginalized groups who experience stigmatization and policing based on their perceived sexuality and/​or gender. Locating sex work within the rubric of consensual sexual behaviour, and calling for the end of criminal laws that punish non-​conforming sexual practices, resonates with gay, queer, and sex-​ positive theory and practice.14 Sex work is perceived to be an issue of sexual practice and sexual diversity, or, in other words, involves respect for ‘My Body’. Another way that the sex of prostitution grounds demands for decriminalization is the view that it is an important vocation. Sex workers and movement activists Juno Mac and Molly Smith have coined the term the ‘Erotic Professional’ to refer to sex workers who defend their work as a socially necessary celebration of ‘pleasure and desire’ against more puritanical social formations. The Erotic Professional, Mac and Smith argue, views herself ‘as answering a vocational “calling” that seems barely to have anything to do with being paid’.15 She freely chooses this sexual profession and insists it is ‘My Business’. Those who focus on the sex of prostitution to argue for decriminalization are therefore opposed to the stigmatization and ‘othering’ of sex workers’ private choice of sexual practice or sexual profession.16 12 Judith Walkowitz, ‘The Politics of Prostitution and Sexual Labour’ (2016) 82(1) History Workshop Journal 188, 189. 13 Cruz, Within and Against the Law (n 7); English Collective of Prostitutes website accessed 23 April 2019. 14 Gayle Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality’ in Carole S Vance (ed), Pleasure and Danger: Exploring Female Sexuality (Routledge & Kegan 1984) 275; Cruz, Within and Against the Law (n 7); Andrew Bainham and Belinda Brooks-​Gordon, ‘Reforming the Law on Sexual Offences’ in Belinda Brooks-​ Gordon and others (eds), Sexuality Repositioned: Diversity and the Law (Hart Publishing 2004) 261. 15 Juno Mac and Molly Smith, Revolting Prostitutes: The Fight for Sex Workers’ Rights (Verso 2018) 31. 16 Cruz, Within and Against the Law (n 7).

Prostitution, Unfreedom, and Criminality at Work  197 It is encouraging that in countries where some measure of decriminalization has occurred, or crimes against sex workers are treated as hate crimes, sex workers feel less stigmatized and more humanized.17 Yet continued discrimination against LGBTQ people, despite decriminalization and anti-​discrimination legislation, provides us with ample evidence of the persistence of stigma. A different critique of the focus on the sex of prostitution comes from within the sex worker rights movement. Addressing the ‘Erotic Professional’, Mac and Smith ‘sympathize with the wish to over-​emphasize pleasure, freedom, or power’.18 It can, they argue, feel better than being stigmatized, and can serve as a useful counter to those who consider sex workers to be victims. And Mac and Smith are not denying that some sex workers take sexual pleasure in their work.19 However, they argue that focusing on the sex of prostitution can gloss ‘over the material conditions of sex workers’ workplaces’20 and distract from the ultimate goal of securing labour rights and protections. For these activist critics, the material conditions of sex work—​as a form of gendered and racialized labour that subjects sex workers to varying levels of economic exploitation, abuse, and violence—​ are made less visible through a sole discursive association with minority sexual practices or as an idealized sexual profession. The work position elaborated by Mac and Smith is in line with the views of UK-​based sex worker rights activists, including the ECP and the x:talk project, and Argentinian activists AMMAR.21 It also chimes with the Marxist Feminist understanding of prostitution as a form of sexual labour.22 While prostitution is work, it is not necessarily good or socially valuable work. Sex work is on a par with the many other gendered, racialized, unrewarding, often degrading and highly exploitative service-​based jobs that are available to workers. Other relevant examples are domestic and care work. An important criterion that makes sex work the least bad option is that it often pays better than the alternatives. Take the example of Jamaica. The minimum wage, which is what tourism workers are paid and where most workers who are employed work, is a mere £40 a week. This can be made each day selling sex.23 The economic reality in the UK is not so different.24 Sex work, then, does not have to be valuable or decent (to the self or society) for it to be work and it is possible for workers to choose to engage in exploitative and degrading work. Choice and exploitation or degradation are not mutually exclusive. Those who focus on the work of prostitution therefore insist that decriminalization is necessary to address stigma and for recognition that sex workers are part of the working class.25 But it does not follow that sex workers in decriminalized jurisdictions have been recognized as workers in the eyes of the law. 17 Rose Campbell, ‘Not Getting Away with it:  Linking Sex Work and Hate Crime in Merseyside’ in Neil Chakraborti and Jon Garland (eds), Responding to Hate Crime: The Case for Connecting Policy and Research (Policy Press 2014); Cruz, Within and Against the Law (n 7); Mac and Smith (n 15); Gillian Abel and others, Taking the Crime Out of Sex Work: New Zealand Sex Workers’ Fight for Decriminalization (Policy Press 2010). 18 Mac and Smith (n 15) 33. 19 ibid  33–​37. 20 ibid 35. 21 Cruz, Within and Against the Law (n 7); Hardy and Cruz (n 7). 22 Cruz, ‘Beyond Liberalism’ (n 7). 23 Cruz and others, ‘The Tourism Industry in Jamaica’ (n 7). 24 English Collective of Prostitutes, ‘What’s a Nice Girl Like You Doing in a Job Like This? Comparing Sex Work with other Jobs Traditionally Done by Women’ (2019) accessed 23 April 2019. 25 Hardy and Cruz (n 7); Mac and Smith (n 15); Juno Mac, ‘Selling Sex Is a Working Class Job. It’s Time for Labour to Stand with Sex Workers’ (24 September 2018)  accessed 23 April 2019.

198  Criminality at Work In the next section, I unpack the work position’s assumption that sex workers in brothels have labour rights and that criminal law regulation ends when labour rights begin.

C.  Prostitution as Work: Labour and Criminal Law The prostitution as work position’s support for decriminalization is seldom linked to a clear vision of labour rights or criminal law regulation of personal work relations. What explains the gulf between the claim that sex workers are workers and the total lack of labour rights enjoyed in decriminalized jurisdictions? And if brothels employed sex workers what might be the ongoing role of criminal law in the workplace? I have engaged with the first question in my existing research. I offer a summary of this research to contextualize the second question, which I then pursue in the remainder of this chapter. The prostitution as work approach argues that prostitution should be viewed as a ‘job like any other’ and demands labour and human rights.26 These rights generally include: the right of refusal, health and safety protections including a safe working environment, anti-​ discrimination protections, including sexual harassment, adequate rest breaks, freedom of association, right to a private life, freedom from forced labour.27 Sometimes it is assumed that these rights are already enjoyed. Mac and Smith argue that in New Zealand brothels are now ‘governed by the same labour laws and employment protections that apply to many other workplaces’.28 But in all countries where prostitution has been decriminalized and/​or legalized sex workers are not enjoying the rights of employees or workers.29 I have previously argued that sex workers in the UK—​specifically erotic dancers—​are working in conditions of false self-​employment. The similarity in the organization of UK-​ based erotic dancing clubs and brothels make it reasonable to suggest that were prostitution viewed as legitimate labour those selling sex would also be falsely self-​employed.30 The lack of rights enjoyed therefore conflicts with the reality of working conditions in brothels. Taking UK labour law as an example, brothel-​based workers appear to fulfil the criteria for worker, and arguably employee, status.31 The ‘right of refusal’ that is demanded by sex workers and activists might be thought to prohibit a finding of employee status. A legislative example is provided by section 17 of the New Zealand Prostitution Reform Act 2003.32 26 Cruz, Within and Against the Law (n 7); Mac and Smith (n 15). 27 Mac and Smith (n 15); Scoular (n 6). 28 Mac and Smith (n 15) 194. 29 Cruz, ‘Unmanageable Work’ (n 7) and ‘Beyond Liberalism’ (n 3); Alice Orchiston, ‘Precarious or Protected? Evaluating Work Quality in the Legal Sex Industry’ (2016) 21(4) Sociological Research Online 1. 30 Cruz, ‘Unmanageable Work’ and Within and Against the Law (n 7); AL Daalder, Prostitution in the Netherlands Since the Lifting of the Brothel Ban (Boom Juridische Uitgevers 2007) argues that brothel-​based workers in the Netherlands are falsely self-​employed. 31 Cruz, ‘Unmanageable Work’ and Within and Against the Law (n 7); Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497. For a recent discussion of the elements of a contract of employment and worker status see Autoclenz Ltd (Appellant) v Belcher and others (Respondents) [2011] UKSC 41, [2011] 4 All ER 745. On ‘worker’ status see Pimlico Plumbers Ltd and another (Appellants) v Smith (Respondent) [2018] UKSC 29, [2018] 4 All ER 641. 32 Refusal to provide commercial sexual services: (1) Despite anything in a contract for the provision of commercial sexual services, a person may, at any time, ­refuse to provide, or to continue to provide, a commercial sexual service to any other person. (2) The fact that a person has entered into a contract to provide commercial sexual services does not of itself ­constitute consent for the purposes of the criminal law if he or she does not consent, or withdraws his or her consent, to providing a commercial sexual service.

Prostitution, Unfreedom, and Criminality at Work  199 Employee status requires demonstration of ‘control’ on the part of the employer, ‘mutuality of obligation’ to offer (employer) and perform work (employee), and an obligation to personally perform the work. However, the level of control exercised by an employer is only one factor to be considered and no longer holds the prominent place it once did in determining employee status. In any case, brothel-​based sex workers are subject to levels of control and discipline that would likely fulfil this requirement.33 It is also not clear that refusing a particular client would be viewed as a refusal to perform work per se, and many brothel workers are allocated hours on a rota system, face a fine or dismissal for non-​attendance, and are prohibited from substituting their labour.34 It may be that the toughest, but not insurmountable, legal hurdle to employee status is the byzantine payment system used in much of the sex industry.35 The following description is typical: A manager of the venue will typically set the prices for sexual services. Each worker will pay a percentage to the manager of the amount paid directly to her by the customer. The payment of a percentage of earnings accrued each shift or for each service is often characterized as a ‘commission fee’. The worker will be paid in cash or in vouchers by each customer, which must be turned in at the end of each shift or service, in order for deductions to be made. There are, however, social hurdles standing in the way of worker or employee status claims. Many sex workers would prefer to be ‘unmanaged’ for several reasons, including identification with the self-​employed ideal and desire for autonomy, migration status, and the transitory nature of the industry.36 At the same time, the last few years have been marked by an important judicial shift in the UK to looking beyond the contractual document to the reality of the working relationship. This has led to an increasing recognition that ‘gig economy’ workers are being falsely labelled as self-​employed.37 And while recent case law suggests that ‘substitution clauses’ might militate against a finding of employee or worker status, contractual documents and those who manage sex workers insist on personal service and prohibit the use of a substitute.38 It therefore seems likely that judicial opinion would be that brothel managers are falsely characterizing the sex-​work relationship and that, at least as brothels are currently organized, sex workers could access far greater protection (if, of course, prostitution related activities were decriminalized). The prostitution as work position is partially correct that brothels in decriminalized jurisdictions are ‘governed’ by labour law. However, de jure application of labour rights to brothels has not, to date, been matched by de facto application.39 Those who understand prostitution as work also make conflicting statements about what the continuing role of criminal law is, or ought to be, in personal work relations between sex workers and brothel owners. Sometimes they assume that labour law starts where criminal law ends.40 At the same time, criminal laws, including the prevention of offences against the person, such as 33 Cruz, ‘Unmanageable Work’ and Within and Against the Law (n 7). 34 ibid. 35 ibid; Einat Albin, ‘The Case of Quashie: Between the Legalization of Sex Work and the Precariousness of Personal Service Work’ (2013) 42(2) Industrial Law Journal 180. 36 Cruz, ‘Unmanageable Work’ and Within and Against the Law (n 7); Katie Cruz, Kate Hardy, and Teela Sanders, ‘False Self-​Employment, Autonomy and Regulating for Decent Work: Improving Working Conditions in the UK Stripping Industry’ (2017) 55 Industrial Relations Journal 274. 37 Autoclenz (n 31); Pimlico (n 31). 38 The Independent Workers Union of Great Britain, R (On the Application Of) v Central Arbitration Committee: Re: Deliveroo [2018] EWHC 3342, [2018] 12 WLUK 17. 39 Cruz, ‘Unmanageable Work’ and Within and Against the Law (n 7); Cruz, Hardy, and Sanders (n 36). 40 Mac and Smith (n 15) 202–​03.

200  Criminality at Work assault and rape, and labour abuses, including trafficking and forced labour, are promoted as securing the protection of highly vulnerable sex workers. Adding another layer of confusion, the prostitution as work position is often highly critical of the ‘carceral feminist’ agenda, which attempts to solve the ‘problems of prostitution’, including violence against women and trafficking, using a law and order style response.41 How, then, might activists and academics supportive of prostitution as work differentiate their approach to criminal law intervention from carceral feminism? In the next section of this chapter, I outline a Marxian methodology for evaluating the value of criminal law in personal work relations. I hope that academics and activists who take the work position will find this approach useful in future engagement with the role and limits of criminalization of personal sex work relations.

D.  Capitalism, Unfreedom, and Criminal Law The value of criminalization of personal work relations needs to be assessed in the following descriptive and normative context. Unfreedom—​exploitation and alienation—​are structural features of capitalist societies. This lived reality of unfreedom is, however, masked by the appearance of capitalist social relations, the ideology of voluntary and equal exchange of our alienable property in the person (labour) for payment. These structural unfreedoms exist on a continuum, increase or decrease in severity according to the balance of class forces, but cannot be completely eliminated within class-​structured societies. Unfreedom, then, is not natural or inevitable and can be ameliorated by the conscious collective organization of workers. ‘Freedom’ is defined as workers’ conscious control over their labour and lives (the quotes referencing the fact that human emancipation of our labour is impossible within capitalist social relations). My approach draws from Marxist Feminism. First, unfreedom is gendered and racialized. Second, control over our labour and lives cannot be limited to freedoms in the workplace. ‘Free’ labour exists where waged and unwaged labour are embedded in a system of labour and social rights and protections. This section proceeds in three subsections: exploitation and alienation; the continuum of unfreedom and class struggle; history, unfreedom, and criminality at work.

1.  Exploitation and Alienation Marx’s early work exposed the contradictions of the Rights of Man and Citizen. The universal rights of freedom to practice religion, freedom to own property, and other Rights of Man mask unfreedom.42 Similarly, in his later critique of political economy, Marx argued that the freedom to be a free wage labourer masks unfreedom.43 What, then, did Marx see below the surface appearance of the freedom to be a wage labourer? 41 Mac and Smith (n 15); Melissa Gira Grant, Playing the Whore: The Work of Sex Work (Verso 2014); Elizabeth Bernstein, ‘Militarized Humanitarianism Meets Carceral Feminism: The Politics of Sex, Rights, and Freedom in Contemporary Anti-​trafficking Campaigns’ (2010) 36 Signs: Journal of Women in Culture and Society 45. 42 Karl Marx, ‘On the Jewish Question’ in David McLellan (ed), Karl Marx: Selected Writings (first published 1844, OUP 1977). 43 Karl Marx, Capital: Volume 1 (first published 1867) ch 6, www.marxists.org/​archive/​marx/​works/​1867-​c1/​ ch06.htm accessed 23 April 2019.

Prostitution, Unfreedom, and Criminality at Work  201 Marx’s mature writings reveal the irony that, once endowed with the legal right to private property, individuals were in fact dispossessed and alienated from the land and the means of production. Bourgeois political economy and liberal philosophy tell us that it was the fault of ‘lazy rascals, spending their substance, and more, in riotous living’, who ensured their dispossession, having ‘nothing to sell except their own skins’.44 Marx rejects this foundational myth and replaces it with the ‘actual history’ of primitive accumulation, in which ‘conquest, enslavement, robbery, murder, briefly force, play the great part’.45 Once dispossessed through means of force and enclosures, the landless had to sell their labour power in order to access necessities. Individuals were ‘freed up’ to sell their labour power to any buyer, a process represented as equality and freedom for both capitalist and worker. Marx is clear that the lived reality of this freedom is double-​edged. In many ways it is an improvement upon feudal relations and more direct forms of domination. But he was also clear that new, and more opaque, forms of unfreedom characterized capitalism. Exploitation can be objectively described in the following (simplified) way. The worker sells her labour power to the capitalist for a wage or payment. The capitalist also buys the essentials for production, including rent, machinery, and technologies. During her time at work she produces commodities, which can be a product or a service. This commodity must be greater in value than what the capitalist spends on her labour power and other essentials. Without receiving this greater value the capitalist would not make a profit. It is the value of the product (created by the labourer) for which she is not paid that is an ‘exact expression’ of her exploitation by capital.46 Exploitation of the working class is therefore structural; it is a calculation that all capitalists must perform and act upon in order for the system to function.47 The wage and investment in working conditions is relevant to how we calculate the rate of exploitation and there is an incentive for capitalists to keep these costs as low and ‘competitive’ as possible. Capitalists will use status-​based differences to reduce costs. Female and racialized workers are often found in poorly paid service-​based occupations. Presumed biological and cultural features of non-​white, Muslim, gypsy, and dispossessed and displaced Europeans (white supremacy, Islamophobia, xeno-​racism) and the cultural valuation of traits that are linked to masculinity (sexism), serve to structure divisions in the workplace between low-​paid, menial, and domestic occupations and higher paid and valued professions.48 The exploitation faced by all workers in the workplace, and so the profits generated by capitalists, are only possible because of the domestic and care work in the home, which is primarily performed by women. Without this work there would be no labourers ‘produced’, raised, and made ready for future exploitation. This is not to suggest that women are naturally suited for domestic and care work, in the home or the workplace. Rather, women’s presumed knack for domesticity and care represents a powerful ideology that has material origins in the transition to capitalism, and the emergence of a gendered division between paid/​productive and unpaid/​reproductive labour.49 Exploitation, then, is not simply 44 ibid ch 26. 45 ibid ch 26. 46 ibid ch 9. 47 ibid ch 9; Nancy Holmstrom, ‘Exploitation’ (1977) 7(2) Canadian Journal of Philosophy 353. 48 Nancy Fraser, ‘From Redistribution to Recognition? Dilemmas of Justice in a “Post-​Socialist” Age’ (1995) 212 New Left Review 68. 49 Joanne Conaghan, ‘Gender and the Labour of Law’ in Hugh Collins, Gillian Lester, and Virginia Mantouvalou (eds), Philosophical Foundations of Labour Law (OUP 2019); Silvia Federici, Re-​enchanting the World: Feminism

202  Criminality at Work illegitimate or severely inadequate working conditions, mistreatment, and use of ‘vulnerabilities’, such as racism, sexism, employment or immigrations status, although these factors are relevant. And exploitation cannot be eliminated because it is a necessary feature of the relationship between capital and labour. Our capacity to create is the essence of being human. Being ‘freed up’ for wage labour, Marx argued, alienates workers from the land, but it also alienates and estranges workers from their attributes, skills, knowledge, and emotions.50 Bourgeois political economy and liberal philosophy tells us that workers sell their detachable bodily property or labour for a temporary period of time. But labour is not an alienable ‘thing’. The view that labour can be detached from us and sold like any other commodity is a legal fiction. For Marxists, it is an objective fact that our labour power is embodied. As Holmstrom puts it, ‘labor power is unlike other commodities; unlike other things I “own,” it can’t be stolen or left on the bus!’.51 When labour power is commodified capitalists are buying our body and mind, albeit for a temporary period of time. The commodity produced by the workers’ embodied labour is taken away from the worker and placed under the control of the capitalist. Commodification estranges us from our ‘true’selves, others, and what we produce, and the very planet on which life we know has evolved and called home for millennia. An extensive literature documents how alienation in the labour process is gendered and racialized. As O’Connell Davidson points out, ‘employers can have an interest in workers whose bodies are imagined as unmarked (ie white, middle class, male), especially when those workers will occupy positions of power and authority’. On the other hand, workers ‘whose bodies are read as being “naturally” subordinate or caring are assumed to have a more authentic capacity to perform deference, servility and care, and employers thus have an interest in their bodies as such’.52 Hochschild’s classic study of the sale of airline hostesses’ ‘emotional labour’ is illustrative. It is the personality, the human capacity to care, nurture, and celebrate others that is being bought and commodified, hence controlled for the purposes of exploitation and so profit.53 Again, women’s presumed knack for care is relevant. It helps explain women’s over representation, and men’s ‘feminization’, in jobs that involve the sale of emotional labour. Like exploitation, alienation is therefore not restricted to severe or illegitimate working conditions and the abuse of ‘vulnerabilities’, including gender. Capitalism is the purchase and control of embodied labour (this could be emotional or manual labour) and the control of the commodities we produce when at work. Existing academic literature demonstrates how sex workers in prostitution are exploited and alienated in the Marxian sense of these concepts.54 For the purposes of this chapter and

and the Politics of the Commons (PM Press 2019); Nancy Fraser, ‘Behind Marx’s Hidden Abode: For an Expanded Conception of Capitalism’ (2014) 86 New Left Review 55. 50 Karl Marx, ‘Estranged Labour’ in his Economic and Philosophical Manuscripts (first published 1932) accessed 23 April 2019. 51 Nancy Holmstrom, ‘Sex, Work and Capitalism’ (2014) 13(3–​4) Logos: A Journal of Modern Society & Culture accessed 23 April  2019. 52 Julia O’Connell Davidson, ‘Let’s Go Outside:  Bodies, Prostitutes, Slaves and Worker Citizens’ (2014) 18 Citizenship Studies 516, 521. 53 Arlie Hochschild, The Managed Heart: Commercialization of Human Feeling (University of California Press 1983); see also Kathi Weeks, ‘Life Within and Against Work: Affective Labor, Feminist Critique, and Post-​Fordist Politics’ (2007) 7 Ephemera Theory and Politics in Organization 233. 54 Cruz, ‘Unmanageable Work’ (n 7) and ‘Beyond Liberalism’ (n 3); Holmstrom, ‘Sex, Work and Capitalism’ (n 51); O’Connell Davidson, ‘Let’s Go Outside’ (n 52).

Prostitution, Unfreedom, and Criminality at Work  203 my focus on prostitution that takes place in brothels, the following is most relevant: in its endless quest for new markets, hence profit, capitalism tends not to discriminate or take a moral stance on what should or should not be commodified. Sex sells and sex workers in brothels who work for a boss will be exploited and alienated. Gender, sexism, racism, immigration status, as well as poor pay and working conditions are clearly relevant factors that will exacerbate the exploitation and alienation of workers in brothels. However, it must be remembered that all workers who produce commodities (whether a product or a service) are exploited and alienated. While some workers may experience fulfilment and feel justly rewarded, exploitation and alienation are structural features of the wage labour contract. Without which profits would be impossible. The difference between workers, including sex workers, is not whether they are exploited or alienated, but the degree to which they are.

2.  The Continuum of Unfreedom and Class Struggle From a Marxian perspective, capitalism is not a natural state of affairs nor is it synonymous with work. After capitalism and the wage labour contract there will still be ‘socially necessary’ and ‘really-​free’ work to do or choose from.55 But workers would control this work and what is produced. However, exploitation and alienation and the effects of these processes can be mitigated through the collective organization of workers. And it is this organization that would lead workers to demand new forms of association and production. It is therefore useful to think about exploitation and alienation as unfreedoms that exist on a continuum. At one end of the continuum ‘freedom’ signifies control of labour in favourable working and living conditions. This is not true freedom because capital, left to its own devices, tends towards greater degrees of exploitation and alienation. At the opposite end, unfreedom signifies the lack of control of labour in favourable working and living conditions.56 ‘Free’ labour exists where waged and unwaged labour is embedded in a system of labour and social rights and protections. A number of protections for labour would ease the extent and effects of exploitation and alienation. Marx, of course, wrote favourably about successful collective organization to limit the working day as improving the wellbeing of workers.57 An obvious and important protection for workers today is the (re)establishment of a regulatory collective bargaining system.58 Other statutory rights and reforms should include, but are not limited to, a living wage or a basic income for all workers, the creation of a single and simplified employment status test for all workers that would capture all but the truly self-​employed, and increased protection of zero hour contract workers, including payment for accepted shifts of work that are cancelled.59 Unwaged labour protections should include access to childcare, eldercare, abortion, healthcare, and affordable housing and food. Such struggles to limit the commodification of our labour are the substance of class struggle. These are struggles that sex workers are engaged in and demand to be included as 55 Karl Marx, Capital: Volume III (first published 1894) ch 48  accessed 23 April 2019. 56 Cruz, ‘Beyond Liberalism’ (n 3). 57 Marx, Capital: Volume 1 (n 43) ch 10. 58 Keith Ewing and John Hendy, ‘New Perspectives on Collective Labour Law: Trade Union Recognition and Collective Bargaining’ (2017) 1(1) Industrial Law Journal 23. 59 Cruz, ‘Unmanageable Work’ (n 7) and ‘Beyond Liberalism’ (n 3); Workers (Definition and Rights) Bill 2017–​ 19  accessed 23 April  2019.

204  Criminality at Work part of the working class. In the UK, however, and many other countries, sex workers are effectively barred from formal worker organizing by the doctrine of illegality. The level of decommodification that I am proposing would ensure maximum freedom within capitalist social relations. The need to accumulate profit that defines capitalism does determine, ‘in the sense of exerting real pressures and placing real limits on’,60 the freedoms that can be won within capitalist social relations. In other words, maximum freedoms within capitalist social relations would be met with significant resistance that no amount of ‘renorming’ of labour law is likely to solve.61 In the next subsection I pursue the following question: Has criminal law, in its design and delivery, tended towards more, or less, freedom for workers?

3.  History, Unfreedom, and Criminality at Work Histories of the transition to capitalism in England, and its ongoing transformation in the nineteenth, twentieth, and twenty-​first centuries, have widely acknowledged the use of criminalization to facilitate the (continuing) accumulation of land and labour necessary to turn a profit. Criminalization is a constant feature of global capitalism and has been integral to nation building, colonization, and settlement projects.62 In this subsection, I argue that criminalization of personal work relations reveals a tendency, in design and/​or effect, and in combination with labour and immigration law, to facilitate the exploitation and alienation of formally free workers by penalizing their mobility and ability to exit or enter into work.63 Statutory provision for the compulsion of labour under threat of criminal punishment in England dates to the fourteenth century Statute of Labourers. Forms of compulsion into work that were contained in this statute fell into disuse by the eighteenth century. However, between 1720 and 1843 new statutes emerged, including the Master and Servant Act 1823. These laws allowed penal sanctions for breaches of contract at work, from quitting to disobedience at work, first in relation to specific trades and then more generally. Those convicted could find themselves confined in a house of correction for up to three months and forced to perform hard labour. 64 This was a time of rapid industrialization and there is little doubt that these ‘statutes were enacted in direct response to the heightened demand for labor created by expanding markets’.65 The eighteenth and into the nineteenth century also saw a proliferation of Vagrancy Laws. The array of offences covered by Vagrancy Laws grew with successive legislative amendments and judicial interpretation. Individuals could

60 Sue Ferguson, ‘Intersectionality and Social-​Reproduction Feminisms Toward an Integrative Ontology’ (2016) 24 Historical Materialism 38, 52. 61 Eric Tucker, ‘Renorming Labour Law:  Can We Escape Labour Law’s Recurring Regulatory Dilemmas?’ (2010) 39(2) Industrial Law Journal 99. 62 Robert Steinfeld, Coercion, Contract, and Free Labor in the Nineteenth Century (CUP 2011); Aziz Rana, ‘Settlers and Immigrants in the Formation of American Law’ (Cornell Law Faculty Publications Paper 1075, 2011) accessed 4 February 2019. 63 Julia O’Connell Davidson, ‘New Slavery, Old Binaries: Human Trafficking and the Borders of “Freedom” ’ (2010) 10(2) Global Networks 244. 64 Sidney Webb, Beatrice Webb, and Robert Alexander Peddie, The History of Trade Unionism (BiblioLife 2009); Steinfeld (n 62); O’Connell Davidson, ‘New Slavery’ (n 63); Paul Craven and Douglas Hay, ‘The Criminalization of “Free” Labour: Master and Servant in Comparative Perspective’ in Paul Lovejoy and Nicholas Rogers (eds), Unfree Labour in the Development of the Atlantic World (Routledge 1994). 65 Steinfeld (n 62) 43.

Prostitution, Unfreedom, and Criminality at Work  205 be detained, prosecuted, and housed in correction facilities for offences that were punishment for refusing, or failing, to respect private property interests in land and to integrate into waged labour; the unemployed, surplus labour, sex workers, the ‘idle and disorderly’, and those who took subsistence from the land, including wood and food.66 Organized labour fought back against the use of criminal law sanctions to limit the mobility of workers. Workplace protections were won, including regulation of the working day and the legalization of trade unions, and ‘regulatory’ criminalization of employers were put in place to uphold labour standards.67 This history of class struggle from below is one in which women and people of colour have played an important role.68 Partial decommodification to deregulation of the labour market describes the post-​war twentieth-​ century history of the UK. The fight for decommodification, while never complete for women and people of colour, or indeed sex workers, did return levels of labour and social welfare protections never seen before (or since) in the UK.69 The past forty years have been marked by deregulation as these rights and protections have been eroded. The demand for casual and numerically flexible labour has skyrocketed, rounds of austerity have stripped workers of necessary social protections and basic services, unionization has plummeted, no doubt hastened by successive curtailment of individual and collective and labour rights. Western nation states have, with increasing speed, introduced forms of criminalization at work, which are frequently framed as worker protective. Employers, traffickers, and other parties that subject workers to unfreedom in the labour process, including forcing workers to enter or remain in exploitative conditions, and that employ, or have employed, illegal workers can be penalized.70 These worker protective criminal laws intersect heavily with immigration law and increase the unfreedom of migrant workers in (at least) two ways. The Immigration Act 2016 aims to protect migrant workers from exploitation and British workers from having their wages undercut. One of the means that the Act prescribes is the criminalization of illegal migrant workers. It is, as Fudge stresses, undeniable that this tactic will backfire.71 The criminalization of illegal migrant workers will exacerbate rather than ameliorate unfreedom. The Modern Slavery Act (MSA) 2015 is the latest piece of legislation that aims to protect workers that are trafficked into sexual exploitation and Article 4 abuse. This Act implicitly criminalizes migrant workers. First, the doctrine of illegality bars trafficked workers from accessing remedies for work done and any poor treatment suffered by the employer.72

66 Steinfeld (n 62); O’Connell Davidson, ‘New Slavery’ (n 63); Nicolas Rogers, ‘Vagrancy, Impressments and the Regulation of Labour in Eighteenth Century Britain’ in Lovejoy and Rogers (n 64). 67 Marx, Capital:  Volume 1 (n 43); Christopher Frank, Master and Servant Law:  Chartists, Trade Unions, Radical Lawyers and the Magistracy in England, 1840–​1865 (Routledge 2016); Andrew Miles and Mike Savage, The Remaking of the British Working Class (Routledge 1994); David Gordon Wright, Popular Radicalism: The Working Class Experience 1780–​1880 (Routledge 2013); Steinfeld (n 62). 68 See, eg, Laura Schwartz, ‘ “What We Feel is Needed is a Union for Domestics Such as the Miners Have”: The Domestic Workers’ Union of Great Britain and Ireland 1908–​1914’ (2014) 25(2) Twentieth-​Century British History 173; Angela Davis, Women, Race and Class (Random House 1981). 69 O’Connell Davidson, ‘Let’s Go Outside’ (n 52). 70 The Modern Slavery Act 2015 consolidated legislation relating to trafficking for sexual and labour exploitation (s 2), punishable by imprisonment for twelve months or life (s 5); The Immigration Act 2016 introduces new offences of ‘illegal working’ (s 34) and ‘employing illegal worker’ (s 35), punishable by imprisonment for a maximum of fifty-​one weeks (s 34) or five years (s 35). 71 Judy Fudge, ‘Illegal Working, Migrants and Labour Exploitation in the UK’ (2018) 3(1) Oxford Journal of Legal Studies 557. 72 Hounga v Allan [2014] UKSC 27, [2014] 1 WLR 2889; Taiwo v Olaigbe [2016] UKSC 31, [2016] 1 WLR 2653.

206  Criminality at Work Second, sociologists, socio-​legal scholars, and activists have stressed that the enforcement of anti-​trafficking laws is resulting in a number of negative outcomes for migrant workers in practice, including deportation, prosecution, and deterioration of working conditions. The use of these laws in the sex industry is a case in point.73 The recent history of the criminalization of personal work relations differs from the eighteenth-​and nineteenth-​century focus on penalizing workers who refused or quit work. The end of the twentieth century, and into the twenty-​first, has been marked by criminalization of entry to work. Fudge makes the important observation that the overwhelming concern today is with ‘abusers’ of the system; ‘the “illegal worker” and “unscrupulous employer” figure as the objects of legal opprobrium’.74 O’Connell Davidson has highlighted similar contempt for ‘traffickers’ and ‘smugglers’.75 Criminalization mystifies the real sources of abuse and exploitation, including deregulation, restrictive immigration law, and the hostile environment, and it exacerbates, or does little to alleviate, the unfreedom of migrant workers. Fudge convincingly argues that there is logic at play here. Illegal working laws in the UK are being used to respond to the ‘governance crisis concerning the deteriorating outcomes for workers labouring in the bottom half of the UK’s neo-​liberal labour market’.76 British workers are being conned into thinking that the government’s light touch agenda for labour is the best approach and that the real problem is individual bad apples that ‘abuse’ the system. The recent criminalization of entry to work tells us that we cannot necessarily equate worker protective criminal laws with successful class struggle from below. These criminal laws may not be (migrant) worker protective, but they are (British) worker appeasing. In this section, I have argued that worker unfreedom exists on a continuum. Unfreedom is contested by class struggle from below and limited by paid and unpaid labour rights and protections. The history and present of criminalization reveals a tendency to limit the freedom of workers by restricting their ability to exit or enter work. In the next and final section I apply this methodology and respond to the question: If brothels in the UK were viewed as employing sex workers what might be the ongoing role of criminal law in the workplace?

E.  Prostitution as Work and Criminality at Work Analytical legal philosophy takes a conceptual approach to the rights and wrongs of criminal law, guided by respect for personal autonomy and a concern with serious public wrongdoing and prevention of the harm to others. Capitalist social relations are treated as merely politically contingent factors that have no necessary relationship to, or impact upon, criminal law. My view is that once we situate criminalization of personal work relations within the larger landscape of capitalist class struggle, it becomes clear that its proper use ought to 73 See, eg, Nick Mai, Migrant Sex Workers in the UK Sex Industry: Final Policy Relevant Report (ESRC 2009); The x:talk project, Human Rights, Sex Work and the Challenge of Trafficking (Creative Commons 2010); Julia O’Connell Davidson, ‘Will the Real Sex Slave Please Stand Up’ (2006) 83 Feminist Review 4; Angela Hill, “This Modern Day Slavery”: Sex Trafficking and Moral Panic in the United Kingdom (PhD thesis, University of California Berkeley 2011). 74 Fudge (n 71) 559. 75 O’Connell Davidson, ‘New Slavery’ (n 63). 76 Fudge (n 71) 560.

Prostitution, Unfreedom, and Criminality at Work  207 be mitigation of worker unfreedom. However, the dialectical other of class struggle from below is class struggle from above. We therefore have to pay equal attention to the capitalist interests that shape, and the effects of, criminality at work. As discussed in section B, there is now ample evidence demonstrating that treating prostitution-​related activities as sexual offences does not simply protect victims and persecute villains, if it does so at all. The effect of these laws is to construct sex workers as criminals and objects to be abused through their direct criminalization, or through a close association with illegal activities. This makes prostitution less safe and normalizes abuse on the basis that sex workers are engaging in immoral, harmful, and illegal activities. The effect of the illegality doctrine is to simultaneously bar access to labour and social rights and increase exploitation and alienation. But what might be the role of criminalization in the workplace if prostitution-​related activities were decriminalized? In previous research and in section C of this chapter, I have argued that if prostitution were decriminalized, sex workers in UK brothels would likely be characterized as falsely self-​employed. Would criminal law regulation of brothels then ensure more or less freedom for sex workers (as employees or ‘workers’)? Sex workers in brothels would benefit from exercising the ‘right of refusal’ and this right would likely apply regardless of employment status. Instances of coercion and violence from both bosses and clients would be dealt with as offences against the person. Tort and labour law could also deal with the crimes and mistreatment to which sex workers would likely be subject. It is possible that sex worker employees in brothels (and potentially their families in cases of homicide or death) could claim damages if shown that the employer breached their common law duty of care. This tort-​based duty requires that employers provide a ‘safe system of work’. This includes protection against physical and psychological injury and the employer is responsible for any failure to protect against common dangers, even when the worker is knowledgeable and experienced.77 This common law duty would arguably extend to any failure to adequately protect sex workers from the common danger of client violence.78 Criminal sanctions for the health and safety breaches of bosses would also most comprehensively cover sex worker employees.79 As employees, sex workers would have some health and safety responsibilities, but the employer would bear the brunt of them. There is, then, an important discussion to be had about the interaction of labour, criminal, and tort law for protecting sex workers as employees (or workers) from abuse and violence at work. The other area of criminal law that regulates poor treatment of workers by employers and third parties is contained in the MSA 2015. If prostitution-​related activities were no longer viewed as sexual offences, the Act would need to be amended to remove the distinction between sexual and labour exploitation. Prosecution would then be a possibility for those that subject sex workers in brothels to Article 4 abuses, including when these abuses constitute the ‘purpose’ of trafficking. This criminal law protection would apply regardless of employment status (although, as noted above, trafficked sex workers that are in the country illegally would have no contractual rights). Activists and academics who view prostitution as work argue for health and safety protections and protection against coerced or forced labour. Both strategies could, in theory, help

77

General Cleaning Contractors v Christmas [1954] AC 180. Mcleod v Aberdeen City Council 1999 CSOH 595. 79 Health and Safety at Work Act 1974, s 2. 78

208  Criminality at Work deliver freedom for sex workers. As employees, prostitutes in brothels would also enjoy the workplace freedoms they currently demand, as well as others. These should be combined with broader freedoms that relate to unpaid labour. Indeed, employers and the state ought to deliver these paid and unpaid labour freedoms for all sex workers, regardless of, for example, immigration status. However, the material reality of structural unfreedom and limits to what employers can offer without going out of business cannot go unacknowledged. Our current historical conjuncture is characterized by widespread unfreedom. There are powerful material interests favouring deregulation of the labour market, contraction of the welfare state, and the scapegoating of ‘abusers’ of the system. In the case of the two strategies considered in this section, then, sex worker employees will continually need to fight for these, and it is not at all likely that they will be accompanied by unwaged labour protections, including adequate childcare and housing. Increasingly, labour law scholars argue that anti-​trafficking and modern slavery legislation should, and could, be reoriented towards a worker-​protective model and labour protections for all workers, regardless of immigration status.80 However, it seems highly unlikely that concern with trafficking and modern slavery will be the vehicle in which protections for all workers will be delivered. This is because the raison d’etre of anti-​trafficking law is criminal law and border enforcement. It is also, as I have argued in this chapter, a strategic ‘worker protective’ concern being deployed by governments that in fact want to limit waged and unwaged labour protections. The usefulness of the MSA for sex worker employees would therefore be limited to the potential criminalization of their exploiter. At the same time, ‘illegal’ migrant sex workers will continue to experience extreme levels of unfreedom.81 They will be excluded from employee protections and could be penalized for illegal working. Their only real freedom will be the potential criminalization of their exploiter under the MSA. There are also limits to what many employers can offer service-​based workers within capitalist social relations. Take our example of prostitution in brothels. What is produced is not a tangible commodity that can be sold on to generate further profit. The commodity is the sexual service, which is extinguished in its single use. This is why bosses in the sex industry do not want their workers to be employees. Many would struggle to make a profit and would go out of business. It is not too dystopian to presume monopolies would emerge and sexbots would replace sex workers.82 This does not mean that nothing can be done, or that labour and criminal law lawyers should cease attempting to improve legal protections and access to justice for (sex) workers. But I do want to stress the contradictions and ambivalence of worker protective criminal law-​based strategies for sex worker employees or workers in brothels. Not all worker-​ protective criminal law intervention will contribute to the freedom of sex worker employees or workers, and degrees of unfreedom will persist. And any net gain in the freedom of sex worker employees and workers will not be extended to ‘illegal’ migrant sex workers.

80 Hila Shamir, ‘A Labor Paradigm for Human Trafficking’ (2012) 60 UCLA Law Review 76; Inga K Thiemann, ‘Beyond Victimhood and Beyond Employment? Exploring Avenues for Labour Law to Empower Women Trafficked into the Sex Industry’ (2018) 48(2) Industrial Law Journal 199. 81 Cruz, ‘Beyond Liberalism’ (n 3). 82 Tom Dart, ‘ “Keep Robot Brothels out of Houston”:  Sex Doll Company Faces Pushback’ The Guardian (2 October 2018) accessed 23 April 2019.

Prostitution, Unfreedom, and Criminality at Work  209

F.  Conclusion: Prostitution as Work, Work and Freedom The demand for decriminalization of prostitution is gaining momentum. It is increasingly accepted that criminal law intervention via a sexual offence framework makes workers less, rather than more, safe. The movement, allies, and academics also argue that sex work is a form of work that should not be criminalized. In this chapter, I have argued that the prostitution-​as-​work position is unclear about the content of their demands for labour rights and workplace protections, and what the continuing role of criminalization should, or could, be in the (sex)workplace. I have reiterated my existing position on the labour rights question, which is that if prostitution were viewed as legitimate employment, sex workers in UK brothels would likely be employees, at least in the eyes of the law. I then explored the potential role of criminalization of personal (sex)work relations. Understanding the possibilities and limits of criminality at work, while imagining brothel-​based sex workers as employees/​workers, requires attention to the relationship between capitalist social relations and class struggle. Unfreedom (exploitation and alienation) is the gendered and racialized reality of capitalism that ebbs and flows according to the balance of class forces. The potential and limits of criminalization of personal work relations therefore need to be understood and assessed according to whether it ensures more or less freedom for sex worker employees/​workers. I stressed, however, the contradictions that would accompany the extension of worker-​protective criminal and civil laws to sex worker employees. It is in the living of these contradictions that all (sex) workers will determine the usefulness of criminal law in achieving freedom within, and from, capitalist social relations. Ultimately, however, as some within the sex worker rights movement recognize, real freedom will entail moving beyond capital–​labour relations. This is because capitalism is premised on exploitation, alienation, and the destruction of the environment in the ceaseless quest for new markets. Meaningful collective control over work is anathema to capitalist societies. Work should not be reduced to wage labour, but rather recognized as a vital part of human existence. The goal is to minimize the need to work in order to survive and to maximize time for ‘really free working’.83 Whether, in the absence of unfreedom, people would choose to engage in ‘sex work’ as a ‘really free’ activity is a debate for another time.

83 Karl Marx, Grundrisse: Notebook VI. The Chapter on Capital (first published 1939-​41) accessed 7 February 2019.

11

Human Rights, Labour Rights, and Criminal Wrongs Virginia Mantouvalou*

A.  Introduction When does human rights law impose obligations to criminalize breaches of labour rights? This is the question that this chapter considers with a focus on the European Convention on Human Rights (ECHR or Convention). The European Court of Human Rights (ECtHR) has often ruled that the Convention imposes positive obligations to criminalize conduct, as section B explains. The requirement to criminalize certain violations of human and labour rights is grounded on an understanding that criminalization is an effective form of regulation, primarily because of its deterrent effect. As the Court has frequently emphasized that Convention rights have to be practical and effective, a duty to enact criminal laws aims to achieve exactly that by deterring people from engaging in the conduct in question.1 Another crucial factor to which the Court pays attention when considering whether certain conduct needs to be criminalized involves the nature of the wrongdoing. Some kinds of wrongdoing are such that the condemnation of criminal law is needed so as to influence behaviour, a purpose that civil law may not meet to the same extent. Arguments that conduct should be criminalized should not be made too quickly. They have to meet criteria of serious wrongfulness and harm. The imposition of obligations on states to criminalize violations of labour rights is a relatively new development in the case law of the ECtHR. The Convention has two provisions that explicitly protect labour rights: first, an individual labour right in Article 4 that prohibits slavery, servitude, forced and compulsory labour; second, a right to form and join trade unions in Article 11. The Court has ruled that Article 4 imposes an obligation to criminalize severe labour exploitation, which I examine in subsection C.1 of the chapter. Therein I discuss the case law of the Court, the type of wrong and harm experienced by the workers, and the kind of positive obligations revolving around criminalization, which the Convention imposes. I argue that criminalization is justified in these circumstances, though it is important to appreciate that criminal law has to be accompanied by effective enforcement, as well as other labour protective rules, without which criminal legislation is of limited value. The UK Modern Slavery Act, which I briefly discuss, exemplifies this point. * Professor of Human Rights and Labour Law, UCL, Faculty of Laws. Many thanks are due to Alan Bogg, Hugh Collins, Jennifer Collins, Keith Ewing, Michael Ford, Mark Freedland, John Hendy, Jonathan Herring, George Letsas, and all conference participants for comments and suggestions. 1 On occasion, ensuring compliance with international obligations, including the ECHR, also requires the authorities to amend existing criminal law legislation. Virginia Mantouvalou, Human Rights, Labour Rights, and Criminal Wrongs In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.011

Human Rights, Labour Rights, and Criminal Wrongs  211 Article 11 of the Convention has not been found to impose positive obligations to criminalize thus far. Nevertheless, some violations of labour rights under this provision, together with Article 8 (the right to private life), and Article 14 (the prohibition of discrimination) are sufficiently serious and wrongful that they justify and require criminalization, as subsection C.2 argues. Sometimes a duty to criminalize may be the only way to guarantee the rights in question. Civil law may not be sufficient to communicate the gravity of the wrong and deter it. To illustrate this point, I use the example of ‘blacklisting’. Blacklisting is a widespread practice in the UK construction industry, whereby workers who are members of a trade union, and who may therefore be perceived as ‘troublemakers’, are included in a secret list that employers consult. These workers lose their jobs and are unable to find work for years or decades, with grave implications for their well-​being, affecting their income, health, and personal life.2 Both the practice and the effects of blacklisting on workers’ lives are devastating. I suggest that Articles 8 and 11, standing alone or together with Article 14 of the ECHR, should form the basis of a positive obligation to criminalize blacklisting. The cumulative convergence of these rights provides in this case a strong normative argument for criminalization. The section D discusses two objections to introducing new criminal offences: first, the concern of overcriminalization; second, the concern of a possible exclusive focus on criminalization (rather than employing other forms of regulation). On the former objection, even though I  suggest that blacklisting meets the requirements of an especially serious wrong that causes especially serious harm that it ought to be criminalized, I do not of course suggest that all violations of collective labour rights should constitute criminal offences. On the latter objection, I do not suggest that other approaches to regulation, such as through the provision of civil remedies, are not important tools, which can co-​exist with criminalization. However, blacklisting is such a wrong that has caused such harm that the machinery of criminal law is appropriate in order to communicate the wrongfulness of the practice, to punish the perpetrators of this particular wrong, and to deter such systemic violations of trade union rights in the future.

B.  Human Rights and Positive Duties When the Convention was initially conceived, its aim was to place limitations on state action. Over the years, the Court developed a range of positive obligations on states with a view to ensuring the protection of rights in relations between private individuals.3 The Court has repeatedly ruled that human rights have horizontal effect in the employment relation. The extension of human rights in the workplace through the imposition of duties to protect workers against employer intrusions is justified. Human rights violations are moral wrongs that can be committed not only by state actors, but also by private individuals. Employers can exercise power on employees at times greater than state power, and impose 2 This has been documented extensively in publications of the Institute of Employment Rights. The first publication was by Keith Ewing: Keith D Ewing, Ruined Lives: Blacklisting in the UK Construction Industry (Institute of Employment Rights 2009). 3 See Dean Spielmann, ‘The European Convention on Human Rights—​The European Court of Human Rights’ in Dawn Oliver and Jorg Fedtke (eds), Human Rights and the Private Sphere (Routledge 2007) 427. On this, see also the landmark Marckx v Belgium (1979) 2 EHRR 330.

212  Criminality at Work restrictions on their freedom that are incompatible with liberal values:4 the protection of human rights at work can serve to address that. Many ECHR rights have been ruled to give rise to positive obligations applicable in the employment relation, such as the right to private life and freedom of religion,5 but the central Convention provisions that are relevant to labour law are Articles 4 and 11. The obligation to criminalize conduct that violates human rights has been developed in the context of the application of human rights law in relations between private individuals. The legal basis of positive obligations under the ECHR is Article 1, which provides that ‘[t]‌he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’. It is well-​established that Articles 2 (the right to life) and 3 (prohibition of torture, inhuman and degrading treatment), two non-​derogable provisions in times of war and other public emergencies under Article 15 of the ECHR,6 impose extensive positive obligations to deploy the criminal law.7 However, it is important to appreciate that a leading judgment of the Court on positive obligations to criminalize was X and Y v Netherlands,8 which involved the right to respect for private life under Article 8, a derogable and qualified provision. By saying that a right is qualified we mean that it can be restricted if the limitation pursues a legitimate aim, and is proportionate to the aim pursued. In this case, the complaint was that no criminal proceedings could be initiated against a person who raped a young girl with learning disabilities, because the sixteen-​year old lacked legal capacity to appeal against the decision of the prosecutor not to bring criminal charges against the alleged rapist. In examining the claim that criminal law was essential in order to address the wrong that the girl suffered, the Court noted that states have a margin of appreciation as to the means by which they will secure protection of Article 8, and that the type of state obligations that the Convention imposes depends on the aspect of private life that has been affected. ‘Recourse to the criminal law is not necessarily the only answer.’9 But it continued: [T]‌he protection afforded by the civil law in the case of wrongdoing of the kind inflicted on Miss Y is insufficient. This is a case where fundamental values and essential aspects of private life are at stake. Effective deterrence is indispensable in this area and it can be achieved only by criminal-​law provisions; indeed, it is by such provisions that the matter is normally regulated.10

The fact that Article 8 has been ruled to impose positive obligations to criminalize suggests that it is not the absolute or non-​derogable nature of a Convention provision that is crucial when considering the type of positive obligation that exists. What seems to have been crucial in X and Y was the nature of the wrongdoing that the applicant suffered, namely the 4 Hugh Collins, ‘Is the Contract of Employment Illiberal?’ in Hugh Collins, Gillian Lester, and Virginia Mantouvalou (eds), Philosophical Foundations of Labour Law (OUP 2018); Elizabeth Anderson, Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It) (Princeton University Press 2017). 5 On art 8, see Barbulescu v Romania App no 61496/​08 (Grand Chamber, 5 September 2017); IB v Greece App no 552/​10 (3 October 2013); on art 9 see Eweida and Others v UK App nos 48420/​10, 59842/​10, 51671/​10, and 36516/​10 (15 January 2013). 6 Art 15 provides that derogation from art 2 is permitted only for deaths resulting from lawful acts of war. 7 See further Andrew Ashworth, Positive Obligations in Criminal Law (Hart 2015) 200–​06. 8 X and Y v Netherlands App no 8978/​80 (26 March 1985). 9 ibid [24]. 10 ibid [27].

Human Rights, Labour Rights, and Criminal Wrongs  213 violation of her sexual integrity that constitutes a central aspect of the right to private life, and the practical and effective protection of which requires criminalization of the relevant conduct.11 The positive obligations to criminalize under the ECHR were categorized by Ashworth as follows:12 first, an obligation to secure a right by enacting effective criminal laws, supported by law enforcement mechanisms to prevent, suppress, and sanction; second, a duty to adopt preventive operational measures to protect someone who is at risk of a crime by another person; and third, an obligation to have an effective mechanism for the investigation of allegations of violations of Convention rights, as well as an obligation to have an effective investigation that can lead to the identification and punishment of the perpetrators. Discussing this same issue, Tulkens divided positive obligations to criminalize into two categories: substantive and procedural. The substantive obligation involves a duty to enact effective criminal laws to deter the commission of an offence.13 The procedural obligation contains an obligation to investigate effectively, including a duty to have an effective judicial system that may not only award damages, but which should also lead to the identification and punishment of the perpetrators.14 The investigation has to be prompt in order to maintain public confidence in the state response to a crime.15 Finally, these procedural obligations contain a line of requirements, such as criminalization in primary legislation, interpretation of the criminal legislation, prosecution policy and form, sentencing and execution of sentence.16 These obligations seek to ensure that rights of ‘fundamental importance’,17 as the Court puts it, are practical and effective rather than theoretical and illusory.18 By characterizing Articles 2 and 3 as rights of fundamental importance, the Court suggests that it is their nature as non-​derogable provisions under Article 15 that gives them a status possibly higher than other rights that are derogable. However, the fact that Article 8 was the first provision that gave rise to a positive duty to criminalize shows that the crucial factor is the nature of the wrongdoing and the harm that it generates, rather than the nature of the Convention provision at stake. Against this background, it is possible to imagine positive duties to criminalize stemming from any provision of the Convention, if the wrongdoing and the harm are sufficiently serious.

C.  Criminalization of Breaches of Labour Rights What are the concrete positive obligations to criminalize violations of labour rights? The section that follows examines individual labour rights, and then turns to collective labour rights. 11 ibid [30]. 12 Ashworth, Positive Obligations (n 7) 198. 13 Mahmut Kaya v Turkey App no 22535/​93 (28 March 2000), on art 2; A v UK App no 25599/​94 (23 September 1998), on art 3. 14 McKerr v UK App no 28835/​95 (4 May 2001) [121]. 15 Isayeva v Russia App no 57959/​00 (24 February 2005) [213], on art 2; Khashiyev and Akayeva v Russia App nos 57942/​00 and 57945/​00 (24 February 2005) [177], on art 3. 16 Francoise Tulkens, ‘The Paradoxical Relationship between Criminal Law and Human Rights’ (2011) 9 Journal of International Criminal Justice 577, 586–​87. 17 Khasiyev (n 15) [183]. 18 On the principle that rights have to be practical and effective, see Airey v Ireland App no 6289/​73 (9 October 1979).

214  Criminality at Work

1.  Severe Labour Exploitation The first time that the Court ruled that the Convention imposes positive obligations to criminalize in the labour law context was under Article 4, a non-​derogable provision under Article 15 of the ECHR, in the landmark case Siliadin v France.19 The facts of the case illustrate the severity of the moral wrong of exploitation with which the Court was faced, which led to the imposition of a positive duty to criminalize. Siliadin involved the ill-​treatment and abuse experienced by a migrant domestic worker, who was a minor at the time. The applicant arrived to France from Togo, with someone who had agreed with her father that she would be sent to school, that her status would be regularized, and that she would work until her plane ticket was paid off. In reality she worked for him for a period of time, and then was lent to a family for whom she worked as a domestic worker, sleeping in the children’s room, and working for fifteen hours a day, with no day off, without being paid or being sent to school, with no ID documents, and with undocumented immigration status. Before the Strasbourg Court, Siliadin claimed that the failure of France to have in place criminal legislation to penalize the exploitation that she suffered amounted to a breach of Article 4, because there was no effective way to prevent the crime and punish the perpetrators of the ill-​treatment. In addition, she argued that the existence of civil proceedings and remedies were inadequate for they could not afford the necessary protection to her integrity. France claimed that existing legislation, including some criminal offences, met the requirements of the Convention. The ECtHR referred to its case law on Articles 8, 2, and 3 that emphasized that protection against rape requires criminal legislation, and that children and other vulnerable people require particularly effective protection against breaches of their integrity. It explained that ‘together with Articles 2 and 3, Article 4 of the Convention enshrines one of the basic values of the democratic societies making up the Council of Europe’.20 Having discussed a list of international documents involving forced labour and exploitation of children, the Court said that: limiting compliance with Article 4 of the Convention only to direct action by the State authorities would be inconsistent with the international instruments specifically concerned with this issue and would amount to rendering it ineffective. Accordingly, it necessarily follows from this provision that States have positive obligations, in the same way as under Article 3 for example, to adopt criminal-​law provisions which penalize the practices referred to in Article 4 and to apply them in practice.21

The Court emphasized that Article 4 contains one of the most fundamental provisions in the Convention, in the sense that it is an absolute prohibition which does not permit derogations in times of emergency, and imposes an obligation to both criminalize and prosecute effectively.22



19

Siliadin v France App no 73316/​01 (26 July 2005). ibid [82]. 21 ibid [89]. 22 ibid [112]. 20

Human Rights, Labour Rights, and Criminal Wrongs  215 The Siliadin judgment also considered the definition of the prohibited conduct. It said that slavery should be defined in light of the Slavery Convention of 1927 as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. Servitude, on the other hand, involves an obligation to provide services under coercion, and includes an obligation to live in another person’s property and the impossibility of changing the person’s condition. On forced and compulsory labour, the Court relied on the International Labour Organization Forced Labour Convention No 29, which defines forced labour as ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’. Siliadin raised awareness on the vulnerability and ill-​treatment of migrant domestic workers,23 and has been influential at national and international level.24 The severe exploitation of migrant domestic workers was rightly presented as a systemic wrong in France and elsewhere,25 which criminal law could deter.26 The serious violation of physical and mental integrity suffered by migrant domestic workers was ruled to meet the conditions for a crime to be enacted. The positive obligation to criminalize Article 4 violations was reiterated in subsequent case law,27 and the Court developed further extensive positive obligations in relation to criminalization, which mirror the case law on Articles 2 and 3.28 Special mention should be made of Rantsev v Cyprus and Russia,29 the first case that examined trafficking for sexual exploitation under the ECHR. This involved a young woman from Russia who went to Cyprus to work in a cabaret under an ‘artiste visa’, but soon left her job and tried to return to her country of origin. Her employer found her and led her to the police station, but the police returned her to the custody of the cabaret owner. The young woman was taken to a flat and was found dead a few hours later, in an apparent suicide. The case was taken to Strasbourg by the father of the victim. Trafficking for sexual exploitation is not explicitly covered in Article 4. However, in line with its case law on the interpretation of the Convention as a living instrument, the Court ruled that human trafficking ‘by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership’,30 treating people as commodities, often for little or no pay, involving close surveillance, violence, life and work in poor conditions. It went on to say that trafficking is contrary to human dignity and other fundamental values. As a result, there is no need to identify whether it should be classified as slavery, servitude,

23 Virginia Mantouvalou, ‘Servitude and Forced Labour in the 21st Century: The Human Rights of Domestic Workers’ (2006) 35 Industrial Law Journal 395. See also the discussion by Holly Cullen, ‘Siliadin v France: Positive Obligations Under Article 4 of the European Convention on Human Rights’ (2006) 6 Human Rights Law Review 585. 24 For detailed discussion of the case in documents of international organizations, see Forced Labour and Human Trafficking:  Casebook of Court Decisions (International Labour Organization 2009). See also Maria Fernanda Perrez Solla, ‘Slavery and Human Trafficking: International Law and the Role of the World Bank’ (2009) Social Protection and Labour Paper No 0904, 52. For discussion of the judgment by non-​governmental organizations, see Human Rights Watch Report, ‘As If I Am Not Human’ Chapter V (7 July 2008). For references to the case in parliamentary documents and debates, see UK HL Debs, 5 November 2009, col 400. 25 Siliadin (n 19) [49]ff. 26 ibid [143]–​[144]. 27 CN v UK App no 4239/​08 (13 November 2012); CN and V v France App no 4239/​08 (13 November 2012). 28 For detailed discussion, see Vladislava Stoyanova, Human Trafficking and Slavery Reconsidered (CUP 2017) ch 8. 29 Rantsev v Cyprus and Russia App no 25965/​04 (7 January 2010). 30 ibid [281].

216  Criminality at Work forced and compulsory labour, but it is sufficient to say that it is contrary to Article 4.31 This move was criticized for not examining in depth the particularities of human trafficking under the Palermo Protocol, and its relationship to labour exploitation.32 What is pertinent for present purposes is that Rantsev ruled that the victim suffered a serious moral wrong that violates Article 4 and gives rise to positive duties under the Convention. It is important to emphasize that criminalization is not sufficient for a state to comply with Article 4 obligations. In Rantsev, the Court ruled that the state also has to take positive operational measures to protect victims or potential victims from violations.33 This positive obligation is triggered when the authorities know or ought to have known that someone is a victim or at a real risk to be a victim of treatment contrary to Article 4, and they take no action to protect the individual. This obligation was not met in Rantsev where the authorities failed to examine whether the young woman was a victim, but instead returned her to the custody of her exploiter, or more recently in Chowdury v Greece,34 where Greek authorities knew of the exploitation of undocumented strawberry pickers, but did not take adequate measures to protect them from violations of Article 4.35 In addition, the Convention also imposes an obligation to investigate effectively when there is a suspicion that someone is a victim of treatment contrary to Article 4.36 For an investigation to be effective, it has to be independent and to have potential to lead to the identification and punishment of those who are responsible for the crime. Investigation has to be prompt, and the victim or next-​of-​kin have to be involved in the investigation to better safeguard their interests.37 When there is a case of human trafficking, the authorities have to cooperate with the relevant authorities abroad if there is a cross-​border element.38 That Article 4, along with Articles 2 and 3 of the ECHR, has given rise to positive obligations to criminalize should not come as a surprise. It is worth noting that criminalization of severe labour exploitation, and particularly human trafficking, is not a novel regulatory response to this social problem. It was partly inspired by the international law of human trafficking, which is extensively discussed in Siliadin, Rantsev, and other subsequent case law.39 The European Social Charter, which is the counterpart of the Convention in the area of social and labour rights, also imposes an obligation to criminalize all acts of sexual exploitation against children under Article 7 paragraph 10, which involves the protection of children and young persons from labour exploitation.40 Severe labour exploitation is a grave wrong consisting in taking advantage of workers’ vulnerability, which is often due to their immigration status, and imposing on them appalling working and living conditions.41 The harm suffered by workers involves their mental, 31 ibid [282]. 32 Ashworth, Positive Obligations (n 7) 208; Jean Allain, ‘Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery’ (2010) 10 Human Rights Law Review 546. 33 Rantsev (n 29) [286]. 34 Chowdury and others v Greece App no 21884/​15 (30 March 2017). 35 ibid [111]–​[115]. 36 Rantsev (n 29) [288]. 37 LE v Greece App no 71545/​12 (21 January 2016) [68]. 38 Rantsev (n 29) [89]. 39 On a discussion of a criminal law approach to human trafficking, see Bridget Anderson and Rutvica Andrijasevic, ‘Sex, Slaves and Citizens: The Politics of Anti-​Trafficking’ (2008) 40 Soundings 135; Hila Shamir, ‘A Labor Paradigm for Human Trafficking’ (2012) 60 UCLA Law Review 76. 40 See for instance European Committee of Social Rights: Conclusions 2011 (Bosnia Herzegovina) (Council of Europe January 2012). 41 In Rantsev it resulted in her death.

Human Rights, Labour Rights, and Criminal Wrongs  217 physical, or sexual integrity. Such violations of personal integrity have in the past given rise to obligations to criminalize under the Convention, and Article 4 case law reiterates the principle that the state response to such wrongs may require the machinery of criminal law. To the extent that criminal law is viewed as the best way to protect fundamental values that human rights embody, criminalization demonstrates societal disapproval, while criminal penalties can also have a preventive or deterrent function.42

2. The Modern Slavery Act 201543 Against the background of the landmark developments in the field and in order to respond to Article 4 case law, the UK enacted the Modern Slavery Act 2015 (MSA), which codified criminal legislation on slavery, servitude, forced and compulsory labour, and human trafficking.44 It can be said that the MSA meets ECHR obligations to criminalize under Article 4, but it is very questionable whether it meets procedural obligations to enforce the law effectively. The stated purpose of the MSA consisted in facilitating the work of prosecutors and the police with regard to modern slavery,45 and increasing the rates of prosecutions, which were viewed as low.46 However, the Act has not led to a significant increase in the number of identifications of victims and prosecutions, which led to criticisms in a National Audit Office Report.47 Existing data suggests that even though there has been a small increase in prosecutions, the numbers are still strikingly low if assessed against National Referral Mechanism (NRM) referrals.48 Between 2015 and 2016, there were 3,146 NRM referrals. In 2016 there were just eighty prosecutions under the MSA, rising from twenty-​six prosecutions in 2015. 49 In 2017, there were 5,145 referrals, while in 2017–​18, there were just 239 prosecutions.50 Even though the number of prosecutions has increased, it is still very low, and there is a striking discrepancy between the number of prosecutions and the number of referrals of victims of human trafficking through the NRM. The underenforcement of the MSA is partly due to the police response to the crime. In October 2017, a police watchdog, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS), produced a report which was highly critical of the police on this matter for a number of reasons, including a lack of understanding of the issue, ineffective investigations, and the frequency with which victims were referred to immigration 42 See analysis of these in Tulkens (n 16) 590–​91. More generally on the criminalization of exploitation, see Jennifer Collins, ‘Exploitation of Persons and the Limits of the Criminal Law’ (2017) Criminal Law Review 169. 43 I discuss the MSA in much more detail in Virginia Mantouvalou, ‘The Modern Slavery Act Three Years On’ (2018) 81 Modern Law Review 1017. 44 Sexual Offences Act 2003, ss 57–​59; Asylum and Immigration (Treatment of Claimants) Act 2004, s 4, as amended by Protection of Freedoms Act 2012, ss 109 and 110, and Coroners and Justice Act 2009, s 71. 45 HC Deb 8 July 2014, vol 584, col 171. 46 For instance, in 2013 there were only sixty-​eight convictions: HC Deb 8 July 2014, vol 584, col 175. The MSA also contains a number of preventive measures, backed by criminal sanction upon breach, discussed in Ashworth and Collins, this volume. 47 Report by Comptroller and Auditor General, Reducing Modern Slavery (HC 630, National Audit Office 15 December 2017). 48 The NRM is the main administrative mechanism dealing with modern slavery allegations and identifying victims. 49 National Audit Office Report (n 47) [4.8]. 50 Crown Prosecution Service, Modern Slavery Report 2017–​18 (CPS August 2018).

218  Criminality at Work authorities instead of being provided with support.51 When it comes to both the identification of victims and the prosecution of individual perpetrators of the crime, in other words, the MSA has thus far failed to meet its stated purpose, as well as the positive obligations under the ECHR to investigate and prosecute effectively any violations of Article 4. I will return to positive obligations and the MSA and to how it falls short of Article 4 requirements in section D of this chapter.

3.  Collective Labour Rights and Blacklisting Do violations of collective labour rights justify the imposition on states of positive duties to criminalize? This has not occurred so far in ECtHR case law, but the remainder of this chapter argues that such duties should be recognized when there is a sufficiently serious breach of the Convention. This analysis inevitably gives rise to the following question: can obligations to criminalize be triggered under qualified and derogable provisions of the ECHR? We saw earlier that Article 8 has been found to trigger such an obligation in a case that involved rape. I argue that we should also recognize such duties in response to breaches of collective labour rights, and develop my argument using blacklisting as an example. Blacklisting serves as one instance of a serious breach of collective labour rights that requires criminalization, but it should not be viewed as the sole example. Blacklisting is the practice of compiling information on individuals regarding their trade union membership and activities, and sharing this information with employers and employment agencies so as to enable them to discriminate against those blacklisted in obtaining a job or in their treatment at work. The information serves as a reason to systematically deny employment to workers, and in the UK has primarily been used in the construction industry, where it has been revealed to be a widespread practice.52 This emerged in 2009, when the Information Commissioner’s Office published a report that revealed the extent of blacklisting by an organization called the Consulting Association. The predecessor of the Consulting Association was the Economic League that was founded in 1919, and included a ‘Services Group’ that was composed of construction companies that collated data on ‘potentially disruptive individuals’.53 The Consulting Association was formed in 1993. In 2009 it was revealed that it put together a secret blacklist on behalf of forty-​four multinational building contractors. The database contained sensitive personal information on over 3,000 individuals, primarily in relation to trade union membership of workers who had raised health and safety concerns. The information on ‘troublemakers’ was secretly put together by construction firms (many of which were large multinationals) that paid an annual subscription. Some of the workers were covertly monitored. While initially this appeared to be an activity of private companies, it was later revealed that Scotland Yard provided information 51 HMICFRS, ‘Stolen Freedom: The Policing Response to Modern Slavery and Human Trafficking’ (HMICFRS October 2017). On this, see further Candice Morgan, ‘Modern Slave or Illegal Worker? The Haze around Modern Slavery and its Implications’ LSE Politics and Policy Blog (17 November 2017) accessed 5 August 2019. 52 For an excellent discussion of the problem of blacklisting, see Hugh Collins, Keith Ewing, and Aileen McColgan, Labour Law (CUP 2012) 453ff. 53 See the discussion in the House of Commons Scottish Affairs Committee, Blacklisting in Employment—​ Interim Report (Ninth Report of Session 2012–​2013, 16 April 2013), 7. More generally the reports of the Scottish Affairs Committee on blacklisting provide a very valuable and useful account of the facts.

Human Rights, Labour Rights, and Criminal Wrongs  219 to the Consulting Association, which means that there was direct state involvement.54 The database was used by employers to check on workers who applied for jobs or were already employed. Many blacklisted workers were repeatedly dismissed and not hired to work for long periods of time. These workers’ description of the practice of blacklisting and its effects serves to illustrate the seriousness of the wrong and harm. A backlisted bricklayer described it as follows: The Blacklist is an economic, social and political prison. I have served a life sentence and other workers continue to be imprisoned. In cases like my own, the Blacklist effectively takes the form of house arrest because of its effect on a person’s social life. My wife was also deeply affected and badly scarred. More often than not, she was forced to financially support me, and our two children, on her low wage as a care worker. This has had a devastating effect on our standard of living. To her great credit my wife supported me and our family unstintingly. She held us together when things got really tough—​which it did quite often. We kept our dignity intact and just managed to keep our heads above water by almost completely sacrificing our social life. My wife had to take out loans, which we could not afford, since my credit rating was zero due to very long spells of unemployment. All of this is the direct result of the building employers deliberately using the Blacklist, time and again, to deny me the right to work and to earn a living.55

The wrongfulness of blacklisting consists in, first, abuse of a vulnerability that is due to economic dependence, and second, discriminatory treatment of individuals for the reason that they exercise a right that they have under the Convention (the right to be a trade union member or the right to free speech). The fact that the practice was concealed and coordinated, with dismissals and refusals of employment being inexplicable for years, is a particularly sinister and insidious aspect of the treatment. Blacklisting raises pressing questions under Articles 11 and 8 of the ECHR, alone or together with Article 14 (prohibition of discrimination).56 More precisely, being included in a list of trade union members compiled by employers to be used in hiring or retention decisions interferes with Article 11. This is contrary to the Convention for it cannot be seen as having a legitimate aim, as the aim of blacklisting is to discriminate against workers who exercise a Convention right. Because of the discriminatory element, the inability to obtain a job and dismissals on the basis of the blacklists also violates Article 14 together with Article 11. The harm caused by the wrongful conduct consists in dismissal, inability to obtain a job in their occupational field, poverty, and social isolation.57 This can also be described as a systemic and arbitrary denial, and hence a violation, of the right to work, with all the severe implications that this has for someone’s life.58 The right to work is not guaranteed explicitly 54 Rob Evans, ‘Officers Likely to Have Passed Personal Files to Blacklisters, Says Met’ The Guardian (23 March 2018) accessed 5 August 2019. 55 Collins, Ewing, and McColgan (n 52) 455. 56 Art 14 is not a free-​standing provision. It can only be violated when invoked together with some other Convention right. 57 Because of the harm caused by blacklisting, it is also described as having ruined lives. See Ewing, Ruined Lives (n 2). 58 On the value and legal protection of the right to work, see Virginia Mantouvalou (ed), The Right to Work: Legal and Philosophical Perspectives (Hart Publishing 2015).

220  Criminality at Work in the ECHR, but it has been protected in case law on other provisions.59 Blacklisting raises questions on the protection of the right to private life under Article 8, a provision that is interpreted broadly by the Court.60 The right to private life is implicated not only because the employers held and used workers’ personal information, a practice that interferes with privacy with no legitimate aim.61 There is a broader Article 8 issue. In Sidabras and Dziautas v Lithuania,62 the Court examined the applicants’ dismissal and ban from access to public and various branches of private sector employment for a period of ten years, for the reason that they were former KGB members. Examining the question whether Article 8 was engaged, it said that the ban ‘affected their ability to develop relationships with the outside world to a very significant degree and has created serious difficulties for them in terms of earning their living, with obvious repercussions on the enjoyment of their private lives’.63 The extensive implications of the restriction engaged the right to private life, and led to a violation of Article 14 together with Article 8.64 Blacklisted workers face serious restrictions on their ability to obtain a job, with devastating implications for their private life. Article 8 imposes several positive obligations,65 and has been found to give rise to a duty to criminalize conduct, as discussed earlier, even though it is a qualified and derogable provision. This is because what carries most weight in the relevant case law of the Court is not the nature of the Convention right as absolute, but the nature of the wrongdoing and the harm inflicted.66 The harm of blacklisting is evident in the following statement by a blacklisted bricklayer: You start to see the effects almost immediately on your wife and family. You don’t have money that you should have to be able to afford everyday things. That sometimes affects the kids, sometimes school holidays, eventually we couldn’t afford a social life, we couldn’t go out with friends, we couldn’t have meals, we couldn’t go to the pictures or things that you take for granted. Our social life was immediately cut off. Probably after three months, you start to really notice the economic and social deprivation. And my wife then had to take on another job and she had one then she had to take two and eventually she had to take three and that put almost impossible demands on her, physically and mentally.67

The wife of a blacklisted worker further explained the effects of blacklisting on private life: At first I resented my husband as he went on strike. I blamed him even though it wasn’t his fault. After that he wasn’t able to find work. It was really hard for both of us. I was earning 59 Virginia Mantouvalou, ‘The Protection of the Right to Work Through the European Convention on Human Rights’ (2014) 16 Cambridge Yearbook of European Legal Studies 313; Rory O’Connell, ‘The Right to Work in the ECHR’ (2012) European Human Rights Law Review 176. 60 See particularly the Grand Chamber judgment Denisov v Ukraine App no 76639/​11 (25 September 2018). 61 On this, see Barbulescu (n 5). 62 Sidabras and Dziautas v Lithuania App nos 55480/​00 and 59330/​00 (27 July 2004). 63 ibid [48]. 64 See further Virginia Mantouvalou, ‘Work and Private Life:  Sidabras and Dziautas v Lithuania’ (2005) European Law Review 573. 65 See, eg, IB v Greece (n 5). 66 X and Y (n 8) [27], [30]. 67 Dave Smith, Blacklisting: The Need for a Public Inquiry (Institute of Employment Rights 2017) 10–​11.

Human Rights, Labour Rights, and Criminal Wrongs  221 for the both of us so I had to do any job I could get. It made me feel quite resentful. As I had to be out working, it meant for a long time we couldn’t have a family. I had no choices. Because I had to be working, it put a strain on both of us. We had our daughter in 1986. We had planned to have more children but without my husband being in work we couldn’t afford to. After having my daughter, I had to go back to work so we had a source of income, but this was through necessity not choice. We were living on the breadline. We could never afford any holidays and weren’t able to go out and do things. There were times we couldn’t even afford the train fare to go and see my mother in Edinburgh. It was existence and only that.68

When the blacklisting scandal came to light, a fine of £5,000 was imposed on Ian Kerr, a person who held an important role in the Consulting Association (and its predecessor, the Economic League since 1969) for the reason that he processed personal information without having registered as a data controller with the Information Commissioner on the basis of the Data Protection Act 1998. None of the companies that were members of the Consulting Association were prosecuted. Some blacklisted workers applied to employment tribunals, and in 2010 the Employment Relations Act 1999 (Blacklists) Regulations 2010 came into force, which made blacklisting a civil, but not a criminal wrong. The Regulations include provisions that define blacklisting, make it unlawful for organizations to refuse employment, dismiss or cause detriment to individuals who are included in a blacklist, and make it unlawful to agencies to refuse service to blacklisted workers. The regulations make blacklisting unlawful, but not a criminal offence. Despite the human rights implications, the Court declared inadmissible two cases on blacklisting,69 though it did accept that there had been interference with Convention rights.70 Mr Smith and Mr Brough were blacklisted and suffered significantly because of their inclusion in the lists. Mr Brough claimed that blacklisting violated Article 11 of the ECHR, but the Court dismissed his claim for non-​exhaustion of domestic remedies, which in this case consisted in not having raised an ECHR argument in employment tribunal proceedings. Mr Smith was an agency worker, who worked in the construction industry. He claimed that the collection of his personal data through blacklisting was in breach of Article 8, that English law did not protect him as an agency worker who was blacklisted because of his union activities, and did not provide him a remedy for that, and that he was not protected from discrimination as a union member and agency worker under Article 14. The ECtHR accepted that there had been an interference with Article 8, and explained that national authorities have a margin of appreciation in securing compliance with the provision.71 In this regard, it found that the authorities had made the retention of personal data a criminal offence under the Data Protection Act, and that they also allowed for a civil remedy, through which the applicant was awarded compensation. The Court ruled that the application was incompatible with the Convention ratione personae,72 68 ibid 11. 69 Brough v UK App no 52962/​11 (Admissibility Decision of 30 August 2016); Smith v UK App no 54357/​15 (Admissibility Decision of 28 March 2017). For discussion of the Brough decision, see Keith Ewing and John Hendy, ‘Article 11(3) of the European Convention on Human Rights’ (2017) European Human Rights Law Review 356, 373ff. 70 Smith (n 69) [36]. 71 Smith (n 69) [36]–​[37]. 72 ECHR, art 35(3).

222  Criminality at Work because the state had met its positive obligations under the Convention by criminalizing the unlawful retention of personal data, and by creating a civil remedy, which the applicant pursued and through which he obtained compensation. In reaching the decision, the Court took into account the fact that ‘it was the actions of private companies rather than the national authorities’.73 However, it is important to note that this occurred before the revelations that there was in fact state involvement in blacklisting.74 The Court also examined the admissibility of the case on the basis of Article 35(3)(c),75 and ruled that the applicant had not suffered ‘significant disadvantage’, because domestic courts recognized the injustice that he suffered, and he received compensation. A number of people received compensation in settlement proceedings in the context of class action before the High Court, the legal basis of which included conspiracy and defamation.76 The defendants also offered an apology for the secrecy and consequences of blacklisting. The ECtHR then turned to the question whether respect for human rights requires the examination of the complaint, which it rejected. This was because domestic courts had recognized the injustice of blacklisting, and Parliamentary and other national bodies had scrutinized and condemned the practice. In Smith and Brough the applicants did not argue that blacklisting as a practice should be a criminal offence, despite the fact that its wrongfulness is not limited to the retention of personal data that is a criminal offence under the Data Protection Act.77 However, the approach of the Court to the admissibility question whether respect for human rights compels it to examine the case, despite the fact that Smith enjoyed some legal protection and was awarded compensation domestically, suggests that the Court did not appreciate fully the moral wrong of blacklisting, its systemic nature, or the harm that it caused to the applicants, their work prospects, their relationships with others at work, as well as their private lives away from work. This was disappointing. The existence of a separate criminal offence that relates to personal data, as well as civil remedies, cannot be viewed as sufficient for the purposes of Articles 11, 8, and 14 of the ECHR, for when there is a serious moral wrong and harm, it is important for the criminal law to identify and condemn it as such. This can be grounded on the guiding principle of ‘fair labelling’, which suggests that a crime needs to be correctly labelled for reasons such as the fair treatment of the offenders78 and the public confidence in the law.79 The ECtHR has recognized this point using broad terms. It has emphasized that

73 Smith (n 69) [40]. 74 Evans (n 54). 75 Paragraph 3 of art 35 says that a case will be declared inadmissible if ‘(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal’. On this admissibility criterion, see Dinah Shelton, ‘Significantly Disadvantaged? Shrinking Access to the European Court of Human Rights’ (2016) 16 Human Rights Law Review 303. 76 Further information on the background of the claims is available here:  Construction Industry Vetting Information Group Litigation, Claims listed in the CIVIG Group Register (29 November 2013) accessed 5 August 2019. 77 I am grateful to John Hendy QC for clarifying this issue, and for providing me with copies of the applications in Strasbourg. 78 See, among others, Andrew Ashworth, Principles of Criminal Law (5th edn, OUP 2006) 88–​89. 79 Victor Tadros, ‘Fair Labelling and Social Solidarity’ in Lucia Zedner and Julian Roberts (eds), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (OUP 2012) 67.

Human Rights, Labour Rights, and Criminal Wrongs  223 we need to have a criminal offence that captures the wrong, for otherwise the law will not be effective. In Siliadin it ruled that the existing criminal offences in French law were insufficient for they did not capture the wrongfulness and the harm suffered by victims of servitude, and forced and compulsory labour. France suggested that even though this conduct was not criminalized at the time, there were two other offences in the French Criminal Code that addressed the relevant wrong (obtaining from someone performance of services without pay, and subjecting someone to working or living conditions incompatible with human dignity by taking advantage of his or her vulnerability). The ECtHR responded that these provisions did not provide effective penalties. It noted that ‘the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies’.80 Similarly, in X and Y v Netherlands, which was discussed earlier in relation to a positive duty to criminalize under Article 8, the Court rejected the argument of the government that existing criminal offences were sufficient for Article 8 obligations to be met.81 It is important to identify correctly the wrongful conduct both for purposes of effectiveness but also for purposes of fair labelling. The above reasoning on positive obligations to criminalize conduct under Articles 4 and 8 applies to the criminalization of blacklisting. The Data Protection Act 1998 makes the retention of personal data a criminal offence but this is not sufficient. Obtaining or retaining data is a distinct moral wrong that has to do with a person’s privacy, while blacklisting involves the taking advantage of the economic vulnerability of workers, and their discrimination for the reason that they exercise a Convention right. In addition, the harm of blacklisting does not only consist in a violation of privacy, as argued earlier. It consists in a systemic denial of the right to work with grave implications for private life. It should therefore be regulated as a distinct offence, in addition to existing criminal and civil law penalties. The principle of fair labelling supports the position that blacklisting has to constitute a distinct criminal offence, separate to offences under the data protection legislation. Finally, in relation to making the rights of the Convention practical and effective through deterrence, it is important to appreciate that the penalties under the Data Protection Act offence are low. For this reason, it has been argued that it provides no deterrence, while there is evidence that blacklisting continues to occur.82 The ECtHR has ruled that Article 11 requires ‘real and effective protection against anti-​ union discrimination’,83 but the legal framework in the UK does not meet this standard. The Blacklist Regulations make it unlawful to develop, provide, use, or purchase a ‘prohibited list’, namely one that contains people’s details because of their union membership and activities. However, the Regulations have several weaknesses: they do not have retroactive effect, so those who were blacklisted before the Regulations came into force could 80 Siliadin (n 19) [148]. 81 X and Y (n 8) [28]–​[30]. 82 IER, The Blacklisting Scandal: A History of Blacklisting, Recent Updates, and How the Law Should be Changed (Institute of Employment Rights 2013) 17. For instance, it is said that it occurred during the construction works before the Olympic Games. It is also important to note here that Ian Kerr’s fine of £5,000 was paid by McAlpine, a large construction company. Cullum McAlpine, who was Director of several companies in the McAlpine Group, was the first chairman of the Consulting Association. 83 Danilenkov v Russia App no 67336/​01 (30 July 2009) [124]. See also Wilson, National Union of Journalists and others v UK, App nos 30668/​96, 30671/​96, and 30678/​96, Judgment of 2 July 2002.

224  Criminality at Work not rely on them. Claims have to be brought to a tribunal three months after the offence, but many workers do not know that they are blacklisted for many years after they are included in the list.84 The Regulations do not provide for a right to compensation for blacklisting alone: proof of loss or injury to feelings is required. Moreover, an implication of the fact that blacklisting is only dealt with as a civil matter is that the blacklisted worker has to find evidence and take a claim to court. This can be an insurmountable obstacle given the covert nature of the practice.85 That blacklisting should be criminalized has been suggested in several fora. In parliamentary debates on blacklisting in 2017 it was argued that there is a strong case to criminalize it, and provide for severe sanctions, including high fines and possible imprisonment for the worst cases,86 and ban of companies that have engaged in blacklisting from award of public contracts.87 Representatives of trade unions giving evidence to the Scottish Affairs Committee of the House of Commons said that blacklisting would not cease unless legal sanctions against the practice were strengthened: It is happening, and it will continue in the UK until blacklisting is made a criminal offence punishable by imprisonment and unlimited fines. Until that legislation is brought in by whichever Government decides to bring it in, it will continue.88

The Institute of Employment Rights also proposed changes to the law on blacklisting, including criminal sanctions for employers operating blacklists.89 Given that there is evidence that blacklisting still happens, criminalization can serve to condemn employers who engage in the harmful conduct, and to reduce the instances of it.

D.  Overcriminalization/​Exclusive Focus on Criminalization There are two possible objections to the argument that blacklisting should be criminalized. The first one is the question whether we may extend duties to criminalize too far, which is an important concern expressed both in theory90 and in the context of the Convention.91 Tulkens explained in a concurring opinion in MC v Bulgaria:

84 IER, The Blacklisting Scandal (n 82) 14–​15. 85 Smith, Blacklisting (n 67) 25. 86 HC Deb 5 September 2017, vol 628, col 68WH. 87 Chuka Umunna MP, HC Deb 5 September 2017, vol 628, col 69WH. 88 House of Commons, Scottish Affairs Committee, Blacklisting in Employment: Addressing the Crimes of the Past; Moving Towards Best Practice (Sixth Report of Session 2013–​2014, 12 March 2014) [51]. 89 See Alex Just, ‘A Manifesto Against Blacklisting’ in Smith, Blacklisting (n 67) 39. There are also suggestions that EU public procurement rules can be used to exclude from public contracts businesses that have engaged in ‘grave professional misconduct’. See the EU Public Procurement Directive 2014/​24/​EU of 26 February 2014, art 57(4)(c). See UNITE Legal Services, ‘Blacklisting—​The Battle for Justice’ (August 2016) accessed 5 August 2019. 90 See, eg, Victor Tadros, ‘Criminalization and Regulation’ in RA Duff and others (eds), The Boundaries of the Criminal Law (OUP 2010) 163. 91 Ashworth, Positive Obligations (n 7); Tulkens (n 16); Liora Lazarus, ‘Positive Obligations and Criminal Justice: Duties to Protect or Coerce?’ in Lucia Zedner and Julian Roberts (eds), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (OUP 2012); Natasa Mavronicola, ‘Taking Life and Liberty Seriously: Reconsidering Criminal Liability Under Article 2 of the ECHR’ (2017) 80 MLR 1026.

Human Rights, Labour Rights, and Criminal Wrongs  225 [C]‌riminal proceedings should remain, in theory and in practice, a last resort or subsidiary remedy and that their use, even in the context of positive obligations, calls for a certain degree of ‘restraint’.92

She also suggested that the use of criminalization has been broad to the extent that ‘it is no longer necessary to justify the use of the criminal option but rather the absence of its use’.93 As mentioned above, the imposition of duties to criminalize in ECtHR case law stems from the interpretive principle employed by the Court according to which Convention rights have to be practical and effective. State coercion through criminalization is viewed as an effective way to deter the relevant conduct. Sanctions imposed through criminal law aim at influencing behaviour,94 and there is indeed evidence that the criminal law has a deterrent effect.95 In relation to deterrence, Ashworth suggested that when arguing for a new positive obligation to criminalize we should carefully consider the phraseology for the justification of the duty.96 He emphasized that even though criminalization has a deterrent effect, it is doubtful whether higher penalties lead to lower rates of offending.97 He therefore suggested that the ECtHR’s focus should be placed on censuring people for committing particular wrongs, and imposing punishment that is proportionate to the commission of the wrong (separate to or in addition to civil liability).98 With either approach to the justification of criminalization (one focusing on deterrence or one focusing on retribution), the criminalization of blacklisting is required both in order to reduce the likelihood of future violations and in order to punish those who are culpable for the specific wrongful act. The argument of this chapter is not of course that all violations of collective labour rights by private individuals should be criminalized. A good example of a case where the Court imposed a positive obligation to secure Article 11 rights, but which did not trigger a duty to criminalize, is Wilson and Palmer v UK.99 Wilson involved the practice of treating employees who sign an individual employment contract and cease to be represented by a trade union more favourably than those who refused to do so. UK law did not protect employees, and was found to breach Article 11.100 What distinguishes Wilson from the blacklisting cases is that the wrong of blacklisting negates not only union membership but the right to work altogether, with devastating implications for the right to private life. The cumulative convergence of Articles 11, 8, and 14 in the case of blacklisting serve as a particularly strong normative basis for criminalization. A second objection that needs to be considered is whether the Court is reliant exclusively on criminalization when faced with serious violations of labour rights, or whether it is sufficiently appreciative of other forms of regulation, such as civil remedies, which may be suitable and effective in addressing the wrong in question.101 The proposition 92 MC v Bulgaria App no 39272/​98 (4 December 2003). 93 Tulkens (n 16) 585. 94 AP Simester and Andrew von Hirsch, Crimes, Harms, and Wrongs (Hart 2014) 5. 95 See, eg, Andrew von Hirsch and others, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research (Hart Publishing 1999) ch 2. 96 Ashworth, Positive Obligations (n 7) 209. 97 Ashworth did question whether higher penalties conduce to deterrence, ibid 210. 98 ibid. 99 Wilson (n 83). 100 Ewing examined the implications of Wilson and suggested how English law should change in order to provide effective protection to trade union members, but did not suggest that the conduct in question should be criminalized. See Keith Ewing, ‘The Implications of Wilson and Palmer’ (2003) 32 Industrial Law Journal 1. 101 See Tadros, ‘Criminalization and Regulation’ (n 90).

226  Criminality at Work that blacklisting should be criminalized does not imply that there should also not be civil sanctions for the victims. The Strasbourg Court itself recognizes the role of different methods of regulation when examining the effective protection of Convention rights. For instance, it explicitly ruled that criminalization of violations of collective labour rights is not sufficient in Danilenkov v Russia.102 The applicants, members of the Dockers’ Union of Russia (DUR), complained that their employer, a private company, subjected them to discriminatory treatment on the basis of their trade union membership, contrary to Article 11 together with Article 14. Following a period of strike action, which was unsuccessful, the applicants were reassigned to special work teams with limited opportunities, transferred to part-​time posts, and finally made redundant. Even though they won their case in domestic courts that ordered that they are paid compensation, their discrimination claims were not upheld, because the domestic legal framework made discrimination a criminal offence, which civil courts had no jurisdiction to examine. The prosecutor declined to open a criminal investigation, as an inquiry failed to establish intent to discriminate. The Court ruled that because discrimination could only be established in criminal proceedings and not through civil action, Russia did not provide effective legal protection to the applicants. Focusing particularly on the question why a criminal remedy is insufficient, the Court explained that criminal proceedings require proof beyond reasonable doubt of intent by the managers to discriminate. On this basis it was decided not to prosecute. For reasons such as this, criminal proceedings alone were viewed as inadequate by the ECtHR. Civil proceedings would have been more suitable for they [W]‌ould have made it possible to perform the far more delicate task of examining all elements of the relationship between the applicants and their employer, including the combined effects of the various techniques used by the latter to induce dockers to relinquish DUR membership, and to afford appropriate redress.

It may be argued at this point that in order to achieve the practical and effective protection of Convention rights, we could simply impose higher penalties under civil law, rather than invoking the ‘distinctively moral voice’103 and coercive power of criminal law. On this matter, though, it is important to appreciate the different functions of criminal law. As Ashworth rightly pointed out, in addition to deterrence, it is also crucial to identify distinctive categories of blameworthy wrongs, and censure those who commit these wrongs. Blacklisting has to be criminalized as such in order to communicate the gravity of the wrong and harm caused to workers. The imposition of penalties under civil law only for certain wrongful conduct may also be unacceptable under the ECHR. This is because the ECtHR might still classify the relevant sanctions as criminal. In Ozturk v Germany, it ruled: By removing certain forms of conduct from the category of criminal offences under domestic law, the law-​maker may be able to serve the interests of the individual . . . as well as the needs of the proper administration of justice, in particular in so far as

102 103

Danilenkov (n 83). Simester and von Hirsch (n 94) 4.

Human Rights, Labour Rights, and Criminal Wrongs  227 the judicial authorities are thereby relieved of the task of prosecuting and punishing contraventions—​ which are numerous but of minor importance—​ of road traffic rules. The Convention is not opposed to the moves towards ‘decriminalization’ which are taking place—​in extremely varied forms—​in the member States of the Council of Europe. The Government quite rightly insisted on this point. Nevertheless, if the Contracting States were able at their discretion, by classifying an offence as ‘regulatory’ instead of criminal, to exclude the operation of the fundamental clauses of Articles 6 and 7 . . . , the application of these provisions would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the object and purpose of the Convention.

In other words the Court approaches the question of what constitutes a criminal offence as an ‘autonomous concept’,104 in the sense that is not bound by the authorities’ decision to classify a sanction as civil. This is because when state authorities have the power to impose serious sanctions that are typically found in criminal law, these must be viewed as criminal in nature for the ‘defensive role of human rights’105 under Articles 6 (right to a fair trial) and 7 (no punishment without law) to come into play. It should be added, before concluding, that the Court is not overly focused on sanctions when considering protection of rights. It also pays some attention to structural factors that create vulnerability to workers’ exploitation. In Rantsev, for instance, it explained that ‘the duty to penalize and prosecute trafficking is only one aspect of member States’ general undertaking to combat trafficking. The extent of the positive obligations arising under Article 4 must be considered within this broader context.’106 The Cypriot immigration scheme of artiste visa was ruled to violate Article 4 of the Convention because it did not protect individuals from human trafficking.107 To return to the example of the MSA, it is very questionable whether it complies with its ECHR obligations, not only because of the limited number of prosecutions as discussed earlier, but also because of the lack of political will to address structural factors, and particularly legal structures, that create vulnerability to exploitation. This point is exemplified by the UK Overseas Domestic Worker visa, which was a central political issue during the passing of the Act.108 To conclude this section, the objection that there is a tendency to overcriminalize is not pertinent when it comes to labour rights in the ECHR, where the Court has imposed limited obligations to criminalize. At the same time it cannot be said that the Court is not mindful of the role of civil remedies for victims of violations,109 or of the role of structural factors that create vulnerability to exploitation.110

104 See George Letsas, ‘The Truth in Autonomous Concepts: How to Interpret the ECHR’ (2004) 15 European Journal of International Law 279. 105 Tulkens (n 16) 579. 106 Rantsev (n 29) [285]. 107 ibid [293]. 108 See Virginia Mantouvalou, ‘The Modern Slavery Act Three Years On’ (2018) 81 Modern Law Review 1017; Virginia Mantouvalou, ‘ “Am I Free Now?” Overseas Domestic Workers in Slavery’ (2015) 42 Journal of Law and Society 329. 109 Danilenkov (n 83). 110 Rantsev (n 29).

228  Criminality at Work

E.  Conclusion Certain violations of labour rights constitute grave moral wrongs, which can cause serious harm to a person’s life, physical or psychological integrity. Taking advantage of workers’ vulnerability that is due to economic reasons, or other factors, such as someone’s immigration status, and exploiting them by violating their human and other labour rights can give rise to positive obligations under the Convention. In this context, the systemic exploitation of migrant workers has triggered a positive obligation to put in place effective criminal laws that must be backed up by effective procedural protections. The development of such obligations in this context should be viewed as a positive evolution to the extent that it expresses public disapproval for the specific treatment, punishes those who commit the crime, and deters others. The key questions under the ECHR on this issue are whether the relevant criminal law is effectively enforced, on the one hand, and whether the authorities also take steps to remove structural factors that create vulnerability to such exploitation, on the other. In this chapter, I argued that the violation of collective labour rights may also trigger an obligation to criminalize in certain circumstances. I used the example of blacklisting to illustrate the point that a breach of trade union rights can meet the elements of wrongfulness and harm that are central in the inquiry of criminalization. This positive obligation arises on the basis of Articles 11, 8, and 14 of the Convention. The cumulative convergence of these three rights—​the discriminatory treatment of trade union members and the violation of their right to work—​provides a strong normative argument for criminalization. These are not absolute and non-​derogable provisions. However, their nature as qualified and derogable rights does not preclude them from triggering obligations to criminalize when the conduct that breaches the Convention is a serious wrong that causes grave harm to the workers. The Court has to recognize positive obligations to enact criminal laws (together with other remedies) to address such violations of collective labour rights, both in order to communicate that treating workers in this manner is a grave moral wrong that our legal system disapproves, and in order to contribute effectively to the protection of workers from the wrongful conduct in question and its disastrous effects.

PART III

T HE C ON T E MP OR A RY SHA PE OF CRIM INA L IZ AT ION PR ACT IC E S : RISK, STAT U S, A N D CHA R AC T E R I N THE N E OL IBE R A L C R I M I NA L  L AW

12

The Preventive Role of the Criminal Law in Employment Relations Jennifer Collins and Andrew Ashworth

A.  Introduction What preventive role does the criminal law now play in employment relations, in the light of recent legislative changes? In this chapter we examine the effect of three sets of criminal offences on the protection of workers’ rights and the balance of power in labour relations. We also scrutinize the justifications for using the criminal law in these ways. Thus section B considers offences of omission, analysing a new generation of omissions offences that can be committed by companies. In section C we examine the re-​vamped offence of employing an illegal worker, an offence that exists alongside a regime of civil penalties. We note concerns about discrimination in the enforcement of this law, and suggestions of collusion between immigration officials and employers, leading to questions about whether this offence enhances or impedes the achievement of worker-​protective goals. Section D assesses the new preventive orders associated with modern slavery and human trafficking, which involve the imposition of prohibitions and conditions, reinforced by the criminal offence of breaching the order without reasonable excuse. These preventive orders are contrasted with Labour Market Undertakings and Orders, and the range of supporting interventions. In section E we draw some conclusions about the proper role of criminal law in employment relations.

B.  Offences of Omission The first of the three preventive roles played by the criminal law in employment relations is to be found in offences of omission. It quickly becomes apparent that the criminal law’s role here is controversial on its own terms. This is because, as textbooks on English criminal law tend to state in some form or other, criminal liability for failing to act in a given situation should be exceptional.1 One of the strongest expressions of this doctrinal restriction is that of Simester and Sullivan, who state that ‘it is a guiding principle of the [criminal] law that defendants are liable according to what they do, not what others do and they fail to prevent’.2 They go on to maintain that ‘standard legal doctrine stipulates that the behaviour requirement [in the actus reus of a crime] is a requirement of positive action by the defendant. Except occasionally, an omission will not do.’3

1

For example, David Ormerod and Karl Laird, Smith and Hogan’s Criminal Law (14th edn, OUP 2015) 72–​73. AP Simester and others, Simester and Sullivan’s Criminal Law: Theory and Doctrine (Hart 2016) 15. 3 ibid 72. 2

Jennifer Collins and Andrew Ashworth, The Preventive Role of the Criminal Law in Employment Relations In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.0012

232  Criminality at Work Even if we accept Simester and Sullivan’s restrictive view of the place of omissions ­ ffences, it must be recognized that major exceptions have been made in offences relevant o to employment relations. Probably the best known of these is the Health and Safety at Work Act 1974. The Act imposes, inter alia, two distinct duties on employers: section 2 imposes a duty on every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees; section 3 imposes a similar duty towards ‘persons not in his employment who may be affected’ by the conduct of the employer’s undertaking. These duties are reinforced by the criminal offence (section 33) of failing to discharge the obligations imposed on employers by the Act. This offence of omission plays a major role in the labour market, since it underpins much of the work of the Health and Safety Executive4 and is the subject of sentencing guidelines for those cases that result in a conviction in court.5 Recent years have seen further duties imposed on employers through omissions offences. The leading example is the offence in section 7 of the Bribery Act 2010. A relevant commercial organization (C) is guilty of the offence of failure to prevent bribery if a person (A) associated with C bribes another person, intending to benefit C; but it is a defence for C to prove that C had in place adequate procedures designed to prevent persons associated with C from undertaking such conduct. In essence, therefore, this is an offence of omission (by failing to put adequate preventive procedures in place), not requiring proof of fault by C but allowing C a form of due diligence defence. The social function of this corporate failure-​ to-​prevent offence is to change corporate culture by giving companies an incentive to put preventive procedures in place, or at least by providing a deterrent against passivity on the part of companies.6 Other forms of corporate failure-​to-​prevent offences have also been enacted.7 Section 45 of the Criminal Finances Act 2017 holds an employer criminally liable if an ‘associated person’ commits a UK tax evasion facilitation offence when acting in the capacity of a person associated with the company. This offence does not require proof that the associated person was intending to benefit the corporation, and the term ‘associated person’ refers to the capacity in which A was acting and not the formal position held. This offence is also more explicitly preventive, since the conduct element is that the associated person facilitates an offence committed by someone else. On the same model as the section 45 offence but with a few small differences is the section 46 offence of failing to prevent the facilitation of a foreign tax evasion offence.8 The government has expressed an interest in creating similar offences for corporate failure to prevent fraud and to prevent money laundering, without stating precisely which model would be followed.9

4 The HSE’s enforcement policy and other relevant guidance may be found at accessed 6 August 2019. 5 Sentencing Council, ‘Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Definitive Guideline’ (2016) accessed 6 August 2019. 6 See HM Government, ‘Insight into Awareness and Impact of the Bribery Act 2010’ (2015) accessed 6 August 2019. 7 The offence of employing an illegal worker (discussed in section C below) also applies to corporations, see Immigration, Asylum and Nationality Act 2006, s 22. 8 For details, seeKarl Laird, ‘The Criminal Finances Act 2017—​An Introduction’ [2017] Criminal Law Review 915. 9 Ministry of Justice, ‘Corporate Liability for Economic Crime: Call for Evidence’ (January 2017) accessed 6 August 2019.

The Preventive Role of the Criminal Law  233 The previous two paragraphs establish that a new strain of omissions offences has appeared in English criminal law. Not only is this controversial in terms of criminal law’s own doctrine, but it raises questions about the justifications for introducing such offences. Two questions should be distinguished. The first is whether it is fair and just to impose such duties on employers, corporations or companies. Should it not be the task of the police and the regulatory agencies to prevent and detect bribery, fraud, money laundering, and the facilitation of tax evasion? Indeed it should, but the further issue is whether there is good reason for coopting employers into this enforcement process. Lindsay Farmer has recently argued that the rise of preventive offences can be linked to an interest in protecting the vulnerable (such as children, victims of abuse and trafficking).10 On his view, it is ‘the relationship between the scale of the threat and the vulnerability of a particular class of victims that justifies the adoption’ of preventive measures.11 But the cluster of omission offences examined here, imposed on corporations in relation to securing the stability of financial interests, cannot be said to be underpinned by this rationale. More persuasive is a version of what leading criminologists such as Pat O’Malley and David Garland have termed ‘responsibilization’. They used the term to characterize the movement to delegate the responsibility for policing from the state to local organizations.12 We use it here in an extended sense, to cover the imposition of responsibility for aspects of law enforcement on corporations and employers, particular where they are in sufficient proximity to the wrongdoing or wrongdoer to be able to prevent or report an offence. This raises a normative question: to what extent is it justifiable to place such a preventive duty upon employers and corporations? One answer to this is to point out that the profit-​based structure of companies is the essential context for economic crimes of the kind discussed above. As Celia Wells puts it, ‘a corporation benefits from the wrongdoing of associated persons acting in pursuit of contractual or commercial advantage or tax limitation’.13 That benefit supplies a reason for expecting the corporation to play some role in preventing offending within or on behalf of the company. While this role cannot be seen as protecting the rights of workers, limits ought to be placed on an employer, business or corporation achieving competitive advantage over another through turning a blind eye to unlawful practices. However, it is one thing to find good arguments in favour of laying a duty on the corporation. It is a significantly further step to find good arguments in favour of imposing criminal liability on the company for failing to prevent these offences. One key issue is how serious these new omissions offences are: there is no doubt that bribery and facilitating tax evasion are serious offences—​although their impact is financial, and does not involve sex or violence—​but we must recall that the company is not the progenitor of these offences, but rather stands some distance away from the actual commission. The decision whether the criminal law or regulation is the more appropriate response calls for some difficult calculations. It can be argued that criminal law should be the last resort rather than the ‘go-​ to’ response,14 and that it should require the full criminal procedure and fair trial rights.

10 Lindsay Farmer, Making the Modern Criminal Law: Criminalization and Civil Order (OUP 2016) 107. 11 ibid 107. 12 Pat O’Malley, ‘Volatile and Contradictory Punishment’ (1999) 3 Theoretical Criminology 175; David Garland, The Culture of Control (University of Chicago Press 2001) 126. 13 Celia Wells, ‘Corporate Failure to Prevent Economic Crime—​A Proposal’ [2017] Criminal Law Review 423, 430. 14 Douglas Husak, ‘Criminalization as Last Resort’ (2004) 24 Oxford Journal of Legal Studies 207.

234  Criminality at Work Regulatory enforcement is another form of response that should be considered, not least because the fines imposed by regulators may be larger (and therefore perhaps more effective) than those imposed by the criminal courts.15 The government seemed to concede that in some fields, such as financial regulation, ‘strengthening deterrents to misconduct through regulatory reform’ would be appropriate and effective.16 However, the regulatory approach should not be selected in order to avoid granting fair trial rights to corporations accused of transgressing. The crucial issue is whether, ‘intrinsically’, these failure-​to-​prevent offences are at a sufficient level of seriousness to justify criminalization and therefore fair trial rights. Identifying the factors that determine the ‘sufficient level of seriousness’ is a difficult and contested task. Health and safety duties are clearly a settled core, but in the current crisis surrounding enforcement of labour standards it is uncertain how this will be developed.17

C.  The Offence of Employing an Illegal Worker The second of the three preventive roles played by the criminal law in employment relations is to be found in the re-​vamped offence of employing an illegal worker. Part of the background to this offence is the re-​vamped offence of illegal working that is committed by the illegal worker: section 34 of the Immigration Act 2016 inserts into the Immigration Act 1971 a new offence of ‘illegal working’, committed by a person who works when disqualified by reason of immigration status, and who knows or has reasonable cause to believe that he or she is so disqualified. The government’s aim of making ‘it harder for people to live and work illegally in the UK’ is demonstrated in the legal position that for those convicted, their wages are in principle recoverable under the Proceeds of Crime Act 2002, and any outstanding wage bill need not be paid.18 The doctrine of illegality applies as a defence to contract claims on that basis that an individual ought not to benefit from their own wrongdoing in order to preserve the integrity of the legal system.19 Exceptions to the application of this doctrine are drawn around considerations of public policy and proportionality, to be determined on a case-​by-​case basis using a range of factors.20 The background to harsher sanctions upon employers is one of increased vulnerability for those bearing irregular work status.21 Our chief interest is in the provisions of section 35 of the Immigration Act 2016, which amends the offence of knowingly employing an illegal worker contained in section 21 of 15 Wells (n 13) 432–​35. 16 For details, see Laird (n 8) 15–​16. 17 See David Metcalf, ‘United Kingdom Labour Market Enforcement Strategy 2018/​19’ (HM Government May 2018). 18 Announced by Prime Minister David Cameron on 21 May 2015 in his immigration speech. Council Directive 2009/​52/​EC (18 June 2009) (Employer’s Sanctions Directive) has not been enforced in England and Wales, providing for minimum standards on sanctions and measures against employers of third-​country nationals holding irregular migration status. 19 Patel v Mirza [2016] UKSC 42, [2017] AC 467. For discussion, see Sarah Green and Alan Bogg (eds), Illegality After Patel v Mirza (Hart 2018). 20 Patel (n 19) [107]. 21 This sits awkwardly alongside the NRM referral system for victims of trafficking, established in 2009, see ATMG and Human Trafficking Foundation, ‘Submission to the UN Special Rapporteur on Contemporary Forms of Slavery (March 2017)  accessed 6 August 2019. cf the statutory defence in s 45 of the Modern Slavery Act 2015.

The Preventive Role of the Criminal Law  235 the Immigration, Asylum and Nationality Act 2006. Criminal sanctions for employing an illegal worker were first introduced in section 8 of the Asylum and Immigration Act 1996: failure to carry out a right to work check for a prospective worker was a criminal ­offence that could attract a fine of up to £5,000 per worker.22 Between 1998 and 2004 there were twenty-​five convictions.23 There are two principal changes in the amended section 21 offence, extending its scope and seriousness. The first is to broaden the basis for conviction, from ‘knowingly’ to ‘has reasonable cause to believe that the employee is disqualified from employment by reason of the employee’s immigration status’ (the new section 21(1A)(b) of the 2006 Act). The effect of this change is to broaden the offence by replacing a ­subjective test with an objective test, and the government’s expressed intention was to criminalize employers who are wilfully blind to the employee’s immigration status, usually by failing to carry out the appropriate checks.24 However, the Minister also stated that in cases where the employer is simply negligent, the civil penalty scheme (in force since 29 February 2008) will continue to be used, now with a maximum penalty of £15,000 or £20,000 per worker depending on whether it is a first offence.25 Some 2,594 civil penalties were issued to employers in 2015–​16.26 The criminal offence is aimed at employers who ‘actually know that someone has no right to work’ or who deliberately refrain from checking, and the formulation of ‘reasonable cause to believe’ was intended to make the offence easier to prove. The second principal amendment is the more than doubling of the maximum penalty, from two to five years’ imprisonment. This steep increase, combined with the broadening of the basis for criminal liability from ‘knowingly’ to ‘reasonable cause to believe’, renders the law much tougher than it was before 2016. To what extent these powers will be used remains to be seen: the criminal offence in the 2006 Act resulted in sixty-​nine prosecutions in 2008 but only nine in 2013 and, as stated in the previous paragraph, 2,594 civil penalties were imposed in 2015–​16.27 There is no legal obligation to perform right to work checks on employees, but there is strong financial incentive to do so. A right to work check operates as a due diligence defence to the imposition of a civil penalty, so long as an employer does not have knowledge of a worker’s illegal work status.28 Employers are responsible for staff who carry out right to work checks on their behalf.29 Performance of a check also means that an employer can demonstrate that they had reasonable cause to believe that a worker had legal work status, thus ensuring that the mens rea requirement for the section 21 criminal offence is not met.

22 See Bernard Ryan, ‘Employer Enforcement of Immigration Law after Section 8 of the Asylum and Immigration Act 1996’ (1997) 26 Industrial Law Journal 136. 23 Home Office, Control of Immigration: Statistics—​United Kingdom 2000 (Cm 5315, November 2001) Table 7.5; Home Office, Control of Immigration: Statistics—​United Kingdom 2004 (Cc 6690, November 2005) Table 6.5, noted by Bernard Ryan, ‘Employer Checks of Immigration Status and Employment Law’ in Cathryn Costello and Mark Freedland (eds), Migrants at Work: Immigration and Vulnerability in Labour Law (OUP 2014) 240. 24 These details are to be found in Current Law Statutes, Immigration Act 2016,  98–​99. 25 Immigration, Asylum and Nationality Act 2006, s 15. The civil penalty was increased from £10,000 to £20,000 in May 2014. 26 Home Office, ‘Immigration Act 2016:  Factsheet:  Illegal Working’ https://​assets.publishing.service.gov.uk/​ government/​uploads/​system/​uploads/​attachment_​data/​f ile/​537205/​Immigration_​Act_​-​_​Part_​1_​-​_​Illegal_​ Working.pdf accessed 6 August 2019. 27 ibid, setting out the government’s Explanatory Notes to the Bill, 2–​3. 28 Immigration, Asylum and Nationality Act 2006, s 15(3). 29 See Home Office, ‘An Employer’s Guide to Right to Work Checks’ (August 2017) accessed 6 August 2019.

236  Criminality at Work The assumption throughout the Home Office’s official guidance papers and the various government statements is that it is fair and appropriate to impose these duties on employers, rather than leaving the various government immigration services to identify and track down illegal workers. The Home Office justifies placing a preventive obligation upon employers on the basis that: Illegal working often results in abuse and exploitative behaviour, the mistreatment of illegal migrant workers, tax evasion and illegal housing conditions. It can also undercut legitimate businesses and have an adverse impact on the employment of people who are lawfully in the UK.30

The same approach is applied by the Immigration Act 2016 to landlords, who are required to check the immigration status of their tenants and prospective tenants. In respect of both employers and landlords it can be argued that (a) they are in business in order to make a profit, and (b) they are well positioned to check on people wanting either work or lodging, so that (c) so long as the process of checking is straightforward and not especially burdensome, it is fair to expect employers and landlords to act as gatekeepers and law-​enforcers in this way. At the same time, there is vigorous denial that these offences amount to delegating to employers or landlords an immigration enforcement function. This is evident in debate of the Bill in the House of Commons, where it was emphasized that it is not an employer’s job to scrutinize the relevant documents in detail, but simply to have taken reasonable steps to have checked that they exist and appear valid (in the employee’s presence), before making copies of them.31 This argument decoupling the functions of an employer, corporation or landlord from immigration enforcement in performance of this duty can be challenged. There is clear financial incentive to go beyond performance of a basic right to work check. Civil penalties can be reduced if there is cooperation with Home Office officials. Deductions of £5,000 are available for each of the following: (i) for reporting suspicions about an employee’s right to work; (ii) for active cooperation with the Home Office when an employer is under investigation; and (iii) for having effective document-​checking practices in place (only if an employer has not employed illegal workers in the last three years).32 Voluntarily opening up business premises and providing access to employment records are a form of ‘active cooperation’, removing the need for immigration enforcement officers to apply for warrants.33 The financial incentive is considerable. For an employer who has not been found to have employed an illegal worker in the last three years, the maximum penalty 30 Home Office, ‘Code of Practice on Preventing Illegal Working: Civil Penalty Scheme for Employers’ (May 2014) 3 accessed 6 August 2019. Almost identical justifications were given for employer sanctions by President Obama when in office, see Katherine Brandon, ‘Working Together for Immigration Reform’ (25 June 2009) accessed 6 August 2019. 31 Immigration Bill Deb 27 October 2015. 32 Home Office, ‘Code of Practice on Preventing Illegal Working’ (n 30) 11–​12. 33 Corporate Watch, ‘Snitches, Stings, and Leaks: How “Immigration Enforcement” Works’ (30 August 2016) accessed 6 August 2019, notes that 50 per cent of workplace raids are not sanctioned by a court-​ordered warrant; David Bolt, ‘An Inspection of How the Home Office Tackles Illegal Working: October 2014–​March 2015’ (HM Government, December 2015) [4.13].

The Preventive Role of the Criminal Law  237 amount is £15,000. However, this could be reduced to £3,500 in total if (i) and (ii) of the mitigating factors stated above are found and if an employer pays the penalty using the Home Office’s ‘fast payment’ option. It could be reduced to a warning notice of all three mitigating factors are present. Employers will be concerned not to have a civil penalty on record, since this could affect future immigration applications, an employer’s ability to sponsor migrants to enter the UK or to hold a gangmaster’s licence.34 This system of financial incentive turns what might appear a modest legal preventive duty into something more onerous and more closely connected to immigration enforcement. The merits of this may be contested from the perspective of both employers and workers. We argue here that the balance falls disproportionately against vulnerable workers. Focusing first on employers, there is some evidence that employers are not fully aware that immigration authorities cannot enter premises without clear legal permission. An immigration enforcement team requires a warrant to search premises where illegal working is alleged unless ‘informed consent’ is given by an employer or an ‘AD letter’ is authorized by a Home Office Assistant Director.35 Between 2009 and 2014, 36,381 ‘illegal working’ visits were undertaken by the Home Office.36 The Independent Chief Inspector of Borders and Immigration reported in 2015 on the Home Office’s response to illegal working. His report noted that in a sample of 184 cases, Immigration Officers claimed in 102 visits that they had obtained ‘informed consent’ to enter, despite ‘managers at all levels [believing] that warrants were used in the majority of cases’.37 According to the report, in nearly all of the premises visited, ‘English was not always the first language of those encountered, and files rarely documented how officers confirmed that consent was “fully informed” as required’.38 In cases where ‘informed consent’ is provided, it is questionable whether this is free and voluntary. A concern to reduce the quantum of civil penalties, noted above, may mean that employers feel pressure to agree, though it is difficult to obtain empirical evidence on this matter.39 A seemingly modest preventive duty of this kind carries substantial implications for workers. First, the preventive duty must also be reconciled against employers’ other obligations towards workers, particularly in relation to discrimination law. The key provisions are to be found in the Equality Act 2010. As noted above, in order to have a statutory excuse, employers are encouraged to perform right to work checks. Employers must ensure that they do not discriminate directly or indirectly in employment practices in relation to ‘protected characteristics’ under the 2010 Act. The Home Office has produced a Code of Practice for Employers which focuses on the need for fair recruitment practices. For example, if an employer asks for right to work documents from one applicant they ought to ensure that the same is asked of all applicants at the same stage in the recruitment process.40 34 Home Office, ‘An Employer’s Guide to Right to Work Checks’ (n 29) 9. 35 On the ‘AD letter’, see Immigration Act 1971, s 28CA. 36 Corporate Watch (n 33) 5. 37 Bolt (n 33) [5.21]. 38 Bolt (n 33) [5.22]. 39 For arguments focusing on employers’ resistance to sanctions in relation to illegal working, see Yara Evans and others, ‘ “Papers Please”: The Impact of the Civil Penalty Regime on the Employment Rights of Migrants in the UK’ MRN Migration Perspectives Paper (Migrants Rights Network 2008)  accessed 6 August 2019; Sonia McKay and Tessa Wright, ‘Tightening Immigration Policies and Labour Market Impacts’ (2008) 14(4) Transfer: European Review of Labour and Research 653. 40 Home Office, ‘Code of Practice For Employers:  Avoiding Unlawful Discrimination While Preventing Illegal Working’ (May 2014) 7 https://​assets.publishing.service.gov.uk/​government/​uploads/​system/​uploads/​

238  Criminality at Work If a candidate is unable to supply acceptable documents, an employer should aim to keep open a job for as long as possible in order for them to do so, if this is possible according to business needs.41 So far, this appears reasonable. But the issue of discrimination is highly pertinent in relation to immigration raids. Recent research reveals that Home Office enforcement raids have focused on . . .  small, minority ethnic businesses, such as restaurants, takeaways and small retail shops.42 . . . Between July and the end of September 2013, 90 workplaces were raided of which 71 are identifiable by name as Indian, Bengali or Chinese restaurants or takeaways.43

The legal position for irregular migrants uncovered on raids is weak. The Supreme Court in Taiwo v Olaigbe44 held that immigration status falls outside of the protected characteristic of nationality. A worker identified by immigration authorities via a workplace raid with suspected immigration status will not be able to make a claim under the Equality Act 2010. This is of concern, coming, as it does, alongside increased powers for immigration officers to suspend business practices for up to forty-​eight hours where a civil penalty has previously been issued or where an employer has been prosecuted for employing illegal workers.45 Upon application to a court, an immigration officer may apply for a compliance order which can be used to extend closure of premises or otherwise require positive steps from the employer to ensure that they do not employ illegal workers.46 This not only impacts employers’ ability to make a living, but also has a disproportionate effect on vulnerable workers who may be living from one paycheck to another. The imposition of this preventive duty has been accompanied by reports of increasing collaboration/​collusion between employers and immigration enforcement.47 For example, employers may provide initial intelligence which will be scrutinized by intelligence officers. The Home Office’s guidance to staff on ‘Illegal Working Operations’ identifies employers as providing the majority of ‘reports about suspected illegal working’.48 Employers may also be involved in gathering together workers for immigration officers. The sting operation set up by Byron Hamburgers in July 2016 in association with immigration officials attracted attention of the wider media via a Twitter account. A routine staff meeting was called in branches. In fact it was used to gather together workers for immigration authorities, which led to thirty-​five arrests in relation to illegal working. Corporate Watch has identified evidence of similar operations at Deliveroo in June 2016 and cleaning companies Amey and attachment_​data/​file/​311665/​Code_​of_​practice_​on_​avoiding_​unlawful_​discrimination_​while_​preventing_​illegal_​working.pdf accessed 6 August 2019. 41 ibid 7. 42 Alice Bloch, Sonia McKay, and Leena Kumarappan, ‘Employer Sanctions: The Impact of Workplace Raids and Fines on Undocumented Migrants and Ethnic Enclave Employers’ (2015) 35(1) Critical Social Policy 132. 43 ibid 134. 44 [2016] UKSC 31, [2016] 1 WLR 2653. 45 Immigration Act 2016, sch 6. 46 Note there are similarities to closure notices under Anti-​Social Behaviour, Crime and Policing Act 2014, pt 4. 47 Corporate Watch (n 33); John Vine, ‘An Inspection of the Intelligence Management System: February–​April 2014 (HM Government 2014). 48 Home Office, ‘Illegal Working Operations’ (HM Government 12 July 2016) accessed 6 August 2019.

The Preventive Role of the Criminal Law  239 ISS in May 2007 and 2009 respectively.49 It is estimated that the Home Office performs 6,000 raids per year.50 The driver for employer cooperation beyond discharge of legal obligations was noted above. Employer involvement in this way creates a barrier to workers complaining and unionizing about unacceptable working standards (which may include exploitation) because they are afraid to speak out.51 Irregular migrant workers who do not have legal work status are highly vulnerable in immigration raids or on ‘rescue’ raids in relation to modern slavery. A report by two prominent anti-​trafficking organizations notes that on the latter there is a significant risk that ‘any undocumented worker who escapes modern slavery will be detained as an immigration offender rather than identified as a potential victim’, thus producing a barrier to reporting exploitation.52 As a means of eliminating exploitation of workers, a preventive measure which in practice draws stronger links between employers and immigration enforcement seems ill-​suited. In the US context, it has been argued that employer sanctions for illegal working makes workers more vulnerable by having the effect of punishing workers.53 The severity of the legal landscape in England and Wales, where wages are treated as proceeds of crime, is intensified through a preventive offence backed up by an incentivized system of civil penalties. Rather than ensuring that employers who exploit illegal workers are deterred and punished, employers’ cooperation with immigration authorities—​which extends beyond a duty to ensure correct paperwork—​is rewarded through the reduction of civil penalties. This prompts a wider conceptual question as to how far the criminal law furthers or impedes the achievement of labour law’s worker-​protective goals? We begin by observing the uneven balance of power in personal work relations between employer and worker. This uneven balance of power is redressed through labour law’s worker-​protective goals. On occasion the criminal law supplements this function through legislation such as the Modern Slavery Act 2015. The preventive duty examined prioritizes the enforcement of immigration rules over the protective capacities of the criminal law. Strong financial incentives have the effect of heightening the preventive obligation. This system of a preventive criminal law measure, accompanied by a civil penalty scheme, contributes to and perpetuates the government’s ambition to create a ‘hostile environment’ for workers holding illegal work status.54 A 2010 review of the coalition government’s strategy to reduce net migration through the civil penalty scheme revealed that ‘the system [of civil penalties] did not create the hostile environment for those who benefit from illegal working that the Government 49 Corporate Watch (n 33) s 3. 50 ibid s 1. 51 ATMG and Human Trafficking Foundation (n 21) 17: ‘This immigration enforcement approach will also make communities whose members have insecure immigration status and who are vulnerable to exploitation and trafficking less likely to trust, work with authorities or disclose slavery for fear of drawing attention from law enforcement.’ 52 ATMG and Human Trafficking Foundation (n 21) 17. GLAA, The Nature and Scale of Labour Exploitation Across All Sectors Within the United Kingdom (May 2018) 17 accessed 6 August 2019. Section 45 of the Modern Slavery Act 2015 provides only a limited statutory defence for victims of slavery or trafficking. 53 David Bacon and Bill Ong Hing, ‘The Rise and Fall of Employer Sanctions’ (2012) University of San Francisco Law Research Paper No 2011-​12, 10. See also, Philip Martin and Mark Miller, ‘Employer Sanctions:  French, German and US Experiences’ (2000) ILO International Migration Paper 36, 7. 54 On the ‘hostile environment’, see FLEX, ‘Hostile Environment Undermines UK Government’s Modern Slavery Agenda’ (1 May 2018) accessed 28 August 2018; Home Office Delivery of Brexit:  Immigration Contents (9 February 2018)  accessed 6 August 2019.

240  Criminality at Work has intended’.55 The Home Office’s ‘Summary Guide for Employers on Preventing Illegal Working in the UK’ informs employers that:  ‘We carry out regular, intelligence-​led operations . . . to target illegal working, with the aim of removing the most harmful people from the UK first.’ The conflation of illegal work status with an individual being ‘harmful’ is troubling. To what extent ought a wider range of individuals—​employers, corporations, universities, landlords—​be opted in to a political agenda which is unapologetic about its commitment to a ‘hostile environment’?56 It can be doubted whether it is fair and appropriate to impose a preventive duty with strong links to hostile immigration enforcement upon employers. We have seen that a regulatory system, backed by substantial financial penalties, is in force. To take the further step and impose criminal liability, not least because it would be to criminalize an omission (failing to make the required checks), calls for further justifications—​especially if a maximum sentence as high as five years’ imprisonment is involved. So far, enforcement of the civil penalty scheme has been limited.57 Between 2008 and March 2018, 20,315 civil penalties were issued.58 But there is a strong argument from the perspective of liberal criminal law theory that any coercive preventive measures ought to include only the most serious wrongs which cannot be dealt with adequately by civil law measures through administrative penalties.

D.  The New Preventive Orders The third of the three preventive roles played by the criminal law in employment relations relates to a new group of preventive orders. Chief among these are the Slavery and Trafficking Prevention Order (STPO) and the Slavery and Trafficking Risk Order (STRO), under Part 2 of the Modern Slavery Act 2015. Another two-​step model, with some similarities to and some differences from the STPO and STRO, is that introduced by sections 14–​30 of the Immigration Act 2016, consisting of Labour Market Enforcement (LME) Undertakings and LME Orders. It is useful to contrast and compare these two sets of preventive measures in appraising the preventive role of the criminal law in the labour market. A key feature of both models is that they are tools given to state enforcement bodies and inspectorates to enforce 55 John Vine, ‘UK Border Agency’s Operations in the North West of England—​ An Inspection of the CPCT—​Illegal Working’ (HM Government March–​April 2010) 10 accessed 6 August 2019. 56 For example, the recent Windrush scandal has revealed that internal targets were placed in the Home Office as to how many individuals should voluntarily depart from the UK, rather than through forcible removal. Individuals affected did not have the correct paperwork to support their status as second-​generation migrants to the UK, and were threatened with deportation, denied benefits and pensions, removed from their jobs, and denied access to the NHS. See Rob Merrick, ‘Theresa May Vows Her “Hostile Environment” on Illegal Immigration Will Continue, Despite the Windrush Scandal’ The Independent (25 April 2018) accessed 6 August 2019. On Universities and students undertaking paid work, see Peter Scott, ‘How Universities were Swept into the Hostile Environment’ The Guardian (1 May 2018) accessed 6 August 2019. 57 Melanie Gower, ‘Employers’ Duties to Prevent Illegal Working’ (Home Affairs Section, SN06706, February 2015) 9ff. 58 Home Office, ‘Undocumented Workers:  Fines:  Written Question—​137049’ (HM Government 26 April 2018) accessed 6 August 2019.

The Preventive Role of the Criminal Law  241 labour standards. Bodies such as the Gangmasters and Labour Abuse Authority (GLAA) and HMRC (NMW/​NLW) have experienced increased government investment in recent years.59 Here we see coercive preventive measures, enforced by specialist state bodies, prioritized over private enforcement by individuals through Employment Tribunals (ETs). State enforcement is a departure from what Michael Ford describes as the model of ‘privatized social justice’ marked by the Redundancy Payments Act 1965. These preventive measures are an exception to the individual enforcement paradigm.60 A strong basis for justifying this new system of state-​administered preventive measures is its commitment to the fundamental right of access to justice. The context is a legal environment which has recently been bold in its rejection of barriers to the common law right of access to the courts for individuals. Tribunal fees were introduced for ET claims on 29 July 2013.61 This led to a substantial fall in ET claims—​it was estimated that 14,000 claims were not issued per year because of fees.62 The Fees Order was reversed by the Supreme Court in the case of UNISON on the basis of public law principles that (i) fees must not effectively prevent access to justice and the systemic effect of the Fees Order was as such, and (ii) that the Fees Order was disproportionate in relation to its objectives.63 Prior to the UNISON judgment, the government was keen to emphasize the availability of alternative means of enforcement. Ford notes that Perhaps embarrassed at how fees had undermined the individual enforcement paradigm yet politically and ideologically committed to them, instead of abolishing fees the Government created more exceptions to the paradigm.64

The LME Undertakings and Orders, for example, were a valuable political tool for the government in seeking to dispel concerns about the effects of tribunal fees on individual enforcement of labour rights. Political and rule of law drivers are evident. But from a criminal law perspective, are these principled measures? So far limited attention has been given to this question. We turn first to the STPO. This order can be made either on conviction for a slavery or trafficking offence, or on application to a magistrates’ court. The police, the National Crime Agency, an immigration officer or a labour abuse prevention officer (LAPO), can apply to the court for an STPO. While the latter is in the nature of a civil order, it may fairly be regarded as an aspect of the preventive role of the criminal law because breach of its conditions is a criminal offence with a maximum sentence of five years’ imprisonment. The

59 With recent recommendations for increased enforcement resources for the Employment Agency Standards (EAS), see Metcalf (n 17) 54. 60 Michael Ford, ‘Employment Tribunal Fees and the Rule of Law: R (Unison) v Lord Chancellor in the Supreme Court’ (2018) 47 ILJ 1, 4. 61 Fees Order 2013, SI 2013/​1893, made under the power in Tribunals, Courts and Enforcement Act 2007, s 42(1). Justifications for the imposition of fees were set out in BIS, ‘Resolving Workplace Disputes: A Consultation’ (HM Government 2011). 62 Ford (n 60) fn 4: ‘Based on comparing the mean cases received in the quarter to June 2013 with the mean number received in the quarters between October 2013 and June 2017’. For data, see Doug Pyper, Feargal McGuiness, and Jennifer Brown, ‘Employment Tribunal Fees’ (House of Commons Briefing Paper No 7081, 18 December 2017). 63 R (UNISON) v Lord Chancellor (Equality and Human Rights Commission Intervening) [2017] UKSC 51, [2017] 3 WLR 409. 64 Ford (n 60) 22.

242  Criminality at Work STPO on conviction can be imposed if the court finds that there is a risk of the defendant committing a further slavery or trafficking offence. The court may tailor the prohibitions in the order to the specific risk posed by the defendant: common requirements would be to notify change of address to the police or a ban on travelling outside the UK. The STPO as a freestanding order can be applied for at a magistrates’ court by a relevant officer. The order can only be made in respect of a person who has already been convicted or cautioned for a slavery or trafficking offence, and where the court is satisfied that a STPO is ‘necessary to protect against the risk of harm from the defendant committing’ such offences. Part 2 of the Modern Slavery Act 2015 also introduces a Slavery and Trafficking Risk Order (STRO), which is a civil order that may only be made on application on a person who has not been convicted of a slavery or trafficking offence, where a magistrates’ court is satisfied that the STRO is ‘necessary to protect against the risk of harm from the defendant committing’ such offences. Once again, it is for the court to specify conditions and prohibitions, based on an assessment of risk by the applicant that the defendant (who has not yet been convicted of a slavery or trafficking offence) is at risk of committing such an offence. The standard of proof is ‘akin to’ the criminal standard of ‘beyond reasonable doubt’.65 The STRO must be for a minimum of two years, and breach of its conditions is a criminal offence with a maximum sentence of five years’ imprisonment. Like the two STPOs, the STRO is said by the government to be ‘a preventive measure to deter unlawful and harmful activity’. The STPO and the STRO are put forward as essentially preventive, and will often be aimed at employers of the victims of modern slavery or human trafficking. The preventive rationale is pursued in a two-​step arrangement. In the first place the court sets out conditions (usually, prohibitions) that are considered necessary to provide protection against the defendant committing a slavery or trafficking offence. In the second place, any breach of those conditions amounts to a criminal offence (unless there is a ‘reasonable excuse’) that can be punished by up to six months’ imprisonment in a magistrates’ court or up to five years’ imprisonment at the Crown Court. This means that the criminal offence will be committed by any deviation from the conditions or prohibitions, even if that deviation creates no actual risk of slavery or trafficking. The terms of the order amount to a kind of personal criminal code for the defendant. For example, someone subject to a STPO may take a flight to Spain for purposes unconnected with slavery or trafficking: that would be an offence of breaching the order, even though the risk against which the STPO is intended to guard is not proved to arise.66 In effect, the STPO imposes a penalty via a prohibition which is a significant incursion of an individual’s liberty.67 So far there has been limited use of both orders despite the fact that it remains difficult to secure a conviction for a slavery or trafficking offence given the hidden nature of 65 See Home Office, ‘Guidance on Slavery and Trafficking Prevention Orders and Slavery and Trafficking Risk Orders under Part  2 of the Modern Slavery Act 2015’ (April 2017) accessed 6 August 2019. A requirement of ‘beyond reasonable doubt’ follows R v Manchester Crown Court ex parte McCann [2002] UKHL 29, [2002] 1 WLR 2033, see Rory Kelly, ‘The Right to a Fair Trial and the Problem of Pre-​inchoate Offences’ (2017) European Human Rights Law Review 596. 66 An example of a STRO is given in HM Government, ‘2017 UK Annual Report on Modern Slavery’ (October 2017) 30. It was used because Devon and Cornwall Police were unable to prosecute a modern slavery offence because victims did not wish to give evidence in court. No information is given about the length of the prohibitions which were imposed. 67 See AP Simester and Andrew von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalization (Hart 2011) 217.

The Preventive Role of the Criminal Law  243 exploitation and its complexity.68 Between July 2015 and March 2017, fifty-​six STPO and STROs were issued in England and Wales.69 Thirty-​seven of these were Prevention Orders and nineteen were Risk Orders.70 A 2017 report noted ‘limited use’ of Slavery and Trafficking Prevention and Risk Orders by police forces, citing in one force ‘clear misunderstanding’ as to the breadth of the Risk Order ‘and a belief that orders could be obtained only following a conviction’.71 Preventive measures in relation to slavery and trafficking can be compared with the system of LME Undertakings and Orders introduced by the Immigration Act 2016. Two points require emphasis. First, where a trafficking or slavery offence is involved there is potential for overlap between the system of preventive slavery and trafficking measures outlined above, and Labour Market Undertakings and Orders. This begs a question about whether both sets of measures are necessary. Second, unlike the Slavery and Trafficking preventive measures which supplement the core exploitation offences found in the Modern Slavery Act 2015, the Labour Market Undertakings and Orders are supported by a wider range of interventions, which include civil law measures. They are supposed to complement the pre-​existing ‘deterrent’ enforcement regime in relation to a wide spectrum of labour market non-​compliance extending beyond serious exploitation. These include: the risk of inspection, financial (civil law) penalties, reputational penalties, prosecutions under the National Minimum Wage (NMW), Employment Agencies and Gangmaster Licensing legislation, Orders and Undertakings, and prohibitions.72 These new Undertakings and Orders are a new enforcement tool to support the enforcement functions of the National Minimum/​Living Wage Enforcement Teams in HMRC (NMW/​NLW), the GLAA, and Employment Agency Standards Inspectorate (EASI), who have been given increased powers and a wider remit since November 2016.73 This has been accompanied by some funding increases despite the backdrop of government austerity measures. The GLAA was allocated an annual budget of £7.775m in 2017–​18—​an increase of £3.474m from 2015–​ 16.74 The HMRC (NMW/​NLW) budget was supplemented by £5.3m 2017–​18 from the year previous, bringing its budget to £25.3m.75 LME Undertakings and LME Orders ‘are intended to tackle serious and persistent non-​ compliance where existing penalties are failing to stop recidivism’.76 For example, employers who seem to regard a fine as an operational cost of business will be required to take action to prevent continued breaches.77 The usual approach will be to start to deal with 68 In the year to March 2017, 2,255 modern slavery offences were recorded: Jack Dent, ‘Modern Slavery Act 2015: Recent Developments’ (House of Commons Briefing Paper No 07656, 25 October 2017) 21; see GLAA (n 52) 29: while the number of referrals of cases of modern slavery and human trafficking rose in 2016–​17, convictions decreased by 6 per cent in this period. 69 HM Government, 2017 UK Annual Report on Modern Slavery (October 2017) 5 accessed 6 August 2019. 70 ibid 31. On 13 October 2016, the government found that sixteen STPOs had been made and three STROs, PQ HL 2057 (13 October 2016). 71 HMICFRS, ‘Stolen Freedom: The Policing Response to Modern Slavery and Human Trafficking’ (October 2017) 78 accessed 6 August 2019. 72 Metcalf (n 17) 51 ff. 73 The Health and Safety Executive is excluded, see Immigration Act 2016, s 3. 74 Margaret Beels, ‘Preventing Labour Exploitation’ (2017) 107 Warwick Papers in Industrial Relations 9. 75 Metcalf (n 17) 23. 76 Metcalf (n 17) 63. 77 Home Office and Department for Business, Energy and Industrial Strategy, ‘Code of Practice on Labour Market Enforcement Undertakings and Orders’ (November 2016) [4]‌, identifies the purpose of these measures as

244  Criminality at Work non-​compliance by warning letters, then to move on to civil penalties. If these measures do not result in compliance, prosecution should be considered, and this is where LME Undertakings may have a role to play, with a custodial sentence available for breach. 78 If an employer has failed to comply with labour market laws, and has failed to respond to lesser warnings and sanctions, it may be appropriate to require an LME Undertaking. HMRC, the GLAA and the EASI are all able to make use of this power. Under section 14 of the 2016 Act an enforcing authority may request a LME Undertaking from a person if that authority ‘believes that person has committed, or is committing, a trigger offence’.79 The Secretary of State can add to these trigger offences by regulation.80 An LME Undertaking may take the form of a ‘prohibition, restriction or requirement’ in order to reduce the risk of the commission of a further trigger offence or its continuance (section 15(1)(5)). The enforcement authorities should take account of matters such as the number of workers affected by the non-​compliance, any harm to them, the amount of any underpayment, and whether the non-​compliance has been deliberate or careless. An LME Undertaking is ‘a voluntary but binding undertaking to comply with any requirements or restrictions as set out by the enforcement body’.81 The Undertaking should be fulfilled within two years. If the LME Undertaking is not accepted, fulfilled in time, or is breached, the enforcement authority may apply for an LME Order.82 The court may make an Order if it satisfied on the balance of probabilities that a person ‘has committed, or is committing, a trigger offence’, and it is just and reasonable to do so (section 18(1)). An LME Order may also be made on conviction for a trigger offence, such as failing to pay the National Minimum Wage or running an unlicensed employment agency.83 According to the Code of Practice, LME Orders should contain requirements or prohibitions designed to reduce the risk of non-​compliance through taking specified steps.84 Interestingly, the government preferred to rely on the LME Undertakings and Orders regime rather than creating a new offence of aggravated labour market breach, on the grounds that it would be burdensome for prosecutors to prove the requisite intent or motivation for the criminal offence and therefore it would be unlikely to be much used.85 However, there are weaknesses in this justification. One is that for sentencing purposes it will be necessary to make a finding on matters of intent and motivation, particularly if imprisonment is in prospect (two years being the maximum). The second difficulty is that there are references in the government papers to the involvement of organized criminal gangs in some cases ensuring ‘there is a level playing field for legitimate competition between law-​abiding businesses, in which workers are guaranteed the national living wage and are protected from exploitation’. ­accessed 6 August 2019. 78 Metcalf (n 17) 64. 79 Immigration Act 2016, s 14(4). Trigger offences include an offence under the Employment Agencies Act 1973 (except s 9(4)(b)), the National Minimum Wage Act 1998, the Gangmasters (Licensing) Act 2004, and include secondary and inchoate offences. 80 Immigration Act 2016, s 14(4)(d). 81 Metcalf (n 17) 64. 82 Immigration Act 2016, s 18. 83 Immigration Act 2016, s 20. 84 Home Office and Department for Business, Energy and Industrial Strategy (n 77) [19]. 85 Home Office, ‘Tackling Exploitation in the Labour Market:  Government Response’ (January 2016) 12 accessed 6 August 2019.

The Preventive Role of the Criminal Law  245 (which needs to be verified), although it should also be mentioned that a significant number of those responding to the government’s consultation emphasized the non-​serious nature of some breaches, and argued in favour of minor responses to minor infractions.86 No LME Undertakings or Orders have been issued by a relevant enforcement body in their first year of operation.87 There is some indication that Orders on conviction (section 20) will be preferred by enforcement bodies.88 This is because the process of issuing an LME Undertaking is more involved. It requires escalation to an Order where a respondent has failed to give an LME Undertaking, has breached it, or its overall deterrence value is undermined.89 It is not clear how, if at all, this function is significantly different from issuing a formal warning letter.90 It has also been highlighted that there are further barriers to the GLAA utilizing LME Undertakings. An Undertaking or Order can only be issued in relation to an offence which relates to an employer’s status as licensed or unlicensed. They cannot be used in relation to an employer’s application to licensing conditions which set out their labour market obligations.91 This sits alongside an open-​ended selection of trigger offences which the Secretary of State can add to by regulation. It is puzzling that Working Time Regulation offences currently fall outside of the recognized list of offences. There appears to be no clear rationale for their exclusion. The Director of Labour Market Enforcement (DLME) has also highlighted limitations of LME Orders having effect for two years’ maximum. The concern is that an Order becomes ‘redundant’ where a sentence in excess of two years is imposed. Once again, we see custodial sentences being introduced in the context of measures that are put forward as preventive, and where the essence of the offence is breach of the conditions or prohibitions in a civil order (and not necessarily the commission of a trigger offence). LME Undertakings and Orders are ‘intended for more serious and persistent offenders where this type of intervention is judged appropriate to prevent further offending’.92 One significant change is the maximum penalty: trigger offences tend to have only fines as sanctions, whereas the maximum for breach of an LME order is two years’ imprisonment. The government states that this is to avoid employers treating fines as ‘business overheads’,93 but this is hardly a justification for depriving someone of their liberty by means of a sentence of imprisonment. Unless it is clear that the offence is so serious that neither a fine nor a community sanction is a sufficient response,94 other means of enforcement ought surely to be adopted. How strong are the justifications for the STPO and the STRO as compared with LME Undertakings and Orders? First, the standard of proof is higher for deciding whether the actions giving rise to an application for an STPO or STRO took place. It requires a court to be satisfied ‘that it is sure 86 Home Office, ‘Tackling Exploitation in the Labour Market: Consultation’ (October 2015) 8 accessed 6 August 2019. 87 Metcalf (n 17) 64. 88 The GLAA was in the process of securing the first order in February 2018, see Metcalf (n 17) 64. 89 Metcalf (n 17) 64. 90 ibid 64. 91 ibid 64. 92 Home Office and Department for Business, Energy and Industrial Strategy (n 77) [6]‌. 93 ibid  [5]‌. 94 This is the statutory threshold that has to be met before a court imposes a custodial sentence: Criminal Justice Act 2003, s 152(2).

246  Criminality at Work that behaviour or actions giving rise to the application took place’.95 This is an enhanced civil standard of proof, which is similar in effect to the criminal standard. A court must then go on to decide whether the STPO or STRO is necessary to protect an individual or individuals from harm. By contrast, a court may make an LME Order if it is satisfied on the balance of probabilities that a person ‘has committed, or is committing, a trigger offence’, and it is just and reasonable to do so (section 18(1)). The evidential standard set by the STPO and STRO is strongly preferable. The STPO and STRO are narrower in scope in that they relate to slavery and trafficking ­offences specifically. LME Undertakings and Orders relate to a wider range of offences which are set out as trigger offences. This is not an argument against the latter set of measures. Secondly, we could argue that there is a weaker case for imposing LME Undertakings and Orders given that there is already a strong deterrent regime in place in relation to the trigger offences covered by these preventive measures. Are there clear reasons for enacting LME Undertakings and Orders alongside a wide range of other deterrence measures, such as the risk of inspection and civil law penalties? This point is pertinent given the DLME’s proposal in May 2018 to significantly increase civil penalties for non-​compliance.96 ‘Turnover taxes’ have been proposed, with the value of a fine directly linked to a company’s turnover.97 Significant revenue streams could then be used to fund the enforcement system.98 Is there still a place for these criminal law measures too, beyond the various criminal offences supporting labour market standards? Why has there been little consideration or evaluation of the relationship between civil and criminal measures? It is not proven that state enforcement via coercive preventive measures offers more effective deterrence than civil law measures carrying substantial financial penalties. A third issue is whether an individual could otherwise enforce their rights. 99 It is useful to set out the current complex framework for labour market enforcement. Unfair pay deductions, rest break entitlements, non-​payment of wages, unfair dismissal, and discrimination claims, among others, can only be pursued by an individual through employment tribunals. Modern slavery, trafficking, non-​payment of the NMW/​NLW, operating without a licence, maximum limits on weekly hours, among others, are regulated by a number of state enforcement bodies (HMRC, EASI, GLAA, HSE, the police), which often overlap in their remit. State agencies such as the GLAA have been endowed with greater powers, resources, and remit ‘as a response to an immediate problem’, such as exploitation and trafficking, rather than developed with regard to the powers of other enforcement agencies and to the system of labour enforcement as a whole.100 This system of individual action via ETs 95 Home Office, ‘Guidance on Slavery and Trafficking Prevention Orders and Slavery and Trafficking Risk Orders Under Part 2 of the Modern Slavery Act 2015’ (April 2017) [3.3.2] accessed 6 August 2019. 96 Metcalf (n 17) 55. 97 ibid 55. 98 ibid 55. 99 Ford (n 60) 23, notes ‘[a]‌bsent from the Government’s celebration in Tackling Exploitation of the UK’s “strong statutory framework” of employment rights was any recognition of the problems for delivery of labour standards caused by the decline in claims resulting from fees.’ 100 See Linda Dickens, ‘Another “A” for the GLA in Enforcing Labour Rights and Preventing Exploitation’ in Linda Dickens and Guglielmo Meardi (eds), Warwick Papers in Industrial Relations (September 2017) 5 accessed 6 August 2019. Proposals for a single public enforcement organizations were rejected as inappropriate by the DLME in his UK Labour Market Enforcement Strategy 2018/​19, see Metcalf (n 17) 20.

The Preventive Role of the Criminal Law  247 or by state enforcement bodies is supplemented by the Acas Helpline, which seeks to provide advice, mediation, and referral to enforcement bodies or to an ET. This complicated patchwork creates difficulties for individuals in enforcing their rights and entitlements, and for enforcement bodies in ‘coordinating their activities and intelligence to deliver effective and efficient enforcement’.101 It is also of concern that there are gaps in enforcement.102 Victims of domestic servitude and forced labour can pursue a claim in an ET for abuses related to their employment. These might include discrimination claims and claims regarding withheld wages.103 But barriers to enforcing labour rights are high for slavery and trafficking victims. The Deduction from Wages (Limitation) Regulations 2014 limit the back-​payment of wages to a period of two years before a claim to an ET.104 The rest will remain unpaid. We have highlighted above the procedural limitations posed by tribunal fees prior to the Supreme Court’s decision in UNISON. The Queen’s Bench Division of the High Court held in April 2018 that victims of modern slavery and trafficking can access legal aid for immigration advice on their right to remain in the UK.105 The legal position prior to this was that an applicant such as LL, who had been brought to the UK and sexually exploited as a child, would be unable to access free immigration advice while the government considered whether she was a victim of trafficking. Arguably the STPO and STRO are preventive measures introduced in response to a legal environment which has created barriers for individual enforcement of employment rights, through complexity, through ET fees, and through lack of legal aid. While a number of these barriers have now been removed certain difficulties remain. First, it is difficult to secure conviction of modern slavery offences given the complexity of exploitation.106 Second, there is the concern that victims of trafficking and slavery, especially individuals holding illegal work status, will not pursue individual enforcement through ETs.107 This does not provide justification for slavery and trafficking preventive measures. But it does provide some strength to a narrowly defined and proportionate preventive measure where the regulatory backdrop is not otherwise regulated by civil law measures.

E.  Conclusions A number of themes emerge from our discussion in this chapter. First, on the corporate omission offences, there is an important question about criminalization of an organization rather than an individual employer, which is in line with labour lawyers’ concern to move beyond a ‘master and servant’ relation in personal work relations. We have queried to what extent current measures to ring-​fence the security of financial interests ought to be supported 101 Metcalf (n 17) 20. 102 ibid 20. 103 ATMG and Human Trafficking Foundation (n 21) 6. 104 ibid 6. 105 LL v The Lord Chancellor CO/​3581/​2017 (16 April 2018)  accessed 6 August 2019. Considering the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). 106 See GLAA (n 52) 29. 107 Dickens (n 100) 6: ‘Pro-​active state funded agencies and inspectorates offer advantages in rights enforcement over the individualized private law model which leaves individuals to enforce their rights—​requiring an individual to be in a position to complain, to have knowledge of rights and capacity and willingness to enforce them and which offers redress to only the individual complainant rather than effect wider improvement.’

248  Criminality at Work by coercive preventive measures. Second, whether it is justifiable to ‘responsibilize’ employers by imposing preventive duties on them remains controversial, with principled and pragmatic considerations for and against. Moreover, a regulatory duty is not so difficult to justify as one backed by the criminal sanction. Third, and consequentially, there is concern about the severity of the preventive offence of knowingly employing an illegal worker, both in how the offence is drafted and in its effects when combined with the system of civil penalties. Both the civil and criminal law penalties operate within a ‘hostile environment’ which seems to prioritize the enforcement of immigration offences over worker-​protective measures. Fourth, on slavery and trafficking preventive orders, we see a welcome concern to ensure state-​administered measures to protect vulnerable workers where previously there have been barriers to accessing justice (such as through ET fees). However, the LME Undertaking and Orders scheme in particular seems heavy handed when set alongside the current civil penalties scheme, with proposals now on the table for the civil scheme to carry significantly increased penalties.

13

Licensing of Employing Entities and Criminalization ACL Davies

A.  Introduction In this chapter, I consider the use of licensing as a regulatory technique in employment law.1 In simple terms, licensing regimes involve a requirement to obtain permission from a regulatory agency before engaging in a particular activity. Licensing is usually enforced via the criminal law, by making it an offence to engage in the regulated activity without holding a valid licence. The main use of licensing in employment law is for agencies (sometimes known as ‘gangmasters’) supplying workers in the agricultural and food processing industries, which are regulated by the Gangmasters and Labour Abuse Authority (GLAA).2 It is an offence to supply workers in the regulated industries without holding a licence, and it is also an offence to obtain workers from an unlicensed agency.3 Licensing is controversial as a regulatory technique, and not just because of its reliance on criminal sanctions. It is regarded by its critics as unduly bureaucratic and insufficiently effective at securing compliance with the required standards. The licensing scheme operated by the GLAA has been under a great deal of scrutiny and some threat of ­abolition,4 though at the time of writing, the Director of Labour Market Enforcement has proposed a pilot scheme extending it to other sectors, with a view to gathering data about its effectiveness.5 I begin the chapter by giving an overview of licensing in general, and its relationship with the criminal law. I then explore uses of licensing in employment law settings, before revisiting the discussion about licensing and the criminal law in the employment context. I conclude that, on balance, there are good justifications both for the use of the criminal law to enforce licensing regimes and, if certain conditions are met, for the use of licensing regimes in employment law. 1 This chapter considers developments up to 10 April 2019. I am grateful to the editors and workshop participants for comments on an earlier draft. Responsibility for errors and omissions remains my own. 2 See, generally, Gangmasters (Licensing) Act 2004 (as amended) and accessed 10 April 2019. 3 Gangmasters (Licensing) Act 2004, ss 12 and 13. 4 See, eg, Adrian Beecroft, Report on Employment Law (October 2011) 15 accessed 5 August 2019. 5 The proposal is for regional pilots of licensing for nail bars and hand car washes:  David Metcalf, United Kingdom Labour Market Enforcement Strategy 2018/​19 (HM Government May 2018) 9 accessed 5 August 2019. ACL Davies, Licensing of Employing Entities and Criminalization In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.0013

250  Criminality at Work

B.  Licensing Ogus identifies four main characteristics of licensing regimes: the licence must be obtained before the regulated activity can be undertaken; the regulator must make a judgement about the competence of all applicants for a licence; the licence sets minimum standards which are the same for all licence-​holders; and those who do not comply (either with the requirement to obtain a licence or with the licence conditions themselves) face being barred from operating in the relevant sector.6 These elements contrast with a classic ‘command and control’ regulatory regime in which the regulator sets and publishes standards for those wishing to engage in the regulated activity, with sanctions for non-​compliance. In this kind of regime, operators in the relevant sector may have no contact with the regulator unless an infringement comes to light, and even then, they may be given an opportunity to put things right, or a lesser sanction such as a fine, with the possibility of being banned from engaging in the activity being reserved for the most serious (and often deliberate) breaches.7 Ogus notes that licensing regimes are costly to operate, because of the need for the regulator to engage with and assess everyone seeking to work in the relevant sector, and argues that strong reasons are required to justify the use of a licensing regime.8 He identifies two such reasons: cases in which the potential harm from non-​compliance is so great that it is worth making every effort to prevent it, such as an accident in the nuclear industry, and cases in which it is too difficult to set out workable standards to enforce via command and control or other less intrusive regulatory techniques because of the complexity of the regulated activity.9 For example, a licensing system for doctors might be justified both because of the potential for an unqualified practitioner to cause death or serious injury, and because of the wide variety of standards doctors have to meet.10 Ogus also points out that licensing may be an appropriate policy choice where consumers of the services in question would not be well-​placed to form their own judgements about the qualifications of practitioners, something which is again relevant to the regulation of doctors, lawyers, and other similar occupations.11 The problem for licensing regimes, in my view, is their role in granting what Ogus refers to as ‘prior approval’.12 By checking the suitability of firms or individuals before they start engaging in the regulated activity, licensing regimes might seem as if they are intended to prevent harm from occurring, with the result that every time a licensed operator infringes the applicable standards, there is a nagging sense in which the licensing system might have failed. In some cases, this has led to changes to licensing regimes to ensure that licences must be renewed on a regular basis, giving the regulator an additional opportunity to scrutinize those it regulates. In the UK, for example, the General Medical Council (GMC), which regulates doctors, was forced to introduce a ‘revalidation’ system after a series of scandals 6 Anthony Ogus, Regulation: Legal Form and Economic Theory (Hart 2004) 214–​15. 7 See, generally, Ian Ayres and Robert Braithwaite, Responsive Regulation:  Transcending the Deregulation Debate (OUP 1992). 8 Ogus (n 6) 215. 9 ibid 215. 10 It should be noted that licensing regimes may sometimes be used to limit the number of operators in a particular sector, which gives rise to criticism about restricting competition. This is not an objective (or an effect) of the GLAA regime. 11 Ogus (n 6) 216–​20. 12 This is the title given to his discussion of licensing: Ogus (n 6) ch 10.

Licensing of Employing Entities  251 involving harm caused negligently or even deliberately by doctors who had been licensed at the start of their careers but had not had any subsequent contact with the regulator.13 More generally, though, it is important to note that any inspection of someone’s qualifications and basic competences, however careful and however often repeated, cannot guarantee that that individual will never infringe standards whilst engaged in the regulated activity. For example, the fact that a person has passed his or her driving test does not mean that he or she will never lose concentration or get angry or take an unnecessary risk while driving. But it has some value in ensuring that people meet minimum standards of competence before they get onto the roads on their own. It is not realistic to suppose that any regulatory regime—​even licensing—​can prevent harm from occurring, though licensing may be better than some other techniques at reducing the risk of harm occurring. The roads would clearly be less safe if the driving test were abolished, for example.

C.  Licensing and the Criminal Law It was noted above that the criminal law is routinely used to enforce licensing regimes. It is usually a criminal offence to carry on the relevant activity without having first obtained a valid licence from the regulator. This is intended to serve two purposes: to deter non-​ engagement with the regulatory regime by people wishing to engage in the regulated activity, and to deter non-​compliance with regulatory standards by licence-​holders because of the threat of losing the licence and thus being unable legally to continue with the activity. There may also be supplementary offences such as providing false information or obstructing the regulator. A key question is whether it is appropriate to use the criminal law in these ways. Creating a new criminal offence is the most serious step Parliament can take, so it is generally accepted that this should only be done where there is a strong justification for criminalization as opposed to some other strategy, such as making the conduct a civil wrong or using taxation or education to discourage it.14 In recent years, a number of eminent theorists have expressed concern about a tendency on the part of legislators to ‘over-​criminalize’: to create new offences in order to be seen to be tackling a problem, without paying due regard to the question of justification.15 A useful basic starting-​point for justifying the creation of a new criminal offence is Feinberg’s positive reformulation of Mill’s well-​known ‘harm principle’:16 It is always a good reason in support of penal legislation that it would be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one

13 See, generally, accessed 10 April 2019. 14 See, generally, AP Simester and others, Simester and Sullivan’s Criminal Law: Theory and Doctrine (6th edn, Hart 2016) ch 16. 15 Some of the leading contributions to a large literature are Andrew Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000) 116 Law Quarterly Review 225; RA Duff, Answering for Crime (Hart 2007); Douglas Husak, Over-​ Criminalization (OUP 2008); AP Simester and Andrew von Hirsch, Crimes, Harms and Wrongs: On the Principles of Criminalization (Hart 2011). 16 John M Robson (ed), The Collected Works of JS Mill, Vol XVIII—​Essays on Politics and Society Part I (On Liberty) (Routledge 1977) 223.

252  Criminality at Work prohibited from acting) and there is no other means that is equally effective at no greater cost to other values.17

As the quotation makes clear, the focus is on the prevention or reduction of harm, which may be done by criminalizing not only acts that cause harm but also acts that create an (unjustified) risk of harm. This explains why it is justified to criminalize, for example, attempted murder as well as murder itself. The harm principle taken alone would be both under-​and over-​inclusive, so it is necessary to add two qualifications. First, the harm in question must also be wrongful: many acts cause harm but it would not be justified to criminalize them.18 For example, it is harmful to deprive a competitor of trade by undercutting its prices, but this behaviour would not normally be regarded as wrongful in the context of a market economy. Second, as the quotation makes clear, even when a wrongful harm has been identified, it is still necessary to weigh up the advantages and disadvantages of criminalization.19 These might include the seriousness of the harm and the likelihood of it occurring, set against any value attaching to the harm-​ causing conduct. For example, where a particular type of speech causes wrongful harm, it is necessary to consider whether the fundamental right to freedom of expression, especially in political contexts, tips the balance against criminalization. These basic principles present obvious, but not insurmountable, challenges in relation to regulatory offences such as those used to support licensing regimes.20 A first problem is that practising without a licence may not necessarily cause harm or even any risk of harm. For example, a doctor who is qualified in another jurisdiction and has not obtained the right to practise medicine in the UK is engaged in an unlicensed activity, but may be perfectly capable of safe and effective practice. However, we can treat the harm principle as satisfied if we step back and consider at a more general level the harm likely to occur in the absence of a system in which doctors’ qualifications have to be checked, which would obviously include death, serious injury, and outbreaks of contagious disease. From this perspective, the harm principle may be satisfied in relation to licensing offences if the licensing system itself reduces the risk of harm.21 The second requirement is that the harm must be wrongful. Again, engaging in a licensed activity without a licence might not be regarded as especially morally wrong. But this can be addressed on two levels. One involves examining the moral dimension of the licensing system itself, using a similar approach to that taken to the harm principle, above. If the licensing system is designed to reduce the risk of harmful wrongdoing which is deserving of moral censure, for example, because it would involve causing physical injury or exploiting vulnerable people, we might be prepared to extend that censure to people who disregard the licensing regime. The other is to examine the morality of disregarding the licensing regime itself. As Duff puts it, even if the unlicensed practitioner is perfectly safe, ‘they display a culpable arrogance in refusing to subject themselves to regulations which are properly designed to protect public safety’.22 17 Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Others (OUP 1984) 26. 18 Simester and Sullivan (n 14) 665. 19 ibid 665. 20 See, generally, Jeremy Horder, ‘Bureaucratic “Criminal” Law: Too Much of a Bad Thing?’ in RA Duff and others (eds), Criminalization: The Political Morality of the Criminal Law (OUP 2014). 21 Simester and Sullivan (n 14) 677. 22 RA Duff, ‘Crime, Prohibition and Punishment’ (2002) 19 Journal of Applied Philosophy 97, 105.

Licensing of Employing Entities  253 The third requirement is to ensure that the advantages of criminalizing the harmful and wrongful conduct outweigh the disadvantages. In many cases, this will involve considering whether a lesser measure than creating a new criminal offence would be equally effective in practice. As the Law Commission explains: ‘[i]‌n a regulatory context, it is not enough to justify making engagement in conduct criminal, that the conduct must be deterred or punished in some way.’23 In relation to licensing, a key question that often arises is whether it would it be possible to achieve the same effect using some form of civil enforcement. To a large extent, this is an empirical question about how individuals and firms might react to different types of penalty. On the one hand, it might be thought that civil penalties would be less effective because they lack the element of condemnation and stigma associated with the criminal law and might simply be seen as a ‘tax’ on doing business. Regulators may need to have a criminal offence at the top of what Ayres and Braithwaite term the ‘enforcement pyramid’ as their ultimate threat.24 On the other hand, simply criminalizing certain conduct may not be sufficient to stigmatize it, particularly if a majority of people do not regard the conduct as morally wrong. Under these circumstances, a substantial civil penalty might be equally effective. Indeed, if regulated individuals and firms perceive that the regulator is more likely to invoke the civil penalty (eg because there are fewer procedural hurdles and a lower burden of proof), this may increase its deterrent effect.25 However, an important caveat is in order. The more stringent the penalty, the more important it is that the person accused of wrongdoing has proper safeguards in place to protect his or her interests. This is reinforced by Article 6 of the European Convention on Human Rights, which provides a set of protections for those accused of criminal offences that goes beyond the requirements of a fair trial in a civil case. The European Court of Human Rights (ECtHR) is alert to the possibility that states may ‘misclassify’ wrongdoing as administrative or civil in order to avoid having to observe those safeguards, and it does not take their classifications at face value.26 Instead, it considers the nature of the wrongdoing and the associated penalty and determines the matter for itself. This means that it may not be possible to put in place a very severe penalty and to classify it as administrative. Thus, if we consider that non-​compliance with a licensing regime warrants a heavy fine, it may be necessary to enforce this via the criminal law on Article 6 grounds. This will certainly be the case where there is a possibility of imprisonment. Finally, it is worth noting one common criticism of the use of the criminal law in regulatory contexts: that Parliament enacts offences but regulators rarely use them, so that any deterrent effect they may generate is much reduced in practice.27 The deterrent effect of the criminal law in any particular instance is, of course, an empirical question, but it is self-​ evident that—​if individuals think about the criminal law at all—​they consider the likelihood of getting caught and the likelihood of being prosecuted as well as the seriousness 23 Law Commission, Criminal Liability in Regulatory Contexts:  A Consultation Paper (No 195, August 2010) [4.7]. 24 Ayres and Braithwaite (n 7). 25 Compare the finely balanced argument around this issue which is presented by Michael Ford in the Introduction to his Chapter 21 in the present volume with respect to the criminalization of health and safety at work. 26 See, generally, David J Harris and others, Harris, O’Boyle and Warbrick’s Law of the European Convention on Human Rights (4th edn, OUP 2018) ch 9. 27 Law Commission (n 23) [1.25]–​[1.27].

254  Criminality at Work of the offence and the sanction. However, this concern can be addressed both in relation to regulation generally and in relation to licensing regimes in particular. Most regulators employ a staged approach (an enforcement pyramid28) in which lesser sanctions are used for minor or accidental infringements,29 reserving prosecution for egregious cases of deliberate non-​compliance.30 From this perspective, occasional uses of the power to prosecute are both rational and sufficient. In any event, licensing regimes are less prone to the ‘insufficient prosecution’ criticism than other kinds of regulation, because it is likely that for many people, the decision to refuse or withdraw a licence will be a sufficiently serious sanction in itself.31 Prosecution is inherently confined to cases in which an individual has chosen to engage in or continue with the regulated activity despite not being licensed to do so. Of course, prosecution needs to be a sufficiently realistic possibility to deter people from operating without a licence, but a low number of prosecutions is not necessarily a sign of an inactive regulator, as it might be in a classic ‘command and control’ system.

D.  Licensing in Employment Settings Perhaps the most common form of licensing that is of relevance in employment settings is the requirement for many people employed in professional occupations to hold a valid licence in order to do their job.32 This is acknowledged in unfair dismissal law, for example. Under section 98(2)(d) Employment Rights Act 1996, a ‘potentially fair’ reason for dismissal ‘is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment’. Thus, if an individual is employed in a role that requires him or her to be a qualified solicitor with a current practising certificate, but he or she is ‘struck off ’, the employer is likely to be entitled lawfully to dismiss him or her, provided that a fair procedure is followed. However, the focus of the present chapter will be on licensing obligations for individuals or firms as employers or suppliers of labour, of which the main example is the licensing regime for suppliers of labour in the agriculture and food processing industries, operated by the GLAA. I will also explain the old regime for employment agencies in all sectors put in place by the Employment Agencies Act 1973, and repealed in 1995. An important caveat before I turn to these examples is that my focus on licensing for the purposes of this chapter cuts across a different conceptualization of enforcement in this area pursued by the government. The Immigration Act 2016 created a new office of Director of Labour Market Enforcement (DLME), with the task of overseeing the GLAA, the Employment Agency Standards Inspectorate (EAS), which survived the abolition of 28 Ayres and Braithwaite (n 7). 29 The Regulatory Enforcement and Standards Act 2008 sought to facilitate greater use of ‘intermediate’ civil sanctions. It was based on recommendations made by Richard B Macrory, Regulatory Justice: Making Sanctions Effective (Final Report, November 2006) accessed 5 August 2019. 30 For an empirical case study of this phenomenon, see Keith Hawkins, Law as Last Resort: Prosecution Decision-​ Making in a Regulatory Agency (OUP 2002). 31 Procedural protections for disappointed applicants and licence-​holders are generally a matter of administrative law, enforced by means of judicial review. The classic case is McInnes v Onslow Fane [1978] 1 WLR 1520. In the case of the GLAA, there is a right of appeal to a tribunal: Gangmasters (Appeals) Regulations 2006 (SI 2006/​662). 32 For lawyers, the principal statute is the Legal Services Act 2007, and for doctors, it is the Medical Act 1983.

Licensing of Employing Entities  255 licensing for agencies and continues to enforce the remaining aspects of the regulatory regime, and the National Minimum Wage (NMW) compliance team within Her Majesty’s Revenue and Customs (HMRC), which enforces the NMW. The government sees these three bodies as having a shared responsibility for ‘public enforcement’ of labour law for vulnerable workers and the current role of the DLME is, in large part, to encourage them to work together.33 The Taylor Review34 recommended an increase in the scope of HMRC’s enforcement powers to include sick pay and holiday pay and a possible extension of EAS’s powers to include the Agency Workers Regulations 2010.35 In its response in 2018, the government appeared broadly to accept these proposals.36 Then, in a surprise move in March 2019, as part of an attempt to win the support of Labour MPs for Theresa May’s Brexit deal, it was announced that the three agencies would be merged into a single body with enhanced powers.37 At the time of writing, no further detail about this proposal has yet emerged. Even if a merger goes ahead, it is worth noting there are significant differences between the roles and powers of the three bodies and, in some respects, grouping them together highlights the extent to which ‘public enforcement’ of labour law in the UK does not form a comprehensive or coherent whole, given the historical accidents of its development.

1.  Gangmasters and Labour Abuse Authority In 2006, after the tragic deaths of a number of Chinese migrant workers who were collecting shellfish in Morecambe Bay, the Gangmasters Licensing Authority (GLA) was set up to regulate the agriculture, shellfish, and food processing industries by means of a licensing regime for agencies who supply labour in those sectors.38 The legislation originated in a Private Members’ Bill and was shaped by the very considerable public outrage over the exploitation of the workers who lost their lives in the tragedy.39 In 2016, the GLA was given enhanced investigative and enforcement powers which it can use across the labour market as a whole,40 not just in the regulated sectors, and as a consequence it was renamed the Gangmasters and Labour Abuse Authority (GLAA).41 However, somewhat confusingly, the 33 Immigration Act 2016, s 2. 34 Matthew Taylor, Good Work: the Taylor Review of Modern Working Practices (July 2017) accessed 5 August 2019. 35 SI 2010/​93. 36 See, generally, HM Government, Good Work: A Response to the Taylor Review of Modern Working Practices (February 2018) accessed 5 August 2019, and on the specific issue of enforcement, Department for Business, Energy and Industrial Strategy and Ministry of Justice, Good Work: the Taylor Review of Modern Working Practices: Consultation on Enforcement of Employment Rights Recommendations (February 2018) accessed 5 August 2019. 37 UK Government press release, ‘Workers’ Rights to Be Protected in UK Law’ (6 March 2019) accessed 10 April 2019. 38 See (n 2). 39 Introduced by Jim Sheridan MP. 40 Immigration Act 2016, ss 11–​13. Labour Abuse Prevention Officers can investigate offences relating to gangmasters, agency work, minimum wage and modern slavery, and have at their disposal a new system of civil orders (Immigration Act 2016, ss 14–​30) as well as prosecutions. 41 Immigration Act 2016, s 10. According to the explanatory notes on the Lords amendments, the continued reference to ‘gangmasters’ in the name is intended to retain the organization’s ‘international reputation’. The term

256  Criminality at Work licensing regime was not extended at the same time, and there is an ongoing discussion, as noted above, led by the new DLME, about whether it should apply in any additional sectors.42 The Gangmasters (Licensing) Act 2004 defines its scope of application in section 3(1) as ‘agricultural work’, ‘gathering shellfish’, and ‘processing or packaging’ any agricultural produce, shellfish, or fish. Under section 4(2), the concept of a gangmaster is given a simple definition: ‘A person (“A”) acts as a gangmaster if he supplies a worker to do work to which this Act applies for another person (“B”).’ Section 4(3) makes clear that this definition applies broadly and is not affected by factors such as the precise nature of the contractual relationships between the various parties or the presence of intermediaries. The requirement to hold a licence is set out in section 6. It is an offence under section 12(1) to act as a gangmaster without holding a licence. This is a strict liability offence. It is also an offence under section 12(2) to possess a document knowing or believing it to be ‘false’ or ‘improperly obtained’, or belonging to someone else, ‘with the intention of inducing another person to believe’ that the individual in question is a licensed gangmaster. On summary conviction for a section 12 offence, the individual may be imprisoned for up to six months or fined up to the statutory maximum, or both. On indictment, the maximum sentence of imprisonment is ten years. The GLAA now has access to the system of hybrid civil/​criminal Labour Market Enforcement Undertakings (LMEUs) and Labour Market Enforcement Orders (LMEOs) under the Immigration Act 2016, but it is too early to judge the effect of this change.43 Interestingly, the licensing regime is further reinforced in the case of gangmasters by virtue of section 13, which makes it an offence to enter into an arrangement to obtain workers from an unlicensed gangmaster. It is a defence for the end user to show that it took reasonable steps to satisfy itself that the gangmaster had a valid licence. The intention is to encourage end users to check gangmasters’ licences as a way of making it difficult for unlicensed gangmasters to remain in business. This offence carries a maximum sentence of six months’ imprisonment or a fine not exceeding the statutory maximum, or both. The Gangmasters (Licensing Conditions) Rules 2009 set out the conditions that must be fulfilled for a gangmaster to obtain and retain a licence,44 but it is important to read these in conjunction with the GLAA’s own guidance.45 There is substantial overlap between the Rules and the equivalent provisions governing employment agencies more generally.46 For example, there are restrictions on charging fees to workers, on supplying workers during industrial disputes, and withholding payment to workers.47 However, the Rules also contain some provisions that are intended to tackle problems specific to the sector, such as those governing accommodation and travel, or the proper supervision of shellfish gatherers.48 The GLAA’s own guidance replicates these rules in more user-​friendly language, but also has, however, always been somewhat problematic because it conjures up a much narrower image than the GLAA’s licensing remit in fact covers. I use the abbreviation GLAA throughout for convenience. 42 Metcalf Report (n 5). 43 Immigration Act 2016, ss 14–​30. For an overview, see ACL Davies, ‘Immigration Act 2016’ (2016) 45 Industrial Law Journal 431. 44 SI 2009/​307. 45 GLAA, Licensing Standards (October 2018). 46 Employment Agencies Act 1973; Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/​3319). 47 Gangmaster Rules 2009 (n 44) sch 1: paras 7, 10, and 13. 48 Gangmaster Rules 2009 (n 44) paras 21 and 26.

Licensing of Employing Entities  257 makes clear that gangmasters are expected to comply with the general law as a condition of holding a licence. Thus, for example, the Rules do not replicate the law on health and safety, but health and safety compliance is one of the eight licensing standards enforced by the GLAA.49 The GLAA deals with the number and complexity of the licensing standards by operating a scoring system.50 Standards regarded as ‘critical’ attract a score of thirty points if they are not met, and most others a score of eight points. A score of thirty points or more will usually lead to refusal of, or immediate revocation of, a licence. This means that it is not generally possible to hold a licence whilst being in breach of a critical standard. A score between zero and thirty will usually lead to the grant of a licence but with Additional Licensing Conditions (ALCs) requiring the licence-​holder to tackle areas of non-​compliance with non-​critical standards, or a non-​immediate revocation. A GLAA licence must be renewed once a year, giving the GLAA regular opportunities to review licence-​holders’ ongoing compliance.51 According to the latest available GLAA annual report, for 2016–​17, the GLAA estimates that there are some 464,000 workers in the sectors subject to licensing.52 During that year, it managed around 1000 licences, refused to grant a licence in sixteen cases, revoked eighteen licences covering 4543 workers, and recovered £93,165 owed to some 1225 workers. Most published evaluations of the GLAA are broadly positive, but it is difficult to state with any precision how effective it is.53 While it is possible to evaluate various aspects of the GLAA’s performance in relation to licensed individuals and firms (such as its speed and effectiveness in investigating complaints), it is much harder to tell how much unlicensed activity is taking place. Since unlicensed labour providers are committing a criminal offence, they operate ‘under the radar’ and are inherently difficult to detect or quantify. It will be interesting to see how the proposed pilot scheme to extend the scope of licensing to new sectors will be evaluated.

2.  Employment Agencies and Businesses The Employment Agencies Act 1973 created a nationwide licensing scheme for employment agencies and businesses,54 which was abolished in 1995.55 This scheme is of interest for two reasons. First, it gives us another example of licensing in the employment context

49 GLAA, Licensing Standards (n 45) Licensing Standard 6, 22–​26. 50 ibid  3–​5. 51 ibid  5–​6. 52 Gangmasters Licensing Authority, Annual Report and Accounts 1 April 2016 to 31 March 2017 (HC 1402, July 2018) accessed 5 August 2019. 53 See, eg, Andrew Geddes and others, Gangmasters Licensing Authority:  Evaluation Study:  Baseline Report (Gangmasters Licensing Authority/​DEFRA 2007); Mick Wilkinson and others, An Evaluation of the Gangmasters Licensing Authority (Oxfam 2009) accessed 5 August 2019. For the most recent government evaluation, see Department for Environment Food & Rural Affairs, Report of the Triennial Review of the Gangmasters Licensing Authority (April 2014) accessed 5 August 2019. 54 For definitions, see Employment Agencies Act 1973, s 13. 55 Deregulation and Contracting Out Act 1994, s 35.

258  Criminality at Work to consider, even if it is now only of historical interest. And second, despite the repeal of the licensing provisions of the Act, some related elements of that regime, including criminal offences, remain in force. This also offers some interesting points of comparison which will be examined later in the chapter. Before 1973, some local authorities regulated agencies through local legislation, and there was sectoral legislation for some occupations, for example, nursing.56 The Employment Agencies Act 1973 was the first attempt to lay down a national regulatory regime for agencies. The scheme of the Act was relatively simple. Under section 1, anyone wishing to run an employment agency or business was obliged to hold a current licence, and it was a criminal offence attracting a fine to run an employment agency or business without a licence. The grounds for refusing to grant or revoking a licence were set out in section 2(3), as follows: (a) that the applicant is an individual under the age of twenty-​one years; (b) that the applicant is a person who on account of misconduct or for any other sufficient reason is unsuitable to hold a licence in respect of an agency or business of the class in question; (c) that any person (other than the applicant) who is or is to be concerned with the carrying on of the employment agency or employment business is a person who on account of misconduct or for any other sufficient reason is unsuitable to be associated with an agency or business of the class in question; (d) that the premises at which the employment agency or employment business is or is to be carried on are unsuitable in respect of an agency or business of the class in question; (e) that the employment agency or employment business has been or is being improperly conducted.

The licensing scheme was initially run by the Department of Employment and provision was made for appeal to a person nominated by the Secretary of State.57 An identifiable agency within the Department, the Employment Agency Licensing Office, appears to have been established in the early 1980s.58 This changed its name to the Employment Agency Standards Inspectorate (EAS) when the licensing regime was abolished in 1995. More detailed standards for agencies were set out in the Conduct of Employment Agencies and Employment Businesses Regulations 1976.59 These were quite strongly procedural in character, focusing on matters such as the information to be provided to end users by agencies about their terms and conditions and records to be kept by agencies.60 Special provision was made in respect of young workers, the recruitment of workers from outside the UK for jobs in the UK, and the recruitment of UK workers for jobs abroad.61 Perhaps most importantly from the perspective of workers themselves, the Regulations required agencies to maintain a separate client account and to pay workers promptly.62 In the

56 For example, the Nurses Agencies Act 1957, which consolidated and amended provisions from earlier Acts. 57 Employment Agencies Act 1973, s 4. 58 See Hansard, Written Question 19954, asked by Tulip Siddiq on 14 December 2015, and answered by Nick Boles on 12 January 2016. 59 SI 1976/​715. 60 ibid regs 2 and 8 (employment agencies); 9 and 12 (employment businesses). 61 ibid regs 5, 6, and 11. 62 ibid reg 7 and sch 2.

Licensing of Employing Entities  259 case of employment businesses in particular, there was an express prohibition on making it a condition of paying a worker that money had been received from the end user.63 It is perhaps worth noting, however, that the regime did not fully address two central problems with agency work. First, in relation to employment businesses in particular, it did not attempt to regulate workers’ employment status, simply requiring that the employment business should notify the hirer and the worker as to whether the worker was its employee or self-​employed.64 Second, although section 6 of the 1973 Act made it a criminal offence for an agency to charge a work-​seeker a fee, this ban was not absolute and exceptions were permitted, principally in relation to modelling and various parts of the entertainment industry.65 As Hepple and Napier pointed out at the time, this meant that the UK government could not ratify International Labour Organization (ILO) Convention 96,66 something which it had undertaken to do in 1951.67 It is evident from the statistics that the licensing regime for employment agencies and businesses was significantly under-​resourced. A mere fifty-​eight licences were refused and nine revoked between 1977 and 1994.68 This was against a background of 5057 licences in force in 1977 and 14,482 licences in force in 1994. Licensing in the sector was abolished as part of the ‘bonfire’ of regulation brought about by the Deregulation and Contracting Out Act 1994.69 Curiously, though, the abolition focused only on licensing itself and left much of the substance, and the small group of officials (renamed EAS, as noted above) charged with enforcing it, untouched. The cynical explanation for this would be that EAS was not seen as worth abolishing because it was not perceived as a threat. The current position is that employment agencies and businesses are subject to the Conduct of Employment Agencies and Employment Businesses Regulations 2003,70 and it is an offence not to comply with the Regulations.71 EAS investigates complaints and conducts targeted ‘operations’ in sectors perceived to be at high risk of non-​compliance, sometimes in collaboration with other agencies such as HMRC.72 It has at its disposal the possibility of prosecuting offenders or even seeking an order prohibiting a person from running an employment agency or business,73 but proceeds principally by persuasion and warning.74 Since the Immigration Act 2016, it has also had access to ‘intermediate’ sanctions in the form of LMEUs and LMEOs.75

63 ibid reg 9(10). 64 ibid reg 9(1), (4), and (6). 65 See the Employment Agencies Act 1973 (Charging Fees to Workers) Regulations 1976 (SI 1976/​714). 66 ILO Convention 96, Fee-​Charging Employment Agencies Convention (Revised) 1949. 67 BA Hepple and BW Napier, ‘Temporary Workers and the Law’ (1978) 7 Industrial Law Journal 84, 90. 68 See Michael Wynn, ‘Regulating Rogues? Employment Agency Enforcement and Sections 15–​18 of the Employment Act 2008’ (2009) 38 Industrial Law Journal 64, 70. 69 Deregulation and Contracting Out Act 1994. 70 SI 2003/​3319. 71 Employment Agencies Act 1973, s 5(2). 72 See Department for Business, Energy and Industrial Strategy, Employment Agency Standards Inspectorate:  Annual Report 2017–​2018 (August 2018) accessed 5 August 2019. 73 Employment Agencies Act 1973, ss 5(2), 6, and 3A respectively. 74 See Department for Business, Energy and Industrial Strategy, Employment Agency Standards Inspectorate: Enforcement Policy Statement (June 2017) accessed 5 August 2019. 75 See (n 43).

260  Criminality at Work EAS remains significantly under-​resourced, though at the time of writing its profile has been raised somewhat now that it is overseen by the DLME and would be included in the proposed new single enforcement agency, discussed above.

3.  Evaluation As I noted above, it is often pointed out by the critics of licensing that the system promises more than it delivers: the fact that someone holds a valid licence does not guarantee that they will not break the rules, and the very existence of a licensing regime does not guarantee that there are no unlicensed operators. However, it is not possible to claim that any regulatory regime is completely successful in preventing harm from occurring. In this subsection, I will attempt to assess some of the advantages and disadvantages of the licensing system operated by the GLAA, and what (if anything) has been lost by the move to a ‘command and control’ approach in relation to agencies. I will also draw some comparisons with the much more elaborate ‘command and control’ regime operated by HMRC’s National Minimum Wage (NMW) compliance team, which is better resourced and has a much wider range of sanctions, organized into a more recognizable ‘enforcement pyramid’.76 One caveat is in order before I begin. There is, of course, an important debate to be had about whether public enforcement is justified either in relation to a particular employment right or group of rights, or in relation to a particular sector of the economy.77 I do not engage with these debates in this chapter for reasons of space, focusing instead on the question of what type of public enforcement is appropriate once the initial decision not to rely solely on workers’ own (collective or individual) enforcement efforts has been taken. A first advantage of licensing is that it puts the regulator on notice as to the identities and locations of those seeking to operate lawfully in the regulated activity or sector, and gives it an opportunity to conduct an inspection before granting a licence. As explained above, the GLAA’s approach to this task contains an in-​built opportunity for firms and individuals that are not fully compliant, but not in breach of a ‘critical’ standard, to improve their level of compliance. Commentators are often dismissive of this aspect of licensing, arguing that it is relatively easy to get the paperwork in order to make a successful application. However, although the GLAA refuses a relatively small number of licences (sixteen in 2016–​17, against an overall total of 1004) this does indicate that the licensing process is not automatic and does involve scrutiny of applicants’ credentials.78 It also means that the GLAA can gather intelligence about the degree of risk of future non-​compliance among licensed operators, and about individuals or firms which may decide to operate without a licence. Of course, it is difficult to say how many unlicensed operators there are who do not put themselves forward for a licence at all, but it does mean that the GLAA starts at a considerable advantage relative to, for example, EAS, which only comes into contact with an agency when a complaint is made.

76 Ayres and Braithwaite (n 7). 77 I discuss some of the arguments in favour of special treatment for the agriculture sector in ACL Davies, ‘Migrant Workers in Agriculture: A Legal Perspective’ in Cathryn Costello and Mark Freedland (eds), Migrants at Work: Immigration and Vulnerability in Labour Law (OUP 2014). 78 Gangmasters Licensing Authority, Annual Report (n 52).

Licensing of Employing Entities  261 A second, related advantage is that a licence may be granted for a fixed period of time, so that there is a renewal process in which the regulator can engage in further scrutiny. In the case of the GLAA, this is annual.79 Again, it is often argued that this is ineffective, because it should be relatively easy for a firm or individual to create the appearance of compliance. However, there is a good example in a recent GLAA annual report of an individual who had set up an agency using a false identity who was caught at the renewal stage, when he was unable to produce up-​to-​date identity documents in the false name he had been using.80 This shows that unscrupulous operators may not be able to sustain an appearance of compliance over time. Again, other methods of regulation are entirely reactive, to complaints or other intelligence, in identifying cases of non-​compliance. The GLAA carries out investigations on this basis in addition to operating the annual renewal process. A third advantage of licensing, and in my view the most significant, is that it facilitates the public enforcement of multiple standards. To understand this, it is useful to compare and contrast the GLAA’s licensing scheme with the current approach to the regulation of agencies. As noted above, it is a criminal offence under section 5(2) Employment Agencies Act 1973 attracting a fine to fail to comply with the Regulations governing the conduct of employment agencies and businesses. Of course, while the courts (including magistrates’ courts) now have power to set fines with no maximum limit, any fine would have to be proportionate to the offence, so less serious offences, if prosecuted at all, would attract smaller fines. In practice, EAS (which has very limited resources) brought a prosecution in just one case in 2016–​17, but it is significant for the fact that the offender was charged with eight violations of the Regulations suggesting, as one might expect, that prosecution is unlikely unless there are multiple infringements.81 Under the gangmasters’ licensing regime, by contrast, minor infringements attract a points score which may, cumulatively, put an operator’s licence in jeopardy. It seems likely that this is a more effective way of promoting compliance with the full range of standards enforced by the GLAA than a threat of prosecution, because it combines a serious consequence—​the loss of the licence—​without the need for the GLAA to go to court to bring it about. One response to this might be to point out that it would not be unreasonable to reserve public enforcement for the most serious cases of exploitation, where workers’ basic rights are being violated. This might be done for a variety of reasons, the most obvious of which is that public enforcement is costly and therefore a scarce resource which should be used with care. However, it is important to think carefully here about the kind of labour law enforcement system we want. Whilst this is a large question for a short chapter, there are two broad alternatives that we might consider, assuming that private enforcement remains the principal method for workers to secure their rights. Public enforcement might supplement private enforcement either because the rights thus enforced are considered to be of particular importance, or because the workers affected are considered to be unlikely to be able to enforce their rights without support. The former is intuitively appealing and would suggest

79 GLAA, Licensing Standards (n 45) 5–​6. 80 GLA, Annual Report and Accounts 1 April 2015 to 31 March 2016 (HC 279, December 2016) 10 accessed 5 August 2019. 81 Department for Business, Energy and Industrial Strategy, Employment Agency Standards Inspectorate Annual Report 2016–​2017 (November 2017) [35]–​[36] accessed 5 August 2019.

262  Criminality at Work that the state should identify a ‘core’ of fundamental rights for workers, such as freedom from forced labour, safe working conditions and a minimum rate of pay, and focus on enforcing these by public means. But the latter is also worth considering. Workers may struggle to enforce their rights either because of the nature of the rights themselves, or because of their personal circumstances. In the former case, the worker may be subjected to repeated small infringements, for example in relation to the NMW, each of which is minor in itself and therefore not worth challenging, but when taken together over time, or across the workplace as a whole, have a significant cumulative effect.82 In the latter case, workers who are vulnerable because of, for example, migration status, temporary working, or working via an intermediary, are likely to face difficulties in enforcing any rights, not just the fundamental ones. From this perspective, it might be argued that we should not settle for the enforcement of just a subset of rights—​even the most fundamental ones—​and should focus instead on ensuring that vulnerable workers can enjoy conditions of ‘decent work’.83 This latter objective is more readily achieved by a licensing regime than by one which provides for prosecution, even where a range of offences are in principle subject to prosecution. A fourth and final advantage of licensing is that it can lead to relatively rapid removal of particular individuals from the relevant sector. Under the gangmasters’ licensing regime, an individual who is refused a licence, or has his or her licence revoked, can no longer lawfully operate as a supplier of workers in the regulated sectors, and faces the threat of prosecution if he or she continues to do so. Under the regime for agencies, it is possible for EAS to obtain a prohibition order under the 1973 Act, which bans an individual from running an agency on threat of prosecution.84 These orders can operate for up to ten years at a time. At the time of writing, eleven people are the subject of prohibition orders.85 However, this requires EAS to obtain evidence that the individual in question is unsuitable and to take active steps to seek the order from a tribunal. Before concluding, however, there are two important caveats that are not unique to licensing but are crucial to a rounded evaluation. First, the effectiveness of any enforcement regime depends on the level of resources devoted to it. There are striking differences between the three enforcement bodies we have been considering in this chapter.86 In 2016–​17, the GLAA had a budget of £4.8 million to deal with around 1000 licence-​holders covering 460,000 workers. HMRC had an enforcement budget of £20 million to monitor roughly two million workers covered by the NMW. EAS had a budget of £500,000 to cover some 18,000 agencies dealing with over a million workers. Thus, while the GLAA and HMRC have a roughly equivalent budget of £10 per worker, EAS had a tiny budget of about 50p per worker. It is easy to see how a government that did not favour licensing in particular 82 Simester and Sullivan (n 14) 678. 83 This is now a key organizing concept for the work of the ILO. See, generally, accessed 10 April 2019. 84 Employment Agencies Act 1973, s 3A. 85 Employment Agency Standards Inspectorate, ‘Guidance People Prohibited from Running an Employment Agency or Business’ accessed 10 April 2019. This list was last updated on 23 February 2018. 86 Director of Labour Market Enforcement:  David Metcalf, United Kingdom Labour Market Enforcement Annual Report 2017/​18 (March 2019) 7–​8 accessed 5 August 2019.

Licensing of Employing Entities  263 or public enforcement in general could simply starve a regulator of the resources needed to do its job effectively. Although all three bodies received dramatic increases in funding in 2017–​18, the differentials remain, and in the case of the GLAA, the new funding was to support its extended remit to investigate abuses across the economy, rather than to support the licensing scheme. Indeed, there is a risk that the GLAA’s extended remit may, over time, divert resources away from licensing. Second, a significant disadvantage of licensing, which it shares with other techniques of public enforcement, is that it is not formally concerned with obtaining redress for affected workers.87 Indeed, if a breach of licensing conditions is detected and an operator’s licence is revoked, it will no longer be able to supply workers in the regulated sectors and any workers for whom it has been responsible may lose their jobs and accommodation. Even if the workers are being exploited, this may not be a particularly good outcome for them. Moreover, if their migration status is not in order, they may be at risk of being deported. There is no guarantee even for individuals identified as victims of modern slavery through the National Referral Mechanism that they will be allowed to remain in the UK should they wish to do so.88 The only public enforcement mechanism we have considered that focuses on affected workers is the process of issuing a notice of underpayment by HMRC, which requires the employer to pay workers and former workers the NMW arrears it owes them, on relatively generous terms, in addition to paying a penalty to the Secretary of State.89 Of course, in practice, the GLAA does not operate the licensing scheme without paying careful regard to the needs of workers and a significant part of its work involves recovering money owed to workers, as noted above.90

E.  Licensing and the Criminal Law in Employment Settings In this section, I will revisit the discussion surrounding the use of the criminal law to enforce licensing regimes, focusing in particular on whether the offence of acting as an unlicensed gangmaster can be justified in the light of concerns about over-​criminalization, particularly in regulatory contexts.91 It is important to begin by reminding ourselves of the context in which the Gangmasters Licensing Act 2004 was passed. The Morecambe Bay tragedy meant that there was considerable public awareness of, and outrage at, the potential for vulnerable workers to be forced into dangerous situations by unscrupulous gangmasters. Indeed, the gangmaster who had been in charge of the cockle-​pickers was ultimately convicted of the manslaughter of at least twenty-​one people. It is not therefore surprising that the full force of the criminal law was brought to bear on the problem. Moreover, the fact that the legislation was initially 87 Interestingly, there is civil liability for breach of licensing conditions under r 7 of the Gangmasters (Licensing Conditions) Rules 2009 (SI 2009/​307). See Antuzis v DJ Houghton Catching Services Ltd [2019] EWHC 843 (QB), [2019] IRLR 629; G v DJ Houghton Catching Services Ltd [2016] EWHC 1376 (QB), [2016] IRLR 859. But this requires that the affected workers are able to bring proceedings. 88 Home Office, Discretionary Leave Considerations for Victims of Modern Slavery: Version 2.0 (September 2018) accessed 5 August 2019. 89 National Minimum Wage Act 1998, ss 17, 19, and 19A. 90 Gangmasters Licensing Authority, Annual Report (n 52). 91 For reasons of space I do not discuss the s 13 end user offence in detail here.

264  Criminality at Work presented as a Private Members’ Bill meant that it did not reflect the concerns of the then government about taking a risk-​based approach to regulation in order to reduce ‘burdens’ on compliant businesses.92 This explains how a licensing scheme came to be enacted at a time when such schemes had fallen out of fashion. In asking whether the criminal offences contained in the 2004 Act can be justified, we are therefore asking an ahistorical question. The offences exist because there was a political imperative to tackle an immediate problem, not a carefully worked-​out strategy for the use of the criminal law. Nevertheless, the question remains relevant, not least because the future of the GLAA and of the licensing system in particular are by no means secure. We saw above that the proper use of the criminal law to enforce a licensing regime turns primarily on whether we are satisfied that the regime itself is a necessary means of reducing the risk of serious and wrongful harm. For a labour lawyer, this is a relatively simple question to answer. The presence of an intermediary is a risk factor for exploitation, because it creates a ‘triangular’ relationship between the intermediary, the end user, and the workers, in which responsibility for protecting the workers’ rights may be obscured. Moreover, there are a number of additional risk factors for exploitation in the agriculture, shellfish, and food processing sectors, including a high proportion of migrant workers (who may be vulnerable because of poor English language skills, a lack of knowledge of their rights, and fears about their migration status), workers who depend on their employer for accommodation as well as a job, and well-​documented health and safety problems. These are borne out by the kinds of problems uncovered by the GLAA’s investigations, including trafficking and forced labour, dangerous working conditions, non-​payment of wages, confiscation of passports, and overcrowded accommodation. From a labour law perspective, there is no real difficulty in saying that these are serious harms that should attract moral censure. There are two considerations which may undermine this position. One is the concern that exploitation exists across the labour market, and not just in the sectors regulated by the GLAA. It is often alleged that the presence of the GLAA may simply have shifted the problem to other sectors, such as construction or hospitality. However, while this may create inequality of treatment between labour exploiters in different sectors, it seems more logical to treat this as a reason for extending, rather than removing, the licensing regime, or at least exploring other avenues for addressing the problem of exploitation. It is perverse to suggest that a mechanism for tackling some exploitation should be abolished because it does not combat all exploitation. The other is the point I made in the previous section about the relationship between licensing and ‘decent work’. Paradoxically, the very ability of licensing regimes to enforce a range of standards may undermine the justification for the use of the criminal law, because not every standard so enforced will be tackling serious harm deserving moral censure. However, this concern can be met by reference to the ‘enforcement pyramid’.93 Given the points system operated by the GLAA, a gangmaster would need to infringe a number of less serious standards in order to be denied or to lose a licence, and would only be at risk of prosecution if they continued to operate despite not having a licence to do so.

92 See the government-​ commissioned Hampton Review:  Philip Hampton, Reducing Administrative Burdens: Effective Inspection and Enforcement (HM Treasury 2004) (can be found at accessed 5 August 2019). 93 Ayres and Braithwaite (n 7).

Licensing of Employing Entities  265 A final point to consider relates to the offence itself, and whether it can be regarded as deserving of moral censure in its own right, with a relatively high maximum prison sentence. This is relatively easy for the section 12(2) offence which involves an element of dishonesty. It deals with the situation in which, for example, an individual is in possession of a document he or she knows to be false (such as a fake GLAA licence) and intends to use it to persuade end users that he or she is a licensed gangmaster. It is more difficult for the strict liability offence in section 12(1), which could cover anything from a (relatively) innocent mistake to a deliberate decision to carry on as a gangmaster after losing a licence, or to avoid engaging with the GLAA altogether in order to run a business that is engaged in the serious exploitation of workers. The benefit of the current formulation of the offence is that the prosecution has a relatively straightforward task: proving that the individual acted as a gangmaster and did not have a licence. It seems likely in practice that a combination of prosecutorial discretion and appropriate sentencing will serve to ensure that this offence is largely confined to cases in which some moral censure for ‘culpable arrogance’ is warranted.94 Indeed, the guidance on sentencing laid down by the courts might be seen as reflecting an assumption that the cases they are likely to see will be at the serious end of the spectrum.95 To sum up, although the use of the criminal law to enforce the licensing regime for gangmasters is explained by the historical and political context in which the 2004 Act was passed, I would argue that it can also be justified in principle. The licensing system is designed to reduce the risk that gangmasters will exploit vulnerable workers, causing them serious physical, mental, and economic harm, and although not all cases will be serious, it does deal with situations in which the moral censure and stigma of the criminal law are warranted.

F.  Conclusion This chapter set out to explore the role of licensing as a regulatory technique within employment law. The principal example of this technique in operation is the licensing regime for firms and individuals who supply labour in the agricultural and food processing industries, as operated by the GLAA, though it has also been used in the past for agencies across the labour market. Licensing is often criticized for being expensive to operate, and burdensome and bureaucratic for compliant firms. In particular, it is often attacked for failing to prevent non-​compliance even though this is an unrealistic objective for any regulatory regime. As I have sought to argue in this chapter, however, licensing has some advantages, including its ability to create opportunities for contact between the regulator and those it regulates and, most importantly, its ability to require operators to comply with a range of labour standards, not just a small selection of fundamental rights. Thus, it has an important role to play in creating the conditions for decent work where it applies. An effective licensing regime must be reinforced by a powerful sanction to deter firms and individuals from seeking to operate without a licence, either because they have not attempted to obtain one, or been refused one, or had one revoked. The use of the criminal law to achieve this objective is regarded as controversial by some theorists because of fears

94

95

Duff, ‘Crime, Prohibition and Punishment’ (n 22). R v Morkunas [2014] EWCA Crim 2750, [2014] 11 WLUK 36 [51].

266  Criminality at Work about over-​criminalization. I have argued that the licensing regime operated by the GLAA should not be regarded as an example of this phenomenon, because it seeks to reduce the risk of exploitation of vulnerable workers which can involve serious wrongdoing by unscrupulous labour intermediaries and significant harm to workers. It is, of course, essential that this sanction can be enforced by a competent and well-​resourced regulator, so that the strength of the sanction is coupled with a reasonable chance of detection and punishment. It is to be hoped that the GLAA’s extended role under the Immigration Act 2016 will not prove to be a distraction from its core licensing functions. Ultimately, many of the questions raised in this chapter are empirical questions about the extent of exploitation in the labour market, the effectiveness of regulators, and the deterrent effect of particular regulatory techniques. These empirical questions are inherently hard to answer, given that labour exploitation by unlicensed operators is a criminal activity that the perpetrators are at pains to conceal. Nevertheless, even if it is hard to make conclusive statements about the efficacy of licensing, the 2004 Act made an important statement about the type of labour market we want to have: one in which the promotion of decent work, not just the prevention of exploitation, is the objective of public enforcement.

14

Criminalizing Care Workers A Critique of Prosecution for Ill-​treatment or Wilful Neglect LJB Hayes

A.  Introduction A recent extension of UK criminal law has carved a new space of public interest in abuse in care settings. It enables the state to intervene in matters of care worker conduct with powers of prosecution for ill-​treatment or wilful neglect. Arguably, this represents a radical advance in the protection of the human rights of vulnerable adults, demonstrating high regard for moral conduct in care-​giving and ensuring the accountability of people in positions of trust. Such laudable objectives could be seen to inform the contours of a normative role for the state in the policing of care-​giving relationships. The espoused purpose of the ‘care worker offence’ at section 20 of the Criminal Justice and Courts Act (CJCA) 2015 is to protect vulnerable adults from abuse.1 Accordingly, paid care workers may be subject to prosecution where their behaviour at work appears to fit judge-​made definitions of ill-​treatment or wilful neglect of a person for whom care is provided. A charge of ill-​treatment will relate to allegedly abusive action(s) whereas a wilful neglect charge will relate to allegedly abusive inaction(s). Conduct that might fall within definitions of ill-​treatment includes aggressive shouting, teasing, and taunting; feeding a vulnerable person in a medically incorrect way; or slapping them.2 Conduct that may give rise to a charge of wilful neglect includes singular or repeated omissions such as failing to take a person to the toilet or to change their incontinence pads, failing to put a person to bed, and failure to assist with the taking of medication.3 The focus of this chapter is the application of ill-​treatment or wilful neglect provisions to workers caring for elderly and disabled people in residential and nursing homes, domiciliary care services, or homecare. It follows concerns expressed by Herring that prosecutions are being launched against low-​paid and overworked care staff while the real causes of neglect may well be found higher up the management chain.4 Public discourse and policy typically regards hands-​on care workers as ‘unskilled’ and there are few formal training or qualification requirements.5 Their duties centre on personal care tasks such as helping vulnerable adults to eat, drink, use the toilet, changing incontinence pads, assisting or prompting with medication, dressing, washing, putting to bed etc. The size of the UK adult 1 Hereafter CJCA 2015, s 20. 2 See, eg, R v Heaney [2011] EWCA Crim 2682, [2011] 11 WLUK 155; R v Pumbien [2015] EWCA Crim 2186, [2015] 12 WLUK 423. 3 See, eg, R v Maghmouj [2016] EWCA Crim 1647, [2016] 10 WLUK 308; R v ESM [2016] EWCA Crim 1496, [2016] 9 WLUK 410; R v Nursing [2012] EWCA Crim 2521, [2013] 1 WLR 1031. 4 Jonathan Herring, Vulnerable Adults and the Law (OUP 2016), 215. 5 For details see discussion later in this chapter, particularly text to (nn 106–​21) below. LJB Hayes, Criminalizing Care Workers In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.0014

268  Criminality at Work social care workforce is large, with 2  million workers fragmented across approximately 30,000 employer organizations plus over 100,000 disabled individuals who act as employers to workers whom they personally hire.6 State-​funded care provision has been highly marketized over two decades and most employment is with for-​profit private enterprises with service-​delivery contracts with local authorities. Terms and conditions have been described as ‘the worst of any’ and the weakness of employment relationships is reflected in the sector’s considerable recruitment difficulties and higher labour turnover rates than in any other part of the UK labour market.7 According to section 20(3) and section 20(4) of the CJCA 2015, unpaid carers (including those receiving state-​funded social security allowances as caregivers), are not liable for prosecution under the provisions. Evidently, Parliament did not intend for paid care workers to be held to account as abusive caregivers per se. Rather, care workers are held to account for their misconduct as paid workers. This framing of the provisions is troubling and in this chapter, I suggest that the offences are doing something more than protecting vulnerable adults. That something more is to amplify the gendering of worker subordination and weaken the prospect of safer and sustainable social care by individually targeting the care worker and excising her conduct from the context of her work. With an offence in which ill-​treatment or wilful neglect by a caregiver is actionable only if that caregiver is paid, it seems at first glance that relations of employment are too firmly in the spotlight. Since it is not possible to prosecute unpaid carers under CJCA 2015 provisions, wilful neglect by an unpaid carer is not a specific criminal offence unless circumstances fit with earlier provisions set out in the Mental Capacity Act 2005; these require that the neglected adult lacks capacity or is reasonably believed to lack capacity.8 For example, in R v Kurtz, a daughter was prosecuted and convicted under provisions at section 44 of the Mental Capacity Act 2005 (MCA) for a sustained neglect of her mother, including failure to arrange necessary medical treatment which caused prolonged and unnecessary pain, coincidental with early death.9 However, the Court of Appeal overturned her conviction because the MCA 2005 offence of wilful neglect could only be committed if the neglected adult lacked capacity or the defendant reasonably believed the adult to lack capacity. Had Kurtz been paid to provide care as a worker, a conviction under CJCA 2015 would have been possible. In respect of the care of adults who lack capacity, provisions at section 44 of the MCA 2005 treat paid and unpaid carers equally.10 It is therefore difficult to understand why the recent extension of criminal law to protect all adults in receipt of care, as per CJCA 2015, 6 Information on employer numbers and employment via direct payments in England see Skills for Care, ‘The State of the Adult Social Care Sector and Workforce in England’ (September 2018) accessed 5 August 2019. 7 Denise Kingsmill, ‘The Kingsmill Review: Taking Care. An Independent Report into Working Conditions in the Care Sector’ (2004) accessed 31 May 2019. On labour turnover see text to (n 91) below. 8 Note that wilful neglect is an omissions offence and qualitatively distinct from general provisions such as those set out in Offences Against the Person Act 1861, eg assault occasioning actual bodily harm under s 47 or malicious infliction of grievous bodily harm under s 20. There is potential for prosecution under s 5 of the Domestic Violence, Crime and Victims Act 2004 for allowing a vulnerable adult to die or suffer serious physical harm caused by an unlawful act, but it is not an omissions offence. However, omission may constitute gross negligence manslaughter see R v Stone and Dobinson [1977] QB 354. 9 [2018] EWCA Crim 2743, [2019] 2 WLR 1509. Mental Capacity Act 2005 (MCA 2005). 10  See Herring (n 4), 214.

Criminalizing Care Workers  269 diverges from this. Its prosecuting requirement of payment for care suggests section 20 of the CJCA 2015 sets the criminal law in a distinctive relation to the contract of employment in respect of vulnerable adults who do not lack capacity.

B. A Workers’ Crime In this chapter, I explore section 20 of the CJCA 2015 as a provision by which misconduct at work becomes criminal behaviour. By framing instances of elder abuse by caregivers as specific crimes of ill-​treatment or wilful neglect, occurring only in the presence of pay, CJCA 2015 conceives of ill-​treatment or wilful neglect as a workers’ crime. Applying the label, ‘workers’ crime’, serves to highlight a crime in which care workers exhibit inadequate dedication, poor self-​discipline, and weak attachment to their duties of employment. A useful illustration is provided in the sentencing comments of Judge Stead in R v Logan, in which a six-​month prison sentence for wilful neglect was imposed on two care workers who had tried to cover up the true cause of a serious injury sustained by a care home resident.11 The resident was very frail and needed to be lifted in a hoist operated by two people. Logan attempted to lift her in the hoist while working alone and the resident fell to the floor, breaking her pelvis. Logan and her colleague Gillies recorded the fall in the incident book but falsely recorded that it had happened when the resident was being lifted by them both. In passing sentence, Judge Stead said that their corner-​cutting had been motivated by ‘a combination of idleness and self-​interest’ so as to ‘maximise their rest breaks’.12 Accordingly, Logan and Gillies had failed as workers and the judge narrated their offending conduct as wilful neglect by workers. It is pertinent to note that staff shortages in the UK care sector are stubbornly persistent and services have been chronically underfunded for many years by successive governments.13 Thus, it is highly likely that, in some care settings, occupational cultures exist in which cutting corners (such as operating a hoist singlehandedly) is implicitly accepted as though a necessity of circumstance.14 There is some evidence that severe cost pressures across the care industry can influence the habitual behaviour of some staff, embedding sub-​ standard routines and attitudes which may well persist even in the absence of the immediate stimulus of staff shortage.15 This is a serious problem and vulnerable people can be hurt as a consequence. However, from an employment perspective, important normative questions arise about the extent of management responsibility for staff conduct, about managerial

11 Crown Court hearing reported by Andrew Bardsley, ‘Care Workers who Colluded to Cover Up Fall of an 87 Year Old Woman from her Bed Jailed’ Bolton Times (Bolton, 2 April 2015) www.theboltonnews.co.uk/​news/​ 12867238.care-​workers-​who-​colluded-​to-​cover-​up-​fall-​of-​an-​87-​year-​old-​woman-​from-​her-​bed-​jailed/​ accessed 5 August 2019. 12 ibid. 13 See Association of Directors of Adult Social Services, ‘ADASS Annual Budget Report’ (2018) accessed 1 June 2019. 14 See, eg, report of inquest at Cannock Coroners Court into the death of Mrs Teale, ITV report ‘Care Home Staff Did not Use Hoist to Move Elderly Resident, Inquest Told’ ITV News (2 September 2015) accessed 11 June 2019. 15 See, eg, West Sussex Adults Safeguarding Board ‘Orchard View Serious Case Review’ (June 2014) accessed 31 May 2019.

270  Criminality at Work capacity to shape the conditions in which staff are operating, and the scope of managerial prerogative. Within the contractual context of employment, managerial prerogative can shape worker behaviour via powers of discipline or dismissal, as well as via powers of reward and recognition.16 We might ask for example, if judicial ‘readings’ of ill-​treatment or wilful neglect, such as those of Justice Stead, result in the imprisonment of care workers for failures of performance which should have been headed off at a workplace level by effective management and could have been addressed by day-​to-​day formalization of professional standards through strong and effective relations of employment?17 With a particular focus on the crime of wilful neglect, the case law reviewed in section C of this chapter suggests that the line navigated by courts in the context of social care (between failure of performance issues and criminal conduct) is indeed a fine one. I argue that this is because social care workers are afforded an identity as ‘part-​care-​professional’ and ‘part-​family-​member’ hybrid; meaning that precedent established in the gendered context of family care does not sit comfortably, and neither does precedent established in respect of breach of professional occupational duties. Accordingly, the capacity to prosecute care workers under occupationally specific criminal provisions has the effect of strengthening the power asymmetry that characterizes the employment relationships in which care workers are typically engaged. Managerial prerogative is enhanced by state power, but terms and conditions are not reciprocally improved. This is concerning in light of the academic literature on elder abuse in care settings, much of which highlights connections between poor employment, lack of training, the low status of social care work, and the mistreatment and neglect of vulnerable adults.

C.  A Crime against Caring Further potential problems lie in establishing the guilty mind of an accused care worker. For neglect to be judicially regarded as ‘wilful’ in situations of social care, the prosecution must show offending behaviour was motivated by an attitude of ‘not caring’.18 This mens rea element of the wilful neglect offence is distinctive from that applied to trained medical professionals (being a deliberate decision not to act on medical knowledge). The guilty mental state of ‘not caring’ must be present at the moment of inaction. This reflects normative expectations that while care work is not ‘skilled’, it is more than a ‘mere’ economic exchange of labour for pay and is underpinned by obligations which extend beyond explicit contractual duties. Yet these vocational and moral obligations are not reflected in the labour market status of care work. Rather, regard for hands-​on caring as a moral and relational labour draws on gendered concepts of unpaid care, the family work of mothers, and the bonds of affection that are culturally assumed as adequate motivation in the absence of financial reward.19 Hence in situations of social care, the crime of wilful neglect is constructed as a

16 See Mia Ronnmar ‘The Managerial Prerogative and the Employee’s Obligation to Work:  Comparative Perspectives on Functional Flexibility’ (2006) 35(1) Industrial Law Journal 56. 17 See also Alan Bogg and Mark Freedland (this volume). 18 R v Turbill [2013] EWCA Crim 1422, [2013] 7 WLUK 407. 19 Marian Barnes, Care in Everyday Life: An Ethic of Care in Practice (Policy Press 2012); Neil Cobb, ‘Compulsory Care-​Giving:  Some Thoughts on Relational Feminism, The Ethics of Care and Omissions Liability’ [2008] 39 Cambrian Law Review 11.

Criminalizing Care Workers  271 crime against caring, by which I mean a crime committed when the accused violates gendered expectations that are culturally associated with home and family, rather than those associated with notions of professional duty, workplace, and contract. Judicial sentencing comments provide good evidence that care workers are regarded in the courtroom as replacement (female) family members. For example, Mrs Justice Thirlwall in R v Healey stated: Elderly people have a right to be treated with respect by everyone in the community, when they are ill and living in residential homes, they are entitled and we must demand, they are properly cared for. What this appellant did was the opposite of that.20

Healey was thus held to standards that transferred from the family home into the residential home and were identified by the judge within notions of ‘the community’ rather than the worker–​employer relationship. A further example is the case of R v Karen Fitzpatrick, in which a homecare worker was imprisoned for giving a back-​handed slap across the face to a woman with dementia who spat out her tablets.21 In handing down the maximum sentence available, Mr Justice Irwin described Fitzpatrick’s behaviour as ‘unforgivable in a civilized society’ because ‘families entrust the care of their most vulnerable relatives to people like you’ (my emphasis). In so doing he imparted that women in paid care work were substitute family members and that their behaviour ought to align with normative expectations of familial care. Feminist scholars of care ethics have drawn attention to ways in which such expectations are highly gendered and they have explored how the prevalence of gender norms in matters of caregiving can fuel assumptions that caregivers ought to be ‘caring’ on the basis of attributes assumed ‘natural’ in women.22 Such gender norms lead to a conflating of paid caregiving with unpaid labour, equating the workplace with the home and privileging a discourse of family over a discourse of skill and professionalism.23 It is pertinent to note that abusive actions such as slapping are addressed in general criminal provisions such as common assault and battery or actual bodily harm. We might thereby question whether the capacity for prosecution on grounds of ill-​treatment satisfies perceived disciplinary deficits that are rather more symbolic and cultural, than legal. Questions of gender are particularly salient to wilful neglect provisions, which criminalize care workers for inaction and omission. In a general sense, the concept of criminal liability for neglecting to take action is more contentious than for undertaking an action prohibited in law. Traditional common law principles permit the freedom to choose not to act, to ‘mind one’s own business’, in order to avoid unjustified interference with individual autonomy.24 A classic exposition involves a hypothetical passer-​by who sees a drowning man and knows he can save the man’s life by extending his hand. Despite this knowledge, the passer-​by commits no offence by choosing not to help him, even though it results in the man drowning.25 20 [2011] EWCA Crim 2682, [2011] 11 WLUK 155 [9]‌. 21 R v Karen Fitzpatrick [2013] EWCA Crim 730, [2013] 4 WLUK 590. 22 Berenice Fisher and Joan Tronto ‘Toward a Feminist Theory of Caring’ in Emily K Abel and Margaret K Nelson (eds), Circles of Care: Work and Identity in Women’s Lives (SUNY Press 1990) 35. 23 See Gabrielle Meagher, ‘What Can We Expect from Paid Carers?’ (2006) 34 Politics and Society 1, 33–​54; LJB Hayes, Stories of Care: A Labour of Law. Gender and Class at Work (Palgrave 2017). 24 William Wilson, Central Issues in Criminal Theory (Hart 2002) 91–​94. 25 James Stephens, Digest of the Criminal Law (Macmillan 1877) 135.

272  Criminality at Work Some scholars regard the deference to individual freedom in the drowning man example to be based on a misreading of autonomy.26 They point to the fact that individual autonomy is possible only in the context of social cooperation and argue therefore that liberal jurisprudence ought to balance respect for individual autonomy with an appreciation of social responsibility. However, such a balance would demand agreement on where the law ought to draw the line. If criminal liability were to arise because the law expects us all to care for one another, might a rich man commit a crime for ignoring the pleas for financial help of a hungry man in need of food? Despite the moral case for action to assist, it is hard to imagine that law would ever compel the rich man to care by criminalizing his omission and indifference. Liability for omissions is exceptional: it requires clear justification and is the preserve of a limited number of statutory instruments.27 These address instances in which individuals choose to take on responsibilities that create ‘special relationships’ (including parent/​child relationships) and are therefore considered to owe positive duties to support or assist particular others.28 Neil Cobb has rightly drawn attention to the gendered implications of an assumption that relationships of care and support are chosen.29 Women, as a group, bear most responsibility for care, and conformity with powerful social norms means it is illusory to regard women as volunteer parties to relationships that are ‘special’, in the sense that they warrant exceptional status in law. This line of argument may provide support for the exclusion of unpaid caregivers from the reach of section 20 of the CJCA 2015.30 If so, it also sharpens the case for critique of specific measures in criminal law arising on account of the caregiving functions of an overwhelmingly female workforce. Arguably, it suggests that women, in their ‘natural’ domain of the family, are defined by voluntary relations of care that normatively lie beyond the reach of law, so long as they are unpaid. With pay, the employment status of care workers brings the labour of care into public sight and makes their conduct a matter of public interest, such that they are subject to discipline both as parties to an employment relationship and as parties to a pre-​existing relationship of gender. Additionally, we might consider that where hands-​on care is at the core of paid work, the relation of employment is juridically regarded as a ‘special relationship’ in which gendered social responsibilities, external to the employment contract, are policed via the disciplinary power of the state, as an adjunct to employer powers of managerial prerogative. Cobb also argues that, in matters of criminal law, juridical ‘readings’ of individual conduct in respect of omissions liability are influenced by gendered social norms. Accordingly, responsibility for care is juridically assumed of individual women because women, as a group, are society’s assumed caregivers.31 A gendered critique of section 20 of the CJCA 2015 requires attention to the mens rea of ‘not caring’, which defines the mental attitude necessary for conviction. Through discussion of case law in this chapter, I suggest that the doctrine of ‘not caring’ is an unsatisfactory measure with which to judge, as criminality, the inaction of care workers. It appears that judicial consideration has constructed the mens rea 26 Andrew Ashworth, ‘The Scope of Criminal Liability for Omissions’ (1989) 105 Law Quarterly Review 424. 27 Glanville Williams, ‘Criminal Omissions—​The Conventional View’ (1991) 107 Law Quarterly Review 86. 28 Cobb (n 19). 29 ibid. 30 Such exclusion means that unpaid relations of care are not marked out as ‘special relations’ for the purpose of omissions liability in the form of wilful neglect beyond relations of care for children and relations of care for adults with lack of mental capacity, see Children and Young Persons Act 1933; MCA 2005. 31 See Cobb’s discussion and analysis of R v Stone and Dobinson [1977] QB 354: Cobb (n 19).

Criminalizing Care Workers  273 of ‘not caring’ from gendered norms of unpaid family caregiving and has set it to work in an employment context. I evidence that this approach hides from view important matters pertaining to the employment relationship. Indeed, the process of individual prosecution hinges entirely on individual behaviour and excludes from consideration a raft of matters controlled by management, such as understaffing, lack of training, and poor supervision. Thus, my analysis suggests an ontological confusion about the status and role of a paid care worker, part-​care-​professional and part-​family-​member hybrid. It is reflected in the dual framing of the section 20 of the CJCA offence as a ‘workers’ crime’ (in which the potential for prosecution is too firmly wedded to care as an employment activity) and a ‘crime against caring’ (in which the route to potential conviction is insufficiently attentive to the employment context in which care activities are conducted).

D. Ontological Confusion In sections E and F below, I point to the organizational and political implications of the capacity of the state to criminalize care workers as per section 20 of the CJCA 2015. I show how criminal law at work in the care sector can mis-​frame the problem of elder abuse and by-​ pass the significance of low-​quality jobs, of widespread inadequacies of care provision, of employment deregulation, and of longstanding under-​funding. Conceivably, the criminal law can increase care workers’ subordination to their employers in ways which do not improve the safety and well-​being of vulnerable adults, for example if prosecution can ensue from a failure of contractual performance dressed up as a failure of care. Research about the problem of ill-​treatment and neglect in care settings correlates violence and poor care with low-​quality employment, chronic underfunding, lack of training, and aggressive marketization. The evidence indicates that abuse in care settings is principally a systemic rather than individually driven problem. Indeed, official statistics suggest that the most frequently reported form of abuse is ‘neglect and omission’, a problem arising from a sector-​wide lack of resources in the context of government-​imposed austerity measures.32 Care which is safe, effective, and ethical is a corollary of good quality jobs and strong relations of employment. It is therefore concerning that criminal provisions, by their very existence, isolate the conduct of individuals from their workplace settings. The framing and interpretation of those provisions means that judicial narration about care failure is deflected away from the workplaces and industrial context in which problems arise. Therefore, I argue in conclusion that section 20 of the CJCA 2015 exacerbates a pre-​existing ontological clumsiness about the role and status of care workers. It draws on gendered social norms to protect the ideological validity of a marketized system of care in which employment relationships have been strategically weakened in pursuit of cost-​savings, despite abuse in care-​settings being a known consequential risk.

32 NHS Digital, ‘Safeguarding Adults: Annual Report, England 2015–​2016 Experimental Statistics’ (Department of Health 2016) 20 accessed 5 August 2019; NHS Digital, ‘Safeguarding Adults Collection (SAC), Annual Report, England 2016–​17 Experimental Statistics’ (Department of Health, 15 November 2017) 15–​ 16  accessed 5 August 2019.

274  Criminality at Work

E.  Care Worker Prosecution When care workers are implicated in allegations of abuse, the possible consequences range from the loss of a job, to occupational barring, to imprisonment.33 It is frequently the case that prosecutors draw on general criminal provisions regarding theft, grievous bodily harm, sexual assault etc, when people in receipt of care are victims of offences perpetrated by care workers. Where such general crimes occur in the context of caregiving relationships they are made out in aggravated form and sentencing decisions reflect a recognition that victims are especially vulnerable. Yet, crimes committed in the private and personal context of caregiving are not easily discovered and it can be difficult to obtain reliable evidence where the victims are frail, confused, or have impaired communication.34 This is an important driver for the creation of bespoke provisions in criminal law to enhance the protection of adults considered vulnerable because they lack mental capacity. Ill-​treatment or wilful neglect offences in respect of vulnerable adults are set out in three distinct statutes (Mental Health Act 1983; MCA 2005; CJCA 2015). Offences of ‘ill-​ treatment or wilful neglect’ do not include a requirement to prove harm and do not require an act to have been perpetrated.35 They are either-​way offences carrying a maximum sentence of five years’ imprisonment on conviction on indictment, or a fine, or both and on summary conviction the maximum sentence is twelve months, or a fine, or both.

1.  Ill-​treatment and Wilful Neglect in the Courts Statutory provisions set the scope of each offence by defining who is liable for wrongdoing, yet they offer no prescription about what is meant by ‘ill-​treatment or wilful neglect’. Definitions of the actus reus and mens rea elements of these offences are a matter for the courts. The judicial meaning of ‘wilful neglect’ developed in relation to offences against children according to provisions in the Children and Young Persons Act 1933. Perpetrators, as parties to the special relationship of parenting, were found to have failed to respond to the needs of their child when medical attention was required. In R v Sheppard, parents were prosecuted for ‘wilful neglect’. According to the Children and Young Persons Act 1933, neglect must be such that it is ‘likely to cause [the child] unnecessary suffering or injury to health’ and includes a failure to provide ‘medical aid’.36 For the House of Lords, Lord Diplock interpreted such neglect as ‘a failure, for whatever reason, to provide the child whenever it in fact needs medical aid, with the medical aid it needs’.37 However, for neglect to be wilful, and thus fall within the scope of sanctions, evidence was required that a parent was either aware that ‘the child’s health might be at risk if it were not provided with medical aid or that the parent’s unawareness of this fact was due to not caring whether the child’s health was at risk or not’.38 33 See discussion in Jill Manthorpe and Kritika Samsi, ‘Care Professionals’ Understanding of the New Criminal Offences Created by the Mental Capacity Act 2005’ (2015) 30(4) International Journal of Geriatric Psychiatry 384. 34 Alison Brammer, ‘Carers and the Mental Capacity Act 2005: Angels Permitted and Devils Prosecuted’ (2014) 8 Criminal Law Review 589. 35 Set out in CJCA, s20; MCA 2005, s 44; and Mental Health Act 1983, s 127. 36 Set out in the Childrens’ and Young Persons Act 1933, s 1(1) and s 1(2). 37 R v Sheppard [1981] AC 394, 404 (Lord Diplock). 38 ibid 403 (Lord Diplock).

Criminalizing Care Workers  275 Thus, for the Children and Young Persons Act 1933 offence to be made out, the mens rea element of wilful neglect includes the requirement that the accused’s state of mind is one of ‘not caring’. This was affirmed in the assessment of Lord Keith of Kinkel who noted in Sheppard the applicability of wilful neglect where a parent ‘fails to provide medical care which his child needs because he does not care whether it is needed or not’.39 Such an assessment is subjective, focusing on the actual state of mind of the accused and not the assumed state of mind of an objectively reasonable person. This jurisprudence can be contrasted with that relating to ill-​treatment or wilful neglect of a vulnerable adult. The offence is first set out at section 127 of the Mental Health Act (MHA) 1983.40 This provision is designed to protect adults who are being treated for a mental disorder and it recognizes a special relationship between detained persons and staff employed to care for them. The offence is limited in its application since the victim must have a mental disorder and the perpetrator must be, ‘staff of, or otherwise employed in, or who is one of the managers of, a hospital or care home’.41 Such qualifying factors mean that section 127 MHA 1983 can apply only in the context of an employment relationship and the performance of a person’s treatment/​detention at a mental health institution. A wider scope for ill-​treatment or wilful neglect sanctions is set out at section 44 of the MCA 2005. Three elements must be proven. Firstly, that a person ‘has the care’ of another person. Secondly, that the other person lacks, or is reasonably believed to lack capacity. Thirdly, that ill-​treatment or wilful neglect has occurred. Under these provisions, a perpetrator need not be employed and may be either a paid or unpaid carer. Criminal sanctions set out in the MCA have been regarded as measures which serve as a ‘check on powers’ within a special relationship between a person who is lacking mental capacity and a person who has their care.42 Unlike the offence at section 127 of the MHA, the section 44 MCA offence is not tied to action or inaction in any particular care setting and hence it addresses ill-​ treatment and wilful neglect in private dwellings, family homes, and institutional settings, as well as applying to formal and informal relations of care. Wilful neglect as per section 44 of the MCA 2005 was considered by the Court of Appeal in R v Patel.43 Palruben Patel was a registered nurse working at a nursing home. She called an ambulance when a resident had a heart attack and the emergency services advisor repeatedly asked her to give the resident Cardio-​Pulmonary-​Resuscitation (CPR) treatment. Patel refused. Following the actus reus approach set out in the case of Sheppard, Patel was convicted of wilful neglect for failing to provide medical care which she knew was needed. On appeal, and in respect of neglect, Patel’s defence team argued that unnecessary suffering had not been established because the death of the resident was due to his advanced dementia rather than Patel’s inaction. This ground was rejected. Unlike provisions for wilful neglect in the Children and Young Person’s Act 1933, there is no requirement to establish harm or likelihood of harm under MCA section 44 provisions. It is a conduct rather than a result offence. In the case of a vulnerable adult, the actus reus of neglect is the objective inaction of the accused in relation to medical treatment, not the impact of that inaction. We



39

ibid 418 (Lord Keith). Hereafter MHA 1983. 41 MHA 1983, s 127(1). 42 Brammer (n 34). 43 [2013] EWCA Crim 965, [2013] 5 WLUK 481. 40

276  Criminality at Work can therefore see that the actus reus prohibition of omission in respect of an adult lacking in mental capacity is stronger than it is for parents in respect of care for children. Counsel for Patel also argued that her behaviour was not wilful but the result of her stress and panic. The Court of Appeal however determined that her contemporaneous state of mind did not erase her awareness of the need for assistance. As a healthcare professional, the court expected Patel to act on her professional knowledge. Stress and panic was therefore an irrelevant consideration for conviction. Jackson LJ explained: [N]‌eglect is wilful if a nurse or medical practitioner knows that it is necessary to administer a treatment and deliberately decides not to carry out that treatment, which is within their power but which they cannot face performing.44

Hence, judicial understandings of the offence are sensitive to the medical training of the accused. The actus reus of wilful neglect centres on failure to act on medical knowledge when applied to medical professionals and it centres on failure to access medical treatment when applied to parents. This dichotomy presents a challenge when the accused is a care worker, who does not have formal medical knowledge and does not administer medical treatment. The needs which are met by such care workers are ‘social’ rather than ‘medical’. Consequently, misconduct by a care worker has the potential to fall within the scope of the MCA 2005 offence if a failure to undertake a contractual duty, such as failure to put a resident to bed or failure to bathe them, can be said to constitute a deliberate failure to administer ‘a treatment’ as per Patel.45 Furthermore, jurisprudence set out in both Sheppard and Patel draws on awareness of need or necessity to establish that such a failure is deliberate. For the purposes of our discussion, it is essential to ask, what kind of knowledge of necessity must a care worker have for criminal sanctions to be engaged? Must this be, for example, knowledge of a medical necessity, knowledge of necessity arising from managerial instruction, or knowledge of the moral necessity to respond to another person’s request?

2.  In the Context of Social Care Work Maxine Turbill was a residential care home worker convicted for wilful neglect because she failed to put a resident to bed, had not checked on him during the night but had written in his notes that he had ‘slept well’. The resident was a ‘high risk faller’ and his health was known to be in rapid decline. When discovered the following morning, he had suffered no obvious or significant injury, but his bed had not been slept in, he was partially dressed, confused, and cold. Turbill was sacked from her job, prosecuted, and received a twelve-​month suspended prison sentence. However, on appeal it was accepted that the trial judge had failed to properly explain the concept of ‘wilfulness’ to the jury, since ‘gross carelessness’ did not satisfy the demands of wilful neglect.46 It was not enough to ‘[fail] to do what a careful and competent practitioner would do’,47 and a conviction required ‘something more’ than evidence of a

44

ibid [40]. Provided that the resident in question lacked capacity or was believed to lack capacity. 46 R v Maxine Turbill [2013] EWCA Crim 1422, 2013 WL 5730387 (Official transcript) [20]. 47 ibid [12]. 45

Criminalizing Care Workers  277 known duty and its reckless breach. This ‘something more’ was to act or refrain from acting ‘because of not caring whether action was required or not’.48 This approach by the Court of Appeal combined the jurisprudence of Sheppard with that of Patel, suggesting that social care workers are understood in the courts as a part-​care-​professional and part-​family-​ member hybrid. Significantly, the ratio in Turbill requires neglect to be ‘deliberate’ on the basis that it occurs ‘because of not caring’.49 Gendered norms of caring behaviour are thus imported into situations of employment to constitute a mens rea threshold applicable to care workers. The case of Turbill also speaks to the actus reus of neglect in situations of social care, in which responsibility for omissions is higher than in parent/​child relationships. In Patel, a failure to provide medical treatment constituted neglect, while in Turbill, neglect was a failure by a non-​medical care worker to perform an action required under her contract of employment. Consequently, where care workers are seen to fail to perform contractual duties for the reason that they ‘do not care’ or exhibit a ‘couldn’t care a less attitude’,50 wilful neglect can be established.

3.  Erasing Employment Relations The Court of Appeal in Turbill provides authority for the tests which should be applied when prosecuting care workers for wilful neglect. However, it also speaks to the weight afforded to individual culpability in circumstances where care workers have little control over factors which are likely to influence their behaviour. The decision in Patel denied permission to rely on ‘stress and panic’ as a defence against neglect being proven ‘wilful’. This raised the possibility of care workers in under-​resourced environments being unable to cite stress or pressure of work as a reason for a failure to act—​a possibility realized in R v Turbill. Neither stress nor panic were relevant considerations in a determination of guilt.51 Indeed, the application of Patel suggests that contextual considerations are not available as a defence under section 44 MCA.52 Individual culpability clearly lies at the heart of such prosecutions yet the official transcript of proceedings reveal that Hallett LJ made a number of observations about ‘systemic failings’ in the care home in which Turbill worked:53

48 ibid. 49 ibid. 50 As per R v Salisu [2009] EWCA Crim 2702, [2009] 12 WLUK 251. 51 Context might be a relevant consideration in relation to sentencing but there are no sentencing guidelines directly applicable to ill-​treatment or wilful neglect offences: see R v Strong [2014] EWCA Crim 2744, [2014] 12 WLUK 148. 52 Contrast this with wording of ‘Care Provider Offence’ at CJCA 2015, s 21, which holds organizations liable for neglect where activities have been managed or organized in a way which amounts to a gross breach of a relevant ‘duty of care’, defined at s 21(6) as conduct that ‘fall[s]‌far below what can reasonably be expected of the care provider in the circumstances’ (my emphasis). A MCA, s 44 defence that was supported in R v Nursing [2012] EWCA Crim 2521, [2013] 1 WLR 1031 is that of promoting autonomy. Where there is compelling evidence of neglect, the neglect is not wilful if occurring in accordance with upholding the wishes of the individual: ‘If a defendant may have been motivated by a desire to respect autonomy, any neglect proved would not be wilful. Those in care who still enjoy some level of capacity for making own decisions were entitled to be protected from wilful neglect which impacted on areas of their lives over which they lacked capacity.’ 53 Maxine Turbill (n 46) [29].

278  Criminality at Work There were systemic failings by the sounds of it. There was a shortage of staff, a failure to direct staff as to how they had to carry out their duty . . . there were rather more systemic failings in the home and those have been rectified.54

Her comments strongly suggest that better management practice and increased staffing would have prevented Turbill’s neglect of the resident. However, the impact of staff shortages and management inadequacy did not weigh in Turbill’s case. Mr Owen for the appellants stated: The difficulties that arose when they were working in a system which, it has been openly accepted by The Crown, was subject to systemic failures.55

Nevertheless, once the Court of Appeal had moved to quash Turbill’s conviction, Hallett LJ directed that a retrial was needed because of the public interest in ensuring care workers are ‘held accountable for their care’.56 It illustrates that care workers found to be ‘not caring’ may be individually accountable in criminal law for care failures in organizational environments which are hierarchical and resource-​starved.57 Turbill provides a compelling example of the way in which individual admonishment for a ‘crime against caring’ can silence the emergence of alternative narratives about care failure, including those of systemic failure in relation to poor management and under-​resourcing. Judicial instinct to uphold public confidence in our systems of care is particularly evident in the case of R v Lindsay Kenyon.58 Of all the prosecutions for wilful neglect brought before the criminal appeal court to date, none other has provoked such a degree of judicial condemnation. Kenyon was an experienced care worker with an excellent track record. She arrived for work one afternoon to be told that she would not be promoted to the vacant position of Senior Care Assistant. Kenyon threatened to resign on the spot but her manager begged her to carry on and work her shift. In the words of Judge Brown, what followed was Kenyon’s decision to ‘sabotage the shift, there was a downing of tools’.59 She did so little work during her shift that when the night shift arrived at 9pm they discovered twenty residents in the lounge, eight of whom had soiled themselves (they had not been changed or cleaned), the kitchen had not been tidied and the dishwasher had not been emptied. There were four other workers on Lindsay Kenyon’s shift, all were prosecuted but only Kenyon was found guilty. She was sentenced on eight counts of wilful neglect, each relating to a resident who was found in a distressed state and wet with urine, with soiled incontinence pads, or both. Lindsay Kenyon had chosen not to perform her contractual duties. Judge Brown noted that although there was no evidence of long-​term consequences to the care home residents, 54 ibid [29], [31], and [49]. 55 ibid [38]. 56 ibid [24]. 57 See also R v Lennon [2005] EWCA Crim 3530 in which a care worker was convicted of wilful neglect under s 127 of the MHA for leaving a patient with a mental disorder in a sensory room for an excessive period without the necessary one-​to-​one supervision. Sentencing comments noted Lennon was employed in ‘a badly run residential care home with loose supervision and generally irregular care which lacked in discipline and routine’ [3]‌(Lord Justice Auld). 58 [2013] EWCA Crim 2123, 2013 WL 6148151. 59 ibid.

Criminalizing Care Workers  279 Kenyon ‘must have known [she was] putting residents at risk’ (the suggestion being a risk of urinary infection).60 However, exposing residents to risk does not appear to have been the crux of the matter, rather there was judicial distaste for Kenyon’s particular brand of industrial action. Judge Brown reasoned, ‘it is clear to me that you took your anger out on [residents] by wilfully neglecting them such that by the end of the shift they were in a very soiled and saturated state’.61 She was sentenced to eight months’ imprisonment. On appeal, Lindsay Kenyon asked for a sentence reduction on grounds of mitigation because the offence took place on a single afternoon, the effects on the residents were very time limited, and she had an otherwise good employment record in which she ‘cared greatly for residents and other vulnerable persons’.62 None of these factors had been taken into previous consideration on sentencing. Mr Justice Dingemans dismissed her appeal and advised that Kenyon had engaged in ‘a display of petulant behaviour which exposed vulnerable persons in need of protection to appalling conditions’.63 Laws LJ, the UK’s longest serving appeal court judge, described the case as ‘repulsive and sickening’.64 Her eight-​month prison term was thus upheld. Subsequently, in the case of R v Strong, Mr Justice Edis saw fit to review the line of legal authority on ill-​treatment and wilful neglect. He identified Lindsay Kenyon as the most serious abuser to date and re-​narrated her offence as being the performance of ‘revenge’. Even though Kenyon had not lashed out at anyone and there was no suggestion she was unable to control her emotions, he described the case as one in which her ‘anger’ led her to ‘abandon’ and ‘humiliate’ her ‘victims’ in a ‘very protracted’ incident.65 Indeed, Justice Edis went so far as to comment, ‘a longer [prison] term may well have been justifiable’.66 However, and notwithstanding the deleterious impact on vulnerable adults, this was a contractual dispute in which worker misconduct was subsequently constituted as a criminal matter. Kenyon’s case powerfully illustrates the legal construction of neglect as a ‘workers’ crime’ and suggests that prosecution reflects an imperative that public confidence be maintained in the routines, hierarchies, and behaviours upon which systems of paid care depend.

F.  Problems of Abuse in Care Settings Care is culturally associated with spatial notions of privacy. There have been two principal routes through which this is reflected historically in the regulation of caregiving obligations. Firstly, law-​makers have tended to emphasize privacy by permitting domestic spaces to remain relatively free of legal intervention. As is exemplified in the 1957 Report of the Wolfenden Committee, legal regard is paid to maintaining ‘a sphere of private morality and

60 As reported in Editorial, ‘Jail for Care Home Worker Lindsay Kenyon who ‘Downed Tools’ St Helens Star (23 July 2013) accessed 5 August 2019. 61 Lindsay Kenyon (n 58) [8]‌. 62 ibid  [8]‌. 63 ibid [10]. 64 Neil Macdonald, ‘Care Home Worker has Jail Appeal Rejected’ Liverpool Echo (5 September 2013) accessed 31 May 2019. 65 R v Strong [2014] EWCA Crim 2744, [2014] 12 WLUK 148 [18]. 66 ibid [25].

280  Criminality at Work immorality which is, in brief and crude terms, not the law’s business’.67 One outcome is that domestically situated abuse has been actively allowed to take root without legal redress.68 Another is that employment located in domestic homes does not attract many of the statutory protections available to workers in non-​domestic settings.69 Secondly, and despite the fact that care needs are universal human needs, the need for care is culturally associated with human dependency and a lack of personal autonomy.70 Law-​makers have historically overlooked the human rights of people with particular care needs by constructing welfare regimes that have institutionalized and infantilized adults with disabilities.71 The abuse of vulnerable adults takes physical, sexual, psychological, and financial forms and 30–​40 per cent of reported incidents allege wrongdoing by care workers.72 Contemporary debates have raised public awareness about the risk of abuse in care settings, including in the private personal homes of vulnerable adults. The volume of reported incidents suggests an increasing prevalence of abuse. For example, in 2016–​17 local authorities in England alone made formal investigation into 70,000 complaints of abuse of adults aged over sixty-​five years; a 7 per cent increase on the previous year.73 Abuse of vulnerable, particularly elderly, adults is a problem hidden behind ‘closed doors’ but one that is increasingly visible. CCTV footage of care workers ‘caught in the act’ is disseminated via social media platforms and on newspaper websites.74 By creating a public record of the crime in action, technology can transform incidents into highly accessible news stories. A number of undercover investigations have resulted in TV exposés that point to failures in the statutory regulation, and safety, of care settings.75 Campaigns have heightened public interest in the use of covert surveillance to identify abuse, to prevent abusers from continuing to work in the sector, and to support criminal prosecutions of care workers.76 Press reports and court records offer clear evidence of families using CCTV and secret cameras to catch abusive care workers ‘in the act’.77 There is little empirical data about the use and impact of surveillance in social care.78 However, in response to strong public demand for 67 Wolfenden Committee, ‘Report of the Committee on Homosexual Offences and Prostitution’ (Cmnd 247, 1957) [60]. 68 See Joanne Conaghan, Law and Gender (OUP 2013). 69 Judy Fudge, ‘Feminist Reflections on the Scope of Labour Law: Domestic Work, Social Reproduction, and Jurisdiction’ (2014) 22(1) Feminist Legal Studies 1; Einat Albin and Virginia Mantouvalou, ‘The ILO Convention on Domestic Workers: From the Shadows to the Light’ (2012) 41(1) Industrial Law Journal 67; Hayes, Stories of Care (n 23). 70 Martina A Fineman ‘The Vulnerable Subject and the Responsive State’ [2010] 60 Emory Law Journal 251; Martina A Fineman ‘ “Elderly” as Vulnerable: Rethinking the Nature of Individual and Societal Responsibility’ (2013) 20 Elder Law Journal 71. 71 Herring (n 4). 72 NHS ‘Safeguarding Adults: Annual Report 2016’ (n 32) 19. 73 As per Care Act 2014, s 42. NHS, ‘Safeguarding Adults: Annual Report 2017’ (n 32) 5. 74 LJB Hayes, ‘Sex, Class and CCTV: The Covert Surveillance of Paid Homecare Workers’ in Lisa Adkins and Maryanne Dever (eds), The Post-​Fordist Sexual Contract. Working and Living in Contingency (Palgrave Macmillan 2015) 171. 75 For example most recently BBC TV, ‘Undercover Hospital Abuse Scandal’ Panorama (broadcast 22 May 2019); BBC TV, ‘Behind Closed Doors:  Elderly Care Exposed’ Panorama (broadcast 20 June 2014); BBC TV, ‘Undercover Care: The Abuse Exposed’ Panorama (broadcast 31 May 2012); BBC TV, ‘All Work and Low Pay’ Panorama (broadcast 3 October 2011); BBC TV, ‘Britain’s Homecare Scandal’ Panorama (broadcast 9 April 2009). 76 Care Quality Commission, ‘Board Meeting: Item 5, Covert and Overt Surveillance Report’ (CQC 15 October 2014); United Kingdom Home Care Association, ‘Factsheet: Closed Circuit TV and the Law’ (2013). 77 Hayes, ‘Sex, Class and CCTV’ (n 74). 78 Social Care Institute for Excellence, ‘Electronic Surveillance in Health and Social Care settings:  A Brief Review’ (Care Quality Commission 2014) accessed 1 June 2019.

Criminalizing Care Workers  281 CCTV to be introduced in care settings, the statutory regulator in England (CQC) undertook a consultation in 2014. It asked if families with concerns about their relatives were right to install hidden cameras, and if additional support or guidance was required.79 Human rights concerns were noted in relation to potential violations of the dignity of vulnerable adults and unjustified invasions of privacy.80 Neither the state nor the care industry were prepared to pay for CCTV in care homes and the CQC assumed that concerned families would purchase, install, and monitor footage themselves. Subsequent to consultation responses, the CQC adopted a policy of support for families who wish to install either covert or overt CCTV in care settings.81 It has produced advice booklets for families and welcomes surveillance footage as a basis for targeted regulatory or enforcement action.82 Each individual family decision to resort to the installation of hidden cameras or CCTV points to deep distrust in the robustness of employment relations in adult social care. The deregulation of employment in the care sector, together with a lack of public confidence in the statutory bodies responsible for ensuring care standards compliance, has created conditions for surveillance to emerge as a new dynamic in the regulation of care workers’ conduct. Since the camera itself has no eyes, the decision to engage in surveillance requires a sufficiently concerned family member to voluntarily commit both time and money to capture and review the footage. Surveillance by families introduces a fundamental shift in the power relations of paid caregiving.83 The existing management–​employee relationship, which defines worker subordination, is augmented by an informal family–​employee supervisory relationship. In my earlier discussion of care worker prosecutions, I raised concerns that conduct is not satisfactorily contextualized within relations of employment. By explaining the willingness of sector regulators to act on evidence gathered through informal surveillance, I suggest that the capacity for individual criminal prosecution has important extra-​legal organizational and political impacts. At a very practical level, the employment relationship is bypassed because the managerial functions and economic controls of the employer are erased from view. Disciplinary powers are given to third parties (family members, sector regulators, and the Crown Prosecution Service) yet these disciplinary actors have no interest in the adequacy of the terms and conditions of the worker that mark her out as a subject of discipline. This matters greatly. The factors which make abuse in care settings more likely are factors arising in poor quality working environments and weak relations of employment.84

79 Care Quality Commission ‘Board Meeting, Item 4, Chief Executives Report’ (CQC 30 July 2014) [3]‌; Care Quality Commission, ‘Board Meeting: Item 5’ (n 76) [2.13]–​[2.14]. 80 Social Care Institute for Excellence (n 78); Alistair Niemeijer and others, ‘Ethical and Practical Concerns of Surveillance Technologies in Residential Care for People with Dementia or Intellectual Disabilities: An Overview of the Literature’ (2010) 22(7) International Psychogeriatrics 1129. 81 Care Quality Commission ‘Board Meeting, Item 8, Policy and Strategy, Covert and Overt Surveillance’ (19 November 2014) Appendix 1. 82 Care Quality Commission, ‘Thinking about Using a Hidden Camera or other Equipment to Monitor Someone’s Care?’ (CQC 2015) accessed 11 June 2019. 83 Hayes, ‘Sex, Class and CCTV’ (n 74). 84 Carol Atkinson, Sarah Crozier, and Rosemary Lucas, ‘Workforce Policy and Care Quality in English Long-​ term Elder Care’ (2018) 41(4) Public Performance & Management Review 859; Sharon C Bolton and Gemma Wibberley ‘Domiciliary Care: The Formal and Informal Labour Process’ (2014) 48(4) Sociology 682; Jane Lewis and Anne West, ‘Re-​shaping Social Care Services for Older People in England:  Policy Development and the Problem of Achieving “Good Care” ’ (2014) 43(1) Journal of Social Policy 1.

282  Criminality at Work Seemingly, a stronger policy focus on the significance of good quality employment would reduce the likelihood and incidence of elder abuse in care settings.85

1.  The Organizational Dynamics of Abuse Violence is most likely in care settings where workers are required to work in a hurry and vulnerable people are subjected to rough handling, it occurs most frequently in the context of under-​staffed organizations and where care workers are under-​trained.86 Research about the organizational dynamics of abuse in care settings finds that staff shortages, routine use of temporary or agency staff, poor supervision, high levels of staff turnover, and weak management increase the risk of aggressive behaviour and violence.87 Other significant risk factors include lack of training, the employment of care workers in low paid and insecure jobs, and discriminatory behaviour or bullying by management.88 Abuse is expressed differently in response to organizational settings. For example, homecare workers are six times more likely than care home workers to be implicated in financial abuse and care home workers are three times more likely than homecare workers to be implicated in allegations of physical abuse.89 Evidence about the triggers and causes of abuse provide strong grounds for questioning whether the individualized focus of criminal law on actions or inactions is reducing the risks of abuse or increasing the gendered subordination of care workers as a group. The question becomes more urgent on consideration that conditions of abuse may additionally be shaped by the state in respect of policy decisions, including decisions to reduce public expenditure in adult social care. Since 2010, the austerity policies of the UK government at Westminster have required substantial and sustained reductions in public funding.90 Care services to the elderly have been more harshly impacted than any other public service in which the state bears statutory responsibilities to citizens.91 Savings have been achieved by tightening the criteria for individual entitlement to state funded support, by reducing the volume of care to which individuals are entitled, and by introducing considerable delays between referral, assessment, and the arrangement of care, including delayed discharge from hospitals.92 Viewed in the context of austerity, abuse is linked to the under-​funding and 85 Jill Rubery and Peter Unwin, ‘Bringing the Employer Back In: Why Social Care Needs a Standard Employment Relationship’ (2011) 21 Human Resource Management Journal 122. See also S Ramirez, ‘Raising Concerns in the Workplace’ (Older People’s Commissioner for Wales 2012) accessed 5 August 2019. 86 LJB Hayes, ‘The Physicality of Worthlessness: An Intersectional Account of Why it is Unjust to Deny Legal Protections in Care Work’ (2020) 9(2) Feminists@Law. 87 ibid. 88 ibid. 89 Martin Stevens and others, ‘The Protection of Vulnerable Adults List: An Investigation of Referral Patterns and Approaches to Decision-​making’ (Final Report, KCL Social Care Workforce Unit 2008) accessed 5 August 2019. 90 For an assessment see LJB Hayes and Sian Moore, ‘Care in a Time of Austerity: the Electronic Monitoring of Monitoring of Homecare Workers’ Time’ (2017) 24(4) Gender Work and Organization 329. 91 ADASS, ‘Annual Budget Report’ (n 13). 92 ADASS, ‘Annual Budget Report’ (n 13); Information on Delayed Discharge from NHS Hospitals: Nuffield Trust, ‘Delayed Transfer of Care’ (15 January 2019) accessed 1 June 2019. See data in Age UK (press release, 5 February 2019)  accessed 5 August 2019.

Criminalizing Care Workers  283 consequent under-​supply of care services. Indeed, a reversal in increased longevity in the population has been attributed to unnecessary deaths arising from a lack of available social care.93 Despite public perceptions that abuse is expressed in physical assault, sexual abuse, and theft, it is telling that the most common species of abuse by care workers is ‘neglect and omission’.94 The abuse of vulnerable adults happens most often as the result of inaction; of care not being provided as and when it is required. Many commentators have argued that neglect is hardwired into the current framework of publicly funded care.95 State-​led demand for lower cost care services has created a care sector based on employment relationships that have many features associated with increased risk of abuse or violence in care settings. As a consequence of marketization, employment in the care sector is now almost exclusively organized under private sector arrangements in which equal pay law is ineffective, employment rights more difficult to enforce, and workers are highly unlikely to benefit from collective agreements.96 Voluminous data has evidenced that the care workforce is routinely subject to unlawfully low pay due to industry-​wide expectations of unpaid labour, poor record-​keeping, sex discrimination in pay-​setting, and intense labour cost competition.97 A large proportion of workers are employed via zero-​hours contracts, which fail to provide a secure guarantee of paid work and render legal entitlements and duties opaque.98 The flexibility of these arrangements also enables employers to effectively dismiss staff at will by removing work without notice and without requirement of a good reason for so doing.99 Insecurity at work means that care staff avoid reporting safety or abuse concerns because they fear losing their jobs.100 It would seem that the state is a pivotal actor in respect of abuse. Since the 1990s, political orthodoxy about the benefit of marketizing state-​funded care services has been based on the belief that an ‘effective’ consumer market in care provision will produce quality care

93 Institute of Health Equity, ‘Marmot Indicators’ (2017) accessed 1 June 2019; Johnathan Watkins and others, ‘Effects of Health and Social Care Spending Constraints on Mortality in England: A time-​trend analysis’ (2017) British Medical Journal Open accessed 5 August 2019. 94 NHS ‘Safeguarding Adults: Annual Report 2016’ (n 32) 20; NHS, ‘Safeguarding Adults: Annual Report 2017’ (n 32) 15–​16. 95 See Paul Barstow, ‘Care and Corporate Neglect:  The Case for Action’ (2013) 15(4) The Journal of Adult Protection 203. accessed 1 June 2019; Wendy Sykes and Carola Groom, Research Report 79:  Older People’s Experiences of Home Care in England (Equality and Human Rights Commission 2012) accessed 5 August 2019. 96 Hayes, Stories of Care (n 23); Carole Thornley, ‘Unequal and Low Pay in the Public Sector’ (2006) 37 Industrial Relations Journal 344; Krishna Poinasamy and Louie Fooks, ‘Who Cares? How Best to Protect Care Workers Employed through Agencies and Gangmasters from Exploitation’ (Briefing Paper, Oxfam 2 December 2009) accessed 5 August 2019. 97 Shereen Hussein and Jill Manthorpe, ‘Structural Marginalization among the Long-​term Care Workforce in England: Evidence from Mixed-​effect Models of National Pay Data’ (2014) 34 Ageing & Society 21; Public Accounts Committee, Sixth Report—​Adult Social Care in England (2 July 2014); HM Revenue and Customs, ‘National Minimum Wage Compliance in the Social Care Sector: An Evaluation’ (HMRC 2013). Whyeda Gill-​ McLure, ‘Fighting Marketization: An Analysis of Municipal Manual Labour in the UK and the US’ (2007) 32(1) Labor Studies Journal 41; Lydia Hayes, ‘Care and Control:  Are the National Minimum Wage Entitlements of Homecare Workers at Risk under the Care Act 2014?’ (2015) 44(4) Industrial Law Journal 492. 98 See Atkinson and others (n 84). 99 Hayes, ‘Sex, Class and CCTV’ (n 74) 85–​89. 100 Sarah Rochira, ‘A Place to Call Home?’ (2015) 27(2) Nursing Older People 12.

284  Criminality at Work services.101 Yet, in matters of labour standards and care standards, the state is the legislator and enforcer of statutory minima. In matters of commercial contracts, the state is the main customer, principal financier, and key sponsor of care markets. Abuse is symptomatic of market failure because it reflects a lack of consumer choice and corrosive patterns of competition between providers. Indeed, elder abuse was identified by the Australian Law Commission as a ‘known risk’ in marketized systems of care, since care ‘consumers’ may not in practice exercise the consumer choice to which they are theoretically deemed to have access.102 The UK care workforce is insufficiently trained to meet increasingly complex care demands. In England, sector regulator the CQC rates a fifth of care establishments as unsafe (‘requiring improvement’ or ‘inadequate’), including a third of care homes.103 About half of care workers have no relevant prior qualifications.104 Low levels of formal education are partly a consequence of extensive staff shortages. Indeed, high labour turnover is not conducive to employer investment in training (34 per cent of all care workers leave their jobs in less than a year and 43 per cent of all domiciliary care workers across the UK are new starters).105 Unlike elsewhere in northern Europe, UK care workers have not been historically subject to general educational or sector specific training thresholds. Marketization has not produced investment in training and competition between providers has not produced high-​quality care delivered by a professionally trained workforce. Rather, the market looks to the state for leadership in training; to determine what must be provided, to fund, regulate, and monitor.106 The issue of training is gendered and sheds further contextual light on ill-​treatment or wilful neglect offences.

2.  Training and the Regulation of Conduct Research suggests lack of training is the most significant contributor to the mistreatment of vulnerable adults.107 Training is widely regarded as critical for preventing abuse.108 In a 101 Lewis and West (n 84); Lillie Wenzel and others, Approaches to Social Care Funding (Health Foundation Working Paper, The Kings Fund 2018) accessed 5 August 2019. 102 Australian Law Reform Commission, Elder Abuse, a National Legal Response (ALRC Report 131) (2017) 110

accessed 5 August 2019. 103 Care Quality Commission, The State of Health Care and Adult Social Care in England 2016/​17 (2017) accessed 1 June 2019. 104 Atkinson and others (n 84). 105 Skills for Care, The State of the Adult Social Care Sector and Workforce in England (2017) 33–​37 accessed 1 June 2019. 106 Lewis and West (n 84). 107 Catherine Hawes, D Blevins, and L Shanley, ‘Report to the Centres for Medicare and Medicaid Services’ in Preventing Abuse and Neglect in Nursing Homes: The Role of the Nurse Aide Registries (School of Rural Public Health, Texas A&M University System Health Science Center 2017). 108 Dana DeHart, Jennifer Webb, and Carol Cornman, ‘Prevention of Elder Mistreatment in Nursing Homes: Competencies for Direct-​Care Staff ’ (2009) 21(4) Journal of Elder Abuse & Neglect 360; Catherine Hawes, ‘Elder Abuse in Residential Long-​term Care Facilities: What is Known About Prevalence, Causes, and Prevention’ (Testimony to the US Senate Committee on Finance, June 2002) accessed 6th June 2019; Seema Joshi and Joseph H Flaherty ‘Elder Abuse and Neglect in Long-​ term Care’ (2005) 21(2) Clinics in Geriatric Medicine 333.

Criminalizing Care Workers  285 UK context, training requirements mandated in law provide a tangible source of evidence about how Parliament understands the need to tackle abuse of vulnerable adults. The extent of legal requirements for training provides a concrete measure of the extent to which law and policy-​makers acknowledge, (a) that caregiving skills do not arise ‘naturally’ in women and, (b) that personal care tasks require occupational skills. Significantly, training expectations set paid care work apart from the gendered informality of family labour because they are socially associated with notions of professional duty, workplace, and contract. The state regulation of training tells us something about how government perceives the problem of abuse and provides a window onto the willingness of government to provide ontological clarity about what it means to be a care worker. In order to improve the safety of care services, the national government administrations of Scotland and Wales have recently legislated for occupational registration schemes underpinned by mandatory training requirements.109 In both residential care and domiciliary care, workers are required to register with national workforce regulatory bodies.110 It is important to note that neither Scotland nor Wales have legal competence in matters of employment and draw on the competence they carry for the regulation and administration of health and social care services to legislate for worker registration. As mandatory deadlines are reached, the effect of legislation is that care workers become an occupational group, legally defined by training and conduct requirements, and held to account for their fitness to practice by regulatory standards and the rigours of an occupational code.111 Criminal sanctions are not invoked inside these registration schemes. Rather, care workers’ misconduct as professionals is punished by professional sanctions, that is deregistration resulting in a bar on working in the care sector. Available sanctions in respect of registered social care workers (and registered managers of social care services) include a warning, an admonishment added to the entry for up to five years, a conditional registration order, a suspension order or a removal order to ‘protect the public and the public interest in maintaining confidence in social care services’.112 A criminal offence is committed if a deregistered or unregistered person seeks to pass themselves off as a social care worker with intent to deceive.113 Hence the criminal law is not invoked inside the registration schemes but is used to give gravity to the public interest status of the schemes themselves.

109 Regulation and Inspection of Social Care (Wales) Act 2016; Health and Care (Staffing) (Scotland) Act 2019; The Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011. 110 Since 2015, workers in care homes in Scotland must register and domiciliary care workers in Scotland register from 2021. In Wales, worker registration in domiciliary care has been becomes mandatory from April 2020 and in care homes from April 2021. 111 See Scottish Social Services Council, ‘Post registration training and learning (PRTL)’ accessed 5 August 2019; Social Care Wales, ‘Qualifications you need to register’ accessed 5 August 2019; Social Care Wales, ‘Codes of Practice and Guidance’ accessed 20 May 2019. For example, failure to undertake the required number of professional development training hours within a registration period is considered serious misconduct resulting in impaired fitness to practice by the regulatory body Social Care Wales. 112 See Indicative Sanctions Guidance accessed 5 August 2019; case of Richard Evans (W/​2059143, 9 May 2019)  accessed 5 August 2019. 113 Practising as an unregistered social care worker is an offence punishable by a fine, up to two years’ imprisonment, or both as per the Regulation and Inspection of Social Care (Wales) Act 2016.

286  Criminality at Work Registration enables complaints about individual conduct, including allegations of neglect,114 to be made to relevant sector regulatory bodies. On a civil standard of proof, complaints progress through highly formalized disciplinary procedures. Where fitness to practice is at issue, complaints are escalated to a hearing by a specialist disciplinary panel with powers of sanction. The panel takes independent evidence, including CCTV footage, oral witnesses, evidence from police, employers, local authority officers etc. Despite the focus on individual behaviour, the organizational context in which behaviour occurs is a relevant consideration, including matters such as whether a care worker was acting under duress, previous good history, references and testimonials of character, whether harm or potential harm was caused, and all the circumstances leading up to an incident.115 Panels may therefore consider individual behaviours in the context of the workplace and relations of employment. Panel members are sector specialists, attune to sector pressures and likely to be alert to the quality and strength of relations of employment. In particular, the panel members who are tasked with hearing cases of alleged neglect by care workers also have a wealth of experience in hearing cases about professional misconduct by managers of care services. Matters addressed in such cases can, and have, included serious failures in managerial oversight of workers, managers’ failure to ensure staff are adequately trained, failure to ensure staff are suitably qualified, failure to employ sufficient numbers of staff, failure to provide adequate supervision, failure to make arrangements to prevent abuse etc.116 However, the approach taken to oversight and discipline of care worker conduct in Wales and Scotland is very different from that taken in England, where the vast majority of the UK’s social care workforce is located. In 2007, the Department of Health announced that within three years every social care worker in England would be required to formally register with a professional body.117 Registration based on training and professional ethics was to be underpinned by the potential to refer complaints to fitness to practice panels. The declared purpose was to ‘improve safety, assure protection and improve the quality of services’.118 Further embedding the connection between registration and prevention of abuse, the national workforce strategy for England detailed: ‘the conduct and practice of some [care workers] falls below what society would expect’. Its proposed workforce registration scheme would be ‘holding [workers] to account against codes of practice for social care workers’.119 The registration scheme failed to materialize by 2010, a stumbling block had been cost. In 2011, Secretary of State for Health Andrew Lansley MP scrapped the proposed registration scheme: The risk to service-​users and the general public posed by groups of unregulated health and social care workers is not considered to be such that regulation of individual workers is 114 See case David Odobgpiny Lukwiya (W/​2041238 28 June 2018)  accessed 5 August 2019 115 See Indicative Sanctions Guidance (n 112). 116 See case Rosemin Mawji (W/​5006187) accessed 5 August 2019 and case Ashley Bowen (W/​2061988 12 June 2018)  accessed 5 August 2019. 117 Kirsty McGregor, ‘Government Rules Out Registration for Social Care Staff ’ Community Care (16 February 2011)  accessed 5 August 2019. 118 Department of Health, ‘Working to Put People First: The Strategy for the Adult Social Care Workforce in England’ (2009) 47. 119 ibid 48.

Criminalizing Care Workers  287 necessary . . . the Government does not believe that the extension of statutory regulation to all workers in the health sector across the UK and the social care sector in England would be a proportionate response. The emphasis should be on employers of unregulated workers to take responsibility for the quality of services provided.120

Accordingly, the government in Westminster had downgraded the risk of abuse in England and argued care worker registration would be disproportionate. Responsibility for protecting vulnerable adults was purported to lie within relations of employment, in which the worker is accountable to her employer, and her employer is accountable to its customers. Yet, as the discussion above has evidenced, employment relations in social care have been eroded to the point that they are too weak to deliver the training, stability of decent work, and continuity of care that is necessary to protect vulnerable adults. It is in this context that the UK government acted to extend the offences of ill-​treatment and wilful neglect. Arguably, the criminal law has been harnessed as a tool with which to strengthen powers of managerial prerogative. Proposals for workforce registration in England have been consistently rejected by government ministers since 2011. The making of section 20 of the CJCA 2015 must be viewed in light of this fact.

3.  The Making of Section 20 Criminal Justice and Courts Act 2015 Following a higher than expected death rate of older people at Stafford Hospital in England, a National Advisory Board on Patient Safety was established and comprised of healthcare management consultants, healthcare academics, senior NHS managers, and NHS patient representatives. It reported to the UK government in 2013 and recommended that where an ‘egregious act or omission caused death or serious harm’ there should be an offence of ‘wilful or reckless neglect or mistreatment of all NHS patients on a par with the offence that currently applies to vulnerable people under the Mental Capacity Act 2005’.121 Hence, the National Advisory Board sought an expansion in the scope of criminal law to protect all patients in respect of severe care failures. It found that individual NHS staff were not to blame for neglect because, ‘in the vast majority of cases it is the systems, procedures, conditions, environment and constraints they face that lead to patient safety problems’.122 Furthermore, it believed that if staff were at risk of personal prosecution, a toxic culture of fear would harm patient safety and impede improvement. The Board advised that any system of improvement must ‘abandon blame as a tool and trust the goodwill and good intentions of the staff ’.123 However, the consequent government consultation on a new criminal offence did not adhere to National Advisory Board recommendations. The proposed extension to the law of ill-​treatment or wilful neglect would apply to all paid care workers in the UK, across all formal health and social care settings, without any need to establish actual or likely harm to the victim. The consultation garnered objections from employers groups, commissioners 120 Secretary of State for Health, Enabling Excellence:  Autonomy and Accountability for Healthcare Workers, Social Workers and Social Care Workers (Cm 8008, presented to Parliament, February 2011) [4.2]. 121 ibid [37]. 122 ibid 4. 123 ibid 4.

288  Criminality at Work of services, and numerous professional medical bodies, arguing there was little evidence for the necessity of a general ill-​treatment and wilful neglect offence. The existing fitness to practice procedures of the professional regulators were claimed to be more effective, carried a lower threshold of proof, and correctly dealt with malpractice as an employment and professional matter. They also voiced concerns that a general fear of prosecution could lead to staff being less open about mistakes and practising ‘inappropriately defensive medicine’.124 The Department of Health accepted these points but argued for the necessity of the offence on the basis that some groups in the health and social care workforce were not subject to professional regulation (these are the hands-​on care workers jettisoned by the ministerial decision in 2011 to scrap registration proposals).125 It also argued that criminal sanctions would strengthen action against those with ‘a couldn’t care less attitude’. 126 From the outset however, the government was keen to stress that fear of prosecution for abuse must not deter unpaid family members or neighbours from caring and therefore it would ‘assess and meet the needs of carers who are not under an employment or contractual arrangement . . . [because this] seems a far more appropriate way to pre-​empt and address these problems’. As the House of Lords debated the proposals, Baroness Thornton observed that neither hands-​on care workers nor organizations seeking to represent them had been engaged in pre-​legislative consultation.127 There was a complete lack of advocacy on behalf of an occupational group already disadvantaged by a lack of voice in the corridors of power. Despite far-​reaching implications for the social care workforce, section 20 CJCA 2015 received parliamentary approval and came into effect on 13 April 2015. Its particular rendition of the offence of ill-​treatment or wilful neglect brings within the purview of the criminal law the whole sphere of activities in which care workers are engaged. The new offence applies to the care of any person and ‘the breadth of liability is very wide indeed’.128 It touches all paid care workers and all persons in receipt of paid care; significantly expanding the number of persons engaged by ill-​treatment and wilful neglect provisions to millions (including care workers and vulnerable older people or disabled people). There is no requirement for harm or risk of harm to be established. Perhaps in a nod to the concerns of the medical professions, the new offence was entitled: ‘Ill-​treatment and wilful neglect: Care worker offence’.129 It is unusual for criminal law to suggest how we should visualize the offender; in this case as a typically female ‘unskilled’ and low-​waged worker.130 Accordingly, section 20(1) defines ‘an individual who has the care of another individual by virtue of being a care worker’ and ill-​treats or wilfully neglects that other individual. Although the offence is not limited to hands-​on care workers, the explanatory notes make clear that supervisors or managers can only commit the offence where they themselves have directly committed ill-​treatment or wilful neglect. They cannot commit a section 20 offence by virtue of the action or inaction of those they manage. For 124 Department of Health, New Offence of Ill-​treatment or Wilful Neglect, Government Response to Consultation (June 2014) [5]‌and [10]. 125 ibid  [6]‌. 126 ibid  [7]‌. 127 HL Deb 20 October 2014, vol 756, col 478. 128 Karl Laird, ‘Filling a Lacuna: The Care Work and Care Provider Offences in the Criminal Justice and Courts Act 2015’ (2016) 37(1) Statute Law Review 1. 129 Department of Health, New Offence of Ill-​treatment or Wilful Neglect, Consulation Document (February 2014) [7]. 130 Ngaire Naffine Criminal Law and the Man Problem (Hart 2019) 28.

Criminalizing Care Workers  289 the purposes of defining the offence, a ‘care worker’ is an ‘individual who, as paid work, provides [health care or social care]’.131 Potential perpetrators are therefore defined as those who ‘have the care’ (as per section 44 of the MCA) but are also individuals in ‘paid work’. Exempted from the definition of ‘paid work’ are individuals in receipt of reasonable expenses or social security payments related to caring activities.

G.  Conclusion The criminalization of care workers reflects deep ontological confusion on the part of the state about the role and status of care workers in the twenty-​first century; about what it is to be a care worker. The offence set out at section 20 of the CJCA 2015 frames care workers as a part-​care-​professional and part-​family-​member hybrid. It conceives of ill-​treatment or wilful neglect as a workers’ crime, yet criminal prosecutions isolate the conduct of individuals from their workplace settings. It is the employment status of care workers that constructs the labour of care as a matter of public interest, such that care workers are subject to discipline both as parties to an employment relationship and as parties to a pre-​existing relationship of gender. In criminal law, the responsibilities of care workers’ for the care of vulnerable adults is stronger than parental responsibility for the care for children. Where hands-​on care is at the core of paid work, the relation of employment is juridically regarded as a ‘special relationship’ that warrants the discipline of the state as an adjunct to employer powers of managerial prerogative. In judicial narratives about offending behaviour, the employment relationship is purposefully absent. One consequence is that care workers are not held to account for a breach of care in the context of an industry which is under-​funded, over-​committed, under-​staffed, exploitative, and dependent upon corner cutting. Another consequence is to overlook the impact of political decisions to strategically weaken employment relationships in pursuit of cost savings and overlook the resulting rise of the risk of abuse in care settings. In England, the state fails to award professional standing to care workers and legislators at Westminster have drawn on criminal law as tool with which to reduce the complexities of abuse in care settings to the seemingly simple idea that abuse is the individualized behaviour of a care worker who exhibits ‘a couldn’t care less attitude’. Abuse is thus constructed as a ‘crime against caring’, committed when the accused violates gendered expectations that are socially associated with home and family, rather than those which are associated with notions of professional duty, workplace, and contract. Outside of England, care workers are required to join occupational registers and are held to account by professional standards bodies, yet the criminalization of care workers impacts on employment relationships throughout the UK. The employment contract cannot be conceived as a traditional bilateral agreement between a worker and an employer. New parties enter through the gateway of criminal law. With the presence of an employment contract any person in receipt of social care acquires status as a person protected from ill-​treatment or wilful neglect. It is through an employment relationship that the state assumes the power to imprison convicted care workers.



131

CJCA 2015, s 20(3).

290  Criminality at Work Other parties are invested with disciplinary oversight of the care worker too, family members of those in receipt of care may gather evidence of wrongdoing in aid of prosecution and are encouraged to do so by sector regulators. This means that the mere capacity for prosecution has the effect of strengthening the power asymmetry that characterizes the poor quality jobs and weak relations of employment in which care workers are typically engaged. Managerial prerogative is enhanced by state power, but terms and conditions are not reciprocally improved. This is highly concerning because abuse is a systemic problem that arises from the way in which care is organized and poor quality care is a corollary of poor quality employment. On the evidence, it is hard to see how vulnerable adults are made safer while the contribution of underfunding, employment insecurity, and worker exploitation is bypassed through criminal offences that deflect blame for care failure away from the workplaces and industrial context in which problems arise.

15

The Medical Professional as Special before the Criminal Law Suzanne Ost

A.  Introduction In this chapter, the relationship of unequal power that is a primary focus of labour law shifts from the relationship between employer and employee to that between the professional and the ‘client’: the doctor and the patient. The doctor–​patient relationship is arguably unique. After all, how many other professional relationships, even those that may be similarly intimate and confidential,1 involve the weaker party laying themselves bare (sometimes literally), placing their trust, confidential information, and health in the hands of someone whom they may only have met minutes before?2 This trust is given because of the esteem that society continues to hold the medical profession in, and is reflected in the fact that the profession is permitted to self-​regulate through the General Medical Council (GMC).3 Thus, in cases where a medical professional is deemed unfit to practise, having failed to abide by the strict standards and regulatory ethics set by the GMC,4 a range of sanctions can be imposed.5 In some cases, however, when a doctor behaves in a way that violates the ethos of the doctor–​patient relationship, professional regulation and even civil law remedies for private wrongs, are not enough. The private wrong committed against the patient because, for example, the doctor removes her kidney without her consent, is also considered to constitute a public wrong that demands the attention of the criminal law.6 There has been increasing 1 Such as that between lawyers and their clients. See further Hazel Biggs and Suzanne Ost, Exploitation in the Doctor-​Patient Relationship: Ethics and Law (Routledge, forthcoming 2020) ch 3. 2 See also Henri Colt, Silvia Quadrelli, and Friedman Lester, The Picture of Health: Medical Ethics and the Movies (OUP 2011) 298. 3 On the continued existence of trust in the medical profession, see Biggs and Ost, Exploitation (n 1) ch 3, s 3. Note also that a primary reason for reforms of the GMC’s regulatory procedures was to maintain trust in the profession following, inter alia, the Shipman Inquiry’s conclusion that GP Harold Shipman was able to perpetrate murder on such a mass scale, in part, because of ‘systems failures’ and weaknesses in the (then) professional regulation: Janet Smith, Disguising Death (HMSO 2002) 200–​01; Janet Smith, Safeguarding Patients: Lessons from the Past-​Proposals for the Future, the Shipman Inquiry (HMSO 2004).On damaged public trust in the GMC’s regulatory procedures and the steps taken to address this, see John Martyn Chamberlain, ‘Malpractice, Criminality and Medical Regulation: Reforming the Role of the GMC in Fitness to Practise Panels’ (2017) 25 Medical Law Review 1, 12–​13. On reform of the procedures, see, eg, Department of Health, Trust, Assurance and Safety—​the Regulation of Health Professionals in the 21st Century (Cm 7013, 2007); GMC, Reform of the Fitness to Practise Procedures at the GMC (GMC 2011). 4 The GMC is given the power to advise medical professionals on standards of professional conduct and performance and medical ethics under the Medical Act 1983, s 35. 5 By one of the Medical Practitioners Tribunal Service Panels that adjudicate through public hearings following the investigation of complaints by the GMC. 6 On public wrongs and the criminal law, see Sandra Marshall and Antony Duff, ‘Criminalization and Shared Wrongs’ (1998) XI Canadian Journal of Law & Jurisprudence 7. Suzanne Ost, The Medical Professional as Special before the Criminal Law In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.0015

292  Criminality at Work academic interest in what has been described as the criminal law’s extending intervention into health care matters, its policing of professional norms.7 This chapter takes the existing literature forward and contributes to this volume by addressing two central questions. First, can we view the criminal law’s treatment of doctors as special because their professional role exempts them from criminal culpability (ie a defence to certain offences is required in order to enable doctors to perform their professional responsibilities)? Or do doctors receive special treatment under the criminal law because their profession enables them to commit certain crimes (ie their professional role offers an opportunity for doctors to perpetrate serious wrongs related to a breach of trust), and/​or medical practice attracts criminalization because of concerns related to protecting public health and safety, or morality? In other words, are doctors treated as special by the criminal law either because their professional role exculpates them, or attracts criminal liability, or is it actually both? The answer to this question may reveal that the medical profession is an example of a relatively autonomous category of personal work relations that, in some significant respects, is dealt with in a unique way by the criminal law. On this matter, the significance of the public interest cannot be underestimated. And secondly, is any such special attention appropriate? In particular, what is it about the doctor–​patient relationship that justifies special treatment by the criminal law?

B.  The Criminal Law and the Doctor’s Exculpatory and Influential Professional Role  . . .courts have striven to exculpate doctors for decisions taken in medical contexts which would probably, in almost all other situations, lead to the imposition of criminal liability.8 There are numerous judicial and other authoritative references to medical professionals being exempt from criminal responsibility for an offence under the Offences Against the Person Act 1861 (OAPA 1861),9 a ‘medical exception’ that has existed since the late nineteenth century.10 The exception functions and is justified on the grounds of public policy11 in instances such as an emergency situation, where a doctor operates upon a patient knowing that there is a grave risk of death, but it is considered reasonable for her to do so,12 or where the patient consents to a medical procedure that constitutes ‘good medical practice’ or ‘proper medical treatment’.13 As Lewis has observed, such references to professional 7 Charles Erin and Suzanne Ost (eds), The Criminal Justice System and Health Care (OUP 2007); Amel Alghrani, Rebecca Bennett, and Suzanne Ost (eds), The Criminal Law and Bioethical Conflict—​Walking the Tightrope (CUP 2012); Margaret Brazier and Suzanne Ost, Medicine and Bioethics in the ‘Theatre’ of the Criminal Process (CUP 2013); Danielle Griffiths and Andrew Sanders, Medicine, Crime and Society (CUP 2013). 8 Andrew Ashworth, ‘Criminal Liability in a Medical Context: The Treatment of Good Intentions’ in Andrew Simester and Anthony Smith (eds), Harm and Culpability (Clarendon 1996) 173, 192. 9 Such as wounding with intent to do grievous bodily harm (GBH) (s 18); inflicting GBH (s 20); and causing actual bodily harm (ABH) (s 47). 10 Penney Lewis, ‘The Medical Exception’ (2012) 65 Current Legal Problems 355, 356. 11 Attorney General’s Reference (No 6 of 1980) [1981] QB 715, 719 (HL); ibid 357. 12 See, for instance, Criminal Law Revision Committee, 14th Report: Offences Against the Person (Cmnd 7844, 1980) 8 (cited in Ashworth (n 8) 176). 13 R v Brown [1994] AC 212, 258 (HL); Airedale Trust v Bland [1993] AC 789, 891 (HL); Attorney General’s Reference (No 6 of 1980) (n 11). On what constitutes ‘proper medical treatment’, see also Margaret Brazier and

The Medical Professional as Special  293 practice are indicative of a professionally focused justification for a medical exception to criminal liability.14 The recent case of R v BM15 testifies to the restricted availability of this exception to the performance of medical procedures, by those in possession of medical qualifications, for a medical reason. Alongside this medical exception to an offence against the person, certain defences to criminal offences are only available to doctors. Consider, for example, the statutory defence to the crimes of procuring a miscarriage and child destruction.16 The Abortion Act 1967 (AA 1967) offers a defence to a registered medical practitioner who performs an abortion provided that two medical professionals are of the opinion, formed in good faith, that one of the lawful grounds for an abortion is met.17 Notably, in order to secure the liberalization of abortion laws in the 1960s, abortion had to be medicalized to justify its occurrence in certain defined circumstances.18 With this medicalization came the need to give doctors the reassurance of non-​prosecution, provided they followed the procedural requirements and acted in good faith.19 As a further example of an exclusive defence, a more ‘concealed’20 defence is seemingly available to medical professionals under the common law when they administer certain pain-​alleviating drugs that can hasten death at the end of life. Perhaps loosely based on the philosophical doctrine of double effect,21 the development of this defence can be traced back to Devlin J’s direction to the jury in Adams:22 If the first purpose of medicine—​the restoration of health—​can no longer be achieved, there is still much for a doctor to do, and he is entitled to do all that is proper and necessary to relieve pain and suffering, even if measures he takes may incidentally shorten life . . .23 [P]‌roper medical treatment that is administered and that has an incidental effect of determining the exact moment of death, or may have, is not the cause of death in any sensible use of the term.24

Sara Fovargue, ‘Transforming Wrong into Right: What is “Proper Medical Treatment?” ’ in Sara Fovargue and Alexandra Mullock (eds), The Legitimacy of Medical Treatment: What Role for the Medical Exception? (Routledge 2015) 12, 16–​30; and see Lewis (n 10). 14 Lewis (n 10) 362. See also Lord Mustill in R v Brown (n 13) 266: ‘. . . proper medical treatment, for which actual or deemed consent is a prerequisite, is in a category of its own’. Albeit beyond the scope of this chapter, there is an interesting question as to whether the medical exception might be more appropriately conceived of as a defence of justification or excuse. Persuasive arguments for it being the former are provided in Glenys Williams, Intention and Causation in Medical Non-​Killing: the Impact of Criminal Law Concepts on Euthanasia and Assisted Suicide (Routledge 2007) 186–​87. See also Peter Skegg, ‘Medical Procedures and the Crime of Battery’ [1974] Criminal Law Review 693, 696. 15 [2018] EWCA Crim 560, [2018] 3 WLR 883 [45]. 16 Under the OAPA 1861, s 59 and the Infant Life Preservation Act 1929, s 1. 17 Under the AA 1967, s 1(1). On other health care professionals’ involvement in abortions, see RCN v DHSS [1981] 1 All ER 545 (HL): the doctor should take ultimate responsibility for all stages of the abortion, even if some stages are carried out by other health care professionals. See also the later discussion in the concluding section. 18 Sally Sheldon, ‘The Law of Abortion and the Politics of Medicalization’ in Jo Bridgeman and Susan Millns (eds), Law and Body Politics: Regulating the Female Body (Aldershot 1995) 105. 19 Sheelagh McGuinness and Michael Thomson, ‘Medicine and Abortion:  Complicating the Reforming Profession’ (2015) 23 Medical Law Review 177, 182, 188. 20 Ashworth (n 8) 183. 21 See Brazier and Ost, Medicine and Bioethics (n 7) 138. 22 R v Adams [1957] Crim LR 365. 23 ibid 375. 24 As quoted in Glanville Williams, The Sanctity of Life and the Criminal Law (Faber and Faber 1957) 289.

294  Criminality at Work Similar statements of legal principle have appeared in subsequent directions to juries,25 and the existence of this ‘established rule’ was recognized by the House of Lords in Airedale NHS Trust v Bland.26 The application of the label of ‘proper medical treatment’ to a situation where a doctor acts to relieve suffering by administering an analgesic drug that can also have a death-​hastening effect offers a means of avoiding criminal liability that flies in the face of the criminal law’s ‘standard approaches to either causation or intention’.27 And it appears to be the doctor’s acting in accordance with good medical practice which allows this marked step outside the usual strictures of the criminal law,28 although the defence’s ambiguity leaves the exact nature of the reason for exoneration to judicial discretion.29 Looking next to the interpretation of the criminal law, medicalization has resulted in the medical profession having significant influence on the judicial interpretation of aspects of the criminal law when applied to procedures that are, or might be, medical. In the aforementioned BM case, the defendant was a tattooist who, with his customers’ consent, performed surgical body modification procedures (the removal of an ear, a nipple, and tongue splitting). The facts of the case presented the courts with a novel situation which was not a stated exception to the general rule that consent is no defence to a charge of assault occasioning actual bodily harm (ABH).30 If the procedures were akin to body adornment, such as ear piercing or tattooing, then they could have fallen under an accepted non-​medical procedure for which consent is recognized to negate criminal activity. Alternatively, the medical exception would apply if: • they amounted to medical procedures carried out by a suitably qualified doctor; or • they were carried out by a suitably qualified doctor, even if they are not recognized as procedures carried out on the grounds of health (such as cosmetic surgery).31 The appellant had no medical qualifications; thus, he could not be considered to be a qualified doctor. His counsel contended that the procedures were akin to body adornment, ‘a natural extension of tattooing and piercing, the last of which involves wounding by breaking the skin . . .’.32 However, the Court of Appeal judges turned to doctors to assess the nature of the procedures and the expert medical opinion was influential in shaping the judicial conclusion that the procedures were surgical with risk and, therefore, outside of the exceptions to the general rule that consent cannot offer a defence. According to the Court, it would have been a step too far to allow body modification to be an exception to the general rule.33 There are reasons to be critical of this conclusion. As the Court observed, male circumcision is a recognized exception,34 and parallels can be drawn between this and body modification 25 For example, Ognall J in R v Cox (1992) 12 BMLR 38, and Hooper J in R v Moor [2000] Crim LR 31. 26 Airedale NHS Trust v Bland (n 13) 867 (Lord Goff). 27 Ashworth (n 8) 174. 28 See also Patrick Devlin, Samples of Lawmaking (OUP 1962) 95. 29 Ashworth (n 8) 183. Proper medical treatment, causation, and primary intent have each appeared to be the focal point(s) in various cases. See Brazier and Ost, Medicine and Bioethics (n 7) 137–​44. 30 OAPA 1861, s 47. 31 See Danielle Griffiths and Alexandra Mullock, ‘The Medical Exception and Cosmetic Surgery:  Culpable Doctors and Harmful Enhancement?’ in Fovargue and Mullock, Legitimacy of Medical Treatment (n 13) 105. 32 R v BM (n 15) [34]. 33 ibid [45]. 34 ibid [39]: ‘. . . there is a need to reflect the general values of society which have long accepted tattooing and piercing (not just of ears) as acceptable, along with things such as ritual circumcision [and] sports . . .’.

The Medical Professional as Special  295 procedures. It tends to be traditional practitioners rather than medical qualified professionals who carry out circumcisions on older boys and infants, many circumcisions are not carried out on health grounds but on religious and cultural grounds, they involve risks such as haemorrhaging and ulceration of the penis, and it is certainly arguable that this procedure also causes ABH.35 Since circumcision falls outside the medical exception but it is lawful on the grounds of social benefit, why should body modification be treated differently, and on the basis of medical opinion? The judicial reliance on doctors’ opinions in BM would seem to fly in the face of statements made in various arenas that, more broadly, medical practice and the profession should not be the final arbiter regarding the lawfulness of a (doctor’s) course of conduct.36 This statement may also be subject to challenge by Quick’s findings in the context of ‘medical manslaughter’ that medical experts are given ‘considerable freedom when evaluating the conduct of the accused and developed their own working rules or guidelines for assessing gross negligence’.37 As an additional example here, certain aspects of the statutory criteria that form the necessary elements of the defence available to doctors under the AA 1967 are elucidated by professional guidance. Take the ground that permits abortion when ‘there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped’.38 Whilst the statute is silent on what constitutes a ‘substantial risk’ or a ‘serious handicap’, guidance from the Royal College of Obstetricians and Gynaecologists’ (RCOG) advises doctors on the factors that should be considered on both matters.39 Arguably, then, the medical profession shapes the scope of these crucial aspects of the defence offered under the ‘foetal abnormality’ ground; indeed, it would be difficult to claim that doctors who have complied with this guidance and have sought advice from ‘appropriate specialists’ have not acted in good faith.40 Thus whilst remaining a criminal offence on the one hand, on the other, abortion is perceived to amount to ‘proper medical treatment’ when carried out by a doctor in defined circumstances,41 albeit that its construction as both continues to court controversy.42 35 Marie Fox and Michael Thomson, ‘Short Changed? The Law and Ethics of Male Circumcision’ (2005) 13 International Journal of Children’s Rights 161; Brazier and Ost, Medicine and Bioethics (n 7) 51–​52. 36 Such as R v Arthur (1981) 12 BMLR 1, 17; Law Commission, Involuntary Manslaughter (Law Com CP No 135, 1994) [5.61]. 37 Oliver Quick, ‘Medical Manslaughter and Expert Evidence: The Roles of Context and Character’ in Griffiths and Sanders, Medicine Crime and Society (n 7) 101, 103. 38 AA 1967, s 1(1)(d). 39 On substantial risk: ‘[w]‌hether a risk is substantial depends upon factors such as the nature and severity of the condition and the timing of diagnosis, as well as the likelihood of the event occurring’, and on what constitutes a serious handicap: ‘the potential for effective treatment, either in utero or after birth; on the part of the child, the probable degree of self-​awareness and of ability to communicate with others; the suffering that would be experienced; the probability of being able to live alone and to be self-​supportive as an adult; on the part of society, the extent to which actions performed by individuals without disability that are essential for health would have to be provided by others’. RCOG, Termination of Pregnancy for Fetal Abnormality in England, Scotland and Wales: Report of a Working Party (RCOG 2010) 8, 9. 40 ibid 9. 41 On which, see Mary Neal, ‘Locating Abortion on the Spectrum of “Proper Medical Treatment” in Fovargue and Mullock, Legitimacy of Medical Treatment (n 13) 124, 133-​41. 42 For critique of the continuing criminalization of abortion, see Sally Sheldon, ‘The Decriminalization of Abortion: an Argument for Modernization’ (2015) 36 Oxford Journal of Legal Studies 334. A more specific example regarding abortion as ‘proper medical treatment’ centres on the question of whether abortion can be conceived as such in order to terminate a pregnancy under the foetal abnormality ground. This question has been the subject of much debate, as has medical professionals’ interpretation of what constitutes a ‘serious handicap’. See Jepson v Chief Constable of West Mercia Police Constabulary [2003] EWHC 3318, [2003] 12 WLUK 12; Sheelagh McGuinness, ‘Law, Reproduction, and Disability: Fatally “Handicapped”?’ (2013) 21 Medical Law Review 213.

296  Criminality at Work Thus, mirroring earlier observations within this book, the way in which the criminal law is applied and judicial interpretation play crucial roles in shaping its effect on those working within the medical profession. Particularly, this takes the form of judicial recognition of the medical exception to offences against the person for public policy reasons, the judicial construct of ‘proper medical treatment’, and exclusive defences available in the context of abortion and treatment at the end of life. What is also notable, however, is that the medical profession itself plays a central role in defining the contours of criminal liability that doctors (and sometimes others) are subject to, due to a certain willingness to allow the applicability of certain aspects of the criminal law to be influenced by medical opinion and elucidated by professional medical practice. In sum, it appears that doctors have little to fear from the criminal law provided they comply with responsible medical practice and act in ‘good faith’.43

C.  The Particular Criminal Liability that the Doctor’s Professional Role Attracts The preceding analysis suggests that the doctor is in a privileged position when the criminal law looms over her medical practice. But this is to see only one part of the picture. A different light is cast on the doctor’s position when we explore the fact that numerous crimes are targeted specifically at medical practice, including both mala in se and mala prohibita crimes. Mala in se crime is considered to be wrong in and of itself, outwith its criminal label. An obvious example in medical practice would be that given earlier: the removal of a patient’s organ without consent.44 A further example could be the more recent criminalization of the ill-​treatment or wilful neglect of a person by a health care worker.45 In contrast, the wrongfulness of a mala prohibita crime, often a regulatory offence designed to protect public health and safety, is derived from its criminalization.46 On the face of it, there are numerous mala prohibita crimes seemingly designed to protect public safety that can be committed through medical practice. One example could be the crimes of creating and using an embryo without a licence granted by the Human Fertilisation and Embryology Authority as an aspect of the statutory regulation of assisted reproduction and embryonic research.47 43 There is much more that could be said here on whether a distinctive relational interaction exists between judges and doctors because of the real likelihood that many doctors and judges are drawn from the same social and economic circles. It is worth noting that the traditional scepticism of working people who encounter the courts does not translate easily into this context (a scepticism acknowledged in the classic labour law statement of Scrutton LJ, in which he expressed the working person’s view that ‘[Judges] all move in the same circle as the employers, and they are all educated and nursed in the same idea as the employers. How can [a working person] get impartial justice?’ (Thomas E Scrutton, ‘The Work of the Commercial Courts’ (1921) 1 Cambridge Law Journal 6, 8, as referenced by Lord Wedderburn, The Worker and the Law (3rd edn, Penguin 1986) 33). See also the chapter in this volume by Lydia Hayes on the parallel treatment of care workers in the criminal law. 44 Constituting an assault under common law and an offence under Human Tissue Act 2004 (HTA 2004), s 5 when removed from a deceased person without (appropriate) consent. Note the addition of ‘deemed consent’ under the law in England by virtue of the Organ Donation (Deemed Consent) Act 2019, s 1, from spring 2020. 45 Criminal Justice and Courts Act 2015, s 20. This offence also applies to individuals providing social care. I note that this mala in se conceptualization might be contested by authors who construe this offence as a form of criminal labour discipline for poorly paid and overworked workers in the contemporary context of austerity and the underinvestment in social care. Thanks to Alan Bogg for this observation. 46 Antony Duff, Answering for Crime (Hart 2007) 90–​92, 173(hereafter Duff, Answering for Crime). 47 Human Fertilisation and Embryology Act 1990 (hereafter HFEAct 1990), s 41.

The Medical Professional as Special  297 There are health concerns posed to women seeking IVF, for instance, such as ovarian hyper-​ stimulation and the increased likelihood of multiple births, which criminalization of non-​ licensed treatment could address. A more critical appraisal of the grounds for criminalization, however, may peel away apparently regulatory and utilitarian-​based concerns to uncover concerns founded in morality, and the appeasement of slippery slope fears that a less strict regulatory approach could lead to the availability of fertility treatment ‘on demand’ and scientists ‘playing God’.48 As will now be discussed, for each of the examples given above, there was a public interest beyond that of public safety which demanded criminalization. Duff reminds us that in order for wrongful behaviour to be criminalized, there must be a sufficient public interest to criminalize the wrong in question49 and the required seriousness of that wrong must be high, given the grave repercussions for the accused upon a guilty plea or conviction. Considering his first requirement, the particular statutory offence of removing, retaining, or using ‘relevant material’ from a deceased person’s body came in the wake of great public concern and moral outrage surrounding the retained organs scandals in the late 1990s and early 2000s.50 Similarly, the offence regarding the ill-​treatment and wilful neglect of another by a care worker was created following highly publicized scandals such as that involving the callous indifference shown to patients’ welfare by health care professionals at the Mid Staffordshire NHS Trust.51 The genesis of the HFEAct 1990 lay in the report of the Warnock Committee, which itself was established to consider the legal, social, and ethical implications of medical and scientific developments regarding human fertilization and embryology.52 The rapid progression of the research and treatment in this area in the late 1970s and early 1980s without regulation gave rise to public unease, to fears of doctors and scientists ‘playing God’, and to concerns that certain barriers should not be crossed.53 Under the legislation subsequently enacted, the underscoring of moral lines by criminalization is illustrated by other offences that the crime regarding unlicensed treatment sits alongside, offences that prohibit the keeping or use of an embryo beyond fourteen days after its creation, the placing in a woman of a non-​human embryo, and (subsequently) reproductive cloning.54 And it was a public interest concern in the potential exploitation of women prepared to act as surrogate mothers that was provided for the Warnock Committee’s recommendation that commercial surrogacy be criminalized, and that

48 Mary Warnock (Chair), Report of the Committee of Inquiry into Human Fertilisation and Embryology (Cmnd 9314, 1984) [11.27]. 49 See generally Duff, Answering for Crime (n 46). 50 At the Bristol Royal Infirmary and the Alder Hey Children’s Hospital in Liverpool. See Retained Organs Commission, Remembering the Past: Looking to the Future: The Final Report of the Retained Organs Commission (Department of Health 2004). 51 Mid Staffordshire NHS Foundation Trust Inquiry, Independent Inquiry into Care Provided by Mid Staffordshire NHS Foundation Trust January 2005–​March 2009 (HMSO 2010). 52 Warnock, Report (n 48). 53 ‘What is common (and this too we have discovered from the evidence) is that people generally want some principles or other to govern the development and use of the new techniques. There must be some barriers that are not to be crossed, some limits fixed, beyond which people must not be allowed to go.’ Warnock, Report (n 48) 2[5]‌. 54 HFEAct 1990, s 41. Reproductive cloning is prohibited since an embryo created by cloning is not a ‘permitted embryo’, and the Act prohibits the placing in any woman of any embryo other than a permitted embryo. It was concerns that reproductive cloning was unregulated due to a gap in the original legislation (see R (on the application of Quintavalle) v Secretary of State for Health [2001] 4 All ER 1013) that led to the enactment of the Human Reproductive Cloning Act 2001, which criminalized reproductive cloning and was then superseded by the amendments to the HFEAct 1990 brought about by the Human Fertilisation and Embryology Act 2008.

298  Criminality at Work . . .  the legislation be sufficiently wide to render criminally liable the actions of professionals . . . who knowingly assist in the establishment of a surrogate pregnancy [on a commercial basis].55

Each of these examples thus illustrates a public interest in favour of regulating certain aspects of medical practice via the criminal law embedded in something more than (just) public health and safety. Although not an offence targeted specifically at the medical profession, the application of the offence of gross negligence manslaughter (GNM) to doctors (‘medical manslaughter’) raises important public interest issues both for and against invoking the criminal law which are worthy of note here. The offence applies to anyone who causes death through a grossly negligent act, with the seminal case of Adomako involving an anaesthetist who failed to notice for over four minutes that the tube carrying oxygen to the patient during an operation had become disconnected.56 The first public interest argument in favour of prosecuting doctors for GNM rests upon a rule-​of-​law-​based rationale: that in a society in which causing another’s death through grossly negligent conduct is deemed grave enough to constitute a criminal wrong, the law should apply to all and all should be equal before the law. It was the general view that Dr Adomako’s standard of care was abysmal and his breach of duty was grossly negligent,57 and thus it was surely right that he faced the same penal consequences as anyone else who causes death through acting in a way that amounted to a grossly negligent breach of duty.58 The second public interest ground in support of prosecuting doctors for GNM relates to trust, that is, the public’s trust in the medical profession. Grievous mistakes can seriously erode this trust and doctors who cause or significantly contribute to a patient’s death through gross negligence should face the consequences of criminal prosecution. The prosecution of other doctors for GNM, however, has attracted concerns that doctors are being targeted unfairly,59 that we are failing to take account of the nature of a medical professional’s job and the risks she takes for socially beneficial reasons,60 and that causing doctors to fear the criminal law endangers patient safety.61 Notably, for instance, the convictions of junior doctors Prentice and Sullman who injected the drug vincristine into a 55 Warnock, Report (n 48) 46–​47, [8.18]. This is an offence under the Surrogacy Arrangements Act 1985, s 2. The legislature can hardly be accused of hasty reactionism in its response to assisted reproduction: following the establishment of the Warnock Committee in 1982 and the publication of the Committee’s Report in 1984, the government’s response was the publication of a white paper in 1987 (Human Fertilisation and Embryology: a Framework for Legislation (Cm 259, 1987), with the HFEAct 1990 being enacted after a further three years. In contrast, the HTA 2004 may be an example of the ill-​thought-​out reactionary criminal regulation of medical practice in response to a high-​profile scandal on which emotions ran high (see Brazier and Ost, Medicine and Bioethics (n 7) 57). 56 R v Adomako [1995] 1 AC 171 (HL). 57 Although cf Peter Gooderham and Brian Toft, ‘Involuntary Automacity and Medical Manslaughter’ in Griffiths and Sanders, Medicine Crime and Society (n 7) 177, 185. 58 ‘The law is that anybody who causes the death of anyone else—​it does not only apply to a doctor, it applies to motor drivers, railway men, or signalmen, to a number of people—​is criminally responsible.’ (R v Bateman [1925] All ER 45 (Shearman J’s direction to the jury); Michael Devlin, ‘Medical Manslaughter: When an Error Becomes a Crime’ (2010) 26 Medical Defence Union Journal 7, 7. 59 Robin Ferner and Sarah McDowell, ‘Doctors Charged with Manslaughter in the Course of Medical Practice, 1795–​2005: a Literature Review’ (2006) 99 Journal of the Royal Society of Medicine 309. 60 David Archard, ‘Criminalizing Medical Negligence’ in Alghrani, Bennett, and Ost, Criminal Law and Bioethical Conflict (n 7) 236, 245 . I return to these matters in the following section. 61 Brazier and Ost, Medicine and Bioethics (n 7)  73; Oliver Quick, Regulating Patient Safety:  The End of Professional Dominance (CUP 2017) 108.

The Medical Professional as Special  299 patient’s spine with fatal results, were quashed by the Court of Appeal. The Court held that the judge’s failure to direct the jury to consider systemic failings (such as the absence of: consultant supervision over an inexperienced doctor’s provision of treatment; a data chart for cytotoxic drugs; and a senior nurse) and miscommunication between the two doctors, went to the issue of Prentice and Sullman’s personal culpability.62 Public interest concerns have been epitomized most recently in Dr Bawa-​Garba’s prosecution for GNM. A junior paediatrician, in 2015, she was convicted of the GNM of a six-​year-​old boy who died eleven hours after being admitted to hospital, having developed sepsis due to pneumonia and then suffered a cardiac arrest. Bawa-​Garba had misdiagnosed the boy’s condition as being caused by gastro-​enteritis rather than septic shock, had failed to properly reassess him, and did not seek advice from a consultant.63 On the day in question, she had been deployed to the Children’s Assessment Unit unexpectedly, having just returned from maternity leave. Not only was she responsible for the CAU, but also the emergency department and a ward.64 She had been working a double shift of twelve to thirteen hours and the hospital’s IT system was down, meaning that she only received Jack’s blood test results five and a half hours after ordering the tests.65 Alongside a series of failings by medical staff, including Bawa-​Garba,66 there were numerous system failures at the hospital. The Trust’s investigation into the incident found various root causes for Jack’s death, including: • the failure of ‘medical staff to understand and communicate the significance of abnormal blood results’ related to IT system failures; • the failure of ‘nursing staff to recognize the significance of abnormal observations and record and monitor according to clinical need’; • ‘ambiguity of the observation and escalation tools in use’ in the hospital; and • ‘poor communication of clinical condition between staff because of an absence of effective systems for handover’.67 Although her application for permission to appeal against her conviction for GNM was refused,68 subsequent crowdfunding for Dr Bawa-​Garba enabled a successful application to challenge a High Court ruling to erase her name from the Medical Register,69 which has recently resulted in a successful appeal to the Court of Appeal and her reinstatement on the Register.70

62 R v Prentice [1993] 4 All ER 935 CA. cf R v Misra [2004] EWCA Crim 2375, [2004] 10 WLUK 232, in which two junior doctors were unsuccessful in their appeals against conviction for GNM. Their employing Trust was later successfully prosecuted for a health and safety offence related to the way in which junior doctors were supervised. 63 R v Bawa-​Garba [2016] EWCA Crim 1841. She had also mistaken the boy for another patient for whom there was a ‘do-​not resuscitate’ order in place and had thus halted the administration of life-​saving treatment for about a minute until the error was realized and treatment recommenced. This error was accepted to have had no causative impact. 64 General Medical Council v Bawa-​Garba [2018] EWHC 76 (Admin), [2018] 4 WLR 44. 65 R v Bawa-​Garba (n 63) [4]‌–​[18]. 66 Two nurses were also prosecuted for GNM. One was acquitted, the other convicted. 67 University Hospitals of Leicester NHS Trust, Investigation Report, Incident Report Form ref no W65737, STEIS log no 2011/​3518  accessed 15 November 2018. 68 R v Bawa-​Garba (n 63). 69 Deborah Cohen, ‘Bawa-​Garba Granted Court of Appeal Challenge against Erasure Ruling’ British Medical Journal (29 March 2018) accessed 15 November 2018. 70 Bawa-​Garba v GMC [2018] EWCA Civ 1879, [2019] 1 WLR 1929.

300  Criminality at Work The rationale for this crowdfunding71 and a primary public interest argument against her prosecution is reflected in the statement in the motion passed unanimously by the Royal College of Paediatrics and Child Health’s annual general meeting in 2018 that:  ‘. . .  the ­criminal prosecution of dedicated doctors for gross negligence manslaughter, following ­systemic errors, impairs the advancement of safe healthcare for patients’.72 The GNM example i­llustrates that, in weighing up whether criminalization of doctors is in the public interest, contextualization and awareness of the environment in which doctors perform their duties is key.73 Returning to Duff ’s second requirement—​that the seriousness of the wrong must be high—​the wrong of particular crimes can be exacerbated when the perpetrator has acted in their capacity as a medical professional.74 Undoubtedly, this is because of the breach of trust (both concerning the patient who is the victim, and the public). The most obvious example is that of GP Harold Shipman’s killing of vulnerable, elderly patients. Although convicted for murdering fifteen of his patients, reports estimate that the actual number of patients whom he murdered was between 215 and 260.75 Dame Janet Smith, Chairperson of the Shipman Inquiry, commented that ‘. . . Shipman was trusted implicitly by his patients and their families. He betrayed their trust in a way and to an extent that I believe is unparalleled in history.’76 Cases involving the sexual exploitation of patients are also pertinent here; given their relationship of unequal power, when the doctor’s exploitation of his patient is of a sexual nature, this serves to render the abuse of trust especially serious.77 According to the official Kerr/​Haslam Inquiry into two psychiatrists’ sexual exploitation of numerous patients in the UK, ‘[i]‌n most if not all cases, the effect upon the women of the breach of trust that occurred has been devastating.’78 A final example here is that of Dr Bramhall, a surgeon who recently pled guilty to the offence of common assault by beating79 having branded his initials on the livers of two patients during transplantation surgery with an argon gas coagulator.80 The prosecutor in Bramhall’s case presented the surgeon’s behaviour as especially wrongful because it was an abuse of trust carried out with disregard for the feelings of unconscious patients.81 I return to this case, and its implications for the question of whether the regulation of medical professionals’ conduct via the criminal law is appropriate, below. 71 Moosa Qureshi, James Haddock, and Chris Day, ‘Independent Legal Opinion on Dr Bawa-​Garba Case’ Crowd Justice accessed 15 November 2018. 72 Ingrid Torjesen, ‘Paediatricians Condemn Treatment of Bawa-​Garba’ British Medical Journal (16 March 2018) accessed 15 November 2018. I return to the implications of this case in the concluding section. On the use of professional disciplinary processes as one alternative to criminal prosecution, see Oliver Quick, Regulating Patient Safety: the End of Professional Dominance? (CUP 2017) ch 4. 73 See also Ash Samanta and Jo Samanta, ‘Gross Negligence Manslaughter and Doctors:  Ethical Concerns Following the Case of Dr Bawa-​Garba’ (2019) 45 Journal of Medical Ethics 10. 74 On criminal wrongs being defined as such because of their institutional setting and meaning, see Antony Duff and others (eds), Criminalization: the Political Morality of the Criminal Law (OUP 2015) 21. 75 Smith, Disguising Death (n 3) 179. 76 ibid 201. 77 David Archard, ‘Exploited Consent’ (1994) 25  Journal of Social Philosophy 92, 99. 78 Department of Health, The Kerr/​Haslam Inquiry: Full Report (Cm 6640, 2005) 4. 79 Under the Criminal Justice Act 1988, s 39; DPP v Little (1992) 1 All ER 299. 80 See Matthew Cooper, ‘Simon Bramhall: Surgeon who Marked his Initials on Two Patients’ Livers Admits Assault by Beating’ The Independent (London, 13 December 2017) accessed 5 August 2019; Suzanne Ost, ‘Drs Bramhall and Bawa-​Garba and the Rightful Domain of the Criminal Law’ (2018) 45 Journal of Medical Ethics 151. 81 R v Bramhall Trial Transcript, 13 December 2017.

The Medical Professional as Special  301 Medical practice therefore demands the special attention of the criminal law, and the public interest to this end is wedded to: • public health and safety (such as the offence regarding unlicensed treatment under the HFEAct 1990); • morality and the need to counteract the power bestowed upon the medical professional with appropriate accountability (as with the other HFEAct 1990 offences); • the need to address serious wrongs exacerbated by the doctor’s breach of trust, especially in the wake of scandals where the public demands that there be criminal accountability for what are deemed to be serious wrongs (as reflected in the HTA and wilful neglect offences, and cases involving doctors who have committed crimes that violate the ethos of the doctor–​patient relationship, such as Shipman, Kerr, Haslam, and Bramhall) At the same time, the current controversy surrounding the application of GNM to doctors suggests that the public interest in invoking the criminal law is shaped by contemporary culture, and a desire to lay the blame at a particular person’s feet that runs the risk of neglecting the larger environmental context in which doctors work. Indeed, this controversy may also evidence the way in which the criminal law can be used as a politically convenient tool that obscures these structural economic factors by framing the narrative around individual blameworthiness.82

D.  Arguments Supporting the Criminal Law’s Special Treatment Having made the case that medical professionals are treated in a ‘special’ way by the criminal law and highlighting the significance of the public interest, in this section, I set out three justifications for special treatment.

1.  Providing Doctors with Special Protection from the Criminal Law is Appropriate Because of the Nature of their Professional Role The beneficial role that medical professionals serve to society demands that a ‘judgment of social value’ be made, through which the point for criminal responsibility is set by assessing the nature of the act and the risk involved:83 doctors require a medical exemption for what would, outside of the medical context, amount to battery or assault. Moreover, especially in specialities such as accident and emergency and cardiology, doctors face the risk of causing harm and death to others on a daily basis, a frequency of risk that those in other professions do not encounter.84 Without this protection from prosecution for doing what is a necessary and fundamental part of their role in these specialities, there is a real danger that medical students and trainees would be discouraged from entering into such high-​risk specialities.

82

Thanks to Alan Bogg for this observation. Ashworth (n 8) 176. 84 Archard, ‘Criminalizing Medical Negligence’ (n 60) 245, 247. 83

302  Criminality at Work

2.  The Special Attention of the Criminal Law is Required to Protect Patients Because of the Nature of the Doctor–​Patient Relationship The scope of the medical exception and defences available exclusively to the medical profession must be carefully controlled. Otherwise, because the medical exception is a professionally focused justification, its existence and accepted legitimacy could engender a position whereby, effectively, the medical profession itself decides what medical behaviour should fall within and outwith the criminal law.85 What is more, the significance attached to medical opinion in the case of BM should alert us to the potential power that doctors can exert over the question of whether procedures and treatment are ‘medical’ for criminal law purposes. Within the context of the doctor–​patient relationship, patients require the criminal law’s protection because of their less powerful position in the doctor–​patient relationship. In some respects, this mirrors the situation faced by workers in the employer–​employee labour context: patients are the weaker party in a relationship of unequal power; they are vulnerable because of this weaker position, but also because of their ill-​health; and their reliance upon the doctor means that their trust can be abused.86

3.  The Special Attention of the Criminal Law is Required to Address What are Perceived to be Both Private and Public Wrongs Special responsibilities are assigned to doctors. As a society and as individual patients, we trust that doctors act for the good of their patients—​and under the contemporary model of health care this involves respecting their autonomy and values—​and that they will perform that role professionally.87 Moreover, the ethics of relationships between doctors and patients . . . are intrinsically on a deontological footing—​they are about how one person should treat another . . . In [the deontological] ethic the patient is an end in themselves, and not a means towards anything else.88

This is reflected in the preamble to the GMC’s Good Medical Practice: ‘[y]‌ou must make care of the patient your first concern’.89 The guidance goes on to state that ‘[g]ood doctors work in partnership with patients and respect their rights to privacy and dignity. They treat each patient as an individual.’90 It is a private wrong to the patient when the doctor fails to respect this deontological ethic.

85 And ‘[i]‌f (to put it crudely) the medical profession can resolve that a medical procedure is lawful, why not simply accept that the criminal law should not apply to medical procedures . . .?’ Lewis (n 10) 370. 86 As an aside, it is also worth highlighting the power asymmetries within medical employment, between senior and junior doctors. See, eg, Sophie Crowe, Nicholas Clarke, and Ruairi Brugha, ‘ “You Do Not Cross Them”: Hierarchy and Emotion in Doctors’ Narratives of Power Relations in Specialist Training’ (2017) 186 Social Science & Medicine 70. 87 Biggs and Ost, Exploitation (n 1) ch 3, s 3. 88 Gerard Garbutt and Peter Davies, ‘Should the Practice of Medicine be a Deontological or Utilitarian Enterprise?’ (2011) 37 Journal of Medical Ethics 267, 267–​68. 89 GMC, Good Medical Practice (GMC 2013). 90 ibid 4(2).

The Medical Professional as Special  303 According to Duff, a private wrong also amounts to a public wrong that warrants the criminal law’s intervention when it contravenes defining societal values that the state endeavours to safeguard to ensure the good of its citizens, thereby causing it to be a wrong that should concern all in society.91 There are stark examples where using the censure of criminal law to send out a message that behaviour will not be tolerated because it constitutes both a private wrong to the patient and a public wrong is surely appropriate, such as the afore-​discussed examples of taking organs without consent and the ill-​treatment of patients. Doctors who behave in such a way perpetrate a harm upon the patient that we should all rightly feel aggrieved by. They may also cause harm to society if patients do not see an appropriate penal response being taken. For patients may consequently fear that there is insufficient deterrent to prevent other doctors from acting in the same way and thus be reluctant to be an organ donor, for example, or to go into hospital. At the same time, there are greyer areas. To return to the example of Dr Bramhall, who branded his initials on patients’ organs, a fellow surgeon raised the question whether the law is not ‘making an ass of itself in judging his actions to be criminal’?92 In this surgeon’s view, what Bramhall did was ‘very silly’ and bringing public attention to his actions by criminalizing his behaviour was likely to do more harm than good regarding public trust in the profession and the profession’s trust in society. This clearly contrasts with the prosecutor’s view, noted above, that Bramhall committed an abuse of trust carried out with disregard for unconscious patients’ feelings. And it was a violation of dignity that was emphasized in a comment from a spokesperson for Patient Concern, a patients’ rights advocacy group: ‘[t]‌his is a patient we are talking about, not an autograph book’.93 It is because of the nature of the doctor–​patient relationship, and the fundamental duty that lies at the heart of this relationship, that I agree with these latter views and contend that criminalization was indeed appropriate in this case. Although Bramhall caused only temporary, trivial damage to the surface of both patients’ livers, his actions led to one patient suffering psychological harm. Whilst not because of any negligence, her liver transplant failed, and she could not shake the belief that this was because of Bramhall’s actions. She was receiving counselling, had been unable to return to work, and her victim impact statement revealed that her trust in doctors had been ‘destroyed’.94 In contrast, there was ‘no evidence of any adverse emotional impact’ in the case of the second patient.95 But even if the more serious harm had not been caused to the first patient, Bramhall committed wrongs against his patients’ interests in dignity and autonomy. Some actions can be so contrary to a doctor’s fundamental negative role-​based obligations neither to breach the patient’s trust, nor to act out of self-​interest,96 that there is a public interest in criminalization even where there is no lasting, serious harm. The censure of the criminal law is used rightly to send out the message that such behaviour will not be tolerated because it is both a private wrong to the patient and 91 Duff, Answering for Crime (n 46) 140–​46. 92 Henry Marsh, ‘The Surgeon who Signed his Patients’ Livers Was Silly, not Criminal. The Law is an Ass’ The Guardian (London, 15 December 2017) accessed 5 August 2019. 93 Frances Perraudin, ‘Surgeon Admits Marking his Initials on the Livers of Two Patients’ The Guardian (London, 13 December 2017 accessed 5 August 2019. 94 R v Bramhall Trial Transcript, Sentencing Remarks, 12 January 2018. 95 ibid. 96 See Suzanne Ost, ‘Breaching the Sexual Boundaries: Should English Law Recognise Fiduciary Duties in the Doctor-​Patient Relationship?’ (2016) 24 Medical Law Review 206, 224.

304  Criminality at Work a public wrong, in that it threatens trust in the profession and brings the medical profession into disrepute. In this sense, the criminal law and its sanctions serve an important symbolic purpose that the professional disciplinary processes of the GMC and professional sanctions cannot.97

E. Concluding Thoughts Returning to the first of the two central questions posed at the start of this chapter, it is indeed the case that the medical profession is dealt with in a unique way by the criminal law. In certain contexts, the medical professional role seemingly both exculpates doctors and allows medical opinion to have a significant influence on the interpretation of the criminal law. Yet this same role can also attract criminal liability in other circumstances. Looking to the second question, the strongest arguments in favour of this special treatment by the criminal law relate to the public interest in recognizing the beneficial and necessary role that doctors play in society and the public interest in protecting the patient, the weaker party, from serious wrongs that can be perpetrated through the doctor’s position of power. More controversially, in some respects, the criminal law acts as the protector of morality under the guise of public safety. It is striking that, whilst the patient’s consent keeps organ transplantation away from the criminal law’s grasp98 and is one of the elements that can legitimate other medical interventions which would otherwise constitute offences against the person, patient choice/​consent has not shaped the criminal law’s response to doctors’ involvement in abortion or medical intervention at the end of life that hastens death. Rather, the primary justification for the criminal law’s special treatment lies in the professional standards of ‘good medical practice’ and ‘proper medical treatment’. This is out of sync with the contemporary doctor–​patient model that prioritizes patient autonomy and seeks to reduce the doctor’s influence,99 and it is notable that the case of BM furthers this discord by ignoring the autonomy of individuals who sought body modification through judicial reliance on medical opinion. Whilst aspects of the civil law have been modified to better reflect the contemporary doctor–​patient model, such as the common law on the disclosure of risks of a particular medical procedure to the patient,100 the criminal law has been left behind. But any call to change the ground of exculpation under criminal law to patient consent would undoubtedly be met with concerns that this could put the vulnerable at risk,101 and would lead to a liberalization of the criminal law in highly morally contentious areas that would simply be too controversial. 97 And the significance of the serious repercussions for a doctor who is found culpable under the criminal law is recognized by the provision of procedural protections under additional parts of art 6 of the European Convention on Human Rights that relate to criminal proceedings (the privilege against self-​incrimination; not being forced to testify; the required presumption of innocence; the high standard of proof). 98 Albeit that this is deemed consent under the law in England from spring 2020 (HTA 2004, s 3(6)(ba)). 99 See also Sally Sheldon, ‘British Abortion Law:  Speaking from the Past to Govern the Future’ (2016) 79 Modern Law Review 283, 294–​96. 100 In the move away from the application of the Bolam test to the prudent patient test in recent cases such as Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430. 101 As often voiced by members of the judiciary in cases where the criminal law’s prohibition of assisted suicide is challenged. See, eg, Pretty v UK (2002) 35 EHRR 1 [74]; R (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38, [2015] AC 657 [86]; R (on the application of Conway) v Secretary of State for Justice [2017] EWHC 2447 (Admin), [2018] 2 WLR 322 [96], [116]. See also Biggs and Ost, Exploitation (n 1) ch 7.

The Medical Professional as Special  305 Also noteworthy is the fact that whilst doctors receive special treatment from the criminal law by way of both protection and targeted criminalization, the criminal law acts only as a shield for patients; that is, there are no criminal offences that are directed specifically at patients. As such, there is a contrast with the criminalization of workers, the weaker party in the employer–​employee relationship, for certain types of conduct in labour law. Although this criminalization of workers is critiqued persuasively elsewhere in this volume, we should be mindful of assuming that as the weaker party, the patient is unable or prevented from committing a crime against the doctor.102 Indeed, there is no exemption from criminal liability for patients by virtue of their less powerful role in the doctor–​patient relationship; a patient who makes unwelcome sexual advances to a doctor, including physical touching, commits the offence of common assault and, depending on whether the touching is sexual, sexual assault.103 Turning back to doctors’ criminality, there are dangers in being too quick to lay the blame at the feet of individual doctors and being over-​eager to bring them to account under the criminal law. If the doctor is always seen as the party most likely to violate the criminal law and wrong patients, as the party taking unjustified risks with patients’ health and safety, then we may be less sensitive to systemic failures such as those which occurred in the cases involving Drs Prentice and Sullman and Bawa-​Garba.104 Whilst there is a clear public interest in prosecuting serious wrongdoing that leads to a patient’s death, prosecuting an individual doctor for GNM because of their failings which have occurred in the context of systemic failings is unfair.105 This is especially so in cases such as Bawa-​Garba’s, where ‘systemic safety nets’ which should have detected and removed the failings the day before the event were not working, with the result that serious failings had consequences that equally serious failings at another time simply would not have had.106 What is more, prosecutions for GNM discourage doctors from following their duty of candour,107 from being open about their mistakes, and learning from these mistakes. Bawa-​Garba’s prosecution and conviction may 102 On the occurrence of sexual exploitation and harassment of health care professionals by patients, see Hazel Biggs and Suzanne Ost, ‘(I love you!) I do, I do, I do, I do, I do: Breaches of the Sexual Boundaries by Patients in Their Relationships with Health Care Professionals’ in Catherine Stanton and others (eds), Pioneering Healthcare Law: Essays in Honour of the Work of Margaret Brazier (Routledge 2016) 91. 103 Sexual Offences Act 2003, s 3; ibid 100–​01. 104 While space precludes discussion, the issue of the employing Trust’s duties to doctors (as employees), especially under health and safety law, is of relevance here. 105 A prosecution for GNM is focused primarily on individual culpability, and this explains why systemic failings ‘were only of peripheral relevance to the guilt or absence of Dr Bawa-​Garba’s guilt’ (Bawa-​Garba v GMC (n 70) [74]). That said, it was stated by Lord Mackay in R v Adomako (n 56) 187 that whether a breach of duty amounts to gross negligence ‘. . . will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred’. (emphasis added). Bawa-​Garba’s appeal can be contrasted with that in R v Prentice (n 62) because her case for appeal was based on the judge’s direction to the jury on causation, with no focus on any systemic failings as excuse or mitigation regarding whether she was grossly negligent. In passing sentence, the judge alluded briefly to failings other than Bawa-​Garba’s, noting that ‘[t]‌here was a limit to how far these issues could be explored in the trial, but there may be some force in the comment that yours was a responsibility that was shared with others’ (General Medical Council v Bawa-​Garba (n 64) [3]). It has since been a positive development that the new definitive guideline on sentencing manslaughter requires judges to take account of environmental factors such as ‘circumstances where there was reduced scope for exercizing usual care and competence’ and the offender being ‘subject to stress or pressure (including from competing or complex demands) which related to and contributed to the negligent conduct’ in mitigation (Sentencing Council, Manslaughter Definitive Guidance (Crown 2018). However, this does not address the concerns of prosecuting doctors for GNM in such cases in the first place. 106 General Medical Council v Bawa-​Garba (n 64) [46]. 107 GMC, Good Medical Practice (n 89)  55; Oliver Quick, ‘Regulating and Legislating Safety:  The Case for Candour’ (2014) 23 British Medical Journal Quality & Safety 614.

306  Criminality at Work have made the achievement of ‘a just and learning culture’108 more difficult, especially given that there is already a ‘culture of fear’ within the medical profession regarding the perceived increasing risk of being prosecuted for GNM.109 In particular, Bawa-​Garba’s case has given rise to a fear that doctors’ written reflections for appraisals concerning incidents involving mistakes could be used against them in court, causing some doctors to disengage from this practice notwithstanding it being a professional requirement.110 This is one of the reasons why the case was the catalyst for the GMC’s review into the way in which the GNM offence is applied to doctors.111 In cases like Bawa-​Garba’s, the utilization of a criminal offence that captures the wider, systemic wrongs rather than targets one individual is surely more appropriate. The obvious candidate crime might seem to be corporate manslaughter, for which an NHS Trust could be prosecuted where a patient dies because of a gross breach of a duty of care, and ‘the way in which its activities are managed or organized by its senior management is a substantial element in the breach’. 112 Indeed, a request has been made to the Leicestershire Police that the hospital trust involved in the Bawa-​Garba case be investigated for alleged corporate manslaughter.113 In the broader context, early in 2018, doctors working in sixty-​eight A&E departments across the UK advised the Prime Minister that ‘conditions in many A&E units are so appalling that they could kill patients’.114 If systemic failings as grave as those which occurred in the Bawa-​Garba case are present more widely across NHS hospitals and lead to other patients’ deaths, this could constitute a public criminal wrong at the corporate level. However, there are cogent arguments that this offence is far from the best means to achieve this because of its complexities, especially when applied to NHS Trusts.115 An alternative means of bringing a Trust to account under the criminal law is through health and safety ­offences.116 It has been opined that directing accountability at the organizational level might reduce the likelihood of doctors making mistakes provided it leads to the modification of

108 A  key concern for the government’s recent rapid policy review into issues regarding GNM in healthcare: Norman Williams, Gross Negligence Manslaughter in Healthcare (Crown 2018) 9, [3.4]. 109 Margaret Brazier, Sarah Devaney, Danielle Griffiths, Alex Mullock, and Hannah Quirk, ‘Improving Healthcare through the Use of Medical Manslaughter?’ (2017) 22 Clinical Risk 88. 110 Nick Bostock, ‘GMC warning over calls for GPs to stop written reflection’ GP (4 March 2018) accessed 15 November 2018; Jenny Vaughan, Oliver Quick, and Danielle Griffiths, ‘Medical Manslaughter: Where Next?’ (2018) 100(6) Royal College of Sugeons Bulletin 17. 111 GMC, ‘Marx Medical Manslaughter Review Invites Written Evidence’ GMC (4 June 2018), accessed 15 November 2018. 112 Under the Corporate Manslaughter and Homicide Act 2007 (CMHA 2007), s 1. 113 Tim Pieters, ‘Police “to Discuss” Calls to Prosecute Hospital over Bawa-​Garba Case’ Pulse (London, 2 February 2018) accessed 15 November 2018; Anon, ‘Jack Adcock Death: Call to Charge Leicester Royal Infirmary’ BBC News (31 January 2018) accessed 5 August 2019. 114 Denis Campbell, Pamela Duncan, and Sarah Marsh, ‘NHS Patients Dying in Hospital Corridors, A&E Doctors Tell Theresa May’ The Guardian (London, 11 January 2018) accessed 5 August 2019. 115 There are wider implications of assigning criminal responsibility at the corporate level when hospital conditions and the systems in place are unavoidably affected by a lack of resources. And note that if the patient’s death is attributable to a decision concerning a matter of public policy, such as the allocation of public resources, then a Trust could not be liable under the legislation (see CMHA 2007, s 3(1); Celia Wells, ‘Medical Manslaughter—​ Organisational Liability’ in Griffiths and Sanders, Medicine Crime and Society (n 7) 192, 202). 116 Under the Health and Safety at Work Act 1974, s 33. See, eg, R v Southampton University Hospital NHS Trust [2006] EWCA Crim 2971, [2006] 11 WLUK 278.

The Medical Professional as Special  307 working conditions.117 But the punishments imposed on NHS bodies in the health and safety prosecutions that have come before the courts have led to arguments that ‘individuals are punished disproportionately as compared to their employing NHS bodies’,118 and ‘a health and safety conviction seems to be an unfair label to ascribe to . . . cases where a patient’s death results from gross systemic negligence’.119 Related to the concern of placing the blame for the consequences of broader failings upon individual doctors, we should not forget that doctors are workers; they are employees capable of being exploited and over-​worked by their employers120 and for some, their professional role gives rise to challenging dual duties towards their patients and their employers, such as doctors who work in prisons.121 As a final point for consideration, does the analysis in this chapter indicate that there is something distinctive about the medical profession that means it is a unique category of the professions requiring special attention from the criminal law, or is this also the case for other professionals whose role also involves intimate and confidential relationships of trust and on whom society bestows privileged status? I have in mind here solicitors and their professional relationships with clients, and clerics and their professional relationships with members of their congregations, for example. Just as the seriousness of the wrong of a sexual offence can be exacerbated further when committed by a doctor who breaches his patient’s trust, for instance, so too can this be the case if the offence occurs through a breach of trust perpetrated by a clergyperson.122 If medical practice and the provision of health care is unique, then should the special treatment explored in this chapter be restricted to those who possess medical qualifications,123 or should it be extended to other health care professionals? There are aspects of criminal law’s special exculpatory treatment of doctors (primarily the ‘medical exception’) that are connected integrally to the medical nature of the role.124 That said, even with regard to the provision of some procedures that are generally construed to be medical, there is reason to challenge the position that the criminal law’s special treatment by way of a defence should only be offered to doctors. Take abortion, for instance: especially in cases of early abortion, the doctor’s role is largely reduced to prescribing drugs and providing instruction, the drugs that cause abortion are often self-​administered by the woman, and abortion through vacuum aspiration (a commonly used method in England and Wales) could be carried out by an appropriately trained nurse or midwife.125 What is more, if we consider special treatment by way of targeted criminalization, there are examples of criminalization in the medical context that are less connected to medical procedures or treatment and can

117 Neil Allen, ‘Medical or Managerial Manslaughter?’ in Erin and Ost, Criminal Justice System (n 7) 51, 54. 118 Gooderham and Toft (n 57) 185. 119 Allen (n 117) 53. 120 Antonia Rich and others, ‘ “You Can’t be a Person and a Doctor”: The Work–​Life Balance of Doctors in Training—​A Qualitative Study’ (2016) British Medical Journal accessed 15 November 2018. 121 See British Medical Association Ethics Department, Medical Ethics Today: The BMA’s Handbook of Ethics and Law (Wiley 2012) 27–​28. 122 The case for a new abuse of trust offence that would be committed when, whilst in a position of trust, a person intentionally causes a sexual act to occur by exercising undue control or influence, is made in Biggs and Ost, Exploitation (n 1) ch 5, s 4. 123 See, eg, Brazier and Fovargue, ‘Transforming Wrong’ (n 13) 16. Cf Ashworth, (n 8) 186 and 190. 124 See also Lewis (n 10) 372. 125 Sheldon, ‘British Abortion Law’ (n 99) 303–​07.

308  Criminality at Work clearly apply to other professionals, such as the offence of wilful neglect which can be committed by any health or social care worker. Thus, we return to the significance of context; whilst the medical profession continues to be a relatively autonomous category of personal work relations that is dealt with in a unique way by the criminal law, whether there is a public interest in treating doctors in this special way depends upon the duties being performed, the environment in which the doctor is working, and whether a serious wrong has been committed through the abuse of a position of power and trust.

16

Victim or Perpetrator? The Criminalization of Migration and the Idea of ‘Harm’ in the Labour Market Context Cathryn Costello

A.  Introduction The criminalization of irregular migration in the UK1 entails a range of offences, with irregular presence itself a crime, as well as various failures to have or produce identity documentation. Aliverti has documented the burgeoning of immigration crimes, leading to the situation where by 2010, ‘almost any breach of immigration rules [was] a crime’.2 The latest statute, the Immigration Act 2016, goes even further. Part of the avowed ‘hostile environment’ designed to force irregular migrants to leave the UK, the Act expands the criminalization of ‘illegal working’, and that of employers ‘who have reasonable cause to believe that an individual does not have the right to work in the UK’. It introduces further sanctions, including seizure of wages and workplace closures.3 Much of this should concern labour lawyers, given the propensity for measures targeting irregular migrants to undermine labour rights and contribute to unlawful discrimination on grounds of race and ethnicity. Indeed, concerning the latter phenomenon, the UK High Court has ruled that the legislative provisions requiring landlords to check migration status in order to rent properties violated human rights for this reason.4 The purpose of this chapter is to challenge the assumptions underlying the increased role for the criminal law in this context, in particular to question whether irregular migration is sufficiently harmful or wrongful to be treated as a crime at all. The chapter argues that the criminalization of irregular migration is not justified. Section B explains briefly how immigration is regulated. Immigration law is highly selective, and some individuals are likely to struggle to bring their presence or actions within the law. Refugees in particular are generally excluded from legal routes to access state territory, and must usually travel irregularly and then claim asylum. Moreover, states often fail 1 The UK is used here and much of the legislation applies throughout, reflecting the imbrication of criminal and migration control matters—​the latter falls to the UK Borders Agency, a UK-​wide entity. 2 Ana Aliverti, ‘Making People Criminal: The Role of the Criminal Law in Immigration Enforcement’ (2012) 16(4) Theoretical Criminology 417, citing Home Office, Protecting Our Border, Protecting the Public:  The UK Border Agency’s Five Year Strategy for Enforcing Our Immigration Rules and Addressing Immigration and Cross Border Crime (Home Office 2010) 26. 3 For analysis, see ACL Davies, ‘The Immigration Act 2016’ (2016) Industrial Law Journal 431; Judy Fudge ‘Illegal Working, Migrants and Labour Exploitation in the UK’ (2018) 38(3) Oxford Journal of Legal Studies 557, 558. 4 R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452, [2019] 3 WLUK 12. Cathryn Costello, Victim or Perpetrator? The Criminalization of Migration and the Idea of ‘Harm’ in the Labour Market Context In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.0016

310  Criminality at Work to act on their obligations (legal and ethical) to migrants and refugees, and so generate ‘illegality’ in dubious, sometime even unlawful, ways. Furthermore, in contrast to other forms of regulation, immigration law is characterized by a particularly coercive administrative enforcement apparatus, including powers of detention and deportation. This apparatus needs to be integrated into the assessment of whether the criminal law may be brought to bear in order to punish breaches of immigration laws. In light of these features of immigration law, section C argues that the criminalization of illegal immigration is not justified, when assessed against widely accepted principles that limit the role of the criminal law in liberal polities.5 As well as criminal law theory, I also draw on the scholarship on the criminalization of migration,6 informed by Aliverti’s masterful empirical study.7 These principles reflect the appropriate limits on state censure, coercion, and the state’s preventive role in regulating harm. First, it is examined whether illegal immigration warrants criminalization either due to its harmfulness to locals, or because it entails a harmful violation of state territory. Both possibilities are assessed and dismissed. Secondly, I consider whether illegal immigration may be criminalized as a regulatory crime, as a form of mala prohibita.8 Even accepting a wide role for such crimes, criminalizing irregular migration is difficult to justify on this basis. This section then examines whether irregular migration is wrongful, identifying the problematic role of strict liability crimes in this field, and the ineffectiveness of the defences that exist ostensibly to protect the blameless (for refugees and victims of trafficking in particular) from criminal sanction. Having problematized the criminalization of migration, section D illustrates that it is profoundly impactful. It leads to a general unexamined assumption that irregular migration is harmful and blameworthy, which has led to an expansion of the scope of criminalization. This expansion includes the criminalization of many dealings with irregular migrants that should be regarded as ethically defensible, or under some circumstances, ethically praiseworthy. Finally, I conclude that labour lawyers should be deeply sceptical of the turn to criminal law here, as it rests on a distorted notion of exploitation, and is liable to create a shadow workforce of socially marginalized, exploited workers. Moreover, it obscures (and even de-​legitimates) the key policy response to irregular migrant workers that labour lawyers should support, or at least, examine as potentially apt, namely the regularization of the status of those with long residence, and those who are unlikely to be deported.

5 For a particularly helpful overview, see James Edwards, ‘Theories of Criminal Law’ Stanford Encyclopaedia of Philosophy (6 August 2018) accessed 5 August 2019. I also draw in parts on the distinctive account of Antony Duff, The Realm of the Criminal Law (OUP 2018). Duff ’s account treats criminal law as principally about obligations between citizens. Accordingly, his account is premised on a polity offering hospitality and then citizenship over time to immigrants: Duff, ‘Citizenship and the Criminal Law’ in his The Realm of the Criminal Law (n 5) ch 3. In this chapter, I do not explore the implications of this part of the book, but rather draw on his general criminal law theory. 6 In particular Lucia Zedner, ‘Is the Criminal Law Only for Citizens? A Problem at the Borders of Punishment’ in Katya Franko Aas and Mary Bosworth (eds), The Borders of Punishment: Migration, Citizenship, and Social Exclusion (OUP 2013) 51; Ana Aliverti, ‘The Wrongs of Unlawful Immigration’ (2017) Criminal Law and Philosophy 375; Alessandro Spena: ‘Iniuria Migrandi: Criminalization of Immigrants and the Basic Principles of the Criminal Law’ (2014) 8 Criminal Law and Philosophy 635; and ‘A Just Criminalization of Irregular Immigration: Is It Possible?’ (2017) 11 Criminal Law and Philosophy 351. 7 Ana Aliverti, Crimes of Mobility: Criminal Law and the Regulation of Immigration (Routledge 2013). 8 I employ the distinction between mala in se and mala prohibita crimes, noting that this is a loose distinction, neither sharp nor formally enshrined in the law itself.

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B.  Regulating Immigration—​Migration Control and Migration Status The orthodox position in international law and political theory acknowledges that states have a right to control immigration of non-​nationals. While the right to leave any country, including one’s own, is a human right,9 there is no general concomitant right to enter another state. This chapter does not challenge that orthodox position, but rather challenges the manner in which states, in particular the UK, exercise their migration control prerogatives. I examine three facets of the workings of migration control in turn, first, its selectivity and the precarious statuses it generates; secondly, the exclusion of refugees from legal migration opportunities; and thirdly, the role of the state in generating illegality.

1.  Immigration Law’s Selectivity and Global Inequality of Migration Statuses Potential immigrants are treated differently in accordance with their nationality, first and foremost. Some foreigners may migrate to the UK with few restrictions, such as Irish nationals and EU citizens (at present). Visa systems reflect a deep global inequality of opportunity. First, only some nationals need a visa to enter other states. Those from poorer countries have fewer opportunities for visa-​free travel than those from rich countries.10 The distribution of migration opportunities reflects and exacerbates underlying global inequality of resources and power. Once a political decision is taken that nationals from particular countries need visas to enter, when individuals must apply for such visas they must usually pay a fee. For some, the fee itself effectively excludes. High fees for processing applications for legal status have been shown to correlate with ‘high (or very high) stocks of illegal residents’.11 Indeed, literature on the ‘migrant premium’ helpfully reveals the exclusionary costs of regular migration, which exclude many, and generate vulnerability to exploitation for others.12 Moreover, as well as entailing high fees, visa processing is generally ‘outsourced and offshored’,13 ‘offshored’ in the senses of being undertaken far away from central state bureaucracies, and ‘outsourced’ as it is often contracted out to private companies. Processes are often opaque, so the reasons for visa refusals are often unclear and difficult if not legally and practically impossible to challenge. Furthermore, immigration visas are nowadays generally designed to only allow temporary stay.14 Being deemed likely to overstay is a frequent reason for temporary visa 9 Art 12(2) of the International Covenant on Civil and Political Rights provides that ‘everyone shall be free to leave any country, including his own’. 999 UNTS 171. 10 Eric Neumayer, ‘Unequal Access to Foreign Spaces: How States Use Visa Restrictions to Regulate Mobility in a Globalized World’ (2006) NS 31 Transactions of the Institute of British Geograhpers 72. 11 Malcolm Baldwin-​Edwards and Albert Kraler, REGINE: Regularizations in Europe. Study on Practices in the Area of Regularization in the Member States of the EU—​Final Report (ICMPD 2009) 126. 12 See further, Elspeth Guild and Tugba Basaran, Global Labour and the Migrant Premium: The Cost of Working Abroad (Routledge 2018). 13 Thomas Gammeltoft-​Hansen, Access to Asylum: International Refugee Law and the Globalization of Migration Control (CUP 2011) 2. 14 Anna Boucher and Justin Gest, Crossroads: Immigration Regimes in an Age of Demographic Change (CUP 2018), examines thirty countries.

312  Criminality at Work refusal. To demonstrate that she is not likely to overstay, an applicant often must show that she has assets at home, or other strong reasons to return. This leads to those who lack resources often being deemed more likely to overstay, and indeed (as is discussed further in the next section) to those who would be recognized as refugees being excluded. So along with nationality, resources and social class determine access to migration opportunities. Indeed, the stratification of migration statuses arguably perpetuates other problematic hierarchies, including those based on gender and race, as visa systems facilitate prejudicial decision-​making and generate patterns of disadvantage. Moreover, even if a migrant is granted a temporary work visa, her residence rights are precarious. If she wishes to renew her visa, she must usually get her employers’ further sponsorship. In practice, visa overstaying is a common form of breach of immigration laws, apparently much more common than clandestine entry. Other common immigration law infractions include breaches of visa conditions, such as working hours longer than permitted, or undertaking tasks outside those permitted under sectoral visas. Evidently, employers can generate irregularity by requiring workers to breach these conditions, thereby manipulating migration status. The migrant may be less culpable than the employer, or in some instances entirely blameless, but as will be seen, immigration law and its attendant criminalization usually impose strict liability on migrants, but rarely on employers. Spena draws a radical conclusion from the selective nature of immigration law. He argues that immigration law’s exclusionary character taints its criminalization as ‘only certain categories of persons qualify as the possible targets of an illegal immigration crime: basically, the poor coming from non-​visa-​exempt countries. Their shadow clearly lies behind the crime definition.’15 Accordingly, he argues that the criminalization of illegal immigration amounts to ‘a ban on certain categories of persons, rather than on their actions/​omissions, in a way in which a principled criminal law should not do’.16 Spena’s claim depends on sharing that assessment of immigration law’s selective exclusion. Even if one does not share that view, it is a salutary reminder that the criminalization of irregular migration often rests on unexamined exclusionary practices, which are themselves open to serious ethical critique.

2.  The Exclusion of Refugees from Regular Migration Opportunities The account above demonstrates that whether an individual can migrate legally depends on a set of circumstances often beyond her control. Migration controls bear down particularly heavily on those with arguably the strongest ethical and legal claim for admission, refugees. Refugees form a small proportion of the world’s migrant population.17 However, their travel and migration is often comprehensively illegalized, so often their arrival in host states is clandestine, dangerous, and requires them to engage the services of smugglers. To be recognized as refugees, asylum-​seekers usually have to claim asylum on the territory of the state of refuge. Generally those from countries understood to be ‘refugee

15 Spena (n 6) 648. 16 ibid. 17 Hein De Haas, ‘Refugees: A Small and Relatively Stable Proportion of World Migration’ Blog 22 (August 2016) accessed 5 August 2019.

Victim or Perpetrator?   313 producing’ need visas to travel to the UK and other developed countries, and those visas (being generally designed for short-​term visits) are not granted to those who pose a risk of claiming asylum. Very few states have visas designed to allow asylum-​seekers to travel to claim asylum, so legal travel routes are few. Those legal routes that have been designed for refugees are usually highly discretionary and designed to admit only tiny numbers of refugees framed as extremely vulnerable. The result is that those moving in search of protection are usually compelled to travel irregularly, and due to the workings of carrier sanctions, often must use the services of smugglers to do so. This feature of the refugee regime has been acknowledged in scholarship18 and in the policy debates19 for decades. Moreover, it also has long-​standing judicial recognition. Notably, Lord Simon-​Brown stated in the UK High Court in Adimi in 1999: Although under the [Refugee] Convention subscribing States must give sanctuary to any refugee who seeks asylum (subject only to removal to a safe third country), they are by no means bound to facilitate his arrival. Rather they strive increasingly to prevent it. The combined effect of visa requirements and carrier’s liability has made it well-​nigh impossible for refugees to travel to countries of refuge without false documents.20

Furthermore, refugees must claim asylum, and often cannot know the outcome of that individualized process in advance. They often undergo a prolonged period of legal uncertainty as an asylum-​seeker, during which time they often have no legal right to work. Empirical studies tend to show the enduring impact of such prolonged labour market exclusion.21 At the end of the process, many asylum claims are recognized, but many others are not. The outcome for many is to become a rejected asylum-​seeker, often the object a legal coercion and repression. In the UK, this has involved denial of work rights and deprivation of welfare benefits. In extremis, this enforced destitution may breach Article 3 of the European Convention on Human Rights (ECHR),22 as was determined in the UK. However, the practices of simultaneous labour market and social rights exclusion continue. As a result, those with arguably the strongest claim to admission, refugees, will usually have no possibility of legal entry, and depend on often protracted and complex asylum processes in order to establish a right to reside. Refugees’ breaches of immigration laws may be particularly blameless, as often the conditions in their home countries render them less likely to comply with immigration law requirements. As is discussed further in section C.3(b) below, there is a specific provision in international law aiming to prevent refugees’ penalization for immigration infractions, but it fails to offer them protection from the expansive reach of criminalization in the UK.

18 See, eg, BS Chimni, ‘The Geopolitics of Refugee Studies: A View from the South’ (1998) Journal of Refugee Studies 350. 19 See, eg, Gregor Noll and others, Study on the Feasibility of Processing Asylum Claims Outside the EU (Danish Centre for Human Rights 2002); Ulla Iben Jensen, Humanitarian Visas:  Option or Obligation? (European Parliament 2014). 20 R v Uxbridge Magistrates Court, ex parte Adimi [1999] EWHC Admin 765, [2001] QB 667. 21 Moritz Marbach and others, ‘The Long-​term Impact of Employment Bans on the Economic Integration of Refugees’ (2018) Science Advances check 2375. 22 See, eg, R (on the applications of Adam, Tesema, and Limbuela) v Secretary of State for the Home Department [2005] UKHL 66, [2006] 1 AC 396.

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3.  States’ Generation of Illegality The two preceding subsections have illustrated that opportunities to migrate legally are distributed in dubious ways, and those who are often compelled to flee are highly likely to violate immigration law in so doing. At the very least, these two observations are a reminder that the category of ‘illegal immigrant’ demands disaggregation. My third observation pertains to a further role of the state in generating illegality. Some people may have a claim to a migration status, but immigration laws fail to recognize that claim. This phenomenon means that some migrants and refugees have unrecognized legal and ethical claims to protection or regularization. For example, in a just polity, long residence should create a secure right of residence over time, reflective of the fact that migrants become members of the societies in which they live.23 However, often these connections generated over time are not legally recognized. States act at times not only act unethically, but also unlawfully in denying security of residence, but this is rarely part of the discussion on ‘irregular migration’. Furthermore, states sometimes set the evidentiary bar to prove such entitlements extremely high, such that even those who are assumed to be ‘legal’ in their residence risk being deemed ‘illegal’. The recent Windrush debacle in the UK is a vivid illustration of this phenomenon. In the words of the House of Commons Home Affairs Committee: Members of the ‘Windrush generation’—​people who came to the UK from Commonwealth countries after the Second World War and before 1973—​have been denied their rights. Many have been treated as if they were in the country illegally despite being lawfully resident for many decades. People have lost their homes and their jobs and been refused healthcare, pensions and access to social security. In some cases, people have been subject to immigration enforcement measures and held in immigration detention; others may have been removed or deported from the UK.24

The scandal emerged not only due to overzealous immigration enforcement, but because new evidentiary requirements made it more difficult to prove lawful residence. Indeed, York has convincingly argued that UK migration control has become so demanding that people were effectively rendered ‘illegal until proved legal’.25 These three subsections highlight some of the features of immigration law that render any generalized assumption about the harms or wrongs of irregular migration problematic. In the next subsection, I explore the particular enforcement apparatus that goes with immigration law, as this too has an important bearing on the appropriate role for the criminal law.

23 See, eg, Ruth Rubio-​Marín, Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States (CUP 2000) 35, 85–​98; Joseph Carens, The Ethics of Immigration (OUP 2013) 150. 24 House of Commons HAC, The Windrush Generation: Sixth Report of Session 2017–​19 (HC 990, 3 July 2018) 1 accessed 5 August 2019. 25 Sheona York, ‘The “Hostile Environment”: How Home Office Immigration Policies and Practices Create and Perpetuate Illegality’ (2018) 32(4) Journal of Immigration, Asylum and Nationality Law 363, 384. .

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4.  Immigration Law Enforcement Immigration laws have a strong dedicated enforcement apparatus, one distinctively punitive and carceral in orientation, although it is formally ‘administrative’. Deportation of nationals is taboo for liberal polities—​the sanction of banishment long since abandoned.26 Deportation of irregular migrants allows the state to exercise highly coercive powers over migrants, and lends immigration laws a distinctively coercive sanction, irrespective of criminalization. In addition, detention is generally seen as part of the state’s deportation and migration control powers. Although detention may legitimately serve some non-​punitive purposes in liberal polities, detention for migration purposes is remarkably loosely regulated, when contrasted with, say, detention for mental health purposes.27 To summarize an admittedly complex legal position, states may in effect render people ‘illegal’ in their migration status, and then detain them, without having to demonstrate that the detention is strictly required in order to either prevent their irregular entry or deport the person in question, at least under current interpretations of domestic and European human rights law.28 In terms of understanding the workings of immigration regulation, this means the state has significant coercive power at its disposal, irrespective of whether migration is criminalized or not. Migration control also increasingly takes places within states, requiring private actors to check migration status, in the workplace, educational establishments, and places of residence. This intensification and privatization of control risks a range of adverse consequences, in particular unlawful discrimination. As mentioned at the outset, the UK High Court held that requiring landlords to check migration status led directly to unlawful discrimination on grounds of nationality and race.29 Another problematic feature of internal checks is their tendency to not only detect illegality, but also to generate it. Take the monitoring of those on student visas, for example: At present, educational institutions are required to take registers in order to ensure the attendance of foreign students in classes. The monitoring duty, or at least the way institutions are encouraged to construe it, means that foreign students are liable to be found in breach of their visa conditions for conduct that may be completely defensible, and not at all a manifestation of their lack of bona fides in pursuing their education, such as refusing to cross an academic picket line, or being absent from classes in order to pursue independent scholarship. The account thus far serves as a prelude to the examination of the criminalization of irregular migration in the next section. The criminal offences are built on the edifice of migration control described in this section.

26 But denationalization practices covertly reintroduce a form of banishment. See further Audrey Macklin, ‘The Return of Banishment: Do the New Denationalization Policies Weaken Citizenship?’ in Rainer Bauböck (ed), Debating Transformations of National Citizenship (IMISCOE Research Series 2018) 163. 27 Galina Cornelisse, Immigration Detention and Human Rights: Rethinking Territorial Sovereignty (Martinus Nijhoff Publishers 2010). 28 See generally Cathryn Costello, ‘Immigration Detention:  The Grounds Beneath our Feet’ (2015) 68(1) Current Legal Problems 143. 29 R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department (n 4).

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C.  The Criminalization of Migration This section turns to the core of my argument that the criminalization of migration fails to respect the appropriate boundaries of the criminal law. Moreover, there are problematic interactions between immigration enforcement and criminalization. Admittedly, the normative principles guiding criminalization are contested. However, there is a degree of consensus on the appropriate role of the criminal law in liberal polities and its limits. This consensus reflects an acknowledgment that the coercive and penal power of the state must be tamed. My approach uses these principles as a loose normative framework, assuming that a broad, multifaceted role for the criminal law is justified. I take this broad view in order to test the justifications for the criminalization of irregular migration against a set of principles that are neither unduly abstract nor stringent. I employ the distinction between mala is se and mala prohibita crimes, noting that this is merely a loose distinction for analytical purposes. First, I question whether irregular migration constitutes a mala in se. I treat harm to others as an important basis for mala in se crimes, without assuming that it is the exclusive basis for such criminalization. I examine two possible bases, namely harm to locals (particularly their labour market opportunities) and some sort of harm to ‘property’ in the form of violation of state territory. I dismiss both possibilities, but note that official and political discourse seems to give serious credence to these flimsy notions. Then I examine mala prohibita, or whether the underlying violation of immigration law in itself could warrant criminalization of illegal immigration. Here I conclude also that the particular features of immigration law mean that criminalization of its breach is not justified. Finally, I turn to the question of wrongfulness and blameworthiness. Arguments about wrongfulness as a necessary condition for criminalization derive from the censoriousness of conviction,30 or the harmfulness of punishment, as well as its socially stigmatic character.31 The existence of many strict liability regulatory crimes sits uneasily with this condition, as do the very limited defences available for migration crimes committed by the blameless.

1.  Where’s the Harm? (a) Harm to locals? It is generally accepted the criminalization of harmful conduct may be warranted. As both Edwards and Duff explore, there is an illuminating distinction between what Edwards terms the harmful conduct principle (HCP) and the harm prevention principle (HPP).32 The HCP states that that ‘it is only permissible to criminalize ϕϕing if ϕϕing is harmful conduct, or conduct that unreasonably risks harm’, while HPP deems that ‘[it] is only permissible to criminalize ϕϕing if criminalizing ϕϕing is necessary to prevent harm, and if the harm done by criminalization is not disproportionate to the harm prevented.’33 30 Edwards (n 5) citing Andrew Simester and Andew von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalization (Hart 2011). 31 Edwards (n 5) citing Douglas Husak, Overcriminalisation (OUP 2008) 92–​103. 32 This terminology is Edwards (n 5), but see also Duff, The Realm of the Criminal Law (n 5) 238–​41. 33 ibid. Note that these principles are expressed in exclusive terms (as the only basis for criminalization), a position I do not endorse in this chapter. However, they remain pertinent, even if non-​exclusive, given the important role of harm as a non-​exclusive justification for criminalization.

Victim or Perpetrator?   317 Evidently, HPP is much broader than HCP, and so the former is limited by a proportionality criterion which seeks to balance the harms of criminalization and the harm prevented.34 To put this another way, if criminalization aims to prevent harm, then empirical factors relating to the harms criminalization itself entails, and the often counterproductive impact of criminal prohibitions become pertinent. As Duff explains, this means that the HPP is does not in itself justify recourse to criminal law, rather it explains that conduct may be regulated in order to prevent harm. To reach for the criminal law to back up such regulation requires a further layer of justification, particularly as . . . the various costs that flow from criminalizing conduct always give us good reason not to criminalize: if we are to justify criminalizing a type of conduct, we must show not merely that we have good reason to do so, but also that that reason is strong enough to defeat this ever-​present reason against criminalization.35

Accordingly, he argues that ‘a preventive harm principle is more plausible as a principle of regulation than as a direct principle of criminalization’.36 So is irregular migration ‘harmful’ in either sense, such as would allow us to rely on the HCP or HPP to provide an in principle basis for criminalization? Harm in this context generally means material harm to others, in the sense of physical harm, harm to property, or other material interests. Certain psychological harms have been acknowledged as sufficiently material to warrant criminalization, such as in the crime of stalking for example. Some forms of deception have been criminalized, such as in fraud, which leads to material harm. Criminalizing conduct which risks material harm is the basis for the crimes of driving while intoxicated (where no harm may accrue, but the risk is sufficiently clear and proximate to warrant regulation, and then criminal prohibition on the basis of that regulation). For the purposes of this chapter, I assume that at least some forms of economic exploitation may be regarded as harmful.37 Does the prevalence of economic exploitation of irregular migrants provide a basis for criminalization? The main assumption underpinning the official discourse surrounding the criminalization of migration seems to relate to labour market harms, in particular that irregular migrants will be ripe for exploitation, in a manner that will expose local workers to harm, in the sense of creating downward pressure on wages and working conditions. First, this argument suggests that there are harms to irregular migrants being perpetrated in this context, namely labour exploitation. Secondly, the harms to local workers are remote and diffuse, and by no means certain or even highly likely to accrue. On the first point, on this account, the principal victim is the exploited migrant. Criminalizing irregular migration is not merely criminalizing in a paternalistic way (such as if certain conduct is criminalized to prevent harm to self, such as through use of certain drugs), but rather criminalizing the

34 Edwards (n 5) citing Joseph Raz, The Morality of Freedom (OUP 1986) 418–​20; his ‘Harm Principles’ (2014) 20 Legal Theory 253, 259–​62. 35 Duff, The Realm of the Criminal Law (n 5) 248. 36 ibid. 37 There is much debate about the scope of exploitation, but it may be defined (per Allen Buchanan, Ethics, Efficiency and the Market (Rowman and Allanheld 1985), 87 ) as ‘the harmful, merely instrumental utilization of him or his capacities, for one’s own advantage or for the sake of one’s own ends’.

318  Criminality at Work victim who is harmed by another, ostensibly in order to prevent that harm having further harmful effects on others. It should be immediately apparent that this fails as a justification. Assessing criminalization in the round (as must be done in particular to justify criminalization on a harm prevention basis), including the harmful effects of criminalization itself, also casts doubt on any claim that irregular migration should be criminalized. As well as criminal sanctions being stigmatizing (by their nature), criminal prohibitions have further harmful consequences. They may simply push vulnerable actors into the margins—​for instance, if irregular migrants have no other source of income, and they are legally not permitted to work, then they become more likely to turn to work in informal underregulated sectors, or even sectors that are criminalized. It is noteworthy that in the parliamentary debates on the 2016 Immigration Act, opponents of the Bill repeatedly argued that ‘the likely effect of criminalizing migrants who were working in violation of immigration rules was to make them more, not less, vulnerable to exploitation’, a claim Fudge regards as ‘incontrovertible’.38 The manner in which migration is regulated does lead to exploitation of workers (here assumed to be harmful), but it is agents and employers who harm migrants, both regular and irregular. Scholarship on migrant workers in the global supply chain identifies the clear risks of labour exploitation. Jennifer Gordon, for example, puts it thus: When a recruiter working in the employer’s service demands fees or bribes, the workers who are delivered to the employer come bearing significant debt coupled with a fear of retaliation—​burdens that further suppress their willingness to report violations in their wages and treatment. Given how pervasive these abuses are, it should be possible to demonstrate tacit, industry-​wide knowledge of the risks that come with contracting a recruiter.39

The perpetrators in this context are agents and employers, both of whom engage in exploitation of the migrant workers. Whether this exploitation warrants criminalization is a separate matter, but it does demand a regulatory response. But criminalizing the migrant is clearly an inapt response. In general, criminalization requires that the harms in question are proximate and even if diffuse, that each individual materially contributes to an aggregate harm. To illustrate, some breaches of environmental law are criminalized, even when the harms they entail are diffuse. For instance, air and watercourse pollution, even if the actions entail adding only very small amounts of polluting material, are sometimes criminalized. However, in this context, the aggregation of the pollutant matter is certain to be harmful in its toxicity to plant and animal life. While the individual polluter is usually engaged in a small material contribution to that harm, it is certain to accrue if the levels of pollution reach of certain threshold. The remote, diffuse and indeed entirely uncertain harms to local workers provides only a weak basis for criminalization. Concerning harms to local workers, it should be noted also that the impact of immigration on the terms and conditions of local workers is by no means clear and depends very much on how migration is regulated. Indeed, empirical 38 See Melanie Gower, Doug Pyper, and Wendy Wilson, Immigration Bill [Bill 74 of 2015–​16] (House of Commons Library, Briefing Paper Number 07304, 6 October 2015) 18; HC Deb 1 Dec 2015, col 121. Fudge (n 3). See also Bridget Anderson, ‘Where’s the Harm in That? Immigration Enforcement, Trafficking, and the Protection of Migrants’ Rights’ (2012) 56(9) American Behavioural Scientist 124. 39 Jennifer Gordon, ‘Regulating the Human Supply Chain’ (2017) 102 Iowa Law Review 445, 496–​97.

Victim or Perpetrator?   319 evidence suggests that even high rates of migration will have little significant impact on local workers, provided it is well-​regulated.40 Much depends on the context, but suffice to note that the workings of the underlying immigration laws determine most of the material impact of migration on local workers.

(b) Violation of territorial integrity Another putative harm entailed by irregular migration may be the violation of the state’s territorial integrity. It should here be noted that, we are shifting from a discussion of harms to individuals to crimes against the state. Does this ‘count’ as harmful for the purposes of criminalization? As regards private property, the right to exclude is regarded as intrinsic to the bundle of rights that characterizes ownership. However, even the right to exclude intrinsic to private property is limited by property law—​rights of way develop, and other usage rights, reflective of a concept of usufructuary over land and natural resources. The analogy with private property reminds us that the bundle of rights that attach to property ownership adapt over time to reflect the owner’s and other’s exercise of those rights. Infringing property rights cannot be assumed to be harmful, without examining the context. Trespass on private property is generally not a crime, although some statutes establish criminal offences for related wrongs, usually where some material damage has occurred or is likely to occur.41 Most importantly, no direct analogy between private property to state territory may be drawn. Access to the territory of a state is necessary for any decent life—​there is no commons in which humans can exist. Moreover, states often make certain processes (eg access to asylum) dependent on presence in the territory, although they deliberately make it difficult or impossible to legally access their territory in many cases. Furthermore, many of the theorists who focus on the property analogies in migration control come to an apparently radical conclusion, namely that the exercise of the state’s right to exclude, given its profound distributive implications, amounts to a defence of a type of feudal privilege, or entailed estate, that warrants a global justice corrective.42 Indeed, by analogy with adverse possession, some theorists argue that irregular migrants accrue rights to stay in the territory.43 Without necessarily endorsing these views, this scholarship certainly demonstrates that assuming the harmfulness of breaches of ‘territorial integrity’ does not stand up to scrutiny.

2.  Mala Prohibita? Immigration Regulations and Regulatory Crimes In the preceding subsection, I  argued that irregular migration cannot be regarded as harmful, so will be difficult to establish as malum in se, as a wrong in itself. It is next important to canvass whether the rule-​breaking inherent in irregular migration provides an in principle reason for criminalization, irrespective of the lack of any materially 40 Arash Abizadeh, Manish Pandey, and Sohrab Abizadeh, ‘Wage Competition and the Special-​obligations Challenge to More Open Borders’ (2015) 14(3) Politics, Philosophy & Economics 255. 41 For example, s 61 of the Criminal Justice and Public Order Act 1994 creates police powers where trespassers have damaged the land; or have used threatening, abusive or insulting behaviour to the occupier, his family, employees, or agents; have six or more vehicles on the land. 42 Ayelet Shachar, The Birthright Lottery: Citizenship and Global Inequality (Harvard University Press 2009) 185–​88. 43 See, eg, Matthias Risse, ‘On the Morality of Immigration’ (2008) 22 Ethics and International Affairs 25.

320  Criminality at Work harmful consequences it entails or risks. Some widely accepted crimes seem to take this form, tax evasion for example, or some regulatory crimes, such as failing to comply with licensing requirements. Is there a justification for criminalizing irregular migration by analogy with failure to comply with a duty to pay taxes, or a duty to get a licence? Drawing on Duff ’s account, to be justified, criminalization on this basis requires that the regulations the criminal prohibitions enforce . . .  are well-​designed to serve a significant aspect of the polity’s common good; those who commit such offences therefore commit a wrong of failing to play their proper part in serving that good, or refusing to accept their fair share of the burdens that its pursuit involves.44

Accordingly, much will depend on the context. To illustrate, Duff discusses breaches of gun licensing laws, and demonstrates that these may be criminalized as wrongful, even if in the particular case, the actions do not risk harm. As he explains, [O]‌ne who keeps a gun without applying for a licence or after being refused a licence thus typically commits a wrong even if he in fact meets the substantive qualifying conditions for obtaining a licence: for he fails to provide the assurance of his trustworthiness that his fellow citizens are entitled to require. This is, admittedly, a lesser wrong than that committed by one whose ownership of a gun is substantively dangerous; but it is a public wrong nonetheless, which therefore makes its criminalization in principle appropriate.45

Tax evasion is a crime that has received surprisingly little attention from criminal law theorists.46 Nonetheless, it is useful to explore the rationales for criminalizing tax evasion, as it is an important manifestation of the criminalization of acts which may imperil the collective interest, but cannot be framed as directly harmful to others. Admittedly, some tax evasion sometimes shares features with stealing (such as when a retailer fails to pass on VAT receipts which have been collected from consumers), but generally speaking, tax evasion does not involve directly harming others in this way. Its impact on fellow citizens seems to be akin to cheating,47 or ‘free riding’ on the contribution of others.48 But importantly, accounts of the wrongfulness of tax evasion rest on an assumption that the regulation that comprises the tax system is tolerably fair. A further observation about tax evasion is warranted also. Tax authorities tend to use criminal prosecution as a last resort, and generally prefer other means to encourage compliance with tax obligations. Criminalization here is usually at the apex part of a regulatory enforcement pyramid, usually with only serious blameworthy breaches leading to criminal prosecution. Thinking through the criminalization of migration in light of these two examples—​ licensing and tax—​reminds us that the justification for criminalization depends on the

44 Duff, The Realm of the Criminal Law (n 5) 207. 45 Duff, The Realm of the Criminal Law (n 5) 207. 46 The notable exception is Stuart P Green, ‘What is Wrong with Tax Evasion?’ (2009) 9 Houston Business and Tax Law Journal 221; and ‘Tax Evasion as Crime’ in Monica Bhandari (ed), Philosophical Foundations of Tax Law (OUP 2017) 57. 47 As explored by Green (n 46). 48 ‘Free-​riding’ is Duff ’s choice of term: Duff, The Realm of the Criminal Law (n 5) 316.

Victim or Perpetrator?   321 fairness of the underlying regulatory system. However, as section B demonstrated, the fairness of immigration law is open to challenge. We can view this as an inevitable problem, as the subjects of immigration law are not its authors. For some political theorists, this is a reason to question the legitimacy of immigration law in toto.49 As mentioned above, Spena treats the currently exclusionary character of immigration law as manifestly unfair.50 If one accepts those views, then any criminalization of immigration infractions will be unjustified also. Alternatively, even if we (for sake of argument) accept that immigration laws are fair, we would still need strong reasons to justify criminalization. The assessment of justification of criminalization on a mala prohibita basis cannot be separated from an assessment of immigration laws in toto. This chapter has, thus far, examined the criminalization of migration largely in isolation from the administrative practices of detention and deportation. We now bring those practices back in to the assessment. For many commentators, a further objection to the criminalization of migration is that it doubly penalizes migrants, in that they may face both criminal sanctions as well as administrative ones, including possible deportation for their breaches of immigration law. In the immigration context, we find not a well-​ designed reflexive regulatory pyramid. Instead, rather than using criminal sanctions only if lighter administrative ones fail, the law tends to accumulate administrative and criminal sanctions. In this context, Spena argues that the criminalization of migration is a ‘veritable abuse of criminal law’, due to the highly selective arbitrary enforcement of criminal prohibitions.51 Irregular migrants are subject to administrative detention and deportation proceedings, rather than criminal trials in the main. The criminal prohibitions exist to coerce compliance with immigration rules, which in his view is an inappropriate use of criminal law. Aliverti’s work provides further insight into the institutional dynamics of criminalization of migration in the UK.52 She has identified the manner in which criminal law tends to be relied upon not as a ‘last resort’ but rather as a tool against the most vulnerable. As she demonstrates, criminal sanctions are used principally when administrative detention and deportation fail. The creation of new criminal offences is often driven by an administrative desire to criminalize all forms of non-​compliance with migration law. For instance, the various crimes pertaining to documentation prioritize the states’ bureaucratic need to register nationality, and its deportation function. But their impact is unclear—​indeed some are criminalized when compliance with the law is effectively impossible in their case. It should be noted also that many migrants are non-​deportable largely due to factors relating to the disposition of their home states, whose cooperation is required including cooperation on identification of nationals and others whose return is contemplated. In summary, this subsection has argued that the criminalization of irregular migration is not justified. This critique has assumed that a broad multifaceted role for the criminal law may be justified, applying a normative framework that has wide purchase, and accepting many forms of regulatory crime, from tax evasion, to licensing breaches and environmental

49 Arash Abizadeh, ‘Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Borders’ (2008) Political Theory 37. 50 Spena (n 6). 51 Spena (n 6) 650–​57. 52 Aliverti, ‘The Wrongs of Unlawful Immigration’ (n 6).

322  Criminality at Work crimes. Even given this latitude, the criminalization of migration falls short. In the next subsection, we turn to consider another aspect of this normative shortcoming.

3.  Wrongfulness—​Defences for the Blameless—​Refugees and Victims of Trafficking (a) Strict liability Turning to whether irregular migration may be regarded as wrongful, I note the preponderance of strict liability crimes in this context, which are particularly ill-​fitting given the types of individuals targeted by the criminal offences. Some immigration offences lead to the criminalization of those who have little opportunity to bring their behaviour within the law. For instance, some migrants have been convicted of the criminal offence of entering the UK without a passport, when procuring a passport from their countries of origin would have been materially impossible for them. Justifying strict liability offences is much easier if the addressee is a corporate actor, or a licensed one. Jeremy Horder’s treatment of regulatory crime reminds us that in most instances, the criminalized actor in regulatory crimes is a corporate or at least business undertaking. In his account accordingly, regulatory criminal law has a distinctive domain from the general criminal law. The general criminal law concerns: penal liability imposed on individuals, where both the limits and the nature of liability must be shaped by values such as dignity, personal autonomy, concern and respect. On the other hand, there is penal liability imposed on companies, where these values have little or no application, and where instrumental considerations of efficiency play a legitimate role in penalization decisions, even though values such as fairness and proportionality also play an important role.53

In contrast, the strict liability offences in the immigration context generally criminalize the conduct of individual human beings. Indeed, in practice, their focus tends to be on individuals who claim asylum or have proved difficult to deport. For instance, non-​compliance with documentation process in the context of removal is a crime.54 Often, the prosecuted are from poorer countries where there is a lack of formal documentation, or cooperative state of origin. The factors that determine whether criminal prosecution is pursued are often outside the control of the individual concerned, the very opposite of the notions of culpability that should inform general criminal law. Even if there are formal defences to exculpate the blameless, they have proved ineffective in practice. For example, there is a defence of ‘reasonable excuse’ to the ‘no document’ offence,55 but as Aliverti has demonstrated, it fails to protect the blameless.56

53 Jeremy Horder, ‘Bureaucratic Criminal Law: Too Much of a Bad Thing?’ in Antony Duff and others (eds), Criminalization: The Political Morality of the Criminal Law (OUP 2014) 101–​31. 54 Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 35. 55 Asylum and Immigration (Treatment of Claimants) Act 2004, s 2(7)(b)(iii). 56 Aliverti, ‘The Wrongs of Unlawful Immigration’ (n 6) 382.

Victim or Perpetrator?   323

(b) Limited defences for refugees and victims of trafficking The previous subsection identifies the preponderance of formal strict liability offences in the immigration context, as well as one ineffective defence. This subsection continues the theme of ineffective defences, with a brief examination of two of the key defences aiming to protect the blameless: The first concerns refugees, and the second victims of trafficking. A short section cannot do justice to the complexity of these questions, but this sketch serves to question their efficacy . The Refugee Convention contains a striking provision—​that of Article 31—​reflecting the drafters’ acknowledgment that refugees may be compelled to use irregular means when they flee. Article 31(1) states: The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.57

Article 31 requires states not to prosecute asylum-​seekers and refugees. However, in the UK, the presence of the defence was seen to legitimate the routine prosecution of asylum-​ seekers, and proved ineffective in practice to protect them from conviction. Article 31 has been implemented in the UK as a defence to some, though by no means all, immigration offences.58 In particular, the offence relating to ‘no documents’ is not covered by the defence, although asylum-​seekers are often prosecuted for that offence. Attempts to invoke Article 31 in the UK courts in order to prevent prosecution of asylum-​seekers failed.59 The routine criminalization of asylum-​seekers and refugees led to a series of interventions by the UK Criminal Cases Review Commission,60 the body concerned with miscarriages of criminal justice. In its intervention in Asfaw,61 UNHCR suggested that the manner of drafting and interpretation of the UK provision that sought to incorporate Article 31 had left refugees worse off. The legal regime surrounding trafficking is complex, but some important observations on criminalization may be gleaned from considering the practice of prosecuting even victims of trafficking for immigration offences. By definition, some victims of trafficking are coerced across borders for purposes of exploitation. The international instruments aiming to suppress both smuggling and trafficking envisage that migrants themselves should not be the primary object of criminalization.62 The analogous domestic protection for victims of 57 For a comprehensive analysis, see Cathryn Costello, Yulia Ioffe, and Teresa Buchsel, Article 31 of the 1951 Convention Relating to the Status of Refugees (UNHCR July 2017). 58 Immigration and Asylum Act 1999, s 31. 59 See, eg, R v Uxbridge Magistrates Court and another, ex parte Adimi (n 20); R v Asfaw [2008] UKHL 31, [2008] 1 AC 1061; SXH v The Crown Prosecution Service [2017] UKSC 30, [2017] 1 WLR 1401. 60 Yewa Holiday, ‘CCRC Concern Over Advice Given to Refugees’ Law Society Gazette (14 June 2012) accessed 5 August 2019; Yewa Holiday, Elspeth Guild, and Valsamis Mitsilegas, The Court of Appeal and the Criminalization of Refugees (2018) accessed 5 August 2019. 61 UNHCR, ‘UNHCR Intervention before the House of Lords in the Case of Regina (Respondent) and Fregenet Asfaw (Appellant)’ (28 January 2008) [7]‌. 62 See Andreas Schloenhardt and Hadley Hickson, ‘Non-​Criminalization of Smuggled Migrants:  Rights, Obligations, and Australian Practice under Article 5 of the Protocol against the Smuggling of Migrants by Land,

324  Criminality at Work trafficking is found in section 45 of the Modern Slavery Act, which provides a full defence to victims of slavery or trafficking who have been compelled by their exploitation to commit an offence.63 To rely on the defence, they must show that a reasonable person in the same circumstances and with the same characteristics of the accused would have ‘had no realistic alternative to doing that act’. The practical workings of section 45 illustrate that it is not an effective barrier to the criminalization of victims of trafficking.64 Thus, in 2016, GRETA, the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings expressed concern about cases where even child victims of trafficking had been convicted (in these cases admittedly of other criminal activity, namely the cannabis growing in which they were forced to labour). Similarly, the UN Committee on the Rights of the Child urged that a ‘clear obligation of non-​prosecution’ was necessary.65 The independent review of the Modern Slavery Act expressed doubts as to whether section 45 is compatible with non-​ criminalization provisions of the EU Trafficking Directive.66 Both refugees and victims of trafficking are understood to have good cause under certain circumstances to violate immigration laws. Refugees, as section B explored, have few legal routes to protection. Victims of trafficking are often coerced across borders. The criminalization of both these groups persists, in spite of defences ostensibly designed to protect them.

D.  Some Consequences of Criminalization The argument of the preceding sections of this chapter has been that the criminalization of irregular migration in the UK lacks sufficient justification or normative basis. In this conclusion, it is briefly suggested that this criminalization, moreover, gives rise to two sets of undesirable consequences.

1.  Criminalization Begets Criminalization The first issue arises out of the expressive power of criminalization in particular, as part of a general discourse about irregular migration. That expressive power leads to a strong assumption that irregular migration is harmful and wrongful—​dangerous indeed; perhaps even a security threat. Over time, we see that the intensity and breadth of criminalization has increased.

Sea, and Air’ (2013) 25(1) International Journal of Refugee Law 39; Andreas Schloenhardt and Rebekah Markey-​ Towler, ‘Non-​criminalization of Victims of Trafficking in Persons: Principles, Promises, and Perspectives’ (2016) 4 Groningen Journal of International Law 10. 63 Note this is not only for immigration crimes, but all crimes with the exception of those set out in sch 4 of the Modern Slavery Act. 64 UNICEF Victim, Not Criminal: Trafficked Children and the Non-​Punishment Principle in the UK (UNICEF May 2017). 65 UNCRC, CRC/​C/​GBR/​CO/​5 (12 July  2016). 66 ‘The Modern Slavery Act Review’ .

Victim or Perpetrator?   325 As Weber has identified, the criminalization of irregular work has intensified over the past twenty years from employer sanctions in 1996, to criminalization of knowingly employing unauthorized workers with stricter documentary checks in 2006, to the lowering of the employer mens rea and the new criminal offence of illegal working, enabling the confiscation of wages as ‘proceeds of crime’ in 2016.67 As Davies has noted, the latter move is in conflict with norms of international labour and human rights law, which generally protect at least the worker’s right to backpay.68 Criminalization has also expanded in scope. Take for example the wide criminalization of human smuggling, which often criminalizes any assistance in the illegal crossing of borders and in staying illegally (as reflected under the EU Facilitation Directive69). This move is dependent on the assumed criminality of the irregular migration and stay, and leads to harmless, and indeed sometimes helpful or even life-​saving acts of assistance being criminalized.70 I suggest that both the intensification and expansion of criminalization are facilitated by the expressive power of the ‘original sin’ of assuming that irregular migration itself is harmful and wrongful.

2.  Criminalization Blocks Regularization The previous subsection demonstrates that criminalization increases in intensity and scope. Yet, both Aliverti and Spena note that the criminalization of migration is often characterized by lax enforcement. Their findings are consistent with the other key feature of immigration policy-​making, namely the domination of symbolic policies. To illustrate, Slaven and Boswell’s recent historical study of the UK migration control demonstrates that its focus shifted to ‘addressing the individual transgression of rules’ such that by 1969, in spite of the fact that ‘[t]‌he Home Office considered an individualized and punitive approach resource-​ intensive and ineffective’ but adopted this approach as it ‘appeared to be demanded by public narratives of the problem’.71 They note: One of the most intriguing insights from the analysis concerns the perceived lack of leeway for officials, once the issue had been framed in this punitive way. It suggests that certain narratives of migration control may exert particular influence in political debate, making them more difficult for officials to counter.72

Because criminalization fits such an easy political narrative, casting irregular migrants as dangerous wrongdoers and scapegoating them for all manner of ills, it exerts a powerful and 67 Frances Weber, ‘On the Creation of the UK’s Hostile Environment’ (2018) Race and Class 1. 68 Davies (n 3). 69 Council Directive 2002/​90/​EC of 28 November 2002 defining the facilitation of unauthorized entry, transit, and residence, OJ L 328, 5.12.2002, 17–​18. 70 Rachel Landry, ‘The “Humanitarian Smuggling” of Refugees: Criminal Offence or Moral Obligation?’ (RSC Working Paper Series 2016) accessed 5 August 2019. 71 Mike Slaven and Christina Boswell, ‘Why Symbolize Control? Irregular Migration to the UK and Symbolic Policy-​making in the 1960s’ (2018) 45(9) Journal of Ethnic and Migration Studies 1477. 72 ibid.

326  Criminality at Work dangerous political pull.73 Criminalization begets criminalization, and in turn crowds other legal and political avenues. Questions concerning states’ own impropriety, illegality, and the duties that accrue to migrants (in particular migrant workers and their families) over time are often obscured. Casting irregular migrants as deserving of punishment and deportation obscures the fact that they may have strong claims to regularization. Regularization, if properly designed, has a strong worker-​protective role, benefitting both the local and the migrant workforce. In short, and in general, we may conclude that the criminalization of migration sets up a symbolic, discursive, and practical barrier to labour market and social inclusion for irregular migrants.

E.  Conclusion To conclude, the criminalization of irregular migration in the UK lacks justification. This is due in part to the manner in which immigration itself is regulated, which means that the creation of criminal offences parasitic on the mere fact of breaching immigration law lacks justification. This is not to rule out any possible role for criminal law if the offences in question were differently constituted. Offences could be defined by their wrongful harm to others, focusing on, say, serious labour market exploitation. At first glance, there may be good reason to criminalize the deception and exploitation involved in many instances of trafficking, for instance, but even with regard to such practices, there may be many more effective regulatory tools than the criminal law. At present, the criminalization of migration crowds out clear-​headed examination of how to regulate immigration in order to offer opportunities to migrants and refugees, and protect local workers.



73

Bridget Anderson, The Dangerous Politics of Them and Us (OUP 2013).

17

Doing the Dirty Job Labour at the Intersections of Criminal Law and Immigration Controls Ana Aliverti*

A.  Introduction In recent decades in Britain as in other prosperous countries, the mobility of people from poorer parts of the globe has met with increasing draconian measures. Border controls have become stiffer and more systematically enforced both at the external border and inland. Criminal law is an integral part of this modern legal architecture to enforce the geopolitical and social borders of the nation-​state. In the UK, most immigration law breaches are now also criminal offences while the distinction between criminal and immigration law enforcement is blurring.1 Because labour is regarded as the main pull factor for migration, new rules and laws have been introduced to limit the supply and demand of labour, while the workplace is turning into a key site for immigration law enforcement.2 Along with restrictions to economic migration from outside the European Union, specific criminal offences penalize employment relations involving individuals who are not allowed to work. The growing involvement of the criminal law in this sphere has revitalized debates within criminology on the relationship between criminalization, punishment, and economic structure.3 While the criminal law and the prison were instrumental in producing a docile and disciplined reserve army of labourers out of the vernacular ‘dangerous classes’ to source * I am indebted to the editors of this volume for encouraging a reflection on this under-​examined area of law through well-​crafted guidance and comments, and to them and the participants in the Bristol workshop in June 2018 for facilitating a constructive environment for debates and critique. I am particularly grateful to Jennifer Collins, Alan Bogg, and Henrique Carvalho for detailed comments on earlier versions of this chapter. All mistakes are mine. 1 Katja F Aas and Mary Bosworth (eds), The Borders of Punishment: Criminal Justice, Citizenship and Social Exclusion (OUP 2013) viiii; Leanne Weber and Ben Bowling, ‘Valiant Beggars and Global Vagabonds’ (2008) 12 Theoretical Criminology 355, 360; Ana Aliverti, Crimes of Mobility:  Criminal Law and the Regulation of Immigration (Routledge 2013) 1–​8. 2 Bridget Anderson, ‘Migration, Immigration Controls and the Fashioning of Precarious Workers’ (2010) 24 Work, Employment & Society 300, 302; Alice Bloch, Leena Kumarappan, and Sonia Mckay, ‘Employer Sanctions: The Impact of Workplace Raids and Fines on Undocumented Migrants and Ethnic Enclave Employers’ (2014) 35 Critical Social Policy 132, 135; Martin Ruhs and Bridget Anderson, ‘Semi-​Compliance and Illegality in Migrant Labour Markets: An Analysis of Migrants, Employers and the State in the UK’ (2010) 16 Population, Space and Place 195, 200. 3 Kitty Calavita, Immigrants at the Margins: Law, Race, and Exclusion in Southern Europe (CUP 2005) 1–​13; Alessandro De Giorgi, Re-​thinking the Political Economy of Punishment: Perspectives on Post-​Fordism and Penal Politics (Ashgate 2006) 111–​29; Dario Melossi, ‘Punishment and Migration Between Europe and the USA:  A Transnational “Less Eligibility”?’ in Jonathan Simon and Richard Sparks (eds), The SAGE Handbook of Punishment and Society (Sage 2013) 427; Kitty Calavita, ‘A “Reserve Army of Delinquents”: The Criminalization and Economic Punishment of Immigrants in Spain’ (2003) 5 Punishment & Society 399, 400; Alessandro De Giorgi, ‘Immigration Control, Post-​Fordism, and Less Eligibility: A Materialist Critique of the Criminalization Of Immigration Across Europe’ (2010) 12 Punishment & Society 147, 150–​52. Ana Aliverti, Doing the Dirty Job In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.0017

328  Criminality at Work the factories of the incipient industrializing European states,4 the illegalization and criminalization of the globalized proletariat serve a similar disciplinary function in the contemporary economic order, albeit with an important caveat. The threat of removal of illegalized workers, which the criminal law reinforces in this sphere, is not aimed at integrating them into the national labour market, but rather the contrary: to excluding them from it. Yet, the effects (or latent function) of criminalization and illegalization is to produce status precariousness—​including by pushing migrants to rely on intermediaries or smugglers, and contract debts—​and set the conditions for exploitative employment relationships. Less attention has been devoted to the specific functions of criminal law and the normative grounds for criminalization in this sphere. The relationship between mobility, labour, and penal regulation has a long history. Yet, this relationship has shifted over time: how ideas of wrong and harm have been conceptualized, what has been criminalized and how, and what constituted the proper object of criminalization have been contingent upon changing understanding of citizenship, labour relationships, and social, political, and economic order. Criminal law operates within and supports other social, legal, and institutional structures towards achieving socially desirable ends, be they safeguarding the integrity of border controls, ensuring labour supply, guaranteeing fair labour completion, or reducing exploitative employment conditions. Instead of evaluating the function of criminal law according to abstract moral values or pre-​legal wrongs, I propose to assess its role in this sphere with reference to the changing ends and emergent social needs that it is called to fulfil and the values that have guided it. Those ends might and do contradict themselves, and it is important to capture how the law articulates and resolves those contradictions, what interests it privileges, what social relations and subjects it protects. Criminal law is an instrument to create normative order. Because it is backed by punishment, criminal law is a distinctive and powerful tool of social regulation. As Lindsay Farmer5 argued, the content and function of the criminal law is shaped by prevailing ideas of civil order. Conceptualizing criminal law as oriented towards securing civil order, Farmer suggested, offers a framework to make intelligible the disparate rules which form part of the criminal law and sheds light on the contingency of criminalization. At the same time, it provides a ‘normative horizon for thinking critically about the criminal law’.6 This approach is particularly helpful to understand and cast a critical eye on the function of the criminal law in the regulation of the labour market in an era of globalization and mass migration. It brings to light historical continuities in the penal regulation of mobility and labour, and the imprints of legal categories and hierarchies on current norms and practices helps us make sense of the unevenness of protections and calls to account the criminal law in its commitment to generality, consistency, and justice. This chapter examines the place of criminal law and criminalization in the regulation of the migrant labour in contemporary Britain. It explores the legal architecture that shaped the domestic labour market and the impact of the growing intertwining of criminal and immigration laws for delimiting the boundaries of legitimate employment relations. It 4 cf George Rusche and Otto Kirchheimer, Punishment and Social Structure (Columbia University Press 1939) ch v; EP Thompson, Whigs and Hunters. The Origin of the Black Act (Originally published 1975, Breviary Stuff Publications 2013) 202–​10; William Chambliss, ‘Vagrancy Law in England and America’ in Donald Black and Maureen Mileski (eds), The Social Organization of Law (Seminar Press 1973) 133. 5 Lindsay Farmer, Making the Modern Criminal Law: Criminalization and Civil Order (OUP 2016) 37. 6 ibid 302.

Intersections of Criminal Law and Immigration Controls  329 builds on the work of Farmer and other criminal law scholars who foregrounded socio-​ legal, historical, and political theory approaches to examine the criminalization question, and the relationship between criminal law, state sovereignty, and social and economic order. Following the review of their work, the main part of the chapter is organized in three sections, which roughly match distinct historical periods in the development of the modern English criminal law.7 The first section charts the birth of the modern criminal law and its importance for the regulation of labour within England and Britain and in the colonies (late 1700s–​early-​to mid-​1900s). The second section considers the role of criminal law and its changing functions in labour regulation during the emergence and consolidation of the welfare state (between the post-​wars and 1980s). The third section focuses on the last three and a half decades. This is an era marked by decreased state regulation of the economy and strong state intervention to deregulate and liberalize the labour market, coupled with social and economic liberalization and deregulation, and the intensification of global movement of goods, services, and labour. The section documents the novel significance of migration law and controls in the regulation of labour and the place of criminalization for supporting border control imperatives. I conclude by highlighting how the examination of labour and migration through criminal law brings to the fore historical continuities and discontinuities in the function, ideas, and values underpinning criminalization, and advocating for a stronger engagement of criminal law theory with social theory. Civil order, I argue, relies on borders and exclusion. In securing it, criminal law preserves a ‘civilized’ sphere of rights and welfare while heightening marginalization and exploitation of those excluded from that sphere.

B.  Criminal Law as an Institution The question of criminalization, what should be the scope and limits of criminal law, has recently garnered scholarly attention and produced a fine body of work within criminal law theory and the philosophy of criminal law in Anglo-​American scholarship.8 Animated by the stark increase in offences added to the statute book and concerns about their deviation from liberal criminal law principles, scholars debated what should be the proper business of criminal law and the principles and values to guide criminalization. Much of that work places emphasis on either harms or wrongs, and seeks to identify abstract, pre-​existing goods, interests and rights that should set the remit of criminal law. Lindsay Farmer9 explained that such approaches are reductive, failing to appreciate the role of criminal law within a broader institutional, social, and political framework. They tend to legitimize criminal law’s intervention in the protection of individual rights but struggle to justify 7 Peter Ramsay, ‘The Responsible Subject as Citizen: Criminal Law, Democracy and the Welfare State’ (2006) 69 Modern Law Review 29; Farmer, Modern Criminal Law (n 5). 8 Among others, Andrew Ashworth and Lucia Zedner, Preventive Justice (OUP 2014); Douglas Husak, Overcriminalization. The Limits of the Criminal Law (OUP 2008); RA Duff and others (eds), The Boundaries of the Criminal Law (OUP 2010); RA Duff and others (eds), The Structures of the Criminal Law (OUP 2011); RA Duff and others (eds), The Constitution of the Criminal Law (OUP 2013); RA Duff and Stuart Green (eds), Philosophical Foundations of Criminal Law (OUP 2011). 9 Linday Farmer, ‘Criminal Law as an Institution. Rethinking the Theoretical Approaches to Criminalization’ in RA Duff and others (eds), Criminalization The Political Morality of the Criminal Law (OUP 2014) 89; Lindsay Farmer, ‘The Obsession With Definition: the Nature of Crime and Critical Legal Theory’ (1996) 5 Social & Legal Studies 57, 58; Farmer, Modern Criminal Law (n 5) ch 1.

330  Criminality at Work its role in preserving social and collective rights. An ideal theory of criminal law based on abstract values, he argued, is of little value because it is too disconnected from the actual function that it is called to fulfil, and fails to appreciate the distinction between criminal law and morality.10 For Farmer, criminal law is an institution the central function of which is to enable governance and normative ordering. Conceiving the criminal law as an institution requires us to attend to the distinctive institutional purpose that it is oriented to fulfil and to the historical context in which it emerged, thus the need to link criminal law theory to socio-​ historical accounts of criminal law. The making of the English criminal law is connected to the formation of the modern British state in the late eighteenth century, and it has been crucial for the exercise of sovereign power domestically and for imperial expansion. Farmer argued that the aim of modern criminal law is to secure civil order, that is not just any social order but order governed by state law: ‘the distinctive feature of civil order is thus the existence of legal institutions in the sense not only of the existence of norms of conduct but also as an apparatus of rule which can regulate social relations and settle disputes by adjudicating between norms’.11 Securing civil order is not circumscribed to preventing crime and monopolizing violence. It implies creating the conditions of a civil society and ‘the rational government of individuals and their interest in a commercial society’.12 The idea of civility provides a framework for delimiting the scope of criminalization: on the one hand, the criminal law should set standards of individual conduct to secure social interest in civil order; and on the other, it should limit the role of law to secure a particular kind of civil order. Yet, the idea of civil order cannot be disentangled from the existing political structures and relationships in society. Prevailing ideas of civil order are value-​driven and have often represented the interests of powerful sectors in society.13 So too, counter-​hegemonic movements to expand the notion of citizenship and to question the law’s frames by workers, women, and racially discriminated groups have had a crucial role in precipitating societal and legal changes, and shaping questions of normative order. Farmer acknowledges the pliability of civil order to accommodate more progressive views within law and advocates for a normative theory that takes into account competing social and political forces underpinning criminalization decisions. This formulation of the criminalization question admittedly provides a vague and lax normative framework, and at times remains elusive and hard to disentangle from the thick sociological and historical description presented. Yet, it also offers a richer and more complex understanding of the function of criminal law in modern society. What is criminalized and how this is done is contingent upon shifting ideas of civil order and depends on societal changes and values, and the way they have been institutionalized through law.14 Even in relation to ‘core’ or ‘paradigmatic’ crimes, such as rape and other sexual offences, the interest 10 See also Peter Ramsay, The Insecurity State: Vulnerable Autonomy and the Right to Security in the Criminal Law (OUP 2012) 7–​8; Nicola Lacey, In Search of Criminal Responsibility: Ideas, Interests, and Institutions (OUP 2016); Nicola Lacey, ‘Contingency and Criminalization’ in Ian Loveland (ed), The Frontiers of Criminality (Sweet & Maxwell 1995). 11 Farmer, Modern Criminal Law (n 5) 41. 12 ibid 59. 13 Henrique Carvalho, The Preventive Turn in Criminal Law (OUP 2017); Alan Norrie, Crime, Reason and History. A Critical Introduction to Criminal Law (2nd edn, CUP 2001). 14 Lindsay Farmer, ‘Time and Space in Criminal Law’ (2010) 13 New Criminal Law Review 333.

Intersections of Criminal Law and Immigration Controls  331 protected and the rationale for criminalizing them have shifted over time: from the protection of morals to the protection of sexual autonomy.15 This is why the traditional description of the proper scope of criminal law around core crimes, mala in se offences or alleged universal characteristics of the criminal law, is not particularly useful nor accurate. Rather, a theory of criminalization—​of the proper sphere of criminal law—​should assess the role of criminal law in relation to its social purposes and the values that it stands for. There are no absolute limits on the areas subject to criminalization and the modalities in which this is done. Conceiving the criminal law as an institution entails considering not only its form, but also its institutional embodiment (its administration and territorial scope) and how it shaped the modern criminal law. Farmer provides a fascinating account on how the civilizing potential of criminal law legitimized the expansion of its jurisdiction on people and territories regarded as barbaric during the British Empire. He also points out that a theory of criminalization should attend to the social function of criminal law in excluding certain groups and must ‘address the fact not only that [the] conduct to be criminalized cannot always be identified independently of other legal, social, and institutional structures’, but also that the criminal law is mobilized for the instrumental and symbolic power it commands.16 Farmer’s unorthodox approach to the criminalization question offers a promising framework that incorporates criminological, historical, and normative analysis to assess the interrelationship between mobility, labour, and criminal law. I explore the function of criminal law in labour regulation through the prism of citizenship and race, and connect the shifting rationale for criminalization in this sphere to broader social, economic, and political transformations. I identify three key historical phases: first, during state building, imperial expansion and industrialization (between late eighteenth century and early twentieth century); second, during the development of the British welfare state and the decolonization process (early twentieth century to 1980s); and third, with the rise of the neo-​liberal state (since the 1980s). I turn to this analysis in the following section.

C.  Historicizing Criminalization: Labour Market, Sovereignty, and Criminal Law (Late Eighteenth Century to 1900s) Labour relationships and the legal regulation of the labour market have rarely featured in criminal law theory. Yet, the criminal law has historically played a significant role in this sphere particularly during industrialization and modern state formation in the late eighteenth and early nineteenth centuries.17 Poor laws, vagrancy laws, settlement laws, and master and servant laws formed part of the legal weaponry put in place to source fields, ports, and factories with workers; to control employment relations; and placate strikes in England and across the British Empire.18 This body of laws were crucial for ensuring labour 15 Vanessa Munro, ‘Offenses Against Sexual Autonomy’ in Markus Dubber and Tatjana Hörnle (eds), The Oxford Handbook of Criminal Law (OUP 2014); Farmer, ‘Time and Space’ (n 14). 16 Farmer, ‘As an Institution’ (n 9) 87. 17 Nicola Lacey, ‘Historicizing Criminalization:  Conceptual and Empirical Issues’ (2009) 72 Modern Law Review 936, 952. 18 Mark Brown, Penal Power and Colonial Rule (Routledge 2014); Dana Rabin, Britain and its Internal Others, 1750-​1800: Under Rule of Law (Manchester University Press 2017); Chambliss (n 4); Dana Rabin, ‘Empire on Trial. Slavery, Villeinage and Law’ in Shaunnagh Dorsett and John McLaren (eds), Legal Histories of the British Empire

332  Criminality at Work discipline and a strict division of labour, paving the way to the new global economic order and of Britain as the industrial centre of the world. During this period, criminal law assumed a distinctive function in shaping that social order through the criminalization of various forms of employment misbehaviour. As Douglas Hay and Paul Craven19 have documented in their detailed study on master and servants legislation, these laws ruled employment relations in mainland Britain and in more than 100 colonies through more than 1000 statutes for over three centuries. As their title suggests, these statutes were underpinned by a highly hierarchical and patriarchal idea of labour relationship according to which the employer had the right to command, and the employee a duty to obey. Breach of employment contract carried severe penalties, which ranged from fines, forfeiture of wages, forced labour, and even whipping. In metropolitan Britain, master and servants statutes criminalized a range of workers’ misbehaviours (including absences, disregards of orders, and working for another employer) and criminal sanctions for failing to discharge employment duties were deeply entrenched into employment law.20 These laws were also widely enforced. Between the mid and late nineteenth century, with the creation of a centralized police force and the expansion of correction facilities, the rate of convictions and imprisonment increased sharply. In 1854 alone, around 5500 men and women workers were summarily convicted and imprisoned for breach of contract.21 While a small proportion of workers in breach were penalized, convictions and punishments were designed to be exemplary and to deter others.22 Following mounting criticisms and campaigning by trade unions,23 in 1875 the English master and servants law was eventually removed from the statute book. Yet, similar laws continued to rule the terms of employment in imperial jurisdictions (including the Caribbean, Africa, and Asia) well into the twentieth century and until independence. Consistent with the view that modes of ruling should be calibrated according to the degree of civilization of different social groups,24 some of the master and servants laws in the colonies were considerably harsher than their contemporary English cousin legislation and exempted Europeans from their terms, either explicitly or implicitly (by regulating sectors de facto reserved to natives).25 The rationale for the strict differentiation of groups of workers within the same jurisdiction was, according to Hay and Craven, that ‘the nonwhite worker was not yet civilized enough to be disciplined by love of contract alone’.26 Master and Laws, Engagements and Legacies (Routledge 2014); Douglas Hay and Paul Craven (eds), Masters, Servants and Magistrates in Britain and the Empire, 1562–​1955 (University of North Carolina Press 2004). 19 Douglas Hay and Paul Craven, ‘Introduction’ in Hay and Craven, Masters (n 18). 20 Douglas Hay, ‘England, 1562–​1875: The Law and Its Uses’ in Hay and Craven, Masters (n 18). See, eg, 1766, 6 Geo III c 25; 1823, 4 Geo IV c 34; 1867, 30&31 Vict c141. 21 Hay, ‘Law and Its Uses’ (n 20) 60. 22 Hay, ‘Law and Its Uses’ (n 20). 23 Christopher Frank, ‘Britain: The Defeat of the 1844 Master and Servants Bill’ in Hay and Craven, Masters (n 18). 24 David Anderson and David Killingray, ‘Consent, Coercion and Colonial Control: Policing the Empire, 1830–​ 1940’ in David Anderson and David Killingray (eds), Policing the Empire: Government, Authority and Control, 1830–​1940 (Manchester University Press 1991). 25 MK Banton, ‘The Colonial Office, 1820–​1955’ in Hay and Craven, Masters (n 18) 276. For example, in the Cape and the West Indian legislation, offences were particularly broad criminalizing workers for behaving with ‘violence or insolence’ towards employers or with ‘scandalous morality’, for drunkenness or for other ‘gross misconduct’. Other offences criminalized workers for causing losses to employers (including being unable to explain the death of livestock), and those convicted could be made to work without wages for the victimized employer. 26 Hay and Craven, ‘Introduction’ (n 19) 48; also Banton, ‘The Colonial Office’ (n 25) 267.

Intersections of Criminal Law and Immigration Controls  333 servants laws, along with vagrancy, pass, and native registration laws, aided the transition from subsistence economies to large scale extractive industries and aimed at disciplining native labour to serve the new economic demands within the British Empire by preventing casual or informal employment and idleness.27 Post-​emancipation, they were used to control ex-​slaves and imported labourers. In the British Caribbean, ensuring labour discipline and placating strikes by the ‘coolies’ (Indian workers) was a central task of newly formed police forces.28 Criminal law played an important function in the regulation of labour by enabling or stopping the movement of workers within the British Empire. Market laissez faire was insufficient to serve the labour demands of the incipient global economic order. Penal coercion guaranteed the supply of a disciplined, cheap, and ready available labour force within colonies and between different corners of the Empire by limiting mobility in places of labour shortages or forcing people to migrate to sites where they were most needed. Imperial subjects were mobilized to fulfil labour shortages; yet, their placement in different jurisdictions was animated not just by economic imperatives. Perceptions of different racialized groups as being better suited for particular forms of work and more adaptable to certain territories and weather played a key part in the global distribution of labourers throughout the Empire. Whereas Indian workers were regarded as fitting in the African and the Caribbean colonies,29 long-​term nonwhite migrant labourers to majority white settlements (such as Australia and Canada) were discouraged by colonial administrators.30 While racialized ideas of worker’s fitness, assimilability, and affinity were often in tension with economic considerations and the principle of universality underpinning British citizenship, they were eventually crucial for legally terminating the free movement of some imperial subjects.31 The legal regulation of labour mobility within the Empire in nineteenth and twentieth centuries had an enduring impact on the contemporary racial stratifications in former colonies. Despite differences in the terms and remits of their application, master and servants laws targeted the ‘dangerous’ classes (the poor, ex-​slaves, indentured migrants, unionized workers, ex-​convicts, mutineers) in both the metropolis and the colonies, and were envisaged as a civilizing tool. As historian Clare Anderson eloquently showed,32 in nineteenth-​ century India the registration of indentured migrant labourers and their strict control during their journey abroad bore striking resemblances with the treatment of convicts bound to serve their sentences in foreign lands. The parallels in practices and discourses on labour migration and penal transportation capture the perceived state-​sponsored and unfree nature of indentured labour, but also the early institutional identification of economic

27 Joanna De Groot, ‘Metropolitan Desires and Colonial Connections:  Reflections on Consumption and Empire’ in Catherine Hall and Sonya Rose (eds), At Home with Empire: Metropolitan Culture and the Imperial World (CUP 2006); Justin Willis, ‘Thieves, Drunkards and Vagrants: Defining Crime in Colonial Mombasa, 1902–​ 32’ in Anderson and Killingray, Policing the Empire (n 24). 28 Howard Johnson, ‘Patterns of Policing in the Post-​emancipation British Caribbean, 1835-​95’ in Anderson and Killingray, Policing the Empire (n 24). 29 Madhavi Kale, ‘ “Capital Spectacles in British Frames”: Capital, Empire and Indian Indentured Migration to the British Caribbean’ (1996) 41 International Review of Social History 109. 30 Michael Quinlan, ‘Australia, 1788–​1902. A  Workingman’s Paradise?’ in Hay and Craven, Masters (n 18); Radhika Mongia, ‘Race, Nationality, Mobility: A History of the Passport’ (1999) 11 Public Culture 527. 31 Renisa Mawani, ‘Specters of Indigeneity in British-​Indian Migration, 1914’ (2012) 46 Law & Society Review 369. 32 Clare Anderson, ‘Convicts and Coolies: Rethinking Indentured Labour in the Nineteenth Century’ (2009) 30 Slavery & Abolition 93, 96.

334  Criminality at Work migrants with criminality and disorder. Labour, mobility, and disorder have been historically connected.33 During modern state formation, the criminal law intervened heavy handedly to instil habits and values on the nascent working classes. As a social engineering tool, it supported the crafting of the ‘national’ labour markets.

D.  Labour Protection, Citizenship, and Criminalization (early 1900s until 1980s) The place of criminal law in the regulation of labour acquired different shapes and functions within metropolitan Britain, on the one hand, and in various colonies, on the other. This two-​tier system developed from the beginning of the twentieth century along with shifting conceptions of citizenship and social order, and on the function of criminal law in securing that order. With the advent of collective workers’ movement and the expansion of social citizenship, criminal law became an important tool to uphold social rights, including welfare and workers’ rights, and to counter power imbalances in labour relationships. In mainland Britain, the rationale for criminalization shifted from an emphasis on labour supply to employment conditions.34 At the beginning of the twentieth century, as labour regulation in various colonies was criticized for its emphasis on discipline and the precarious labour conditions it legitimized,35 state-​sponsored basic labour safeguards were put in place. While labour regimes such as indentured labour incorporated worker-​protective clauses obliging employers to comply with minimum standards of working and living conditions related to the provision of clothing, accommodation, food, and medicines, and on the maximum hours of work and wage rates, this welfare orientation of colonial labour regimes differed markedly from the contemporary metropolitan regulation of labour. Labour conquests in metropolitan Britain were articulated through the language of rights, citizenship, and ‘industrial’ enfranchising via collective bargaining, and advanced by radical labour movements pursuing broader social and political changes. In contrast, the worker-​protective regulation of indentured labour was pushed by the state. Reminiscent of contemporary legal responses to trafficking victims,36 labour protections were premised on the vulnerability of workers and the pastoral state’s role in ensuring minimum conditions of humanity. As Sturman observed, ‘The

33 Bridget Anderson, ‘Precarious Pasts, Precarious Futures’ in Cathryn Costello and Mark Freedland (eds), Migrants at Work: Immigration and Vulnerability in Labour Law (OUP 2014). 34 Although worker-​protective criminal legislation—​including the Factory acts enacted during the nineteenth century–​are important predecessors of the significant shift that took place at the turn of the century:  Jeremy Horder, ‘Bureaucratic “Criminal” Law: Too Much of a Bad Thing?’ in Duff and others, Political Morality (n 9); WG Carson, ‘White-​Collar Crime and the Enforcement of Factory Legislation’ (1970) 10 British Journal of Criminology 383. 35 Including by the International Labour Organization, humanitarian groups, and the Indian government. The demand for stricter labour standards grew in light of the insecure conditions of work that led to a high death toll among Indian workers bound to and working in the Caribbean: Rachel Sturman, ‘Indian Indentured Labour and the History of International Rights Regimes’ (2014) 119 The American Historical Review 1439, 1457. 36 Bridget Anderson, ‘Mobilizing Migrants, Making Citizens: Migrant Domestic Workers as Political Agents’ (2010) 33 Ethnic & Racial Studies 60; Bridget Anderson, ‘Where’s the Harm in That? Immigration Enforcement, Trafficking, and the Protection of Migrants’ Rights’ (2012) 56 American Behavioral Scientist 1241; Jennifer M Chacón, ‘Tensions and Trade-​Offs: Protecting Trafficking Victims in the Era of Immigration Enforcement’ (2010) 158 University of Pennsylvania Law Review 1609.

Intersections of Criminal Law and Immigration Controls  335 idea of provisioning of labour welfare as a matter of humanity was made fully compatible with a form of imperial subjecthood that entailed exclusion from modern citizenship.’37 In metropolitan Britain, the criminal law assumed a crucial role in the redistribution of social risks and responsibilities, and the tackling of social inequalities. Consistent with the expansive role of the welfare state in social life, new offences were created to regulate industries and businesses. In the context of labour, its intervention included the criminalization of employers for breaching their duties to create safe working conditions, to pay fair wages, and to ensure social protections. As Ramsay explained, these new offences regulating labour and industrial relations place the burden on those ‘who stand to gain by market relations . . . by making them do so at their peril in relation to certain risks to the interests of others (ie, employees and consumers) which their market activity runs’.38 He suggested that changes to forms of liability are directly related to shifting conceptions of citizenship. In the welfare state, citizenship encompassed social inclusion, hence the criminal law legitimately intervened to socialize risks and mitigate the excesses of industrial capitalism, while appeasing class tensions and preventing the radicalization of the working classes.39 Ramsay sheds light on how socially inclusive conceptions of citizenship helped craft a more worker-​protective function of criminal law through the introduction of so-​called ‘welfare’ offences. Yet, his analysis fails to capture the already exclusionary and segmented space of citizenship.40 The welfare orientation of criminal law in the regulation of labour developed alongside both labour protectionism, and a highly racially fragmented labour market where secure and safer ‘working class’ jobs were mostly reserved to white British workers. On the one hand, the employment of foreigners was tightly regulated through immigration restrictions.41 On the other, darker coloured imperial subjects, while formally British subjects, faced de facto social and labour discrimination in metropolitan Britain. Their British citizenship, upheld through the British Nationality Act 1948, was territorially bounded. Up until the 1920s and 1930s, the movement of colonial subjects was discouraged because it threatened the economy of imperial extraction and once in the UK they faced a hostile reception.42 As Carter and colleagues explained, coloured British subjects were regarded as an unassimilable race. This in turn shaped the conditions under which racialized workers sold their labour and accounted for their subordinate position in the labour market.43 Trade unions adopted a hesitant stance towards the new arrivals. While they did not directly oppose their incorporation into the domestic labour market, they did not 37 Sturman (n 35)  1457. The role of trade unions and the workers’ movement was particularly important during decolonization, as Cooper observed in relation to French Africa:  Fred Cooper, ‘The Dialectics of Decolonization: Nationalism and Labour Movements in Postwar French Africa’ in Fred Cooper and Ann Stoler (eds), Tensions of Empire Colonial Cultures in a Bourgeois World (University of California Press 1997). 38 Ramsay, ‘The Responsible Subject’ (n 7) 49. 39 See also Farmer, Modern Criminal Law (n 5) 89. 40 Carvalho (n 13) 171. 41 During the inter-​war period, the Aliens Order 1920 imposed strict landing conditions on ‘aliens’ who were not allowed to change their employers without authorization by the Ministry of Labour and National Service. Foreigners could only be employed in sectors which had manpower shortages, and applications for work permits required employers to offer foreign workers wages comparable to those paid to British nationals in the same position and to show that the vacancy could not be filled by nationals: Diana Kay and Robert Miles, ‘Refugees or Migrant Workers? The Case of the European Volunteer Workers in Britain (1946–​1951)’ (1988) 1 Journal of Refugee Studies 214. 42 Laura Tabili, ‘A Homogeneous Society? Britain’s Internal “Others”, 1800-​Present’ in Hall and Rose, At Home with Empire (n 27). 43 Bob Carter, Marci Green, and Rick Halpern, ‘Immigration Policy and the Racialization of Migrant Labour: The Construction of National Identities in the USA and Britain’ (1996) 19 Ethnic & Racial Studies 135.

336  Criminality at Work embrace it either. In some sectors like transportation, black and Asian workers suffered blatant discriminatory practices and a lack of support by local trade unions.44 With the demise of the British Empire from the 1950s onwards, British citizens from former colonies started to arrive in the UK in larger numbers to fill labour shortages during the post-​war era. They supplied the workforce to the incipient welfare state and replaced natives in manufacturing and agricultural jobs. The mobility of postcolonial citizens particularly from the so called ‘New Commonwealth’ countries (with majority non-​white populations) to Britain met with racialized anxieties and fears, and ultimately led to immigration restrictions introduced in the Commonwealth Immigrants Acts of 1962 and 1968 and the Immigration Act 1971. Without reforming the law of citizenship, these laws qualified the right to abode in the UK of Commonwealth citizens with no substantial connections to the UK—​through residence or family ties—​and disproportionately affected non-​white citizens. The 1971 Act, in particular, significantly enhanced immigration control powers by expanding the criminalization of immigration breaches. These include illegal entry, breach of a condition attached to a leave (overstaying, working without authorization), facilitation of illegal entry, harbouring an immigration offender, failure to submit to examination or produce identification documents, and forgery or possession of forged documents (including entry clearance and work permits).45 Parliamentary debates on these bills laid bare the unevenness of British citizenship and the constitutional importance of immigration law for demarcating the boundaries of national belonging. Concerns about the pressures that the new arrivals would put on housing, welfare, and employment dovetailed with judgements about their moral, physical, and cultural suitability to reside in the UK.46 The regulation of entry and residence of ‘aliens’ has been heavily criminalized since its inception in the late eighteenth and nineteenth centuries.47 The new laws fragmented the space of citizenship rendering Commonwealth citizens subject to immigration rules. Imperial mobility towards the UK precipitated a period of imperial contraction and a deliberate detachment from its former colonies, a process that lasted from the first half of the twentieth century until the post-​wars years. The new immigration laws marked a watershed moment in the transition of Britain from head of a multi-​ethnic empire to a white nation.48 The criminal law supported this social and political transformation. As I showed in this section, the intervention of criminal law in the regulation of labour in the UK bifurcated. It aimed at, on the one hand, protecting labourers rights and their social and working conditions, and on the other, restricting the supply of labour. Penal welfarism in this context consisted not only in the thickening of the social content of citizenship but also in the hardening of its borders.49 As the ‘white only’ immigration laws implemented earlier on in 44 John Wrench, ‘British Unions and Racism:  Organizational Dilemmas in an Unsympathetic Climate’ in Rinus Penninx and Judity Roosblad (eds), Trade Unions, Immigration, and Immigrants in Europe, 1960–​1993: A Comparative Study of the Attitudes and Actions of Trade Unions in Seven West European Countries (Berghahn Books 2000). 45 Immigration Act 1971, ss 24–​26. 46 Randall Hansen, Citizenship and Immigration in Post-​War Britain: The Institutional Origins of a Multicultural Nation (OUP 2000); Bob Carter, Clive Harris, and Shirley Joshi, ‘The 1951–​55 Conservative Government and the Racialization of Black Immigration’ (1987) Centre for Research in Ethnic Relations, University of Warwick Policy Papers in Ethnic Relations No 11, 1. 47 Aliverti, Crimes of Mobility (n 1) 12. 48 Gurminder K Bhambra, ‘Brexit, Trump, and “Methodological Whiteness”: On the Misrecognition of Race and Class’ (2017) 68 The British Journal of Sociology 214. 49 Vanessa Barker, Nordic Nationalism and Penal Order: Walling the Welfare State (Routledge 2017).

Intersections of Criminal Law and Immigration Controls  337 Canada, South Africa, and Australia attest, the restriction of labour supply through immigration controls was not purely based on economic considerations. It was animated by ideas about good and bad ‘stocks’ of labourers, and a faith in the law for engineering the social fabric of the British nation.

E.  Neoliberalism, Labour Deregulation, and Criminalization (1980s to Present) The last decades of the twentieth century signalled a noticeable shift in state governance from the Keynesian welfare state to the neo-​liberal state model. Figuratively, the state’s function in the economy went from rowing to steering.50 During the Thatcher administration, the rise of the ‘new regulatory state’ manifested in the privatization of public services, market competition, and state de-​regulation or regulation at a distance. In the labour sphere, the state retraction from direct intervention in the economy matched with an increased legislative intervention to rebalance the equilibrium between management and trade unions, in favour of the former.51 Such a reversal of collective laissez faire and the regulation of the labour market to serve a free market economy led to labour deregulation and the downgrading and devaluation of low-​waged jobs in the 1980s and 1990s.52 Fostered by the automation and migration of certain jobs to emerging economies, the compounded effect of these policies has been a sharp increase in both unemployment rates and labour shortages due to unattractive labour conditions for the native workforce. These labour opportunities appealed however to workers in developing countries—​including former British colonies—​ and fuelled unprecedented human movement to Britain since the 1990s.53 Waning state sovereignty from inside and outside is consistent with both over-​ criminalization and the pluralization of civic responsibilities for maintaining social order. Indeed, the rise of the new regulatory state has gone hand in hand with the increased resort to criminal law and the growth of the criminal justice apparatus (particularly the prison) to manage the surplus population left behind by neoliberal reforms.54 This new governance paradigm relays on ‘reactive, populist’ criminal law ‘as a quick fix for almost any social problem’.55 Along with a shift of labour legislation towards flexibilization and 50 Nikolas Rose, ‘Government and Control’ (2000) 40 British Journal of Criminology 321. 51 Paul Davies and Mark Freedland, Labour Legislation and Public Policy: A Contemporary History (OUP 1993). 52 Paul Davies and Mark Freedland, Towards a Flexible Labour Market. Labour Legislation and Regulation Since the 1990s (OUP 2007). 53 Jane Wills and others, Global Cities at Work: New Migrant Divisions of Labour (Pluto Press 2009) 4. A large proportion of low-​paid jobs (in London, up to half of them) are now filled by workers born abroad. They include cleaners, carers, waiters, fruit and vegetable pickers, cooks, and housekeepers. These positions, which are noticeably precarious in terms of workers’ protections and are poorly paid, have largely grown out of the progressive deregulation of the economy and an increase in global population mobility. Migrant workers’ jobs are more likely to be paid at or below the minimum wage than jobs for British nationals (7.4 per cent versus 11.3 per cent): Migration Advisory Committee, Migrants in Low-​skilled Work. The Growth of EU and Non-​EU Labour in Low-​Skilled Jobs and its Impact on the UK (July 2014) 165  accessed 6 August 2019. 54 Loic Wacquant, ‘Marginality, Ethnicity, and Penality. A  Bourdieusian Perspective on Criminalization’ in Duff and others, Political Morality (n 9); John Braithwaite, ‘The New Regulatory State and the Transformation of Criminology’ (2000) 40 The British Journal of Criminology 222, 227. 55 Nicola Lacey, ‘Criminalization as Regulation: The Role of Criminal Law’ in Christine Parker and others (eds), Regulating Law (OUP 2004), 163; also Farmer, Modern Criminal Law (n 5); Ely Aharonson and Peter Ramsay,

338  Criminality at Work deregulation, there has been a hyper-​regulation of labour supply through immigration controls. Immigration has become one of the top public concerns and a site of much legislative activity over the last three decades.56 Since the mid-​1990s, successive governments introduced eleven new immigration and asylum acts which have rendered this area of law increasingly complex, restrictive, and punitive. Considered as one of the main magnets for immigration to Britain, employers and businesses reliant on migrant labour have been subject to stricter controls. The Asylum and Immigration Act 1996 introduced a specific offence which penalized employers who hire non-​British citizens without permission to work. Although this was a strict liability offence, prosecution and conviction rates were extremely low: only thirty-​seven convictions were recorded between 1997 and 2006. In 2006, a new illegal employment regime was introduced consisting of civil penalties to deal with careless employers and criminal sanctions reserved for those who knowingly employed unauthorized workers. This dual system aimed at making law enforcement more efficient—​by reducing the costs involved in a criminal prosecution—​and introducing an element of proportionality in the use of criminal law.57 Yet, the new regime on illegal employment has been criticized for letting exploitative employers off the hook, evident in the low number of criminal prosecutions initiated and of penalties levied since its operation. Businesses hiring migrant workers have also been spared sanctions for not complying with basic labour standards. In its 2014 report, the Migration Advisory Committee found low levels of labour market enforcement across low-​ skilled and low-​paid jobs with high concentration of migrant workers. Few criminal prosecutions, lenient sentences upon conviction, and a chronic underfunding of regulatory authorities with limited capacity to conduct inspections and enforce sanctions characterized the enforcement landscape.58 Compounded with language, legal, and knowledge barriers, the low enforcement of these laws heightens the vulnerability of migrant workers to exploitation. The Committee suggested that the light touch in the enforcement of employment protections together with the highly flexible UK labour market may contribute to the increased demand for migrant workers.59 In light of these findings, in 2016 a new Immigration Act was passed containing a full part on labour. Part  1 included a chapter on labour market enforcement and a chapter on illegal working. It introduced new preventive orders and criminal offences to tackle non-​compliance with labour standards by labour providers (labour market enforcement undertakings and orders),60 and tightened up the regulation of illegal working, by creating a specific summary offence of illegal working61 and modifying once again the offence of ‘Citizenship and Criminalization in Contemporary Perspective:  Introduction’ (2010) 13 New Criminal Law Review 181. 56 Ana Aliverti, ‘Making People Criminal: The Role of the Criminal Law in Immigration Enforcement’ (2012) 16 Theoretical Criminology 417. 57 Law Commission, Criminal Liability in Regulatory Contexts. A Consultation Paper (Consultation Paper No 195, 2010)  45  accessed 6 August 2019. 58 Over a period of seven years, it noted that only nine employers were prosecuted for non-​compliance with the National Minimum Wage legislation: MAC, Migrants in Low-​skilled Work (n 53) 165. 59 MAC, Migrants in Low-​skilled Work (n 53) 179. 60 See respectively, Immigration Act 2016, ss 14 and 18. 61 Immigration Act 2016, s 34, modifying s 24B of the 1971 Act. While the 1971 Act (as enacted) contained a provision that criminalized breaches to conditions of leave, the new offence is more specific (and also wider) by criminalizing migrants who have no permission to work in the UK (this includes clandestine migrants).

Intersections of Criminal Law and Immigration Controls  339 illegal employment.62 Section 34 criminalizes individuals who work while disqualified from doing so on account of their immigration status and know or reasonably believe that they are disqualified. Section 35 criminalizes employers who hire individuals disqualified from working by reason of their immigration status while knowing or reasonably believing that the worker is subject to disqualification. The latter lowered the mens rea requirement from actual to reckless knowledge and increased the maximum penalty on conviction from two to five years’ imprisonment. Then Home Secretary Theresa May explained the rationale for this section before her peers thus: The House will appreciate that illegal working is one of the principal pull factors for people coming to the UK to live and work illegally, but those who do so are particularly vulnerable and can find themselves living and working in dangerous and degrading conditions. The illegal labour market can also depress or hold back pay and conditions for the local sector, and undercut reputable businesses. Increasingly, we are seeing labour market exploitation becoming an organised criminal activity, and it is clear that Government regulators responsible for enforcing workers’ rights are in need of reform.63

As this passage makes clear, a more stringent enforcement of labour standards and of migration controls goes hand in hand. Labour vulnerability is presented as a product of labour demand and supply which in the context of a highly unregulated, flexible, and globalized labour market tend to attract the proletariat from poorer countries.64 Workers’ vulnerability (natives and migrants alike) is, according to the government, mutually constitutive65 and provides the key rationale for the introduction of stricter workplace controls. The vulnerability of the citizen is predicated upon the unfair competition posed by illegalized workers. Migrants’ vulnerability, on the contrary, is self-​inflicted. Lax border control produces or enhances the vulnerability for both groups. The 2016 Act forms part of a broader policy programme, self-​branded by Home Secretary May as ‘hostile environment’ policies, intended to deter illegal immigration by blocking access to services and labour to individuals without rights to live and work in the UK.66 Workplace penalties and sanctions were supplemented with a myriad of restrictions on vital areas of modern life (to rent a house, to open a bank account, to drive, etc) to create what Judy Fudge called ‘a carceral and punitive approach to stamping out labour market exploitation’.67

62 Immigration Act 2016, s 35, modifying s 21 of the 2006 Act. 63 HC Deb 13 October 2015, Col 197. 64 As migration scholars have documented, the thirst for cheap and precarious labour has created a highly segmented labour market by nationality: while nationals from EU15, the Old Commonwealth, the US, Japan, and Korea are overrepresented in top jobs, the low wages jobs are filled by nationals from Africa, Latin-​America, and eastern European accession countries: Wills and others (n 53) 41. 65 Even though recent empirical studies have cast doubt on this zero-​sum rationale. In the UK, Dustmann and colleagues found that labour migration has had a spill-​over effect on the labour market (creating new jobs for residents rather than augmenting unemployment rates among them) and that migrant workers are net contributors to the welfare state: Christian Dustmann and Tommaso Frattini, ‘The Fiscal Effects of Immigration to the UK’ (2014) 124 The Economic Journal 593. 66 See Russell Taylor, Impact of ‘Hostile Environment’ Policy (HL, Library Briefings 2018) accessed 6 August 2019. 67 Judy Fudge, ‘Illegal Working, Migrants and Labour Exploitation in the UK’ (2018) 38 Oxford Journal of Legal Studies 557, 568.

340  Criminality at Work The alleged protective function of border control has legitimized criminalization. Whereas the criminalization of immigration breaches has been traditionally framed in public and parliamentary debates as a wrong against the state (the administration of state functions), the case for criminalization in this sphere is increasingly premised on notions of harm to self and others.68 Criminalization backs up border control by patrolling the boundaries of legitimate employment which in turn is based on citizenship. For citizens,69 labour is a duty of citizenship; for foreigners, it is a privilege.70 Yet, in contrast to the social democratic ideas of citizenship from the welfare era, the emphasis is on the hard edges of citizenship. Discourses linking citizenship and labour address both the ‘bad’ citizen (the welfare dependent, the uncivil youth, the rough sleeper) and the non-​citizen and have functioned to discipline both groups.71 This novel contour of citizenship underpins new patterns of criminalization and the function of the criminal law in securing civil order in contemporary Britain. Formal and substantive criminalization has been consistently focused on stemming the flow of migrant labour from the world’s poorest countries. Empirical research indicates that criminal enforcement on workplaces tends to favour border control imperatives in detriment to the penalization of businesses engaging in exploitative practices, and relies on group-​based racial profiling of employers and employees.72 Despite the pervasiveness of the phenomenon in the US, Australia, and the UK, prosecutions for illegal employment remain remarkably low.73 Evidence suggests that the weight of the law has fallen instead on the weak end of the labour chain.74 In the UK, high-​profile cases such as that of Byron Burgers75 uncovered the 68 Bernard Harcourt, ‘The Collapse of the Harm Principle’ (1999) 90 The Journal of Criminal Law & Criminology 109. 69 EEA nationals fall in-​between: as quasi-​citizens their status in the UK is tied up to their active economic contribution. In a revival of pauper and vagrancy law enforcement, EEA nationals found sleeping rough or otherwise not exercising their ‘treaty rights’ (particularly the right to work) have been subject to detention and removal from the UK. A recent judgment struck down the Home Office guidance authorizing the removal of EEA nationals on grounds of misuse of rights to reside. The High Court ruling established that such guidance was unlawful and contrary to the right to freedom of movement and residence guaranteed under EU law, and discriminatory because it disadvantaged EEA nationals: R (Gureckis) v SSHD [2017] EWHC 3298 (Admin), [2018] 4 WLR 9. 70 Robert Reiner, ‘Citizenship, Crime, Criminalization: Marshalling a Social Democratic Perspective’ (2010) 13 New Criminal Law Review 241. There are historical parallels in the way labour was conceived as rehabilitative and important to make good citizens out of indentured workers and ex-​convicts in colonial India: Anderson, ‘Convicts and Coolies’ (n 32). 71 Bridget Anderson, Us & Them? The Dangerous Politics of Immigration Control (OUP 2013); Bridget Anderson, Matthew Gibney, and Emanuela Paoletti, ‘Citizenship, Deportation and the Boundaries of Belonging’ (2011) 15 Citizenship Studies 547; Lucia Zedner, ‘Security, the State, and the Citizen: The Changing Architecture of Crime Control’ (2010) 13 New Criminal Law Review 379; Lucia Zedner, ‘Policing Civility in Public Space and the Exclusion of “Uncivil” Citizens’ Droit et Philosophie (forthcoming, 2020). 72 Jennifer Chacón and Susan B Coutin, ‘Racialization through Enforcement’ in Mary Bosworth, Alpa Parmar, and Yolanda Vazquez (eds), Race, Criminal Justice and Migration Control (OUP 2018); Doris Marle Provine and Gabriella Sanchez, ‘Suspecting Immigrants: Exploring Links Between Racialized Anxieties and Expanded Police Powers in Arizona’ (2011) 21 Policing and Society 468. 73 Laurie Berg, Migrant Rights at Work:  Law’s Precariousness at the Intersections of Immigration and Labour (Routledge 2015); Stephen Lee, ‘Workplace Enforcement Workarounds’ (2012) 21 William and Mary Bill of Rights Journal 549; Maria I Medina, ‘The Criminalization of Immigration Law: Employment Sanctions and Marriage Fraud’ (1997) 5 George Mason Law Review 669; Bernard Ryan, ‘The Evolving Legal Regime on Unauthorized Work by Migrants in Britain’ (2006) 27 Law & Policy Journal 27. 74 Even though criminal prosecutions are rarely instigated against employees for immigration-​related breaches, their criminalization provides an additional tool for law enforcement:  Aliverti, ‘Making People Criminal’ (n 56); David Alan Sklansky, ‘Crime, Immigration, and Ad Hoc Instrumentalism’ (2012) 15 New Criminal Law Review 157. 75 In July 2016, managers at outlets of the restaurant chain called employees for a work meeting, which it later turned out to have been pre-​arranged with immigration enforcement staff. As a result, thirty-​five workers were

Intersections of Criminal Law and Immigration Controls  341 legal incentives employers have to report their own workforce to avert enforcement actions and reputational risks. According to the Home Office’s code of practice for employers, ‘active cooperation’ and ‘reporting of suspected illegal workers’ are mitigating factors which can result in substantial penalty discounts. Collaborative employers might also be freed from contractual obligations owed to workers, including unpaid wages, through the expansive interpretation of the doctrine of illegality76 by English courts.77 Because of the financial, evidential, and social incentives to punish migrant workers, criminalization has heightened work-​ related asymmetries exposing migrant workers to (and even entrapping them into) exploitative relations. The vulnerability of migrant workers is thus legally constructed.78 The overwhelming evidence on the involvement of the criminal law in the regulation of migrant labour tends to suggest that rather than protecting migrants as workers it produces them as criminals amplifying their liminal status.

F.  Conclusion Through a historical tour de force, in this chapter I  placed the contemporary phenomenon of the criminalization of migration work within a wider examination of the role of criminal law in supporting and consolidating political and economic ordering. This is an unorthodox methodology in criminal law theory but one that can illuminate our understanding of the function and operation of criminal law for regulating labour in an age of intense human movement. Criminalization scholarship has largely focused on ‘core’ wrongs while paying less attention to the vast and diverse area of ‘regulatory’ criminal law.79 The examination of labour regulation through criminal law offers an opportunity to redress this neglect in criminal law scholarship and to assess the function of criminalization for pursuing civil order. By focusing on the regulation of labour historically, this chapter explored the relationship between criminal law, sovereignty, and economic order. Historicizing criminalization allows a fresher look at the link between criminal law, territory, and population and disrupts arrested and detained for various immigration crimes (including possession of false documents). In a press release, the restaurant claimed that they were legally obliged to cooperate with the Home Office: Katie Bales, ‘Immigration Enforcement in the Byron Aftermath: The Legal Limits of What can be Required from Employers’ University of Bristol Law School Blog (19 September 2016) accessed 6 August 2019. 76 Berg (n 73); Alan Bogg and Tonia Novitz, ‘Links between Individual Employment Law and Collective Labour Law Their Implications for Migrant Workers’ in Costello and Freedland, Migrants at Work (n 33); Alan Bogg and Tonia Novitz, ‘Race Discrimination and the Doctrine of Illegality’ (2013) 12 Law Quarterly Review 12. Although, according to Bogg, Lord Toulson’s vote in Patel v Mirza [2016] UKSC 42, [2017] AC 467 has lessened its harshness and might herald a new era of humanization of the illegality doctrine, particularly in relation to labour law claims: Alan Bogg, ‘Illegality in Labour Law after Patel v Mirza: Retrenchment and Restraint’ in Sarah Green and Alan Bogg (eds), Illegality after Patel v Mirza (Hart Publishing 2018). 77 The UK approach differs from the EU legal framework which, along with the obligation to penalize employers for hiring illegal workers, obliges members states to ensure that contravening employers pay lost wages to employees: Directive 2009/​52/​EC of the European Parliament and the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-​country nationals, art 6. 78 Berg (n 73); Cathryn Costello, ‘Migrants and Forced Labour: A Labour Law Response’ in Alan Bogg and others, The Autonomy of Labour Law (Hart 2015); Mark Freedland and Cathryn Costello, ‘Migrants at Work and the Division of Labour Law’ in Costello and Freedland, Migrants at Work (n 33). 79 Ana Aliverti, ‘The Wrongs of Unlawful Immigration’ (2015) Criminal Law and Philosophy 1; Lacey, ‘Historicizing Criminalization’ (n 17) 952.

342  Criminality at Work the nation-​state framework of reference of much criminal law scholarship. As Mongia argued, ‘we must reexamine the common view of nation-​states as territorially circumscribed, rather than as territorially expansionist. It is the long process of the end of empires that generates the nation-​state as a contained entity that, significantly, is the first kind of state formation to have a monopoly over migration.’80 In adopting this broader perspective, the chapter showed that the remit and function of criminal law in this sphere was contingent upon the individuals and places to be regulated. The intensity and form of its intervention for regulating labour has shifted over time to support other forms of regulation (including the market). Yet, economic and political imperatives have often been superseded by cultural concerns, coached in the language of race. In an increasingly globalized world, immigration controls have acquired a crucial function for delineating the boundaries of the national labour market and for regulating labour supply. As I showed, formal and substantial criminalization has been geared to perform the dirty job of border controls. We can delineate a conception of civil order emerging from policy debates and practices—​particularly from 2012—​premised on the protection of the national labour market and labour force, and the enforcement of a bounded space of rights and entitlements. Such conception of civil order closely tied up to citizenship has excluded a range of illegalized groups. While in an era of deregulation and labour precarity citizenship is depleted from its protective layers, it still remains a key marker of difference for labour law and relationships. Yet, this exclusionary notion of civil order which has dominated much of the last decade is not impervious to contestation and challenge, through social and legal mobilization.81 In the same way that feminist critiques to legal and cultural understandings of sexual violence have significantly shifted the function of the criminal law in this sphere, anti-​racist and global justice struggles to disentangle formal citizenship from social and economic protections are equally likely to be accommodated within more progressive notions of civil order.

80 Mongia (n 30) 544. 81 The narrowing down of the doctrine of illegality by courts in cases involving migrant workers who have been subject to exploitative working conditions (through Patel v Mirza), and ongoing judicial and legislative challenges against the work ban on individuals while their asylum claims are being assessed are an example of a progressive shift in that direction (including the ‘Lift the Ban’ campaign:  accessed 6 August 2019).

18

Modern Slavery, Domestic Work, and the Criminal Law Jonathan Herring

A.  Introduction Some women are forced by their bosses to engage in domestic work for long hours for little or no pay; are demeaned and regularly threatened with violence; are required to undertake lengthy mundane tasks for little or no pay; and are effectively unable to escape from the situation. These women can be broadly divided into two categories: modern slaves and wives or partners. Despite the similarity in their position the legal response to these groups are, however, surprisingly different as this chapter will explore. In relation to modern slaves, we have the Modern Slavery Act 2015. It explains it is an ‘Act to make provision about slavery, servitude and forced or compulsory labour . . .’ In fact, it is about much more than that. This chapter opens with a summary of the legislation but then goes onto critique it. It is focussed on a narrow group of cases, leaving many exploited workers unprotected, and it misrepresents the cause of exploitation. The second half of the chapter explores wives and partners. It examines the long-​standing feminist analysis of homework as a source of exploitation for women. The Serious Crimes Act 2015 has created an offence of controlling and coercive behaviour. It, too, is focussed on a narrow group of cases, leaving many exploited workers unprotected, and it misrepresents the cause of exploitation.

B.  Background to the Modern Slavery Act 2015 Great fanfare greeted the passing of the Modern Slavery Act 2015. Theresa May declared: Just as it was Britain that took an historic stand to ban slavery two centuries ago, so Britain will once again lead the way in defeating modern slavery and preserving the freedoms and values that have defined our country for generations.1 The description of the Act as ‘world leading’ was somewhat bold, given that other countries, including Finland and The Netherlands have already enacted similar legislation.2 1 Theresa May, ‘My Government Will Lead the way in Defeating Modern Slavery’ The Telegraph (30 July 2016)   ­accessed 6 August 2019. 2 Gary Craig, ‘The UK’s Modern Slavery Legislation:  An Early Assessment of Progress’ (2017) 5 Social Inclusion 16, 16. Jonathan Herring, Modern Slavery, Domestic Work, and the Criminal Law In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.0018

344  Criminality at Work Although the Act was presented as humanitarian and protective of human rights there were complex pressures behind it, which will be explored later in this chapter. There were also legal pressures towards reform. There was general acceptance that the law on ‘modern slavery issues’ prior to the 2015 Act was unsatisfactory. John Spencer described the regulation of human trafficking as ‘sprawl[ing] untidily across a range of different statutes’.3 The UK’s international obligations under the UN Trafficking Protocol, the Council of Europe Anti-​Trafficking Convention, and the EU Anti-​Trafficking Directive were not fully met.4 Perhaps most significantly in CN v UK5 the European Court of Human Rights, in effect, found the UK in breach of its positive obligations under the Article 4 of the European Convention on Human Rights (ECHR) by failing to criminalize offences which breached Article 4 of the Convention. In particular, it failed adequately to protect against domestic servitude through the criminal law. This echoed a series of reports identifying weaknesses in the UK’s response to modern slavery from: the Council of Europe Group of Experts on Action against Trafficking in Human Beings, the Centre for Social Justice, and the OSCE Special Rapporteur on Human Trafficking.6 The weaknesses identified included a lack of awareness training of relevant staff who had to respond to the issues (including the police, immigration officials, social workers); a failure to treat child victims appropriately, leading to them being re-​trafficked; and ineffective systems for identifying victims and in prosecuting offences. A particular issue was that victims of ‘modern slavery’ were being prosecuted for immigration offences, rather than being provided with proper support.

C.  Summary of the Legislation Under this heading I will summarize the terms of the legislation, with a particular focus on the definition of the slavery, servitude, and forced or compulsory labour offence in section 1 and the role of the Anti-​Slavery Commissioner.7 The government have said that The Modern Slavery Act will give law enforcement the tools to fight modern slavery, ensure perpetrators can receive suitably severe punishments for these appalling crimes and enhance support and protection for victims.8

3 JR Spencer ‘International Law, People Trafficking and the Power to Stay Criminal Proceedings for Abuse of Process’ (2014) 73 Cambridge Law Journal 11, 14. 4 Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into 29 September 2003) 2237 UNTS 319; Council of Europe Convention on Action against Trafficking in Human Beings (adopted 16 May 2005, entered into force 1 February 2008) CETS 197; Directive 2011/​36/​EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/​629/​JHA. 5 [2012] ECHR 1911. 6 Group of Experts on Action against Trafficking in Human Beings, Report Concerning the Implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the United Kingdom (GRETA 2012); Organization for Security and Co-​operation in Europe, Report by the Special Representative (OSEC 2012); Centre for Social Justice, It Happens Here: Equipping the United Kingdom to Fight Modern Slavery (CSJ 2013). 7 Charles Barclay and Steve Foster ‘The Modern Slavery Act 2015: Good Intentions And Sending Out The Right Message’ (2017) 22(2) Coventry Law Journal 12. 8 Home Office, ‘The Modern Slavery Act 2015’ (10 June 2014) accessed 6 August 2019.

Modern Slavery, Domestic Work, and the Criminal Law  345 It seeks to do this in eight primary ways.9 First, there is a new offence of human trafficking, slavery, servitude, and forced or compulsory labour. The sentences for this offence are life imprisonment, indicating it is seen as a potentially extremely serious offence. Second, there are powers for competent national authorities to confiscate the assets of those who commit the offence and pay reparation. Third, slavery and trafficking prevention orders empower the court to make orders to prevent slavery and trafficking. These are backed up with increased powers under other legislation to respond to slavery. Fourth, the legislation requires the Secretary of State to issue guidance on the support and assistance to be offered to adult victims of slavery and human trafficking.10 Fifth, there is a new stator defence for victims of the trafficking or slavery who haven compelled to commit an offence. Sixth, there is the creation of independent child trafficking advocates who will seek to work on protection of trafficked children. Seventh, there are provisions to eradicate modern slavery in supply chain. Last, but not least, is the creation of the Independent Anti-​Slavery Commissioner (IASC). There is not space to explore all of these and so the focus will be on the creation of the new offence, the statutory defence and the work of the IASC.

1.  The Section 1 Offence The core offence in the Modern Slavery Act 2015 is that slavery, servitude and forced or compulsory labour (SSFCL), found in section 1: (1) A person commits an offence if—​ (a) the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or (b) the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour. (2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention. (3) In determining whether a person is being held in slavery or servitude or required to perform forced or compulsory labour, regard may be had to all the circumstances. (4) For example, regard may be had—​ (a) to any of the person’s personal circumstances (such as the person being a child, the person’s family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons; (b) to any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within section 3(3) to (6).

9 Jason Haynes, ‘The Modern Slavery Act (2015):  A Legislative Commentary’ (2016) 37(1) Statute Law Review 33. 10 There is specialist support and accommodation for victims of modern slavery, although it is very time constrained: up to forty-​five days. The Modern Slavery (Victim Support) Bill 2018 would have extended that to a year.

346  Criminality at Work (5) The consent of a person (whether an adult or a child) to any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the person to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude, or required to perform forced or compulsory labour.

This offence is deliberately broad in scope: it was designed to bring together a range of earlier offences into a single crime. The conduct element of the offence (the actus reus) is broken down into two alternatives. The first is that the defendant holds another person in slavery or servitude. The second is that the defendant required another person to perform forced or compulsory labour. Notably the legislation does not seek to define these terms,11 save that in subsection (2) we are told that Article 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is to be taken into account. That reads: Prohibition of slavery and forced labour 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognized, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-​ being of the community; (d) any work or service which forms part of normal civic obligations.

There is some case law expanding on this. Siliadin v France12 supported the use of the definition of slavery found in Article 1(1) of the 1926 Slavery Convention. That requires that servitude is understood as requiring both a condition of compulsory labour, but also a complete helplessness and strictly limited freedom. The court held that slavery and servitude were different to forced or compulsory labour, explaining: [S]‌lavery and servitude involve the person’s position as a whole, which is not generally the case for forced or compulsory labour. Indeed, in contrast to slavery and servitude, the former usually is temporary and occasional.

Further, . . . servitude is a specific form of slavery, which differs from it less in character than in degree. Although it constitutes a condition and it entails a ‘particularly serious form of denial of freedom’, it indeed does not include the powers attached to the right of ownership that 11 Andrea Nicholson, ‘Reflections on Siliadin v France: Slavery and Legal Definition’ (2010) 14(5) International Journal of Human Rights 705, 705. 12 (2006) 43 EHRR 16.

Modern Slavery, Domestic Work, and the Criminal Law  347 labels slavery. Unlike forced labour, servitude however presumes more than the obligation to perform certain services under coercion.

They explained:  ‘forced or compulsory labour’ shall mean ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’. In deciding whether the behaviour amounts to SSFCL the court will consider all of the circumstances of the case including whether the victim is a child, has a mental or physical illness which renders them particularly vulnerable. The mental element (mens rea) of the offence is objectively defined: that the defendant knows or ought to know that they are subjecting the victim to the SSFCL. This is an important provision as it means it is no defence to show that the defendant was not aware that the arrangement amounted to SSFCL. They can be convicted if they ought to know. Subsection (5) also makes the important point that the consent of the victim to the acts is no defence to the offence, nor does it ‘preclude a determination that the person is being held in slavery etc’. While it is welcome to note that consent is a defence, it would be wrong to say consent is irrelevant in these cases. Consent can be a factor in determining whether a person is held in SSFCL and all the legislation says is that consent does not preclude the finding. It clearly permits a court to determine that conduct which was SSFCL if done without consent was not when consent is provided.

2.  Defence for Slavery or Trafficked Victims One of the issues over which the UK was particularly criticized prior to the Act was the conviction and punishment of trafficked victims who committed offences.13 A much publicized example was R v HTB14 where a Vietnamese girl was trafficked into the UK and exploited in the cultivation of cannabis. She was convicted for her role in the cultivation of illegal drugs. The Court of Appealed stated the proceedings as an abuse of process and quashed the conviction. But by then she had served twenty months in prison.15 Section 45 of the Modern Slavery Act creates a statutory defence to deal with such cases: (1) A person is not guilty of an offence if—​ (a) the person is aged 18 or over when the person does the act which constitutes the offence, (b) the person does that act because the person is compelled to do it, (c) the compulsion is attributable to slavery or to relevant exploitation, and (d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.

13 Carolina Villacampa and Núria Torres, ‘Human Trafficking For Criminal Exploitation:  The Failure To Identify Victims’ (2017) European Journal on Criminal Policy and Research 1. 14 [2012] EWCA Crim 211, [2012] 1 WLUK 465. 15 See also L v R [2013] EWCA Crim 991, [2014] 1 All ER 113 for a similar example.

348  Criminality at Work This defence does not offer a complete defence to victims who commit crimes as a result of being the victims of slavery or trafficking. This is designed to exclude people who were trafficked into the country but freely choose to be involved in crime. Adults need to show they were compelled to commit an unlawful activity and the compulsion is attributed to slavery or exploitation. That is defined in sub-​section (3): Compulsion is attributable to slavery or to relevant exploitation only if—​ (a) it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or (b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation.

There is special provision if the defendant is a child: (4) A person is not guilty of an offence if—​ (a) the person is under the age of 18 when the person does the act which constitutes the offence, (b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and (c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.

Haynes16 is not convinced that section 45 will provide a defence in many cases. He notes the ‘litany of exceptions’17 to being abuse to use the defence which he argues means ‘that only in a very limited number of circumstances would a victim who has been compelled to commit an unlawful offense be able to rely on the section 45 defence’.

3.  The Independent Anti-​Slavery Commissioner One of the major issues facing the old law on modern slavery was the fact there was a lack of coordination between the different bodies involved in modern slavery and there was no specific body which had oversight of the state response to the issue or to encourage best practice. The office of the Independent Anti-​Slavery Commissioner (IASC) was created specifically to perform this role. Barclays and Foster describe the role of the IASC as ‘one of the most significant provisions in the Act’.18 It is not the role of IASC to deal with any individual case and their role includes: • Encourage good practice in respect of the prevention, detection, investigation, and prosecution of slavery and human trafficking offences. • Identify, assist, and support victims of this offence. • Report on these issues to the Secretary of State.

16

Haynes (n 9). Sch 4 sets out offences to which they will not apply. 18 Barclay and Foster (n 7). 17

Modern Slavery, Domestic Work, and the Criminal Law  349

• Recommend to public authority improvements in the exercise of their function. • Undertake or support research on modern slavery. • To provide information, education, and training on modern slavery. • To consult and cooperate with public authorities and voluntary organizations on modern slavery issues.

The Commissioners have declared that their mission is ‘to spearhead the United Kingdom’s fight against modern slavery by promoting best practice and driving crucial improvement across the anti-​slavery response, both in the UK and internationally’.19 Further, The aims of the Commissioner are twofold: to see an increase in the number of victims of modern slavery that are identified and referred for appropriate support; and, in tandem, to see an increase in the number of prosecutions and convictions of traffickers and slave masters.20

4.  The Modern Slavery Act: An Assessment The Global Slavery Index reports that worldwide 45.8  million people are subjected to modern slavery and 21  million of those are in forced labour.21 Obtaining a clear picture of forced slavery in the UK is hard. Looking at the official recorded figures we can see that in the year to March 2017 police in England and Wales recorded 2255 modern slavery crimes.22 That was an increase of 159 per cent from the previous year.23 Between April 2015 and December 2015, 183 individuals were prosecuted for trafficking ­offences. 5145 potential victims of modern slavery were referred to the National Referral Mechanism (NRM) in 2017.24 A more detailed picture of those referred to NRM can be obtained: around two thirds were adults and a third children; 51 per cent males and 49 females; 75 per cent were from non-​European Economic area countries, with Albania, Vietnam, and UK being the top three countries of origin.25 Those are the official figures and there is generally an acceptance that the real figures are higher. In November 2014 the Home Office estimated that there were between 10, 000 and 13,000 potential victims of modern slavery in the UK. 26

19 Independent Anti-​ Slavery Commissioner, Annual Report 2016–​ 17 (October 2017) 11 accessed 6 August 2019. 20 ibid. 21 Slavefreetrade, Inquiry Into Establishing A  Modern Slavery Act In Australia (Slavefreetrade 2017) accessed 6 August 2019. 22 Home Office, ‘Police Recorded Crime and Outcomes: Outcomes Open Data Year Ending March 2017’ www. gov.uk/​government/​statistics/​police-​recorded-​crime-​open-​data-​tables accessed 6 August 2019. 23 ibid. 24 ‘Record Number of Slavery Victims Referred in UK, Says Report’ BBC News (26 March 2018) accessed 14 June 2018. 25 National Crime Agency, ‘National Referral Mechanism Statistics—​End of Year Summary 2014’ (UK Human Trafficking Centre 2015). 26 HM Government, 2016 Report of the Inter-​Departmental Ministerial Group on Modern Slavery (October 2016) accessed 6 August 2019.

350  Criminality at Work I will now explore some of my concerns with the legislation. These are linked because the Act by focusing on ‘modern slavery’ has drawn attention paid to the problem of exploited workers more generally; has misrepresented the cause of the exploitation; and disguised some of the motivations behind the legislation.

D.  Terminology The terminology ‘modern slavery’ has proved controversial.27 Haynes28 argues that despite the lack of clarity over the meaning of modern slavery there is ‘a strong acknowledgement by the international community that, however defined, “modern slavery” involves some of the worst forms of exploitation known to mankind’.29 It involves harm in terms of physical and mental well-​being, but damages the dignity and autonomy of victims.30 The terminology of modern slavery produces strong feelings and makes legislation against it hard to oppose. Even the explanatory notes to the legislation (not a place one normally finds powerful rhetoric) states: ‘[m]‌odern slavery is a brutal form of organized crime in which people are treated as commodities and exploited for criminal gain’.31 Cardinal Vincent Nichols provides a fine example of the emotive language it can produce:32 Human trafficking and modern slavery is an evil crying out to heaven, an open wound on the body of society. It strips people of their fundamental dignity, reducing each person to the status of a commodity. That there are more than 40 million people callously held in slavery in the world today is a mark of shame for us all. It demands our response. The challenge for all of us is to rescue, protect, assist and serve all of those held in slavery. It is essential that we see the human face of every victim of trafficking. Each one is a daughter or a son, a mother or a father. Each slave is a person with a story. It is our duty to remind ourselves constantly of this truth and not succumb to indifference.33

The decision to use the language of ‘modern slavery’ was deliberate: the terminology of forced labour or migrants’ workers’ rights could have been used. The terminology of modern slavery seems to have first appeared in the 1970s when it was unsuccessfully proposed as the name for a UN body.34 In 2000, the Protocol to Prevent, Suppress and Punish Trafficking 27 Ronald Weitzer, ‘The Social Construction of Sex Trafficking: Ideology and the Institutionalization of a Moral Crusade’ (2016) 35(3) Politics and Society 447. 28 Haynes (n 9). 29 Venla Roth, Defining Human Trafficking and Identifying Its Victims:  A Study on the Impact and Future Challenges of International, European and Finnish Legal Responses to Prostitution-​Related Trafficking in Human Beings (Martinus Nijhoff Publishers 2011) 30 Silvia Scarpa, Trafficking in Human Beings: Modern Slavery (OUP 2008); Stephanie Hepburn and Rita Simon, Human Trafficking Around the World: Hidden in Plain Sight (Columbia University Press 2013). 31 Modern Slavery Act 2015, pt 4. 32 Alex Balch and Andrew Geddes, ‘Opportunity from Crisis? Organizational Responses to Human Trafficking in the UK’ (2011) 13 The British Journal of Politics and International Relations 26. 33 Vincent Nichols, ‘Foreword’ in Human Trafficking & Modern Slavery: Report 2018 (Evening Standard 2018) accessed 6 August 2019. 34 Michael Dottridge, ‘Eight Reasons why we Shouldn’t Use the Term “Modern Slavery” ’ Open Democracy (17 October 2017) accessed 14 June 2018.

Modern Slavery, Domestic Work, and the Criminal Law  351 in Persons Especially Women and Children supplementing United Nations Convention against Transnational Organized Crime (hereinafter referred to as The Protocol), provided the foundation for global anti-​trafficking policy. It became more prominent with the creation of the NGO, The Committee for the Eradication of Modern Slavery. It was the Walk Free group which increased the prominence of the concept after 2010, with its Global Slavery index which estimated the number of people in ‘modern slavery’. These estimates increased from 29.8 million in 2013 to 45.8 million in 2016. These attracted considerable publicity and there was pressure on the government to respond to this emerging problem. The problem with this emotionally intense language is that it urges a response focussed on a marrow group of cases, based around a particular portrayal of the issue. First, it creates gendered and racialized stereotypes of victims: as women from the Third World.35 Interestingly it is children, and particularly girls being sexually exploited, who tend to be headlined in the discussions around modern slavery. For example, it is notable that some presentations of ‘modern slavery’ present it as an overseas problems which gets exported to the UK. For example Grono and Cockayne write: Modern slaves can be found not only in ISIS-​run slave markets in Syria, but also in the Congolese mines that supply minerals to make the world’s smartphones, in South Asian brick kilns, in Thai fishing fleets that supply our supermarkets, and in the Brazilian charcoal industry. Slavery can be found in global garment supply chains, American agriculture, and on the construction sites for tomorrow’s mega-​sporting events. Slavery is a product of vulnerability arising from social exclusion, income shocks, illiteracy, low educational levels, state instability, conflict, high corruption levels, or insecure immigration status.36

This can readily reflect a colonialist mindset. Kempadoo argues not only are they largely ineffective, the modern slavery campaigns is . . . a neoliberal white chivalrous crusade across the world, born of a moral sense of goodness that shores up the power and subjectivity of the North, with the ‘developing’ Global South and East as the dumping grounds for helping imperatives involving rescue and charity.37

Second, the ‘modern slavery’ rhetoric presents the government as the saviour of vulnerable overseas workers. As Fudge and Strauss argue it also enabled the government to present the issue as one where ‘British values of Freedom and Democracy’ were used to prevent ‘evil foreigners importing slavery’. It hived off the state responsibility for inadequate workers’ rights; the low pay of domestic work and the downgrading of child care. It ignored the role

35 Judy Fudge, Modern Slavery and Migrant Domestic Workers:  The Politics of Legal Characterization (Foundation for Law, Justice and Society 2016) accessed 6 August 2019. 36 Nick Grono and James Cockayne, ‘How Can We End Modern Slavery by 2030?’ Huffington Post (12 February 2015) accessed 15 June 2018. 37 Kamala Kempadoo, ‘The Modern-​Day White (Wo)man’s Burden:  Trends in Anti-​Trafficking and Anti-​ Slavery Campaigns’ (2015) 1(1) Journal of Human Trafficking 8.

352  Criminality at Work that international law and domestic immigration law made migrant workers vulnerable to exploitation. Third, it presents the source of the problem as the ‘slave owners’ who will be prosecuted under the section 1 offence. This sidelines the complex pressures and policies which create the issues. These include, the ‘fears of mass immigration’; changing gender expectation among middle class women and couples; and the desire for cheap child care and domestic work.38 As Fudge39 notes the use of the criminal law in this context can work against the interests of the victims it seeks to protect: There are other ways of understanding the problem of the exploitation of migrant domestic workers; the failure of states to enforce labour rights or to regulate recruitment agencies in combination with restrictive immigration controls can be seen as producing fertile soil for abusive employment practices. Moreover, the paradoxical effect of both campaigns to treat the exploitation of migrant domestic workers in the UK as slavery has been to make the immigration controls that pertain to migrant domestic workers more restrictive.

She goes on to write: Although, in theory, criminal law, labour law, and human rights approaches to the exploitation of domestic workers are complementary, in practice, criminal and immigration law have subsumed and marginalized human rights and labour law. Effective regulation of the UK labour market is the only way to stop the exploitation of overseas domestic workers.

Fourth, the analogy with historical slavery can be seen as misplaced. Michael Dottridge states: There is a real danger that using the term to refer to levels of exploitation which do not meet the legal definition of slavery has the effect of trivializing or relativizing historical slavery and thereby reducing any sense of responsibility for the countries that profited from slavery.40

Indeed he goes on to express concern that the countries which appear particularly keen on the terminology of the ‘war against modern slavery’ (Australia, UK, and USA) are those who seek to impose an agenda on developing countries. Certainly the kind of treatment which is described as ‘modern slavery’ is somewhat tenuously linked with slavery as normally understood: it is not necessarily a life-​long condition; it is not necessarily linked to an excluded legal or political status. Nor is it tied to a particular race. The degree of control is different.41 An escaped ‘modern slave’ could not be reclaimed by the owner in the way they could in the past.

38 Felicity Lawrence, ‘How Did we Let Modern Slavery Become Part of our Everyday Lives?’ The Guardian (2 April 2018) accessed 6 August 2019. 39 Fudge (n 35) 2. 40 Dottridge (n 34). 41 Julia O’Connell Davidson ‘Will the Real Sex Slave Please Stand Up?’ (2006) 83 Feminist Review 4.

Modern Slavery, Domestic Work, and the Criminal Law  353 Fifth, by focussing on the extreme cases captured by the terminology of slavery it ignores the problems of poor working conditions, low pay, and poor employments rights, which are the plight of many migrant and domestic workers, but would not normally be perceived as slavery. One can certainly see the argument: why get so bothered about poor employment rights when people are living in slavery. Kevin Bales writes: Having just enough money to get by, receiving wages that barely keep you alive, may be called wage slavery, but it is not slavery. Sharecroppers have a hard life, but they are not slaves. Child labour is terrible, but it is not necessarily slavery.42

The problem is as O’Connell Davidson notes: [A]‌nti-​slavery campaigners who define modern slavery as a condition in which a person is totally controlled by another person are not well placed to challenge the authorities to work with more complex readings of terms like ‘force’, ‘deception’, ‘coercion’ or ‘exploitation’.43

Rutvica Andrijasevic and Bridget Anderson are concerned [t]‌here is perversely a danger then of institutionalizing lower standards for migrant labour through focusing on trafficking rather than on equal implementation of labour standards and access to redress for crimes against the person.44

Sixthly, the Act disguises the complex cultural and political issues behind the issue. It was passed at a time when there were ongoing debates over immigration and cheap labour.45 A common complaint was that immigration was affecting wages. As a 2015 headline in The Telegraph declared, citing a Bank of England Report: ‘[m]‌ass migration driving down wages offered to British jobseekers’. 46 And there were plenty of headlines along those lines. That claim is a politically controversial one.47 The concept of modern slavery was a convenient one for politicians with concerns of immigration in that it played into their narrative: that immigrants were being brought into the country and forced into receiving very low wages, which deprived jobs for ‘native workers’ and decreased wages. By describing the workers as slaves this meant that they could tackle the ‘damage done to the economy and British workers’ through immigration, while denying they were encouraging anti-​ immigrant sentiment. They were showing compassion, not hate, for the ‘foreign workers’ by trying to tackle slavery. However, tackling ‘modern slavery’ alone will do little to deal with the problem of low wages and the wider structural inequalities behind them. As Benedetta 42 Kevin Bales, Disposable People: New Slavery in the Global Economy (University of California Press 2012). 43 O’Connell Davidson (n 41) 17. 44 Rutvica Andrijasevic and Bridget Anderson, ‘Anti-​trafficking Campaigns: Decent? Honest? Truthful?’ (2009) 92 Feminist Review 151. 45 Jo Goodey, ‘Human Trafficking: Sketchy Data and Policy Responses’ (2008) 8 Criminology and Criminal Justice 21. 46 Peter Dominiczak and Peter Spence, ‘Mass Migration Driving Down Wages Offered to British Jobseekers’ The Telegraph (21 December 2015) accessed 6 August 2019. 47 Eg Vince Cable, ‘The Tory Fallacy: That Migrants Are Taking British Jobs And Driving Down Wages’ The Guardian (8 September 2017) accessed 6 August 2019.

354  Criminality at Work Rossi argued: ‘official campaigns and policies obfuscate the picture by focusing on narrow issues with high media-​shock potential and compartmentalizing connected problems’.48 A good example of how a focus on the criminal response to modern slavery can work against the interests of those it is designed to protect is the overseas domestic workers visa. According to the Home office around 15,000 to 16,000 such visas are issued each year.49 The Conservative government, wanting to be seen to be tough on immigration, especially ‘unskilled’ immigration, created the domestic worker visa. Modern slavery was also used as a justification for the crackdown.50 The visa scheme meant that domestic workers can be resident in the UK for six months while working within the private household, however it did not permit a worker to change employer. The reasoning was that this would enable the authorities to know where the worker was living and prevent them ‘disappearing’.51 The effect of the scheme was that it removed the most basic response to poor working conditions: simply leaving the work.52 As they often rely on the employer for accommodation this renders them particularly vulnerable. If they do work outside the terms of their visa they could be guilty of the offence of illegal working, created by the Immigration Act 2016.

E. Domestic Labour The rest of this chapter will explore the application of the Act to the context of domestic labour and putting in the context of the feminist literature on housework and domestic abuse more generally.53 Domestic labour is a significant portion of modern slavery cases.54 Yet it is not normally presented as form of domestic abuse or within the context of the housework literature. But the simple fact is that some modern slaves are married to the exploiters and others are not, but their relationship status has little relevance to the lived-​in reality of their situation. Their lives were controlled through physical and sexual violence, emotional control and restriction of movement.55 Consider, for example, this case, which is presented by the IASC as a typical case of ‘modern slavery’ but could equally be seen as a case of domestic abuse: A British Pakistani man kept his Pakistani wife in domestic servitude for two years. The victim was well-​educated and from a relatively affluent family. The arranged marriage took 48 Benedetta Rossi ‘Modern Slavery, Brexit, Migration, and Development:  Connecting the Dots’ Open Democracy (21 November 2017) < www.opendemocracy.net/​beyondslavery/​benedetta-​rossi/​modern-​slavery-​ brexit-​migration-​and-​development-​connecting-​dots> accessed 14 June 2018. 49 Rossi (n 48). 50 Fudge (n 35). 51 For a highly negative review of the operation of the scheme see James Ewins, Independent Review of the Overseas Domestic Visa (16 December 2015) accessed 6 August 2019. 52 Virginia Mantouvalou, ‘Modern Slavery? The UK Visa System and the Exploitation of Migrant Domestic Workers’ LSE Blogs (4 February 2016) accessed 14 June  2018. 53 Thanos Maroukis, ‘Demand in the Context of Trafficking in Human Beings in the Domestic Work Sector in the United Kingdom (EUI June 2016) accessed 6 August 2019. 54 Hestia, Underground Lives:  The Reality of Modern Slavery in London (November 2017) www.hestia.org/​ Handlers/​Download.ashx?IDMF=68f44ab0-​fa94-​49eb-​ac4d-​d4ae2b1f8586 accessed 6 August 2019. 55 ibid.

Modern Slavery, Domestic Work, and the Criminal Law  355 place in Pakistan. When the victim arrived in the UK in 2012 her husband reportedly told her that her only purpose was to look after him and his mother, who had ill health. The victim cooked, cleaned, and did household chores for her husband and mother-​in-​ law. She often worked nineteen-​hour days and was unpaid, only being given £10 a month to top up her mobile phone. Her husband controlled her through a combination of fear, mental abuse, and repeated physical violence. She was not allowed to leave the house unaccompanied or to make friends. In February 2014, the offender was taken into police custody after he was spotted pulling the victim back into the house by her hair. She was found to have a black eye and a broken nose, requiring surgery. The victim then signed a document asking for the offender’s release, stating that she was not acting under pressure. The exploitation continued for eighteen months, until the victim attempted suicide by taking an overdose of painkillers. She was taken to her brother-​in-​law’s house for safe-​keeping, and there notified the police of her exploitation by calling 999. This led to an eighteen-​month investigation, which culminated in the offender being sentenced to two years.

To unpack these issues I will start by exploring some of the feminist analysis of housework.

1.  Feminist Analysis of the Nature of Housework It has long been a claim of feminists that housework and child care are significant sources of disadvantage. Feminists have long drawn links between housework and slavery. In Betsy Warrior’s chapter ‘Slavery or Labour of Love’ she writes: It is clear to me that women will not be freed from their sexual status (slavery) by being given equal opportunity in the ‘outside’ labor force; it has been tried already and has failed. Rather they will be given the basis for equal opportunity by being freed of their function as domestic slaves and its form, the patrilineal family. If we attempt to improve the situation of the houseworker without attacking the economy and sex role attitudes which make this situations possible, then, in effect, we will be trying to make the slavery of women more palatable.56

Similarly, Silvia Federici writes: It is important to recognize that when we speak of housework we are not speaking of a job as other jobs, but we are speaking of the most pervasive manipulation, the most subtle and mystified violence that capitalism has ever perpetrated against any section of the working class. The difference lies in the fact that not only has housework been imposed on women, but it has been transformed into a natural attribute of our female physique and personality, an internal need, an aspiration, supposedly coming from the depth of our female character. Housework had to be transformed into a natural attribute rather than be recognized as a social contract because from the beginning of capital’s scheme for women this work 56 Betsy Warrior, ‘Slavery or Labour of Love’ in Barbara Crow (ed), Radical Feminism (New York University Press 2000).

356  Criminality at Work was destined to be unwaged. Capital had to convince us that it is a natural, unavoidable and even fulfilling activity to make us accept our unwaged work. In its turn, the unwaged condition of housework has been the most powerful weapon in reinforcing the common assumption that housework is not work, thus preventing women from struggling against it, except in the privatized kitchen-​bedroom quarrel that all society agrees to ridicule, thereby further reducing the protagonist of a struggle.57

These statements, which have been echoed by many feminists and others over the decades raise some powerful issues around housework and child care. First, care work is seen as invisible. The Cambridge Women’s Liberation Group wrote in 1977: We have discovered our invisible work, the enormous quantity of work that women are forced to perform every day . . . this work, which consists of having children and taking care of them, feeding a man, keeping him tidy and cheering him up after work is never presented as such. Household work became a site where feminists struggled over the tension between criticizing state policy and demanding greater state support, as well as challenging prevailing norms of family life.58

Remarkably this still has much truth today. Care work receives little recognition or value. Domestic workers are not covered by the weekly forty-​eight-​hour restriction set out in the Working Time Regulations for the limitation of working hours, and the Health and Safety Executive (HSE) has no remit to inspect private households. Workers are exempt from the minimum wage if they are living in and treated as part of the family. That is just in the field of labour law. In my book, Caring and the Law,59 I set out a myriad of ways that care work goes unrecognized and unsupported by legal and social means. The issue is well shown by the case of Hua Chun Wang.60 Ms Wang entered the UK on a visitor visa to spend time with her sister, brother-​in-​law, and niece (who was two-​and-​a-​ half years old). Under the terms of the visa she was not permitted to work. She was found by immigration officer to be working as an ‘unpaid nanny’ and so had breached the terms of her visa. She had insisted she had helped look after her niece as any family member would. Indeed the point of her visit was to spend time with her new niece. She was deported and prevented from re-​entering for the next ten years. Discussing this case Anderson highlights the underlying issues of race and gender asking ‘[w]‌ould a wealthy white American uncle have counted as an unpaid nanny?’61 This case shows how care work, which is normally invisible and unpaid, only becomes the focus of any attention because of a policy focused on a particular category of worker, based, as Anderson suggested on sexist and racist stereotypes. As Anderson notes the problem with emphasis on modern slavery in domestic labour it meant: ‘[m]‌ore mundane abuses and indignities—​not being given a bed, working excessive

57 Silvia Federici, Wages Against Housework (Falling Wall Press 1975). 58 Spare Rib (25 May 1977). 59 Jonathan Herring, Caring and the Law (Hart 2013). 60 Fran Bardsley ‘Aunt Ordered out of UK’ Oxford Mail (10 December 2008) accessed 6 August 2019. 61 Bridget Anderson, ‘Migrant Domestic Workers: Good Workers, Poor Slaves, New Connections’ (2015) 22(4) Social Politics 636.

Modern Slavery, Domestic Work, and the Criminal Law  357 hours, being paid a pittance, or indeed not having a pension paid, are far more common, but difficult to characterize as “modern slavery”.’62 I would add more broadly that focussing on modern slavery the law overlooks the exploitative nature of housework and child care, when it is shared unequally. It simply goes unrecognized and unacknowledged. Second, the gendered division of child care and housework is striking even today. A recent UK study found that each month women worked two days more than men on housework and child care.63 Women were found to spend 28 per cent more time on housework than men and 31 per cent more on child care. Certainly there has been a shift in the attitudes expressed by opposite sex couples about how they ought to share housework and child care,64 the reality is that men still specialize on market work while the woman focuses on nonmarket work such as housework or child care. While female involvement in employment is at far higher rates than previously, that is often part time and the division of housework is still unequally divided.65 The slight reduction in the gap is caused by women doing less work, rather than men doing more.66 Fetterolf has estimated, looking at women in employment, that they spend an average of 24.5 hours per week on housework and child care, where for men the figure was 16.6 hours.67 A Pew Centre study asking parents if they struggled to balance work and parenthood, found 58 per cent of millennial mothers saying that parenthood had had a significantly negative impact on their career, while only 19 per cent of fathers reported any impact.68 Kamp Dush et al,69 looking at American dual income heterosexual couples, found that men had significantly longer amounts of time in leisure activities, especially on non-​work days, during which time women did additional housework and child care. Looking at ‘time off ’ for the couple, that is time when not in employed in work, 47 per cent of the time mother performed child care while the man engaged in leisure and 35 per cent of the time women performed routine housework, while the men engaged in leisure. Only between 16 and 19 per cent of the ‘spare time’ were women able to engage in leisure.70 One recent study looking at joint career couples found when adding together domestic and paid work women spend eleven hours per week more than men.71 Such differences even exist when women have time-​intensive careers such as doctors or academics.72 Even where domestic help is brought in women feel obliged to control its supervision and of course the vast majority of hired domestic and 62 ibid. 63 Oxfam, ‘Women Spend Two Days a Month More Than Men on Housework and Childcare in UK, Survey Finds’ (4 March 2016) accessed 6 August 2019. 64 Judith Treas and Tsuio Tai, ‘Gender Inequality in Housework across 20 European Nations: Lessons from Gender Stratification Theories’ (2016) 75(11–​12) Sex Roles 495. 65 Judith Treas and Jonathan Lui, ‘Studying Housework Across Nations’ (2018) 5 Journal of Family Theory & Review 135. 66 Jennifer L Hook, ‘Gender Inequality in the Welfare State: Sex Segregation in Housework, 1965–​2003’ (2010) 115 American Sociological Review 1480. 67 Janell Fetterolf and Laurie Rudman. ‘Gender Inequality in the Home: The Role of Relative Income, Support for Traditional Gender Roles, and Perceived Entitlement’ (2014) 31 Gender Issues 219. 68 Treas and Tai (n 64). 69 Claire M Kamp Dush, Jill E Yavorsky, and Sarah J Schoppe-​Sullivan, ‘What are Men Doing while Women Perform Extra Unpaid Labor? Leisure and Specialization at the Transitions to Parenthood’ (2018) 78(11–​12) Sex Roles 715. 70 ibid 718. 71 Liana C Sayer and others, ‘How Long is the Second (Plus First) Shift? Gender Differences In Paid, Unpaid, And Total Work Time In Australia and The United States’ (2009) 40 Journal of Comparative Family Studies 523. 72 Stephen E Rhoads and Christopher H Rhoads, ‘Gender Roles and Infant/​Toddler Care: Male and Female Professors on the Tenure Track’ (2012) Journal of Social, Evolutionary, and Cultural Psychology 6.

358  Criminality at Work clean labour are women, meaning the gendered division does not change and is simply displaced along raced and classed lines.73 Third, the consequences of the division of domestic labour and child care are dramatic. In 1989 Susan Okin published her hugely influential book Justice Gender and the Family exploring how gender inequality was reinforced by and sustained by the way housework was structured.74 It was simply assumed that housework and child care was women’s work, an assumption which caused significant disadvantage. Despite much social change since that book, there has been only very limited change in the distribution of housework,75 and the impact of that on women’s employment. Sheryl Sandberg, COO of Facebook, writing in 2011, stated: The No 1 impediment to women succeeding in the workforce is now in the home . . . Most people assume that women are responsible for households and childcare. Most couples operate that way—​not all. That fundamental assumption holds women back.76

Notably her widely publicized book in 2013, Lean In, encouraged women to tackle the external barriers women might face in achieving leadership in employment, accepting there was little that could be done about the internal barriers by which women ‘hold themselves back’ because they believe they should carry out the primary role of child care and housework.77 This inequity in division of housework and child care has significant impact on women’s economic and personal wellbeing.78

2.  Modern Slavery and Domestic Abuse One of the strange things about reading accounts of modern slavery in a domestic account to a family lawyer is that they read as an account of domestic abuse. Many commentators on domestic abuse have drawn on the concept of coercive control as being a definition feature of domestic abuse.79 Section 76 of the Serious Crime Act 2015 creates a new offence of controlling or coercive behaviour in an intimate family relationship. It is designed specifically to deal with cases where there is domestic abuse but there has been no physical violence. Evan Stark defines coercive control as . . . a course of calculated, malevolent conduct deployed almost exclusively by men to dominate individual women by interweaving repeated physical abuse with three equally important tactics: intimidation, isolation and control.80 73 Amanda Moras, ‘ “This Should be My Responsibility’’: Gender, Guilt, Privilege and Paid Domestic Work’ (2017) 34 Gender Issues 44. 74 Michaela L Ferguson, ‘Vulnerability by Marriage:  Okin’s Radical Feminist Critique of Structural Gender Inequality’ (2016) 31 Hypatia 687. 75 Linda R Hirshman, Get to Work (Penguin 2006). 76 Sheryl Sandberg, ‘A Woman’s Place’ The New Yorker (11 July 2011) 54–​63. 77 Sheryl Sandberg, Lean In (WH Allen 2013). 78 Natalie Nitsche and Daniela Grunow, ‘Housework Over the Course Of Relationships:  Gender Ideology, Resources, and the Division of Housework From a Growth Curve Perspective’ (2016) 29 Advances in Life Course Research 80. 79 For example, Jonathan Herring, ‘The Meaning of Domestic Violence:  Yemshaw v London Borough of Hounslow’ (2016) 33 Journal of Social Welfare and Family Law 297. 80 Evan Stark, Coercive Control (OUP 2007) 23.

Modern Slavery, Domestic Work, and the Criminal Law  359 Domestic abuse should not, therefore, be understood as a series of isolated events, but as a relationship which is designed to control. Psychologist Mary Ann Dutton explains: Abusive behaviour does not occur as a series of discrete events. Although a set of discrete abusive incidents can typically be identified within an abusive relationship, an understanding of the dynamic of power and control within an intimate relationship goes beyond these discrete incidents. To negate the impact of the time period between discrete episodes of serious violence—​a time period during which the woman may never know when the next incident will occur, and may continue to live with on-​going psychological abuse—​is to fail to recognize what some battered woman experience as a continuing ‘state of siege’.81

Under the coercive control model the aim of the relationship is to dominate the victim and diminish her sense of self-​worth: control on going to work; isolation from friends; psychological manipulation, and so forth; are commonly used weapons to this end. Violence may, or may not, be used as one tool.82 Where it is, or where threat of it is, this can be a particularly powerful and unpleasant means of exercise control. Evan Stark explains: [M]‌ost abused women have being subjected to a pattern of sexual mastery that includes tactics to isolate, degrade, exploit, and control them as well as to frighten them or hurt them physically . . . These tactics include forms of constraint and the monitoring and/​or regulation of commonplace activities of daily living, particularly those associated with women’s default roles as mothers, homemakers, and sexual partners, and run the gamut from their access to money, food, and transport to how they dress, clean, cook, or perform sexually.83

A key aspect of this control is restricting access to external sources of help or independence. Reports of domestic abuse often note the abuse is heightened when women seek to find employment or undertake study outside the home.84 One striking report notes a woman whose husband attempted to burn three years of research in an attempt to prevent her completing her university course.85 These accounts fit precisely with the kind of treatment of ‘modern slaves’. Whether one is classified as a modern slave and falls under the Modern Slavery Act 2015 or is a victim of coercive and controlling behaviour and falls under the Serious Crime Act 2015 is whether the parties are in an ‘intimate personal relationship’, a term not defined in the 2015 Act. This might be interpreted as a code for a sexual relationship of some kind. While that would be in line with the law’s obsession in emphasizing sexual relationships over other forms of close relationship, it would be hard to justify.86

81 Mary Ann Dutton, ‘Understanding Women’s Response to Domestic Violence’ (2003) 21 Hofstra Law Review 1191, 1204. 82 Orly Rachmilovitz, ‘Bringing Down the Bedroom Walls: Emphasizing Substance Over Form in Personalized Abuse’ (2007) 14 William & Mary Journal of Women & Law 495. 83 Evan Stark, ‘Looking Beyond Domestic Violence:  Policing Coercive Control’ (2012) 12 Journal of Police Crisis Negotiations 199, 200. 84 Liz Kelly, Surviving Sexual Violence (Polity Press 1988) 129. 85 ibid. 86 Jonathan Herring, ‘Making Family Law Less Sexy’ in Robert Leckey (ed), After Equality (Routledge 2014).

360  Criminality at Work

3.  Slavery, Domestic Abuse, and Patriarchy Domestic abuse, I would argue, must be understood within the context of patriarchy. Much has been written on the definition of patriarchy87 and I will only sketch an outline of it. Michelle Madden Dempsey defines patriarchy in this way:  ‘a collection of social forms which constitute a structural inequality, whereby men hold systematic social power in society more generally’.88 Patriarchy is a range of forces which restrict the ability of women to access valuable resources and exercise their options. It can be expressed in a range of ways: from sex discrimination where barriers are put in place to social resources which favour men over women; to sex harassment in the street which discourage women to access public spaces; to a devaluing of care which is predominantly performed by women. It involves denying women access to resources they need to live valuable lives. Patriarchy works to restrict women to domestic spaces and deny them access to economic, material, and public resources. The argument in this chapter is that patriarchy supports and is supported by domestic abuse. As the United Nations Special Rapporteur on Violence against Women puts it: ‘violence is not an isolated incident targeting vulnerable women but a systematically used tool of patriarchal control to ensure that “women stay in their place” ’.89 Domestic abuse reinforces the messages sent more broadly by patriarchy that women should be subservient to men and are inferior to them. The Convention on the Elimination of All Forms of Discrimination against Women, General Recommendation 19 states that domestic abuse is based on ‘traditional attitudes by which women are regarded as subordinate to men’. Gender stereotypes typically underpin domestic abuse. Accounts of domestic abuse commonly involve behaviour which is designed not just to humiliate a partner, but to reinforce a particular role for women (eg as home maker) and a particular status (eg as lesser than men).90 It also reinforces the practical barriers that exist to restrict women’s access to the labour market and reinforces traditional roles for women.91 Domestic abuse is sustained by and supported by patriarchy. Ruth Gavison explains: When women are battered at home, it is not because each particular victim has triggered an unfortunate ‘individual’ tragedy  . . .  Social structures are involved, social structures which are not simply ‘natural’. They are person-​made, and they benefit males.92

The refusal to link gender and domestic violence reinforces the notion that domestic abuse is simply a private matter. That family life should be a privileged sphere into which the state does not intervene. Domestic abuse is not just supported by patriarchy’s conceptions of the private. Michelle Madden Dempsey explains:

87 Sylvia Walby, Theorizing Patriarchy (OUP 1990). 88 Michelle Madden Dempsey, Prosecuting Domestic Violence (OUP 2009) 136. 89 Bridget Anderson, ‘Why Madam Has so Many Bathrobes: Demand for Migrant Domestic Workers in the EU’ (2001) 92 Journal of Economic and Social Geography 18. 90 Stark, Coercive Control (n 80). 91 ibid. 92 Ruth Gavison, ‘Feminism and the Public/​Private Distinction’ (1992) 45 Stanford Law Review 1, 15.

Modern Slavery, Domestic Work, and the Criminal Law  361 [T]‌he patriarchal character of individual relationships cannot subsist without those relationships being situated within a broader patriarchal social structure. Patriarchy is, by its nature, a social structure—​and thus any particular instance of patriarchy takes its substance and meaning from that social context.93

These insights from the literature on domestic abuse show us that domestic slavery also should be seen as being reinforced by and reinforcing patriarchy. As Bridget Andersen has shown the vast majority of domestic workers are women.94 Virginia Mantouvalou’s95 analysis of the account of domestic slavery echoes many of the accounts of domestic abuse. It is patriarchy’s demeaning of women’s work; the invisibility of it; and the normalization of exploitative conditions within the context of child care and domestic labour that enables and reinforces patriarchy.

F.  Conclusion Judy Fudge and Kendra Strauss are quite right to highlight . . .  [t]‌he trafficking/​forced labour paradigm tends to reinforce the view that migrant domestic workers’ exploitation is the result of morally culpable individuals who should be publicly vilified, rather than systemic and institutional features of state policies and practices relating to immigration and labour regulation.96 In this chapter I have sought to highlight how patriarchal attitudes about women; about the value of housework; and the normalization of the exploitation of those who engage in care work are in fact behind modern slavery. By drawing on the links and strong similarities between modern slavery and domestic abuse I suggest that ‘modern slavery’ is not far from modern. Marriage has long been the banner under which what is now called ‘modern slavery’ has been performed. We can call unpaid, unvalued, abusive housework and child care whatever we like, but it is primarily performed by women and its inequality is pervasive and found in the vast majority of homes around the country. We just must not assume it is rare or alien. It is deeply imbedded in our culture and law.

93 Michelle Madden Dempsey, ‘Towards a Feminist State’ (2007) 70 Modern Law Review 908. 94 Bridget Anderson, Doing the Dirty Work: The Global Politics of Domestic Labour (Zed Books 2000). 95 Virginia Mantouvalou, ‘Am I Free Now? Overseas Domestic Workers in Slavery’ (2015) 42 Journal of Law and Society 329. 96 Judy Fudge and Kendra Strauss, ‘Migrants, Unfree Labour, and the Legal Construction of Domestic Servitude’ in Cathryn Costello and Mark Freedland (eds), Migrants at Work: Immigration and Vulnerability in Labour Law (OUP 2014).

19

The Persistence of Criminal Law and Police in Collective Labour Relations Alan Bogg, KD Ewing, and Andrew Moretta

A.  Introduction In The Making of Labour Law in Europe, a comparative study of legal development of nine European countries up to 1945, Antoine Jacobs traced the development of ‘collective self-​ regulation’ using three ideal-​types: ‘repression’, ‘toleration’, and ‘recognition’.1 ‘Repression’ described a situation where ‘state policy is to suppress the agents of modern industrial relations, notably the trade unions, to prosecute their leaders and to thwart methods of collective regulation such as strikes and collective agreements’. In the ‘toleration’ phase, trade unions could ‘operate in full legality’,2 albeit that the state adopted a position of neutrality towards the institutions of collective labour relations. Finally, ‘recognition’ was based upon positive legal and administrative supports for trade unions, reflected in strong legal and administrative ‘props’ to bargaining institutions, public provision of dispute resolution mechanisms, and the legal protection of a right to strike. Jacobs’ presentation of these phases of historical development has been enduring and influential. Jacobs’ nuanced picture was careful to avoid crude generalizations, emphasizing that these phases ‘frequently overlap in practice’ during specific historical periods.3 He also rejected a teleological view of legal development, acknowledging that legal liberalization could sometimes be followed by repressive state measures. Nevertheless, Jacobs maintained the general thesis that ‘all the countries studied passed through these phases, though at different times’.4 The rise and fall of the criminal law is central to this narrative. In the ‘repression’ phase, ‘the instruments of power the state can utilize are manifold: prohibitions of the criminal law; police measures such as arrest; dissolution of meetings, seizure of pamphlets, and so on’.5 During the ‘toleration’ phase, by contrast, ‘prohibitions under the criminal law disappear, and the police limit their intervention to cases in which public order is seriously jeopardized’.6 In turn, the ‘recognition’ phase, which was characteristically aligned with a rights-​based conceptualization of collective freedoms, eventually coincided even with the exclusion of antithetical civil law doctrines such as the tort of conspiracy. 1 Antoine Jacobs, ‘Collective Self-​Regulation’ in Bob Hepple (ed), The Making of Labour Law in Europe (Hart 2010) 194–​96. 2 ibid 194. 3 ibid 195. 4 ibid 240. 5 ibid 194. 6 ibid 194. Alan Bogg, KD Ewing, and Andrew Moretta, The Persistence of Criminal Law and Police in Collective Labour Relations In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.0019

Criminal Law in Collective Labour Relations  363 While acknowledging the power of Jacobs’ argument, we will argue that the criminal law has never disappeared: it has been a persistent feature of collective labour relations through to the present day. Its persistence has been obscured by a certain tendency in general criminal law scholarship to marginalize the types of crime and criminal justice practice that have been central to labour regulation. For example, Nicola Lacey has drawn attention to the master and servant laws as ‘an early example of a hybrid civil/​administrative/​criminal genre’ which ‘regulated not only wages and the supply of labour, but also labour discipline and, indirectly, social order and economic stability’.7 These offences could be punished severely by whipping and hard labour, and they proved to be powerful weapons to break strikes well into the nineteenth century. Other measures such as public order offences, breaches of the peace, arrest powers, and state surveillance occupied a marginal place in the leading criminal law treatises of the nineteenth and twentieth centuries. The law on contempt of court, which is positioned on the uncertain borderland between civil procedure and penal measure, has also been an important intervention in the restriction and regulation of collective activities. Yet for all their marginality in the traditional criminal law canon, these laws have been central to the lived experience of the criminal law for trade unions and workers. These various measures could be subsumed within the general compass of ‘police power’. According to Dubber, the police power describes the discretionary power of the state to enforce the moral and social order and to maximize the welfare of the political community. As a mode of government, Dubber describes it in the following terms: [I]‌ts defining undefinability (exposing its radically discretionary nature), the ahumanity of its objects (encompassing ‘men and things’ as constituents of the household), the strict hierarchy of governors and governed (echoing the categorical distinction between householder and household), and, most important, its basic alegitimacy (reflecting the ancient insight of Greek economics that household governance was measured by efficiency, not justice).8

Police power may have less juridical resonance in English law compared with the United States. In the United States, ‘police power’ has constitutional significance in the allocation of legislative powers between state and federal government. In the UK, the distinction between police and law as modes of governance does not have these constitutional implications, and indeed Lindsay Farmer has argued that police as a category was largely subsumed within the modern province of general criminal law.9 Still, the concept of police power is analytically useful here in highlighting the ‘radically discretionary nature’ of much of the criminal law’s encounter with organized labour across three centuries through to the present day. In this chapter, we will examine the role of the criminal law during six historical periods: (i) the late eighteenth and nineteenth centuries leading up to (ii) the Conspiracy and Protection of Property Act 1875, which removed common law liability but introduced a number of new offences, while diluting others; (iii) the period after 1875 and the continuing presence of the criminal law (as widely understood) is discussed; (iv) the additional

7

Nicola Lacey, In Search of Criminal Responsibility (OUP 2016) 43. Markus D Dubber, The Police Power (Columbia UP 2005) xv. 9 Lindsay Farmer, Making the Modern Criminal Law (OUP 2016) 47. 8

364  Criminality at Work presence of the criminal law in a move from ordinary law to emergency law; (v) the policing of the Miners’ Strike 1984–​85 signalling a move from emergency law to the raw reserve power of the state, perhaps the most naked source of authority; and (vi) the recent turn towards preventive criminalization in the era of the Trade Union Act 2016. We will suggest that there has been no simple withdrawal of the criminal law from collective labour relations. Instead, the specific pattern of criminalization in collective labour relations has evolved, and these changes have often reflected wider understandings of ‘civil order’ in the general criminal law. Drawing upon Lindsay Farmer’s and Nicola Lacey’s work on criminalization practices, we argue that the criminal law occupies a more central regulatory role in collective labour law than has hitherto been acknowledged.

B.  The Late Eighteenth and Nineteenth Centuries up to the Conspiracy and Protection of Property Act 1875: The ‘Classical’ Repression Phase There was an intricate and intrusive web of criminal law and police power that regulated collective labour relations during the eighteenth and nineteenth centuries. Where industrial disputes involved violence and public disorder, in what Hobsbawm memorably described as ‘collective bargaining by riot’,10 the authorities often resorted to general criminal laws. Criminal offences directed at property damage, arson, violence against the person, affray, sedition, unlawful assembly, and riot could all be used to repress labour disorder.11 This was supported by general police power. As Lobban observes, ‘the state’s most important involvement in strikes came often not from prosecutions in the courts, but via the strong arm of the military’.12 The police power also became more significant during the nineteenth century as ‘the spread of regular police forces gave some new hope of control, and in various cases the general criminal law enabled the conviction and exemplary sentencing of strike leaders’.13 There were also criminal laws targeted more specifically at the confederacy of organized trade union action as such. The common law of criminal conspiracy operated as an important form of criminal liability across most of this period. The most important forms of criminal liability during this period were based in legislation. The ‘Combination Acts’ regulated specific trades during the eighteenth century, leading to a general scheme in the Combination Acts of 1799 and 1800. These were overhauled in 1824 and then again in the Combination Act 1825, which provided the basic structure of criminal liability for much of the nineteenth century. These Combination Acts provided for summary offences which could be enforced through simpler and more expeditious procedures than common law conspiracy.14 The common law of conspiracy had an important but residual role in regulating labour activities.15 Although the master and servant legislation additionally provided 10 Eric Hobsbawm, ‘The Machine-​Breakers’ in Eric Hobsbawm, Uncommon People (The New Press 1998) 6, 9. 11 William Cornish, ‘The Roots of Collective Action’ in William Cornish and others (eds), The Oxford History of the Law of England Volume XIII 1820–​1914: Fields of Development (OUP 2010) 650; John V Orth, Combination and Conspiracy: A Legal History of Trade Unionism 1721–​1906 (Clarendon Press 1991) 111. 12 Michael Lobban, ‘Strikers and the Law, 1825–​1851’ in Peter Birks (ed), The Life of the Law (Hambledon Press 1993) 211, 219. 13 Cornish, ‘The Roots of Collective Action’ (n 11) 659. 14 Orth (n 11) 38. 15 ibid chs 3 and 6.

Criminal Law in Collective Labour Relations  365 criminal penalties to enforce discipline in the employment contract and was a potent weapon against individual strikers,16 it was the legislation on combination that dominated the terrain of criminal labour laws across two centuries. By the end of the eighteenth century there were more than forty Acts of Parliament restricting workers’ combinations.17 As Orth has explained, ‘what moved Parliament to pass a combination act in the eighteenth century was always a dispute; what the parliamentarians wanted was social peace rather than distributive justice’.18 These various Combination Acts were industry specific, regulating different trades in response to specific disputes. Yet they displayed a basic elemental pattern: existing agreements to raise wages or reduce working hours were declared void, and the making of such agreements was criminal; leaving work unfinished was a criminal offence; and the acts made provision for ‘corporative’ fixing of wages and working hours, with breach of these provisions enforceable by criminal sanctions against both masters and journeymen.19 It was not until 1799 that the first Combination Act of a general nature was passed,20 this sharing many features in common with some of the specific Combination Acts outlined above, but with the critical difference that ‘unlike legislation in the earlier paternalist tradition, they included no compensatory protective clauses’.21 The 1799 Act was quickly replaced in 1800 by a new Combination Act, described by Aspinall as ‘an odious piece of class legislation’.22 But E P Thompson has argued notably that ‘[t]‌he Combination Acts were passed by a Parliament of anti-​Jacobins and landowners, whose first concern was to add to the existing legislation intimidating political reformers.’23 In other words, the general statutes restricting combination in 1799 and 1800 were as much part of the family of offences protecting the security of the state, such as treason and sedition, as they were part of a protean ‘law of the labour market’.24 In 1795, following demonstrations in Copenhagen Fields in London, a proclamation was issued against seditious assemblies, and legislation was passed whereby . . . it became a treasonable offence to incite the people by speech or in writing to hatred or contempt of the King, Constitution or Government. By the second no meetings of over fifty persons could be held without notifying a magistrate . . . defiance of the magistrate’s orders was punishable by death.25

Special legislation was introduced in 1799, the same year as the first general Combination Act, suppressing the London Constitutional Society and the London Corresponding Society by name.26 Thus, combinations were viewed as politically dangerous and transgressive at this time. 16 Daphne Simon, ‘Master and Servant’ in John Saville (ed), Democracy and the Labour Movement: Essays in Honour of Dona Torr (Lawrence & Wishart 1954) 160. 17 Arthur Aspinall, The Early English Trade Unions (The Batchworth Press 1949) ix. 18 Orth (n 11) 23. 19 ibid  22–​24. 20 ibid  22–​24. 21 EP Thompson, The Making of the English Working Class (Penguin 1991) 551. 22 Aspinall (n 17) xvii 23 Thompson (n 21) 551. 24 Compare Simon Deakin and Frank Wilkinson, The Law of the Labour Market (OUP 2005) 206. 25 Thompson (n 21) 158–​59. 26 ibid 191.

366  Criminality at Work This stain of sedition permeated the developing law on combination and conspiracy. For example, the Unlawful Oaths Act 1797, which had originated in a response to naval mutiny in the febrile final years of the eighteenth century, was used in the 1830s against the ‘Tolpuddle Martyrs’. According to Orth, ‘the Unlawful Oaths Act was not in its origin directed at trade unions; it was prompted by fears of mutiny and sedition during the wars with France. That it was turned against labour organizations shows how easily insubordination in the work-​place could be analogized to mutiny in the armed services.’27 It was undoubtedly expedient to use this legislation given the government’s view that ‘it was the secret system of oaths which hindered prosecutions of pickets: since the problem lay with the obtaining of evidence, not with the law, it made sense to attack that which most interfered with obtaining evidence’.28 Nevertheless, the origins of the general combination laws in the politically repressive measures of the 1790s gave the 1797 Act an intrinsic significance for trade unionists as enemies of the social order, and set in train a pattern constantly repeated of conflating trade unionism with sedition and political subversion. The latter perception of trade unionism and the persistence of the criminal law to reinforce it is one of several dominant themes of this chapter, which in our view begins to contradict the received wisdom we encounter in Jacobs and elsewhere. So far as the 1799 Act is concerned, it was a crime to enter into a contract for improving wages, reducing working hours or decreasing the quantity of work, preventing or hindering the employment of another person, or ‘controlling or anyway affecting any person or persons carrying on any manufacture, trade, or business, in the conduct or management thereof ’. It was also a crime to combine for any of these purposes, though the criminal provisions of the 1799 Act went further even than this. As Orth explains, ‘one could not directly or indirectly endeavour to prevent a workman from agreeing to work or endeavour to prevail on a workman already hired to leave work; nor could one endeavour to prevent any master from employing whomever he pleased’.29 There were also penal measures restricting the attendance of meetings and the collection or payment of money for illegal purposes, such as a general strike fund. There was significant petitioning against the 1799 Act by workmen from across the country.30 The bulk of the penal provisions against worker combinations were retained in the 1800 legislation. The main changes reflected concerns about formal legal equality and procedural justice. The Act introduced a new criminal offence restricting combinations of masters to reduce wages, reduce working hours, or increase the quantity of work.31 Parity with worker combinations was undermined by the fact that masters could not be imprisoned under the Act. More importantly, the new Act required two justices of the peace rather than one for examination of combination offences. Nor could any justice of the peace sit in a case where he was also a master in the trade or manufacture in which the offences were alleged to have been committed. This was a particularly vivid demonstration of the reformist potential of civil order secured through the institution of law. The workers’ objections to the 1799 Act



27

Orth (n 11) 114. Lobban (n 12) 224. 29 Orth (n 11) 45–​46. 30 ibid 49. 31 Aspinall (n 17) xvi. 28

Criminal Law in Collective Labour Relations  367 invoked legal ideals of natural justice, fairness, and equality before the law, all of which imposed internal rule of law limits on the securing of civil order through law. On this approach, there was a vital moral difference between brute coercive repression and prohibition through law. Nevertheless, even under the 1800 Act with its procedural reforms, the position under English law remained stark: ‘Parliament and the courts between them had finally formulated a general proposition concerning the groups soon to be known as trade unions: they were illegal.’32 The laws on combination were radically revised in 1824 following a report by a House of Commons Select Committee, the movement to repeal the penal combination laws having been led by proponents of economic laissez-​faire: the legislative abrogation of restrictions on combination would leave wages to be regulated by the free market.33 The 1824 Act repealed the restrictive penal regime on combination that had been implemented in 1800. In so doing, it conferred broad safeguards for workers against prosecutions for common law conspiracy.34 The 1824 Act also represented an important shift in its characterization of criminal wrongs. Rather than targeting confederacies as such, the Act imposed penal measures on specified forms of individual violent wrongdoing. The latter reflected the concern of the Select Committee that the repressive combination laws had given ‘a violent character to the combinations, and to render them highly dangerous to the peace of the community’; and further that any repeal of the combination laws must ‘punish either workmen or masters, who by threats, intimidation, or acts of violence, should interfere with that perfect freedom which ought to be allowed to each party, of employing his labour or capital in the manner he may deem most advantageous’.35 For example, the Act set down punishments for ‘violence to the person or property, by threats or by intimidation’ to force others to do (or not do) certain specified acts.36 Following an upsurge in strike action after the passing of the 1824 Act, further legislation followed swiftly in 1825. This restored the operation of common law conspiracy. It also expanded the range of individual wrongs in the 1824 list of violence, threats and intimidation, to also include the ‘molestation’ or ‘obstruction’ of another.37 For fifty years, the 1825 Act was thus at the centre of judicial disputation about the limits of legitimate trade union action. Much of this concerned the moral and conceptual ambit of ‘molestation’ and ‘obstruction’ as criminal wrongs: terms that were interpreted expansively by the courts, such that any interference with the liberty of non-​striking workmen or masters was likely to fall foul of the Act.38 Even following a legislative clarification in the Molestation of Workmen Act 1859, that peaceful persuasion did not constitute molestation or obstruction, judicial interpretation rendered that a dead letter. According to Baron Bramwell infamously in R v Druitt,39 even where a picket had refrained from ‘abusive language and gestures’, where picketing ‘was calculated to have a deterring effect on the minds of ordinary persons, by exposing them to have their motions watched, and to encounter black looks, that would not be permitted by the law of the land’.40 This was a long way from

32 33 34 35 36

37 38 39 40

Orth (n 11) 67. ibid 68–​69; Aspinall (n 17) xxv. Orth (n 11) 78. ibid  74–​75. ibid  79–​80. Cornish, ‘The Roots of Collective Action’ (n 11) 656. See, eg, R v Hewitt (1851) 5 Cox CC 162; R v Rowlands (1851) 5 Cox CC 404. (1867) 10 Cox CC 593. ibid 601–​602.

368  Criminality at Work earlier cases that—​at least in relation to intimidation—​had emphasized the need to cause fear of physical violence.41

C.  From Public Wrongs to Private Rights As already suggested, the development the criminal law in collective labour relations must be understood against the wider background of the developing criminal law. The emergence and development of the criminal law as a unified disciplinary field during this period has been traced by Lindsay Farmer.42 In the eighteenth and early nineteenth centuries, crimes related to combination and conspiracy developed in the shadow of sedition and the preservation of the state. This reflected Blackstone’s conceptualization of crime as ‘public wrong’.43 As Farmer explains, this account of ‘public wrong’ was based on ‘the protection of the state, rather than a public interest in the protection of private interests . . . Priority was given to wrongs against the sovereign and public institutions.’44 It was therefore quite natural for the Combination Acts to be framed as crimes against the state, and it was natural for combination itself to be an object of criminalization. During the nineteenth century, Farmer argues that the unity and coherence of the criminal law was reconstituted around the emergence of ‘the legislative state’, which found its most rigorous exposition in the work of Sir James Fitzjames Stephen.45 The latter aimed at a systematic and rational legislative ordering of criminal offences, distinguishing more clearly between crimes against public interests (eg treason, sedition) and crimes against private interests (eg property crimes, offences against the person). As the Disraeli government moved in 1875 to address criminal liability for industrial action, we can see both aspects of this conceptualization in play. The Conspiracy and Protection of Property Act 1875 thus addressed two separate questions: the first was the right to participate in strike action, following the resurrection of common law liability in the shape of criminal conspiracy in 1872 in the prosecution of striking gas-​workers (discussed below), a prosecution that looks like either (i) an admission that the government had made a mistake in restricting criminal liability for conspiracy in the Criminal Law Amendment Act 1871, or (ii) a two-​fingered salute by the prosecuting authorities to the government of the day. The restrictions reintroduced in the 1875 Act in response play to the idea of the strike as a crime against public interests. A second question dealt with by the 1875 Act was picketing, with its challenge to the factory owner and the strike breaker, very much crimes against private interests in Stephen’s terms. Thus it was not until 1875, following two Royal Commissions and the Criminal Law Amendment Act 1871, that the criminal wrongs of ‘molestation’ and ‘obstruction’ were finally interred. The minority report of the Royal Commission of 1869 favoured the r­ epeal of partial laws that imposed special restrictions on workers, and in this respect the Combination Act 1825 was in their sights.46 It should be sufficient for industrial disputes to be regulated by general criminal laws regulating violence, threats, public order, and damage to property. The

41 42 43 44 45

46

R v Selsby (1847) 5 Cox CC 496. Farmer (n 9). ibid  66–​77. ibid  72–​73. ibid  77–​89. Douglas Brodie, A History of British Labour Law 1867–​1945 (Hart 2003) 5.

Criminal Law in Collective Labour Relations  369 final settlement in section 3 of the Conspiracy and Protection of Property Act 1875 introduced a protection from the criminal law of conspiracy where acts were ‘in contemplation or furtherance of a trade dispute between employers and workmen’. This was a direct response to the decision in R v Bunn,47 where the common law offence had been resurrected in 1872 to prosecute, convict, and jail striking gas-​workers in London, though it is unclear what the position would have been had the 1825 Act still been in force at the time. But while going some way to abolishing the common law offence of conspiracy in the context of trade disputes (a term not defined), the 1875 Act nevertheless also retained special criminal laws to regulate strike action in more carefully defined circumstances. Section 4 thus made it a criminal offence wilfully and maliciously to break a contract of service with a gas or water supplier (extended in 1919 to include electricity suppliers),48 in circumstances where the individual knew or had reasonable cause to know that this would wholly or to a great extent deprive the inhabitants of supplies. The decision in Bunn to revive common law liability following the repeal of the 1825 Act may have been the precipitating cause for the introduction of section 3, but it would thus ironically barely benefit the gas-​workers whose convictions had led to the legislation. In section 5, criminal liability was extended to those breaking a contract of service, having reasonable cause to believe that the probable consequences of doing so will endanger human life, or cause serious bodily injury, or expose property to destruction or serious injury. Sections 3–​5 of the 1875 Act were thus addressed to the residual common law power that had been resurrected in Bunn in the wake of the liberalizing provisions of the Criminal Law Amendment Act 1871. But having rediscovered the power and deployed it successfully, the state was evidently not prepared to remove all criminal constraints for strike action, regardless of who was involved or its consequences. Participation in strike action could still attract criminal sanctions, even though neither section 4 nor section 5 was widely invoked thereafter, the former having been repealed largely unlamented.49 In terms of rationale, the creation of such offences may have reflected wider patterns of criminalization during this period, and in particular an ‘increasingly centralized and ambitious government’s need to regulate urban and industrial life, with health and public order being prime considerations’.50 It is possible that they may also be rationalized in Dubber’s terms, as early examples of police measures directed at maintaining public peace and order, by preventing the disruption to important public services and amenities. In contrast to measures dealing with participation in strikes, the other concern of the 1875 Act was to deal with another preoccupation of the time which was picketing (intimidation, molestation, and the like). Section 7 specified criminal wrongs perpetrated with ‘a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, wrongfully and without legal authority’. These were identified as the use of violence, intimidation, or injury to property; persistent following from place to place; hiding, depriving, or hindering the use of tools, clothes, or property; watching or besetting a place; and following with two or more persons in a disorderly manner through any road or street. Section 7(5) contained a proviso such that 47 (1872) 12 Cox CC 316. 48 Electricity (Supply) Act 1919, s 31. 49 See now Trade Union and Labour Relations (Consolidation) Act 1992, s 240 (retaining what was then the CPPA 1875, s 5). CPPA 1875, s 4 was repealed by the Industrial Relations Act 1971. 50 Lacey (n 7) 89.

370  Criminality at Work attending a place ‘in order merely to obtain or communicate information’ did not constitute a watching or besetting. These were now more recognizable as crimes akin to the general offences dealing with violence, property damage, and public order. In this sense, we see the renewed concern of the criminal law not only with public wrongs against the state, but also public wrongs against private rights and interests. The other Act of 1875, the Employers and Workmen Act, finally repealed the penal provisions of the master and servant legislation, referred to briefly above. This was highly significant to collective labour relations, even though these crimes had punished individual acts of disobedience against masters. The master and servant laws had deep historical roots in the labour statutes of the fourteenth century. These earlier penal provisions were then reconstituted in the Statute of Artificers 1563 which imposed criminal penalties on labourers for leaving work unfinished.51 The criminal punishment of disobedience, neglect, or non-​ performance of duties of service was scattered across various statutes during the eighteenth century. This was crystallized into a general offence in the Master and Servant Act of 1823. The offence—​which was used to stymie collective action and break strikes—​was widely defined and encompassed a failure to commence service under a written and signed contract, absence from service during the contractual term, ‘neglect’ in fulfilling the contract, and ‘any other misconduct or misdemeanour in the execution thereof ’.52 The laws had been particularly useful to smaller employers in breaking strikes.53 For example, between 1858 and 1875, Simon estimated that there had been on average 10,000 prosecutions per year in England and Wales.54 This was within the context of serious grievances about stark partiality of the master and servant legislation both in legal form and practical enforcement. The one-​sided imposition of criminal penalties on workmen, leaving masters liable only for civil actions, was a particularly egregious breach of formal legal equality. There were also concerns about the partiality of the Act’s application to workmen by magistrates who were sympathetic to the position of the masters.55 It was only in the Employers and Workmen Act 1875 that the penal provisions of the master and servant legislation were repealed, ‘which at last conceded equality to the servant and left him like his master, liable if he broke contract only to a civil action for damages’.56 Thereafter, individual conduct would be regulated through the criminal offences in section 7 of the Conspiracy and Protection of Property Act 1875, and the general criminal law. A reinterpretation of the Conspiracy and Protection of Property Act 1875 would thus emphasize that the criminal law had been only partially removed: the Act created new offences for participating in industrial action, and revised the criminal liabilities for picketing. These latter liabilities were real, with Grunfeld helpfully collecting a number of the reported cases under the 1875 Act in his Modern Trade Union Law.57 Any such reinterpretation would also focus on the different rationales of these measures, reflecting the different purposes served by the evolving criminal law. Whatever retrenchment of the criminal law occurred at this time, this did not correlate with a wide liberty of action for organized labour. In fact, 51 Orth (n 11) 107–​08. 52 Simon (n 16) 165. 53 ibid 190–​95. 54 ibid 160. 55 ibid 169–​71. 56 ibid 189. 57 Cyril Grunfeld, Modern Trade Union Law (Sweet and Maxwell 1966) 447–​54. There would of course have been thousands of cases dealt with summarily.

Criminal Law in Collective Labour Relations  371 any such retrenchment occurred alongside an expanding law of tort for inducing breach of employment contracts and civil conspiracy. According to Orth, ‘tort took the place of crime, and civil liability proved far more punitive than imprisonment’.58 Indeed,the crimes in section 7 of the 1875 Act provided a basis for civil liability, enabling employers to seek injunctions to prevent the watching and besetting of their premises.59 By effectively permitting the criminal law to be enforced by injunction to restrain picketing, Lyons v Wilkins is in fact the complete vindication of the argument that in the 1875 Act the criminal law was being used to defend private rights as well as protect public interests. Such injunctive relief was also a preventive form of restraint on protest and picketing. That apart, the importance of the partial displacement of crime by tort cannot be overemphasized. Changes in the form of legal intervention, for example from crime to tort, do not necessarily translate into changes in the repressive effects of the law on trade union action. During the nineteenth century, the law had struggled to recognize the corporate existence of trade unions as legal entities. Certainly, it would have strained the existing conceptual apparatus of the criminal law to develop a notion of corporate criminal liability for trade unions. In tort law, however, the courts took the momentous step in Taff Vale of allowing a tort action against the trade union itself.60 It is unlikely that this step could have been taken within the existing doctrinal strictures of the criminal law during the same historical period. It was a step that exposed the trade union movement to as high a degree of control by the courts as had been found in the Combination Acts.

D.  The Continuing Presence of the Criminal Law Judgements about the contracting jurisdiction of the criminal law must always be made rather cautiously. The repeal of the combination laws and master and servant legislation represented landmark legislative moments, certainly. However, we cannot measure the jurisdiction of the criminal law through a simple quantification of offences on the statute books. The police power, directed at the maintenance of public peace, the abatement of nuisances, and the promotion of the public welfare of the community, is elusive in its very nature: ‘the police power has tended to resist definition. It has been suggested that the core characteristic of the police power is precisely its indefinability; insofar as one of its functions is to preclude efforts to constrain the discretion of the sovereign invoking it, any definition would be unwelcome.’61 The discretionary nature of police locates it principally within the domain of executive power. For this reason, it may be dormant and invisible during periods of relative labour peace. During times of disorder, however, the police power can be brought to bear with awesome effect through public order offences, policing, the use of undercover surveillance by police and the intelligence services, and military intervention. The very latency of the police

58 Orth (n 11) 148. 59 J Lyons & Sons v Wilkins [1896] 1 Ch 811, [1899] 1 Ch 255. See parallels with Protection from Harassment Act 1997, below. 60 Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] AC 426. For further discussion, see Brodie (n 46) 27–​38. 61 Markus D Dubber and Mariana Valverde, ‘Policing the Rechtsstaat’ in Markus D Dubber and Mariana Valverde (eds), Police and the Liberal State (Stanford University Press 2008) 1, 4.

372  Criminality at Work power defies any categorical measurement of the jurisdiction of the criminal law in collective labour relations. This can be seen in the febrile period between the 1890s and 1920, which intermittently saw incidents of large scale and sometimes impassioned industrial action. One such case was a dispute at Ackton Hall Colliery in Featherstone in 1893, where miners were locked out during a dispute. Because the police were otherwise engaged at Doncaster races, fifty-​three soldiers were sent from Bradford. Their presence had an inflammatory rather than pacifying effect, and in the ensuing ‘riot’ two civilians were shot dead by soldiers. In a Select Committee investigation that followed, the soldiers were exculpated on the ground that they had acted lawfully: When the need is clear, the soldier’s duty is to fire with all reasonable caution, so as to produce no further injury than what is absolutely wanted for the purpose of protecting person and property.62

Troops were also famously dispatched to maintain order at a dispute at Tonypandy in 1910, when there was another fatal casualty though he appears to have been killed by a policeman’s truncheon rather than a soldier’s bullet.63 Similarly, armed soldiers appeared in George Square, Glasgow in 1919, though it was not necessary to make use of the armoury deployed.64 The Glasgow incident is part of the folklore of ‘Red Clydeside’, and whatever the truth about the latter, it was the last time that the military were used to quell unrest, though not the last time soldiers were used in strikes, in a more peaceful role as strike-​breakers. But apart from its role in imposing order (usually when called upon by employers), the Clydeside incident reveals another role of the criminal law in the first half of the twentieth century, which was the continuing one of containing insurgency from the Left. In R v Bowman,65 the printer and publisher of the Syndicalist were convicted of incitement to mutiny under the 1797 Act referred to above for urging soldiers not to fire against strikers, even where ordered to do so. The criminal law was thus used to police the boundaries of acceptable trade union activity. So long as trade unionists respected the boundaries of the liberal constitution, their activities were in principle beyond the reach of the criminal law. But insofar as there were those on the radical Left who sought to infuse trade unionism with a political purpose, in doing so they would take themselves beyond the pale. It is notable that senior members of the fledgling Communist Party were convicted for sedition, once (in 1921) under the Defence of the Realm Regulations (long after the war had ended),66 and once (in 1925) for seditious conspiracy at common law.67 The latter led to jail sentences in what was the last conviction before the abolition of the common law offence, the prison sentences conveniently though probably not coincidentally operating to take the Communist Party high command out of active service before the General Strike which took place between 3 and 12 62 Report of the Committee on the Disturbances at Featherstone (C 7234, 1893–​94); reproduced in Geoffrey Wilson, Cases and Materials on Constitutional and Administrative Law (2nd edn, Cambridge University Press 1976) 729–​32. 63 Robin Page Arnot, The Miners: Years of Struggle (Lawrence and Wishart 1973) 59–​67. 64 Kenneth O Morgan, Consensus and Disunity—​The Lloyd George Coalition Government 1918–​1922 (OUP 1979) 48. 65 (1912) 22 Cox CC 729. 66 Inkpin v Roll (1922) 86 JP 21. 67 Keith D Ewing and Conor A Gearty, The Struggle for Civil Liberties (OUP 2001) ch 4, for a full account.

Criminal Law in Collective Labour Relations  373 May 1926. Indeed, the casual conflation of trade unionism and revolutionary action was to provide the occasion for regressive criminal legislation in 1927 in the wake of the Strike. It was convenient for the General Strike itself to be portrayed in seditious terms.68 The dispute arose following a cut in the government subsidy to the mining companies and a refusal by the miners to accept a cut in pay. The miners struck on 1 May 1926 and were to remain on strike until December later that year. They were joined three days later by other unions following a call by the TUC General Council, in what was to prove an ill-​ fated demonstration of solidarity. Addressing the House of Commons, the Prime Minister claimed that the TUC was ‘threatening the basis of ordered government, and going nearer to proclaiming civil war than we have been for centuries past’.69 Baldwin was to return to the theme a few days later in the pages of the government’s British Gazette when he wrote that ‘Constitutional Government is being attacked’, claiming also that the ‘General Strike is a challenge to Parliament and is the road to anarchy and ruin’.70 Shortly thereafter, Sir John Simon was obligingly to add that ‘this general strike is not a strike at all. It is something very different’, and as such ‘a novel and an utterly illegal proceeding’.71 The Trade Disputes and Trade Unions Act 1927 purported to be declaratory: any strike was illegal if it had any object other than or in addition to the furtherance of a trade dispute within the trade or industry in which the strikers were engaged, and was a strike designed or calculated to coerce the government either directly or by inflicting hardship on the community (section 1). That said, there was no direct authority to support the contention that a strike to coerce the government was illegal, the only relevant authority relating to the prosecution of strikers who sought to convince the government in the 1840s that the Charter should be adopted as the law of the land, and both cases are inconclusive as to whether such a strike without violence would be illegal because of its political purpose.72 Although it could be argued that such a strike would be illegal by reason of the principles in R v Bunn,73 that had yet to be established, in which case the 1875 Act would not have provided the necessary legal protection. This is because the protection in the 1875 Act applied only to acts in contemplation or furtherance of a trade dispute, which even in the absence of a definition in the 1875 would be unlikely to apply to political disputes, however defined. Nevertheless, it was now an offence under the 1927 Act to declare, instigate, or incite others to act in furtherance of an illegal strike, though it was provided expressly that no offence would be committed by reason only of ‘having ceased work or refused to continue work or to accept employment’. The 1927 Act was declaratory of more than the law, but also of a political victory of the government over the trade union movement, from which in the view of some the latter has never recovered. It was also unnecessary, there being little stomach in official trade union circles ever since to challenge the authority of government. As a result, the 1927 Act was tilting at windmills, being invoked only once before it was put out of its misery by the Attlee government by the Trade Disputes and Trade Unions Act 1946, as ‘a piece of mere dead wood upon the Statute Book’.74 In R v Tearse,75 the Act was 68 For a powerful rebuttal, see AL Goodhart, ‘The Legality of the General Strike in England (sic)’ (1927) 36 Yale Law Journal 464. 69 Ewing and Gearty, Civil Liberties (n 67) 158. 70 Ewing and Gearty, Civil Liberties (n 67) 158. 71 HC Debs 6 May 1926, col 582. But compare Goodhart (n 68). 72 R v O’Connor [1843] 114ER 1153; R v Cooper [1843] 1 LTOS 143. 73 (1872) 12 Cox CC 316. 74 HC Debs 12 February 1946, col 199 (Sir Hartley Shawcross). 75 [1945] KB 1.

374  Criminality at Work deployed against members of the Revolutionary Communist Party (said to be Trotskyists who operated through the Militant Workers’ Federation) for fomenting strife amongst shipyard apprentices in Newcastle. Their conviction for acting in furtherance of an illegal strike for acts preparatory to the strike was overturned on appeal. So far then in the era in which the criminal law was said to have withdrawn, we still have (i) the criminal justice agencies and state power policing the boundaries of industrial action, as well as (ii) the continuing easy conflation of trade unionism with seditious like activities. That is in addition to the residue of the criminal law in the 1875 Act and elsewhere. There is, however, a third element of presence by the criminal justice agencies, which is the continuing conflation of trade unionism with subversion, and the engagement of state agencies through powers of surveillance with such concerns. The agencies in question are MI5 and Special Branch. Although the use of spies and agents provocateurs by the state in response to internal threats is not new,76 the continuing use of surveillance is laid bare in the MI5 file of Bert Edwards on deposit in the National Archives.77 Edwards was London District Secretary of the National Union of Vehicle Builders (NUVB) who came to the notice of Special Branch in the 1930s, being mentioned in correspondence between Special Branch and MI5, on account of his ‘communistic views’. He was not a national figure, he was not especially well known, and he was not an especially significant trade unionist. It is precisely for these reasons, however, that the file is important, providing an unusual glimpse into the practices of MI5 and the Special Branch and their surveillance of rank and file trade unionists. This could not have been an isolated case. Some of the surveillance is direct, in the sense that Special Branch had a physical presence at meetings. These include workplace gatherings, such as the lunchtime meeting of 150 workers employed at Briggs Motors, the meeting held at the rear of the Princess Cinema, Dagenham under the auspices of the NUVB. Where Special Branch officers were unable to watch or attend particular meetings (such as a strike meeting of 300 Park Royal Vehicle employees at Acton Town Hall, restricted to union members only), they brazenly report that ‘they kept observation outside’. These events would be attended or watched to gather information on all those present, and would help to nourish several files. The same would be true of other sources of information that appeared on the files, including informants (presumably employers), as well as the interception of letters and phone calls. But because so much of the Edwards’ file has been censored to save MI5 embarrassment and conceal even greater abuses, it is impossible to say just how extensive was the letter and phone surveillance.78 As Ross has argued, this kind of police activity creates ‘problems of oversight and influence whenever the government’s tactics remain insulated from challenge or exposure.’79 76 Thompson (n 21) 529–​40 77 TNA, KV2/​3062. For a fuller account on which the next two paragraphs freely draw, see Keith D Ewing, Joan Mahoney, and Andrew Moretta, MI5, Cold War and the Rule of Law (OUP 2020) ch 4. See also Keith D Ewing, Joan Mahoney, and Andrew Moretta, ‘Which of us are Being Watched?’ Morning Star (12 March 2015) accessed 16 July 2019. 78 Another source of information was the listening device/​s placed (almost certainly illegally) at Communist Party HQ in King Street. While it is unclear whether Edwards was a Party member (the file blows hot and cold), he was often mentioned in conversations picked up by King Street bugs, although there is no evidence on the file of him ever having been there, or ever having made contact. He was, however, the subject of an inquiry by Desmond Greaves when the latter was preparing his biography of James Connolly, Bert’s name also being mentioned in the course of conversations about the NUVB. All this was recorded and squirrelled away. 79 Jacqueline E Ross, ‘The Elusive Line Between Prevention and Detection of Crime in German Undercover Policing’ in Dubber and Valverde, Police and the Liberal State (n 61) 136, 156.

Criminal Law in Collective Labour Relations  375 It is the very invisibility of the state’s dirty war against trade union activists that makes it so difficult to measure and so impervious to civil liberties. It is an important feature of police as a mode of governance. And yet it is here that Lacey’s chilling invocation of ‘Enemy Criminal Law’—​which we address more fully below—​seems particularly apt in understanding the normative character of what are longstanding criminal justice practices targeted at trade union activists.80 What is also clear from Bert Edwards’ file is that this surveillance activity had practical outcomes, with clear evidence that MI5 officers would visit employers to express concerns about activists, with suggestions about pretexts for their dismissal. As recent events have revealed, the sharing of surveillance information by state agencies is one that has continued and expanded ever since, very likely facilitated and encouraged by the widening of the definition of ‘subversion’ in police guidelines in 1970, effectively to embrace lawful industrial action.81

E.  From Normal Law to Emergency Regulations The continuing presence of the criminal law is not confined to the forms of intervention discussed in section D. It has been a feature of the gradual erosion of civil liberties in the UK throughout the twentieth century that emergency powers have been normalized by ordinary law, whether this be in relation to the defence of the realm or the prevention of terrorism.82 The Terrorism Act 2000 is perhaps the most vivid example of that development. We see the opposite in operation here: the general law (in the form of the apparent retreat of the criminal law) being displaced by emergency law. In this way we allow the deployment of the criminal law in times when it is most needed, while maintaining the fiction that it has been removed. This engagement of the criminal law was significant because the first half of the twentieth century was a period of military, political, and economic crisis punctuated by calm, rather than a period of calm punctuated by crisis. In response to these crises, there were three forms of emergency law in operation, all of which had implications for collective trade union action. Beginning with the First World War, it was an offence under the Munitions of War Act 1915 to take part in strikes without giving twenty-​one days’ notice to the Board of Trade.83 Robin Page Arnot, the brilliant historian of the miners’ unions, records the weakness of this measure when in 1915 the authorities were faced with a strike by 200,000 miners in South Wales. Quite apart from the enormity of prosecution of such a large number of workers and collecting the fines imposed, the law as it stood did not penalize those who organized the action.84 This oversight was addressed by an amendment to Emergency Regulation 42, which was concerned initially with inciting mutiny, sedition, and disaffection.85 Although 80 Lacey (n 7) 158, discussing the work of Gunther Jakobs. 81 The ACPO/​Home Office Special Branch Guidelines were amended in 1970 (see Duncan Campbell and Steve Connor, On the Record:  Surveillance, Computers and Privacy:  The Inside Story (Michael Joseph 1986) 259–​60; Home Affairs Committee, Special Branch, HC 71 (1984–​85) 4). See Ewing, Mahoney, and Moretta, MI5 (n 77) chs 3 and 4. There is currently an ongoing Inquiry into undercover policing practices, chaired by Sir John Mitting (www. ucpi.org.uk/​). This has particular importance in the industrial relations context, given the alleged connections between public officials and private organisations maintaining blacklists of trade unionists. 82 On this theme, see Ewing and Gearty, Civil Liberties (n 67) and Keith D Ewing and Conor A Gearty, Freedom under Thatcher: Civil Liberties in Modern Britain (OUP 1993). 83 Ewing and Gearty, Civil Liberties (n 67) 77. 84 Page Arnot (n 63) 169. 85 Ewing and Gearty, Civil Liberties (n 67) 58.

376  Criminality at Work it had been planned originally to criminalize strike organizers in the Munitions of War (Amendment) Bill 1916, this would have been controversial, and it was decided to use more underhand methods, with McLean noting that amendment to Regulation 42 was slipped through instead,86 further reinforcing the connection between industrial action on core industrial matters with state security. In addition to the foregoing there were other powers with drastic penal consequences, without the inconvenience of having to invoke the criminal law. By Regulation 14 of the Defence of the Realm Regulations, activists could be deported to other parts of the country, in what was a system of internal exile, without any due process. Workers would be arrested and swiftly removed, at the request of employers apparently to decapitate trade union activity. A notable example was that of Clydeside shop steward convener David Kirkwood, whose credentials were withdrawn by his employer in what was believed to have been a deliberate attempt by an employer to provoke the strike that ensued. Later to be a Labour MP, Kirkwood was arrested (by armed police officers) and deported along with a number of colleagues. Writing in his autobiography, Kirkwood records being taken to Queen Street Station, Glasgow, given a one-​way ticket and a small amount of money before being ‘put inside the barrier’. Denied an opportunity to challenge the sentence, Kirkwood was ‘cast adrift’, arriving in Edinburgh—​for him in those days a strange city—​with little money and nowhere to stay.87 The end of the war did not see the end of emergency law, with the Emergency Powers Act 1920 enabling emergency regulations to be made following a declaration of emergency in the event of industrial action in a wide range of industries.88 It is true that the Act made it clear that the regulations could not make it an offence for any person to take part in a strike or engage in peaceful picketing.89 It did, however, enable regulations to be made . . . for the preservation of the peace, for securing and regulating the supply and distribution of food, water, fuel, light, and other necessities, for maintaining the means of transit or locomotion, and for any purposes essential to the public safety and the life of the community.90

These powers were invoked in 1921 and again during the general strike and the miners lock-​ out in 1926, in the latter case for a period of about six months.91 Although the regulations did not criminalize industrial action per se, they nevertheless authorized a reign of terror in the coalfields, with the suppression of civil liberties (such as the right to hold assemblies), and extensive new powers for the police.92 Such was the nature of the excess by the agencies of criminal justice acting with some kind of legality as a veneer, that Sir Henry Slesser (who had been Solicitor General in the first Labour government) complained that the government had suspended the common law and introduced ‘what is really martial law’, while even Ramsay MacDonald was heard to complain about ‘this extraordinary drift’ towards ‘police state’.93 Strong words and in the case 86 Iain McLean, The Legend of Red Clydeside (John Donald 1973) 58. 87 This account of the Kirkwood case is drawn from Ewing and Gearty, Civil Liberties (n 67) 77. 88 For a full account, see Gillian S Morris, ‘The Emergency Powers Act 1920’ [1979] Public Law 317; Gillian S Morris, Strikes in Essential Services (Mansell Publishing 1986). 89 Emergency Powers Act 1920, s 2(1). 90 ibid. 91 See Ewing and Gearty, Civil Liberties (n 67), on which this account draws. 92 ibid; Margaret Morris, The General Strike (Penguin Books 1976). 93 Ewing and Gearty, Civil Liberties (n 67) 184.

Criminal Law in Collective Labour Relations  377 of martial law mistaken, though they do reflect the temper of the time. Thus in a detailed examination of the operation of the Emergency Regulations in the coalfields, reference has been made to ‘a number of different but interconnecting characteristics which are both singly and (even more powerfully) cumulatively evidence at least to sustain MacDonald’s claims’.94 Thus the Emergency Regulations were responsible for (i) arbitrary police powers; (ii) the suspension of civil liberties (as already mentioned); (iii) excessive and unaccountable policing; (iv) techniques of summary justice; (v) judicial bias in the operation of the law (typically local magistrates close to the coal owners); (vi) exemplary sentencing; and (vii) the limited scope for appeal.95 There were thus many complaints of arbitrary use of police powers to arrest those who acted so ‘as to endanger the public safety’, and of those arrested being brutally treated in custody. Other concerns related to the arbitrary use of powers of entry, search and seizure of private property, empowering the police to raid the homes of prominent trade union activists, as well as the branch rooms where trade union meetings were held. A particular concern was the use of police flying squads, with the drafting of police officers from one area to another associated with ‘abusive language, threats of violence and excessive force’, the last relating in particular to the indiscriminate and gratuitous use of baton charges. Otherwise anticipating the similar policing of the miners’ strike in 1984–​85 was the evidence of mass arrests, though not all of these related to offences under the Emergency Regulations, with several other retained permanent powers (such as the 1875 Act, section 7) continuing to be available to the police. Nevertheless, some 7,960 people were arrested in the seven months covering the General Strike and the lock-​out, with 1,760 of these relating to the nine days of the General Strike itself.96 It is important to note that the Emergency Powers Act 1920 gave power to make regulations not only as to the substance of the law, but also its enforcement. This included the power to authorize trials in courts of summary jurisdiction, with these courts in turn having the power to jail those convicted of breach of the regulations, with or without hard labour.97 It was by these means that the first of two great twentieth-​century battles against the miners was fought, the second being waged without the resort to emergency powers, though the nature of the state’s response in a different legal environment was disarmingly similar. The use of the Emergency Powers Act 1920 changed after the Second World War, with the focus being directed more subtly on the supply of goods and services, rather than the crude crushing of strikers.98 And although the Act was used extensively before it was repealed and replaced by the Civil Contingencies Act 2004, it had never been invoked in the preceding thirty years.99 By the 1980s, governments realized that they had enough power without the need to rely on the Emergency Powers Act 1920, prepared instead to rely on the common law for authority rather than seek to replace it. The third emergency powers regime was introduced during the Second World War, with restrictions on industrial action again contained in secondary legislation, on this occasion 94 ibid 185. 95 ibid185–​200. 96 ibid 197, on which this paragraph freely draws. 97 Emergency Powers Act 1920, s 2(3). 98 See Morris, ‘The Emergency Powers Act 1920’ (n 88). 99 See Morris, Strikes in Essential Services (n 88). The 2004 Act—​which has never been invoked in a strike—​also contains powers to make regulations, with a similar restraint prohibiting regulations to make participation in a strike a criminal offence (s 23(3)(b)).

378  Criminality at Work the Conditions of Employment and National Arbitration Order 1940 (Order 1305), which was not revoked until 1951.100 This also made it an offence to participate in industrial action. The provisions seem similar in terms to the restrictions in the Munitions of War Act 1915 referred to above, prohibiting strikes and lock-​outs unless the dispute had been reported to a Minister, who had twenty-​one days to refer the dispute to arbitration. According to the Ministry of Labour’s Industrial Relations Handbook, these restrictions were approved by the TUC, and were designed to prevent work being interrupted by strikes.101 It is notable that although emergencies caused by the disruption of essential services did not authorize restrictions on the right to strike in peace-​time, there were no such qualms in war-​time. A review of the operation of Order 1305 by the Donovan Commission in 1968 concluded, however, that it was not effective, in the sense that ‘it did not succeed in reducing the incidence of unofficial strikes at that time’.102 ‘Indeed’, the Royal Commission continued, ‘from 1941 until the Order was revoked in 1951 strikes were considerably more frequent than in any of the preceding twenty years.’103 That is a judgement that needs to be treated with some caution. The fact that there were more strikes at a time when trade unions were more powerful because of economic conditions does not mean that an unknown number of workers were constrained by the law. There may have been more strikes during the lifetime of Order 1305, but there may have been even more without it. We will never know, though if true Donovan’s is a searing indictment of criminalization: not only is it authoritarian; it is also ineffective. It is certainly the case that the criminal law was not infrequently used, with one Ministry of Labour document recording that 109 prosecutions were brought between 1940 and 31 March 1945, thirty-​ eight in England and Wales, seventy-​one in Scotland, involving 6,151 workers in total. In sixty-​nine cases involving 4,021 workers fines were handed down,104 in nineteen cases 996 workers were bound over, admonished, or dismissed under the Probation of Offenders Act, while nineteen cases involving 1,131 workers were dismissed, deferred, adjourned sine die, or withdrawn. Two Scottish employers were fined for imposing lock-​outs.105 No one was imprisoned. Although in 1942 three of the 1,041 miners convicted for taking part in the Betteshanger Colliery strike received prison sentences, these were commuted.106 Prosecutions petered out in the summer of 1944, with just two cases recorded in 1945. It is apparent that the approach was a pragmatic one aimed at the deterrence of industrial 100 The TUC had previously resolved that there would be an end to compulsory arbitration but had agreed to the prolongation of Order 1305 at a meeting of the General Council on 19 December 1945 on the strict understanding that the matter ‘would be reviewed immediately either side wished it to be discontinued’. 101 Ministry of Labour, Industrial Relations Handbook (HMSO 1961) 144. 102 Report of the Royal Commission on Trade Unions and Employers’ Associations 1965–​1968 (Cmnd 3623, 1968) (Donovan Report) [486]. 103 ibid [486]. 104 Fines tended to vary between 10 shillings and £10, with costs of up to 10 shillings. 105 Ministry of Labour, ‘Prosecutions of Strikes under Order 1305’ LAB 10/​173 (The National Archives): ‘109 prosecutions (38 in England and Wales and 71 in Scotland) have taken place up to the 31 March 1945’. A handwritten 1951 Ministry of Labour analysis of the statistics, however, acknowledged an element of confusion over whether disputes resulting in prosecutions which involved more than one employer should be counted as one case, and put the wartime figures at either 72 or 74 in Scotland, and either 39 or 43 in England and Wales. 106 The men were released. See Ariane Mak, ‘Spheres of Justice in the 1942 Betteshanger Miners’ Strike: An Essay in Historical Ethnography’ (2015) 36 Historical Studies in Industrial Relations 29, who claims they received a Royal Pardon. This is not referred to in Sir Harold Emerson’s seminal account in the Donovan Report (n 102) Appendix 6. Famously most of the fines handed down in this case were not paid, and documents in the TNA file suggest that the Ministry believed that a proportion of other fines went unpaid, or were paid by the employer, following convictions under Order 1305.

Criminal Law in Collective Labour Relations  379 disturbances in industries vital to the war effort, and it is notable that the last two war-​time cases in England and Wales were responses to strikes at a De Havilland aircraft factory and a Vickers Armstrong Naval shipyard. That said, the experience of the emergency legal regimes raises questions not only about (i) the authoritarian tendencies displayed by the use of the criminal law and criminal justice agencies, and (ii) the effectiveness of the criminal law in stopping strikes; but also (iii) the practicality of criminal justice administration where there are multiple strikes involving large numbers of people. It is this last question that led the Donovan Commission—​informed by the experience of the Betteshanger Colliery dispute referred to above—​to reflect on the ‘fruitlessness of the use of penal sanctions for the purpose of enforcing industrial peace’.107 Again, however, this may be rather simplistic, with the lesson of the First World War being that it is possible to address questions of effectiveness by better design. This means the law targeting the instigators and organizers, rather than the participants.

F.  From Emergency to Reserve Powers: The Miners’ Strike 1984–​85 The General Strike revealed criminal law at its most brutal, Betteshanger at its most ineffective, and the gas-​workers’ prosecution at its most counter-​productive.108 Nevertheless, the tactic of strategic coercion deployed by the Attlee Government never disappeared, even though from the 1950s onwards the disappearance of the criminal law seemed complete. The theme of trade unionism as subversion was to continue into the 1960s with Harold Wilson’s famous attack on seafarers,109 and into the 1970s with the imprisonment of dockers resisting the containerization of their industry at the time of the Industrial Relations Act 1971,110 as well as construction workers at the time of an infamous dispute at Shrewsbury in the early 1970s.111 The criminal law is never very far away from trade unions. That said, the miners’ strike of 1984–​85 presented new challenges for the criminal justice system in an era when emergency powers are no longer used. This effectively introduces a new phase in the modalities of criminal regulation: how does the criminal justice system respond where emergency powers are no longer available? Here we encounter what can only be described as the reserve powers of the state and the compliance of the common law constitution. The confrontation between the National Union of Mineworkers (NUM) and the government provides a vivid near contemporary demonstration of the awesome coercive powers under the criminal law, ready to be deployed where the state identifies a serious challenge to its own conception of ‘order’. The industrial dispute arose out of proposals for pit closures and mass redundancies led by Sir Ian MacGregor, chair of the National Coal Board. Throughout the 1980s, many of the legal developments in strike law had empowered employers to use augmented legal remedies under the civil law against trade unions and striking workers. This represented a form of industrial self-​help for employers through the private law. The significance of the Miners’ Strike was the relegation of the civil law as a legal 107 Donovan Report (n 102) [486]. 108 On the last, see Ewing, Mahoney and Moretta, MI5 (n 77) ch 4. 109 See Harold Wilson, The Labour Government 1964–​1970 (Penguin 1971) 306–​08. 110 For an account and the context generally, see Brian Weekes, Michael Mellish, Linda Dickens, and John Lloyd, Industrial Relations and the Limits of the Law (Basil Blackwell 1975). 111 Jim Arnison, The Shrewsbury Three (Lawrence and Wishart 1974).

380  Criminality at Work response, and the central role accorded to the criminal law and the deployment of police power in breaking the strike.112 Here, however, the normative rationalization of this shift from (private) civil law back to (public) criminal law in the containment of the dispute was configured explicitly around different permutations of ‘order’. As Davies and Freedland explain, this rationalization reflected the political discourse around the Public Order Act 1986, where the government ‘wished to identify a continuity of concern between street violence, political militancy, and industrial action’.113 The provision of financial support from the Miners’ Union of the USSR to the NUM, at the height of the Cold War, also invoked seditious and treasonous overtones. This picture of a strike being conducted by the enemy within, supported by the enemy without, was not new. As we have seen, similar tropes were evident in the political justifications for the general combination acts amidst public anxieties about insurrectionary Jacobin conspiracies. There was also continuity (with the General Strike) in the scale of coercive police power deployed during the dispute. Picketing was framed as a public order problem. It could thereby be located as a legitimate site for the police power: . . . mass picketing could be directly equated with other anti-​social threats to public order, could be denied any vestige of industrial legitimacy, and could be overwhelmed by aggressive policing without the traditional inhibition of loss of industrial neutrality on the part of the police.114

Reinforcing the continuity with the General Strike, Wallington’s study of the policing of the Miners’ Strike reveals that there were 9,808 arrests in England and Wales arising out of the dispute, and 75 per cent of charges ‘were of breach of the peace (4,314), obstructing the police (1682), criminal damage (1019) or obstructing the highway (640)’.115 The dispute also provided the occasion for another of the periodic uses of the ‘watching and besetting’ offence under the Conspiracy and Protection of Property Act 1875, section 7,116 as it too had been used during the 1926 dispute. In some cases, extremely serious charges of murder, riot, and unlawful assembly were brought against striking miners.117 The visibility of the criminal law in industrial disputes was transformed during the Miners’ Strike. What is remarkable is that this transformation occurred without a single change to the criminal law-​in-​the-​books, which still largely reflected the pattern of the 1875 settlement. On the contrary, existing criminal laws were weaponized through political choices, and the police power provided a potent instrument of state power that was used on a discretionary basis to great effect. Accordingly, any suggestion that the 1875 legislative settlement represented an exclusion of the criminal law from collective labour relations is belied by the policing of the Miners’ Strike. The same is true of the decision not to use emergency powers, whether in their early tanked-​up form in the 1920s, or in their more restrained form thereafter. Above all, it is the concept of police power that enables us to understand the inherent flexibility of the criminal

112

Paul Davies and Mark Freedland, Labour Legislation and Public Policy (OUP 1993) 494. ibid 498. 114 ibid 496. 115 Peter Wallington, ‘Policing the Miners’ Strike’ (1985) 14 Industrial Law Journal 145, 150. 116 ibid 150–​51. 117 ibid 151. 113

Criminal Law in Collective Labour Relations  381 law during this period, and the remarkable way in which the existing law was brought to bear on the regulation of the dispute. A distinct feature of this unrestrained police power was its radically discretionary character, beginning with the radical reorganization of policing, in a way that bypassed both parliamentary and effective judicial scrutiny. The National Reporting Centre (NRC) was set up in 1972. Its remit was to coordinate strategy and deployment of policing on a national basis during times of crisis, in consultation with the Home Office. During the dispute, it was suggested that the NRC had overridden the operational discretion of local police forces.118 The latter marked a highly significant politicization and centralization of the policing function. Special groups of ‘elite’ police officers, specializing in the control of crowds and public disorder, were also used frequently during the strike.119 These vast executive powers, which included the issuing of plastic bullets and CS gas to local police forces during the 1980s, were rationalized judicially as a prerogative power devolved to the Home Secretary to ‘do all that [was] reasonably necessary to preserve the peace of the realm’.120 This formulation of the prerogative power may be understood as a particular instance of the ‘police power’ concept elaborated by Dubber. These executive powers to organize and direct policing resources were an important element of the Miners’ Strike, in which the ‘preventive’ policing experienced by striking miners usually took place in the shadows of the criminal law laid out in the great liberal treatises (if not beyond it), a good example being the roadblocks used extensively to prevent freedom of movement, and in particular the practice of ‘flying pickets’. The use of roadblocks to turn back pickets was justified as an exercise by the police of the power to do whatever was necessary to prevent reasonably anticipated breaches of the peace, alongside certain provisions of the Road Traffic Act 1972.121 The refusal to obey a police instruction to turn back was itself treated as an obstruction of the police in the execution of their duty, contrary to section 51(3) of the Police Act 1964.122 Other strategies of restriction and containment included the use of bail conditions that place restrictions on the liberties of defendants where there were pending charges.123 These bail conditions, which often appeared as ‘standard form’ clauses dispensed on a blanket ‘supermarket justice’ basis,124 generally imposed mobility restrictions on defendants. These conditions frequently limited their ability to engage in picketing other than at their usual place of employment. The police also made frequent use of binding-​over orders as a mechanism for controlling strikers, in exchange for dropping criminal charges that might otherwise have had little prospect of success in a criminal trial.125 These preventive strategies, often based on vaguely defined crimes that could be flexibly applied by enforcement agencies, were characteristic of the police power. But in addition, there was a high degree of fluidity between civil and criminal standards, and little solicitude for attaching any normative significance to that boundary. For example, Wallington 118 Ewing and Gearty, Liberties in Britain (n 82) 104. 119 ibid 105. 120 ibid 107, discussing R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1988] 2 WLR 590. 121 Ewing and Gearty, Liberties in Britain (n 82) 111. 122 ibid111. 123 ibid 109. 124 This is Wallington’s term, Wallington (n 115) 156. 125 Ewing and Gearty, Liberties in Britain (n 82) 109.

382  Criminality at Work correctly observed that the substantive legal difference between primary and secondary picketing was based in civil immunity from tort actions. However, bail conditions were routinely imposed restricting the individual to picketing at his own place of work. Since secondary picketing attracted only civil liability, ‘the usual conditions cannot be rationally defended as necessary to prevent an offence’.126 This was also true of the use of police powers to prevent secondary picketing through roadblocks, and the laws on breach of the peace and the obstruction of a police officer. The directive guidance of a maximum of six pickets in the Code of Practice on Picketing was also effectively transformed into a legal norm through police enforcement practices.127 These latter practices proved to be pivotal in the Miners’ Strike, for . . . much secondary picketing was prevented from taking place, effectively or at all, by police action rather than the intervention of the civil courts, and it is this factor that is at the heart of complaints that the police broke the strike, or were used to break it.128

The boundaries between civil and criminal liability were in flux. The law was utilized flexibly as an instrument by enforcement authorities to secure order. In the face of perceived threats to order, police power elevated expediency over the moral and juristic niceties of the civil–​criminal divide. In the end, what mattered was what worked in practice in abating the threat to security. And as suggested, this reserve power was highly resistant to judicial scrutiny and oversight, just as had been other forms of intervention. For example, the practice of imposing ‘standard form’ bail conditions on large groups of defendants was upheld by the Divisional Court in R v Mansfield Justices, ex parte Sharkey despite the Bail Act 1976 requiring applications for bail to be assessed on an individual basis.129 Similarly, in Moss v McLachlan, the High Court upheld the legality of the police’s use of roadblocks in order to prevent anticipated breaches of the peace,130 a decision regretted on the ground that ‘that the court in this case did not display any principled commitment to the idea of freedom of movement or evinced any anxiety that such an ancient liberty was being seriously eroded’.131 It is tempting, perhaps, to attribute this to the particular deference displayed by British judges in cases involving trade unionists. However, Dubber’s work suggests that the police power has been largely impervious to constitutional constraint in other legal systems. In this way, the British experience is a specific example of a wider comparative phenomenon, namely what Dubber describes as the ‘alegitimacy’ of the police power.132 The preventive modality of police power also means that judicial victories tend to be Pyrrhic. Even if a favourable judgment is eventually obtained from the highest court, the dispute will have been long pacified by coercive force. Indeed, the pre-​emptive extinction of threats to the security interests of the community is the very essence of the police power.



126

Wallington (n 115) 156. Davies and Freedland (n 112) 492–​99. 128 Wallington (n 115) 148. 129 [1985] QB 613. 130 [1985] IRLR 76. 131 Ewing and Gearty, Liberties in Britain (n 82) 111–​12. 132 Dubber, The Police Power (n 8) xv. 127

Criminal Law in Collective Labour Relations  383

G.  Trade Unions in the Shadow of ‘Enemy’ Criminal Law In her work on the changing nature of criminal responsibility, Nicola Lacey has explored the phenomenon of over-​criminalization in the modern criminal law. In her view, criminalization practices are increasingly driven by the politicization of criminalization, and the political pressures on successive governments to appear responsive to emerging problems of risk in civil society and the economy.133 Lacey identifies five main features to this pattern. First, criminalization is increasingly targeted at inchoate forms of criminal liability such as preparatory offences or other forms of preventive criminal offence. Secondly, this is linked to the state’s assertion of political responsibility to manage social and economic risk and the salience of insecurity as a trigger for criminal intervention.134 Thirdly, there is increasing porosity between criminal law and other forms of civil measure. This is reflected most strongly in the expansion of ‘hybrid’ civil preventive orders such as the Anti-​Social Behaviour Order.135 Fourthly, corporate criminal liability has become more prominent as a basis of criminal responsibility, reflecting a growing recognition of their risk to the security interests of citizens. The final and most troubling aspect to the new politicization of criminal law-​making has been the coalescence of character-​based theories of culpability and risk-​based criminalization. This has led to the disturbing expansion of status-​based forms of criminalization, targeted at specific groups such as irregular migrants, who are stigmatized in virtue of inherent qualities of dangerousness, risk, and threats to the peace of the community.136 In its most extreme forms, this can be characterized as ‘enemy criminal law’: Preventive in temper, disproportionate in reaction, indifferent to normal procedural protections, ‘enemy criminal law’ is essentially a police power which treats its objects as dangers to be managed, as distinct from citizen criminal law, which responds to subjects invested with rights.137

But it is not necessarily new. The Aliens Restriction (Amendment) Act 1919 still makes it a criminal offence for aliens to promote or attempt to promote industrial unrest.138 Recent developments in the law and governance of collective labour relations reflects many of these strands in the more general pattern of criminalization. We will examine two areas where there is a significant convergence: (i) the recent political discourse around the criminalization of picketing and protest in the legislative process leading up to the Trade Union Act 2016 (TUA); and (ii) an expansion in the legal powers of the Certification Officer (CO) to impose civil penalties on trade unions for certain administrative infractions in TUA. 133 Lacey (n 7) 99–​106 and ch 5. 134 Other scholars such as Peter Ramsay have drawn attention to the notion of ‘vulnerable autonomy’ and the protection of security interests by the criminal law. The ‘failure to reassure’ is itself a form of wrongdoing that is a legitimate object of criminalization. See Peter Ramsay, The Insecurity State (OUP 2012). 135 Lacey (n 7) 103–​05. This porosity is also reflected in provisions such as the Protection from Harassment Act 1997, which provides for parallel regimes of tort and criminal liability, and the use of civil penalties to penalize and deter anti-​social conduct. 136 Lacey (n 7) ch 5. 137 ibid158–​59, discussing the notion of ‘enemy criminal law’ based originally in the work of Gunther Jakobs. 138 1919 Act, s 3(2). See Ewing and Gearty, Civil Liberties (n 67) 134.

384  Criminality at Work From a regulatory perspective, what is particularly striking is the government’s identification of the criminal law as the preferred mode of regulation for reasserting control in the interests of ‘maintaining order’.139 This preference for criminal law is justified in part because of the unreliability of employers pursuing their private rights against trade unions in the civil courts: ‘Employers report that enforcing civil offences through the courts can be time-​consuming and potentially expensive and slow.’140 So far as (i) picketing is concerned, the government suggested a new offence of intimidation on a picket line. This would give state agencies greater control over the initiation of the legal process. The consultation document also clarified the existing and considerable range of existing criminal offences available to law enforcement agencies, perhaps reflecting concern that the police themselves might not have pursued criminal prosecutions with sufficient alacrity.141 The use of social media in industrial disputes was also identified as an important development, with technology being used to publicize and shame individual workers who had refused to strike.142 The final version of the Trade Union Act 2016 did not, however, expand the role of the criminal law in the regulation of industrial protest (except indirectly), focusing instead on the tightening of statutory restrictions and civil law remedies. This reflected little appetite for increased criminalization in the consultation responses, most notably from the police forces themselves.143 Nevertheless, the Department for Business, Innovation and Skills (BIS) consultation paper provides important insights into the government’s understanding of criminalization as a regulatory activity. The first element is its formulation of the relevant harms in trade union ‘leverage’ protests. This is described in terms of a need to ‘manage risks of intimidation or risks to public order’.144 Or again, proportionate regulation must be directed at the mitigation of ‘possible harms’.145 Intimidation is understood in a very expansive way to include ‘strained relationships . . . aloofness, withholding cooperation, unfriendly body language’.146 Apart from rekindling memories of Baron Bramwell in R v Druitt (above) in a much different age, this sort of language correlates with Lacey’s presentation of the turn to risk-​based criminal responsibility in political discourse around criminalization. Moreover, the expansive framing of intimidation may be understood as a manifestation of Ramsay’s ‘vulnerable autonomy’

139 BIS, ‘Trade Union Bill: Consultation on Tackling Intimidation of Non-​Striking Workers’ (BIS/​15/​415, July 2015)  [8]‌ www.gov.uk/​government/​uploads/​system/​uploads/​attachment_​data/​file/​445439/​BIS-​15-​415-​tackling-​ intimidation-​of-​non-​striking-​workers.pdf accessed 16 July 2019. 140 ibid. 141 ibid. 142 This provides an interesting example of how the emergence of new technologies can lead to the realignment of understandings of civil order: see further Farmer (n 9) ch 7 on property offences. 143 BIS, ‘Trade Union Bill: Government Response to the Consultation on Tackling Intimidation of Non-​Striking Workers’ (BIS/​15/​621, November 2015)  [30]–​[31] accessed 16 July 2019. It is notable too that the representatives of the police who gave evidence to the Commons Committee during the course of the Bill were not only unhappy about the proposed role of the police in supervising picketing, but they made it very clear that they felt that the police should not be involved in industrial disputes at all. They believed that their current ‘impartial’ approach was correct, and were wary of ‘going back to the days of the 1979s and ’80s when, rightly or wrongly, the police service was seen as an arm of the state, which of course we absolutely are not’ (Steve White, chair of the Police Federation of England and Wales and Deputy Chief Constable Charlie Hall of the National Police Chiefs Council, Hansard, Public Bills Committee Trade Union Bill (Third sitting) 15 October 2015, cols 93–​101). 144 BIS, ‘Trade Union Bill Consultation’ (n 139) [22]. 145 ibid [24]. 146 BIS, ‘Government Response’ (n 143) [16].

Criminal Law in Collective Labour Relations  385 thesis.147 The generation of fear and discomfort is deemed sufficient to trigger a criminalization response. It is also used to justify a wider set of measures imposing disclosure obligations on the trade unions on its anticipated protest activities, so that these can be managed to mitigate the risks of intimidation.148 The second insight into the government’s position was a clarification of existing measures to tackle protest action that emphasized hybrid civil–​criminal measures. For example, the consultation paper drew attention to the hybrid harassment wrong in the Protection from Harassment Act 1997 which is both a crime and a statutory tort. The paper also drew explicit attention to the new preventive orders: ‘less widely considered in this context but potentially relevant are new powers for the police and local authorities in relation to anti-​ social behaviour’.149 It refers to the dispersal powers in the Anti-​Social Behaviour, Crime and Policing Act 2014 and the possibility of ‘community protection notices’, breach of which can lead to conviction and imprisonment. It is also possible for private individuals and businesses to seek community triggers for preventive action. But as we have seen none of this was necessarily new (though the history may have been forgotten), the Court of Appeal in Lyons v Wilkins (above) having facilitated the use of the civil law to enforce the 1875 Act, section 7 at the suit of employers in the late nineteenth century. Nevertheless, these developments exemplify Lacey’s reference to ‘active citizenship’ in hybrid measures, empowering local communities to co-​produce restrictive measures with potentially serious punitive consequences, in coordination with state agencies.150 This involves a significant expansion of the original remit of preventive hybrid measures, and it demonstrates their malleability in targeting new threats to the government’s specific framing of civil order. Such an approach also exposes the weak influence of fundamental civil liberties on political choices to criminalize. While the government’s consultation paper acknowledges that the right to protest is a protected civil liberty under the European Convention on Human Rights (ECHR),151 the government did not regard it as imposing any significant constraints on criminalization. There is no stringent evaluation of whether new measures would be proportionate in the light of human rights standards (as suggested by the review of Moss v McLachlan,152 by the House of Lords in Laporte).153 Instead, the right to protest appears as a residual zone of liberty once the risks to security interests presented by(an expansively defined) ‘intimidation’ have been abated by new preventive criminal law measures.154 So far as (ii) is concerned, this relates to the role and remit of the CO, and its new powers to impose significant financial penalties on trade unions who breach certain statutory obligations. The CO performs a range of administrative and adjudicative functions in relation to trade unions and employers’ associations. These functions include: maintaining the list of trade unions and employers’ associations and determining the independence of trade unions; dealing with certain complaints from union members that the union has failed to maintain an accurate membership register, and exercising oversight of the its accounting 147 Ramsay (n 134). 148 BIS, ‘Trade Union Bill Consultation’ (n 139) [25]–​[29]. 149 BIS, ‘Trade Union Bill Consultation’ (n 139) 8. 150 Lacey (n 7) 104–​05. 151 BIS, ‘Trade Union Bill Consultation’ (n 139) [9]‌. 152 [1985] IRLR 76. 153 R (Laporte) v Gloucestershire CC [2006] UKHL 55, [2007] 2 WLR 46. 154 Lacey (n 7) 149 also notes that the ECHR has been a weak constraint on the expansion of new forms of criminalization.

386  Criminality at Work records; dealing with complaints from members that the union has failed to comply with its statutory obligations in respect of certain internal elections; exercising oversight over the maintenance and operation of the political fund;155 and dealing with complaints from members about alleged rule-​book breaches. From a criminalization perspective, the TUA transformed the role of the CO, and developed its institutional remit in two important ways, beginning with new powers to impose financial penalties on the trade union. The Act thus specified that the level of ‘penalty orders’ was to be set between £200 and £20,000.156 The government characterized these ‘penalty orders’ as civil in nature. As others have observed, the effect of this characterization is to circumvent important procedural protections such as the presumption of innocence and the right to cross-​examine witnesses.157 Moreover, the severity of the financial penalties may mean that they would be treated as criminal in nature under Article 6 ECHR.158 Secondly, Schedule 2 sets out the CO’s powers to initiate investigations at its own behest where it ‘is satisfied’ that relevant statutory duties have not been complied with, rather than being triggered by an individual member’s complaint. It is further provided with a significant range of investigatory powers under Schedule 1. In effect, the CO now has a power to initiate a complaint; to investigate that complaint; to adjudicate that complaint; and, following a finding in its own favour, to impose a significant financial penalty on the trade union. The treatment of the penalty as ‘civil’ was used by the government to justify its abrogation of procedural protections. These developments can be understood in the light of Lacey’s broader arguments about the new pattern of criminalization. First, the TUA regime for the CO occupies the ambiguous borderland between civil and criminal law. It is a variant of ‘regulatory criminalization’, and not ‘real’ crime, albeit targeted at trade unions rather than employers. Secondly, it marks an important shift towards corporate criminal liability for trade unions. This could be explained in terms of the government’s wider concerns in the TUA to restrict strikes in the public sector and to curtail ‘intimidation’ in protest and picketing, as part of a wider governance project to contain and eliminate risks to the ‘security’ interests of consumers and service-​users. Thirdly, the concept of the ‘civil penalty’ creates constructive ambiguities that can be exploited in this governance project, by justifying the atrophy of the procedural and evidential protections associated with the criminal trial. Finally, and just as with the political discourse around protest, the implementation of the CO measures provides further evidence of the impotence of human rights law in imposing effective political constraints on criminalization.

H.  Conclusion We return to where we started, namely the work of Antoine Jacobs, to say that we would contest the idea that the repression of the criminal law has given way to tolerance and recognition. It is of course true that in the 1970s there was a recognition of the important role 155 For a full description and analysis of the CO’s work, within the context of the TUA reforms, see Stephen Cavalier and Richard Arthur, ‘A Discussion of the Certification Officer Reforms’ (2016) 45 Industrial Law Journal 363. 156 TUA 2016, sch 3, para 6. 157 Cavalier and Arthur (n 155) 384. 158 Ibid 384.

Criminal Law in Collective Labour Relations  387 of trade unions as constitutional actors, and that in the 2010s there is a tolerance that would have been unimaginable in the 1810s. But for all that, the criminal law and its agencies have continued to define the boundaries of acceptable trade unionism, though it is true that the boundaries are not fixed. Nevertheless, the conflation of trade unionism with sedition and subversion is one that was crystallized in the 1790s (if not before) and has persisted ever since. The difference now is that while not all trade unionism is treated as seditious and subversive, all trade unionism retains the capacity to be treated as seditious and subversive. What is notable (and unexpected) as these developments have unfolded is the dilution of the rule of law, the state relying on repressive measures based on emergency and reserve powers with an increasingly fragile grounding in legality. The criminal law has thus been an enduring presence in collective labour relations. Its modalities have changed over time, and the picture has been a dynamic one. In addition to its role in shaping the acceptable boundaries of trade unionism, its specific manifestations during different periods can be best understood by locating the analysis within a wider appreciation of more general patterns of criminalization in the criminal justice system. For example, the formative period of collective labour law during the eighteenth and nineteenth centuries marked a reconfiguration of the criminal law’s regulatory role. Whereas the focus in the early Combination Acts and master and servant laws had been on the suppression of public wrongs against the state, the 1875 settlement was reoriented in part around the criminal law protecting private interests by prohibiting violence, intimidation, and damage to property. These specific changes mirrored changing notions of ‘civil order’ in the general criminal law, reflected in the contrasting conceptualizations of William Blackstone and James Fitzjames Stephen, as outlined in Lindsay Farmer’s reconstructive work. More recently, Nicola Lacey’s identification of thematic strands in contemporary criminalization practices is similarly reflected in recent developments in collective labour law: the criminal law as a preventive tool; the hybridity of criminal and civil law measures as tools of suppression; and an incipient ‘Enemy Criminal Law’, channelled through the police power. Nevertheless, it would be mistaken to present these developments as logical deductions from abstract theoretical premises, and to ignore the role of contingency and politics in collective labour relations. The repeal of the combination laws marked a profound change in the public legitimacy of trade unions—​from seditious conspiracies to legitimate participants in collective bargaining. Yet during periods of heightened industrial protest, or urgent public interests in continuity of production, threats to public order or labour discipline could quickly be framed by governments and judges as threats to the constitutional order itself. Where order is framed as a constitutional emergency, the executive and judicial branches work collaboratively to ensure that order is secured.159 This chapter has also exposed the central significance of police power to the penal regulation of collective labour relations. If anything, its role has intensified rather than abated in the modern period of criminal justice practices. As Dubber’s work has demonstrated, the police power is preventive; its mode of operation is discretion; it uses penal measures to suppress risks and dangers to public welfare; and it is rooted in notions of hierarchy and patriarchal management of the household. The growing significance of the police power creates serious legitimacy challenges for the criminal law. This legitimacy challenge is particularly

159

A theme in JAG Griffith’s work: see JAG Griffith, The Politics of the Judiciary (Fontana 2010).

388  Criminality at Work acute in the UK context, where police power does not have a settled or precise legal basis in the constitutional order. The key normative question is: how can the police power be brought into alignment with respect for fundamental liberal rights such as freedom of association? It is tempting for the labour lawyer to treat this as one aspect of the ‘autonomy’ of labour law, adjusting the operation of the criminal law so that it respects the boundaries set by freedom of association. Or, to adopt the idiom of modern criminal law scholarship, we could equally treat this as a problem of the criminal law’s ‘jurisdiction’ to regulate certain spheres of social life.160 Proponents of the autonomy thesis understand well enough that there cannot be a total expulsion of the criminal law: ‘autonomy’ in the legal order can only be relative, never absolute.161 One response is that collective labour relations should be regulated only by general criminal laws, particularly ‘real crimes’ that constitute serious wrongs mala in se. Certainly, crimes of murder, rape and serious violence should be as applicable in the workplace or on the picket line as they would anywhere else. Nevertheless, it is also true that general criminal laws, such as public order offences and offences against the person, can be deployed in a harsh and oppressive manner that fail to respect basic freedom of association norms. The oppressive role of the general criminal law during the Miners’ Strike is vivid testament to that fact. In English criminal law, at least, it is not so easy to disentangle ‘law’ and ‘police’ as modes of governance, not least because discretion has been pivotal in the use of criminal law to regulate and restrict collective action. Another possible path would be the democratic formulation of a special criminal code for labour relations, one that also encompassed a governance framework for industrial policing practices, and which identified respect for fundamental civil liberties as its basic moral foundation. There are evident attractions in this more radical path. This would require significant political will, particularly if we are to penetrate secretive police practices conducted in the shadow of the deep state.

160 Farmer (n 9) ch 4. 161 For discussion, see David Howarth, ‘The Autonomy of Labour Law: A Response to Professor Wedderburn’ (1988) 17 Industrial Law Journal 11.

PART IV

C R IMINA L IZ AT ION A ND E N F ORC E M E NT

20

Workplace Safety and Criminalization A Double-​edged Sword Paul Almond

A.  Introduction This chapter will explore the role of criminalization in relation to workplace and, by extension, public health and safety. In broad terms, this includes not only occupational deaths and injuries suffered by employees while at work, but also those to non-​employees that result from the activities of an employing organization.1 This latter category includes customers, passengers, patients, and service-​users; agents, sub-​contractors, and other non-​traditional employees; and members of the general public (such as passers-​by, road users, or residents). At its core, though, the criminalization of work-​related health and safety has historically focused on the workplace. The Factories Acts of the nineteenth and early twentieth centuries began the process of criminalizing injury at work,2 and subsequent legislation (most notably the Health and Safety at Work Act 1974, or HSWA) has extended this coverage so that it now applies across all workplaces and other civil society settings. But these offences have been criticized for being limited by prosecutorial exceptionalism, lacking deterrent and communicative impact,3 and failing to observe the inhibitory norms and safeguards of criminal law doctrine.4 This ‘corporate manslaughter’ offence introduced via the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) was designed to offer a more robust prosecutorial response to work-​related deaths and to more convincingly fulfil the status of a ‘mainstream’ criminal law offence. This means that there are now two ‘systems’ of criminal offence governing work-​related safety. This chapter argues that both of these systems are limited in practice because they are ‘context-​dependent’, in that they derive their meaning from the institutional and social settings in which they are utilized. Both are ends-​oriented, in that they aim to exert influence over particular social policy outcomes; but, as this chapter will illustrate, in practice, the prevailing logic of that policy arena exerts influence over these offences in equal measure. This has the effect of reinforcing, rather than challenging, these contextual tendencies, making the criminal law a less-​than-​effective means of delivering 1 Details of the scope of the (narrower) category of ‘workplace fatality’, as used by the Health and Safety Executive, the UK’s main safety regulator, can be found at pages 3 and 12–​13 of their 2017 workplace fatality statistics bulletin:  accessed 6 August 2019. 2 Paul Almond, Corporate Manslaughter and Regulatory Reform (Palgrave Macmillan 2013)  97–​99; WG Carson, ‘The Conventionalization of Early Factory Crime’ (1979) 7(1) International Journal of Sociology Law 37; BL Hutchins and Amy Harrison, A History of Factory Legislation (2nd edn, PS King & Son 1911). 3 Almond, Corporate Manslaughter (n 2); Keith Hawkins, Law as Last Resort: Prosecution Decision-​Making in a Regulatory Agency (OUP 2002); Bridget Hutter, Compliance: Regulation and Environment (Clarendon Press 1997); Steve Tombs and David Whyte, Safety Crimes (Willan 2007). 4 Andrew Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000) 116 LQR 225. Paul Almond, Workplace Safety and Criminalization In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.0020

392  Criminality at Work the social goods that justify criminalization. The first two sections of this chapter explore the health and safety offences contained within the HSWA 1974, and the corporate ­manslaughter offence contained within the CMCHA 2007. In each case, the doctrinal, empirical, political, social, and normative rationales which underpin these offences will be sketched. Having explored the social ‘ends’ that justify the criminalization of health and safety violations, the difficulties encountered by these modes of criminalization in practice will be set out. The chapter will then analyse the ways in which the context-​dependency of these offences has shaped the criminalization of work-​related safety. It will argue that this context-​dependency is both a necessary feature of these offences, but also a limiting factor in terms of their reach and impact.

B.  Criminalizing Safety I: Health and Safety Offences The HSWA 1974 was introduced as a result of a broadly bipartisan political process, in order to consolidate and modernize the existing system of workplace safety regulation, bringing a diffuse and often archaic set of legal requirements together in a single, accessible form. Prior to this Act, health and safety was criminalized via a system of highly prescriptive offences which set out in exact terms what an employer must do in order to comply with the law.5 The Robens Committee, on whose recommendations the HSWA was based, described this as a ‘haphazard mass of law which is intricate in detail, unprogressive, often difficult to comprehend and difficult to amend and keep up to date’.6 Breaches of these requirements were framed as ‘strict liability’ offences, and prosecuted by the regulatory inspectorate with responsibility for the sector in which they occurred, however, this was fragmentary and often piecemeal. The law resultantly came to be seen as a matter of technical, mala prohibita offences, relating to narrowly described breaches of technical requirements, precluding consideration of systemic issues of safety management and of overarching duties around health and safety. The lack of mens rea component within these offences ‘conventionalized’ them as something less than crimes,7 and their prescriptiveness meant that they quickly became obsolete in a rapidly changing world of work, and needed constant revision, exacerbating perceptions of over-​regulation. Enforcement came to be seen as having a limited practical impact, and so was deprioritized in favour of more informal regulatory approaches.8 The HSWA 1974 set out a system of wide-​ranging ‘portmanteau’ duties on employers to ensure, ‘so far as is reasonably practicable, the health safety and welfare’ of employees and of other people affected by their operations (HSWA 1974, sections 2–​3), and on other individuals (premises owners, manufacturers of items, and employees) to ensure the safety of the activities they engage in (sections 4–​7). More specific prohibitions are imposed via ‘lower-​order’ rules, in the form of regulations and delegated legislation.9 Section 33(1) of

5 Paul Almond and Mike Esbester, Health and Safety in Contemporary Britain: Society, Legitimacy, and Change since 1960 (Palgrave Macmillan 2019) ch 4; Robert Baldwin, Rules and Government (Clarendon Press 1995); Sandra Dawson and others, Safety at Work: The Limits of Self-​Regulation (CUP 1988). 6 Lord Robens, Safety and Health at Work: Report of the Committee 1970-​72 (HMSO 1972) [458]. 7 Alan Norrie, Crime, Reason, and History (CUP 1993); also Carson (n 2). 8 Carson (n 2); Hawkins (n 3); Hutter (n 3). 9 Baldwin, Rules and Government (n 5) 131.

Workplace Safety and Criminalization  393 the HSWA makes it ‘an offence for a person . . . to fail to discharge a duty to which he is subject by virtue of sections 2 to 7 . . . [or] to contravene any health and safety regulations’, thus converting the general duties into criminal offences without narrowing their scope or precluding further offences being created as new regulations are made. One effect of these duty-​based offences was to extend the application of the law to many new workplaces and, crucially, to settings beyond the workplace. As an illustration, the section 3 offence has been used in a wide range of cases, from the deaths of passengers on the rail network,10 to the shooting of innocent civilians during anti-​terror police operations.11 The project of criminalization that these offences represent has been criticized for departing from the normal doctrinal standards and underpinnings of the criminal law.12 Many of these objections are reflective of a conception of health and safety law as part of a distinct ‘culture’ of regulatory criminal law, separate from the ‘mainstream’ of ‘authentic’ individual criminal offences; Jeremy Horder critiques the tendency among such writers to see this as a perversion of ‘true’ criminal law, rather than as an expression of the plurality of values, contexts, and rationales that might underpin criminalization.13 Horder instead positions offences like those around health and safety as part of a distinct (and equally valid) project of ‘regulatory criminalization’, which pursues instrumental outcomes via the prosecution of largely non-​moral entities, and which is distinct from civil liability because of the seriousness of the wrongdoing involved, rather than the crossing of any distinctive conceptual threshold. A similar conceptualization is provided by Dubber’s account of the ‘police power’, the expression of the sovereign authority of the state to maximize welfare by managing the activity of its citizens.14 The exercise of this power of ‘administration’ is held in contrast to the role of ‘law’ as a mode of civil society governance. While the latter seeks to manifest and protect the rights and autonomy of citizens, the use of ‘police’ power is unencumbered by any need for legitimation via reference to the procedural and substantive safeguards (such as mens rea requirements and presumptions of innocence) that are central to the law as a mode of governance.15 While health and safety regulation might be understood as an example of this police power (though Dubber does not explicitly conceptualize it as such), it remains an example of ‘people policing’ that affect the autonomy of persons directly and so requires justification; this also creates tensions when ‘legal’ safeguards are not observed.16 Three features of the HSWA offences are worth highlighting in this regard. First, liability under these offences is subject to the ‘so far as is reasonably practicable’ (SFAIRP) test, which requires that the prosecution prove that the defendants failed to exercise due diligence in

10 Such as the 1997 Southall rail crash, in which seven people were killed: R v Great Western Trains (unreported, Central Criminal Court 30/​06/​1999). 11 Such as the shooting of Jean Charles de Menezes, a Brazilian national, by an anti-​terrorism Police unit in London in 2005: James Sturcke, ‘Met Police Guilty over De Menezes Shooting’ The Guardian (1 November 2007) accessed 20 November 2018. 12 For example, Ashworth (n 4). 13 Jeremy Horder, ‘ “Bureaucratic” Criminal Law: Too Much of a Bad Thing?’ in RA Duff and others (eds), Criminalization: The Political Morality of the Criminal Law (OUP 2014) 101, 130. 14 Markus Dubber, The Police Power:  Patriarchy and the Foundations of American Government (Columbia University Press 2005). 15 ibid ch 6; the procedural elements of this distinction are also reflected in Packer’s distinction between ‘due process’ and ‘crime control’ models of criminal justice: Herbert Packer, The Limits of the Criminal Sanction (Stanford University Press 1968) ch 8. 16 Dubber (n 14) 160.

394  Criminality at Work relation to the risk in question. If the defendant can show that ‘the time, trouble and expense’ of the precautions needed to prevent it arising ‘are disproportionate to the risks involved’,17 then they will lack the necessary fault. As a qualified standard, the test allows for the balancing of a quantum of risk against cost when determining what constitutes a breach of the law,18 and has been criticized for essentially tolerating a degree of non-​compliance on the basis of cost, and so undermining the absolute health and safety duties enshrined in European law.19 While the SFAIRP test helps mitigate the ‘burning sense of grievance’ associated with strict liability,20 it has arguably downplayed the criminality of the offending involved, and left these offences open to criticism as extensions of the criminal law into areas of social policy where its use is not merited.21 Perhaps most controversially, the SFAIRP test imposes a reverse burden of proof; a defendant must adduce evidence to demonstrate that they have taken reasonable steps to meet the standards required under the Act.22 Such reverse onus provisions arguably impinge upon a defendant’s autonomy, a particular concern in relation to individual, rather than corporate, defendants.23 A second doctrinally problematic feature of these offences is their ‘deliberate vagueness’.24 The offences were deliberately created to be open-​textured and flexible, and so are not specific in terms of the actions, consequences, and causal links they require. First, they do not require that any specific consequence should result from the breach of duty specified; they are inchoate, in that there need only be a prospective relationship between a breach and any consequences and indeed, those consequences need never materialize at all. While the preventive criminalization of prospective and inchoate harms is a not unusual part of the general criminal law, when combined with other open-​ended offence elements it does arguably contribute to a minimization of perceived seriousness, which is commonly assessed in criminal offences by reference to harm.25 This has led to calls for the creation of offences which do acknowledge resulting harms.26 Relatedly, the offences do not require that there be any established causal link between a breach and an outcome (although the latter may be indicative of the former). So in R v Chargot,27 it was held that, even in the absence of any evidence as to acts or omissions which breached section 2, the fact of death could ‘itself demonstrate . . . that the employer failed to ensure [the victim’s] health and safety at work’.28 While such an approach was held to be necessary to the fulfilment of the law’s social policy

17 per Lord Oaksey in Marshall v Gotham [1954] AC 360 [370]; also Austin Rover v HM Inspector of Factories [1989] 3 WLR 520. 18 Dawson and others (n 5) 15; Anthony Ogus, ‘Rethinking Self-​Regulation’ (1995) 15 Oxford Journal of Legal Studies 97. 19 This obligation is contained within arts 4(1) and 5(1) of Council Directive 89/​391/​EEC of 12 June 1989, and was examined in Commission v United Kingdom, C-​127/​05 (14 June 2007). 20 Norrie (n 7) 86. 21 Ashworth (n 4). 22 Davies v Health and Safety Executive [2002] EWCA Crim 2949, [2002] 12 WLUK 533; also Victoria Howes, ‘Duties and Liabilities under the Health and Safety at Work Act 1974: A Step Forward?’ (2009) 38 Industrial Law Journal 306. 23 Liz Campbell, ‘Corporate Liability and the Criminalization of Failure’ (2018) 12 Law and Financial Markets Review 57, 62; Horder, ‘ “Bureaucratic” Criminal Law’ (n 13) 124. 24 Almond and Esbester (n 5) ch 4. 25 Ashworth (n 4) 242. 26 James Gobert, ‘The Corporate Manslaughter and Corporate Homicide Act 2007—​Thirteen Years in the Making but was it Worth the Wait?’ (2008) 71 Modern Law Review 413, 419. 27 R v Chargot Ltd (t/​a Contract Services) and others [2008] UKHL 72, [2009] 1 AC 335. 28 ibid [30] (Lord Hope).

Workplace Safety and Criminalization  395 functions,29 it does demonstrate the potential for procedural unfairness associated with imprecise regulatory standards.30 Finally, this ‘deliberate vagueness’ also extends to the substantive acts that can constitute an offence; the statute does not specify any forms of conduct that constitute breaches of the duties. Liability for these offences relates to the underlying factors that allowed the risk in question to manifest, rather than to the incident itself.31 This reflected a shift from specification standards, relating to defined hazards, to performance standards, relating to obligations to reach acceptable levels of provision, but its effect was to frame the offences as mala prohibita, lawful conduct done in unlawful ways, rather than mala in se crimes.32 The status of these offences is at once clear, but also contested. On the one hand, like many measures that form part of Dubber’s ‘police power’, they are formally classed as criminal offences, involving punitive sanctions33 such as significant fines and imprisonment.34 But they are not generally perceived as criminal offences, either officially,35 or by the wider public, who regard them as ‘only a health and safety thing’.36 While empirical analysis of public attitudes in this area indicates that the purposes of these offences (accountability for harm and protecting a ‘right to safety’) are widely supported,37 these attitudes reflect the ‘characteristic flexibility and moral alegitimacy’ of police power,38 and so these offences are positioned as regulatory in nature, and distinct from criminal ‘law’.

C.  Criminalizing Safety II: Corporate Manslaughter The ‘corporate manslaughter’ offence introduced by the CMCHA 2007 was intended to allow complex organizational entities that cause death to be held responsible under the law of homicide. Section 1(1) of the Act states that An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

29 ibid [21], [29]–​[31]. 30 John Spencer, ‘Criminal Liability for Accidental Death: Back to the Middle Ages?’ (2009) 68 Cambridge Law Journal 263. 31 R v Tangerine Confectionery Ltd [2011] EWCA Crim 2015, [2011] 8 WLUK 241. 32 Chris Clarkson, ‘Corporate Manslaughter: Yet more Government Proposals’ [2005] Criminal Law Review 677, 681; Jeremy Horder, ‘Homicide Reform and the Changing Character of Legal Thought’ in Chris Clarkson and Sally Cunningham (eds), Criminal Liability for Non-​Aggressive Death (Ashgate 2008) 11. 33 Benham v United Kingdom (1996) 22 EHRR 293. 34 Sentencing guidelines for these offences envisage fines of up to £20m being levied in the most serious cases:  Sentencing Council, Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences:  Definitive Guidelines (2015) accessed 27 November 2018. 35 Home Office, Corporate Manslaughter: The Government’s Draft Bill for Reform (HMSO 2005) 58, referred to them as ‘regulatory’ rather than ‘serious’ offences. 36 Paul Almond and Sarah Colover, ‘Mediating Punitiveness: Understanding Public Attitudes towards Work-​ Related Fatality Cases’ (2010) 7 European Journal of Criminology 323, 333. 37 Ibid; Paul Almond and Sarah Colover, ‘Communication and Social Regulation: The Criminalization of Work-​ Related Death’ (2012) 52 British Journal of Criminology 997. 38 Dubber (n 14) 181.

396  Criminality at Work This offence can be committed by a wide range of organizational actors, including corporations, government bodies, police forces, partnerships, trade unions, and employers’ associations. Liability is established if it is proved that a ‘management failure’ on the part of the organization played a substantial role in a breach of a duty of care owed to the victim. This is intended to have both a facilitating and limiting effect; causal responsibility may be diffused among an organization’s decision-​making hierarchy, but a very serious degree of culpability must be shown on the part of that organization, as reflected in both the requirements of ‘grossness’39 and the requirement of management seniority. Relevant duties include those owed as an employer (as under health and safety law), an occupier of premises, or a provider of goods or services, but not those owed as a matter of public policy, including those arising from decisions as to the allocation of public resources or the weighing of competing interests.40 The drivers behind the introduction of this offence included internal legal considerations, as well as external social ones. First, a doctrinal need for reform was identified by policy-​makers and commentators,41 prompted by the limitations of the law of manslaughter when applied to corporate bodies. Previous cases demonstrated that the rules for the attribution of responsibility to corporate bodies (the ‘identification doctrine’) were unable to deal with acts that departed from criminal law norms of individual agency. An individual senior manager was required to supply the actus reus and mens rea ‘on behalf of ’ the organization, which could not commit a wrong in its own right.42 This constituted both a falsely narrow conception of the agency of organizational bodies, which have long been able to act on their own account in relation to, for example, the performance of statutory duties,43 and an artificial way of conceiving of criminal responsibility, in that the liability of one legal entity (the company) is contingent on the state of mind of another (the individual). This ‘borrowed’ mens rea also fitted unconvincingly with the gross negligence manslaughter offence itself, which does not require proof of a subjective state of mind on the part of the defendant; it was thus anomalous that an individual ‘controlling mind’ was needed to provide evidence of a notionally ‘mindless’ state.44 As a result of these limitations, the old law was deemed incapable of responding to deaths arising as a result of systemic faults and collective decisions, rather than the discrete acts of identifiable individuals,45 and so failed to reflect the causes of most organizational failures.46 Additionally, the corporate manslaughter offence was a response to the previously identified doctrinal limitations of the 39 Which has the same meaning here as in R v Adomako [1995] 1 AC 171. 40 The relevant duties are set out at s 2(1) and the ‘public policy’ exclusion is set out at s 3(1). 41 Law Commission, Report 237:  Legislating the Criminal Code:  Involuntary Manslaughter (HMSO 1996); Chris Clarkson, ‘Kicking Corporate Bodies and Damning their Souls’ (1996) 59 Modern Law Review 557; Bob Sullivan ‘The Attribution of Culpability to Limited Companies’ (1996) 55 Cambridge Law Journal 515; Celia Wells, Corporations and Criminal Responsibility (2nd edn, OUP 2001). 42 Attorney-​General’s Reference (No 2 of 1999) [2000] 3 All ER 183. 43 R v Great North of England Railway Co (1846) 9 QB 315. 44 Law Commission, Consultation Paper 135:  Involuntary Manslaughter (HMSO 1994) [5.77]; Wells, Corporations (n 41) 111. 45 ‘[T]‌he only way in which a corporation can be liable for manslaughter is under the directing mind principle . . . the consequence is that it is virtually impossible to bring a successful prosecution against a large corporation particularly where . . . the allegation is essentially based on a system failure.’ R v Great Western (n 10) [15] (Scott-​Baker  J). 46 Paul Almond and Garry Gray, ‘Frontline Safety:  Understanding the Workplace as a Site of Regulatory Engagement’ (2017) 39 Law & Policy 5; Charles Perrow, Normal Accidents: Living with High-​Risk Technologies (Princeton University Press 1984); Gene Rochlin, ‘Safe Operation as a Social Construct’ (1999) 42 Ergonomics 1549; Wells, Corporations (n 41).

Workplace Safety and Criminalization  397 existing health and safety offences. It was intended to be ends-​oriented, delivering moral judgements on defendants because they had culpably killed,47 and as such, to treat these cases as concerning issues of rights and justice rather than police power, in Dubber’s terms. Secondly, these doctrinal issues gave rise to a more fundamental empirical challenge; that the law had failed in practice to secure any convictions against complex organizational defendants. High-​profile prosecutions following major disasters invariably failed, usually due to the inability of prosecutors to demonstrate a connection between senior managers and the operational failures which caused the outcomes in question.48 For instance, the prosecution brought against P&O Ferries following the sinking of the Herald of Free Enterprise in 1987 failed, as the immediate (shipboard) causes of the disaster fell between, and not within, the responsibilities of individual (office-​based) company managers.49 This was despite the finding of the official inquiry into the disaster that All concerned in management, from the members of the board of Directors down . . . shar[e]‌ responsibility for the failure of management. From top to bottom the body corporate was infected with the disease of sloppiness.50

There were seven successful prosecutions under the old law, but each involved a non-​ complex organization where there was no real distinction between ‘management’ and day-​ to-​day operations.51 In most cases, the consequences of the convictions were also limited, resulting in a de facto non-​criminalization of work-​related deaths. Three socio-​political drivers of reform can also be identified. There was a political desire for reform, reflecting the need of the New Labour government of the day to appease its trade union backers, who had otherwise found themselves marginalized within that business-​ friendly governmental project. The corporate manslaughter reforms were one such concession, a high-​profile piece of law intended to signal a commitment to worker’s right.52 They were also a response to social concerns about the harms caused by business activity, the long-​term effects of global capitalism, and the more general risks inherent in late-​modern society. The idea of ‘corporate manslaughter’ came to prominence in response to a string of disasters during 1987–​89,53 and resurfaced following the rail accidents at Ladbroke Grove, Hatfield, and Potter’s Bar between 1999 and 2002. The public concern this prompted was cited as a rationale for reform by both the Law Commission and the Home Office.54

47 Bob Sullivan, ‘Corporate Killing—​Some Government Proposals’ [2001] Criminal Law Review 31, 33. 48 Wells, Corporations (n 41). 49 R v HM Coroner for East Kent ex p Spooner [1989] 88 Cr App R 10; R v Stanley and Others (unreported, Central Criminal Court 19/​10/​1990). 50 Department of Transport, MV Herald of Free Enterprise: Report of the Court No 8047 (HMSO 1987) [14.1]. 51 Almond, Corporate Manslaughter (n 2) 27. 52 James Gobert, ‘The Politics of Corporate Manslaughter—​ The British Experience’ (2005) 8 Flinders Journal of Law Reform, 1; Almond, Corporate Manslaughter (n 2)  162; Steve Tombs and David Whyte, ‘A Deadly Consensus: Worker Safety and Regulatory Degradation under New Labour’ (2010) 50 British Journal of Criminology 46. 53 Including the Clapham Junction rail crash (1988, thirty-​five dead), the sinking of the Herald of Free Enterprise (1987, 193 dead) and the Marchioness (1989, fifty-​one dead), the fires at King’s Cross station (1987, thirty-​one dead) and on Piper Alpha (1988, 167 dead), the Kegworth air crash (1989, forty-​seven dead), and the Hillsborough stadium disaster (1989, ninety-​six dead). These disasters also came against the backdrop of the Chernobyl nuclear disaster in 1986: Wells, Corporations (n 41). 54 Law Commission, Report 237 (n 41) 1.10; Home Office, Corporate Manslaughter (n 35) 6.

398  Criminality at Work Finally, we can identify a broader normative undertaking behind the corporate manslaughter reforms. On the one hand, it is possible to view these offences as a product of class struggle, a means of reasserting labour rights in the face of the destructive power of the corporate capitalist system55 (a view dismissed by critics as reflecting either a ‘Marxist moral-​political rut’,56 or an unprincipled regulatory populism57). Alternatively, this normative role involves securing the citizenship rights of those affected by an act of endangerment by one who ‘does not care as she should for their interests’ and in doing so, ignores the good reasons against acting thus.58 Culpably negligent work-​related fatality cases involve a neglect of the citizenship rights of others ‘to live the life of a civilized being according to the standards prevailing in the society’.59 Regulatory offences exist to ensure that employers treat employees as ends in their own right, and to ensure that risks are not borne disproportionately by any particular social class or group.60 Individuals bear rights relating to the nature and quality of their citizenship; the manslaughter offence symbolically reasserts the culpability of breaching those rights by failing to fulfil the obligations they place onto one’s own conduct. The CMCHA sought to respond to this need by bringing harmful corporate conduct within the scope of the ‘real’ criminal law, and so validating them as offences against the value of human life. Conformity to doctrinal and due process standards of legality, which respect individual autonomy, is a necessary prerequisite for the legitimation of criminal ‘law’,61 and regimes of corporate criminal liability have historically struggled to fulfil these standards.62 In part, this reflects the legitimacy problems attaching to legal intervention in areas of social and economic policy like the workplace, but also that, while the sphere of justice focuses on individuals and their rights, corporate regulation has tended to involve the instrumental ordering of ‘things’ and commerce, more properly matters of police power.63 At the same time, however, there is a residual desire for the offence to remain responsive to the underlying labour law issues commonly reflected in workplace safety failures,64 something that necessitates the preventive, ends-​focused approach inherent in the police power. The pursuit of particular outcomes, and a desire to respond to certain types of incident, is inherent in the political and social settlements that underpin these laws; their usage is consequentialist and tied to substantive understandings about what is, or ought to be, a matter of criminal law.65 The corporate manslaughter offence thus struggles to fulfil both its primary intended purpose of morally adjudicating on questions of wrongdoing via 55 Tombs and Whyte, Safety Crimes (n 3). 56 Jeremy Horder, Homicide and the Politics of Law Reform (OUP 2012) 116. 57 Robert Baldwin, ‘The New Punitive Regulation’ (2004) 67 Modern Law Review 351. 58 RA Duff, ‘Criminalizing Endangerment’ (2004) 65 Louisiana Law Review 941, 943; HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Clarendon Press 1968) 157; Andrew Simester, ‘Can Negligence be Culpable?’ in Jeremy Horder (ed), Oxford Essays in Jurisprudence (4th Series, OUP 2000) 85. Critical scholars (such as Tombs and Whyte, Safety Crimes) argue that many corporate manslaughter defendants display a socio-​ political, economic, or institutional ‘practical hostility toward the interests or people they attack’, in Duff ’s terms, and so may fit into his paradigm of ‘attack’ rather than ‘endangerment’ offences. 59 TH Marshall, Citizenship and Social Class (Pluto 1992) 8. 60 Almond, Corporate Manslaughter (n 2); Tony Prosser, The Regulatory Enterprise: Government, Regulation, and Legitimacy (OUP 2011); Peter Ramsay, ‘The Responsible Subject as Citizen: Criminal Law, Democracy and the Welfare State’ (2006) 69 Modern Law Review 29. 61 Dubber (n 14) 180. 62 Almond and Esbester (n 5) ch 4; Baldwin, Rules and Government (n 5); Campbell (n 23) 5–​7. 63 Dubber (n 14) chs 6–​7. 64 Gobert, ‘Politics of Corporate Manslaughter’ (n 52); Tombs and Whyte, Safety Crimes (n 3). 65 Sullivan, ‘The Attribution of Culpability’ (n 41) 516.

Workplace Safety and Criminalization  399 the application of legal norms, as well as the latent regulatory function (found in the HSWA offences) of effectively ensuring social welfare via the application of police power. This perhaps reflects a problem affecting criminal law in general, namely, that it is not necessarily able to be both normatively meaningful and instrumentally effective at the same time, and so offers a choice between, rather than a reconciliation of, the ‘two cultures’ of penal and regulatory criminal law.66

D.  The Corporate Manslaughter Offence in Practice In the ten years that the corporate manslaughter offence has been in force, its impact has been more modest than forecast. The number of prosecutions brought has fallen well short of the ten to thirteen per year anticipated by the Home Office,67 and the Act has not yet been utilized in relation to any high-​profile disasters. Efforts to collate these outcomes68 indicate that there have been, to date, thirty prosecutions brought under the 2007 Act, resulting in twenty-​six convictions. Seventeen of these convictions (65 per cent) resulted from guilty pleas entered at trial, with many leveraged via the levelling of multiple charges (manslaughter and HSWA 1974 offences, against both individual directors and ­organizations) in a single case.69 Crucially, none of these convictions have involved large organizations. One unsuccessful prosecution involved an NHS Hospital Trust,70 a large organization, but failed as prosecutors were unable to establish that the clinical failures involved in the treatment of the victim (a patient who died during a caesarean section) grossly breached a duty of care. As a result, few cases have tested the concept of ‘management failure’ as a means of attributing organizational responsibility. In the case of Lion Steel,71 where a worker fell to his death while performing maintenance work on a factory roof, it was recognized that while the director in charge of the worksite might bear responsibility for that failure, this fault did not have to be shared with other directors in order to constitute a management failure.72 And in the case of CAV Aerospace,73 where purchasing practices at a parent company led to dangerous overstocking at a subsidiary company’s warehouse, liability was established on the basis of the control exercised by the level of the parent company.74 The test proved flexible enough to handle this type of corporate arrangement, but it remains to be seen whether it can do so 66 Horder, ‘ “Bureaucratic” Criminal Law’ (n 13)  150; also Almond, Corporate Manslaughter (n 2); Douglas Husak, Overcriminalization:  The Limits of the Criminal Law (OUP 2008); Jonathan Simon, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (OUP 2007). 67 Home Office, Corporate Manslaughter and Corporate Homicide:  A Regulatory Impact Assessment of the Government’s Bill (2006) 13 accessed 27 November 2018. 68 Building on Steve Tombs, ‘The UK’s Corporate Killing Law: Un/​fit for Purpose?’ (2018) 18 Criminology and Criminal Justice 488; Celia Wells, ‘Corporate Criminal Liability: A Ten Year Review’ [2014] Crim Law Review 849. No published data are provided by the UK government on the use of the CMCHA 2007; they are subsumed within broader homicide categories within general crime statistics. 69 Alexandra Dobson, ‘Shifting Sands: Multiple Counts in Prosecutions for Corporate Manslaughter’ [2012] Criminal Law Review 200. 70 R v Maidstone and Tunbridge Wells NHS Trust (2016) Unreported, Inner London Crown Court, 28/​01/​2016. 71 R v Lion Steel Equipment Ltd (unreported, Manchester Crown Court 20/​7/​2012). 72 Simon Antrobus, ‘The Criminal Liability of Directors for Health and Safety Breaches and Manslaughter’ [2013] Criminal Law Review 309. 73 R v CAV Aerospace Ltd (unreported, Central Criminal Court 24/​7/​2015). 74 Tombs (n 68) 15.

400  Criminality at Work in relation to the information flows and power relationships involved in the prosecution of a major corporate entity. The average fine following a conviction currently stands at £315,580, with the highest to date being £1.2m; these outcomes are at the bottom of the range of possibility envisaged by the Sentencing Guidelines,75 and are not noticeably different from the fines that might be imposed in comparable HSWA prosecutions. Very few of the cases (five) have sought to make use of any of the more innovative sentencing options (such as publicity orders) that the 2007 Act introduced. And there are some clear trends in the sectors, regions, and types of case where manslaughter prosecutions have been brought. The most heavily represented industry in terms of manslaughter prosecutions is construction (ten cases), followed by manufacturing (five), agriculture (three), and waste management (three). Nine of the prosecutions have occurred in Lancashire and the North-​West, and four in Northern Ireland, perhaps reflecting the prevalence of the aforementioned industries in these regions, but also suggesting the influence of local institutional factors like those identified within the Crown Prosecution Service (CPS) by Quick in relation to medical manslaughter cases.76 These include the presence of pockets of localized expertise among CPS/​Police Service of Northern Ireland (PSNI) decision-​makers, particularly in relation to complex threshold decisions like determining ‘grossness’, and the tendency for success (or ‘getting home’, in Quick’s terms77) in one case to inculcate confidence in pursuing others. Gaining a better understanding of the role of expertise and local pressures and variables within prosecutorial agencies would no doubt cast an important new light on the outcomes secured to date. Finally, certain fact patterns recur within the prosecuted cases; twelve have involved falls from height, five have involved becoming trapped in machinery, and four have involved being crushed by falling material. One reason for this might be that these activities are more commonly undertaken by small to medium-​sized enterprises, which have tended to be targeted for prosecution.78 But there are perhaps more significant reasons, which link back to the doctrinal features of the offence. First, these circumstances tend to involve physical ‘boundary violations’, or people moving from ‘safe’ spaces to ‘unsafe’ ones—​proximate to machinery, onto rooftops, or into restricted spaces. Such a boundary violation itself manifestly breaches health and safety standards:  a categorical (in/​out), rather than an incremental (degrees of reasonableness) form of failure. As such, they are easier to prove than other health and safety breaches, and so lend themselves to forming the basis of a prosecution. Second, violations of this sort (circumventing or disregarding rules) tend to indicate a form of ‘chosen’ conduct in the way that errors and mistakes do not; these choices implicate the organizational settings which shape and constrain them.79 This then brings the character of the offending organization into question, as the attitudes of culpable neglect and a ‘get the job done’ motivation, which often underpin the decisions to violate physical boundaries, all act as indicators of wrongfulness, to some degree. In this way, a form of quasi-​mens 75 Sentencing Council, Definitive Guidelines (n 34) 21. 76 Oliver Quick, ‘Prosecuting “Gross” Medical Negligence:  Manslaughter, Discretion, and the Crown Prosecution Service’ (2006) 33(3) Journal of Law and Society 421 (. 77 ibid 438. 78 Tombs (n 68) 13. 79 Rebecca Lawton, ‘Not Working to Rule:  Understanding Procedural Violations at Work’ (1998) 28 Safety Science 77; James Reason, Human Error (CUP 1990); LR Zeitlin, ‘Failure to Follow Safety Instructions: Faulty Communication or Risky Decisions?’ (1994) 36 Human Factors 172.

Workplace Safety and Criminalization  401 rea is injected into the prosecution decision-​making process, adding a layer of moral judgement onto offences that might otherwise be reflective of more technical, and less obviously normative, issues.80 Overall, then, the corporate manslaughter offence has been less effective in practice than many would have hoped. The principal barriers to its application have stemmed from the efforts made to pursue the criminal law norms that HSWA offences arguably circumvent, and which a homicide offence is expected to fulfil. The fault element requires attention be paid to decision-​making among a specified range of post-​holders, which must fall below a particular threshold of grossness and give rise to a specific consequence.81 Finally, the offence must ‘look’ like a manifest breach of a duty of care which implies some form of moral culpability. Each of these factors limits the application of the offence to the ‘worst’ cases only, but has also inhibited prosecution decision-​making. ‘Harder’ cases which might test these doctrinal barriers have not been pursued; the desire to adhere to the norms of ‘real’ criminal offences has an important normative function but has also narrowed the instrumental reach of the offence, in part placing an appropriate brake on the use of a serious criminal offence, but also in part curtailing its capacity to address meaningful social needs.

E.  Criminalization and Context-​dependency The criminalization of this area of labour law has thus encountered a paradox: that doctrinally ‘criminal’ offences are not necessarily instrumentally effective, and that useful ‘quasi-​ criminal’ offences are not necessarily imbued with enough normative weight. In part, this reflects the weaknesses of the criminal law as a social policy tool.82 But it also reflects the influence of the institutional and socio-​political contexts within which criminalization occurs. The criminal offences that govern this area of labour law have resulted from complex processes of bargaining, negotiation, and debate, which have involved trading off concerns about the restrictive effects of criminalization against the social-​welfarist ambitions of reformers.83 As a result, and like other regulatory undertakings, these offences are political, in that they are tools for the pursuit of particular substantive ends or public interest goals.84 This focus on prevention and welfare is consistent with accounts of the police power, not least in its emphasis upon the differentiation and targeting of cases which constitute threats to the social order.85 The two bodies of criminal law discussed in this chapter each derive their meaning and purpose from the institutional and social settings in which they are applied, and so might be described as context-​dependent in form. ‘Context-​dependency’ here is used to connote ­offences which only apply to certain situations and types of offender, and which relate to conduct that only becomes criminal by virtue of the circumstances in which it arises. Horder 80 Hawkins (n 3). 81 Wells, ‘Corporate Criminal Liability’ (n 68) 855. 82 Husak (n 66); Simon, Governing through Crime (n 66). 83 Almond, Corporate Manslaughter (n 2); Gobert, ‘Politics of Corporate Manslaughter’ (n 52); Horder, Homicide (n 55); Wells, Corporations (n 41). 84 Brian Tamanaha, Law as a Means to an End: Threat to the Rule of Law (CUP 2006) 6; Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (Harper Colophon 1978). 85 Dubber (n 14) ch 7.

402  Criminality at Work identifies a ‘bureaucratic-​administrative model’ of criminal offences which are context-​ dependent, being targeted at particular classes of individuals and ‘flexibilized’ in their form so as to allow for substantive outcomes to be pursued in certain circumstances.86 These relevant contexts may be either proscribed in the form of the offence, as is the fact of ‘driving’ in Horder’s example of causing death by dangerous driving, or otherwise interpolated via the decision-​making of enforcers. In that example, cases of falling asleep at the wheel might be categorized as ‘dangerous’ driving, while cases of ‘momentary inattention’, or where a victim contributed to an accident, might be classed as ‘careless’ driving.87 Whether it is dangerous or careless to pull out at a junction in front of an unnoticed motorcycle is not specified in the offence and is not an inherent distinction; it is a product of a contextually informed understanding of the risks and dynamics associated with driving, as well as a choice about the types of driving that ought to be punished. Throughout the criminal law, offence terms are thus defined in order to capture ‘wrongs committed within . . . an institutional setting—​a setting that partly determines their meaning and their implications’.88 Determinations about what falls within the ambit of an offence reflect institutional decision-​making at the level of the political community, rather than pre-​legal reasoning about particular moral wrongs, and so are reflective of the aforementioned conceptual tensions between the ‘two cultures’ of criminal law89 and two governance models of law and police.90 On the one hand, they allow for consideration of the ‘good reasons’ for criminalizing which exist at the level of the political community, such as those relating to social citizenship rights,91 and the protection of individuals from exploitation and domination.92 These are legitimate goals for criminalization to pursue, consistent with the key concerns of labour law. But they are also at odds with accounts of criminalization which privilege offences based on moral wrongfulness as the only legitimate criminal form, and which consequently disregard the value of these offences.93 Rather than criminalizing conduct on the basis of universal moral standards, these offences do so in the pursuit of public goals which are articulated as rules via the institutional context of the state, the constitution, and the mechanisms of law through which they are embodied.94 This institutional setting is further expressed via variables such as organizational policy, routine, habit, and style, which constitute the enforcer’s decision-​making frame and so ‘institutionalize’ and shape the ways in which offences are used.95 Certain types of conduct and defendant are thus criminalized according to the contextual value of doing so, something which appears at odds with criminal law norms of equal treatment and non-​differentiation.96

86 Horder, Homicide (n 56) 75–​77. 87 Sally Kyd Cunningham, ‘Has Law Reform Policy been Driven in the Right Direction? How the New Causing Death by Driving Offences are Operating in Practice’ [2013] Criminal Law Review 712. 88 RA Duff and others, ‘Introduction:  Towards a Theory of Criminalization’ in and others (eds) Criminalization: The Political Morality of the Criminal Law (OUP 2014) 1, 21. 89 Horder, ‘ “Bureaucratic” Criminal Law’ (n 13) 150. 90 Dubber (n 14). 91 Marshall (n 59) 8; Prosser (n 60) 103; Ramsay, ‘Responsible Subject’ (n 60) 40–​41. 92 John Braithwaite, Regulatory Capitalism: How it Works, Ideas for Making it Work Better (Edward Elgar 2008); Almond, Corporate Manslaughter (n 2) 168. 93 Duff and others, Criminalization (n 88) 21, make this point in relation to Ashworth (n 4). 94 Neil MacCormick, Institutions of Law (OUP 2007) ch 3. 95 Hawkins (n 3); MacCormick (n 94) ch 4. 96 Ashworth (n 4) 249–​50; Dubber (n 14).

Workplace Safety and Criminalization  403

F.  Context-​dependency in Practice This contextual quality is displayed to a startling degree in the case of the HSWA 1974 ­offences, which are open-​ended in nature and base liability upon broad assessments of a defendant’s conduct, rather than any specified action or failure. As discussed, the general offences under the HSWA are intended to apply broadly, establishing safe work as a universal right or value, and embedding it within a principles-​based, goal-​setting regime,97 and are particularized only in terms of who they apply to (employers, employees, and so on). In practice, however, they are heavily delimited; as Hutter observes, ‘[g]‌iving meaning and substance’ to these offences requires attending to ‘broad considerations across a range of issues’,98 not least the requirements contained within secondary legislation and Approved Codes of Practice (ACoPs),99 as well as normal industry standards. It is non-​compliance with these requirements that forms the evidentiary basis of an actionable ‘failure to ensure’ health and safety.100 In determining the scope of the general duties, the courts have paid attention to their social and economic purposes,101 introducing another degree of contextual assessment. By themselves, the offences are almost content-​neutral in terms of the limits and conditions of liability—​almost all of which are constructed by reference to external institutional and policy factors. For example, the test of ‘reasonable practicability’ contained within these offences involves assessment of context; a breach of a duty will only be a crime if it is something which, in the circumstances, the duty-​holder could reasonably be expected to have mitigated against. The management of risk is framed as a matter of ‘organized uncertainty’,102 in that duty-​holders are required to exercise judgement about the gravity, likelihood, and tolerability of risks, and face criminal liability if they do not do so appropriately. These open-​ended judgements are institutionalized via the guidance of safety professionals and regulators to reflect accepted contextual norms, interests, and priorities.103 Conversely, cases involving similar harms, but which do not meet these or other criteria for investigation (seriousness, perceived culpability, instrumental impact) are unlikely to be pursued, as the extra-​legal context does not demand it (there may be a breach of a duty and an injury, but no ‘reason’ to prosecute). In fact, only a small percentage of known violations are investigated or prosecuted, giving rise to concerns about equality of treatment in relation to both the cases singled out for enforcement and those overlooked.104 Another example of this context-​dependency is provided by section 7 of the Act, which creates an offence relating to employees, who are required to ‘take reasonable care for the health and safety of himself [sic] and of other persons who may be affected by his acts or 97 Almond and Esbester (n 5) ch 4; Almond, Corporate Manslaughter (n 2) ch 6; Prosser (n 60) 103. 98 Hutter (n 3) 102. 99 The Health and Safety Executive (HSE) currently lists 101 pieces of secondary legislation that it enforces , along with fifty-​five currently available ACoPS . 100 Campbell (n 23) discusses this form of liability. 101 R v Chargot (n 27) [21], [29]–​[31]. 102 Michael Power, Organizational Uncertainty (OUP 2007). 103 Baldwin, Rules and Government (n 5); Hutter (n 3). For instance, if a case falls within the scope of a ‘hobby-​ horse’ issue or strategic initiative, it is more likely to be prosecuted: Hawkins (n 3); Bridget Hutter and Sally Lloyd-​ Bostock, ‘The Power of Accidents: The Social and Psychological Impact of Accidents and the Enforcement of Safety Regulations’ (1990) 30 British Journal of Criminology 409. 104 Ashworth (n 4).

404  Criminality at Work omissions at work’. This offence is similar to those applying to employers, but is narrower in that it relates to one’s own conduct, rather than a failure to ensure the safety of others. It is also used rarely, with only around ten prosecutions per year,105 due to the contextual limits of the offence; individual prosecutions are more at risk of failing unless they are clearly wilful in nature, as juries or magistrates may sympathize with an individual defendant in a way they would not with a company.106 Crucially, prosecuting workers for health and safety breaches runs counter to the welfarist philosophy and ‘worker-​protective’ industrial relations ethos underpinning HSWA liability, which frames risk as a matter of organizational process.107 The offence is effectively redefined via its social, political, and institutional contexts so as to preclude this type of ‘responsibilization’.108 The corporate manslaughter offence is also contextually defined in several important regards. In particular, there is a need to establish that the causes of a death lay in a ‘management failure’, a breakdown in the way in which an organization conducts its activities and controls the risks it poses to others. Hence, an omission will only become a ‘management failure’ when it occurs within the context of an organizational structure, and at the level of management. ‘Organizational’ failures that occur outside the scope of ‘management’ will not give rise to liability. The pre-​2007 law was undermined by the difficulty of attributing responsibility to a corporate body for operational-​level actions,109 and the corporate manslaughter offence is likely to suffer the same fate, not least because it is notoriously difficult to establish the ‘managerial’ quality of an organizational failure, as the underlying norms of criminalization in this area are resistant to the attribution of fault to the corporate body, as opposed to individuals.110 In each case, distinctions are drawn between factually similar actions according to the nature of the persons who commit them. Another strand of context-​dependency within the CMCHA offence is the need to determine whether there has been a relevant, culpable breach of a duty. Section 2 of the Act requires that there must be a relevant duty of care owed under the law of negligence (as an employer, occupier or premises, supplier, or similar); this is a question of law for the judge to determine.111 As these duties must precede the commission of the offence, they bring into consideration the contextual structuring of obligations owed between actors. The formation of ‘Uberized’ quasi-​employment relationships between employing/​contracting firms and employees/​contractors112 may preclude legal duties being owed. Similarly, the potential retrenchment of employment rights post-​Brexit113 may also shape the substantive reach of the offence. This is further underlined by the inherently context-​dependent 105 Based on data from , covering the period from 19 June 2017 to 18 June 2018. 106 Hawkins (n 3) 96–​97; Hutter (n 3) 225. 107 Hawkins (n 3) 94–​95. 108 Garry Gray, ‘The Responsibilization Strategy of Health and Safety: Neo-​liberalism and the Reconfiguration of Individual Responsibility for Risk’ (2009) 49 British Journal of Criminology 326. 109 David Ormerod and Richard Taylor, ‘The Corporate Manslaughter and Corporate Homicide Act 2007’ [2007] Criminal Law Review 589, 592 110 Almond and Gray, ‘Frontline Safety’ (n 46); Gray, ‘Responsibilization’ (n 108); Eric Tucker, ‘Old Lessons for New Governance: Safety or Profit and the New Conventional Wisdom’ in Theo Nichols and David Walters (eds), Safety or Profit? International Studies in Governance, Change, and the Work Environment (Baywood 2013) 71. 111 Ormerod and Taylor (n 109) 599. 112 Jeremias Prassl and Martin Risak, ‘Uber, Taskrabbit, and Co: Platforms as Employers-​Rethinking the Legal Analysis of Crowdwork’ (2015) 37 Comparative Labor Law & Policy Journal 619. 113 Steve Coulter and Bob Hancké, ‘A Bonfire of the Regulations, or Business as Usual? The UK Labour Market and the Political Economy of Brexit’ (2016) 87 Political Quarterly 148.

Workplace Safety and Criminalization  405 nature of ‘grossness’ in relation to a breach of the law, which is assessed by the jury, taking account of ulterior legal requirements and health and safety guidance, as well as organizational attitudes, practices, and past performance.114 These standards and expectations are, in many regards, elastic, in that they can change over time; inadequate performance, if assessed by reference to the standard of ‘reasonable practicability’ under the HSWA, is a cost-​benefit judgement, and when costs and benefits are recalculated, those thresholds are liable to be reset. One last contextual limitation is the exclusion of duties relating to questions of public policy under section 3 of the Act, which places questions of resource allocation and political choice beyond the scope of the offence. It may be argued that this is a necessary safeguard for those who make hard decisions in an imperfect world, but this wide-​ranging exclusion places an entire class of strategic decision-​makers outside the law, while leaving operational decision-​makers exposed to liability.115 It also means that deaths resulting from callousness or indifference towards the citizenship rights of classes of people at the level of policy will fall outside the scope of liability, despite seemingly reflecting a blameworthy disposition.116 This is likely to mean that the policies of privatization, profit-​maximization, and neglect implicated in past disasters such as Hillsborough, Piper Alpha, or Ladbroke Grove, and current cases such as that at Grenfell Tower,117 are liable to remain unchallenged under the corporate manslaughter offence. In terms of practice, Horder critiques the contextual targeting of the CMCHA on the basis that, although the offence is inclusive in terms of the types of organization it applies to (including public bodies, partnerships, and other forms of organization), the policy narrative around the offence has focused on corporations to the exclusion of these other bodies.118 He attributes this to an ideological preoccupation with Marxian political economy on the part of supporters of the offence, echoing critiques of a modern culture of ‘regulatory punitiveness’.119 For Horder, this precludes consideration of failures within public service settings such as the NHS, and undercuts the law’s claims in relation to principles of procedural fairness and equal treatment. In fact, there is a healthy literature exploring the potential application of corporate manslaughter to public bodies, both prospectively120 and in relation to the disasters that prompted law reform in the first place,121 and public-​sector cases have already been pursued under the 2007 Act.122 Any slant towards the criminalization 114 Ormerod and Taylor (n 109) 603. 115 Horder, Homicide (n 56) 130–​31. For example, the rationing of treatment by NHS decision-​makers may be excluded, but the decisions of individual doctors may not be: Chris Newdick, Who Should we Treat? Rights, Rationing, and Resources in the NHS (2nd edn, OUP 2005). 116 RA Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Hart 2007) 115–​20. 117 Where seventy-​two people died in a fire, the circumstances of which seemingly implicate the decisions of the local Council, the Tenant Management Organization, the emergency services, and central government. 118 Horder, Homicide (n 56) ch 4. 119 Baldwin, ‘New Punitive Regulation’ (n 57). 120 Including prisons (David Doyle and Suzanne Scott, ‘Criminal Liability for Deaths in Prison Custody: The Corporate Manslaughter and Corporate Homicide Act 2007’ (2016) 55 Howard Journal of Crime and Justice 295), police forces (Stephen Griffin and Jon Moran, ‘Accountability for Deaths Attributable to the Gross Negligent Act or Omission of a Police Force: The Impact of the Corporate Manslaughter and Corporate Homicide Act 2007’ (2010) 74 Journal of Criminal Law 358; Raymond Arthur and Victoria Roper, ‘Criminal Liability for Child Deaths in Custody and the Corporate Manslaughter and Corporate Homicide Act 2007’ (2018) 30(2) Child & Family Law Quarterly 121), and hospitals (Mary Childs, ‘Medical Manslaughter and Corporate Liability’ (1999) 19 Legal Studies 316). 121 Wells, Corporations (n 41); Gobert, ‘Politics of Corporate Manslaughter’ (n 52); Almond, Corporate Manslaughter (n 2). 122 R v Maidstone NHS (n 70).

406  Criminality at Work of corporate defendants may simply reflect the offence’s context-​dependent nature. The rolling back of the state in the era of the ‘New Public Management’123 has placed what were once public-​sector functions within the private sphere, rendering cases in industries such as social care124 and mining125 de facto private-​sector matters. Indeed, the overlaps between public and private captured by the concept of ‘state-​corporate crime’ arguably make discussion of such a binary distinction obsolete.126 Crucially, the fact of the corporate setting may, in many cases, reflect a meaningful difference in the normative evaluations the law makes, as it raises questions of character, motivation, and ‘practical attitudes’ towards risk.127 The business sphere, particularly that of relatively marginal, low-​investment industries such as waste processing, agriculture, and construction (which account for a majority of cases), provides a setting within which an ends-​oriented, instrumental rationality might prevail. This type of motivation (a ‘profit-​ first’ or ‘just get the job done’ attitude) is identifiable in many of the cases prosecuted to date,128 and has long functioned as a shorthand ‘fault indicator’ in regulatory prosecution decision-​making.129 Of course, such an outlook is not unique to the corporate setting, and it is notable that areas of the public sector where a ‘business ethos’ has been inculcated (such as the NHS) have also attracted attention from prosecutors. Context-​dependency here allows for the criminalization of conduct that offends against valued social ends. It is only an indirect outcome that this results in a pattern of usage against corporate bodies and public entities that model themselves on this way of organizing one’s conduct.

G.  Conclusion: Criminalization and the Regulatory Project This chapter has explored the two main ways in which safety violations are criminalized, and has identified a trend towards context-​dependency in the offences created. This allows for the alignment of the law with the expectations and standards embedded within the social, organizational, and economic surround, satisfying rule of law considerations. It also means that the outcomes it produces are ostensibly directed at fulfilling labour law-​oriented policy goals. Specific requirements of the HSWA and CMCHA offences, such as the fault elements and the circumstances that give rise to liability, are interpreted in accordance with external understandings about the context that they relate to. These offences are used to restate social citizenship norms and reinforce the health and safety regime. But there is also a problem with this context-​dependency, namely, that it allows those same offences to be contextually shaped in less constructive ways, because this context includes a political, social, and institutional agenda which is directly hostile to those same labour law goals. A deregulatory agenda has held sway in the UK for many years, and in the context of workplace safety, it has led to a reframing of the law so as to be more individualized in scope, 123 Christopher Hood, ‘A Public Management for All Seasons?’ (1991) 69 Public Administration 3. 124 R v Sherwood Rise Ltd (unreported, Nottingham Crown Court 09/​02/​2016). 125 R v MNS Mining Ltd (unreported, Swansea Crown Court 19/​6/​2014). 126 Raymond Michalowski and Ronald Kramer, ‘State-​Corporate Crime and Criminological Inquiry’ in Henry Pontell and Gilbert Geis (eds), International Handbook of White-​Collar and Corporate Crime (Springer 2007) 200. 127 Duff, ‘Endangerment’ (n 58) 948. 128 Informal observation suggests that twenty-​three of the twenty-​nine convictions brought to date feature some form of motivational component of this sort. 129 Hawkins (n 3) ch 11.

Workplace Safety and Criminalization  407 non-​universal in application, and business-​oriented.130 In particular, the offences outlined here have been interpreted so as to reinforce certain core assumptions about responsibility in relation to health and safety. First, there is an assumption that ‘risk incidents’ are caused by individual ‘faulty components’ (human errors and breakdowns), particularly at the level of autonomous frontline actors. This places a significant emphasis upon individual actors to exercise voice and make decisions, and locates causal problems beyond the scope of organizational responsibility.131 Second, the regulatory context views regulation as best pursued via ‘polycentric’ governance-​based systems of risk management, within which individual employees are one group of participants among many, and bear equal responsibility for the exercise of safety.132 Within such a view, non-​organizational actors are blamed when things go wrong, and functional distinctions are drawn between ‘autonomous’ individuals who make choices about risk, and the organizations that notionally bear responsibility for them.133 On this view, questions of responsibility are increasingly individualized, so that organizational hierarchies insulate managerial actors from blame, both in relation to regulatory offences, but especially ‘criminal’ forms of liability. Finally, the rights and protections granted to individuals with regard to their health and safety delimit the extent to which those individual actors can rely on the law for protection. As mobilized, rights-​holding agents, individuals should pursue safety through the internalization of ‘safety cultures’ and the invocation of personal rights;134 if they do not, they are at fault. Together, these contextual assumptions underline that responsibility, like water, is a commodity which flows downwards within an organization much more easily than it flows upwards. An example of reframing in line with these contextual assumptions is provided by the issue of mental health and workplace stress which, despite being a regulatory priority, almost never leads to prosecutions, as it is arguably incompatible with criminal law norms of causation, harm, and foreseeability, and is harder to control than most physical hazards.135 Psychosocial risks are prone to being framed primarily as matters of personal resilience and wellbeing, in line with this individualizing narrative, and so apt to be tackled via ‘soft law’ methods.136 As such, the context-​dependency of these offences excludes this issue from the scope of the law. Similarly, prosecuting organizations for manslaughter only when an unequivocal physical ‘boundary violation’ has occurred illustrates the efforts required to challenge voluntaristic assumptions about individual contributory obligations. Only when it is manifestly clear that organizational controls have broken down will the locus of responsibility be shifted onto the corporate form. Similar dynamics can be observed in relation to the emphasis placed onto ‘motive’ in relation to HSWA and CMCHA prosecutions; the need to prove a de facto source of mens rea frames liability as connected to ‘individual’ rather 130 Paul Almond, ‘Revolution Blues:  The Reconstruction of Health and Safety Law as “Common-​Sense” Regulation’ (2015) 42 Journal of Law and Society 202, 221; Anneliese Dodds, ‘The Core Executive’s Approach to Regulation:  From “Better Regulation” to “Risk-​ Tolerant Deregulation” ’ (2006) 40(5) Social Policy & Administration 526; Tombs and Whyte, ‘Deadly Consensus’ (n 52). 131 Almond and Gray, ‘Frontline Safety’ (n 45) 12. 132 Julia Black, ‘Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes’ (2008) 2 Regulation & Governance 137. 133 Almond and Gray, ‘Frontline Safety’ (n 46) 14; Gray, ‘Responsibilization’ (n 108); Tucker (n 110). 134 Susan Silbey, ‘Taming Prometheus: Talk About Safety Culture’ (2009) 35 Annual Rev Sociology 341. 135 Almond and Esbester (n 5) ch 5. 136 Sergio Iavicoli and others, ‘Hard and Soft Law Approaches to Addressing Psychosocial Risks in Europe: Lessons Learned in the Development of the Italian Approach’ (2014) 17 Journal of Risk Research 855.

408  Criminality at Work than systemic causes. And the exclusion of particular ‘lower risk’ industries, and groups of employees (such as the self-​employed) from the reach of enforcement137 again demonstrates that contextual presumptions about voluntarism, responsibility, and risk shape the parameters of the law. Context-​dependency thus means that the laws used to respond to workplace health and safety incidents reinforce, rather than challenge, these tendencies, and distance the legal organization of health and safety, on the one hand, from the experiences of workers on the other. An individualized paradigm of responsibility and fault endures even in these notionally organizational settings; the upwards arrow of accountability, focusing on corporate responsibility, is weakened by the common contextual assumptions that are made about the antecedents of, responsibility for, and nature of the rights affected by, workplace health and safety breaches. It might be argued that the inherently anthropomorphic nature of some of the conceptual foundations of criminal liability, such as character, choice, and motive, mean that it is always likely to constitute a less-​than-​ideal means of responding to collective or systemic forms of conduct. At the same time, however, the causes of this phenomenon are more deep-​seated, originating in the cultural assumptions that underlie the application of organizational concepts within the criminal law. Because the locus of understandings of responsibility within contemporary neoliberal formations tend to reside in individual agency, the decisions and assessments made about fault, even in fields of ostensibly ‘worker-​ protective’ criminalization, tend to circle back to the actions of specified individuals. This renders the criminal law a less-​than-​effective, and often repressive, means of delivering the social goods that underpin criminalization in this particular area. It is only by challenging these broader social and political assumptions about discipline, hierarchy, and control within the workplace that the paradigm of individual agency can be transcended and truly worker-​protective criminalization can occur.



137

Almond, ‘Revolution Blues’ (n 130).

21

The Criminalization of Health and Safety at Work Michael Ford*

A.  Introduction Should a breach of health and safety regulations, in which I include working time legislation, give rise to criminal sanctions? This simple question has in fact received little attention in labour law, taking second place to debates about the benefits of regulation compared with other methods of ensuring compliance. Yet health and safety legislation began with duties enforceable in the ordinary criminal courts, and penal sanctions have always played a prominent part in this area. Civil liability for breach of statutory duty was a later creation of the courts, only conclusively endorsed by the legislature in the Health and Safety at Work etc Act 1974 (HSWA). Now, as a result of reforms in 2013 extinguishing the longstanding right to claim civil compensation for breach of the regulations, the law has come a full circle. The exception to the rule are the regulations on working time, never admitted by recent UK governments to form part of health and safety, which combine in a haphazard fashion civil claims in the employment tribunal with occasional criminal sanctions. Workplace health and safety offences typically possess features which are viewed as troubling by criminalization theorists, illustrated by the contributors to recent volumes on the subject1 and writers, such as Husak, who focus on the problem of ‘overcriminalization’.2 The provisions, which are numerous, fall outside the core mala in se offences; often the legislation imposes positive duties; only proof of risk, not actual harm, is usually required (and in relation to breaches of working time rules the harms may appear trivial); strict liability, in the formal sense of excluding mens rea,3 is common; employers are often vicariously liable for acts of their employees or agents; and the burden of proof for some elements is frequently placed on the defendant. The underpinning normative claims which generate this suspicion are not hard to discern. While the theorists predictably disagree about the precise content of any normative account,4 liberal theories of criminalization share certain fundamental assumptions. Their starting point is the distinctive or essential features of the criminal law, such as its inherently * Professor of Law, University of Bristol; QC Old Square Chambers; [email protected]. I  am very grateful to Alan Bogg and Jennifer Collins for comments and suggestions on earlier drafts, and to Serena Crawshay-​Williams for background research. 1 See especially RA Duff and others (eds), The Boundaries of the Criminal Law (OUP 2010) and Criminalization: The Political Morality of the Criminal Law (OUP 2014). 2 Douglas Husak, Overcriminalization: The Limits of the Criminal Law (OUP 2007). 3 See Stuart Green, ‘Six Senses of Strict Liability’ in Andrew Simester (ed), Appraising Strict Liability (OUP 2005). 4 RA Duff and others, ‘Introduction’ in Duff and others, Criminalization (n 1) 2. Michael Ford, The Criminalization of Health and Safety at Work In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.0021

410  Criminality at Work coercive effect on citizens’ freedom of action, punishment intentionally aimed at making wrongdoers suffer,5 ‘deeply intimidating’ public condemnation,6 or moral wrongfulness.7 On this premise it ineluctably follows that criminalization significantly interferes with the interests of the individual citizen—​both by curbing her freedom of action ex ante or by punishment after the event—​meaning that crimes require strong justifications, regardless of whether they form part of the core mala in se offences or extend into other areas.8 The declaration by the state of criminal sanctions for health and safety regulations cannot of itself provide the necessary justification, which must be sought externally. Even where the threshold of serious moral wrongfulness is crossed, the serious effects of criminalization place restrictions on the form of any offence, such as a high degree of legal certainty, a presumption of innocence, and no strict liability.9 These themes, bread and butter to criminal academics, will strike most labour lawyers as surprising or misplaced when applied to labour regulation. The normative issue to be explained for a labour lawyer is in what circumstances the law should intervene in work relationships to correct inequality of bargaining power, subordination to managerial power, the abuse of civil or social rights, or the potential harm to workers’ welfare.10 The labour lawyer’s focus is on the beneficiary of social laws, not the citizen (typically a corporate employer) whose freedom is constrained by them. Where ‘punishment’ presents itself as a problem, it is mostly in the form of the private disciplinary actions of the employer. Concerns about the type of legal sanction are principally directed to their practical effect in realizing labour standards. Even texts specifically about enforcement of employment rights typically treat criminal law as one technique among others, to be judged solely in virtue of its effectiveness in delivering labour rights and not in virtue of other values.11 The enduring tension between these two perspectives is manifested in existing elements of the rule of law. One such value, owing most to the labour lawyer’s perspective, is the requirement that the laws and rights enacted by a democratic Parliament are achieved in practice, regardless of the precise means. That principle was the normative keystone of the Supreme Court’s recent analysis of the rule of law in the UNISON case.12 It is reflected, too, in the overriding requirement in the European Convention on Human Rights (ECHR) of remedies which, regardless of their precise form, are practical and effective.13 Depending on the circumstances, this goal may require the criminalization of the labour law wrongs14 or civil remedies to overcome the high thresholds required for domestic criminal ­offences.15 Perhaps its fullest articulation is in EU law, where member states have a discretion as to the legal means used to give effect to social rights—​criminal or civil—​provided always 5 Victor Tadros, ‘Criminalization and Regulation’ in Duff and others, Boundaries (n 1). 6 Philip Pettit, ‘Criminalization in Republican Theory’ in Duff and others, Criminalization (n 1). 7 Susan Dimock, ‘Contractarian Criminal Law Theory and Mala Prohibita Offences’ in Duff and others, Criminalization (n 1). 8 For examples, see Pettit (n 6); Tadros (n 5). See the nice summary by Andrew Ashworth, ‘Positive Duties, Regulation and the Criminal Sanction’ (2017) 133 Law Quarterly Review 606. 9 See Ashworth (n 8); Husak (n 2) 20–​21. 10 See, from early days, Paul Davies and Mark Freedland, Kahn-​Freund’s Labour and the Law (3rd edn, Stevens 1983) 15. 11 See, eg, Linda Dickens (ed), Making Employment Rights Effective (Hart Publishing 2012). 12 R (UNISON) v Lord Chancellor [2017] UKSC 51, [2017] ICR 1037 (Lord Reed) [66]–​[74]; Michael Ford, ‘Employment Tribunal Fees and the Rule of Law’ (2018) 47 Industrial Law Journal 1. 13 See art13 ECHR and, eg, Kudla v Poland (2002) 35 EHRR 11, [157]–​[160]. 14 See, eg, Silidain v France (2006) 43 EHRR 16. 15 See, eg, Danilenkov v Russia (2014) EHRR 19, [130]–​[136].

The Criminalization of Health and Safety at Work  411 that the rights are backed by sanctions which are ‘effective, proportionate and dissuasive’ and have a ‘real deterrent effect’.16 But, on the criminalization side of the coin, EU law also recognizes that legal certainty imposes stricter constraints on the domestic courts’ duties to give a conforming interpretation of national law in relation to crimes than it does in relation civil claims.17 The domestic courts’ view of the serious detriment which flows from penal sanctions similarly generates principles such as the strict approach to the interpretation of criminal statutes and the presumption that criminal offences require a guilty mind—​actus non facit reum nisi mens sit rea—​which has informed judicial distaste for offences of strict liability.18 Owing to their historical origins as regulatory laws backed by criminal duties, workplace health and safety laws highlight the tension between the two sets of normative claims. They form part, of course, of a much larger historical narrative, involving large economic transformations, major changes in work organization, struggles between workers, unions and employers, the emergence of the ‘factory’ as an object for legal intervention, and shifts in the legal constitution of labour markets.19 But there are at least two reasons why I think it is illuminating to examine health and safety laws through the different prisms of labour lawyers and criminalization theorists. One is that, so far as I can tell, there has been limited attention in the theoretical writing to the tension between these two perspectives, perhaps owing to the artificial division of academic subjects. Lindsay Farmer, who attempts a reconstruction of the historical values immanent in the criminal law, focuses on what he takes to be the ‘aim’ of the modern institution of criminal law, of securing civil order.20 As a result, he mostly overlooks that some laws do not fit in a single legal box: health and safety crimes, for example, are also part of the ‘institution’ of labour law, with its own distinctive history, practices, and values. The twin values I have identified provide a heuristic device for a rational reconstruction of the normative claims which have underpinned the legislation, governments’ policies, and the judgments of the courts. They also provide a critical lens through which to scrutinize laws, and in particular the recent reforms to health and safety regulations, removing civil liability yet retaining criminal sanctions. Driven by an ideology of deregulation the target of which was removing burdens on business, the reforms simultaneously failed to respect either the constraints of the criminal law or the requirement of effective protection of worker rights. A second reason is that health and safety laws provide a practical, located test of the theoretical positions. While the early factory legislation was famously described by Sidney Webb as ‘a typical example of English practical empiricism’, lacking ‘any abstract theory of

16 See, eg, Case C-​14/​83 Von Colson [1984] ECR 1891, [23]; Case C-​326/​88 Anklagemyndigheden [1990] ECR 2911. 17 See, eg, Case C-​456/​98 Centrolsteel Srl v Adipol GmbH [2000] ECR I-​6007 (AG Jacob) [32]–​[36], Court of Justice, [16]–​[17] (followed by Arden LJ in R (IDT Card Services Ireland Ltd) v Customs and Excise Comrs [2006] EWCA Civ 29, [2006] STC 1252 [111]). 18 See Francis Bennion, Statutory Interpretation (4th edn, Butterworths 2002) Part XVII, 923–​25 and the valuable discussion of Ray Cocks on strict and vicarious liability in William Cornish, Stuart Anderson, Ray Cocks, Michael Lobban, Patrick Polden, and Keith Smith, The Oxford History of the Laws of England, Vol X11 (OUP 2010) 321–​33. 19 See especially Karl Marx, Capital, Volume I (Penguin 1990); Robert Gray, The Factory Question (CUP 1996). For a sample of the contemporary evidence, see Royal Commission Supplementary Report on the Employment of Children in Factories (House of Commons 1834). 20 Lindsay Farmer, Making the Modern Criminal Law (OUP 2016) ch 1; Lindsay Farmer, ‘Criminal Law as an Institution’ in Duff and others, Criminalization (n 1).

412  Criminality at Work social justice’,21 it should not be overlooked that underlying these laws are very fundamental interests: the right to life, physical integrity, and psychological well-​being. If the most obvious manifestations of harms are workplace injuries or fatalities, the interests are also affected by control over working time. The earliest legal restrictions were enacted to protect workers, against a system of unremitting labour resulting in dramatically shortened life expectancy, physical deterioration, disease, and, for children, a lack of education, as Marx explained.22 Today, the empirical evidence confirms the persistent association between long working hours and health problems, such as coronary disease.23 The context permits a critical reflection on the adequacy of the criminalization theories, typically very long on the overarching normative concepts which are meant to channel the law but rather short on how the norms affect actual laws, meaning it is not always easy to work out exactly what offences would be permitted or prohibited. No doubt many theorists, drawing on the classic liberal ‘harm’ principle, would see little problem with criminalizing health and safety offences because the laws protect central welfare interests of individuals.24 But some, it appears, would want them significantly pruned or at least restricted in their form.25 While factual neglect of normative restrictions is no proof of their wrongness, the gap between theoretical norms and historical practice invites close scrutiny of the security of the theoretical foundations. One potential crack has already been identified by Jeremy Horder. For him, the ‘counter-​reformation’ criminalization theorists derive values from the effects of criminalization on individuals but then wrongly deploy the values to scrutinize crimes concerned principally with steering companies in the interest of public goods, where the normative objections fall away.26 The history of health and safety laws may serve to illustrate his theory playing out across time, as the effects of mostly financial penalties on corporate employers broke free of their historical moorings in a criminal law associated with imprisoning individuals. If the recent reforms mark a change in direction, towards freeing employers from the burden of regulation, still they do not mark a return to the values of the criminal law.

B.  Health and Safety Law and Criminalization The earliest health and safety legislation, the history of which has been exhaustively detailed, was backed by exclusively criminal sanctions.27 The Act for the Preservation of the Health and Morals of Apprentices Act 1802 (HMAA 1802) owed its genesis to the sudden

21 BL Hutchins and Amy Harrison, A History of the Factory Legislation (PS King & Son 1903) vii. 22 Marx (n 19) 353–​74. See too Royal Commission on the Employment of Children in Factories, First Report (Parliamentary Papers 1833) 22–​29. 23 For a recent summary of the evidence, see Philip Tucker and Simon Folkard, Working Time Health and Safety:  A Research Synthesis Paper (ILO 2012) accessed 26 July 2018. 24 See the account in Joel Feinberg, The Moral Limits of the Criminal Law Volume 1: Harm to Others (OUP 1984) ch 1 and eg Dimock (n 7) 167-​181. 25 Pettit, eg, would disallow regulatory offences, such as speeding, and corporate liability in general, Pettit (n 6) 143–​44, 150. See too Tadros (n 5). 26 Jeremy Horder, ‘Bureaucratic Criminal Law’ in Duff and others, Criminalization (n 1). 27 For excellent accounts of the history, see Gray (n 19); Hutchins and Harrison (n 21); Maurice Thomas, The Early Factory Legislation (Greenwood Press 1970); Ray Cocks, ‘Safety in Factories, Shops and Ships’ in Cornish and others, History of Laws of England (n 18).

The Criminalization of Health and Safety at Work  413 expansion in the use of pauper children as apprentices in factories, typically working extremely long hours, receiving no education, and frequently suffering serious harm to their health.28 Hence the HMAA imposed duties on the owners of mills and factories to provide clothing and education for apprentices, to wash the walls, and to limit daily working to twelve hours exclusive of meals.29 Enforced by prosecutions in the ordinary criminal courts, the duties accorded with traditional concepts of mens rea as penalties were only imposed where an individual ‘master or mistress . . . wilfully’ breached the Act.30 But HMMA also contained the seeds of measures aimed at effective delivery. The Act had to be displayed in factories;31 on conviction by justices of the peace, the mill or factory owner was required to forfeit a sum of between £2 and £5, half of which was paid to the ‘informer’ (perhaps the earliest form of whistleblower incentivization) and half to ‘overseers of the poor’;32 and by section 9 justices of the peace were required to appoint two persons to be visitors in their area—​the forerunners of the factory inspectorate—​with powers to inspect factories and mills, backed by criminal sanctions for obstruction.33 If a modest intervention, HMAA nonetheless set the model for a new site of legal intervention, the mill or factory. Two themes soon became prominent. The first was improving enforcement of the duties.34 This began soon after HMMA, described as ‘utterly ineffective’ by Hutchins and Harrison.35 The Royal Commission dominated by Benthamites which preceded the Factories Act 1833, restricting the working hours of children and young persons, recognized that both factory owners and parents had a strong economic incentive not to comply with the law as the restrictions would cost them the children’s wages or profits respectively.36 If that meant criminal sanctions were necessary, so were practically effective enforcement mechanisms. To that end the 1833 Act established the inspectors of factories because laws were ‘evaded, partly in consequence of the Want of the Appointment of Proper Visitors’, conferred powers on the inspectors, and required certificates from surgeons as evidence of children’s age and vouchers from teachers as confirmation of education.37 The theme continued with later legislation: Thomas viewed the Factories Act of 1844, for example, as the logical culmination of a series of experiments in effective regulation, in progressively working out how ‘to set up machinery that was, in most respects, adequate to its purpose’.38 Second, as part of the same trend towards making the duties effective, the successor legislation to HMMA gradually shifted from traditional conceptions of criminal liability, imposing increasingly strict duties on factory or mill owners. For example, by section 31 of the 1833 Act, an employer was liable to criminal penalties for breach of most provisions

28 See Hutchins and Harrison (n 21) ch 1; Thomas (n 27) ch 1. 29 HMAA 1802, ss 2–​8. 30 HMAA 1802, s13. 31 HMAA 1802, s12. 32 HMMA 1802, s 13. 33 HMMA 1802, ss 9-​11. 34 Thomas (n 27) chs 8–​10. 35 Hutchins and Harrison (n 21) 17. 36 Royal Commission on the Employment of Children in Factories (n 22) 68–​75; Thomas (n 27) 48–​59. See too Hutchins and Harrison (n 21) 22, 50. 37 Factories Act 1833, ss 11–​21. 38 Thomas (n 27) 222.

414  Criminality at Work whether ‘by himself or by his Servants or Workmen’, without proof of wilfulness.39 This was subject to a power to issue a reduced fine or discharge if it appeared to the inspector or justices ‘that such Offence was not wilful nor grossly negligent’, together with a power to convict an agent or servant in lieu if the offence was committed without the ‘personal Consent, Concurrence or Knowledge of such Master’.40 The pattern continued with the 1844 Act. Absent from many of its offences were requirements of fault, such as intention or recklessness. Some offences, such as the duty to fence machinery in section 60, specifically imposed criminal liability on the occupier alone for breach. In relation to the many other offences, section 41 provided that the occupier of the factory ‘shall in every case . . . be deemed in the first instance to have committed the offence’ unless he could prove he had used ‘due diligence to enforce the execution of the Act’ and that the offence was committed by his agent or employee ‘without his knowledge, consent or connivance’. Echoing earlier provisions, the 1844 Act also enacted a form of evidential presumption in section 24, by making it an ­offence if a child remained for more than nine hours in any place where machinery was used, even ‘without any Evidence of the Employment of such Child’.41 These moves took place, however, in the context of legislation where the penalty was almost invariably a fine, not imprisonment.42 The criminal model adopted for enforcing working time rules of ‘unfree’ child labour then transferred seamlessly to health and safety duties owed to ‘free’ (mostly male) adult labour, but with a focus on a different kind of deserving victim—​the injured worker. The Act of 1844, which extended to women the working hours rules applying to young persons,43 began the journey towards generally applicable safety duties, although by a rather circuitous legal route. Thus section 21 of the Act required certain machinery ‘near to which Children or young Persons are liable to pass or be employed’ to be securely fenced. By section 60, however, the factory occupier alone was liable to pay a penalty where it neglected to fence machinery after receiving notice from an inspector or where ‘any Person’—​not just a child or young person—​suffered injury as a result of machinery which was not securely fenced.44 The Secretary of State had a discretion to pay the penalty awarded under section 60 to the injured person and there were enhanced penalties for repeat offenders.45 Adding to the practical sanctions, inspectors could bring proceedings on behalf of an injured persons to recover damages on that person’s behalf,46 an early example of the kind of power recently deployed in the National Minimum Wage Act 1998.47 Despite the adoption in the legislation of strict duties, vicarious liability, and the imposition of evidential burdens on employers, concerns about crime as a specific form of

39 Wilfulness was not required under the 1831 Labour in Cotton Mills Act: see s 21. Note too that forging a certificate was punishable by imprisonment (s 28). 40 Factories Act 1833, ss 30–​31. 41 See similarly s 18 of the Factories Act 1831, by which a person could be convicted if machinery was operating before 5 am or after 9 pm unless it was proven by a ‘credible’ witness that no person had been employed contrary to the Act. 42 Exceptions were offences of falsifying certificates: see, eg, s 28 of the Factories Act 1833, s 63 of the Factories Act 1844. 43 By s 32 of the Factories Act 1844. 44 By s 59 of the Factories Act 1844 a separate fine of between £5 and £20 was imposed for not fencing machinery absent any injury. 45 Factories Act 1844, ss 60, 65. 46 Factories Act 1844, ss 24–​25. 47 See ss 19–​19G.

The Criminalization of Health and Safety at Work  415 sanction do not appear to have been prominent. Many employers objected to regulation at all, of course: the arguments included pragmatic reasons (children would starve without sufficient hours of work; business would lose out to foreign competitors); moral claims that workers, including children, should labour diligently or that an employer’s duty was to make his business succeed; and nascent laissez-​faire philosophies that property rights were absolute or it was wrong to regulate ‘free’ adult labour.48 But the courts soon imposed their own normative filter, illustrated by the most significant case on the Factories Acts of 1844 and 1847: Ryder v Mills.49 The context of Ryder was the widespread use by manufacturers of a system of relays, in which children, young persons, and women were kept in the factory while machinery was working for up to fourteen hours, which the inspectors considered made it impossible in practice to detect working in excess of the ten-​hour daily limit.50 Section 26 of the 1844 Act was meant to counter this, by stating that hours of work were to be reckoned from the time when any child or young person first began to work in the morning. Unfortunately the Act did not explain clearly when hours ended, and magistrates, not infrequently manufacturers themselves, repeatedly acquitted employers.51 The effect of Ryder v Mills was to decide the important question of the legality of the relay system, reflected in the appearance of the Attorney General for the inspectors. The Attorney General’s utilitarian argument deliberately concentrated on the wider consequences for children and young persons, even though the actual offence concerned women—​a wise move given Parke B’s view that ‘adult females are more than capable of taking care of themselves’. Because the Act was ‘not of a penal but of a remedial character’, he argued it should be interpreted in light of its aim of protecting the health and morals of children. Hence he submitted section 26 meant daily working time should be calculated continuously for all children, young persons, or women from the time any of them began work, to ensure they were not kept in factories for long periods.52 The defendant’s dramatic counter-​argument was that, as well as penalizing the employer, upholding the conviction might suspend manufacturing employment altogether, depriving individuals of the natural right over their labour.53 Parke B accepted that requiring work to end when the first young person stopped working would be more likely to promote effective enforcement by the inspectors, to prevent overworking, and to secure young persons the education ‘which the legislature meant them to enjoy’. But that result would result in a ‘large sacrifice’ of the interests of the factory owners and ‘we cannot assume Parliament would disregard so important a consideration’. To resolve this dilemma, Parke B turned to the principle that a penal statute must be construed strictly because ‘a man is not to be restrained from the liberty which he has of acting as he pleases, and rendered liable to punishment, unless the law has plainly said that he shall be’. In the absence of a sufficiently certain provision as to when the calculation of hours ended, therefore, the factory owners should not have been convicted: ‘a court of justice cannot render a man liable to a penalty merely because it might think it would better

48

Hutchins and Harrison (n 21) ch 1; Gray (n 19) ch 4. 154 ER 1090, (1849) 3 Ex 853. 50 For discussions, see Marx (n 19) 397–​404; Thomas (n 27) 299–​311; Hutchins and Harrison (n 21) 100–​05. 51 Marx (n 19) 401–​04. 52 Ryder (n 49) 1093–​96. 53 ibid 1096. 49

416  Criminality at Work promote the supposed object of the legislature than the provisions of the statute according to their ordinary construction’.54 The effect of the judgment was that section 26 was rendered irrelevant, meaning the relay system continued and women and young persons were in practice often required to be at the factory for fifteen hours each day, making the ten-​hour limit a dead letter.55 It generated strong resistance from working class organizations, which Parliament heeded in quickly passing the Factories Acts of 1850 and 1853 to end the relay system.56 The legislature, once more, gave priority to enforcement. But the principle and underlying normative view in Ryder had the potential significantly to curtail the effective reach and enforcement of criminal health and safety duties. For, on this view, the restraint of liberty and associated punishment of the individual factory owner, the criminal defendant, outweighed the competing aim of effectively protecting the intended beneficiaries of the legislation. In fact, however, the courts soon changed their approach when faced not with appeals against convictions for working time offences, as in Ryder, but with claims brought by or on behalf of actual individuals who had suffered often dreadful physical injuries or fatalities in factory accidents. This was part of a wider process during the second half of the nineteenth century, extending beyond health and safety, in which the courts’ initial outrage at offences of strict or vicarious liability gave way to gradual acceptance of crimes without knowledge or moral fault,57 linked to a shift in their interpretation of the intention of the legislature.58 But in the sphere of health and safety, two distinctive steps were critical in the process by which the courts’ sympathetic gaze switched from the criminal defendant to injured workers or bereaved families, with the consequence that the principle in Ryder shrank almost to vanishing point. First, the courts soon permitted individuals to bring civil claims for injuries caused by breach of safety legislation despite the legislation expressly imposing only criminal sanctions.59 It was in part the inadequacy of those sanctions, even in an Act where the fine could be paid to the injured worker or his family,60 which led the Court of Appeal in Groves v Lord Wimborne to affirm the earlier cases.61 In Groves both AL Smith LJ and Rigby LJ considered that a fine would necessarily correlate to the degree of the employer’s wrongdoing, not the effects of the injury on the worker, potentially resulting in under-​compensation even if paid to the worker. Rigby LJ in addition thought it ‘monstrous’ that a fine capped at £100 would be the total potential sum payable to a worker.62 Regardless of the precise legal route, the effect of the decision was potentially to sanction an employer twice for the same act: once for the offence (based on the degree of its wrongdoing) and again for the effects of the accident 54 ibid 1098–​99 (Parke B). 55 Thomas (n 27) 312–​13. 56 Marx (n 19) 405. 57 See the valuable discussion by Keith Smith, ‘Excluding Fault from Criminal Responsibility:  Strict and Vicarious Liability:  Quasi-​criminal or Regulatory Offences’ in ch 8 of Cornish and others History of Laws of England (n 18). 58 Compare, eg, Massey v Morris [1894] 2 QB 412 (Cave J) with Commissioners of Police v Cartman [1896] 1 QB 655 (Lord Russell). 59 Couch v Steel 118 ER 1193. During the same period, the civil law was putting behind it the doctrine of voluntary assumption of risk which denied workers recovery of damages when injured by their co-​workers: see Priestley v Fowler (1837) 2 M & W 1 and Hutchinson v York Newcastle and Berwick Railway Co (1850) 5 Exch 343, discussed in Michael Lobban, ‘Workplace Injuries’ in Cornish and others, History of the Laws of England (n 18). 60 As under s 82 of the Factories and Workshop Act 1878. 61 [1898] 2 QB 402; see especially 414–​15 (Rigby LJ). 62 ibid 414.

The Criminalization of Health and Safety at Work  417 (based on compensatory principles). While dual liability for torts and crimes is frequent, it is notable that the potential double sanction to which the employer was subject played no part in the courts’ reasoning. The second step was to depart from the principle in Ryder by a somewhat circuitous route. In the context of civil claims the courts did not hesitate to construe safety obligations as imposing absolute obligations on factory owners, unaffected by lack of knowledge, so that an employer could be liable even if it had taken all reasonable steps and the failure could not be explained.63 Occasional, isolated statements by judges that they must adopt any reasonable interpretation which avoided a criminal penalty64 soon appeared as anachronisms, swamped by an incoming tide based on effective protection. When in Harrison v National Coal Board counsel for the employers sought to argue that safety obligations should be construed narrowly because they imposed criminal sanctions,65 Lord Porter rebuffed him by adopting the very argument which had been rejected by the Exchequer Court in Ryder: It was suggested on behalf of the respondents that the Coal Mines Act, 1911, is a measure imposing criminal liability and therefore should be interpreted as throwing no greater burden on the employer than the words compel. It has, however, to be remembered that the Act is also a remedial measure passed for the benefit of workman and must, therefore, be read so as to effect its object so far as the wording fairly and reasonably permits.66

Subsequent authorities similarly held that the protective aim of the legislation was the trump card on construction in civil claims, and implied (without saying so) that the same would apply where a criminal prosecution were brought. In John Summers v Frost, for example, the House of Lords held that the duty to fence machinery in section 14 of the Factories Act 1937 was absolute and applied even if it made the machinery unusable or it was dangerous only to a careless or inattentive worker.67 It was illegitimate to interpret the legislation by implying words which reduced the protection of workers;68 the lack of moral blame on the part of the employers was irrelevant;69 and the fact that the statute was also penal, briefly alluded to by counsel for the employer in argument,70 counted for nothing. By these means, in the context of legislation principally aimed at companies and sanctioned by fines rather than imprisonment, principles based on effective protection of workers’ health and safety pretty much submerged the counter-​principles derived from the criminal law.

C.  The Health and Safety at Work etc Act 1974 The later statutes preserved this legal position as the legislation gradually spread to a wide range of workplaces. The Factories Act 1961, mostly in force when Health and Safety at 63 See Galashiels Gas Co Ltd v O’Donnell [1949] AC 275 (on ‘properly maintained’). 64 See, eg, London and North Eastern Railway v Berriman [1946] AC 278, 313–​14 (Lord Simonds); cf 295 (Lord MacMillan). 65 [1951] AC 639, 644. 66 ibid 650 (it does not appear Ryder was cited in Harrison). 67 [1955] AC 740. 68 ibid 751 (Viscount Simmonds). 69 ibid 762 (Lord Morton). 70 ibid 744.

418  Criminality at Work Work etc Act 1974 (HSWA) was introduced, continued to make the occupier or owner of the factory the primary target of criminal liability for breach of its duties, many of which were absolute but for which the penalty was almost exclusively fines linked to the potential harm or extent of repetition.71 In addition, directors, managers, and others could be personally liable where an offence was committed with their consent or connivance.72 Section 161 continued to provide a defence of ‘due diligence’ to a criminal charge, echoing the provisions of section 41 of the 1844 Act. Other legislation, such as the Office, Shops and Railway Premises Act 1963, adopted the same pattern.73 The HSWA was intended to rationalize, harmonize, and simplify the large body of disparate safety legislation. Enacted by the Heath Conservative administration just before Thatcherism took a grip of the Conservative party,74 it was mostly based on the report of the Robens Committee commissioned by the preceding Labour government.75 At the time, the preference of the report for ‘self-​regulation’ over what it saw as the traditional approach of detailed statutory standards was viewed as a radical break with past legislation.76 But, in terms of its underlying goals, the report in fact exhibited continuity with the previous law—​ that revised legislation, placing more responsibility on employers to regulate themselves, could ‘increase the effectiveness of the state’s contribution to safety and health at work’.77 For the Robens Committee, the highly specific legislation was insufficiently flexible to deal with emergent safety problems; hence higher standards could only be achieved by promoting self-​regulation of those who created the risks, backed by statements of general principles in the legislation and non-​statutory codes of practice.78 Today it might be described as ‘reflexive’ regulation. Criminalization, according to Robens, was a problem not because of the serious effects of punishment but because it failed to improve standards of health and safety: the criminal courts dealt with events after they had happened; prosecutions were rare (3,000 a year in 1970), costly, and time-​consuming; few offences were clear cut or attributable to the recklessness of an individual; and fines were too low.79 Thus the criminal law was not apt for promoting general improvements in health and safety before accidents happened, and nor was it a sufficient deterrent where exemplary punishment was called for.80 These claims were strongly criticized at the time for, among other matters, misunderstanding how the criminal law applied to health and safety offences, in which an individual guilty mind was not required, and assuming a priori that self-​regulation would be an improvement.81 But the normative premise of Robens and its critics was pretty much the same—​ the sole aim of legislation was to achieve higher standards of health and safety—​although

71 See Part XII, and note the increased penalties in s 156(1) and 156(2). The exception was offences linked to falsification of documents such as certificates, punishable by fines or imprisonment: s 159. 72 Factories Act 1961, s 155(5). 73 See Office, Shops and Railway Premises Act 1963, ss 63, 67. 74 See EHH Green, Ideologies of Conservatism (OUP 2002) ch 8. 75 Robens Committee, Safety and Health at Work: Report of the Committee 1970–​72 (Cmnd 5034, 1972); for the background, see Paul Davies and Mark Freedland, Labour Legislation and Public Policy (OUP 1993) 343–​44. 76 For contemporary responses, see RWL Howells, ‘The Robens Report’ (1972) 1(1) Industrial Law Journal 185–​ 96; Anthony Woolf, ‘Robens Report—​The Wrong Approach’ (1973) 2(1) Industrial Law Journal 88–​95. 77 Robens Report (n 75) [41]. 78 ibid [23], [28], [137]–​[138], [142]–​[147]. 79 ibid [256]–​[262]. 80 ibid [262]. 81 See, eg, Woolf (n 76).

The Criminalization of Health and Safety at Work  419 they disagreed about the legal means. Absent altogether were concerns about the effects of criminalization. As enacted, HSWA marked an implicit endorsement by the legislature of how the courts had resolved the tension between effective enforcement and norms of criminalization. First, the HSWA preserved criminal sanctions for breach of the general duties in sections 2–​7 and of related matters, mostly without any requirement of mens rea.82 The more specific duties in regulations made under section 15 HSWA, also giving rise to criminal sanctions, did not require fault by the employer, though sometimes they were framed by reference to standards such as reasonable practicability or what was ‘adequate’.83 Strict liability in regulations, modelled on the factories legislation, continued even after EU law became the driver for workplace health and safety regulations.84 Second, section 47(2) of the HSWA expressly enacted parallel criminal and civil liability where breach of health and safety regulations caused ‘damage’ (defined in section 47(6) as including death, injury, disease or any ‘impairment’ of physical or mental condition), so giving a legislative imprimatur to the ruling in Groves. Third, HSWA built on the existing model of the factory inspectorate, and gave the new inspectors appointed by the relevant authority, usually the Health and Safety Executive (HSE), powers to inspect premises and issue improvement and prohibition notices.85 A breach of such a notice gave rise to a criminal offence, even though notices could be issued based on an inspector’s opinion—​not proof—​that there was a contravention of the statutory provisions.86 More troubling still for the criminalization theorists, a contravention of such a prohibition notice could lead not only to a fine but to imprisonment of up to two years following conviction on indictment.87 For their part, the courts continued to view the legislation through the normative prism of protecting workers’ health and safety.88 In Stark v Post Office89 a postman, injured when his bicycle brake stirrup broke, argued that this was a breach of the duty on employers to maintain work equipment in an ‘efficient state, in efficient working order and in good repair’ in regulation 6 of the Provision and Use of Work Equipment Regulations 1992.90 A renewed attempt to argue that the regulation should be subject to qualifications because it imposed criminal sanctions was quickly rejected by the Court of Appeal, which interpreted the duty as imposing a strict obligation.91 The consequence was that an employer could be liable in civil and criminal proceedings even if there was no explanation of how a defect in equipment arose.92 The courts applied the logic of this analysis even where faced with provisions which gave rise to exclusively criminal liability. In accordance with the aims of the Robens Committee 82 HSWA 1974, s 33. The exception is the secondary liability of a director, manager, or similar person for an ­offence committed by a company, where state of mind is a necessary ingredient: see s 37 and R v Chargot Ltd [2008] UKHL 73, [2009] ICR 263. 83 For an early example, see the Control of Lead at Work Regulations 1980, SI 1980/​1248 (since revoked). 84 See, eg, reg 7 of the Personal Protective Equipment at Work Regulations 1992, SI 1992/​2966; reg 6 of the Provision and Use of Work Equipment Regulations 1992, SI 1992/​2932 (now reg 5 of the replacement Regulations, SI 1998/​2306). For the history, see Jonathan Clarke, Redgrave’s Health and Safety (LexisNexis 2016) 8–​20. 85 HSWA 1974, ss 18–​26. 86 HSWA 1974, ss 21, 22, 33(1)(g). 87 HSWA 1974, s 33(3) and 33(4), as enacted (since amended by the Health and Safety (Offences) Act 2008). 88 Robens Report (n 75) [435] and sch 7. 89 [2000] ICR 1013 (CA). 90 See now SI 1998/​2306, reg 5. 91 Stark (n 89) 1021–​23. 92 See, eg, Jakto Transport v Hall [2005] EWCA Civ 1327, [2005] 11 WLUK 262.

420  Criminality at Work to put in place basic principles applying to all workplaces, sections 2–​4 HSWA enacted a set of general duties owed by employers and those in control of non-​domestic premises towards employees and others. The curiosity of these provisions, from the viewpoint of criminalization, is that they are expressed in very wide and general terms (much more general than those set out in health and safety regulations or in the earlier Factories Acts), imposing duties to ensure the health and safety of employees and others subject to the qualification of ‘so far as is reasonably practicable’, yet they give rise to exclusively criminal sanctions.93 When the issue of their interpretation reached the courts, however, they simply read across the approach which had been adopted in cases such as Groves, even though it was based on civil claims for breach of highly specific regulations. In R v British Steel94 a subcontractor working at British Steel’s plant in Sheffield was killed when a platform, poorly secured by him and a fellow contractor, fell on him. The only involvement of British Steel was that its employee supervised the subcontractors’ work. On British Steel’s appeal against conviction for breach of section 3 HSWA, the Court of Appeal rejected an argument that a company was not liable if it had taken reasonable care at ‘directing mind’ level.95 Rather, according to Steyn LJ, ‘subject to the defence of reasonable practicability, section 3(1) of the Act of 1974 creates an absolute prohibition’.96 Given the aims of the HSWA of protecting health and safety, he said ‘it would drive a juggernaut through the legislative scheme if corporate employers could avoid criminal liability where the potentially harmful event is committed by someone who is not the directing mind of the company’.97 Undeterred by arguments that an employer might be guilty of an offence as a result of an isolated error of a single, low-​level employee, the Court placed its faith in prosecutions not being brought, or a judge not issuing a fine.98 The House of Lords adopted a similar approach in upholding the conviction of an employer that entrusted annual maintenance of its chemical plant to specialist contractors, one of whose employees was burnt.99 Perhaps the most explicit articulation and resolution of the tension between normative theories limiting criminalization and the aims of the HSWA arose in R v Davies,100 a challenge to the reversal of the burden of proof in section 40 HSWA (requiring a defendant to prove it had done all that was practicable or reasonably practicable) based on the presumption of innocence in Article 6 of the ECHR. Adopting the distinction between ‘truly criminal’ and regulatory offences applied by the Canadian Supreme Court,101 the Court of Appeal held that the HSWA was regulatory and served an important social purpose.102 Those subject to the general duties in sections 2–​7 were not disinterested members of the public: rather, ‘in choosing to operate in a regulated sphere of activity they must be taken to have accepted the regulatory controls that go with it’.103 While the Court of Appeal acknowledged the argument for the defence of the potential ‘moral condemnation and opprobrium’ which followed from a conviction, it was an ‘important factor’ that at the time the

93

HSWA 1974, s 47(1). [1995] ICR 586. See too R v Board of Trustees of the Science Museum [1993] ICR 876 and R v Chargot (n 82). 95 Drawing on Tesco Supermarkets v Natrass [1972] AC 153, on the Trade Descriptions Act 1968. 96 R v British Steel (n 94) 593B. 97 ibid 593D-​E. 98 ibid 594A–​D. 99 R v Associated Octel [1996] ICR 972, 977F–​978D (Lord Hoffman). 100 [2002] EWCA Crim 2949, [2003] ICR 586. 101 R v Wholesale Travel Group Inc [1991] 3 SCR 154, cited in R v Davies (n 100) [16]. 102 R v Davies (n 100) [24]. 103 ibid [24]. 94

The Criminalization of Health and Safety at Work  421 offences gave rise to fines, not a risk of imprisonment.104 Consequently, the inroad section 40 made into the presumption of innocence was within the reasonable limits permitted by Article 6.105 Viewed through the twin normative prisms of this article and from greater historical distance, the Robens report, the HSWA itself, and the judgments of the courts interpreting it all display continuity with the predecessor legislation, giving normative priority to effective achievement of health and safety goals (regardless of the empirical results). Any doubts about criminalization were restricted to whether specific criminal duties were an effective means to that end. Even in criminal prosecutions, priority was given to the interests of the actually or potentially injured workers, corresponding with diminished concerns about the effects of criminalization on the employer. The gap between the normative constraints of criminalization and the legislation grew wider still once the Health and Safety (Offences) Act 2008 amended the HSWA so as to make most health and safety offences, including the general duties in sections 2–​7, punishable not only by fines but by substantial periods of imprisonment.106 By a journey which began with permitting injured workers to bring civil claims for breach of legislation and ended with reading duties which imposed exclusively criminal sanctions in accordance with their social purpose, the principle in Ryder v Mills almost disappeared from view.

D.  The New Direction of Recent Policy With the election of the coalition government in 2010 the narrative radically changed, driven by ‘common sense’ concerns about a ‘compensation culture’, 107 a very different conception of the ‘common sense’ of systematic risk prevention which influenced the Robens Report.108 The previous Labour administration had commissioned the Hampton Report to examine ways of reducing the administrative costs of regulatory activity on businesses without compromising regulatory outcomes.109 The report’s recommendations for fewer inspections and more focus on education and advice were strongly criticized;110 but still Hampton devoted an important part of the report to recommendations on enhancing the deterrent value of fines and introducing high administrative penalties,111 consistent with the proposals for tougher sentences in the earlier publication, Revitalizing Health and Safety.112 To the same end, the Labour administration commissioned research by Professor Richard Macrory which, after referring to evidence that ‘criminal convictions have lost 104 ibid [18], [19], [31]. 105 The conclusion of the Court of Appeal and these parts of its reasoning were endorsed in R v Chargot (n 82) [29]–​[30] (Lord Hope). 106 See s 33(4) of the HSWA, as amended, and the new sch 3A to the HSWA. 107 For discussion, see Paul Almond, ‘Revolution Blues:  The Reconstruction of Health and Safety Law as “Common-​sense” Regulation’ (2015) 42(2) Journal of Law and Society 202. 108 Robens Report (n 75) [48]. 109 See Sir Philip Hampton, Reducing Administrative Burdens:  Effective Inspection and Enforcement (HM Treasury 2005). 110 See, eg, Steve Tombs and David Whyte, ‘Reshaping Health and Safety Enforcement:  Institutionalising Impunity’ in Dickens, Making Employment Rights Effective (n 11). 111 Hampton (n 109) 38–​41. 112 Revitalizing Health and Safety (Dept of the Environment, Transport and the Regions 2000) 24–​25, accessed 21 September 2018.

422  Criminality at Work the stigma they once have’ and suggesting that strict liability offences might be part of the cause, proposed reserving criminal prosecutions for the most serious offences and using administrative sanctions elsewhere.113 The reports led to the Health and Safety (Offences) Act 2008, and increased penalties for offences under the HSWA, including imprisonment.114 One can see echoes in Macrory’s reports of Husak’s writing, of how the expansion of crimes in areas which few would condemn dissipates the scarce resource of stigma, so undermining the enforcement of ‘true’ crimes.115 But this was a means to the end of improving health and safety standards, most visible in Revitalizing Health and Safety. The incoming coalition government soon showed that it saw the problem very differently. Shortly after the 2010 general election, the Prime Minister David Cameron requested Lord Young to conduct a review ‘to put some common sense back into health and safety’.116 According to Lord Young’s hyperbolic and dramatic language, ‘a “compensation culture” driven by litigation is at the heart of the problems that so beset health and safety today’, a ‘climate of fear’ that ‘not only blights the workplace but almost every walk of life’.117 The UK had an ‘enviable record’ on health and safety, so that what had to be addressed was the low standing of health and safety in the eyes of the public, the burden of its ‘Kafkaesque’ red tape to small businesses in particular, and the fear of litigation it generated.118 Though Lord Young later conceded the problem was one of perception not reality,119 his recommendations included simplifying risk assessments, consolidating health and safety legislation, and ensuring that EU regulations were not overly prescriptive.120 Effective enforcement, on this view, was no longer the goal: the real problem was the burden of regulation itself. The focus was no longer exclusively on the injured worker: it was the decent employer ‘blighted’ by a plague of excessive and unnecessary legislation who needed help. The explicitly deregulatory agenda accelerated with the publication in 2011 of Good Health and Safety, Good for Everyone, once more premised on the assumption that ‘the burden of health and safety red tape has become too great’.121 The proposed new ‘Health and Safety Framework’, described over five pages, cited no empirical work whatsoever. The only suggestion which might be generously interpreted as aimed at improving enforcement was the proposal that companies found to be in serious breach of the law should pay the costs of inspections.122 That this was really about finance rather than effective delivery was exposed by the proposed reduction of HSE proactive inspections by a remarkable one-​third

113 Richard Macrory, Regulatory Justice:  Making Sanctions Effective (2006) 15, 36–​37, accessed 20 September 2018. 114 For discussion, see Brenda Barrett, ‘The Health and Safety (Offences) Act 2008’ (2009) 38 Industrial Law Journal 73. 115 Husak (n 2) 12. 116 See foreword to Lord Young, Common Sense, Common Safety (HM Government, 15 October 2010) www. gov.uk/​government/​publications/​common-​sense-​common-​safety-​a-​report-​by-​lord-​young-​of-​graffham accessed 3 May 2018. 117 ibid 7. 118 ibid  25–​26. 119 ibid 19, 42. 120 ibid  25–​40. 121 Department of Work and Pensions, Good Health and Safety, Good For Everyone (21 March 2011) 3, 12, https://​assets.publishing.service.gov.uk/​government/​uploads/​system/​uploads/​attachment_​data/​file/​66745/​good-​ health-​and-​safety.pdf accessed 3 May 2018. 122 ibid 10. Now see the Health and Safety and Nuclear (Fees) Regulations 2016, SI 2016/​253, regs 22–​24.

The Criminalization of Health and Safety at Work  423 (or 11,000 inspections annually), not only omitting low-​risk areas (such as textiles) but also areas of ‘concern’.123 In accordance with the same ideological framework, the report referred to the setting up an independent review by Professor Löfstedt to ‘simplify health and safety legislation and . . . further ease the burden on business’.124 In the event, Professor Löfstedt’s report did not quite match the government’s deregulatory agenda and its sympathy for business.125 His overall view was that health and safety regulation played a ‘significantly beneficial role’ and there was no case for radically altering or stripping regulation.126 As a result he identified no more than a handful of regulations which should be revoked, amended, or clarified; made some tentative proposals for research on consolidation; and broadly endorsed the existing systems of inspections and criminal enforcement, though noting that the number of prosecutions was low.127 When Löfstedt turned to consider strict liability laws, it was civil claims he identified as the problem, not criminalization. Referring to evidence that employers were more concerned about the prospect of incidence of civil claims rather than prosecutions and ‘employers do not make a distinction between health and safety regulation and civil law’,128 he thought it wrong that an employer could be held liable to pay compensation regardless of culpability, highlighted by the Stark case.129 To that end, he recommended reviewing strict liability regulations, qualifying them with a standard of reasonably practicable if possible or, if that were not possible, removing civil liability. If enacted, Löfstedt’s proposals would have made a modest inroad into, principally, the few regulatory duties giving rise to strict liability. But the government had other ideas, reflecting a radically different normative framework. In the foreword to the flimsy response to Löfstedt, the then Minister for Employment, the inveterate Chris Grayling, said the government was ‘committed to simplifying health and safety legislation to ease the burden on business’ as part of putting ‘common sense back into health and safety’.130 Encapsulated in repeated references to ‘proportionate’ regulation, the central idea was that employers should be able to weigh the costs of health and safety precautions against the risk. Strict liability was a particular problem here, as the government explained; but this was not because of criminalization. Rather, as the document explained: The [HSWA  1974] is underpinned by the principle of ‘reasonable practicability’, which weighs a risk against the trouble, time and money needed to control it. This allows employers and other dutyholders to exercise judgment on the actions they should take to meet their responsibilities . . . In some health and safety regulations, including those arising from EU law, the duty imposed on the employer is a strict one and no defence of having done all that is reasonably practicable is available. This does not give rise to problems in enforcing criminal liability 123 ibid 9. 124 ibid 12. 125 Ragnar Löfstedt, Reclaiming Health and Safety for all: an Independent Review of Health and Safety Legislation (HMSO November 2011) Annex A (terms of reference). 126 ibid 32. 127 ibid chs 5 and 8, 75–​76. 128 ibid 84, 89. 129 ibid 91–​92. See Stark v Post Office (n 89). 130 The Government Response to the Löfstedt Report (Department of Work and Pensions, November 2011) https://​ assets.publishing.service.gov.uk/​government/​uploads/​system/​uploads/​attachment_​data/​file/​66794/​lofstedt-​ report-​response.pdf accessed 3 May 2018.

424  Criminality at Work under the regulations because HSE’s enforcement policy allows discretion as to whether to prosecute in individual cases. However, in the civil sphere it does have the potential to impact unfairly.131

The reasoning adopts the opposite perspective from the criminalization theorists; but at least it contains some sort of a rationale. It was the next step which exposed the true extent of the deregulatory agenda. In a remarkable leap, the later Impact Assessment decided it was ‘easier’ to remove civil liability from all duties under the HSWA rather than just those which imposed strict liability.132 Quite who decided this is opaque: the only scant reasons are in the Impact Assessment.133 The government argued that changing individual strict liability duties would be ‘complex’ because it would require examining over 200 sets of regulations; removing civil liability as a whole would be significantly more straightforward.134 In practical effect, according to the cost-​benefit analysis, it would reduce the number of claims brought by workers and would reduce the problem of ‘over-​compliance with health and safety regulation’ by employers.135 The actual complexity of targeting only strict liability duties seems minimal, and the risk of under-​compliance of employers with their duties did not figure at all. Professor Löfstedt subsequently pointed out that the government’s approach went further than he had recommended.136 Undeterred, the government pressed on with section 69 of the Enterprise and Regulatory Reform Act 2013, removing the right to bring a civil claim for breach of health and safety regulations, both for regulations made under section 15 HSWA and those in existence at the time the HSWA was enacted, unless the regulations expressly provide for a right of civil action.137 Its route was probably assisted by the judgment of the High Court in R v United Road Transport Union, subsequently upheld by the Court of Appeal, deciding that there was no breach of the EU principles of effectiveness or equivalence owing to the absence of civil sanctions in the regulations implementing EU legislation on drivers’ working time.138 With EU law no longer an obstacle, in the space of a few months the body of law which had been incrementally developed by the legislature and courts from the early part of the nineteenth century was swept aside. Criminal law became the sole means of enforcing health and safety regulations, although supplemented by the common law of negligence. What were the fundamental features of the coalition government’s policies? One was the lack of underlying empirical evidence. Hence the ‘problem’ of over-​compliance with regulations, driven by the perception of a ‘compensation culture’; hence the contention 131 ibid 15. 132 Health and Safety Executive, Strict Liability in Health and Safety at Work Legislation (11 June 2012) (hereafter Impact Assessment), accessed 3 May 2018. 133 Impact Assessment (n 132) [6]‌, referring to the Health and Safety Red Tape Challenge Star Chamber, a body chaired by Cabinet Office which reviewed proposals from the ‘Red Tape Challenge’ set up in 2011. 134 Impact Assessment (n 132) [19]–​[28]. 135 ibid [68], [74], and, on the option adopted, [90], [92]. 136 Ragnar Löfstedt, Reclaiming Health and Safety for all: A Review on Progress One Year On (January 2013). accessed 23 November 2018. 137 See now s 47(2)–​(2B) HSWA. By s 53(1), the ‘existing statutory provisions’ are those in sch 1 to the HSWA, and include the provisions in the predecessor legislation which gave rise to a claim for breach of statutory duty. 138 See R (URTU) v Secretary of State for Transport [2012] EWHC 1909 Admin, [2012] IRLR 941 and, on appeal, [2012] EWCA Civ 962, [2013] IRLR 890.

The Criminalization of Health and Safety at Work  425 that a blanket removal of civil liability would be ‘easier for employers . . . to understand’, meaning it was ‘more likely to have a better impact in changing’ those perceptions and reducing over-​compliance.139 These assumptions expose the underlying shift as ideological. The ‘problem’ for New Labour’s Revitalizing Health and Safety was the slowing rate of reduction of workplace health and safety failures and their high societal cost.140 Although there was a small downwards trend in workplace fatalities and injuries between 2000 and 2010 (probably attributable to declines in heavy industry),141 this played no part in the coalition government’s policies because the ‘problem’ was now framed very differently, as the burdens and inefficiencies of regulation. A good example is Good Health and Safety, which saw the difficulties of health and safety inspections producing effective results in ‘areas of concern’ such as agriculture—​probably the most dangerous industry in the UK in terms of the fatality rate142—​not as a reason for intensifying activity but, on the contrary, as a reason for scaling back inspections.143 Ineffectiveness thus begets inactivity. At a deeper level, the new policies marked the replacement of the historical object of concern, the injured worker, with a new figure: the employer, usually anthropomorphized as a small business owner besieged by red tape. But the switch in focus was not attributable to the concerns about the effects of criminal penalties which so trouble the criminalization theorists. On the contrary, according to Löfstedt, empirical employers were more bothered by civil liability than criminal duties; and for the government, too, strict liability impacted unfairly in the civil not criminal sphere, in which decisions not to prosecute could ensure duties framed as strict turned out to be anything but strict in practice. The normative framework thus broke both with the dominant paradigm based on the effective protection and compensation of workers and with its antecedent model in which the effects of punishment on the employer were prominent. Instead, the policies adopt a new conception of the public good, in which health and safety laws are an increasingly seen as an encumbrance to employers in a free market. To that end, burdensome civil claims were barred, and the retention of serious criminal sanctions was part of the same policy of deregulation: the discretion not to prosecute could render the existence of a criminal sanction irrelevant, and in fact free employers from the problem of ‘over-​compliance’.

E.  The Working Time Directive and Regulations The UK’s recent working time regulations provide a further demonstration of the eclipse of effective achievement of health and safety at work as a legislative goal and the irrelevance of normative concerns about criminalization, though based on different reasons. The deregulatory agenda of the Conservative governments elected after 1979 led to the repeal of the restrictions on the working hours of women (and men) rather than the extension of similar rules to both sexes, conveniently assisted by EU law on sex discrimination.144 The same 139 See Impact Assessment (n 132) [2]‌, [4], [8], [28]. 140 Revitalizing Health and Safety (n 112). 141 HSE, Historical Picture: Trends in Work-​related Ill Health and Workplace Injury in Great Britain accessed 24 September 2018. 142 HSE, Workplace Fatal Injuries in Great Britain 2018, 4–​5  accessed 24 September 2018. 143 Good Health and Safety (n 121) 9. 144 See Sex Discrimination Act 1986 which, as well as repealing the legislation relating to women (s 7), also by s 8 repealed the Baking Industry (Hours of Work) Act 1954, applying to men.

426  Criminality at Work agenda drove the repeal of the legislation on young persons’ working hours,145 as well as the restrictions on the working time of shop workers.146 Little wonder in this context that the Conservative government challenged the vires of the original Working Time Directive147 in UK v EU Council,148 arguing that the Directive was in reality a measure based not on health and safety but on wider social goals which had only been introduced under Article 118a in order to benefit from qualified majority voting. Sulking after its defeat before the Court of Justice, the government belatedly and reluctantly set out complying with its duty to implement the Directive. In common with most Directives, it did not specify the means for doing so, which could be criminal or civil.149 Exhibiting an overwhelming concern with the costs of implementation to the competitiveness of UK businesses, the initial DTI consultation stated ‘[n]‌ew, costly and unnecessary bureaucracy must be avoided’ in enforcing the Directive, leading it to propose enforcement of most rights via employment tribunals, with the few remaining duties dealt with under the HSE’s existing powers.150 The implementation stalled after the general election in 1997, and the tone changed slightly with the election of the New Labour government. Expressing the new administration’s commitment to a ‘flexible labour market underpinned by minimum standards’, the revived consultation proposed a ‘dual’ enforcement system.151 On this model, any right which was framed as an ‘entitlement’ under the Directive was to be enforced by means of individual complaints to employment tribunals. Those provisions which imposed limits on working time or requirements on employers, on the other hand, were to be enforced by means of criminal sanctions backed by HSE and local authority inspections because they were ‘sufficiently similar to current provisions of health and safety law to make it apt to take this approach’.152 In accordance with this categorization, as enacted the Working Time Regulations 1998 (WTR) gave rise to criminal offences for breach of the limits on forty-​ eight-​hour weekly hours and night working, and tribunal claims for infringement of most of the other rights.153 Both governments’ consultation papers paid scant regard to effective enforcement of working time duties. The limited individual incentives to bring claims to enforce working time duties—​for example, where the breach causes no financial loss or where reductions in working time will inevitably lead to less pay (a powerful reason not to bring a claim)—​were ignored altogether.154 Equally irrelevant to the policies and legislation were normative concerns about the proper scope of the criminal law, where the logic of ‘entitlements’ versus ‘limits’ led to the imposition of criminal duties unrelated to the seriousness of the offences, 145 By the Employment Act 1989. See the justifications given by the Secretary of State for Employment, Norman Fowler: HC Deb 11 January 1989, vol 144, cols 855–​57  accessed 11 September 2018. 146 The Shops Act 1950, repealed by sch 17 of the Deregulation and Contracting Out Act 1994. 147 Directive 93/​104/​EC (now Directive 2003/​88/​EC). 148 Case C-​84/​94, EU:C:1996:431, [1997] ICR 443 149 See art 18 of the Directive. 150 DTI, A Consultation Document on Measures to Implement Provisions of the EC Directive on the Organization of Working Time (DTI 1996) paras 2.3–​2.4, 2.10–​2.12. 151 DTI, Measures to Implement Provisions of the EC Directives on the Organization of Working Time (DTI April 1998)  [9]‌. 152 ibid [173] (italics in original). 153 SI 1998/​1833, regs 28–​30. 154 See on this Santos Gomes v Higher Level Care Ltd [2018] IRLR 440: no damages for injury to feelings for breach of WTR.

The Criminalization of Health and Safety at Work  427 sometimes with strict liability.155 There seems to be a normative incoherence in the sanction adopted, unrelated to any public goal. The legislative response appears even harder to rationalize when viewed in light of the later working time legislation, introduced in the specific sectors initially excluded from the Directive and WTR.156 The Merchant Shipping (Working Time:  Inland Waterways) Regulations 2003 adopted a broadly similar approach as WTR, distinguishing ‘entitlements’ (employment tribunal claims) and employer duties (criminal sanctions).157 On the other hand, the original regulations implementing similar working time rules for seafarers in merchant shipping gave rise to exclusively criminal sanctions158 and in their current form only the rights to annual leave are enforced by tribunal claims but with parallel criminal liability.159 In yet another variation, the Civil Aviation (Working Time) Regulations 2004 provide for enforcement of a wide range of rights in the employment tribunal, including general duties which cannot be classified entitlements, with breach of the remaining regulations a criminal offence.160 A good example of the variation in approach is rest periods: employment claims in WTR, on fishing vessels,161 and in relation to cross-​border railways;162 criminal offences alone in relation to civil aviation163 and merchant shipping;164 criminal offences and enforcement by the Secretary of State for road transport;165 and civil liability with a single exception in the inland waterways regulations.166 Good luck to anyone who tries to make sense of this. It is the courts to which we owe the attempt to impose a coherent normative vision on the enforcement of the working time rules. The origin of working time rules in EU law, underpinned by the principle of effectiveness and now boosted by the European Court of Justice’s increased reliance on the Article 47 of the EU Charter,167 has meant that effective enforcement has once more held sway. For example, in R v (URTU) v Secretary of State for Transport the Court of Appeal held that criminal penalties alone were a sufficient remedy for breach of the regulations on drivers’ hours, in part because in some circumstances a civil remedy would not work, such as where an individual driver acted contrary to the instructions of his employer or no recoverable loss was suffered.168 The single attempt to impose constraints in the name of criminalization occurred in the Court of Appeal in Williams v 155 See, eg, regs 7(2) and (6), 8, and 9 of WTR, a breach of which gives rise to criminal offences under reg 28. 156 The history is explained by Rimer LJ in British Airways v Williams [2009] EWCA Civ 281, [2009] ICR 906 [10]–​[15]. 157 SI 2003/​3049, as amended by SI 2017/​1149, regs 17 and 18. See also Maritime and Coastguard Agency, Consultation on Proposed Merchant Shipping (Working Time: Inland Waterways) (Amendment) Regulations 2016, 7, accessed 19 September 2018. 158 The Merchant Shipping (Hours of Work) Regulations 2002, SI 2002/​2125, reg 20 (implementing Directive 1996/​63/​EC). 159 The Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018, SI 2018/​58 (implementing among other measures Directive 2009/​13/​EC), regs 25 and 26. 160 SI 2004/​756, regs 12 and 18 (the pattern of work provisions in reg 7(1) and (2)(b) give rise to civil claims under reg 18). 161 The Fishing Vessels (Working Time: Sea-​fisherman) Regulations 2004, SI 2004/​1713, regs 7, 19. 162 The Cross-​Border (Railway Services) Working Time Regulations 2008, SI 2008/​1660, regs 3–​7, 17. 163 SI 2004/​756, n 160, regs 10, 7(2)(a), 12. 164 SI 2018/​58, n 159. 165 The Road Transport (Working Time) Regulations 2005, SI 2005/​639, regs 7, 8, 16, 17. 166 See (n 157) regs 10–​10B, 17, and 18 (reg 10B(2) is enforced by criminal sanctions). 167 See especially Case C-​214/​16 King v Sash Window EU:C:2017:914, [2018] ICR 693. The Charter has horizontal direct effect: see Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62, [2017] ICR 1327. 168 R (URTU) v Secretary of State for Transport (n 138) [44]–​[57] (Davis LJ).

428  Criminality at Work British Airways.169 In doubting that EU or domestic law required any particular level of pay in respect of annual leave, Rimer LJ relied in part on the fact that criminal sanctions applied to the inland waterways regulations, and the ‘criminal law is required to be certain and employers are entitled to know what they must or must not do to avoid prosecution’.170 But when the case reached the Supreme Court, Lord Mance said he was ‘unimpressed’ by this argument, dismissing the problem of a prosecution as either inexistent or unlikely to arise in practice.171 Once more, the stigma or punishment associated with criminal sanctions turned out to exert little pull on the courts. The latest word on the subject is R (FBU) v South Yorkshire Fire and Rescue Authority.172 In judicial review proceedings, the Fire Brigades Union challenged the imposition of ‘Close Proximity Crewing’ in certain fire stations, arguing it was in breach of both regulation 6 WTR, on length of night work, and regulation 10, on rest breaks. The claim faced the obvious hurdle that each regulation had an alternative enforcement mechanism: a prosecution for breach of regulation 6(2)173 or an employment tribunal claim for breach of regulation 10.174 The HSE had declined to enforce regulation 6 and no claims had been brought in the tribunal in relation to regulation 10. Kerr J held there was a breach of both regulations, but the judgment displays a curious dissonance. On the one hand, Kerr J granted a declaration of a breach of regulation 10, stating that the breach could not be sufficiently addressed in the tribunal because it ‘cannot vindicate the rule of law by granting declarations of unlawfulness. It can only secure observance of the law in individual cases.’175 On the other, he refused to grant a declaration for the breach of regulation 6, despite the inability to bring a private prosecution,176 because that would have the effect of depriving the Authority of ‘important safeguards’ present in criminal proceedings, such as ‘the presumption of innocence, the burden of proof, and the criminal standard of proof ’.177 It is not clear Kerr J was correct on this point. In the case on which he relied, R v DPP ex parte Camelot (in which he appeared as junior counsel) the Divisional Court held there was a flexible jurisdiction to grant declaratory relief of criminal conduct, even if the factors generally pointed strongly against it.178 The facts were not greatly in dispute before Kerr J, and it is hard to see why the procedural protections to which he referred would have any significant role to play in light of the approach taken to health and safety offences. If the judgment gives some weight to the effects of criminalization, it is hard to see how there is any practical moral difference between a reasoned judgment concluding criminal conduct has occurred and taking the small further step of issuing a formal declaration to that effect.



169 See British Airways v Williams (n 156). 170

ibid [28]. British Airways v Williams [2012] UKSC 43, [2012] ICR 1375 [17] [22]. 172 [2018] EWHC 1229 (Admin), [2018] IRLR 717. 173 Regs 28(1), 29(1). 174 Reg 30. 175 FBU (n 172) [128]. 176 Reg 29C. 177 FBU (n 172) [109]–​[111]. 178 [1997] 4 WLUK 132. 171

The Criminalization of Health and Safety at Work  429

F.  Conclusion As an end-​note, I want to draw out some general conclusions. The history shows how from an early stage the effects of criminalization on the employer lost their normative prominence. Taking their cue from the legislator but in some respects going further (such as carving out an action for breach of statutory duty), the courts lost sight of the criminal defendant and instead turned their attention to protecting and compensating the injured worker. Parliament then condoned this trend in the HSWA and subsequent case law further reinforced it: both strict criminal offences and those worded in wide, general terms were construed in accordance with their aim, of protecting health and safety. The courts’ position has not changed even though now many offences under the HSWA are punishable with significant terms of imprisonment and not just fines. By this means, the goals of effective achievement of health and safety standards and compensation of injured workers overshadowed any counter-​principles derived from the criminal law. The approach can be justified by various factors: the vital interests of workers at stake, the social costs of workplaces injuries, deference to the enactment by a democratic Parliament of increasingly strict or general duties, and the rule of law, of ensuring that ‘the law of the land [becomes] a rule of the factory’.179 Theorists, such as Farmer, who draw on the internal values of the criminal law risk ignoring these competing values derived from labour law; and any theory which would restrict the reach of the criminal law in this area has to explain why the principles counting against criminalization outweigh effective achievement of health and safety standards. Overall, I suspect the criminalization theorists have paid too much attention to the criminal defendant and too little to the citizen who is vulnerable to harm through breach of social laws. Workplace health and safety laws highlight tensions immanent in the law to which the theorists may have paid insufficient regard. In recent years, the normative model based on achieving, above all, the protection of workers’ health and safety has come under strain. But this has had very little to do with the issues which bother criminalization theorists. Soon forgotten by the courts, principles derived from the criminal law and the effects of punishment have had (so far as I can tell) a negligible influence on government policy and legislation in this area. I suspect this is no accident, and partly reflects the fact that the theoretical concerns do not exert much actual normative pull in this context. In agreement with Horder,180 I think it is doubtful that norms which derive their force from individual punishment or restrictions on citizens’ liberty should extend to what are mostly (but not exclusively) financial penalties imposed on corporate employers, aimed at steering them in accordance with public goods of high importance. Instead, the problem of the injured worker has been replaced with a new problem, this time mostly of the government’s making, of the employer over-​burdened with regulations which result, especially, in excessive compensation paid to unregenerate civil claimants. Criminal sanctions are much less of a problem because the discretion not to prosecute (or not even to investigate in the first place) can reduce their practical effect. In the process, it seems to me, recent governments have mostly ignored both effective enforcement and the values of the criminal law. The working time legislation is one example, in which the

179 180

Per Stephenson LJ in Bux v Slough Metals [1973] 1 WLR 1358, 1371. Horder (n 26).

430  Criminality at Work adoption of civil or criminal sanctions was based on thin reasons and is not easy to rationalize ex post facto in any principled way. Another is the 2013 reforms, which preserve an employer’s criminal liability for strict liability offences or crimes of wide scope yet simultaneously eliminate the worker’s right to compensation for breach of the standards, so managing to offend the values of the criminalization theorists and the labour lawyer. Far from being reserved for the most serious wrongs, criminal sanctions have been retained for health and safety offences in order to lessen the burdens on employer, as part of an overall policy of deregulation.

22

Accessory Liability for National Minimum Wage Violations in the Fissured Workplace Alan Bogg and Paul S Davies*

A.  Enforcement in Crisis: The Limits of Primary Liability The Middlesex University report, Unpaid Britain, estimated that at least 2 million workers are losing over £3 billion in unpaid holiday pay and wages each year. On any view, these figures are staggering.1 The report’s lead author, Nick Clark, described this as a situation of ‘wage default on an industrial scale’.2 Many of the victims of wage default are workers being paid below the minimum wage in circumstances of extreme social and economic deprivation. It is unlawful to pay below the minimum wage. Minimum wage breaches can also trigger criminal liability. The UK Labour Market Enforcement Strategy 2018/​19 is an extremely significant moment in the development of a public enforcement strategy for labour standards. It represents the first systematic conceptualization of the nature and scale of enforcement problems in the UK labour market. The Report recommends increasing the scale of civil penalties for serious cases of non-​compliance with National Minimum Wage (NMW) violations.3 The Report recognizes that there are few prosecutions for NMW breaches: to date, there have only been fourteen prosecutions since the legislation was introduced in 1999.4 It recommends that prosecutions might be deployed more effectively for very serious cases of labour market violations, using publicity to maximize their deterrent effects.5 We are broadly in agreement with these proposals. Nevertheless, we think there is value in pausing to reflect on the structure of liability in any new enforcement strategy. The standard paradigm in employment law focuses on a bilateral relationship between an employer duty-​bearer and a worker right-​holder. There is a neat correlativity of rights and duties. This paradigm continues to exercise a strong influence over enforcement policies. The challenge is to design the right mix of incentives and sanctions to ensure that the employer meets the duties owed to its workers in the bilateral relation. There is undoubtedly much more to be done in improving enforcement within this context, through the proper * We are grateful to Jen Collins, Serena Crawshay-​Williams, Mark Freedland, and Tess Hardy for very helpful comments on a draft. 1 Nick Clark and Eva Herman, ‘Unpaid Britain:  Wage Default in the British Labour Market’ (Middlesex University November 2017) https://​unpaidbritain.org/​2017/​11/​30/​unpaid-​britain-​wage-​default-​in-​the-​british-​ labour-​market/​ accessed 16 May 2019. 2 ibid. 3 David Metcalf, UK Labour Market Enforcement Strategy 2018–​ 2019:  Full Report (Home Office and Department for Business, Energy & Industrial Strategy 9 May 2018) 55  accessed 16 May 2019. 4 ibid 61. 5 ibid 63. Alan Bogg and Paul S Davies, Accessory Liability for National Minimum Wage Violations in the Fissured Workplace In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.0022

432  Criminality at Work resourcing of public agencies, credible risks of prosecution for serious violations, legal aid and ‘access to justice’ for workers, and so forth. However, we think that enforcement discussions have been skewed by the dominance of this bilateral paradigm. For example, a recent Guardian report suggested that suppliers to one in ten British companies were failing to pay the minimum wage.6 These lead companies are often not employers in an obvious sense, in that they are not in a direct employment relationship with the workers in their supply chains. They are nevertheless powerful economic actors whose commercial practices can affect the working conditions of the many thousands of workers employed by firms in their commercial networks. There might be a cascade of exploitation in these arrangements, which include subcontracting, franchising, and supply chains. Economically powerful lead companies exploit smaller firms that are clustered in highly competitive markets, and the resulting squeeze puts those firms in a position where it is impossible to operate profitably while meeting basic employment standards for their directly employed workforce. In these situations, should lead companies get off the hook given their apparent complicity in serious exploitation? English law already has an answer to this question. In certain circumstances, secondary parties can be liable where they have assisted or encouraged the principal in perpetrating the primary wrong. This model of liability is called accessory liability. It is a form of liability that is well developed in English criminal law and private law. Yet it has been relatively invisible in UK employment law.7 UK employment law has been in thrall to the paradigm of primary liability focused on the employer. Accessory liability is much more highly developed in the Australian system of labour law, and we consider that comparative model later in the chapter. The focus in this chapter is on accessory liability in the domain of criminalization. There is already scope for accessory liability in English criminal law in relation to labour market regulation. For example, section 14(4)(h) of the Immigration Act 2016 identifies accessory liability for various listed labour market offences including offences under the National Minimum Wage Act. Accessory participation in these offences is a ‘trigger offence’ for Labour Market Enforcement Undertakings and Orders. However, although our current concern is the criminal law, we think that accessory liability should also be developed within the context of civil breaches. There is much to be said for making the fullest use of liability in the civil law, securing reparation for wrongs against workers by enforcing their rights, before turning to the criminal law. Nevertheless, the principles of accessory liability have been developed principally in the field of criminal liability. There are sound analytical reasons to begin here, even if strategic enforcement focuses more on accessory liability in the wider context of general employment law. We first examine the role of accessory liability within the fissured economy, identifying its underlying principles and its distinctive value in ascribing liability to lead companies. We then examine the existing law on accessories, and the current scope for using that law 6 Michael Savage, ‘Workers Pay the Price as Big British Companies Squeeze their Suppliers The Guardian (18 August 2018) accessed 16 May 2019. 7 During the preparation of this chapter, the decision in Antuzis v Houghton [2019] EWHC 843 (QB), [2019] 4 WLUK 95 was handed down. Although not concerned with criminal liability, Mr Justice Lane treated two defendants (D2 and D3) as personally liable for inducing breaches of contract between the employing company (D1) and the workers in respect of their national minimum wage entitlements. This is an important recognition of the role of accessory liability for civil breaches under the minimum wage legislation.

Accessory Liability for NMW Violations  433 to impose liability on lead companies. In so doing, we draw upon the Australian experience with accessory liability. In the final concluding section, we propose a draft statutory provision for accessory liability in the context of minimum wage violations. Putting this form of liability on a statutory footing, as part of a wider labour market enforcement strategy, will raise awareness of accessory liability as an enforcement option. This is important, given the lack of familiarity with accessory principles in employment law enforcement. It also clarifies some thorny issues under the current law, such as the ‘knowledge’ requirement for accessory liability. While it would be foolish to suggest that accessory liability is a panacea for the crisis of enforcement in the fissured economy, we do contend that it should form an important part of a comprehensive enforcement strategy.

B.  Enforcement Strategies in the ‘Fissured’ Labour Market The emergence of the ‘fissured workplace’ in modern labour markets is now central to explaining and responding to the crisis of enforcement in employment law.8 David Weil has described fissuring as a process whereby lead companies shed direct employment through a variety of organizational and contractual forms. For much of the twentieth century the modern company was structured around a model of direct employment organized through large internal labour markets. Recent decades have witnessed a significant contraction in direct employment. Capital markets have created intense pressures on lead companies to focus on their ‘core competencies’, and to divest functions that are not integral to those competencies. This has had significant effects on the organization of employment. Lead companies are using different contractual models, such as franchising, subcontracting, and supply chains. These contractual forms enable them to shift responsibility for labour standards to subcontractors, franchisees, and suppliers. At the same time, those lead companies have used their extensive market power, and the opportunities provided by modern technology, to exercise significant control over production processes and standards while shedding employment responsibilities (and associated costs of direct employment). Fissuring has had profound effects on the labour conditions of workers in indirect employment. As Weil explains, [S]‌hedding the tasks and production activities to other businesses allows lead companies to lower their costs, since externalizing activities to other firms (particularly those operating in more competitive markets) eliminates the need to pay the higher wages and benefits that large enterprises typically provided.9

By setting prices in its commercial contracting arrangements with smaller firms in highly competitive markets, the lead company has a significant influence on the setting of wage rates in those subcontracting firms.10 The responsibility for payment of the minimum wage rate remains with the ‘employer’ (the subcontracting firm, the franchisee, the supplier down

8 David Weil, The Fissured Workplace: Why Work Became so Bad for so Many and what Can Be Done to Improve it (Harvard University Press 2014). 9 ibid 11. 10 ibid ch 4.

434  Criminality at Work the supply chain) in a bilateral relation with a ‘worker’. The economic reality, however, is that the lead company’s market behaviour will determine whether the worker receives the minimum wage from her employer. It is important, therefore, that the allocation of legal responsibilities for minimum wage compliance are aligned with economic realities in the fissured labour market. Take the following scenario of simple fissuring: X is a lead company. It subcontracts its cleaning operations to Y, which operates a cleaning franchise. Y engages Z, a cleaner, who is employed under her contract as a self-​employed independent contractor. X has threatened not to renew its commercial contract with Y unless there are further reductions in the contract price. Y is desperate not to lose the contract so agrees to the price reduction, and X makes no enquiries into the ability of Y to meet its minimum wage duties.11 X and Y enter into a new contractual arrangement on that basis, and Z is paid below the minimum wage. Which entity, if any, is liable for the failure to pay the minimum wage?

There is a sophisticated literature on enforcement strategies in the fissured economy. Much of the focus has been on expanding the scope of primary liability.12 This usually involves widening the scope of the ‘employer’ concept, which is the entity that owes primary duties to the worker. In this context, the lead company is treated as an ‘employer’ for the purposes of the minimum wage entitlement. There are four regulatory techniques associated with this ‘primary liability’ strategy: ‘sham’ doctrine; the concept of ‘joint employment’; the ‘functional employer’; and targeted statutory extensions of primary liability to contracting parties. We examine the application of each to our simple fissuring scenario. The first is the ‘sham’ doctrine. In the English courts, the ‘sham’ doctrine has directed the courts to examine the ‘true’ or ‘real’ agreement between the parties, where this is disguised by the formal written documentation.13 This has been described by the Supreme Court of the UK in Autoclenz as a ‘purposive’ approach to the legal characterization of work contracts. It has been important in exposing false self-​employment arrangements. In our scenario, this sham doctrine might be effective in displacing the written documentation’s characterization of Z as self-​employed. Unfortunately, the fissuring literature suggests that this will afford insufficient protection to Z even if Z is treated as a worker of Y. This is because Y’s compliance is dependent upon its commercial arrangements with X. The intense competitive pressures on smaller firms such as Y means that ‘noncompliance with a gamut of workplace standards is often the end result’.14 The sham doctrine must be complemented with regulatory strategies that address the allocation of legal responsibilities owed to the worker as a bearer of rights. In other words, the 11 Drawing upon Israeli statutory terminology, Guy Davidov describes such a scenario as a ‘losing contract’: see Guy Davidov, ‘Indirect Employment: Should Lead Companies Be Liable?’ (2015) 37 Comparative Labor Law and Policy Journal 5, 12. See further Weil 136–​42. 12 There are other regulatory approaches, of course. For example, the US Fair Labor Standards Act 1938 makes provision for a ‘hot goods’ embargo where goods are produced in violation of federal labour standards: for discussion, see Brishen Rogers, ‘Towards Third-​Party Liability for Wage Theft’ (2010) 31 Berkeley Journal of Employment & Labor Law 1. This might also be an area where freestanding ‘failure to prevent’ offences might be useful in imposing responsibilities on lead companies. For other examples of ‘failure to prevent’ offences, see, eg, s 7 of the Bribery Act 2010 (failure to prevent bribery) or ss 45 and 46 of the Criminal Finances Act 2017 (failure to prevent facilitation of UK or foreign tax evasion offence). 13 Autoclenz v Belcher [2011] UKSC 41, [2011] 4 All ER 745. 14 Weil 17.

Accessory Liability for NMW Violations  435 crucial enquiry is to ascertain the relevant duty-​bearers in a given regulatory context. An important concept in this regard is the ‘joint employer’ doctrine. This is well established in US law under various labour standards statutes. According to Alan Hyde, the ‘joint employer’ doctrine addresses itself to the control and supervision of the employees’ work by the lead company, alongside supervision and control by the direct employer.15 Where the work is integral to the lead company’s commercial production and where it is the dominant purchaser of the labour, then in conjunction with supervision and control there will usually be strong support for a finding of joint employment.16 An extension of this ‘joint employer’ idea is where the lead company has effective control over the activities of the direct employer rather than the workers themselves. In this situation, Hyde has proposed a form of vicarious liability for the labour torts of the direct employer where the lead company ‘has the whip hand in structuring employment, the power to insist on better standards, and the pockets to compensate victims’.17 Accordingly, where the statute provides for ‘joint employer’ status, it might be possible to extend primary liability to X on the basis that X and Y are joint employers. This will be easier to do in certain types of fissuring, such as franchising, where supervision and control by the lead company is a dominant purpose of the arrangement. In other forms of fissuring, such as subcontracting, it might be more difficult to identify control. The standard approach would scrutinize control by X over Z as a basis for ascribing ‘joint employer’ status to X. Alternatively, Hyde’s vicarious liability approach would examine the supervision and control exercised by X over Y. A third possibility is Jeremias Prassl’s proposal for a ‘functional’ approach to employer status.18 There may be multiple employers in a given commercial arrangement. This is ­because different employer functions (eg inception and termination of the contract of employment; providing work and pay; managing the enterprise internal market) may be performed by distinct entities in a commercial arrangement. Where an entity performs a certain employer-​function, Prassl argues that it is appropriate to ascribe the legal obligations corresponding to that function to that entity. It is possible for different employer-​ functions to be disaggregated, and the corresponding duties distributed amongst different actors. This functional approach allows for a more precise distribution of relevant duties than the ‘joint employer’ concept, by assigning duties to functions. This notion of an ‘employer function’ imposes limits on the scope of primary liability. For example, Prassl argues: [T]‌ermination of a commercial supply contract . . . would not be the exercise of an employer function, as neither the relationship between the supplier and producer nor the action of not placing further orders falls within the scope of employment law.19

15 Alan Hyde, ‘To what Duties Do Global Labour Rights Correlate? Responsibility for Labour Standards Down the Production Chain’ in Yossi Dahan, Hanna Lerner, and Faina Milman-​Sivan (eds), Global Justice and International Labour Rights (CUP 2016) 209, 215–​18. For a recent defence of ‘joint employment’ within the context of the fissured workplace, see Cynthia Estlund, ‘Rethinking Autocracy at Work’ (2018) 131 Harvard Law Review 795, 824. 16 Hyde, ‘Responsibility for Labour Standards’ (n 15) 215, discussing Zheng v Liberty Apparel Co 355 F3d 61 (2d Cir 2003). 17 Alan Hyde, ‘Legal Responsibility for Labour Conditions Down the Production Chain’ in Judy Fudge, Shae McCrystal, and Kamala Sankaran (eds), Challenging the Legal Boundaries of Work Regulation (Hart 2012) 83, 94. 18 Jeremias Prassl, The Concept of the Employer (OUP 2014). 19 ibid164.

436  Criminality at Work This limitation would seem to absolve X of primary liability as an employer because X is not exercising any employer functions in our scenario. The negotiation of commercial supply contracts is not an employer function. Finally, it is possible to extend primary liability through specific statutory interventions. The statutory imposition of ‘joint and several liability’ has often occurred through specific statutory interventions targeted at fissuring in particular sectors. For example, Davidov discusses legislation in Israel that imposes liability on clients in the security and cleaning sectors where the subcontracting firm (as the direct ‘employer’) is not complying with its employment duties.20 As Davidov notes, this extension of liability does not occur through an attribution of ‘employer’ status to the lead company. Rather, the lead company is treated as a guarantor of the employer’s obligations under the relevant legislation. The Director of Labour Market Enforcement (DLME) also discusses examples of joint liability in the European construction sector where lead companies might be jointly liable for non-​payment of minimum wages by contractors in the supply chains.21 Reflecting back on the simple fissuring scenario, the basic problem with a ‘primary wrong’ analysis is that it is not so obvious that X is a primary wrongdoer. Or, to use the terminology in the labour law literature, X is not acting as an employer towards Z. As such, the extension of employer status to X involves a fictional attribution of primary liability. We think that this might account for some of the instability around the concept of joint employment in the US context at the current time. According to Hardy, the US jurisprudence is ‘inherently unstable and uncertainty abounds’.22 When courts are being asked to strain beyond the ordinary and natural boundaries of the concept of employer, instability is inevitable because the interpretive exercise of making things up is antithetical to rule of law values. The statutory imposition of joint liability at least has the virtue of dispensing with the fiction that X is an employer. However, these interventions are carefully tailored to specific sectors of the labour market. This is not promising as a general basis for lead company liability in the fissured economy. Moreover, joint liability is particularly unsuitable where the responsibilities of the lead company are being enforced under criminal law, and where considerations of blame and culpability are rightly paramount. If X is to incur liability, we suggest that it would be better to view X as an accessory to Y’s primary wrong. The gravamen of accessory participation is the culpable encouragement or assistance of another party’s primary wrong. Accessory liability is derivative. It is based upon the accessory party’s causal contribution to the commission of the primary wrong. Knowingly assisting or encouraging a subcontractor to breach employment laws is a distinctive type of wrong to the subcontractor’s primary breach. These differences should be reflected in the structures of legal liability.

20 Davidov (n 11) 11. 21 See the discussion of Germany, Italy, and the EU in Metcalf, Labour Market Enforcement Strategy (n 3) 85. 22 Tess Hardy, ‘Big Brands, Big Responsibilities? An Examination of Franchisor Accountability for Employment Contraventions in the United States, Canada and Australia’ (2019) 40 Comparative Labor Law and Policy Journal 285, 312.

Accessory Liability for NMW Violations  437 In England and Wales, the model of accessory liability has been rather neglected in the sphere of civil liabilities for breaches of employment law.23 Liability is based upon the statutory specification of primary rights that regulate the contractual relation between a worker and an employer. These primary rights in employment protection statutes are increasingly underpinned by criminal laws that criminalize statutory violations in certain circumstances. The criminal offence is attached as an auxiliary offence to civil liability under the national minimum wage legislation, which would require X to be an employer of Z.24 This conceptualization of criminal liability resembles the underlying structure of wrongs in employment law. That is to say, the primary wrong of an employer provides the gateway into its principal liability for certain serious breaches of labour standards. To date, little attention has been paid to the accessorial contribution of other powerful economic actors to those primary wrongs. The fissured economy literature suggests that adding further criminal liability as an auxiliary backing to existing forms of primary civil liability is unlikely to be effective in promoting compliance. By contrast, accessory liability will often be a more appropriate way of holding the lead company to account for employment breaches by the direct employer. There are four key principles that underpin accessory liability in English employment law: regulatory effectiveness; causation; culpability; and fair labelling. The scope of application of these principles will depend upon whether civil or criminal accessory liability is at issue. The principles of culpability and fair labelling are especially important in relation to criminal accessory liability. The principle of regulatory effectiveness requires that regulatory intervention should be targeted where it is most likely to improve legal compliance. This principle is central to Weil’s analysis. It has also been adopted by the DLME.25 There must be ‘prioritization’ of public resources so that public enforcement is targeted efficiently (eg where wrongdoing is widespread and/​or particularly harmful). Regulatory interventions should also be selected in order to maximize their deterrent effect. It is better to achieve systemic impacts, identifying key points of leverage so that compliance can be achieved across many firms simultaneously. From this perspective, enforcement against lead companies with high turnovers that have a dominating presence in their spheres of economic activity should be prioritized. Their market behaviour is critical in influencing the compliance of many smaller firms with which they have commercial arrangements. This is also supported by a range of pragmatic considerations. It often makes more sense to pursue the accessory where the primary wrongdoer may be insolvent or where there are large numbers of primary wrongs but a single dominant accessory party.26 This might be the case where many smaller firms have been pressurized into ‘losing contracts’ by a single lead company. This principle is very important in relation to accessory liability in civil law. Its role is more circumscribed in the context of criminal liability, where considerations of blameworthiness and culpability are 23 Although see now Antuzis v Houghton [2019] EWHC 843 (QB), [2019] 4 WLUK 95. 24 There is a specific statutory extension for agency workers in s 34 which applies if the individual is not classified as a ‘worker’ of either the ‘agent’ or ‘principal’. In these circumstances, s 34(2) provides that ‘the other provisions of this Act shall have effect as if there were a worker’s contract for the doing of the work by the agency worker made between the agency worker and—​(a) whichever of the agent and the principal is responsible for paying the agency worker in respect of the work; or (b) if neither the agent nor the principal is so responsible, whichever of them pays the agency worker in respect of the work’. 25 Metcalf, Labour Market Enforcement Strategy (n 3) 17. 26 Paul S Davies, Accessory Liability (Hart 2015) 3–​4.

438  Criminality at Work more important. Nevertheless, even in the criminal law context, this principle operates as an important negative constraint. That is to say, even if criminalization is justified in principle, it should be avoided where criminal regulation is unlikely to be effective in reducing offending behaviour. The principle of causation requires a causal connection between the accessory and the primary wrongdoer’s wrong. In our scenario, lead company X’s market behaviour must have some causal impact on employer Y’s labour law violations. This reflects the position that if there is no such causal link, there is no basis for holding X responsible as an accessory to Y’s wrongs. In the context of criminal liability, this seems to run into an immediate problem of a voluntary intervening act by subcontractor Y breaking the chain of causation. In R v Kennedy (No 2),27 for example, the House of Lords treated the ‘free, deliberate and informed’ act of the victim, as absolving the defendant of causal responsibility for the death. However, the scope of that decision should not be extended too far. The very existence of accessory liability represents an exception to the principle of novus actus interveniens, and cases on accessory liability continue to refer to a causal element.28 Where the lead company has actively encouraged or assisted the direct employer to engage in violations of labour standards, the establishment of a causal link between X and Y should be relatively straightforward.29 On the other hand, there is less likely to be a causal connection in situations where there is a long supply chain mediated through complex chains of commercial contracts between different commercial entities.30 Where there is assistance or encouragement by omission, the causal enquiry will also be more difficult. In line with the principle of regulatory effectiveness, enforcement agencies ought in any event to be focusing their attention on more active instances of participation. The principle of culpability is necessary for criminal accessory liability. The stigma of a criminal conviction and imposition of punishment should be restricted to parties who are blameworthy. Accordingly, it is not appropriate to criminalize the market behaviour of lead companies simply on the basis that they have deep pockets or significant commercial leverage. Lead companies must be sufficiently blameworthy to justify the stigmatic and punitive dimensions of criminalization. The highest degree of blameworthiness attaches to intention and knowledge. Intentional wrongdoing is likely to be unusual in the context of fissuring. The relevant culpability is more likely to be ‘wilful blindness’ to the plight of workers employed in contracting firms.31 This should still be sufficient culpability for the purposes of criminal liability for accessories, and we shall return to this later in the chapter. Finally, the principle of fair labelling demands that criminal liability should reflect moral distinctions between different types of blameworthiness and distinct categories of wrong.32 In the context of fissuring, for example, we should avoid describing lead companies as 27 [2007] UKHL 38, [2008] 1 AC 269. 28 See, eg, R v Mendez [2010] EWCA Crim 516, [2011] QB 876; R v Stringer [2011] EWCA Crim 1396, [2012] QB 160; R v Gnango [2011] UKSC 59, [2012] 1 AC 827 [90]. See too Sanford Kadish, ‘Complicity, Cause and Blame: A Study in the Interpretation of Doctrine’ (1985) 73 California Law Review 323, 405; Robert Sullivan, ‘First Degree Murder and Complicity—​Conditions for Parity of Culpability between Principal and Accomplice’ (2007) 1 Criminal Law and Philosophy 271, 277; John Gardner, ‘Complicity and Causality’ (2007) 1 Criminal Law and Philosophy 127. 29 Davidov (n 11) 21. 30 ibid 22. 31 Interestingly, the DLME observes that ‘it is all too easy for the brand name to turn a blind eye to what is happening further down the supply chain.’ Metcalf, Labour Market Enforcement Strategy (n 3) 84 (emphasis added). 32 Andrew Simester and others, Simester and Sullivan’s Criminal Law (6th edn, Hart 2016) 32–​33.

Accessory Liability for NMW Violations  439 ‘employers’ if they are not in fact employers, in order to shoehorn them into primary liability. Accessory liability is a distinctive form of wrongdoing, with its own structure and moral significance. For example, there is some imprecision in the DLME’s discussion of ‘joint liability’. This seems to encompass the Australian system of accessory liability and ‘joint and several liability’ in the construction sector in some European countries.33 It is important not to confuse the different categories of liability, as their rationales and constitutive elements may be distinct. Eliding the two, for example by the fictional attribution of ‘employer’ status to a lead company as a primary wrongdoer, involves a significant moral cost. This is particularly important in the criminal law. ‘Joint liability’ that involves no culpability on the part of a lead company should have no role in the criminal law, even if such liability is used as an enforcement tool in the civil law. Undifferentiated analysis of ‘joint liability’ can obscure these important differences between the specific demands of criminal and civil law. Nevertheless, wrongs should be labelled fairly in the criminal and the civil law. The fair labelling principle has close connections to the Rule of Law. It contributes to ‘moral clarity’ in the formulation of legal norms,34 and this is a virtue in criminal and civil law. Accessory liability will often be the most appropriate form of liability for lead companies in the fissured economy in the circumstances of our minimum wage scenario. Two fundamental legal questions must then be addressed. The first concerns the different modes of participation in another’s primary wrong: what will be sufficient to satisfy the conduct requirement for accessory liability? Lead company X might argue it is simply engaged in hard bargaining. This is lawful activity in a liberal market economy. Is it legitimate to criminalize commercial activity of this nature when it would be otherwise permissible in the general law of contract? The second concerns the degree of fault or culpability necessary for accessory liability. Is intention and knowledge required? Does knowledge extend to situations where the lead company turns a ‘blind eye’ to the likelihood of violations in its supply chains? And should we insist upon a more stringent fault element for criminal accessory liability than civil accessory liability? In the next section, we will examine the existing rules regarding the actus reus and mens rea for accessory liability. It is important to remember that civil and criminal liability can intersect in a variety of ways. For example, the criminal offence of non-​payment of minimum wage is itself linked to the underlying civil duties in the relevant employment protection statutes. Furthermore, criminalization can provide a gateway into further forms of criminal liability. This is particularly true of accessory liability in UK employment law. Under the UK enforcement regime, accessory participation in a National Minimum Wage Act criminal offence is itself a ‘trigger offence’ for a ‘labour market enforcement order’.35 The breach of such an order can constitute a further criminal offence.36 We must always be vigilant to the dangers of cascading criminalization, so it is always important to keep these wider regulatory connections in view.

33 Metcalf, Labour Market Enforcement Strategy (n 3) 84. 34 On ‘moral clarity’ and the rule of law, see John Gardner, ‘Rationality and the Rule of Law in Offences against the Person’ (1994) 53 Cambridge Law Journal 502. 35 Immigration Act 2016, s 14(4)(h). 36 Immigration Act 2016, s 27.

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C.  The Structure of Criminal Accessory Liability The principles of accessory liability are well established and apply generally throughout the criminal law.37 The contours of the law need to be highlighted for two main reasons. First, in order to understand when prosecutions may be brought against lead companies, or perhaps directors of lead companies, without any further reform. This is important: successful prosecutions against accessories may well have a deterrent effect and act as a strong incentive for lead companies to ensure that no minimum wage violations are committed within their supply chains.38 Secondly, the limits of the current law must be appreciated in order to assess whether a broader approach should be adopted in the context of the offences considered in this chapter. This broader reform would require statutory intervention, and at the end of the chapter we set out what a statutory provision might look like. It is important to distinguish accessory liability from other common law doctrines such as co-​principals, vicarious liability, and inchoate liability. Where each defendant commits some of the conduct element of the crime, and together they commit the crime, each is liable as a co-​principal. That is not accessory liability, which demands that one party participate culpably in an offence committed by another.39 Nor should vicarious liability and accessory liability be confused. In R v Huggins, Raymond CJ said: It is a point not to be disputed, but that in criminal cases the principal is not answerable for the act of the deputy, as he is in civil cases: they must each answer for their own acts, and stand or fall by their own behaviour.40

A defendant should only be liable for his or her own actions. This is consistent with accessory liability, but not vicarious liability. It is also important to distinguish accessory liability from inchoate forms of liability, such as conspiracy41 and the offences in Part 2 of the Serious Crime Act 2007. That statute establishes that an inchoate offence is committed where the lead actor does an act capable of assisting or encouraging the commission of an offence and intends to assist or encourage its commission, for example.42 Such offences might usefully be prosecuted in situations where a lead actor encourages a subcontractor to commit various offences, and rather than going along with that plan the subcontractor contacts the police. Such whistleblowing is likely to be unusual. Subcontractors will be reluctant to turn their back on contracts, and lead actors are rarely explicit about the underpayment of workers in the supply chain. It is perhaps more likely that prosecutions could result from disgruntled subcontractors, who have been unsuccessful in tendering for work, reporting on unscrupulous lead actors. 37 They also apply in the various compartments of private law. We hope to examine accessory liability for non-​ criminal breaches of labour standards in subsequent work. 38 Similar considerations apply with other forms of business networks, such as franchise systems: see, eg, Tess Hardy, ‘Good Call: Extending Liability for Employment Contraventions Beyond the Direct Employer’ in Ron Levy and others (eds), New Directions for Law in Australia: Essays in Contemporary Law Reform (ANU Press 2017). 39 A defendant might be prosecuted as a principal or, in the alternative, as an accessory: see, eg, R v Mercer [2001] EWCA Crim 638, [2001] 3 WLUK 420. But the sentence may differ depending upon whether the defendant is convicted as a principal or accessory (with the exception of the mandatory life sentence for murder): R v Broadbridge (1983) 5 Cr App Rep (S) 269 (CA). 40 R v Huggins (1730) 2 Str 883, 885. 41 Criminal Law Act 1977, s 1. 42 Serious Crime Act 2007, ss 44–​46.

Accessory Liability for NMW Violations  441 Inchoate liability under the Serious Crime Act 2007 is not insignificant. Nor is conspiracy. In the context of supply chain liability, both serve to remind lead actors that their conduct may be punished under the criminal law regardless of whether the subcontractor ultimately pays its workers below minimum wage. But it is important to note that inchoate liability is different from common law accessory liability: inchoate liability is not parasitic upon the commission of a primary offence. Indeed, inchoate offences are most likely to be prosecuted where the principal offence has not occurred, and no victims’ rights have been infringed. The present focus is on whether lead actors should be held responsible, and consequently punished, for the actual harm caused by paying workers below the minimum wage. Inchoate liability therefore obscures the real gravamen of the lead company’s wrongdoing, which lies in its harmful impact on labour rights in the fissured labour market. Furthermore, the requirement of intention will not capture many instances of culpable market behaviour, which might be better understood as involving ‘wilful blindness’ rather than intentional wrongdoing. For these reasons, the inchoate offence does not provide a suitable general model for criminalization in this context, although it has real value as a residual category for the most serious forms of intentional wrongdoing Accessory liability is derivative in the sense that it is parasitic upon an offence committed by another party. The basis of accessory liability in English law is to be found in section 8 of the Accessories and Abettors Act 1861: Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.43

Although this statute applies only to indictable and not summary offences (pertinent examples include summary offences under the National Minimum Wage Act 1998) exactly the same language is used in section 44 of the Magistrates’ Courts Act 1980: ‘A person who aids, abets, counsels or procures the commission by another person of a summary offence shall be guilty of the like offence’. These statutory provisions set out the actus reus of accessory liability. The four conduct elements—​‘aid’, ‘abet’, ‘counsel’, and ‘procure’—​continue to provide the basis of the criminal law of accessories.44 These are often now phrased in the more modern language of assistance, encouragement, and procurement. They clearly illustrate that in order to be an accessory a party must participate in the commission of a principal offence. On some facts, it will be relatively easy to establish that a lead actor satisfies the requisite elements of accessory liability. For example, the subcontractor, Y, might explain that it will have to pay its workers below the minimum wage, but the lead company, X, is content to enter into the contract with Y regardless of this fact. In such circumstances, X knows that the offence will be committed, and (at least tacitly) assists or encourages its commission. Indeed, in some cases X may play a more active role in suggesting that Y can ensure that the contract is profitable by paying its workers below the minimum wage. In these circumstances, X might successfully be prosecuted as an accessory. Such a prosecution would be 43 As amended by the Criminal Law Act 1977, s 65(7), sch 12. 44 See, eg, R v Gnango [2011] UKSC 59, [2012] 1 AC 827 [13] (Lord Phillips of Worth Matravers PSC and Lord Judge CJ, with whom Lord Wilson JSC agreed).

442  Criminality at Work consistent with the key principles already identified: X played an important causal role in the offence committed by Y; X is culpable; X can is labelled fairly as an accessory; prosecuting X seems well-​suited to ensure regulatory effectiveness. Successful prosecutions against lead companies, or their directors, would send a clear message to the wider business community that actors should be very wary about becoming involved in national minimum wage violations. Nevertheless, in many cases the participation of the lead actor may not be so strong. The lead actor may simply subcontract its cleaning services, use its economic power to negotiate a ‘losing contract’ with the subcontractor, and not discuss the issue of wages at all. In such a scenario, it is much more difficult to be clear that the lead actor has ‘aided, abetted, counselled or procured’ an offence of paying below the minimum wage. Admittedly, some cases do suggest that it does not take much for a defendant to be found to have assisted or encouraged an offence. For example, in R v Giannetto,45 the Court of Appeal did not criticize a judge who thought that a person could be found guilty as an accessory if all he did, upon being told by the principal of the principal’s plan to commit a crime, was to pat the principal on the back and say ‘Oh, goody!’. That might well seem dubious, however. More convincing is the recognition by the Supreme Court in R v Jogee that [T]‌here may be cases where anything said or done by [the accessory] has faded to the point of mere background, or has been spent of all possible force by some overwhelming intervening occurrence by the time the offence was committed.46

It would be consistent with general principles of causation47 for accessory liability only to arise if the conduct element played a more than minimal role in the commission of the primary offence.48 It is only in such circumstances that an accessory can properly be considered to bear some responsibility for the primary offence. There may be a general concern that the conduct of the lead company represents ‘mere background’ rather than a more than minimal causal contribution to the primary offence. This may be one reason why few prosecutions have been brought against lead actors as accessories to offences lower down the supply chain: the prosecution may not be confident in proving that the lead actor has aided, abetted, counselled, or procured the offence. However, the lead actor does provide the subcontractor with the opportunity to hire others, and may exert severe pressure on the subcontractor to pay them less than the minimum wage. Such facilitation may be sufficient to constitute assistance. Moreover, in some circumstances there clearly will be encouragement. Indeed, where the contract price is such that the subcontractor will necessarily only be able to pay below the minimum wage, the lead actor does bring about the primary offence. It seems preferable to recognize a broad actus reus in this context. After all, lead companies do bear some responsibility for violations of the national minimum wage requirements in their own supply chains. But the scope of liability may be

45 R v Giannetto [1997] 1 Cr App Rep 1 (CA), 13. 46 R v Jogee [2016] UKSC 8, [2016] 2 WLR 681 [12]. See too R v Stringer [2011] EWCA Crim 1396, [2012] QB 160 [52]. 47 cf R v Cato (1976) 62 Cr App Rep 41 (CA). 48 Glanville Williams, Criminal Law:  The General Part (Stevens & Sons 1953) 294. See too Keith Smith, A Modern Treatise on the Law of Criminal Complicity (Clarendon Press 1991) 82–​88; Kadish (n 28) 362–​63.

Accessory Liability for NMW Violations  443 narrowed by reference to the mens rea requirements, which reflect the demands of the general principle of culpability in criminal law. Although neither section 8 of the Accessories and Abettors Act 1861 nor section 44 of the Magistrates’ Courts Act 1980 mention mens rea at all, it is clear that strict liability would be inappropriate. A party’s freedom of action should only be restricted through accessory liability if that party bears some responsibility for the primary offence (through the actus reus) and is culpable in some way (through the mens rea). Unfortunately, the mens rea for accessory liability is difficult to define with precision. In R v Jogee, the Supreme Court said that ‘the mental element in assisting or encouraging is an intention to assist or encourage the commission of the crime and this requires knowledge of any existing facts necessary for it to be criminal’.49 This is a high threshold. However, it is difficult to be sure exactly what ‘intention’ requires. It has always been clear that the accessory must intend his or her conduct. But the better view is that the accessory does not need to intend that those acts assist or encourage the principal’s conduct, or that the principal offence be committed. The fact that the defendant is indifferent about whether or not the principal commits an offence should not matter. In Jogee, the Supreme Court cited with approval decisions such as National Coal Board v Gamble50 and Attorney General v Able51 which support this view;52 in the latter, Woolf J commented that ‘[a]‌n intention to assist need not, however, involve a desire that [the principal offence] should be committed or attempted’.53 It is suggested that it should be sufficient if the defendant knew that the primary offence would be committed. The Supreme Court in Jogee apparently approved54 of the decision in Johnson v Youden.55 In that case, Lord Goddard CJ said that ‘[b]‌efore a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence’.56 In any event, even if the mens rea is ultimately framed in terms of intention rather than knowledge, it is likely that wherever the accessory knows the essential matters of an offence, intention will readily be inferred. This mental element is, sensibly, very demanding. An accessory does not commit a free-​ standing offence itself, and should not have to operate constantly in fear of unwittingly committing a criminal offence as an accomplice. But where the defendant knows that it is participating in a criminal offence, then similar concerns to protect that party’s freedom of action do not, generally, apply.57 Significantly, Jogee is clear that recklessness is too low a threshold when seeking to establish the culpability of accessories: parties should not be convicted as accessories if they only foresaw a possibility that another person might commit an offence. That would intrude too greatly upon potential defendants’ freedom of action. The very narrow mens rea for accessory liability is probably a further reason why criminal prosecutions are rarely brought against lead actors in the context of fissuring involving 49 [2016] UKSC 8, [2016] 2 WLR 681 [9]‌. 50 [1959] 1 QB 11, [1958] 3 WLR 434. 51 [1984] QB 795, [1983] 3 WLR 845. 52 See further Davies (n 26) ch 3. 53 Able (n 51) 811. 54 Jogee (n 46) [16]. 55 [1950] 1 KB 544 (DC), [1950] 1 All ER 300. 56 Youden (n 55) 546. For further consideration of difficulties involved in a knowledge requirement when considering lead actors, see Section D. below. 57 For consideration of a defence of acting reasonably—​cf s 50 of the Serious Crime Act 2007—​see Section E below.

444  Criminality at Work illegal activity. It may well be very difficult to prove that the lead actor knew that the primary offence would occur. Often, that party may be just as happy if no offence is ever committed. The lead actor will normally be indifferent about whether workers lower down the supply chain are paid above or below the minimum wage. It cares about maximizing its gains through its commercial contracts, and it may not care about the position of workers who are not directly employed by it. Moreover, the lead actor’s disinterest in the payments of workers within its supply chain may mean that it simply does not know what payments will be made by its subcontractors, nor whether an offence will be committed at some point in its supply chain. Given the difficulties in establishing both the actus reus and mens rea for accessory liability, it is understandable why prosecutors may decide not to prosecute lead actors as accessories for offences committed by its subcontractors.58 But such prosecutions remain possible in principle, and can usefully be brought against unscrupulous companies who deliberately enter contracts at such low prices, knowing that the only way the subcontractor will be able to perform is by paying its workers below the minimum wage. It is suggested that criminal prosecutions are desirable in these serious ‘losing contract’ cases in order to ensure that the lead actor is properly punished, and to deter other companies from acting in a similar manner. The criminal liability of accessories is not addressed in the DLME’s discussion of criminalization, which is strongly focused on the criminal liability of principals. Given the central significance of fissuring from an enforcement perspective, this represents something of a lacuna. The net of liability for accessories is cast very narrowly by the criminal law at present. This is understandable due to wider concerns about accessory liability catching relatively innocent parties who are only tangentially involved in the commission of a primary offence. However, it may be that the particular context of lead actors in fissured workplace scenarios warrants a different, broader approach. Some guidance for how liability might be expanded can be gleaned from the Australian experience. Although the focus of the Australian statutory framework is on the civil rather than criminal context, the ideas underpinning the regulatory approach adopted may well be applicable in this jurisdiction too. After all, a regulatory approach to enforcement is currently being pursued in the UK, although with less apparent fervour than in Australia. In the context of fissured working arrangements, the DLME has acknowledged that ‘changes are necessary in this area to improve labour enforcement’.59 However, the Director’s recommendations are focused upon ‘joint responsibility’ and a cooperative approach to non-​compliance, whereby the lead actor is encouraged to try to sort out any issues in its supply chain which are not disclosed publicly.60 This may be a pragmatic and workable compromise, which has been unsurprisingly welcomed by businesses since it is not at all onerous or intrusive.61 But such focus distracts from the core reason for imposing liability upon lead companies: their culpable participation in an offence. This has been recognized as crucial in Australia.

58 For criticism of the role of prosecutorial discretion in cases of accessories, see, eg, Joshua Dressler, ‘Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem’ (1986) 37 Hastings Law Journal 91. 59 Metcalf, Labour Market Enforcement Strategy (n 3) 83. 60 ibid 87. 61 ibid 87.

Accessory Liability for NMW Violations  445

D.  Broadening Liability: Lessons from Australia The Fair Work Act 2009 (Cth) established the Fair Work Ombudsman (FWO) in Australia. The FWO can employ a number of enforcement strategies, including investigations, campaigns, litigation, compliance notices, and enforceable undertakings. Given budgetary constraints, the FWO has tended to engage in targeted campaigns,62 and resolved to focus on the role of accessories.63 The FWO has been true to its promise. It has launched inquiries into various sectors,64 such as the horticultural sector and the use of migrant overseas workers,65 trolley collectors in supermarkets,66 and cleaners in supermarkets.67 Natalie James, the FWO until 2018, has been keen to highlight the issue of accessorial liability in a number of speeches.68 She has explicitly recognized a desire to look beyond individual company directors when considering accessory liability,69 expanding its focus to lead actors.70 Forty-​six of fifty matters filed by the FWO in 2015–​16 involved accessories.71 A key weapon in the armoury of the FWO has been the ability to issue enforcement undertakings. These are statutory agreements between the FWO and another party in relation to alleged breaches of the Fair Work Act 2009. The FWO can enter into such an undertaking if it has a ‘reasonable belief ’ that there has been a breach and the undertaking is given by ‘the person in relation to the contravention’.72 Significantly, enforcement undertakings are published on the (excellent) website of the FWO. They have provoked interest from the

62 John Howe, Tess Hardy, and Sean Cooney, The Transformation of Enforcement of Minimum Employment Standards in Australia: A Review of the FWO’s Activities from 2006–​2012 (Centre for Employment and Labour Relations Law Melbourne Law School 2014) 9–​10  accessed 16 May 2019. 63 Fair Work Ombudsman, A Report on the Fair Work Ombudsman’s Inquiry into the Labour Procurement Arrangements of the Baiada Group in New South Wales (Commonwealth of Australia, 2015) 3, 28–​29  accessed 16 May 2019. See too a speech given by the Australian Ombudsman:  Natalie James, ‘Risk, Reputation and Responsibility’ (Australian Labor and Employment Relations Association Conference, Gold Coast, Queensland, 29 August 2014): ‘We are using accessorial liability more and more, so that we can hold individuals involved in contraventions to account.’ See generally, Fair Work Ombudsman, ‘Litigation Policy’ (Commonwealth of Australia 2018) esp 4–​5  accessed 16 May 2019; Fair Work Ombudsman, ‘Compliance and Enforcement Policy’ (Commonwealth of Australia 2018)  esp 26–​27  accessed 16 May 2019. 64 See, eg, Hardy, ‘Good Call’ (n 38). 65 Fair Work Ombudsman, Inquiry into the Labour Procurement Arrangements (n 63). 66 See, eg, Fair Work Ombudsman v Al Hilfi [2016] FCA 193. 67 Fair Work Ombudsman, An Inquiry into the Procurement of Cleaners in Tasmanian Supermarkets (Commonwealth of Australia, 2018) accessed 16 May 2019. 68 For example, Speech of Natalie James, ‘Supporting Compliance in Far North Queensland—​Reflections from the Fair Work Ombudsman’ (Australian Human Resources Institute, Cairns, 13 July 2017) accessed 16 May 2019; ‘It takes more than wanting to do the right thing—​The Fair Work Ombudsman’s approach to accessorial liability’ (Lander and Rogers Seminar Presentation 10 March 2017)  accessed 16 May 2019; ‘Regulation of Work and Workplaces:  The Fair Work Ombudsman’s Role in the Development of Workplace Law’ (Australian Labour Law Association National Conference 2016, 4 November 2016)  accessed 16 May 2019. 69 Australian Labour Law Association National Conference 2016 (n 68) 5–​6. 70 Although this should not obscure the potential to bring proceedings against individual directors: see, eg, Fair Work Ombudsman v Step Ahead Security Services Pty Ltd [2016] FCCA 1482. 71 Lander and Rogers Seminar Presentation (n 68) 3. 72 FWA 2009, s 715(1) and (2).

446  Criminality at Work wider media and may operate as a general deterrent.73 However, it should be noted that whilst undertakings may ‘be superior at engendering long-​term compliance, they also risk being exposed as a too-​soft option where the “stick” of stronger mechanisms are not effectively enforced’.74 It is important that criminal prosecutions still be brought by the state where appropriate.75 It is only really through judicial clarification that a clear sense of the boundaries of the law in this area can be discerned.76 The crucial provision of the Fair Work Act 2009 concerning accessory liability is to be found in section 550: Involvement in contravention treated in same way as actual contravention

(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. (2) A person is involved in a contravention of a civil remedy provision if, and only if, the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or (d) has conspired with others to effect the contravention.

This is a statutory form of accessory liability. Since its basis is in statute rather than common law, the contours of liability can be modified from the common law roots applicable more generally.77 There are many Australian statutes which provide for a form of accessory liability,78 and in this respect the Fair Work Act 2009 is not unusual. The conduct element for accessory liability is ‘involvement’, which is defined in (a)–​(d). The differences between these provisions is not clear. For instance, it is not entirely clear how ‘procurement’ in (a) differs from ‘inducement’ in (b).79 More significantly, it may be 73 Rosemary Owens, ‘Temporary Labour Migration and Workplace Rights in Australia’ in Joanna Howe and Rosemary Owens (eds), Temporary Labour Migration in the Global Era (Hart 2016) 402. 74 ibid. 75 Although the FWO cannot bring criminal prosecutions but only civil penalty proceedings. 76 See generally Tess Hardy, ‘Who Should Be Held Liable for Workplace Contraventions and on What Basis?’ (2016) 29 Australian Journal of Labour Law 78, 90; Tess Hardy and John Howe, ‘Chain Reaction: A Strategic Approach to Addressing Employment Non-​compliance in Complex Supply Chains’ (2015) 57 Journal of Industrial Relations 563; Tess Hardy and John Howe, ‘Too Soft or Too Severe? Enforceable Undertakings and the Regulatory Dilemma Facing the Fair Work Ombudsman’ (2013) 41 Federal Law Review 1. 77 It should also be noted that the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth) introduced a new s 558B into the Fair Work Act, which holds a ‘responsible franchisor entity’ liable for prescribed contraventions of the Fair Work Act by their franchisees where they knew or could reasonably have known that the contraventions would occur and failed to take reasonable steps to prevent the contravention. The ambit of this provision is narrow and limited to the context of franchisors. It significantly expands the scope of liability since it broadens both the conduct element and mental element, the latter seemingly being satisfied by mere negligence (for further discussion see T Hardy, ‘Shifting Risk and Shirking Responsibility? The Challenge of Upholding Employment Standards Regulation within Franchise Networks’ (2019) 32 Australian Journal of Labour Law 62). That generally seems inappropriate for accessory liability, especially in the criminal context, and is best explained on a different basis. Whether statutory reform in England should adopt a similar approach is considered in Section E below. 78 See, eg, Australian Consumer Law, s 236; Competition and Consumer Act 2010, s 82. See generally Joachim Dietrich and Pauline Ridge, Accessories in Private Law (CUP 2015) ch 10. 79 Davies (n 26) 29–​31.

Accessory Liability for NMW Violations  447 that (c) expands the conduct element beyond the strictures of the common law: being ‘in any way, by act or omission, directly or indirectly, knowingly concerned in . . . the contravention’ may more readily encompass a lead actor in the context of offences committed in fissured working arrangements. In a different context the Australian courts have held that passively standing by may be sufficient for the conduct element of being ‘involved in’ a contravention, provided the defendant knows of the contravention.80 Nevertheless, such conduct may also be sufficient to fall within ‘aid’ or ‘abet’, such that this provision may not strictly be necessary. In any event, the approach adopted in Australia may also be appropriate when considering liability in the fissured workplace in England and Wales, given the economic power of lead actors and the leverage they enjoy over smaller entities in the supply chain. Powerful lead actors should be encouraged to play an active role in ensuring that minimum labour standards are enforced. The Australian FWO has defended ‘an expansionist approach for the regulator’ since ‘the community expects that the law will have an effective response to some of the serious stories we have seen in our court cases and the newspapers in recent times’.81 Lead actors should be ‘taking on greater responsibility in certain higher risk labour markets where low skilled, often migrant or young, labour is involved’.82 A wide conduct element may be accepted because the scope of liability is most naturally restricted by a narrow mental element. The courts have demanded actual, rather than constructive, knowledge of the essential matters of the contravention.83 A high fault element is consistent with general principles of accessory liability: a lead actor who unwittingly participates in an offence should not be punished. Negligence is not an appropriate standard for accessory liability in any form.84 But what, precisely, must the lead actor know? Must the lead actor know the amount workers are being paid by subcontractors? Must the lead actor also know that the payments are below the level set by the national minimum wage? What if the lead actor turns a blind eye to the relevant offences? The Australian cases have not yet clearly enunciated the proper approach to adopt. Actual knowledge is generally thought to encompass ‘wilful blindness’ but not ‘recklessness or negligence’.85 After all, a party should not be able to escape censure by deliberately turning a blind eye to known facts.86 It is telling that Sir David Metcalf used the language of ‘turning a blind eye’ in his discussion of supply chain enforcement.87 However, Taylor and Andelman have rightly observed that:

80 See, eg, Sutton v A J Thompson Pty Ltd (1987) 73 ALR 233, 241. For general discussion, see FWO v Priority Matters Pty Ltd [2017] FCA 833 [99]–​[130]. 81 Australian Labour Law Association National Conference 2016 (n 68) 10. 82 Lander and Rogers Seminar Presentation (n 68) 2. 83 FWO v Devine Marine Group Pty Ltd [2013] FCA 1135 [44]–​[46], [2014] FCA 1365 [177]; Potter v Fair Work Ombudsman [2014] FCA 187 [79]–​[89]. In Yorke v Lucas (1985) 158 CLR 661 the Australian High Court applied the approach taken in the criminal law in R v Giorgianni (1985) 146 CLR 473. 84 Davies (n 26) 52. 85 Keller v LED Technologies Pty Ltd (2010) 185 FCR 449, [2010] FCAFC 55 [335]; Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034 (currently on appeal). 86 Manifest Shipping Co Ltd v Uni-​Polaris Insurance Co Ltd (The Star Sea) [2001] UKHL 1, [2003] 1 AC 469 [112] (Lord Scott): ‘ “Blind-​eye” knowledge approximates to knowledge . . . an imputation of blind-​eye knowledge requires an amalgam of suspicion that certain facts may exist and a decision to refrain from taking any step to confirm their existence.’ 87 Metcalf, Labour Market Enforcement Strategy (n 3) 84.

448  Criminality at Work The critical question, yet to be authoritatively answered, is whether the applicant needs to prove more than knowledge of the underlying facts, but also knowledge that the conduct failed to meet an established standard (such that there is ‘an absence of innocence’) in circumstances where it is well established that ignorance of the law is no defence.88

Taylor and Andelman helpfully make it clear that in the context of minimum wage offences, the lead actor must know that (i) there was a person employed (ii) to do particular work and (iii) the amounts the employee was being paid, or at least how the pay was calculated.89 But in addition, must the lead actor know that a minimum level existed and that payments were below that level? Some cases suggest not.90 After all, ignorance of the law is no defence. We might view this principle as having particular force where corporate actors with ready access to legal advice are concerned. Other decisions, however, suggest that a defendant must be aware of (or wilfully blind to) the existence of a minimum standard (and that it was not being met).91 This is a difficult issue. In our view, there is merit in exploring a broader approach in the context of large companies who participate in the offence of paying workers below the minimum wage. This might, however, require legislative reform. It is understandable why the common law generally adopts a restrictive approach to the mens rea for accessory liability: if the accused is a natural person and genuinely did not know (or turn a blind eye) to the fact that payments were below the level set by the national minimum wage, then accessory liability should not arise. In any event, there are difficulties about whose knowledge can be attributed to the company which is the lead actor. Of course, if one director knew all the relevant facts then his or her knowledge can readily be attributed to the company.92 A more difficult scenario arises where a number of directors all know different things and, if aggregated together, the sum total of all the knowledge elements would be sufficient for accessory liability. No director can be liable as an accessory since no individual satisfies the requisite mental element. But can knowledge be aggregated when attributing a mental state to the lead actor? This issue remains controversial beyond the context of accessories.93 The principles underpinning this area of the law are not yet clear, but it appears that aggregation is most likely where two different directors ‘had responsibility to act for the company in different aspects of the one transaction’,94 and that together the directors constituted the directing mind and will of the corporation. Nevertheless, scepticism remains about whether a high mental element ‘can be established by theory of collective knowledge’.95 88 Ingmar Taylor and Larissa Andelman, ‘Accessorial Liability under the Fair Work Act’ (A paper prepared for the 2014 Australian Labour Law Association Conference, November 2014) [25] www.greenway.com.au/​ LiteratureRetrieve.aspx?ID=158469 accessed 16 May 2019. 89 ibid [43] ff. 90 For example, Fair Work Ombudsman v Access Embroidery (Australia) Pty Ltd & Anor [2012] FMCA 835. 91 FWO v Kentwood Industries Pty Ltd (No2) (2010) 201 IR 234. See further S Ranieri, ‘Accessories and the Fair Work Act—​Section 550 and an Individual’s ‘Involvement’ in a Contravention: Is Reform Needed?’ (2018) 31 Australian Journal of Labour Law 180. 92 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500. 93 See eg Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, as discussed in Commonwealth Bank v Kojik [2016] FCAFC 186, [89]-​[153] (Edelman J). 94 The Bell Group Ltd (In Liquidation) (No 3) (2012) 89 ACSR 1 [2183] (Drummond AJA). 95 Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353 (Ipp JA).

Accessory Liability for NMW Violations  449 In the context of the Fair Work Act, section 793(2) provides that: (2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show: (a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and (b) that the person had that state of mind.

Although framed in the singular, in Fair Work Ombudsman v Al Hilfi (No 2) Besanko J recognized that it was at least reasonably arguable that the provision could be interpreted broadly to permit aggregation.96 This is sensible. It could be very difficult to hold lead actors liable otherwise, and companies may be able to avoid accessory liability by deliberately diffusing roles amongst different directors or employees in order to ensure that no one individual possessed the requisite level of knowledge or intention. However, it must also be appreciated that allowing aggregation of all employees of a company could have ‘potentially alarming consequences for large, multi-​function, corporations’.97 Perhaps aggregation should only be permitted from actors who have both a duty and opportunity to communicate their knowledge.98 Alternatively, a broader approach may be appropriate in the context of cases focused upon in this chapter, in order to ensure that substantial lead companies should not be able to circumvent liability by structuring their affairs such that no one individual knows too much.

E.  Conclusion Both the civil and criminal aspects of accessory liability in the context of labour law deserve to be explored more thoroughly. This chapter has suggested that greater use could be made of criminal accessory liability in the context of national minimum wage violations. This has the significant advantage of focusing upon a lead actor’s participation in an ­offence committed by another party. It cannot readily be circumvented by manipulating the (contractual) nature of the relationships between parties in a supply chain, for example. The focus is on the culpable assistance or encouragement of the primary wrong. Of course, accessory liability cannot solve all the issues in this area by itself, and it would be foolish to suggest otherwise. It can be an important tool in promoting compliance with basic labour standards. For example, Focus on Labour Exploitation (FLEX) has recently proposed that public bodies should take leadership seriously in their own supply chains, identifying public procurement as a powerful way of exercising leverage to promote labour standards compliance.99 Accessory liability can only ever be a part of a range of liability and enforcement options. It must operate alongside other models such as vicarious liability, third-​party liability enforced through embargoing ‘hot goods’ produced in breach of labour standards, ‘joint employment’, inchoate liability for assistance and encouragement 96 [2013] FCA 16 [25]. 97 Australian Competition and Consumer Commission v Radio Rentals Ltd [2005] FCA 1133 [181] (Finn J). 98 ibid [179]. For further discussion, see Celia Wells, Corporations and Criminal Liability (2nd edn, OUP 2001). 99 ‘It Is Time for the UK Government to Lead from the Front to Tackle Exploitation’ Focus on Labour Exploitation (3 October 2018) accessed 16 May 2019. We are grateful to Jen Collins for drawing this to our attention.

450  Criminality at Work under the Serious Crime Act 2007, and new ‘failure to prevent’ offences imposed on powerful corporate actors. Consideration might also be given to a corporate transparency duty setting out the steps taken to eradicate minimum wage underpayment and wage theft in supply chains, along the lines of the ‘slavery and human trafficking statement’ in section 54 of the Modern Slavery Act 2015. Nor should we assume that the most coercive mechanisms are the most effective. In the final analysis, regulatory effectiveness will always be an empirical question. We suggest that greater use could be made of accessory liability as it currently applies at common law, in respect of both civil and criminal liability. If a criminal offence is committed under the National Minimum Wage Act, accessory liability can attach to that offence. Successful prosecutions may have a strong deterrent effect. However, it may be advantageous to introduce specific legislation in the context of the fissured workplace, to increase the visibility of accessory liability amongst enforcement agencies. This is because the mental element at common law is somewhat unsettled after Jogee, and it may be helpful explicitly to recognize that wilful blindness should be sufficient in this context.100 Furthermore, considering a draft provision may help to increase awareness of the potential utility of accessory liability. A possible provision is as follows: 1. Participation in National Minimum Wage Act offences (1) A  person who participates in the commission of a criminal offence under the National Minimum Wage Act is taken to have contravened that provision of the National Minimum Wage Act 2. Conduct element for participation (2) A person participates in the commission of a criminal offence under the National Minimum Wage Act if, and only if, the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced or facilitated the contravention, whether by threats or promises etc. 3. Mental element for participation (1) A person must intend the acts or omissions that constitute involvement under section 1. (2) A  person must have knowledge of the essential elements of the principal’s contravention. (3) Knowledge includes actual knowledge and wilful blindness. (4) There is no wilful blindness if the defendant proves on a balance of probabilities that: (a) it has taken reasonable steps to ensure that workers employed by firms in a direct commercial relationship with the defendant, or by franchisees, or by their subcontractors, are being paid in accordance with applicable laws; and that pricing of its commercial contracts has taken this factor into account; or



100

Although we suggest that this would be appropriate in accessory liability more generally: Davies (n 26) ch 2.

Accessory Liability for NMW Violations  451

(b) it has taken reasonable steps to ensure that subcontracting firms in a direct commercial relationship with the defendant recognize an independent trade union for collective bargaining purposes. 3. Interpretation (1) An act or omission will only constitute ‘participation’ where it is a more than merely minimal cause of the principal’s contravention. Some explanation of these provisions is helpful, which takes the Australian Fair Work Act legislation as a source of inspiration. As regards the conduct element, it may be that section 2(b) is unnecessary, since it could be swallowed up by section 2(a). There is authority to suggest that inducement falls within procurement, and facilitation can be covered by assistance, such that subsection (b) would be redundant. But given some lack of clarity on this issue, it is worth setting out section 2(b) expressly. In any event, the conduct element of accessory liability should be interpreted broadly. If ‘aid, abet, counsel or procure’ covers inducement and facilitation then (a) alone would suffice. We have deliberately not adopted section 550 of the Fair Work Act in its entirety, since that appears to extend criminal liability too far: conspiracy101 should be based upon intention rather than wilful blindness and should not fall within this scheme, whilst ‘knowingly concerned’102 is too vague for criminal liability. The mental element ensures that in the simple example of fissuring given above, liability cannot easily be evaded by turning a blind eye to the national minimum wage violations in a supply chain. As discussed above, judges are familiar with this concept of wilful blindness, which should be applied in a manner that ensures that the accused is sufficiently culpable to be convicted. Given this restrictive mental element, no special defences seem necessary. However, where the defendant has taken steps to ensure that workers will be paid properly, or that there is a recognized and independent trade union engaged in collective bargaining, then the defendant should not be considered to have the requisite level of culpability for accessory liability. What constitutes reasonable steps is inevitably sensitive to the particular facts at issue. Where the supply chain is very long, it may not be reasonable for the lead company to investigate the fourth and fifth links down the chain, for example. But that is a question of fact. Moreover, it should be noted that in such circumstances the second or third link in the chain could potentially also be liable as an accessory to offences committed by the fourth or fifth link. The scope of the statute is not limited to lead companies. It covers both natural and legal persons where they have culpably contributed to another’s primary wrongdoing. We are not suggesting that accessory liability is a panacea for the enforcement crisis in the fissured economy. Even with statutory clarification of the knowledge requirement, there will be cases where proving wilful blindness in fissuring situations is problematic. And there will also be cases where it is difficult to determine whether the commercial practices of the lead company have a sufficient causal impact upon the primary offence. But the boundaries of an area of law can often not be drawn with precision. There are clearly some cases that will fall within the ambit of accessory liability, and it is important to recognize this.



101 102

s 550(2)(d). s 550(2)(c).

452  Criminality at Work Three further points should be emphasized. First, we are proposing accessory liability as only one element in a wider enforcement strategy. It must operate alongside a multitude of other regulatory techniques that have been referred to in this chapter. Yet we consider it remiss that an existing form of liability—​accessory liability—​is not being used to tackle unconscionable business practices in the fissured economy. Secondly, it is artificial and confusing to describe lead companies as employers when their wrongdoing occurs through commercial rather than employment practices. In functional terms, a lead company is not acting as an employer when it is negotiating prices in its commercial contracts with other companies. We would do better to label the wrong accurately. This is likely to contribute to effective enforcement. In many cases, the wrong is accessorial in nature. Finally, it is a basic requirement of the rule of law that liability should be labelled fairly in both the criminal and civil law. Accessory liability is morally distinctive. It has its own structure and rationale. It is unnecessary to distort the category of primary liability (eg through an over-​extension of ‘employer’) when English law already provides us with the concepts necessary for fair attribution of liability. The moral coherence and intelligibility of the law’s distinctions and categories should not be sacrificed lightly, and there is a danger that these distinctive legal virtues can be overlooked when there is such a strong focus on enforcement outcomes. The DLME’s strategy report is the first serious attempt by a public institution to get to grips with these difficult issues in a generation. As that strategy develops, accessory liability must be an integral part of the drive to eradicate the scandal of wage theft in the fissured economy.

PART V

C OMPA R AT IV E PE R SPE C T I V E S ON C R IMINA LI Z AT ION

23

Class Crimes Master and Servant Laws and Factories Acts in Industrializing Britain and (Ontario) Canada Eric Tucker and Judy Fudge

A.  Introduction Historically, labour and employment law has played both a disciplinary and a protective function. In pre-​modern England, the precursors to master and servant law fulfilled both these functions.1 The disciplinary face compelled work for those without their own means of support and enforced obedience and effort through the threat of criminal sanctions. By contrast, the protective face provided workers with a summary civil mechanism to enforce their right to be paid. This asymmetry was deeply rooted in the social relations of a declining feudal regime, which inscribed the subordination of servants into a legal regime that classified them as members of patriarchal households but which, under the stress of the Black Death, required the ruling elite to call upon the state to enforce their traditional prerogative or ‘police’ powers.2 Thus from an historical institutionalist perspective, the criminalization of employee breaches of the duty to obey might be seen as a path-​dependent response to the challenges posed by the weakening of feudalism at a time when other means of contract enforcement were neither available nor feasible.3 Criminalization of employer breaches of contract to strengthen worker protection, however, was inconceivable in the early modern era of English history. Industrial capitalism arose from this legal foundation, but operated in a different environment in which employers still sought to discipline wage workers through criminal sanctions and in which trade unionists and their supporters attempted to criminalize employers who endangered the lives and health of factory children. We start our story of criminality at work in England’s first industrial revolution not from a normative view of the appropriate scope of the criminal law but from a historical perspective that builds on an analysis of institutions, ideologies and, ultimately, class struggles over the construction of control and protective regimes at work. As industrial capitalism and its attendant ideology of freedom to contract reached its apogee in nineteenth century 1 The legal centrepiece of the corporative system of regulation was the Statute of Artificers of 1562, which consolidated and extended a number of regulations deriving from early legislation, most notably the Ordinance of Labourers of 1349 and the Statute of Labourers of 1351. In combination with the Poor Relief Act of 1601 these laws constituted the formal origin of justices’ powers to set wages and to regulate the service relationship. Douglas Hay, ‘England, 1562–​1875: The Law and Its Uses’ in Douglas Hay and Paul Craven (eds), Masters, Servants, and Magistrates in Britain and the Empire, 1562–​1955 (University of North Carolina Press 2004) 59–​116; Simon Deakin and Frank Wilkinson, The Law of the Labour Market: Industrialization, Employment and Legal Evolution (OUP 2005) 62. 2 Markus Dirk Dubber, The Police Power (Columbia University Press 2005) especially 51–​53. 3 Marc W Steinberg, England’s Great Transformation: Law, Labor and the Industrial Revolution (University of Chicago Press 2016). Eric Tucker and Judy Fudge, Class Crimes In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.0023

456  Criminality at Work England, both the status relations of superiority and subordination and the paternalistic bonds of reciprocity of the old social order, upon which the law of master and servant was based, were disrupted.4 Our focus is on how the coercive control of workers through master and servant law, on the one hand, and attempts to restrict and penalize masters’ exploitation of economically subordinated workers through the factories acts, on the other, played out. We also add a comparative dimension to this analysis through an examination of English and Canadian (Ontario) developments so we can examine differences in historical trajectories, institutional structures, and social and class contexts, and thereby illuminate their effects on legal developments. We begin with a brief foray into recent criminal law theorizing that illuminates its deep ambiguities regarding the scope of criminalization5 and then recount the stories of master and servant and factory law on parallel tracks, returning to a comparison only in the conclusion.

B.  The Role and Function of the Criminal Law The notion that there is a neat conceptual or normative divide between wrongs that are mala in se or criminal and mala in prohibitum or regulatory offences has given way to the recognition that the distinction between ‘true’ and ‘regulatory’ crimes is ambiguous. The changing role of the state from its traditional focus on protecting the sovereign and political order to its modern concern with protecting and regulating the civil order and social life is a major reason for this ambiguity.6 This shift occurred during the transition from a feudal to a capitalist social formation, which itself entailed the sharpening of the boundary between the political and the economic and the public and the private, in effect creating a civil order that was distinct from the political order.7 A crucial dimension of this transition was the sweeping away of status-​based relations that privileged a landed aristocracy whose authority was rooted in the patriarchal political order and the institutionalization of new hierarchies rooted in a privatized civil and economic order that privileged an emerging bourgeoisie. This economic and industrial revolution not only undermined the traditional social order but also social reproduction, the daily and generational reproduction of human and social life, by unshackling the traditional restraints on exploitation and undoing the paternalistic bonds of reciprocity. As households lost direct access to land that provided them with subsistence, family members, including young children, were forced to sell their labour power on the market to survive.8 In this context, a movement to construct a protective regime emerged.

4 Alan Fox, History and Heritage: The Social Origins of the British Industrial Relations System (George Allen & Unwin 1985) 5 5 Lindsay Farmer, ‘The Obsession with Definition: The Nature of Crime and Critical Legal Theory’ (1996) 5 Social & Legal Theory 57; Nicola Lacey, ‘Historicising Criminalisation: Conceptual and Empirical Issues’ (2009) 72 Modern Law Review 936; Alan Norrie, Crime, Reason and History (3rd edn, CUP 2014) 9–​38. 6 Farmer, ‘The Obsession with Definition’ (n 5); and Lindsay Farmer, Criminal Law, Tradition and Legal Order (CUP 1997) especially 123–​28. 7 Ellen Meiksins Woods, The Origins of Capitalism (Verso 2017). 8 Nancy Fraser, ‘Contradictions of Capital and Care’ (2016) 100 New Left Review 99.

Master and Servant Laws and Factories Acts  457 Simultaneously, the breakdown of the hierarchical order and traditional patterns of work required the creation of a disciplinary regime suited to the new factory order, which required workers to work by the clock and obey the command of the overseer.9 However, unlike the construction of a protective regime, which had to start nearly from scratch, the disciplinary regime could build on the old master and servant law. Criminal law was central to both these projects. In part, this was an historical necessity. The early nineteenth century English state lacked a developed administrative capacity and relied heavily, if not exclusively, on the criminal law as a mechanism of rule. Nicola Lacey points to the undisputed increase in the statutory creation of summary offences in the nineteenth century, but notes its even earlier use to enforce employment contracts.10 This expansion, however, was contested and conflict intensified over the course of the late eighteenth and early nineteenth centuries. Using the criminal law against subordinate classes was deeply rooted and widespread, although tempered by mercy, and reliance on local magistrates, appointed from local elites, reinforced traditional hierarchies. 11 So while prosecuting absconding and recalcitrant workers in local courts built on the existing edifice of criminal law, imprisoning workers for breach of contract was increasingly viewed as inconsistent with free labour and freedom of contract. Using the criminal law against masters to enforce protective laws was another matter. Was the gross exploitation of child labour a threat to the social order truly deserving of criminal punishment or was it a lesser wrong, merely an excess in what was otherwise the noble activity of profit maximization and private wealth creation? These questions set off a decades long debate and contributed to a reconstruction of the criminal law that allowed for refinements between wrongdoing that was truly criminal (mala in se), requiring mens rea, and legal violations considered to be merely regulatory offences (mala prohibitum), which were strict liability and outcome based.12 The resulting ‘conventionalization of factory crime’ helped resolve the legitimation problems facing England’s rulers who felt compelled to respond to the most dysfunctional consequences of the first industrial revolution without at the same time treating as true criminals the powerful economic actors who were responsible for and who benefitted financially from these harms.13 ‘In doing so’, according to Lacey, ‘the Victorian legislature further embedded an elusive distinction between “real” and “regulatory” crime—​the latter realized through a parallel system of summary jurisdiction generally focused on outcome responsibility—​ which haunts English criminal law to this day’.14

9 EP Thompson, ‘Time, Work-​Discipline and Industrial Capitalism’ (1967) 38 Past & Present 56. 10 Nicola Lacey, In Search of Criminal Responsibility: Ideas, Interests and Institutions (OUP 2016) 90. 11 Douglas Hay, ‘Property, Authority and the Criminal Law’ in D Hay and others (eds) Albion’s Fatal Tree (Pantheon 1975) 17–​63. 12 Nicola Lacey, ‘The Rule of Law and the Political Economy of Criminalization: An Agenda for Research’ (2013) 15(4) Punishment and Society 349, 351. 13 WG Carson, ‘The Conventionalization of Early Factory Crime’ (1979) 7 International Journal for the Sociology of Law 37; Norrie (n 5) 104–​09 14 Lacey, In Search of Criminal Responsibility (n 10)  90. Nineteenth-​century criminal commentators on the criminal law, such as Sir James Stephens, shared the view that regulatory offences were not truly criminal law. Later theorists have debated this point. For an interesting account, see Jeremy Horder, ‘Bureaucratic Criminal Law: Too Much of a Bad Thing?’ in RA Duff and others (eds), Criminalization: The Political Morality of the Criminal Law (OUP 2014) 101–​32.

458  Criminality at Work

C.  Master and Servant Law: Disciplining Workers 1.  England In the eighteenth and nineteenth centuries, master and servant laws built upon medieval notions of villeinage or serfdom, which were incorporated into the first labourers statutes of the fourteenth century and later into the Elizabethan Statute of Artificers. However, by the mid-​eighteenth century the general understanding was that the Statute of Artificers had little or no application to industrial workers.15 Specific groups of masters brought petitions to Parliament for legislation to address questions about the types of workers covered by the disciplinary system and to extend its scope over a broader range of workers and types of conduct. Beginning in 1747 Parliament began enacting a new series of master and servants acts.16 Unlike their forebears, the new master and servant laws ‘[were] not an attempt to maintain in place a pre-​industrial model of household employment. Instead, [they] aimed to impose a more rigorous system of work discipline on growing numbers of labourers, artisans and outworkers employed in manufacturing, as well as maintaining control of the agricultural labour market at a time of considerable upheaval.’17 These laws granted employers the right to compel specific performance of employment contracts and to discipline reluctant workers with sanctions that included whipping and imprisonment.18 At the same time, the laws abolished the paternalistic bonds of reciprocity including the wage-​setting machinery of the Elizabethan statute.19 The law also terminated the system of poor law settlements to mobilize labour supply and shift the labour market towards freedom of contract and away from traditional ethical constraints.20 However, the gradual embrace of freedom of contract did not mean that workers were free to quit their employment. Penal master and servant law became ‘increasingly criminal in character’ in the nineteenth century with the increasing carceral capacity and technologies—​police, the arrest warrant, and prisons—​of the central state.21 Not only was the use of coercive criminal law seen as necessary to uphold the ‘sanctity of contract’, ‘the criminalization of workers’ unruliness through master and servant law was consistent with a belief in the criminal inclinations of the propertyless’.22 While freedom of contract and economic laissez faire went hand in hand with industrial capitalism, in the realm of employment it could not deliver what employers wanted—​virtually unfettered prerogatives combined with the workers’ duty to obey.23 The restrictive and coercive master and servant law provided the juridical basis for the duty to obey that is implied by law into every contract of employment distinguishing the legal relationship as one involving a ‘not free contract but a hierarchical model of service’.24 15 Lacey, In Search of Criminal Responsibility (n 10) 36. 16 ibid 63. 17 Deakin and Wilkinson (n 1) 62. 18 Christopher Frank, Master and Servant Law: Chartists, Trade Unions, Radical Lawyers and the Magistracy in England, 1840–​1865 (Ashgate 2010) 6. 19 Deakin and Wilkinson (n 1) 45. The only remnant was the right of workers to bring a civil action to pursue unpaid wages under the Master and Servant Act. 20 Deakin and Wilkinson (n 1) 34; Fox (n 4) 101. 21 Hay ‘England’ (n 1) 106. 22 Doug Hay and Paul Craven, ‘Introduction’ in Hay and Craven, Masters, Servants, and Magistrates (n 1) 35. 23 Fox (n 4) 6. 24 Deakin and Wilkinson (n 1) 65, 107

Master and Servant Laws and Factories Acts  459 In 1823, Parliament extended and strengthened the coercive edge of the master and servant law, using ‘broad language that could be read to cover the overwhelming majority of manual wage workers’.25 It also established new crimes for workers, who could be charged by their employers for leaving work without notice or before the agreement expired, for refusing to begin contracted work, for being absent without permission, for performing work negligently or poorly, or for committing some broadly defined form of misbehaviour.26 Workers therefore were bound to service for the duration of their initial agreements, which were prima facie a year in length. By contrast, workers were only entitled to sue their employers for failure to pay agreed-​upon wages, dismissal without proper notice, or abuse. Moreover, court procedure was much more favourable to employers than to workers. Most disputes under master and servant law were subject to the summary jurisdiction of local magistrates’ courts or petty sessions, known as ‘police courts’, although the process and punishment for masters and servants differed greatly. Servants faced criminal charges and were commonly arrested by constables pursuant to arrest warrants.27 As a criminal defendant, a worker could not be a witness in her or his own defence. Workers appeared before a single magistrate and if convicted penalties included a fine, the posting of a surety for completion of the contract, or up to three months in prison at hard labour. If the court terminated the contract, the worker lost all claims to outstanding wages.28 However, imprisonment for breach of contract did not automatically terminate the contract, and, if the contract was not cancelled, a worker who refused to re-​enter service could be prosecuted again.29 Masters, on the other hand, only faced civil liability, liable to pay up to £10 in back wages. If successful workers could be released from their contracts, but since court costs were to be paid by the loser, workers risked owing their employer an amount equivalent a good part of a week’s wages if their suit was unsuccessful. Moreover, employers could readily appeal the civil judgments against them, while workers had great difficulty in appealing their convictions and had to obtain a writ of habeas corpus to get out of prison.30 Not only was the content of the law biased against workers, by the end of the second quarter of the nineteenth century, in many regions so too was its administration.31 The justices of the peace who oversaw petty sessions were generally either county magistrates on a circuit or borough magistrates whose social composition shifted in the early to mid-​ nineteenth century from landed gentry and the clergy to industrialists and their sympathetic professional allies.32 Thus, magistrates were increasingly likely to be employers themselves, with an interest in the outcome of the dispute they tried. Although legally required to recuse themselves when cases came before the bench involving potential conflicts of interests, such as adjudicating a dispute within their own industries, magistrates were not monitored and rarely stepped aside. Moreover, even on the rare occasions when a magistrate did recuse himself, another from within the same social and political networks likely replaced him.33 25 4 George IV, c 34; Robert J Steinfeld, Coercion, Contract, and Free Labor in the Nineteenth Century (CUP 2010) 47. 26 Deakin and Wilkinson (n 1) 63. 27 Frank (n 18) 4; Hay, ‘England’ (n 21) 106. 28 Frank (n 18) 181–​82, 29 ibid 6. 30 Marc W Steinberg, ‘Marx, Formal Subsumption and the Law’ (2010) 39 Theoretical Sociology 173, 181. 31 Frank (n 18) 5. 32 Steinberg, ‘Marx, Formal Subsumption’ (n 30) 184. 33 ibid 184.

460  Criminality at Work The appearance that employers were judges in their own cause fuelled a great sense of grievance by workers and their unions, as is illustrated by the following complaint from a potters’ union periodical from the mid-​nineteenth century: He, as we have before stated, who would administer the law from vindictive, or class-​ regulated feelings, is a villain, and ought to be subject to some heavy, penal enactment. The judge who would act from passion, prejudice, or class interest, and not from the letter of the law, is a blot on jurisprudence of a country,—​a moral pestilence in the very heart of social existence, that threatens the security of life, liberty, and property; and ought, consequently, to be removed, as the greatest possible evil of civilized society.34

This appearance of class bias in the administration of master and servant law undermined its legitimacy. During the 1840s trade unions and Chartists attacked master and servant law and the lay magistracy.35 The language of Chartism was ideally suited to address the injustice of master and servant law; criminalizing workers’ breach of contract while treating employers’ failure to fulfil agreements as civil matters exemplified class legislation, which Chartists argued was inevitable if workers were unable to play a role either in legislating or administering justice.36 Unions and Chartists argued that employment contracts should be treated as all other contracts and, therefore, not liable to criminal enforcement. However, during the 1840s the more commonly used argument was that the enforcement of master and servant law ‘by lay magistrates drawn increasingly from the class of industrial employers, who were often indifferent to legal formalities, represented a serious threat to the liberty of the subject’.37 Unions retained barristers to challenge convictions in the high courts on the basis of technicalities and several appeals were successful. The leading union barrister was WP Roberts, whose constant refrain was that untrained magistrates were violating the constitution in their administration of the master and servant law.38 The high courts had much more legitimacy for unions and their allies than the summary powers of magistrates. In an article titled ‘Constitutional Law against Coal King Law: Good News for the Miners,’ the Chartist journal the Northern Star reported on 23 December 1843: that while our readers are struck with the horrible picture we have drawn of ‘club law’, they will rejoice to find that in the Real Law there is yet protection for the poor. To get the law is the thing, and Mr. Roberts appears to have discovered the magical process by which this desideratum is to be achieved.39

34 Steinberg, ‘Marx, Formal Subsumption’ (n 30) 184, quoting The Potters’ Examiner and Workman’s Advocate (vol 1, 12 December 1843) 29. 35 Hay and Craven, ‘Introduction’ (n 22) 8. 36 Frank (n 18) 76. 37 ibid 14. 38 ibid 51. 39 ibid 51, quoting ‘Law against Coal King Law:  Good News for the Miners’ Northern Star (23 December 1943) 4. On Roberts’ successful challenges to master and servant convictions, see Raymond Challinor, A Radical Lawyer in Victorian England (IB Taurus 1990) 143–​46.

Master and Servant Laws and Factories Acts  461 By the mid-​nineteenth century, trade union lawyers were making life increasingly uncomfortable for employers and magistrates by discrediting the penal law. Political opposition to master and servant law rallied against a bill, introduced by three Tory backbenchers in February 1844, designed to extend the scope of master and servant law to all wage employment with the exception of domestic service.40 During the spring of 1844, Chartists, trade unionists, and short-​time committees throughout England and Wales launched a large campaign against the bill.41 Short-​time committees that had been established to support Lord Ashley’s ten-​hour bill, which, as we will see, limited working hours for women and children in factories, held large rallies to oppose the coercive master and servant bill and advocate for protective factory legislation. Speakers often used the same language for both that emphasized masculine citizenship and the necessity of ‘protecting our women and children’.42 The suggestion that the master and servant bill presented new dangers to women, who were characterized as ‘less than free agents’ and, as such, especially vulnerable, was incorrect, as women were already covered and had been prosecuted under master and servant law.43 Objection to the 1844 bill was also tied to support for the jury, even though jury members were unlikely to be peers of workers. This concerted opposition defeated the expansion of the criminal law to force workers to labour. Parliament put a stop to trade union lawyers’ strategy of appealing magistrates’ decisions to the high courts for technical defects. In 1848 and 1849 the Jervis Acts, named for the Attorney General who sponsored them, were passed, which settled the form and procedures that magistrates were bound to follow, while preserving their discretion in respect of many matters.44 This legislation, combined with changing priorities of the Queen’s Bench, including a hardening attitude to labour unrest, made it much more difficult for labour’s legal representatives to challenge magistrates’ rulings.45 Not only did the ‘taint of criminality’ spread throughout master and servant act proceedings during the nineteenth century, the disciplinary function of the law also increased.46 Although the proportion of workers sentenced to penal sanctions was never large compared with the number of employment contracts, prosecutions were exemplary.47 In the preceding century, the ratio of wage recovery cases to employee discipline cases was nearly equal, or even more favourable to workers in some cases.48 Yet, by the 1860s, employers were responsible for two-​thirds of the master and servant cases and in many regions magistrates began to hand down heavier sentences.49 Employers’ increasing resort to coercive law reflected the growth in industrial employment; manufacturing and mining represented over 30 per cent of the workforce in 1811 and over 40 per cent in 1851.50 Employers used the

40 The precise legal wording of the 1823 statute arguably excluded task contract and casual hiring from its scope, and the 1844 bill was designed to remedy this ‘defect’. 41 Frank (n 18) 73. 42 ibid 74 43 ibid 75. 44 ibid 241. 45 ibid 243. 46 Hay, ‘England’ (n 1) 106–​07. 47 Hay, ‘England’ (n 1) 107. 48 Frank (n 18) 83. 49 ibid 83. Statistics were only available after 1858 and their reliability is questionable. However, they indicate that for the last two decades of the master and servant act usually over 10,000 workers were prosecuted for breach of contract, Steinberg, England’s Great Transformation (n 3) 41. 50 Deakin and Wilkinson (n 1) 45.

462  Criminality at Work law in a wide variety of industries, including shipbuilding, bottle making, iron moulding, brickmaking, hardware and cutlery, mining, cabinet making, the leather trades, and the building trades. The law could be an effective weapon against strikes by skilled workers who had strategic power in the production process and to enforce labour discipline in low-​wage industries where turnover, absenteeism, and low productivity could be a problem in the absence of other means of sanctioning, supervision, or control.51 However, the extent to which the law was used and its coerciveness depended on local cultures of work and social relations.52 For example, the greatest use of master and servant law was in the places that witnessed the largest transfusions of mine owners, ironmasters, and textile manufacturers to the magisterial bench.53 In 1867, the master and servant law was partially reformed.54 Symbolically, the law moved away from the criminal law and remedied some of the most egregious procedural inequalities. Fines became the standard punishment for breach of contract, the possibility of damage payments to employers was added and imprisonment was limited to cases of ‘aggravated’ offences on the part of workers.55 Conviction required the presence of two magistrates, and workers could testify on their own behalf. But, at the same time, the 1867 reform allowed a magistrate to order an employee to return to work and provided for deductions from wages for breach of contract even if no civil claim for damages could have arisen. Although these changes were associated with a decrease in the fraction of prosecutions ending in a direct sentence of imprisonment, and an increase in the fraction of prosecutions resulting in a fine, imprisonment was the outcome for those workers unable to pay fines. As James Davis, a noted stipendiary magistrate and author of a text on the master and servant law, reflected: ‘I have always found that the employers care little about the money, about getting actual compensation, and that they wanted labour.’56 The Master and Servant Act 1867 was much used; in fact, ‘[t]‌he largest number of convictions was recorded in the last years of the law’.57 The repeal in 1875 of the Master and Servant Act 1867 abolished most criminal sanctions for a simple breach of contract. Prime Minster Benjamin Disraeli described the effect of the repealing Employers and Workmen Act in the following terms: ‘for the first time in the history of this country the employer and the employed sit under equal laws. No one now can be imprisoned for breach of contract, while adequate civil remedies have been furnished for this occasion.’58 However, the civil regime that replaced the criminal regime did not introduce contractual equality; magistrates continued to supervise the terms of the contract, require specific performance by the employee, and set off wages for breaches by the employee.59

51 Frank (n 18) 110; Steinfeld, England’s Great Transformation (n 3) 61, 71; Hay, ‘England’ (n 1) 116 52 Steinfeld, England’s Great Transformation (n 3) 62. 53 Frank (n 18) 6. 54 Known as Lord Elcho’s Act, the 1867 Master and Servant Act is 30 and 31 Vict c 141. 55 Steinberg, ‘Marx, Formal Subsumption’ (n 30) 181. 56 Quoted in Steinberg, ‘Marx, Formal Subsumption’ (n 30) 81, from a submission to the Royal Commission considering reform of the laws, PP 1867 XXXII [3873] pp 322–​323. 57 Hay, ‘England’ (n 1) 108, 116. 58 Deakin and Wilkinson (n 1) 75. 59 Hay, ‘England’ (n 1) 74.

Master and Servant Laws and Factories Acts  463

2.  Canada (Ontario) When it became unclear whether English master and servant laws applied in Upper Canada, which in 1867 would become the province of Ontario in the federal state of Canada, a local master and servant act was enacted by the Legislative Assembly in 1847.60 Originally designed specifically to assist timber industry employers in the Ottawa Valley to enforce labour contracts in a volatile labour market, the law also provided a mechanism for workers to obtain wages owed by employers.61 Like its UK counterpart, workers were subject to criminal procedures and penalties, whereas employers faced only civil liability. In marked contrast to its English forebear, however, workers claiming wages brought the overwhelming majority, three-​quarters, of cases heard between 1847 and the repeal of the penal provision in 1877. Ninety per cent of these cases were successful to the extent that employers either settled or were required to pay, although they were given time to do so and many simply failed to pay.62 Of the cases brought by employers, the majority were against absconding workers, and among the cases with a known outcome, the vast majority of workers were convicted. However, workers convicted of desertion were rarely sentenced to imprisonment (only 3 per cent), although a larger group (16 per cent in total) ended up in jail because they were unable to pay the fine, which they, unlike employers, were required to do ‘forthwith’.63 Wage claims and prosecutions for desertion tended to ebb and flow with the economy and industrial conflict, the former increasing during recessions and the latter rising during periods of labour unrest and trade union activity.64 Workers’ success rates in wage claims tended to mirror the economy, increasing during periods of recession, although over the entire period workers’ success rate dropped from 70 to 60 per cent of cases. The opposite trend can be seen with regard to workers’ longer-​term success in defending against absconding and disobedience claims, which rose from about 25 per cent in the earlier period to better than 50 per cent by 1876.65 Unlike the UK, where only small numbers of claims under the master and servant laws were brought by workers, in Ontario and Upper Canada, the opposite was true. Although workers brought the vast majority of cases, as in the UK, there was a regional variation in the law’s use. In Toronto, the largest and most industrialized city, the years 1870 to 1873 saw the largest number of committals of workers under the master and servant law.66 It appears that in the early 1870s employers, following the example of their British counterparts, used the law to respond to collective action by their workers.67 During this period, marginal manufacturers were more likely than their more successful confreres to resort to legal coercion.68 But, as was the case in the UK, the use of master and servant law against trade unions and collective action politicized the law. When the Ontario-​based Canadian Labour Union 60 Jeremy Webber, ‘Labour and the Law’ in Paul Craven (ed), Labouring Lives: Work and Workers in Nineteenth-​ Century Ontario (University of Toronto Press 1995) 133–​36. Can [Prov]) 10&11 Vict c11 (1847). An 1851 statute provided broadly similar terms to apprentices (Can [Prov]) 14&15 Vict c 11 (1851)). The master and servant act was extended to skilled workers in 1855 (Can [Prov]) 18 Vict c 136 (1855)). 61 Paul Craven, ‘Canada, 1670–​1936’ in Hay and Craven, Masters, Servants, and Magistrates (n 1) 197. 62 ibid 198–​99. 63 ibid 198. 64 ibid 199. 65 ibid 201. 66 ibid 200–​201. 67 ibid 201. 68 ibid 202.

464  Criminality at Work and the Toronto Trades Assembly lobbied the Ontario legislature to repeal the penal provisions, the government declared it lacked authority to do so. It was a criminal law, a matter of exclusive federal jurisdiction under the British North America Act, which established the division of powers between the federal and provincial governments. After the British government repealed its penal provisions in 1875, trade unionists urged the federal Minister of Justice to follow suit, characterizing the offending clause as against ‘[t]‌he modern spirit of the law . . . ’69 Hoping to bolster the legitimacy of his government after the Prime Minister’s controversial intervention in a railway strike and to resolve a constitutional quirk, the federal Justice Minister introduced a bill sharply limiting criminal breach of contract to breaches of employment contracts that were ‘wilful and malicious’ and that caused harm to the public. Ordinary contract breaches by employees, which included desertion and disobedience, were now under provincial law. While provincial master and servant acts could make such breaches punishable, resulting in both fines and imprisonment, they were not true crimes.70 In any event, the law ended the formal inequality in the treatment of employers, who were subject to civil law, and workers, who had been subject to criminal law.71 In contrast to England, where the coercive aspects of master and servant law were instrumentally useful to employers in many industries and locales to control labour mobility and discipline workers, in Ontario the law had only a symbolic effect, and even then the symbolism was attenuated.72 While exemplary prosecution could serve to reinforce the superior–​subordinate relationship inscribed into the employment contract, its too-​frequent use could undermine the legitimacy of the contract of employment. Absent the long history of patriarchal relations that was deeply embedded in English society and Canada’s proximity to the United States where free labour was a rallying cry for white male workers, the use of penal law against workers but not against masters was prima facie unjust.73 Moreover, as we will see with the Ontario factory act, the division of powers in the Canadian constitutions forced provincial and federal governments to be explicit about the nature of penal laws in employment relations.

D. Factory Acts 1.  UK The struggle to achieve ‘the modest Magna Charta of a legally limited working day’74 was an extended one that involved ongoing debates over the scope of protection and the means of enforcement. Child labour and hours of work were the principal health and safety issues 69 Debates of the House of Commons of the Dominion of Canada, 4th Session, 3rd Parliament, 524 (Edward Blake). Paul Craven, ‘ “The Modern Spirit of the Law”: Blake, Mowat and the Breaches of Contract Act 1877’ in C Blaine Baker and Jim Phillips (eds), Essays in the History of Canadian Law, Vol VIII (University of Toronto Press 1999) 142. 70 Constitution Act, s 92(15). 71 Craven, ‘Canada’ (n 61) 203. 72 ibid 215 73 ibid 291. Apprentices were another matter, and the labour movement did not object to their imprisonment for desertion. 74 Karl Marx, Capital:  Vol 1 (Progress 1867) 195 accessed 7 August 2019.

Master and Servant Laws and Factories Acts  465 of the first industrial revolution because profitability depended on the absolute extraction of surplus value through the lengthening of the working day and the employment of young children, especially in the textile industries of northern England. An early source of child labour were the parish apprentices, who were often ruthlessly exploited by their mill-​owner masters, required to work up to fifteen hours a day, and subjected to corporal punishment for inattentiveness. Patriarchal control was near absolute.75 Conditions were so appalling that they attracted the attention of Manchester’s doctors and magistrates, and socially concerned elites. Sir Robert Peel’s involvement as the sponsor of the first factory act in 1802, the Health and Morals of Apprentices Act, was arguably strategic, aimed at avoiding more radical measures harmful to his extensive manufacturing interests.76 The Act prohibited the apprentice children from working more than twelve hours a day or at night and obliged employers to provide for their basic physical and moral well-​being. The enforcement of these requirements built on the criminal and local government jurisdiction of the justices of the peace who were to appoint visitors to inspect the factories in their district and report on their findings. The Act also made it an offence to obstruct a visitor or to ‘willfully act contrary to, or offend against, any of the provisions of this Act’. Those convicted were subject to modest fines, half of which was paid to the informer. Prosecutions commenced by an information and were conducted before two justices of the peace. Over the next two decades, Parliament extended coverage of factory laws to free children, who had become the largest group of children employed in cotton factories, often through family employment. The law prohibited employment of children under the age of nine and night work for those under twenty-​one, while also limiting hours of work to twelve for those under sixteen (later raised to eighteen). Manufacturing interests fiercely resisted these laws, which were diluted to secure their passage.77 There is widespread agreement that these laws went virtually unenforced. However, researchers have paid little attention to the attempts by trade unionists to initiate prosecutions. This effort took place in context of spreading trade unionism among adult male textile workers in the early nineteenth century, often inflected by popular radicalism embracing an alternative political economy based on the equalization of labour and capital’s power.78 A reduction in the hours of work would increase workers’ bargaining power and the operatives formed short-​time committees as early as 1814 with the initial goal of reducing the working hours of children.79 The short-​time committees also pressed for improved enforcement. Led by trade unionist John Doherty, they attempted to take matters into their own hands by pressing manufacturers to comply and, when that failed, seeking informants

75 Katrina Honeyman, Child Workers in England, 1780–​1820: Parrish Apprentices and the Making of the Early Industrial Labour Force (Ashgate 2007) especially ch 9. 76 Joanna Innes, ‘Origins of the factory acts: the Health and Morals of Apprentices Act, 1802’ in Norma Landua, (ed), Law, Crime and English Society, 1660–​1830 (CUP 2002) 230; JT Ward, The Factory Movement 1830–​1855 (Macmillan 1962) 19; 42 Geo III, c 73 (1802). 77 BL Hutchins and A Harrison, A History of Factory Legislation (Franklin 1903) 1. 78 John Foster, Class Struggle and the Industrial Revolution (Weidenfeld and Nicolson 1974) 8; Gareth Stedman Jones, Languages of Class (CUP 1983) 25; Robert Gray, The Factory Question and Industrial England (CUP 1996) 21. On the role of gender, see Mariana Valverde, ‘ “Giving the Female a Domestic Turn”: The Social, Legal and Moral Regulation of Women’s Work in British Cotton Mills, 1820–​1850’ (1988) 21(4) Journal of Social History 619; Colin Creighton, ‘Richard Oastler, Factory Legislation and the Working-​Class Family’ (1992) 5(3) Journal of Historical Sociology 292. 79 RG Kirby and AE Musson, The Voice of the People: John Doherty, 1798–​1854: Trade Unionist, Radical and Factory Reformer (Manchester University Press 1975) 346.

466  Criminality at Work whose evidence could support prosecutions. Although Doherty and his associates obtained a few convictions, they faced ‘a bewildering variety of legal objections and technicalities to frustrate them, a good deal of abuse both in court and in the press, and widespread intimidation of witnesses on whom they depended’.80 The situation did not improve even after an 1829 amendment that prevented the dismissal of cases for technical defects.81 As Carson noted, ‘the question of conventionalization was scarcely at issue. Employers could break the law at will without any real likelihood of prosecution and without any substantial possibility of being adjudged criminal.’82 The operatives’ agitation for stronger factory laws received a boost in the 1830s when Tory radicals such as Michael Sadler, Richard Oastler, and John Fielden took up the cause.83 Driven in part by abolitionism and Anglicanism, and by conflict between old landed elites and an emerging industrial bourgeoisie,84 Tory radicals worked closely with the short-​time committees, sometimes condemning mill owners’ actions as criminal, rhetorically and at times literally.85 Sadler proposed factory legislation to the Commons in March 1832. Political support for the measure had grown, leading the government to delay by referring the bill to a Select Parliamentary Committee.86 Oastler pressed the case for criminal punishment: I think it would be a very good thing, instead of having fines as the punishment for the breach of the law, to make it imprisonment, and flogging and pillory; 1 have no doubt that would keep them to it; I think that would be a most excellent thing.87

The Sadler Committee provided a rare forum for the workers themselves to speak publicly of their embodied experience.88 Without expressly characterizing their employers’ behaviour as criminal, their descriptions of the terrible conditions reinforced the narrative of the short-​time committees and the Tory radicals that ‘white’ or ‘factory slavery’ was literally robbing workers of their property in their labour and their physical and moral health.89 Lord Ashley became the legislative sponsor after Sadler’s 1832 election loss. In an effort to take control of the issue, the government established a Royal Commission to investigate factory conditions. The Commission, dominated by Benthamite reformers, proceeded on a very different model than Sadler’s Committee, more akin to a quasi-​judicial investigation than a forum that provided workers with a platform to speak their truths. Not surprisingly, 80 ibid 357. Also, see Stewart Field, ‘Without the Law? Professor Arthurs and the Early Factory Inspectorate’ (1990) 17(4) Journal of Law and Society 445. 81 10 Geo IV c 51 (1829). 82 Carson (n 13) 41. Also see his ‘The Institutionalization of Ambiguity: Early British Factory Acts’ in Gil Geis and Ezra Stotland (eds), White-​Collar Crime: Theory and Research (Sage 1980) 142. 83 Cecil Driver, Tory Radical: The Life of Richard Oastler (OUP 1946); Stewart Angas Weaver, John Fielden and the Politics of Popular Radicalism 1832–​1847 (Clarendon Press 1987). 84 Patrick Joyce, Work, Society and Politics:  The Culture of the Factory in later Victorian England (Rutgers University Press 1980) 1–​41. 85 Richard Oastler, Eight Letters to the Duke of Wellington (London, 1835) 40–​41, reproduced in Richard Oastler: King of the Factory Children; Six Pamphlets, 1835–​1861 (British Labour Struggles: Contemporary Pamphlets, 1727–​1850 (Arno 1972). 86 Ward (n 76) 32–​59. 87 Report from the Select Committee on the Bill to Regulate the Labour of Children in Mills and Factories (1831–​32 Parliamentary Papers, vol 15) 460. 88 Nob Doran, ‘From Embodied “Health” to Official “Accidents”:  Class, Codification and British Factory Legislation 1831–​1844’ (1996) 5(4) Social & Legal Studies 523. 89 Gray (n 78) 37–​47; Kirby and Musson (n 79) 366–​79; Stedman Jones (n 78) 57–​59.

Master and Servant Laws and Factories Acts  467 it also produced a very different perspective on factory work, one that defended the factory system while acknowledging the need to regulate the specific problem of excessive child labour.90 The Commission did not see the problem as a criminal matter, but as one best addressed by the creation of a system of government inspection.91 While in retrospect the shift from crime to regulation is clear, the reality was messy and contested. First, there was a political contest over how to characterize violations of the law. Lord Ashley’s bill spoke of miller owners’ ‘culpable negligence’ in failing to guard dangerous machinery and provided the occupier was to be committed for trial for manslaughter at the ensuing Assizes if a child’s death resulted.92 As well, if culpable negligence resulted in grievous injury, the employer was liable to face a penalty between £50 and 200, to be paid to the victim.93 The Royal Commission’s report, however, criticized the Bill’s penal clauses (44) as of a nature so vexatious and so arbitrary as, if sanctioned by the Legislature, would create a serious objection to the investment of capital in manufacturing industry in this country.

Nor were the commissioners keen on criminal prosecution as a mode of enforcement. Rather, they recommended the appointment of inspectors, vested with the power to enter factories that employed children, a state intrusion into private space to be sure, but a far preferable alternative to hauling manufacturers into the public space of the court. Ashley’s bill was defeated after the release of the Commission’s report and the government passed its measure, implementing the Commission’s recommendations.94 The law clearly tilted away from a ‘true’ criminal law approach towards a regulatory one, including regulatory offences. Employers who ‘offend against any of the provisions of this Act’ were liable to be fined between £1 and 20 ‘[p]‌rovided nevertheless, that if it shall appear to such Inspector or Justice that such Offence was not wilful nor grossly negligent, such Inspector or Justice may mitigate such Penalty below the said sum of One Pound, or discharge the Person charged with such Offence’.95 As this clause indicates, the legislation did not fully resolve the juridical nature of violations of the Act, leaving ambiguity about their criminal or regulatory character. The law created what we now characterize as a strict liability offence, where the crime is complete on proof of the actus reus, but it also provided for the mitigation of penalty or complete discharge if the act was not wilful, thereby reintroducing a mental element, to be applied at the discretion of the inspector or magistrate. Thus, we can see the government feeling its way toward a resolution of the contradiction it faced. Child labour was widely recognized as unacceptable, even for political economists who otherwise celebrated and defended market freedom, but so too was the criminalization of the capitalists who benefited from it.

90 First Report of the Central Board of His Majesty’s Commissioners for Inquiring into the Employment of Children in Factories (1833) (RC). 91 Oliver McDonagh, ‘The Nineteenth Century Revolution in Government: A Re-​Appraisal’ (1958) 1(1) The Historical Journal 52. 92 A Bill To regulate the Labour of Children and young Persons in the Mills and Factories of the United Kingdom (5 March 1833, 9 Will IV—​Sess 1833) s 29. 93 ibid ss 30, 34-​35. 94 An Act to Regulate the Labour of Children and Young Persons in Factories, 3 & 4 William IV, c 103 (1833). 95 ibid s 31; Carson (n 13) 41–​42.

468  Criminality at Work The law was deeply unsatisfactory to operatives and their political supporters for many reasons, one of which was its failure to treat child labour as the crime they believed it to be. John Fielden, one of the Tory radicals, wrote a pamphlet, ‘The Curse of the Factory System’ in which he argued: [Just as] Parliament is distinctly told . . . it is part of their duty to make laws to protect men from the arm of the murderer, laws of the same protecting kind are necessary in the case of these children, where the murder is as certain as in any other instance, and more cruel, because the death is more lingering.96

John Doherty also continued to press for stronger legislation based on the criminal law model that included a penalty of ‘three months to the treadmill’ for third-​time violators.97 However, the push towards criminalization failed and did not revive for over 150 years.98 Once criminalization failed, the question of how the inspectors would enforce statutory offences of an ambiguous character arose. Robert Ricketts, one of the first inspectors, provided an answer: From the peculiar circumstances of this division, studded as it is with mills, where offences and evasions of the Act may be so easily committed with impunity, and where the impunity of one transgressor is an inducement to many others to follow his example, the difficulty of enforcing its provisions was of no ordinary cast; and where dissatisfaction on the first introduction of this Act was so loudly and generally expressed, a discreet and conciliatory conduct on the part of the inspector became as indispensable to the success of his proceeding as the powers vested in him by the Act itself.99

Inspectors did not view themselves as factory police on a mission to root out crime but rather as advisors promoting compliance through education and persuasion.100 The inspectors did not entirely abandon prosecutions, but narrowly reserved them for the few wilful or reckless employers who flouted law or betrayed the trust of the inspector.101 By introducing mens rea into their discretionary judgments, inspectors effectively carved out a small zone of ‘true’ criminality in a strict liability regime so that prosecutions were reserved for only the most egregious cases of employer defiance of the law and of inspector authority. In the result, most violations were tolerated or, in Carson’s terms, ‘conventionalized’.102

96 John Fielden, The Curse of the Factory System (Cobbett 1836) 14. Also, see Weaver (n 83) ch 5. 97 Kirby and Musson (n 79) 392–​94. 98 Steve Tombs and Dave Whyte, Safety Crimes (Willan 2007); Paul Almond, Corporate Manslaughter and Regulatory Reform (Palgrave Macmillan 2013). 99 Report of Inspector Rickards (Parliamentary Papers, 1835, XL) 694, cited in PWJ Bartrip and PT Fenn, ‘The Evolution of Regulatory Style in the Nineteenth Century British Factory Inspectorate’ (1983) 10(2) Journal of Law & Society 201, 204. 100 ibid 205. 101 Rhys Jones, People/​States/​Territories:  The Political Geographies of British State Transformation (Blackwell 2007) 128. 102 Carson (n 13). Other obstacles to prosecutions included limited resources and (inaccurate) perceptions of magisterial bias. See AE Peacock, ‘The Successful Prosecution of the Factory Acts, 1833–​55’ (1984) 37(2) Economic History Review 197; Peter Bartrip, ‘Success or Failure? The Prosecution of Early Factory Acts’ (1985) 38(3) Economic History Review 423; AE Peacock, ‘Factory Act Prosecutions: A Hidden Consensus’ (1985) 38(3) Economic History Review 431.

Master and Servant Laws and Factories Acts  469 The ‘decriminalization’ of factory law and its transformation into regulatory ‘criminal’ law was perfected in the legislation of 1844, which for the first time regulated the employment of adult women in factories.103 Section 41 provided that an occupier of a factory who violated the act was ‘deemed in the first instance . . . to have committed the offence’, but allowed for a due diligence defence. The employer could defend himself by ‘prov[ing], to the satisfaction of the justices, that he had used due diligence to enforce the execution of the Act’ and that an agent, servant or workman had committed the offence ‘without his knowledge, consent, or connivance’. In effect, the legislation refashioned factory act violations as modern strict liability offences, complete upon proof of the act, to which a defence of due diligence was available. This technique enabled the British state to respond to the harmful consequences of the first industrial revolution without truly criminalizing those who were responsible. This was the law on the books, but the question of how inspectors exercise their enforcement discretion remained to be determined. Cleansed of the taint of ‘real crime’, inspectors could have chosen to step up their use of prosecutions and, indeed, there was a small spike in prosecutions in 1845 and 1846. However, their enthusiasm quickly waned and from 1847 prosecutions were rare.104 Inspectors’ strongly preferred persuasion and conciliation, reserving prosecution only for the most defiant employers. In the end, regulatory offences, too, were conventionalized and prosecutions were reserved for those who defied the authority of the state, not those who simply violated workers’ rights, thus bringing law enforcement back within the traditional criminal domain of defending state order.

2.  Canada (Ontario) The Canadian story of factory legislation begins in the 1870s at the time of Canada’s much later industrial revolution.105 While industry tended to cluster in major urban centres there were pockets in some smaller cities. One of these was Cornwall, which attracted a large number of textile manufacturers, and its Member of Parliament, Dr Darby Bergin, cloaked in the mantle of Tory radicalism, launched a lonely crusade for factory legislation in 1879. Despite initial failure, Bergin persisted and his later efforts attracted support from a renascent labour movement, leading to the appointment of a commission of inquiry in 1881. Its report, issued in January 1882, found the employment of children and women working long hours was widespread. It also found dangerous machinery, inadequate ventilation, and unsanitary conditions present in many factories. The government introduced a factory bill in the Senate in April 1882 where, for the first time, the question of the federal parliament’s jurisdiction was raised.106 As noted previously, under the British North America Act (BNAA), the federal government has exclusive jurisdiction over criminal law. It also has a more general power to legislate for ‘peace, order and good government of Canada’ (POGG), while the

103 An Act to amend the Laws relating to Labour in Factories, 7 & 8 Vict c 15 (1844). For an insightful discussion, see Valverde (n 78) and Creighton (n 78). 104 PWJ Bartrip and PT Fenn, ‘The Administration of Safety:  The Enforcement Policy of the Early Factory Inspectorate, 1844–​1864’ (1980) 58 Public Administration 87. 105 Bryan D Palmer, Working-​Class Experience (2nd edn, McClelland & Stewart 1992) 81–​87. 106 Eric Tucker, Administering Danger in the Workplace: The Law and Politics of Occupational Health and Safety Regulation in Ontario, 1850–​1914 (University of Toronto Press 1990) 82–​90.

470  Criminality at Work provinces have jurisdiction over property and civil rights.107 Sir Alexander Campbell, the federal Minister of Justice, defended the government’s measure under its POGG power, not as criminal law. It is because this bill relates to subjects so important as that, subjects which go far beyond contracts between master and servant, which in their indirect effects concern the whole community, and on which, to a certain extent  . . .  the future of the country very much turns—​whether we shall have a strong, healthy and moral population, likely to be creditable to the country . . . I say if these subjects do not affect the peace, order and welfare of the whole community it would be hard to say what does.108

The government subsequently withdrew the bill in the face of vigorous opposition from the manufacturers. Another bill introduced the following year, met the same fate.109 The failure of the Dominion Conservative government to act left a political space for the Ontario Liberal government to pursue its expansive view of provincial jurisdiction and to consolidate support among working-​class voters. In 1884, it enacted the Ontario Factories’ Act, which borrowed heavily from the UK legislation, including its penalty provision. Contraventions of the act were summary conviction offences punishable by a fine up to $50, and in default of payment a gaol sentence of up to three months. However, the Act also provided that the employer could escape conviction by showing that despite due diligence another person not under the employer’s control was responsible for the violation.110 The BNAA explicitly empowered provinces to impose these kinds of penalties for non-​ criminal regulatory offences provided it was legislating within its powers.111 The constitutional question was whether factory law was a matter of ‘property and civil rights in the province’ or a matter of exclusive federal jurisdiction. The answer to the question was not obvious and the province did not immediately declare the Act in force, providing Darby Bergin with an opportunity to reintroduce his federal factory act in 1885. He emphasized the protection of children; their health, their life, their faith and their morals are at stake, and they ask us to given them all the aid and all the assistance which it is in the power of this Parliament to give . . . that the factory boy may grow up strong and vigorous . . . a good citizen and a valuable member of society; that the factory girl may grow up an intelligent and a virtuous woman, a true wife and a loving mother of healthy children . . . that they may . . . not be killed through over work . . . that they may not , through cupidity on the part of their masters, be maimed or crippled for life by machinery . . . that they may not become victims of the moloch gold, as was the case in England . . . these are among the objects of this Bill.112

107 Constitution Act, 30 & 31 Victoria, c 3 (UK)(1867), ss 91, 91(27) & 92(13), 92(15). 108 Canada. Debates of the Senate (19 April 1882), 367. 109 Tucker (n 106) 90–​96. 110 47 Vic, c 39, ss 31–​34. A federal factory bill introduced at about the same time as the Ontario bill was later withdrawn. 111 Constitution Act, s 92(15). 112 Canada. House of Commons Debates (1 April 1885) 881 (Bergin).

Master and Servant Laws and Factories Acts  471 Given this characterization of the harm employers were causing, the bill arguably fell within the federal government’s criminal law powers. David Mills, a Liberal member of Parliament from Ontario and a respected constitutional law expert (who had been retained by the Ontario government to assist in an anticipated Factory Act reference), however, challenged this characterization. He drew a sharp distinction between ‘police powers’ and the federal government’s criminal law powers. All those regulations which a community find it necessary to make in order to prevent one man from interfering with the comfort and well-​being of another in the use of that freedom which the law allows him are police regulations, and are part of that department of jurisprudence embraced with the division, designated—​‘Property and Civil Rights.’ . . .  Criminal law in section 91 of the British North America Act  . . .  embraces those wrongs committed against society which are in themselves bad, and which are prosecuted and punished in the name of the Sovereign. It was never intended to embrace within the limits of the criminal law . . . those police and municipal regulations which are established for the purpose of promoting morality, decency and good health.113

From Mills’ generally laissez-​faire perspective, the law ‘propose[s]‌to deal with the relations between the employer and the employed . . . It interferes with the freedom of contract.’114 Real crimes were not being committed here, although he recognized that the constitution empowered the provinces to punish those who violate police regulation, which he described as ‘Provincial Criminal Law’.115 The issue came up again three years later in the context of a debate over funding for a Royal Commission into relations between labour and capital.116 The Commission heard evidence of factory children in Montreal working fourteen-​hour days, leading one Member of Parliament, Richard Cartwright, to compare their conditions as ‘in no degree removed from white slavery’ and to call for ‘our criminal law . . . to be amended, and most stringent penalties should be inflicted not merely on the overseers and the factory hands, but on the responsible directors, or at least on some of those who are managers’.117 George Casey, another Member of Parliament, agreed: ‘if we cannot declare such acts’ as ‘killing children by compelling them to perform inordinate labor’ or ‘assaulting and flogging half grown up girls’ to be ‘criminal, we cannot declare any offence against the person to be criminal, whether it is committed inside or outside of a factory’.118 David Mills opposed the demand for stiffer penalties. While admitting that ‘it is not easy to draw the line where police regulation ends and where ordinary criminal regulation begins’, and conceding that in some cases, such as ‘flog[ging] children inordinately’ the criminal law might apply, he insisted that legislation touching on working conditions was a matter of police regulation within provincial jurisdiction. The Minister of Justice, John Thompson agreed and no action followed,119 113 ibid 882–​83 (Mills). 114 ibid 883. On Mills’ background Robert C Vipond, Liberty & Community:  Canadian Federalism and the Failure of Confederation (State University of New York Press 1991) passim. 115 Canada. House of Commons Debates (1 April 1885) 884. 116 On the Commission, see Canada Investigates Industrialism: The Royal Commission on the Relations of Labor and Capital, 1889 (Abridged), edited and with an introduction by Greg Kealey (University of Toronto Press 1973). 117 Canada. House of Commons Debates (21 May 1888) 1659. 118 ibid 1661. 119 ibid.

472  Criminality at Work ending political debates over the use of criminal law to protect the health and safety of workers for almost 100 years.120 What then of the enforcement of ‘Provincial Criminal Law’? Apart from Mills’ use of the term, this characterization of regulatory offences never gained legal or popular purchase. Even though regulatory offences sometimes are referred to as ‘quasi-​criminal’, almost no criminal taint attaches to those convicted. Notionally, as in the UK, because the law lacked the moral connotation associated with real crime and was legally constructed as a strict liability offence subject to a due diligence defence, Ontario’s factory inspectors might have felt freer to prosecute employers who violated the law. Nevertheless, as in the UK, the factory inspectors adopted the view that resort to prosecution was only to occur after persuasion had clearly failed. In effect, the inspectors read a mental element into their discretionary judgements about when to prosecute a strict liability offence. Wilful disobedience or defiance of the inspectors’ authority was generally required, and even then prosecutions were rarely pursued. As in England, violations of police regulation were conventionalized.

E.  Conclusion Putting criminal law to work in the construction of disciplinary and protective labour regimes in the early nineteenth century followed two different trajectories but converged over the course of the century around the view that employment relations were private matters of contract law, and not a concern of public order and ‘true’ crimes. Master and servant law was available in England as a legal and cultural foundation upon which to reconstruct disciplinary authority in the first stages of the industrial revolution, but not all masters needed or could easily mobilize the criminal law to discipline their workers. Parliament was not averse to recriminalizing worker breaches of contract to teach the industrial class to understand and respect the beauty of freedom of contract and, for the most part, local legal institutions did not balk at putting the criminal law to work. Workers were eventually able to throw off the yoke of criminal master and servant law, but that happened remarkably late in the development of the so-​called free labour market, the ‘very Eden of the innate rights of man’ where ‘[t]‌here alone rule Freedom, Equality, Property and Bentham’.121 In Canada, on the other hand, the master and servant regime’s roots were much shallower. By the time of its industrial revolution in the second half of the nineteenth century reliance on the criminal law to discipline the new industrial working class lacked widely shared legitimacy. In any event, by that time employers were actively developing other labour control strategies less directly dependent on law and the state. When it came to building protective labour rights, most politicians were loath to criminalize employers who ruthlessly exploited child labour and extended hours of work for all at the expense of their lives and health. This was manifestly the result of freedom of contract. As Marx observed ironically, ‘The contract by which he sold to the capitalist his labour-​power proved, so to say, in black and white that he disposed of himself freely.’122

120 Harry J Glasbeek and Susan Rowland, ‘Are Killing and Injuring at Work Crimes?’ (1979) 17 Osgoode Hall Law Journal 506. 121 Marx, Capital (n 74) 123. 122 ibid 195.

Master and Servant Laws and Factories Acts  473 Thus, protection was a violation of freedom of contract. While legislators could ignore the reality of the massive inequality between workers dependent on owners of capital to secure subsistence, it was more difficult to justify children’s or women’s working conditions as the result of a free exchange between juridical equals. These vulnerable workers were deserving of a measure of protection, provided it did not impinge too greatly on employer profits and did not criminalize the employing class. The challenge, therefore, was to construct protection without stigmatizing employers as criminals at a time when criminal law was one of the few legal technologies available to the state. Out of this tension weakly enforced regulatory law was born.

24

Criminalization, Social Exclusion, and Access to Employment Marilyn J Pittard*

A.  Introduction This chapter examines the interaction between criminalization and social exclusion, by identifying the individual with criminal convictions as herself or himself a vulnerable labour market actor. The chapter examines the ways in which the protective norms of employment law can address the social exclusion of a highly disadvantaged group by regulating access to employment. The chapter critiques the contemporary legislative approaches to ensuring that persons with a criminal record are not unfairly excluded from the labour market and have due access to employment. Whilst this is a universal theme and of relevance internationally, the chapter addresses the topic primarily from the focus of Australian, British, and US laws and refers where appropriate to studies and laws of other jurisdictions.

B.  Context, Background, and Themes A person who has served a custodial sentence, or complied with the terms of a non-​custodial sentence, may regard themselves as having ‘done or served their time’. A significant aspect of rehabilitation for ex-​offenders may be to enter the workforce and perform paid work—​to utilize their time productively, to assist themselves and their families again by earning an income, and to be gainfully employed, to contribute to society and to be included within society. Studies suggest that recidivism is reduced where appropriate rehabilitation, which includes employment, into society takes place.1 Society too values the rehabilitation of ex-​offenders, with education and training schemes undertaken, encouraged, and provided for persons whilst in prison2 and after their release,3 as well as appropriate drug and * Faculty of Law, Monash University. The research assistance of Anthony Hallal is gratefully acknowledged. 1 See, eg, Christopher Uggen, ‘Work as a Turning Point in the Life Course of Criminals: A Duration Model of Age, Employment, and Recidivism’ (2000) 65 American Sociological Review 529; Susan Lockwood and others, ‘The Effect of Correctional Education on Postrelease Employment and Recidivism: A 5-​year Follow-​up Study in the State of Indiana’ (2012) 58 Crime & Delinquency 380; Susan Lockwood and John Nally, ‘Race, Education, Employment, and Recidivism Among Offenders in the United States:  An Exploration of Complex Issues in the Indianapolis Metropolitan Area’ (2016) 11 International Journal of Criminal Justice Sciences 57; Garima Siwach, ‘Unemployment Shocks for Individuals on the Margin: Exploring Recidivism Effects’ (2018) 52 Labour Economics 231. 2 See, eg, Kerry Richmond, ‘Why Work While Incarcerated? Inmate Perceptions on Prison Industries Employment’ (2014) 53 Journal of Offender Rehabilitation 231. 3 See, eg, Johnny Nhan, Kendra Bowen, and Katherine Polzer, ‘The Re-​entry Labyrinth: The Anatomy of a Re-​ entry Services Network’ (2017) 56 Journal of Offender Rehabilitation 1; Christy Visher and others, ‘Evaluating the Long-​Term Effects of Prisoner Reentry Services on Recidivism: What Types of Services Matter?’ (2017) 34 Justice Marilyn J Pittard, Criminalization, Social Exclusion, and Access to Employment In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.0024

Criminalization, Exclusion, and Employment  475 alcohol addiction programs offered.4 Society benefits when the person with a criminal record obtains employment, thereby not requiring social security or welfare and being a fully functioning, or at least an income earning, member of society. The interests of both the individual with a criminal record and society converge in this way. The ex-​offender then becomes a participant in the labour market: an actor in the labour market. Looking through the lens of the employer, however, there may be divergence between its interests, on the one hand, and the interests of the ex-​offender as a labour market participant and those of society in wanting ex-​offenders to be gainfully employed, on the other hand. The employer seeks to engage the best person for the position. Thus qualifications, relevant job experience and skills will be primary considerations for the employer in recruiting. Without even addressing directly the person’s criminal record, these considerations may prevent ex-​offenders from accessing work. Individuals who have spent time away from the workforce may not be regarded as having relevant current experience and skills: the period away from work whilst serving a sentence (‘the gap’ in the person’s career resume) may itself pave the way for rejection from a position. The criminal record, however, can be of significance where a candidate is being seriously considered for a position. Relevant to decisions to employ an individual is the person’s character, reliability, and fitness to hold the job; and employers frequently perceive a person with a criminal record as lacking the requisite character, fitness to hold a job, or reliability. Hence employers commonly regard it as crucial to check the background of a job applicant to ensure that there is no relevant criminal record. Certainly, the state in many countries prescribes some limits or controls on the ability of individuals with criminal records to work with vulnerable people, such as children and aged persons. Frequently, governments impose strict requirements on eligibility for employment in these areas, for example, via working with children checks and restraints in Australia, Canada, and the UK. In employment outside the special areas above involving vulnerable persons, employers can obtain official information on the criminal convictions of applicants, usually with the applicant’s consent, and formal systems facilitate ready access to such information. It enables the employer to apply a ‘zero tolerance’ policy whereby an applicant with a criminal record of any sort may be denied employment with that employer. Other employers may inquire further to ascertain the nature and age of the conviction, whether the ex-​offender has rehabilitated himself or herself, and whether the original crime is relevant to the type of work or the employer. For example a driving offence may be irrelevant to a person’s position as an IT architect, but might require further inquiry of a person seeking employment as a truck driver. Employers may also require disclosure of a criminal record on the basis not only of suitability of character to the employment, but also for reasons which include the safety of fellow workers; safety of third parties, for example customers and contractors, in other words the Quarterly 136; Kendra Bowen, Johnny Nhan, and Katie Polzer, ‘Comparing Ex-​offenders Who Use and Decline Job Readiness Training’ [2017] Corrections accessed 23 October 2018; Danielle Newton and others, ‘The Impact of Vocational Education and Training Programs on Recidivism: A Systematic Review of Current Experimental Evidence’ (2018) 62 International Journal of Offender Therapy and Comparative Criminology 187. 4 See, eg, Andres Rengifo and Don Stemen, ‘The Impact of Drug Treatment on Recidivism: Do Mandatory Programs Make a Difference? Evidence from Kansas’s Senate Bill 123’ (2010) 59 Crime & Delinquency 930; Michael Maume and Christina Lanier, ‘The Effect of Treatment Completion on Recidivism Among TASC Program Clients’ (2018) 62 International Journal of Offender Therapy and Comparative Criminology 4776.

476  Criminality at Work employer’s duty of care to others. Additionally there may well be some reputational reasons motivating the employer to undertake criminal record checks—​the employer may fear or at least be very cautious about adverse publicity which might ensue if there is an incident at work involving an employee who has a criminal record, or even publicity questioning the engagement of an employee with such a record.5 Despite some law suits against employers for the negligent provision of references and failing to disclose past ‘offences’, references from previous employers cannot always be relied on to provide full disclosure of the person’s character and fitness for work, hence employers seek their own information from other sources, such as criminal record checks.6 The common law (without legislative restraint) then enables employers to impose their own views of the attributes sought for its workforce; and may even operate to impose a second tier of ‘justice’ to prevent ex-​offenders from obtaining work. Access to employment by ex-​offenders may be severely restricted by overlooking applicants with a criminal history however irrelevant to the work they are seeking. Recognizing the societal interest in modification of these approaches by employers and cognizant of the injustice which the shadow or indelible stain of a criminal conviction brings, many jurisdictions have enacted laws which: (a) expunge particular convictions after a period of time from the record, so that an applicant need not declare the conviction in a job application or when asked; (b) render it unlawful discrimination for an employer to refuse to employ a person who has a conviction that is not relevant to the job. These considerations apply at point of entry to the workforce. Of importance too are instances where the criminal conviction occurs post-​employment—​for example, where the employee acquires a conviction for conduct outside the workplace, and the employer then decides to dismiss the employee; or where the employee is charged with a serious offence and the employer decides it cannot take the risk of continuing employment and terminates the employment relationship.7 5 See Alfred Blumstein and Kiminori Nakamura, ‘Redemption in the Presence of Widespread Criminal Background Checks’ (2009) 47 Criminology 327, 328 where reputational damage following crime committed in workplace is listed amongst other reasons for conducting criminal record checks. Blumstein and Nakamura state at 328: ‘Employers conduct background checks on job applicants for several different reasons. One reason may be to verify their moral character. Another reason, which is more directly related to the context of criminal-​ history background checks, may be the desire to assess their risk of committing crimes that could cause physical, financial, and reputational damage to the organization.’ See also survey of employers in the UK in 2017 where protecting their company’s reputation was nominated as important amongst other reasons for undertaking criminal record checks:  Sterling Talent Solutions, ‘Background Checks 2018:  UK Trends & Best Practices Report’ (Sterling Talent Solutions 2018) 15. In an earlier US study, the authors, Jennifer Fahey, Cheryl Roberts, and Len Engel in ‘Employment of Ex-​Offenders: Employer Perspectives’ (Final Report, Crime & Justice Institute 2006) 20, stated: ‘Many [employers surveyed] were sympathetic to the difficulties faced by job-​seeking ex-​offenders yet, at the same time, employers were vocal about the paramount need to protect company safety and reputation.’ In Australia, the respondent in a complaint to the Australian Human Rights Commission in BE v Suncorp Group Ltd [2018] AusHRC 122 argued, albeit unsuccessfully, at [69] that: ‘Mr [BE]’s criminal record does not align with Suncorp’s community partnerships and initiatives. Mr [BE]’s criminal record relates to offences involving children and this is not consistent with Suncorp’s Values and activities within the community. His criminal record poses a reputational risk for Suncorp and the charities and community initiatives which we support.’ [emphasis added] 6 Cases of negligent references in hiring decisions have occurred in common law jurisdictions, such as the US and Australia. 7 See, eg, AW v Data#3 Ltd [2016] AusHRC 105 (March 2016); Applicant v Workskil Australia [2018] FWC 3132 (4 June 2018); Steven Maddison v Commonwealth of Australia (acting through and represented by the Department

Criminalization, Exclusion, and Employment  477 Finally, in addition to taking into account criminal records formally accessed through police records or official data held by authorities, employers may base decisions to employ on information about the individual that is yielded through informal sources, searches of the internet, or what that individual himself or herself reveals on social media platforms. Such information may be about an actual conviction; it may also be about a criminal charge (and no later information about whether the charge is dismissed); or simply reveal ‘conduct unbecoming’—​showing the individual as a reckless drinker, mixing with certain company, being named publicly as a harasser and so on. That type of conduct may or may not be criminal in nature; it has not been tested in a court of law. However there is a similar effect to that involving a criminal record, as there is a ‘stain’ which results in the non-​employment of the individual. As the information is not officially held information, the individual may have no formal opportunity to correct the record. The individual can control his or her postings to social media sites, but not those of other social media users who can post this information. The chapter will first set the stage of criminal records and employment and outline the increasing willingness of employers to seek and use a criminal record in employment decisions and the use to which employers put such information. It will examine the role of ex-​offenders in the labour market, with how a criminal record may prevent access to employment and how access to employment may benefit the individual, the employer, and society.

C.  Use of Criminal Record Information in Employment Decisions The increased use by employers of criminal records in hiring decisions is clear. There has been an increase in checks mandated by legislation, for example, for those who will be working with children8 and legislatures in countries such as the US, against the backdrop of national security concerns, have increased requirements on employers to make background checks.9 Apart from legislatively required checks, there is demand by employers for criminal record checks, as employers are increasingly using criminal record checks as a tool in recruitment decisions. In the US, ‘. . . background checks have become a routine of Defence) [2016] FWC 2371 (15 April 2016); Nick Belan v National Union of Workers-​NSW Branch [2017] FWC 5027 (19 October 2017); Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWC 5028 (3 August 2016), revd [2016] FWCFB 8120 (11 November 2016); Garth Duggan v Metropolitan Fire and Emergency Services Board T/​A Metropolitan Fire and Emergency Services Board [2018] FWC 4945 (23 August 2018); Thomas Lynch v Reward Supply Pty Ltd T/​A Reward Hospitality [2018] FWC 969 (22 February 2018). 8 See Australian legislation: Working with Vulnerable People (Background Checking) Act 2011 (ACT); Child Protection (Working with Children) Act 2012 (NSW); Care and Protection of Children Act 2007 (NT); Working with Children (Risk Management and Screening) Act 2000 (Qld); Child Safety (Prohibited Persons) Act 2016 (SA); Registration to Work with Vulnerable People Act 2013 (Tas); Working with Children Act 2005 (Vic); The Working with Children (Criminal Record Checking) Act 2004 (WA). See also UK legislation:  Safeguarding Vulnerable Groups Act 2006. 9 Jeffrey Selbin, Justin McCrary, and Joshua Epstein, ‘Unmarked? Criminal Record Clearing and Employment Outcomes’ (2018) 108 Journal of Law & Criminology 1, 13.

478  Criminality at Work and often dispositive feature of the job application process’,10 with one US survey ­conducted by a human resource management organization with large employer members finding that 87 per cent of its members carry out criminal record checks on job applicants.11 Demand for criminal records checks increased too significantly in relatively recent times in the US12 and Europe.13 Similar increases in use of records by employers have been identified in Australia where ‘requests to CrimTrac, the national criminal record agency, increased 35% from 1.7 million in 2005–​06 to 2.3 million in 2006–​07’ and over a longer period ‘requests to the Australian Federal Police have increased sevenfold since 1997; requests to CrimTrac have increased more than sevenfold since 2000’.14 In the UK it is estimated that 60 per cent of companies use such checks in recruitment ­decisions.15 The use is so widespread that there has been for a concerted call in the US and the UK to ‘ban the box’, the box being the requirement in a job application to disclose whether the applicant has a criminal record.16 The campaign encourages employers not to gather any relevant criminal record information at the point of application.17 It is argued that employers often use the information in an unsophisticated way and adopt policies of excluding anyone with a record, without interrogating whether the ­conviction is old, and whether the person has shown signs of rehabilitation and has not re-​offended and so on.18

10 ibid 9. 11 Society For Human Resource Management, ‘Background Checking—​The Use Of Criminal Background Checks In Hiring Decisions’ SHRM (19 July 2012) accessed 19 November 2018. See also Selbin, McCrary, and Epstein (n 9) 17. 12 Selbin, McCrary and Epstein (n 9) 18: ‘These trends have resulted in a massive number of criminal background checks. The FBI released almost 17 million RAP sheets for the purpose of employment and licensing background checks in 2012, a more than sixfold increase since 2002. The California Attorney General processed over 2 million background checks in 2014. That same year, three of the largest background check companies for private employers reported screening 56 million individuals nationwide.’ 13 See, eg, Elena Larrauri Pijoan, ‘Legal Protections Against Criminal Background Checks in Europe’ (2014) 16 Punishment & Society 50, 50–​53. 14 Bronwyn Naylor, Moira Paterson, and Marilyn Pittard, ‘In the Shadow of a Criminal Record: Proposing a Just Model of Criminal Record Employment Checks’ (2008) 32 Melbourne University Law Review 171, 172. 15 Sterling Talent Solutions, ‘Background Screening Trends & Best Practices Report 2016’ Sterling Talent Solutions (2016) accessed 19 November 2018. 16 See, eg, Megan Reed, ‘Banning the Box in Tennessee:  Embracing Fair Chance Hiring Policies for Ex-​ offenders’ (2016) 47 University of Memphis Law Review 391; Elizabeth Weissert, ‘Get Out of Jail Free? Preventing Employment Discrimination Against People with Criminal Records Using Ban the Box Laws’ (2016) 164 University of Pennsylvania Law Review 1529; Jacqueline Kelley, ‘Rehabilitate, Don’t Recidivate: A Reframing of the Ban the Box Debate’ (2017) 22 Roger Williams University Law Review 590. cf Megan Denver, Justin Pickett, and Shawn Bushway, ‘Criminal Records and Employment: A Survey of Experiences and Attitudes in the United States’ (2018) 35 Justice Quarterly 584; Monica Solinas-​Saunders, Melissa Stacer, and Roger Guy, ‘Ex-​offender Barriers to Employment: Racial Disparities in Labor Markets with Asymmetric Information’ (2015) 38 Journal of Crime and Justice 249. 17 See, eg, Unlock, ‘Ban The Box: Removing the Tick-​Box From Application Forms’ Unlock (2018) accessed 19 November 2018; Beth Avery and Phil Hernandez, ‘Ban the Box: US Cities, Counties, and States Adopt Fair Hiring Policies’ National Employment Law Project (2018) accessed 19 November 2018. 18 Georgina Heydon Bronwyn Naylor, Moira Paterson, and Marilyn Pittard, ‘Lawyers On The Record: Criminal Records, Employment Decisions and lawyers’ Counsel’ (2011) 32 Adelaide Law Review 205.

Criminalization, Exclusion, and Employment  479

D.  Formal Sources of Information on Criminal Backgrounds of Job Applicants The ready availability of information held by the police and government agencies enhances the ability of employers to undertake such checks pre-​employment. These formal systems differ in detail between countries but generally rely on the job applicant consenting to the employer obtaining the information or obtaining it for the employee. In the UK, the Disclosure and Barring Service (DBS) provides police checks for persons who work or live in England and Wales.19 In Australia, the Australian Criminal Intelligence Commission works with the police at state levels in providing police checks.20 In the US, information on criminal background can be accessed from federal, state, or local authorities. There is commonly some attention in these formal schemes to provide mechanisms for correcting the information held. In the US for example the Fair Credit Reporting Act21 enables correction of information. The content of the checks may vary considerably between countries—​the US, to take one example, provides very detailed information that goes beyond criminal convictions and includes arrests and charges, even where convictions do not result.22 Consequently, the number of people who do not have blemish-​free records is extensive in the US, and it is estimated that nearly one-​third of people of working age has a criminal record.23 The impact of routine background checks when recruiting is therefore significant.

E.  Policy and Areas Legislatures Carve Out to Support Certain Criminal Record Checks Where employers decide to undertake background checks, information provided by government agencies and/​or the police which keep records of criminal convictions can be accessed voluntarily. The use of the term ‘voluntary’ must be qualified as employers may require these checks to be undertaken by job applicants, and the job applicant usually regards it as mandatory if they are to be genuinely considered for the position. In addition to employers exercising their discretion to consider background criminal history, policy-​makers often require checking to be undertaken for certain jobs. Specific schemes to protect those with particular vulnerabilities, and to require special standards for the professions, are commonly established by legislatures. Thus the need to protect vulnerable people outweighs the imperatives for the ex-​offenders to obtain employment. 19 See UK Government, ‘Guidance:  Basic Checks’ (2018) accessed 19 November 2018. 20 See Australian Criminal Intelligence Commission, ‘National Policy Checking Service’ (2018) accessed 19 November 2018. 21 15 USC § 1681 22 See, eg, Benjamin Geffen, ‘The Collateral Consequences of Acquittal: Employment Discrimination on the Basis of Arrests Without Convictions’ (2017) 20 University of Pennsylvania Journal of Law and Social Change 81; Shelle Shimizu, ‘Beyond the Box: Safeguarding Employment for Arrested Employees’ (2018) 128 Yale Law Journal Forum 226. 23 Mathew Friedman, ‘Just Facts:  As Many Americans Have Criminal Records as College Diplomas’ (The Brennan Centre for Justice, New York University School of Law 2015) accessed 19 November 2018.

480  Criminality at Work These mandatory schemes will be considered in two categories: (a) protecting vulnerable groups; (b) professional and other registration schemes.

1.  Protecting Vulnerable Groups The groups who are generally identified for special attention are children and older people, and, in some jurisdictions, ‘vulnerable’ people. The concept of vulnerability can be wide-​ ranging as in the Australian Capital Territory, where it is related to characteristics of a person, such as having a physical or mental disability and who as a consequence is ‘disadvantaged’.24 Many jurisdictions have ‘working with children’ legislation that applies to such persons as teachers and people who work in educational institutions; child care workers; social workers; the medical profession including nurses, doctors, first aid workers.25 In other words, generally any person who works with children. Children are generally categorized as persons under the age of eighteen. In Australia, universities have become aware of the need for those staff teaching students who have been admitted to the university and commence their studies before they turn eighteen years to obtain and maintain a working with children card to show they do not have relevant criminal record. Generally a higher standard of care is needed under these schemes for employees working with children and greater attention is focused on those crimes which would put young people at risk. Similarly, older people are also identified as a group which overall may vulnerable. The underlying thinking is that older people’s physical condition may be frail or less robust, and they may not have the same mental acuity as younger folk, hence the need for higher standards of scrutiny of the good character of their employees.26 These schemes generally require the employee to seek the criminal record check and to keep it up-​to-​date. It might need to be reviewed. Thus to obtain the job and to keep it the employee must have a clear criminal record check. In Australia, the processes for a ‘working with children’ check or a working with vulnerable persons check go beyond information that would usually be required to determine a criminal record check. Significantly, ‘working with children’ statutes in various jurisdictions commonly apply not only to those in paid employment, but also to volunteers or those giving their services to working with children without payment.27 Studies suggest that undertaking voluntary work may provide work experience and skills to enable the ex-​offender to step into paid work, with volunteering acting as a bridge to paid employment.28 However, if the person is precluded from undertaking 24 Examples contained in s 7 of the Working with Vulnerable People (Background Checking) Act 2011 (ACT) include: 1 an adult with a physical or mental disability 2 an adult who suffers social or financial hardship 3 an adult who cannot communicate, or who has difficulty communicating, in English 25 See Working With Children Act 2012 (n 8). 26 Legislation in the Australian Capital Territory (ACT) and Tasmania protect older people. See Fair Credit Act (n 21); and the Registration to Work with Vulnerable People Act 2013 (Tas) (n 8). 27 See, eg, Safeguarding Vulnerable Groups Act 2006 (UK) and generally Australian legislation such as Working with Children (Risk Management and Screening) Act 2000 (Qld). 28 Young ex-​offenders in a UK study indicated that undertaking voluntary work enhanced their employability, ‘providing them with new skills, training and experience’, an enhanced resume and also leading to a reference for

Criminalization, Exclusion, and Employment  481 voluntary work in certain sectors because they cannot obtain the necessary voluntary work clearance or permit, that avenue of rehabilitation is closed. Indeed there is a barrier to entry to participating in the labour market.

2. Professional Employees Typically, professions such as lawyers and the medical profession, including doctors and such professionals as physiotherapists, must be registered to practise their profession. One characteristic that intending registrants commonly must establish is that they are of good character, sometimes phrased as being ‘fit and proper’ persons. This would inevitably include declaring any criminal offences in the application to be registered, and the registration board reviewing and determining if these criminal offences prevented registration as a fit and proper person. In Australia this has extended beyond criminal record to include non-​criminal conduct, such as plagiarism at university, with universities having to provide statements about such student disciplinary offences or misconduct to boards registering lawyers for practice. The commission of such offences is not necessarily an absolute bar to registration, but would be the subject of consideration by the relevant registration board. Failure to be registered excludes the person from the profession, potentially forever, hence access to the right to livelihood may be affected, diminished, or prevented by the existence of a criminal record. It would fall upon the applicant to be registered to convince the relevant board that they are a fit person to be registered and that might mean arguing that the conviction was ‘old’, that the conviction is not relevant to the professions, or that the person has now rehabilitated themselves. These factors are akin to the considerations that employers may take into account when deciding whether to engage a person with a criminal record.

F.  Ex-​offenders as Actors in the Labour Market and in Society The approach of employers outlined above (in section C) to checking criminal records and the existence of a record being relevant to hiring decisions lend strong support to the view that a person with a criminal record will have diminished chances of accessing employment; and may indeed have no chance of being employed. Certainly anecdotally there are numerous instances of people who cannot find employment due to the stain of their past conduct in the form of a criminal record.29 The chances of an applicant obtaining job applications: Amy Kirby, ‘Is Volunteering for Everyone? Volunteering Opportunities for Young Ex-​Offenders’ (2016) 15 Safer Communities 82, 86–​87. In another survey of more than 10,000 Australian employers conducted by the Australian Department of Jobs and Small Business, participants were asked how ex-​offenders could improve their employment prospects. Respondents in a survey by the Australian government’s Department of Jobs and Small Business involving 10,000 employers indicated that ‘volunteering or workplace trials were a great way for ex-​offenders to demonstrate their skills, commitment and enthusiasm to a prospective employer’: Department of Jobs and Small Business, ‘Supporting Ex-​offenders into the Jobs Market’ (Australian Government 2018) 4. 29 See, eg, reports of the Australian Human Rights Commission (AHRC) on complaints of discrimination in employment on the basis of irrelevant criminal record: BE v Suncorp Group Ltd [2018] AusHRC 121 (March 2018); Gentleman v Linfox Australia Pty Ltd [2017] AusHRC 113 (January 2017). See also the three AHRC conciliations in 2016 involving non-​employment due to criminal record: AHRC, ‘Conciliation Register List’ (AHRC 2017) accessed 25 October 2018. 30 Discussed below at I.1 and I.2; and see Heydon and others (n 18). 31 See, eg, Kerry Richmond, ‘Having to Check Yes: The Stigma of a Criminal Record and Other Challenges to Obtaining Meaningful Employment for Released Female Offenders’ in Lisa Carter and Catherine Marcum (eds), Female Offenders and Reentry: Pathways and Barriers to Returning to Society (Taylor & Francis 2017) 164; Mikko Aaltonen and others, ‘Comparing Employment Trajectories Before and After First Imprisonment in Four Nordic Countries’ (2017) 57 British Journal of Criminology 828; Stijn Baert and Elsy Verhofstadt, ‘Labour Market Discrimination Against Former Juvenile Delinquents:  Evidence From a Field Experiment’ (2014) 47 Applied Economics 1061. 32 Daniel Nagin and Joel Waldfogel, ‘The Effects of Criminality and Conviction on the Labor Market Status of Young British Offenders’ (1995) 15 International Review of Law and Economics 109. 33 Janna Verbruggen, Arjan Blokland, and Victor van der Geest, ‘Effects of Employment and Unemployment on Serious Offending in a High-​Risk Sample of Men and Women from Ages 18 to 32 in the Netherlands’ (2012) 52 The British Journal of Criminology 845, 865. 34 See, eg, Wing Hong Chui and Kevin Kwok-​ Ying Cheng, ‘The Mark of an Ex-​ prisoner:  Perceived Discrimination and Self-​Stigma of Young Men After Prison in Hong Kong’ (2013) 34 Deviant Behavior 671; Kelly Moore and others, ‘Jail Inmates’ Perceived and Anticipated Stigma: Implications for Post-​release Functioning’ (2013) 12 Self and Identity 527; Terri Winnick and Mark Bodkin, ‘Anticipated Stigma and Stigma Management Among Those to be Labelled “Ex-​con” ’ (2008) 29 Deviant Behavior 295; Thomas LeBel, ‘Invisible Stripes? Formerly Incarcerated Persons’ Perceptions of stigma’ (2012) 33 Deviant Behavior 89.

Criminalization, Exclusion, and Employment  483 self-​exclusion of those with criminal records. They are hidden and uncertain effects of requirements for criminal record checks. Where those with a criminal record are qualified and/​or have skills and experience to contribute to the workforce, the loss to the economy, businesses, and society speaks for itself. Many countries, conscious of the need for offenders to be rehabilitated into society, have good programmes to train prisoners whilst in jail for work when they are released or to obtain qualifications to make them ‘job ready’.35 The efficacy of such programmes in fulfilling their aims is significantly compromised where the ex-​offender either self-​excludes from job applications, or has barriers put in the way that prevent their return to the workforce, either because of strict employment policies to recruit only those with an unblemished record, or because the employer takes a wide interpretation of whether offences are ‘relevant’ to the position sought, thereby excluding more applicants than a realistic interpretation of ‘relevant’ would. It should be recognized, too, that there might be factors other than the person’s criminal record at work that prevent the ex-​offender obtaining employment. Data worldwide shows that a large proportion of offenders in prison have mental illness which might in itself prevent the prisoner resuming a more normal life and being employed.36 Similarly in countries such as Canada and Australia, indigenous groups are heavily represented in prisons compared to the general population, and their race may operate to impede access to work. Whilst discrimination in employment on the basis of mental illness and race are commonly prohibited under anti-​discrimination legislation and unlawful, such unlawful discrimination can be masked and may be hard to prove.37 It is entirely possible that the black market economy may be another route for those with a criminal record obtaining employment—​working under the radar of authorities with responsibility for labour law compliance and not being paid their appropriate wages or conditions. The extent to which this occurs is not accurately known but ‘working for cash’ for employers who do not ask too many questions about the person’s background is not fanciful; and certainly would be tempting to ex-​offenders desperate to work. Education can play an important part in the ex-​offender’s pathway to a job by improving qualifications, skills, and expertise. There is a relative paucity of research on criminal offenders’ access to education and the extent to which admission policies of educational providers may call for the record and use that to exclude the ex-​offender from courses or training. As a general proposition educational providers are by law neither required to seek criminal records of prospective students nor are they prohibited from doing so.38 However 35 See Danielle Newton and others, ‘The Impact of Vocational Education and Training Programs on Recidivism: A Systematic Review of Current Experimental Evidence’ (2018) 62 International Journal of Offender Therapy and Comparative Criminology 187. See also Kerry Richmond, ‘Why Work While Incarcerated? Inmate Perceptions on Prison Industries Employment’ (2014) 53 Journal of Offender Rehabilitation 231. 36 See eg Ian Hamilton, ‘Employment of Ex-​prisoners with Mental Health Problems: A Review’ (2016) 2 Journal of Criminological Research, Policy and Practice 40. See also Australian Institute of Health and Welfare, ‘The Health of Australia’s Prisoners 2015’ (Cat No PHE 207, Canberra, Australian Government 2015) 35–​49; Ian Hamilton and others, ‘Employment of Ex-​prisoners with Mental Health Problems, a Realistic Evaluation Protocol’ (2015) 15 BMC Psychiatry 185. 37 See eg Dominque Allen, ‘Reducing the Burden of Proving Discrimination in Australia’ (2009) 31 Sydney Law Review 579; Jonathan Hunyor, ‘Skin-​Deep: Proof and Inferences of Racial Discrimination in Employment’ (2003) 25 Sydney Law Review 535. See also Committee on the Elimination of Racial Discrimination, Concluding Observations on Australia:  Consideration of Reports Submitted by States Parties under Art 9 of the Convention (2005) UN Doc CERD/​C/​AUS/​CO/​14, para 15. 38 Most literature and studies have occurred in the US where some admission policies exist which may preclude certain ex-​offenders being enrolled. See especially Darby Dickerson, ‘Background Checks in the University

484  Criminality at Work the ex-​offender would be understandably wary of undertaking studies in areas where professional registration is a pre-​requisite to employment in the field and that might ultimately require disclosure of the record and bar graduates with certain criminal records from working in that sector.

G.  Employment and Recidivism Persons who have been punished and are seeking to rehabilitate themselves through employment regard themselves as having ‘done their time’. However they may face another ‘justice system’ in the employment market, where employers make judgements about their suitability for employment. The stain of the conviction remains; in some cases it is indelible. What then for the individual? Sensibly arguing that the person has changed, is now responsible, that the job will not be affected by the record which is irrelevant to the job might or might not convince an employer. If employment does not present as a realistic option, the person may fall back on the social security system, which may be supportive, or not, depending on the jurisdiction. Another realistic ‘path’ is to return to criminal activities. Recidivism is relatively common amongst ex-​offenders and often the product of the circumstances that the job seeker finds themselves in. With time hanging heavily and no or limited means of support presenting themselves, returning to old ways of stealing or defrauding, for example, become tempting alternatives. There are many studies about the effect of employment on recidivism.39 There are factors which complicate isolating employment as the important trigger for ex-​offenders desisting from offending. These include factors such as a person’s age; whether they marry or have a significant other person in their lives for stable relationships; whether they have the safety net of good social security; and whether, in the case of women, they have activities other than employment, that bring order to their lives.40 Some studies show that ‘employment, Admissions Process: An Overview of Legal and Policy Considerations’ (2008) 34 Journal of College and University Law 419; and also Stanley Andrisse, ‘I Went from Prison to Professor—​here’s why Criminal Records Should Not Be Used to Keep People out of College’ The Conversation (16 August 2018) accessed 14 February 2019; Miriam Brodersen, Jack Richman, and Danielle Swick, ‘Risks and Mitigating Factors in Decisions to Accept Students with Criminal Records’ (2009) 45 Journal of Social Work Education 349; Center for Community Alternatives, ‘The Use of Criminal History Records in College Admissions Reconsidered’ (Center for Community Alternatives 2010); Center for Community Alternatives, ‘Boxed Out: Criminal History Screening and College Application Attrition’ (Center for Community Alternatives 2015); Bradley Charles, ‘Full Disclosure or Fingerprints: Standardizing the Landscape of Nursing Program Admissions Requirements’ (2007) 36 Journal of Law and Education 57; Bradley Custer, ‘Admission Denied:  A Case Study of an Ex-​Offender’ (2013) Journal of College Admission 16; Bradley Custer, ‘Why College Admissions Policies for Students with Felony Convictions are not Working at One Institution’ (2013) 88 College and University 28; Judy Farnsworth and Pamela Springer, ‘Background Checks for Nursing Students: What Are Schools Doing?’ (2006) 27 Nursing Education Perspectives 148; Sue King, ‘The Challenges of Inclusivity for Students with a Criminal History’ (2013) 15 Advances in Social Work and Welfare Education 56; Melinda Mitchell Jones and Robert Weninger, ‘Student Criminal Background Checks: Considerations for Schools of Nursing’ (2007) 11 Journal of Nursing Law 163; Matthew Pierce and Carol Runyan, ‘Criminal Records and College Admissions’ (2010) 16 Injury Prevention 58; Amy Vliek, ‘Examining the Impact of a Criminal Background in Social Work Education’ (2018) PhD Dissertation submitted to Western Michigan University. 39 See (n 1). 40 See age: Verbruggen, Blokland, and van der Geest (n 33) 848; effect of whether and who they marry: KS Kendler and others, ‘The Role of Marriage in Criminal Recidivism:  A Longitudinal and Co-​relative Analysis’ (2017) 26 Epidemiology and Psychiatric Sciences 655; the offender’s personal level of self-​control: Gary Kleck and Dylan Jackson, ‘What Kind of Joblessness Affects Crime? A National Case-​Control Study of Serious Property

Criminalization, Exclusion, and Employment  485 as a naturally occurring event, is best viewed as a consequence rather than a contributing cause of criminal desistance’.41 So what comes first, that is, what the causal factor is may be an important question.42 Is it being employed that leads to the person not re-​offending; or does desistance from re-​ offending, that is, the offender has stopped offending, lead to obtaining employment? Does the ability to obtain employment occur because the offender has ‘gone clean’? Or does the very fact of being employed contribute to and happily seal the fate of the offender as an ex-​offender and not a re-​offender? There is much emerging and recent research that indicates the positive effects of employment. For example, Uggen explored whether work was a ‘turning point’ for offenders43 and stated that: Work appears to be a turning point in the life course of criminal offenders over 26 years old. Offenders who are provided even marginal employment opportunities are less likely to reoffend than those not provided such opportunities.44

Further the author, after detailed exploration of results, concluded ‘[t]‌hese results are important because they show that older offenders given jobs are less likely to reoffend than those of comparable age who were not provided these opportunities.’ And that ‘. . . work hastens desistance from crime among older offenders’.45 Similarly, Verbruggen, Blokland, and van der Geest, after examining high-​risk offenders in the age group eighteen to thirty-​two years in the Netherlands, found that ‘employment significantly reduces the number of convictions for both men and women’.46 Their concluded findings show the complexity of the task of ascertaining the effects of employment, and how employment itself might not be a stable influence: To conclude, only a few of the high-​risk men and women in the sample remain officially unemployed during the entire follow-​up. However, while most men and women do transition into the workforce, few seem to do so with much success, as their work histories are highly instable and characterized by multiple spells of unemployment. Still, the ones that do make the transition to work benefit from this transition in the sense that they show a decrease in criminal behaviour. Contrary to what theories as those of Gottfredson and Crime’ (2016) 32 Journal of Quantitative Criminology 489, 508; the offender’s work history: Anke Ramakers and others, ‘Not Just Any Job Will Do: A Study on Employment Characteristics and Recidivism Risks after Release’ (2017) 61 International Journal of Offender Therapy and Comparative Criminology 1795, 1806; the state of the economy in which the ex-​offender is seeking work: Susan Lockwood and John Nally, ‘Race, Education, Employment, and Recidivism Among Offenders in the United States: An Exploration of Complex Issues in the Indianapolis Metropolitan Area’ (2016) 11 International Journal of Criminal Justice Sciences 57, 71; parenthood status: Mioara Zoutewelle-​Terovan and Torbjorn Skardhamar, ‘Timing of Change in Criminal Offending Around Entrance into Parenthood: Gender and Cross-​Country Comparisons for At-​risk Individuals’ (2016) 32 Journal of Quantitative Criminology 695. 41 See Torbjørn Skardhamar and Jukka Savolainen, ‘Does Employment Contribute to Desistance? Offending Trajectories of Crime Prone Men around the Time of Job Entry’ (Discussion Paper no 716, Statistics Norway Research Department, November 2012) accessed 19 November 2018. 42 Verbruggen, Blokland and van der Geest, (n 33) 865. 43 Uggen (n 1) 529–​46. 44 ibid 542. 45 ibid 543. 46 Verbruggen, Blokland and van der Geest (n 33) 863.

486  Criminality at Work Hirschi (1990) and Moffitt (1993) predict, it appears that, even for young adults with a highly problematic background, employment can be of great importance in the desistance process. It does appear to be difficult for these young adults, once they have a job, to hold on to it, which precludes them from optimally benefitting from the advantages employment has to offer.47

That it is challenging for individuals to enter and stay in the workforce is clear from this study—​ex-​offenders’ employment might not be stable; they may move between employment and periods of unemployment; but for those who are able to move into work there is a decrease in criminal behaviour. Whilst there has been debate in the literature, the study by Verbruggen et al contradicted what two previous studies by Gottfredson and Hirschi (1990)48 and Moffitt (1993)49 had shown. At the heart of this debate too is whether there can be any change (redemption) in the criminal—​is the cast of ‘criminal predisposition’ set so that there cannot be a change in behaviour? Uggen argues from his findings that there is ‘clear evidence that a modest work experience later in life can change the behavior of older criminals’.50 There might be ‘multiple pathways’ to desistance, as Laub and Sampson argue in their extensive analysis.51 Hence factors such as stable marriages and employment are relevant.52 Precisely how employment has an effect has also been the subject of scholarly review—​ regular routine that work brings is important, as is the influence of peers and control devices that exist at workplaces for behaviour.53 The studies which find links between recidivism and employment should not be ignored. Many jurisdictions do not risk ignoring the link between employment, recidivism, and rehabilitation when formulating policies in relation to employment for prisoners after leaving jail and implementing schemes encouraging employment and training schemes for prisoners whilst in prison. Underlying prisoner training and employment schemes is a rationale that these aid rehabilitation and inclusion in society.

H.  Employment and Social Inclusion and Exclusion There are benefits too in addition to reducing recidivism that can be identified for the ex-​offender who finds employment—​it brings dignity to the individual who has a role to play in the workplace and society; the individual is not excluded from society because of

47 Verbruggen, Blokland and van der Geest (n 33) 864, citing MR Gottfredson and T Hirschi, A General Theory of Crime (Stanford University Press 1990); TE Moffitt, ‘Adolescence-​limited and Life-​course-​persistent Antisocial Behaviour: A Developmental Taxonomy’ (1993) 100 Psychological Review 674. 48 Gottfredson and Hirschi (n 47). 49 Moffitt (n 47). 50 Uggen (n 1) 544. 51 John Laub and Robert Sampson, ‘Understanding Desistance from Crime’ (2001) 28 Crime and Justice 1, 13. 52 See also KS Kendler and others (n 40). 53 See, eg, Ramakers and others (n 40); Robert Apel and Julie Horney, ‘How and Why Does Work Matter? Employment Conditions, Routine Activities, and Crime among Adult Male Offenders’ (2017) 55 Criminology 307. See also Gary Kleck and Dylan Jackson, ‘What Kind of Joblessness Affects Crime? A National Case-​control Study of Serious Property Crime’ (2016) 32 Journal of Quantitative Criminology 489.

Criminalization, Exclusion, and Employment  487 unemployment; there are benefits of earning income to support families and to enter into relationships that might provide further stability.54 The loss to the individual who cannot find work is enormous. The loss to society may be significant too where the individual has skills to offer. However, the overall benefits to society of ex-​offenders obtaining employment must not be overlooked. These include reducing the financial burden to society where individuals are supporting themselves and not receiving social security benefits from the state; contributing to reduced crime rates and avoiding harm that victims of their crimes might otherwise suffer; avoiding the burdens placed on the criminal justice system and prisons when persons reoffend, in terms of police and court resources, prison and detention costs; increased productivity for the economy; utilization of skills of the ex-​offender; and using their qualifications, which have perhaps been acquired at state expense. A desperate alternative is presented for those seeking rehabilitation through employment—​to change their names and identities and build a false and clean past. Many businesses operate today which ‘clean up’ a person’s past by making information about past crimes less accessible.55 Creating a new name and identity was the path taken by the convicted murderer, John Kerr, and documented in the book Certain Admissions.56 After repeatedly either not securing employment under his known identity or securing employment then being dismissed when his past was discovered, John Kerr changed his name, built a new identity, and even created references of fictitious employers. The extent to which recourse is had to this course of action is not known.

I.  Legal Intervention to Assist the Vulnerable Job Seeker with a Criminal Record Legislatures and policy-​makers recognize the benefits of employment and that the stain of the conviction may remain long after the punishment has ended. There are a few types of legal intervention that exist in jurisdictions to ameliorate the harshness of the common law which permits an employer to hire only those with clean records or to demand the provision of criminal records as an engagement tool. These interventions include: • spent conviction or clean slate legislation to expunge certain criminal records; • anti-​discrimination legislation; • other protective legislation.

54 See Gina Curcio and April Pattavina, ‘Still Paying for the Past: Examining Gender Differences in Employment Among Individuals with a Criminal Record’ (2018) Women & Criminal Justice 3 accessed 23 October 2018. 55 Examples include Erase Mugshots (2018) accessed 19 November 2018; Remove Slander (2018) accessed 19 November 2018. See also Jamie Lund, ‘Managing Your Online Identity’ (2012) 15 Journal of Internet Law 3. 56 Gideon Haigh, Certain Admissions: A Beach, a Body and a Lifetime of Secrets (Penguin 2015).

488  Criminality at Work

1.  Spent Conviction or Clean Slate Legislation One of the significant policy interventions in the field is spent conviction or clean slate legislation57 which enables a person to not only not declare any convictions in an application but also supports them to respond in the negative if asked whether they have a conviction. Typically that legislative intervention applies to old convictions or convictions that were found a certain specified number of years ago. The legislature typically selects a period after which the conviction is regarded as spent; and nominates or identifies certain convictions, which are usually less serious convictions and commonly do not apply to homicide or significant sexual offences. The underlying policy is that the stain of a conviction should not be ‘indelible’ or last forever; that the person has been punished and paid the price for committing the criminal offence; and that rehabilitation may require the person to be ‘set free’ without that record. In cases of crimes committed by reckless youth, such as shoplifting, that a misdemeanor of youth should haunt them forever is addressed; and appropriate allowance is made to allow time to enable rehabilitation—​if no other crimes have been committed the person has then a clean record. This is an attempt to ameliorate what Professor Jacobs has termed the ‘eternal criminal record’.58 The applicable period and the type of crime that can be spent vary from jurisdiction to jurisdiction. Even within countries such as Australia there is variation between the states as to how old a conviction should be; and the types of convictions embraced within the scheme. Further differences emerge as to how the schemes operate.59 Some expunge the record; it is no longer available. Others simply enable a person to state they have no convictions of the type that are covered by the legislative scheme, even asked directly. Some specific crimes have received special legislative attention—​for example, legislation to expunge historic homosexual offences in several Australian states, the UK, and New Zealand.60

2.  Anti-​discrimination Legislation Anti-​discrimination legislation is commonly utilized to protect against discrimination which occurs when a criminal record is used extensively. For example, it may prohibit discrimination based on whether the conviction in the past record of the job applicant is irrelevant to the position being applied for. There are a variety of approaches. In Australia, federal legislation prohibits discrimination on ‘irrelevant criminal record’, but lacks teeth as to enforcement. The Australian Human Rights Commission has power to investigate 57 New Zealand enacted the Criminal Records (Clean Slate) Act 2004. See also Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld); Annulled Convictions Act 2003 (Tas); Rehabilitation of Offenders Act 1974 (UK). Canada has a system of record suspension. 58 James Jacobs, The Eternal Criminal Record (Harvard University Press 2015). 59 See, eg, Selbin, McCrary and Epstein (n 9) 22. 60 Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014 (Vic) amending the Sentencing Act 1991 (Vic); Expungement of Historical Homosexual Offence Records Act 2018 (NT); Criminal Law (Historical Homosexual Convictions Expungement) Act 2017 (QLD); Historical Homosexual Convictions Expungement Act 2018 (WA); Protection of Freedoms Act 2012 (UK); Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (NZ).

Criminalization, Exclusion, and Employment  489 complaints of such discrimination and to make ‘orders’ which cannot be enforced. It can publish reports of complaints of discrimination that it has investigated. Further, it has published guidelines for employers that do not have force or effect but are sensibly created to provide operational guidance to employers within the framework of the law providing that there shall not be discrimination on the basis of irrelevant criminal record. There is also protection under state anti-​discrimination laws,61 but these protections are not uniform and give rise to patchy protection.62 Where employer policies of requiring applicants with a clean record impact disproportionately on a particular race, for example, indigenous people, unlawful indirect discrimination may occur.63 Such cases, often settled, have emerged in the US before the Equal Employment Opportunity Commission where some employer policies disproportionately and significantly affected African Americans by denying them jobs.64 Anti-​discrimination legislation may protect vulnerable job seekers where another discriminatory ground is made out—​for example, indigenous ex-​offenders denied employment may argue they have been discriminated against on the basis of race; ex-​offenders with mental illness may claim discrimination on the basis of that mental illness. However there are unique challenges faced by people who fall into multiple categories of disadvantage—​for example, a person with a criminal record who is from a racial minority faces different challenges to a person with a record who is not from a racial minority.

3.  Other Legislative Protections The Fair Work Act 2009 (Cth) includes prohibitions on dismissal, engagement of prospective employees, and treatment during employment for discriminatory reasons. However the discriminatory grounds in this Act, whilst largely replicating the discriminatory grounds in federal anti-​discrimination legislation, curiously do not include irrelevant criminal record. Hence there is a regulatory gap in this legislation to protect job applicants against such discriminatory conduct. It might be possible to argue unfair dismissal where an employee is dismissed for a reason that is not ‘valid’, for example irrelevant criminal record, but this does not provide a remedy to the job applicant who misses out on being offered a job due to the criminal record. Given that dismissal seems generally more controlled by regulation

61 See, eg, Anti-​Discrimination Act 1998 (Tas), s 16; Anti-​Discrimination Act 1992 (NT), ss 3(b), 19(1)(q). However, note the exceptions in s 50 of the Tasmanian Act, and s 37 of the NT Act, which allow criminal record discrimination in certain circumstances where the subject of the discrimination would be dealing with children. The s 37 exception in NT also allows such discrimination where the subject will be dealing with other vulnerable persons such as aged persons and persons with physical or intellectual disability or mental illness: s 37(2). 62 Bronwyn Naylor, Moira Paterson, and Marilyn Pittard, ‘In the Shadow of a Criminal Record: Proposing a Just Model of Criminal Record Employment Checks’ (2008) 32 Melbourne University Law Review 171. 63 Indigenous people are significantly more likely to be incarcerated, and are therefore more likely to have criminal records, than non-​indigenous people: see, eg, Australian Law Reform Commission, Pathways to Justice—​An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples: Final Report (ALRC Report 133, December 2017) 26, 89–​124; Australian Bureau of Statistics, Prisoners in Australia, 2017 (Cat No 4517.0, 2017) accessed 30 October 2018. 64 See, eg, EEOC v BMW Manufacturing Co, LLC (D SC, Civ No 7:13-​cv-​01583, Consent Decree filed 8 September 2015). See also Alexandra Harwin, ‘Title VII Challenges to Employment Discrimination Against Minority Men with Criminal Records’ (2012) 14 Berkeley Journal of African-​American Law & Policy 2.

490  Criminality at Work than refusal of employment, this operates unevenly to afford more protection when the ex-​ offender has managed to secure employment than when they are endeavouring to be employed. An avenue available in Australia for job applicants is via complaint to the Australian Human Rights Commission (AHRC).65 Whilst this avenue has resulted in seventeen inquiries undertaken by the AHRC, it can only recommend remedies; and in a startlingly small number of cases—​two, representing under 12 per cent of complaints—​was the recommendation implemented and followed fully by the employer.66 In ten cases the employer refused to follow the recommendation, with the employers’ actions unknown in the five remaining cases.67 This process before the AHRC is in strong contrast to the power of the Fair Work Commission to order reinstatement or compensation for unfairly dismissed workers who have a newly discovered or obtained criminal record. Both groups—​the dismissed employee and the job applicant—​suffer the same fate in loss of employment or prospective employment or exclusion from the labour market—​however the job holder generally has more protection under unfair dismissal laws.

65 Prospective employees can also claim adverse action under the Fair Work Act 2009 (Cth) but there is limited ability for such applicants to claim relief for being denied employment on the basis of their criminal record. 66 See Smith v Redflex Traffic Systems Pty Ltd [2018] AusHRC 125 (the respondent implemented all of the Commission’s recommendations by paying the recommended compensation to the complainant, revising its internal policies, and carrying out internal training for those involved in employment decisions); AV v Dial-​An-​ Angel Pty Ltd [2015] AusHRC 97 (the respondent implemented all of the Commission’s recommendations by paying the recommended compensation, issuing a written apology to the complainant, and stating that it will review future job applications in light of the Commission’s pronouncements). 67 See BE v Suncorp Group Ltd [2018] AusHRC 121 (the respondent refused to pay any compensation to the complainant and maintained that its existing recruitment procedures are satisfactory. It agreed only to consider a publication by the Commission on criminal record discrimination in employment as part of the respondent’s ongoing review of procedures and training); Gentleman v Linfox Australia Pty Ltd [2017] AusHRC 113 (the ­respondent refused to pay the recommended compensation and did not address the Commission’s other recommendations in its response); AN v ANZ Banking Group Limited [2015] AusHRC 93 (the respondent declined to provide a formal apology to the complainant. However, the respondent stated that it will now place greater emphasis on the age of a criminal conviction in making certain employment decisions, and will conduct internal refresher training. Uniquely, the claimant in this case did not seek compensation and so compensatory matters were not considered or recommended); TM v Linfox Australia Pty Ltd [2014] AusHRC 81 (the respondent refused to pay any compensation to the complainant and refused to provide an apology); BD v Queensland (Department of Community Safety) [2013] AusHRC 61 (the respondent refused to pay the recommended compensation. However, the respondent stated that it will review its internal policies and procedures regarding criminal history checks, provided a formal written apology to the complainant, and offered to pay up to $500 if the respondent’s legal costs); DA v Commonwealth of Australia (Australian Federal Police) [2012] AusHRC 59 (the respondent refused to pay the recommended compensation and maintained that its current processes were satisfactory); Christensen v Adelaide Casino Pty Ltd [2002] AusHRC 20 (the respondent refused to implement any recommendations and disagreed with all of the Commission’s findings); KL v State of NSW (Department of Education) [2010] AusHRC 42 (the respondent refused to take any action with respect to the Commission’s recommendations); CG v State of NSW (Rail Corporation NSW) [2012] AusHRC 48 (the respondent refused to pay compensation, maintaining that its conduct was not discriminatory, but would be reviewing its internal recruitment procedures); Campbell v Black & White Cabs Pty Ltd and Tighe [2012] AusHRC 50 (the respondent refused to implement any of the Commission’s recommendations and noted that the Commission had not had ‘first-​hand experience’ of the circumstances giving rise to the case). Johansson v Masonic Homes Inc [2014] AusHRC 65 (no information on the respondent’s response to the Commission’s recommendations was published); PJ v AMP Financial Planning Pty Ltd [2014] AusHRC 89 (the respondent formally refused to inform the Commission of its response to the Commission’s recommendations); Hall v NSW Thoroughbred Racing Board [2002] AusHRC 19 (no information on the respondent’s response to the Commission’s recommendations was published); Ottaviano v South Australia (South Australia Police) [2008] AusHRC 38 (the respondent formally refused to inform the Commission of its response to the Commission’s recommendations, and only acknowledged the Commission’s findings and recommendations); Gordon v Victoria (Emergency Services Telecommunications Authority) [2006] AusHRC 33 (the respondent informed the Commission that it was considering the recommendations but did not specify which were implemented).

Criminalization, Exclusion, and Employment  491

J.  Adequacy of Legislative Intervention The spent conviction legislation goes some way to lessening the effect of a criminal conviction through expunging the record for certain convictions of certain length. However there is no unified approach to these legislative interventions. In Australia, for example, most states have such schemes but they differ so whether an ex-​offender benefits from the scheme may depend on which particular state the employer is in. Perhaps of more concern is the ambiguity around whether a conviction is spent and how the ex-​offender actually knows when it is spent. The decision to require the provision of a criminal record is entirely in the hands of the employer, except where the legislature mandates criminal record checks in the case of applicants who will be working with vulnerable persons. It is only when discriminatory use is made of the record that there can be some protection to employee where, and only where, there is legislative protection against such discrimination. As with other grounds of discrimination, however, unlawful discrimination may occur but not be able to be proved. Clever or devious employers may hide the real reason an applicant is rejected from obtaining employment; it is only where there is some unusual frankness expressed that the ground be made out, as in the case where the applicant was the preferred candidate but was told that the application was rejected because of an irrelevant criminal record.68 Thus the same defect that haunts many allegations of discrimination exists—​the problem of proof.69 Moreover in the Australian context, there is no effective enforcement or compliance mechanism to compel a remedy, even where there is a proven ground of discrimination. The Fair Work Act is not seen as an effective mechanism for protecting against discrimination on the ground of criminal record. Echoing anti-​discrimination legislation the Act does not contain irrelevant criminal record as a ground for discrimination. Hence any protection would need to be on account of other grounds, which may be hard to make out in these scenarios.

K.  Employment, Unfair Dismissal Legislation, and Criminal Behaviour Another area of legislative intervention may provide some relief for offenders who lose their jobs. An employee (without a criminal record) who secures employment may find their continuing employment jeopardized if they commit a crime during their employment. Where the crime carries a custodial sentence, the contract of employment may be regarded as terminated through frustration—​the employee is prevented from performing the contract and the employer may regard the contract as at an end.70 Another example of the employment contract being frustrated might arise when an employee has been charged with an offence but has not been granted bail and is being held in detention pending trial.71 68 Mr CG v State of NSW (RailCorp NSW) [2012] AusHRC 48 (January 2012). 69 Some anti-​discrimination legislation endeavours to overcome problems of proof by reversing the onus of proof. See Allen (n 37); Human Rights and Equal Opportunity Commission, ‘An International Comparison of the Racial Discrimination Act 1975’ (HREOC Background Paper No 1, 2007) 79–​96. 70 See, eg, Steven Maddison v Commonwealth of Australia (acting through and represented by the Department of Defence) [2016] FWC 2371 (15 April 2016). 71 See Thomas Lynch v Reward Supply Pty Ltd T/​A Reward Hospitality [2018] FWC 969.

492  Criminality at Work Even where subsequently the employee is not found guilty of the crime, the damage to employment is already done where the contract is treated as at an end. Where the criminal conviction is less serious, resulting in say a fine, the employer may decide to terminate the offender’s employment. At common law, so long as wrongful dismissal has not occurred there is no redress—​an employer can dismiss for any reason. The commission of the crime has made the employee’s employment vulnerable. Unfair dismissal legislation which ameliorates the common law may protect employees from dismissal where the dismissal is not justified,72 or there is not a valid reason.73 Hence if the conviction relates to, say, dangerous driving and the employee is not engaged to be a driver, the conviction may be irrelevant to the employee continuing to perform his or her duties under the contract, for example, as a teacher or an events manager. Where an employer dismisses an employee without justified or valid reason, the employer may find itself a respondent to a tribunal order that it has unfairly dismissed the employee and be ordered to reinstate the employee in his or her previous employment or compensate the employee financially for loss of employment. The latter remedy is some comfort—​but inadequate comfort—​to the employee who has been excluded from the workplace and who is then seeking new employment, whilst having to combat the impression with prospective employers that they are not suitable for employment despite their criminal record. The protection gained from unfair dismissal legislation is rather lukewarm.74 Arguably, a human rights approach could be utilized in the UK to strengthen the unfair dismissal laws to protect ex-​offenders. The European Court of Human Rights in Barbulescue v Romania75 broadly interpreted the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights as protecting workers who had a ‘reasonable expectation of privacy’. Cases have supported the principle that ‘private life’ within Article 8(1) may include the criminal record of an individual;76 and Lord Hope has stated that, as a criminal conviction ‘recedes into the past, it becomes a part of the person’s private life which must be respected’.77 Dismissal from employment is therefore arguably a restriction on the professional life of an employee so that Article 8 could be invoked.78 Where dismissal occurs when charges are laid but no conviction as yet is found, the validity of that reason for dismissal may depend on the nature of the charge, and, if it relates to a matter occurring at the workplace, whether the employee has been the subject of an investigation which shows misconduct which could justify dismissal. Hence unfair dismissal

72 Employment Rights Act 1996 (UK), pt X. 73 Fair Work Act 2009 (Cth), pt 3–​2. 74 See, eg, Philippa Collins, ‘The Inadequate Protection of Human Rights in Unfair Dismissal Law’ (2018) 47(4) Industrial Law Journal 504. 75 App no 61496/​08 (ECtHR, 5 September 2017). 76 See R (on the application of P, G and W) v Secretary of State for the Home Department [2019] UKSC 3, [2019] 2 WLR 509; MM v UK App no 24029/​07 (ECtHR, 13 November 2012); R (on the application of L) v Commissioner of Police of the Metropolis [2009] UKSC 3, [2010] 1 AC 410; R (on the application of T and another) v Secretary of State for the Home Department and another [2014] UKSC 35, [2015] AC 49. See also Elena Larrauri Pijoan, ‘Criminal Record Disclosure and the Right to Privacy’ (2014) 10 Criminal Law Review 723, 730–​31 77 R (on the application of L) v Commissioner of Police of the Metropolis [2009] UKSC 3, [2010] 1 AC 410 [27]. 78 To do full justice to the human rights arguments would require fuller discussion than space permits in this chapter. However discussion of this right to privacy in different contexts has been aired in these articles: Joe Purshouse, ‘The Reasonable Expectation of Privacy and the Criminal Suspect’ (2016) 79 Modern Law Review 871, and Virginia Mantouvalou, ‘ “I Lost My Job Over a Facebook Post—​Was that Fair?” Discipline and Dismissal for Social Media Activity’ (2019) 35(1) International Journal of Comparative Labour Law and Industrial Relations 101.

Criminalization, Exclusion, and Employment  493 legislation may not protect dismissal of an employee where criminal charges are laid but a court of law has made no finding of guilt.79 Legislatures may also consider whether probationary periods in unfair dismissal protection could be utilized to encourage the engagement of ex-​offenders. The concerns and fears that employers might have in engaging an ex-​offender might be able to be tested during what is in effect a trial period, with the comfort that the employer could terminate the contract without the risk of unfair dismissal laws being invoked. In many jurisdictions there exists a qualifying period before employers are in effect subject to unfair dismissal laws—​ and these arguably perform the same function as probationary periods.80

L.  Impact of Informal Sources of Information about a Person’s Conduct on Employment We have seen that anti-​discrimination legislation may be of limited protection to an ex-​ offender seeking employment. Spent conviction legislation is of some assistance to expunge certain types of old convictions. However, any protection in the formal schemes for disclosing criminal history can be rendered ineffective by ready access to extensive information provided through the internet, such as media reports. The emergence of the informal system providing information may result in the exclusion of ex-​offenders from the workforce. The formal system involves the official criminal records used by the employer; and legislative intervention outlined above usually focuses on that formal system. The informal system has emerged because of social media; trial by media (eg for harassment, bullying at work); what is shown in newspaper reports of trials; and may serve to thwart or by-​pass some policy endeavours to ameliorate the harshness of the common law. The informal record may reveal to anyone who chooses to search for information about a job applicant including whether they might have been charged with a criminal offence (eg through information on media sources); whether there might be rumours of criminal conduct (again through media sources or gossip blogs); whether a person is being investigated for a crime; whether a person has been the subject of whistleblowing by others in the workplace; and the reports of a trial without necessarily disclosing the final conclusion that the person has been acquitted, and not found guilty. The information can extend to allegations of bullying or sexual harassment, which might constitute criminal assault. Yet none of these reports in the internet are proof of criminal conduct. They are often not verified. Indeed, they may be ‘false facts’, entirely untrue or only partially true; they may 79 Of course, different standards of proof apply so a workplace investigation might show conduct justifying dismissal on the balance of probabilities, whilst criminal charges require the higher standard of proof, beyond reasonable doubt. See, eg, Manuel Maciel v Lynch Admin Services Pty Ltd T/​A Lynch Group [2017] FWC 4914 (28 September 2017); Lauren Webb v The Trustee for SWC Unit Trust T/​A Salisbury Day Surgery [2017] FWC 2572 (26 May 2017). See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and others (1992) 110 ALR 449 [2]‌. However, to overcome the undesirability of two different courts or tribunals making findings of fact that may be inconsistent, unfair dismissal proceedings are sometimes adjourned to allow the criminal matter to be heard: see, eg, Kevin Boyce v Scott Corporation Limited T/​A Bulktrans [2016] FWC 594 (12 February 2016). 80 The Fair Work Act 2009 (Cth) in Australia generally prescribes six months, except in the case of small business employers when the minimum employment period is twelve months, before an employee is eligible to make an unfair dismissal claim: ss 382 and 383. See generally on unfair dismissal under Fair Work Act 2009 Marilyn Pittard and Richard Naughton, Australian Labour and Employment Law (LexisNexis 2015) ch 8. The UK Employment Rights Act 1996 has a longer qualifying period of two years for unfair dismissal claims: ss 94 and 108.

494  Criminality at Work be trumped up, or be the product of the kangaroo court or court of public opinion where public sentiment has turned against the person. The effect of this informal system disclosing criminality of a job seeker may be profound. First it extends the ‘record’ beyond that of the formal criminal record that may be protected, albeit inadequately, by clean slate legislation. Secondly, that ‘record’ is not subject to independent scrutiny, assessment, evaluation, and proof as would occur in a court of law. Thirdly, the ‘record’, unofficial as it is, is potentially retained forever and may not be subject to expunging through the passage of time as would be the case under spent conviction legislation. The aims of spent conviction legislation can be severely undermined by the long memory of the internet. Fourth, there is no opportunity to compel correction of the record as is the case with official criminal record schemes. The emergence of the ‘right to be forgotten’ in Europe is one way that the record can fade, and people not be subject to its effects forever.81 There are also businesses that specialize in cleaning up a person’s profile—​generally by not making the data so accessible to searches.82 The informal record may also extend to social media postings that the person concerned posts on media sites, or that friends and networks post. Hence the informal record extends to social and other activities not generally related to the person’s professional life, but which an employer may deem relevant to the character of the job applicant. Whilst this may not reveal criminal activities or information per se about the person, it might reveal something unsavoury about a person’s conduct or behaviour—​conduct unbecoming—​which the employer may take into account in deciding whether to hire the person.83 The irony is that the job applicant would have complete control over their own postings to social media and perhaps some limited control over the postings by friends, relatives, and networks. By way of contrast, the applicant has virtually no control over other information which appears on the internet and can be easily searched or accessed using search engines. Redress for the individual then is limited, as some jurisdictions, for example Australia, do not have a right to privacy—​the common law courts have not conferred such a right and the federal legislature has not been so far moved to legislate right to privacy, despite law reform recommendations.84 The UK may be developing some more protection in this area for

81 Case C-​131/​12 Google Spain SL, Google Inc v Agencia Española de Protección de Datos (AEPD), Mario Costeja González EU:C:2014:317, [2014] All ER (EC) 717. See also Kyu Ho Youm and Ahran Park, ‘The “Right to be Forgotten” in European Union Law: Data Protection Balanced with Free Speech?’ (2016) 93 Journalism & Mass Communication Quarterly 273; Dominic McGoldrick, ‘Developments in the Right to be Forgotten’ (2013) 13 Human Rights Law Review 761. Recently a Dutch surgeon successfully claimed his ‘right to be forgotten’ in an EU case, so that his previous medical suspension could be ‘forgotten’: see accessed 7 August 2019. The ‘right to be forgotten’ is not always an effective remedy for those wishing to conceal their past convictions and sentences—​see also NT1 and NT2 v Google LLC and The Information Commissioner [2018] EWHC 799 (QB) (13 April 2018) where the issue was whether Google should delete references to the old convictions, now spent convictions, of two businessmen. As Warby J said of the two claims at para [1]‌: ‘[they] are about the “right to be forgotten2 or, more accurately, the right to have personal information “delisted” or “de-​indexed2 by the operators of internet search engines (“ISEs”)’. The ‘delisting’ application was dismissed in respect of one claimant and largely upheld for the other. 82 Online reputation management companies, such as Webimax and Reputation Resolutions, specialize in promoting positive reputations by either removing where possible, or burying, negative online material about a person. There are businesses too which seek to delete personal data from the internet: see, eg, the subscription service DeleteMe. 83 See, eg, Florent Thouvenin and others, Remembering and Forgetting in the Digital Age (Springer 2018) 79. 84 See further Serious Invasions of Privacy in the Digital Era (Australian Law Reform Commission Report 12, 2014); and Moira Paterson, Freedom of Information and Privacy in Australia: Information Access 2.0 (2nd edn, Lexis Nexis 2015).

Criminalization, Exclusion, and Employment  495 those with records they wish to conceal, but it is a slow path to full right of privacy and being forgotten on the internet.85

M.  Concluding Comments—​The Need for Continuing Law Reform This chapter has demonstrated that removing barriers to employment for those with a criminal record is beneficial for their rehabilitation into society. Whilst the protective norms of employment law may go some way to addressing the social exclusion of this highly disadvantaged group—​offenders who have ‘done their time’—​the legal protections provided are somewhat piecemeal, especially under discrimination and unfair dismissal laws. Attempts to expunge the record through spent conviction legislation may be circumvented in some instances by access to criminal record information that is retained in social media and internet sites. The support of additional laws is needed to avoid thwarting existing protections and to strengthen entry into the labour market of ex-​offenders.

85 F Brimblecombe and G Phillipson, ‘Regaining Digital Privacy? The New “Right to be Forgotten” and Online Expression’ (2018) 4(1) Canadian Journal of Comparative and Contemporary Law 1.

25

The Carceral State at Work Exclusion, Coercion, and Subordinated Inclusion Noah D Zatz*

A.  Introduction Work has two faces. It is a boon, even a necessity, providing access to the stuff of life: bread, dignity, purpose, belonging. It is a burden, even a curse: exploiting, humiliating, disrupting, subordinating. In part this reflects the duality of exchange, in which employers and workers both give and receive. But it also reflects a tendency to mystify ‘work’ in the abstract without due regard to the varied particular ways that work may be institutionalized. Through this duality’s lens, this chapter explores how the United States’ current, sprawling ‘carceral state’1 is shaping the conditions and meanings of work—​how it is operating as a heterodox form of labour law. When addressing such interactions between work and racialized mass incarceration, most contemporary scholarship, advocacy, and policy treat work as uplifting and then tell a story of harmful exclusion. The carceral state blocks access to work, especially when a criminal record is disqualifying from employment. It also manages and legitimizes economic displacement by criminalizing poverty. The debilitating side of work has, until recently, largely been confined to the exceptional space of prison labour. But an emerging line of scholarship has begun examining the criminal legal system’s coercion and exploitation of labour outside the prison, an ongoing ‘repressive’ or ‘disciplinary’ aspect of labour regulation that has survived its supposed demise with the decline of master–​servant law.2 Here, the focus turns to work performed under threat of future incarceration. If one considers ‘work’ in the abstract, then these two modes appear contradictory: the carceral state simultaneously excludes people from and coerces them into work.3 Such cross-​cutting pressures would tend to offset in aggregate and, for individuals subject to both, put them in a ‘double bind’.4 But a different picture emerges from highlighting the types of work to which these forces apply. * The author gratefully acknowledges the feedback received from the editors, other contributors, and Naomi Sugie. Research for this chapter was supported in part by the Open Society Foundations. The opinions expressed herein are the author’s own and do not necessarily express the views of the Open Society Foundations. 1 Katherine Beckett and Naomi Murakawa, ‘Mapping the Shadow Carceral State: Toward an Institutionally Capacious Approach to Punishment’ (2012) 16 Theoretical Criminology 221; Kelly Lytle Hernández and others, ‘Introduction: Constructing the Carceral State’ (2015) 102 Journal of American History 18 2 cf Ana Aliverti; Alan Bogg, Keith Ewing, and Andrew Moretta,; Eric Tucker and Judy Fudge, this volume. 3 Although coercive in opposing directions, exclusion and coercion together can be contrasted with the more familiar protective aspects of contemporary labour law: Eric Tucker and Judy Fudge, this volume. 4 Dallas Augustine, ‘Working Around the Law:  Navigating Legal Barriers to Good Work During Reentry’ (2019) 44 Law & Social Inquiry 726. Noah D Zatz, The Carceral State at Work In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.0025

The Carceral State at Work  497 Put schematically, exclusion from ‘good’ jobs complements rather than contradicts coercion into ‘bad’ jobs. The combined result is neither simple exclusion nor the equally facile ‘inclusion’ touted by active labour market policies.5 What emerges is a form of subordinated inclusion or, as the sociologists might put it, stratification.6 At the extreme, this manifests in distinct tiers of substandard work reserved for people subjected to criminal legal control and authorized by that subjection.

B.  Subordinated Inclusion: Frameworks and Foils This section analyses how subordinated inclusion of labour can arise at the intersection of systematic exclusion and state coercion. The thriving yet marginalized tier of unauthorized immigrant labour provides the most familiar contemporary example. Such work is precarious in terms of labour standards and job security but also in physical security from the state violence of detention and deportation. Exclusion and coercion map onto the typology of ‘opportunity hoarding’ and ‘exploitation’, the two simple, complementary mechanisms with which sociologist Douglass Massey has analysed social stratification in the United States.7 Opportunity hoarding is essentially exclusion phrased positively: excluding one group from a resource provides others with unfettered access. When the carceral state ‘marks’8 people as unfit for certain jobs, it reserves those jobs for others deemed deserving on account of their ascribed law-​abidingness. This tracks familiar forms of employment discrimination, where some jobs are reserved for white people and thus denied to Black people. Accordingly, the US carceral state has been described as a ‘New Jim Crow’.9 Criminal legal contact operates as a fundamental form of social categorization and one so thoroughly structured by racial inequality that it re-​establishes Black subordination notwithstanding nominal commitments to colour-​blind social policy. Exploitation complements opportunity hoarding. It extracts resources from a subordinated group and allocates them to a superordinate one. With regard to already extant resources, description as hoarding versus exploitation can turn on a baseline question. A resource initially allocated to A (or unallocated) is hoarded by A if B is blocked from acquiring it. If a resource is initially allocated to B and then appropriated by A, that dispossession can be characterized as exploitation. But the terminology of exploitation, versus the perhaps more general concept of expropriation, is peculiarly appropriate to the production of resources through labour and their subsequent appropriation or hoarding.10 Labour exploitation in the first instance denotes a relationship between worker and employer; in contrast, hoarding jobs through discrimination identifies a relationship among workers. That distinction may fade with further scrutiny. Employers may share some fruits 5 Joel F Handler, Social Citizenship and Workfare in the United States and Western Europe:  The Paradox of Inclusion (CUP 2004). 6 Douglas S Massey, Categorically Unequal: The American Stratification System (Russell Sage Foundation 2007). 7 ibid. 8 Devah Pager, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration (University of Chicago Press 2008). 9 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (The New Press 2012). 10 Massey defines exploitation this way: Massey (n 6) 6. On the overemphasis of labour exploitation relative to land dispossession, see Aileen Moreton-​Robinson, The White Possessive:  Property, Power, and Indigenous Sovereignty (University of Minnesota Press 2015).

498  Criminality at Work of exploitation with other workers in higher status jobs11—​hoarded by the dominant group. More generally, one group’s exploitation in ‘bad’ jobs may confer status on another working in ‘good’ jobs. These are roughly what WEB Du Bois called the psychological and material ‘wages of whiteness’.12 How does exploitation arise? Massey curiously focuses on discrimination and treats as exploitation the concentration of subordinated groups in bad jobs; this neglects the hoarding of better jobs. Overcoming hoarding would require breaching the barriers of exclusion, but what about exploitation? Why don’t workers just quit? The traditional answer is that property relations under capitalism render their choice as ‘work or starve’. Elaborations account for resource distribution within families13 and through ‘decommodified’14 welfare state support. The general point, however, retains its force. Here, state power operates at one step removed from personal work relations, through its enforcement of property law.15 The contrast between economic pressure and more direct physical coercion provides the normative and legal foundation for the ‘free labour’ structure of modern labour markets. In the United States, this distinction is constitutionalized through the Thirteenth Amendment’s ban on slavery and involuntary servitude.16 To constitute prohibited involuntary servitude, a work situation must involve ‘physical or legal coercion’.17 ‘Legal coercion’ here means the state’s exercise of physical power over the body, paradigmatically by arrest and detention; it does not extend to civil money judgments.18 Thus, the threat of physical violence, whether public or private, constitutes legally cognizable coercion. In this vein, the Supreme Court’s foundational involuntary servitude opinion striking down debt peonage equated a situation in which ‘the employing company . . . seize[d]‌the debtor and h[e]ld him to the service’ with one in which ‘the constabulary . . . prevent[ed] the servant from escaping, and . . . force[d] him to work out his debt’.19 The latter was further equated to criminal punishment for failure to work. This same jurisprudence, however, legitimates as voluntary decisions to work under economic pressure alone.20 Thus, where hoarding requires locking some group out, labour exploitation requires locking that group in. The complement to exclusion is inclusion, but not of a warm and fuzzy kind. Where exclusion harms by cutting off social and economic relations, inclusion harms through incorporation into social relations on subordinate terms.21 These terms are

11 Cedric J Robinson, Black Marxism:  The Making of the Black Radical Tradition (Zed Press 2000); Adelle Blackett, ‘Emancipation in the Idea of Labour Law’ in Brian Langille and Guy Davidov (eds), The Idea of Labour Law (OUP 2011). 12 Black Reconstruction in America (The Oxford WEB Du Bois): An Essay Toward a History of the Part Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860–​1880 (OUP 1935). 13 Nancy Folbre, ‘Exploitation Comes Home: A Critique of the Marxian Theory of Family Labour’ (1982) 6 Cambridge Journal of Economics 317. 14 Gosta Esping-​Andersen, The Three Worlds of Welfare Capitalism (Princeton University Press 1990). 15 Robert L Hale, ‘Coercion and Distribution in a Supposedly Non-​Coercive State’ (1923) 38 Political Science Quarterly 470. 16 cf Forced Labour Convention (International Labour Organization No 29) (adopted 28 June 1930, entered into force 1 May 1932); Abolition of Forced Labour Convention (International Labour Organization No 105) (adopted 25 June 1957, entered into force 17 January 1959). 17 United States v Kozminski (1987) 487 US 931. 18 Bailey v Alabama (1911) 219 US 219. 19 ibid 244. 20 Aziz Z Huq, ‘Peonage and Contractual Liberty’ (2001) 101 Columbia Law Review 351. 21 Devon Carbado and others, ‘After Inclusion’ (2008) 4 Annual Review of Law & Social Science 83.

The Carceral State at Work  499 enforced by cutting off avenues of escape; hence the centrality of quitting or striking to labour law generally and to involuntary servitude jurisprudence specifically.22 In liberal labour markets, exclusion and inclusion complement one another when opportunity hoarding cuts off upward movement while the work-​or-​starve imperative cuts off labour market exit. Together, these accomplish what the occupational segregation literature calls the ‘crowding’ of subordinated workers into lower rungs of the labour market.23 Because, for Massey, the economic coercion of labour is not group-​specific, it fades into the background. The spotlight is left to group-​specific aspects of discrimination, even though its translation into exploitation relies upon that background condition. The coercive side of this complementarity comes into view when it goes beyond work-​or-​ starve. Unauthorized immigrant workers provide the most salient contemporary example of how hoarding and exploitation may work in concert. In the pre-​1986 US, such workers were paid no less than otherwise similar (in terms of education, experience, etc) but legally authorized workers. In 1986, however, a major shift in law and practice prohibited employers from hiring unauthorized immigrants, intensified deportations over time, and, crucially, established employers as intermediaries charged with screening and identifying unauthorized workers.24 Intensified workplace enforcement has not principally reduced unauthorized employment, as one would expect from formal exclusion alone. Instead, intensified exploitation arose as workers were cut off from better jobs in the formal economy and crowded into more informal ones. They also became dependent on their employers not only for wages but for shelter from immigration authorities. If workers made demands, organized, or quit, employers could pick up the phone and have them detained and deported—​above and beyond cutting off wage income.25 The resulting workplace vulnerability has been widely documented, including significant wage penalties for undocumented status.26 Rather than being excluded from the labour market, unauthorized immigrant workers have been incorporated into its lowest echelons. Moreover, this incorporation often operates below the legal floor of labour rights because challenging violations is difficult and because authorities may view them as undeserving of labour law’s protections.27 The result, in other words, has been subordinated inclusion of unauthorized immigrant workers, notwithstanding formal exclusion. The remainder of this chapter argues that something similar may be developing with regard to workers marked for both exclusion and coercion by the criminal legal system.

22 James Gray Pope, ‘Contract, Race, and Freedom of Labor in the Constitutional Law of “Involuntary Servitude” ’ (2010) 119 Yale Law Journal 1474. 23 Paula England, Comparable Worth: Theories and Evidence (Aldine de Gruyter 1992). 24 Massey (n 6); Stephen Lee, ‘Private Immigration Screening in the Workplace’ (2009) 61 Stanford Law Review 1103. 25 Lee (n 24). 26 Massey (n 6). 27 cf Aliverti, this volume.

500  Criminality at Work

C.  The Carceral State and Labour Market Exclusion Since the late 1990s, considerable attention has focused on the US criminal legal system’s operation as a labour market institution.28 Driving that interest has been the exploding scale and dramatic racial skew of incarceration. The US incarceration rate quintupled in the last quarter of the twentieth century, reaching levels five times larger than even Western Europe’s most avid incarcerator, the United Kingdom.29 This amplified longstanding inequalities in the distribution of criminal justice contact, with African Americans generally facing incarceration rates eight times larger than whites, alongside similarly dramatic within-​race disparities by educational attainment. In absolute terms, by the early 2000s over 2 million Americans were in state custody at any one time, including one-​third of Black male high school dropouts age twenty to forty; one-​quarter of all Black men would go to prison (excluding shorter jail stays) by their early thirties. This criminal legal system’s labour market function has been understood primarily as exclusion. The most prominent, and most legally oriented, connection to exclusion runs through the denial of employment based on a criminal record, especially prior conviction. This concern exemplifies two broader trends: rising attention to questions of ‘reentry’ and of ‘collateral consequences’.30 Reentry focuses on integration into a wide range of social institutions—​including employment, families, political participation, and so on—​in the aftermath of criminal legal contact, but especially after incarceration.31 Collateral consequences typically are defined more narrowly as the consequences of criminal legal contact that arise through civil or administrative law formally separate from the criminal proceedings.32 Examples include restrictions on voting, driver’s licences, receiving social assistance, and, again, employment. Employers’ aversion to hiring people with criminal records has been widely documented. Experimental audit studies using paired ‘testers’ have found dramatic reductions—​ in the vicinity of 50 per cent—​in how often job applications receive follow-​up actions like an interview when a prior conviction is disclosed; these vary substantially by race, with larger percentage reductions for Black applicants compounding their lower baseline follow-​ up rates without a record.33 Direct employer surveys also find that most employers inquire about criminal records when hiring for entry-​level positions and are averse to hiring people with records.34 Reducing such exclusion has been the goal of the ‘Ban the Box’ or ‘Fair Chance Hiring’ movement. This effort has successfully advocated for a spate of state and local laws limiting 28 Bruce Western and Katherine Beckett, ‘How Unregulated is the US Labor Market? The Penal System as a Labor Market Institution’ (1999) 104 American Journal of Sociology 1030. 29 Bruce Western, Punishment and Inequality in America (Russell Sage Foundation 2006). 30 Michael Pinard, ‘An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals’ (2006) 86 Boston University Law Review 623. 31 Jeremy Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry (Urban Institute Press 2005); Joan Petersilia, When Prisoners Come Home: Parole and Prisoner Reentry (OUP 2003). 32 Alec C Ewald, ‘Collateral Consequences in the American States’ (2012) 93 Social Science Quarterly 211. 33 Pager, Marked (n 8); Devah Pager and others, ‘Discrimination in a Low-​Wage Labor Market:  A Field Experiment’ (2009) 74 American Sociological Review 777. 34 Harry J Holzer and others, ‘Perceived Criminality, Criminal Background Checks, and the Racial Hiring Practices of Employers’ (2006) 49 The Journal of Law and Economics 451; Mike Vuolo and others, ‘Criminal Record Questions in the Era of “Ban the Box” ’ (2017) 16 Criminology & Public Policy 139.

The Carceral State at Work  501 employer use of criminal record information.35 Similar efforts have increased scrutiny of criminal record screening under general purpose laws barring indirect race discrimination in employment.36 Employers often report that they check criminal records out of legal obligation.37 In many occupations, including low-​wage human services jobs in health care or child care, state or federal laws directly bar employment of people with records; they also do so indirectly via occupational licensure requirements that authorize or require exclusion based on criminal records.38 These restrictions have been targeted for reform both legislatively and via constitutional litigation challenges.39 Criminal legal contact also can disrupt and degrade employment opportunities indirectly, without reference to a record. Arrest may lead to job loss by virtue of missing work. Extended incarceration may impede post-​release employment through ‘transformative effects’ like degrading skills and work habits, blocking opportunities to gain work experience, and severing social networks that facilitate employment and advancement.40 In combination, these mechanisms are widely thought to drive high levels of unemployment and underemployment among previously convicted people.41 Given the massively disproportionate concentration of criminal legal contact among young, less educated, men of colour, especially African Americans, these effects have been identified as a major contributor to declining employment fortunes among this group as a whole.42 These effects compound more familiar forms of racial discrimination and disadvantage.43 Absent criminal record checks, employers stereotypically attribute criminality to African American applicants, exacerbating widespread race discrimination.44 Michelle Alexander dubbed ‘The New Jim Crow’ the resulting system of pervasive racial stratification structured by racialized mass incarceration.45 In keeping with the above, the New Jim Crow consistently is conceptualized in terms of exclusion. Alexander’s overarching thesis is that the New Jim Crow ‘permanently locks a huge percentage of the African American community out of the mainstream society and 35 Beth Avery and Phil Hernandez, ‘Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies’ (National Employment Law Project 20 April 2018) accessed 7 August 2019. 36 Andrew Elmore, ‘Civil Disabilities in an Era of Diminishing Privacy: A Disability Approach for the Use of Criminal Records in Hiring’ (2015) 64 DePaul Law Review 991; Kimani Paul-​Emile, ‘Beyond Title VII: Rethinking Race, Ex-​Offender Status, and Employment Discrimination in the Information Age’ (2014) 100 Virginia Law Review 893. 37 Harry J Holzer and others, ‘The Effect of an Applicant’s Criminal History on Employer Hiring Decisions and Screening Practices: Evidence from Los Angeles’ in Shawn D Bushway and others (eds), Barriers to Reentry? The Labor Market for Released Prisoners in Post-​Industrial America (Russell Sage Foundation 2007). 38 Michelle Natividad Rodriguez and Beth Avery, ‘Unlicensed & Untapped:  Removing Barriers to State Occupational Licenses for People with Records’ (National Employment Law Project 26 April 2016) accessed 7 August 2019. 39 Peake v Commonwealth (2015) 132 A3d 506 (Pennsylvania Commonwealth Court). 40 Pager, Marked (n 8). 41 Naomi F Sugie, ‘Work as Foraging: A Smartphone Study of Job Search and Employment after Prison’ (2018) 123 American Journal of Sociology 1453. 42 Harry J Holzer and others, ‘Declining Employment Among Young Black Less-​Educated Men: The Role of Incarceration and Child Support’ (2005) 24 Journal of Policy Analysis and Management 329. 43 Pager, Marked (n 8). 44 Holzer and others, ‘Perceived Criminality’ (n 34); Amanda Agan and Sonja Starr, ‘Ban the Box, Criminal Records, and Racial Discrimination: A Field Experiment’ (2018) 133 Quarterly Journal of Economics 191. 45 Alexander (n 9).

502  Criminality at Work economy’.46 More generally, scholars and advocates routinely characterize the carceral state as erecting ‘barriers to employment’,47 a concept that operates both as a subset of the broader category of ‘barriers to reentry’48 and as a specific example of the ‘barriers’ that explain un(der)employment generally among marginalized populations.49 Exclusion also characterizes another, less legally oriented, line of analysis. Not only does prior criminal legal contact lead to labour market exclusion, but prior exclusion leads to criminal legal system involvement. Criminologists and social theorists characterize the latter phenomenon in terms of ‘warehousing’50 of ‘surplus populations’.51 This functions to maintain social order amidst the economic dislocations and inequalities of neoliberalism. The old functions of the now-​shrivelled welfare state are reallocated, in brutalized form, to a new regime of ‘prisonfare’,52 masking mass unemployment, especially among younger Black men, by imprisoning the otherwise unemployed.53 Warehousing accounts generally treat labour market conditions as analytically prior to the carceral response.54 In Wacquant’s case, this marks an explicit contrast with prior regimes: What makes the racial intercession of the carceral system different today is that, unlike slavery, Jim Crow, and the ghetto of the mid-​century, it does not carry out a positive ­economic mission of recruitment and disciplining of an active workforce. The prison serves mainly to warehouse the precarious and deproletarianized fractions of the black working class . . .55

In his account of a rising ‘waste management model’ of criminal law, Jonathan Simon placed its structural roots in a ‘culture for which work remains the overriding source of personal worth’, where ‘the fate of a class excluded from the labour market is to be treated as a kind of a toxic waste’.56 Thus, either way, exclusion is the paradigmatic labour market status of those subjected to criminal legal supervision, whether as cause, effect, or a mutually reinforcing cycle.

46 ibid 13. 47 Devah Pager and others, ‘Sequencing Disadvantage:  Barriers to Employment Facing Young Black and White Men with Criminal Records’ (2009) 623 The ANNALS of the American Academy of Political and Social Science 195. 48 Bushway and others (eds), Barriers to Reentry? (n 37). 49 Sandra K Danziger and Kristin S Seefeldt, ‘Barriers to Employment and the “Hard to Serve”: Implications for Services, Sanctions, and Time Limits’ (2003) 2 Social Policy and Society 151. 50 Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (OUP 2007). 51 Ruth Wilson Gilmore, Golden Gulag:  Prisons, Surplus, Crisis, and Opposition in Globalizing California (University of California Press 2007) 72. 52 Loïc Wacquant, Punishing the Poor:  The Neoliberal Government of Social Insecurity (Duke University Press 2009). 53 Western and Beckett, ‘How Unregulated is the US Labor Market?’ (n 28). 54 cf Georg Rusche and Otto Kirchheimer, Punishment and Social Structure (Transaction Publishers 1939). 55 Wacquant, Punishing the Poor (n 52) 208. 56 Jonathan Simon, Poor Discipline: Parole and the Social Control of the Underclass, 1890–​1990 (University of Chicago Press 1993) 259.

The Carceral State at Work  503

D.  Intermediate Steps: Prison Labour, Channelling, and Wage Penalties Notwithstanding this emphasis on labour market exclusion—​an opportunity-​hoarding lens—​several minor strands of analysis link the carceral state to labour subordination in work, often tentatively or indirectly. Such links arise through consideration of prison labour, channelling towards lower status jobs, and wage effects of criminal record aversion. Prison labour provides the most obvious counterpoint to labour market exclusion. One line of criticism of the ‘prison industrial complex’ is that mass incarceration provides a supply of highly exploitable labour, especially to private firms.57 Consideration of prison labour, however, does not generally alter the labour market exclusion story discussed above. The primary reason is that prison labour generally is understood as separate from, though perhaps complementary to, ‘the labour market’. Earl Smith and Angela Hattery, for instance, theorize incarceration as simultaneously ‘removing unwanted competition from the labor market’,58 and then accomplishing ‘the transformation of that labor so that it can be extracted’ through prison labour.59 Thus, while prison labour, especially for private firms, may operate as a spectacular example of exploitation, it will not alter accounts of labour market exclusion unless accompanied by a fundamental reconceptualization of ‘the labour market’ to include prison labour rather than operate in opposition to it.60 Furthermore, even after the prison boom, prison labour remains relatively economically insignificant. A number of scholars have argued that prison labour, especially its privatized versions, receives attention disproportionate to its scale.61 This complements the prevailing notion that contemporary prison labour has shrivelled relative to its outsized historical role in incarceration,62 though this point has been contested.63 Within the labour market—​or at least outside the prison—​some attention has been given to how exclusion leads not simply to unemployment but to channelling down. If exclusion operates more intensively with regard to better jobs, then the predictable effect will be to push those workers into worse jobs—​and not necessarily out of the labour market.64 One audit study yielded accompanying qualitative data suggesting that Black and Latino applicants were more likely to be channelled, within the audited employer’s workforce, towards lower-​status positions involving less customer contact and more manual labour.65 Vice 57 Earl Smith and Angela Hattery, ‘Incarceration: A Tool for Racial Segregation and Labor Exploitation’ (2008) 15 Race, Gender & Class 79; Angela Y Davis, ‘From the Convict Lease System to the Super-​Max Prison’ in Joy James (ed), States of Confinement: Policing, Detention, and Prisons (St Martin’s Press 2000); Loïc Wacquant, ‘Prisoner Reentry as Myth and Ceremony’ (2010) 34 Dialectical Anthropology 605. 58 Smith and Hattery (n 57) 87. 59 ibid 90. 60 Noah D Zatz, ‘Prison Labor and the Paradox of Paid Nonmarket Work’ in Nina Bandelj (ed), Economic Sociology of Work (Research in the Sociology of Work 19, Emerald Press 2009); Erin Hatton, ‘ “Either You Do It or You’re Going to the Box”: Coerced Labor in Contemporary America’ [2018] Critical Sociology accessed 7 August 2019. 61 Wacquant, ‘Prisoner Reentry’ (n 57); Ruth Wilson Gilmore, ‘The Worrying State of the Anti-​Prison Movement’ Social Justice Blog (23 February 2015) accessed 7 August 2019. 62 Simon, Governing Through Crime (n 50); Keally D McBride, Punishment and Political Order (University of Michigan Press 2007). 63 Heather Ann Thompson, ‘Rethinking Working-​Class Struggle through the Lens of the Carceral State: Toward a Labor History of Inmates and Guards’ (2011) 8 Labor: Studies in Working Class History of the Americas 15. 64 Western, Punishment (n 29). 65 Pager and others, ‘Discrimination’ (n 33).

504  Criminality at Work versa, the criminalization of income-​earning strategies in illegal or informal sectors, which might otherwise provide alternatives to conventional employment, may push people into the low end of conventional employment.66 In this vein, research on criminal records exclusions has been criticized for focusing on jobs—​-​even entry-​level jobs in restaurants, retail, and the like—​that operate above the level at which formerly incarcerated people often work.67 Of course, this begs the question whether presence in those jobs reflects exclusion from others. Scholars have, however, identified a considerable presence of formerly incarcerated people in the most unstable, difficult, low-​paying occupations such as day labour and warehousing, often alongside unauthorized immigrant workers.68 Consistent with a channelling analysis is the modest body of scholarship on the wage effects of prior incarceration. This research finds significant reductions in hourly wages.69 Western finds evidence of concentration in ‘secondary’ forms of employment characterized by shorter job tenure and slow wage growth.70 Negative wage effects typically are understood as an extension of the mechanisms of exclusion.71 Criminal legal system involvement either stigmatizes workers or degrades their productivity, resulting in employer aversion and discrimination. One important study, however, produced results that sit uneasily with this analysis. Becky Pettit and Christopher Lyons found that, in the immediate post-​release period, recently incarcerated people actually experienced higher employment rates than they did pre-​incarceration.72 Their wages, however, were lower.73 Pettit and Lyons attribute this post-​release employment increase to the beneficial influence of services offered via parole. Yet that explanation seems inconsistent with the wage losses: if parole made it easier to find jobs or made people more attractive workers, that ought to have meant access to better, higher-​paying jobs, if not merely quicker employment at similar jobs. Vice versa, if wage decreases were an extension of exclusion, then one would expect an accompanying reduction in employment. An alternative explanation is that workers were more desperate for work post-​release, leading them to accept jobs they previously would have refused: that would yield the observed pattern of higher employment at lower wages. Some evidence consistent with that hypothesis comes from Sugie’s recent finding that, among those just released from prison, higher rates of work are associated with those ‘more willing to take on poorer quality

66 Simon, Governing Through Crime (n 50). 67 Bruce Western, ‘Criminal Background Checks and Employment Among Workers with Criminal Records’ (2008) 7 Criminology & Public Policy 413. 68 Jamie Peck and Nik Theodore, ‘Carceral Chicago: Making the Ex-​Offender Employability Crisis’ (2008) 32 International Journal of Urban and Regional Research 251; Kristin Bumiller, ‘Bad Jobs and Good Workers: The Hiring of Ex-​Prisoners in a Segmented Economy’ (2015) 19 Theoretical Criminology 336; Sugie (n 41). 69 Western, Punishment (n 29); Becky Pettit and Christopher Lyons, ‘Status and the Stigma of Incarceration: The Labor Market Effects of Incarceration by Race, Class, and Criminal Involvement’ in Bushway and others (eds), Barriers to Reentry? (n 37). 70 Western, Punishment (n 29). 71 National Research Council, The Growth of Incarceration in the United States:  Exploring Causes and Consequences (The National Academies Press 2014). 72 Pettit and Lyons (n 69). 73 Sabol found a similar, temporary post-​release increase in employment but did not analyse wages. William Sabol, ‘Local Labor-​Market Conditions and Post-​Prison Employment Experiences of Offenders Released from Ohio State Prisons’ in Bushway and others (eds), Barriers to Reentry? (n 37).

The Carceral State at Work  505 work’.74 One mechanism that could drive such a phenomenon post-​incarceration would be intensified coercion into work, to which the next section turns.

E.  The Carceral State and Labour Coercion Outside of Prison Scholarship on the criminal legal system as a labour market institution largely overlooks practices that amount to coercion into work. These ‘carceral work mandates’75 threaten criminal penalties—​quintessentially incarceration—​for unemployment or underemployment. Rather than erecting barriers to entry into work (thereby excluding), such practices erect barriers to labour market exit, thereby coercing inclusion. These pressures against exit and into work supplement those otherwise produced by economic need for income. Carceral work mandates arise primarily in two ways. One route is via conditions of criminal legal supervision typically conceptualized as ‘alternatives to incarceration’. These include the work requirements that pervade both probation and parole,76 as well as ‘diversion’ programmes.77 The other method builds upon debt obligations for which non-​payment is punishable by incarceration—​primarily child support and criminal fines and fees. These duties to pay are transformed into duties to earn enough to pay.78 This transfers the logic of welfare work requirements from the conditions of access to state economic support to the conditions of freedom from state violence. Consider the work requirements characteristic of ‘community supervision’—​ non-​ custodial criminal legal supervision while someone is living ‘free’ ‘in the community’. Work requirements are ubiquitous conditions of parole, probation, and supervised release.79 This means that, in principle, supervisees can be incarcerated—​technically under the original sentence for the underlying offence of conviction—​for failing to find a job, for quitting or refusing a job, or for working at a job that fails to maximize earnings.80 The limited available evidence suggests that these work requirements are hardly a dead letter.81 As of the early 2000s, at any one time about 9,000 people were held in US prisons or jails on parole or probation revocations for failure to comply with work requirements,82 consistent with data from the 1990s.83 Those figures grow substantially after incorporating

74 Sugie (n 41) 1478. 75 Noah D Zatz, ‘Get to Work or Go to Jail: State Violence and the Racialized Production of Precarious Work’ (forthcoming 2020) 45 Law & Social Inquiry, available online at . 76 Fiona Doherty, ‘Obey All Laws and Be Good:  Probation and the Meaning of Recidivism’ (2015) 104 Georgetown Law Journal 291; Susila Gurusami, ‘Working for Redemption: Formerly Incarcerated Black Women and Punishment in the Labor Market’ (2017) 31 Gender & Society 433; Augustine (n 4). 77 Forrest Stuart, ‘Race, Space, and the Regulation of Surplus Labor: Policing African Americans in Los Angeles’s Skid Row’ (2011) 13 Souls: A Critical Journal of Black Politics, Culture, and Society 197. 78 Noah D Zatz, ‘A New Peonage? Pay, Work, or Go To Jail in Contemporary Child Support Enforcement and Beyond’ (2016) 39 Seattle Law Review 927. 79 Petersilia (n 31); Doherty (n 76); Lawrence F Travis and James Stacey, ‘A Half Century of Parole Rules: Conditions of Parole in the United States, 2008’ (2010) 38 Journal of Criminal Justice 604. 80 Noah D Zatz and others, ‘Get To Work or Go To Jail: Workplace Rights Under Threat’ (UCLA Institute for Research on Labor and Employment:  A New Way of Life Reentry Project, UCLA Labor Center March 2016) accessed 7 August 2019. 81 But cf Simon, Poor Discipline (n 56). 82 Zatz and others, ‘Get To Work or Go To Jail’ (n 80). 83 Petersilia (n 31) 151.

506  Criminality at Work revocations for failure to pay fines, fees, and child support, which are tightly intertwined with work requirements. The credible threat of incarceration for non-​work may shape the work behaviour and conditions of those complying with the mandate, or attempting to.84 One study found that employment was a mainstay of Black women’s interactions with Los Angeles parole and probation officers. Supervised individuals were pressured to work longer, more regular hours, avoid informal work, and prioritize immediate employment work over improving skills or health that might enable longer-​term economic security.85 Another recent study in neighbouring Orange County likewise found that supervisory work requirements added to economic pressures and pushed workers towards formal employment that facilitated documentation of work.86 Investigative journalists also recently examined an Oklahoma court-​ ordered residential drug treatment programme structured around mandatory, unpaid work assignments at a commercial poultry processing plant.87 That report profiles one worker who was incarcerated after becoming unable to work due to on-​the-​job injury while hundreds more abided brutal conditions and no pay. Pressure from state authorities to ‘get to work or go to jail’88 obviously could, at the margin, push workers into ‘bad jobs’ that they otherwise might avoid. Indeed, Augustine specifically found that settling for marginal forms of work, including with temporary staffing agencies, was among the strategies supervisees used to manage the financial and legal pressures to work.89 This direct pressure from the state also provides a disciplinary tool to employers. When employers are empowered to assess workers’ compliance with work requirements or can report non-​compliance to supervisory authorities, they gain the ability to inflict non-​ economic losses of liberty in addition to the economic harms from lost wages. This directly parallels the leverage, discussed above, that employers gain from being able to trigger immigration enforcement. Here, moreover, employers do not even run the risk of being implicated in any impropriety because typically there is no formal bar on employing workers under supervision, unlike unauthorized workers. The point was made brutally clear when a judge in a Syracuse, New York drug court explained to a defendant, ‘[w]‌hen [your employer] calls up and tells me that you are late, or that you’re not there, I’m going to send the cops out to arrest you.’90 There are some indications that such pressures can affect aggregate labour market outcomes. As noted above, the Pettit and Lyons study found that parolees exhibited increased employment but decreased wages.91 That is consistent with what economic theory would predict when the alternative to employment—​loss of not only pay but personal liberty—​deteriorates.92 This coheres with evidence that carceral work mandates in a Texas 84 Hatton (n 60). 85 Gurusami (n 76). 86 Augustine (n 4) 87 Amy Julia Harris and Shoshana Walter, ‘All Work. No Pay: They Thought They Were Going to Rehab. They Ended up in Chicken Plants’ Reveal (4 October 2017) accessed 26 October 2017. 88 Zatz and others, ‘Get To Work or Go To Jail’ (n 80). 89 Augustine (n 4). 90 James L Nolan, ‘Therapeutic Adjudication’ (2002) 39 Society 29, 32. 91 Pettit and Lyons (n 69). 92 Sabol notes in passing that supervision could increase employment either by offering beneficial services or by increasing motivation, without explaining why the latter might be: Sabol (n 73). A National Research Council report suggests that reported post-​incarceration employment increases may be artifacts of shifts from informal

The Carceral State at Work  507 child-​support enforcement programme increased employment but lowered average earnings, which the authors suggest reflects job gains concentrated in lower-​wage positions.93 Such results imply that the programme, which required participation in job search and job readiness services, raised employment by pushing people into worse jobs, not by opening doors to better ones. That coheres with evidence that parole often offers more ‘hassle’ than ‘help’,94 to use the distinction originating in the welfare work requirements literature and transferred to child support and reentry employment programmes.95 Another study focused on payment of criminal fines, fees, and restitution likewise found that work programmes mandated under threat of incarceration increased payments (employment effects were not directly measured), but that the incarceration threat, not any employability benefits from the programming, drove all the increase.96 This lean towards hassle over help—​lowered expectations over expanded opportunities—​ was explicitly embraced by the Obama Administration’s efforts to expand employment by non-​custodial parents in order to increase child support payments. Child-​support non-​ payment is overwhelmingly concentrated in non-​custodial parents with very low income and limited earnings capacity.97 US constitutional law allows incarceration only for ‘willful’ non-​payment, not when non-​payment results from ‘inability to pay’, but this principle has been widely violated.98 To reduce excessive incarceration for non-​payment, the Obama Administration embraced mandatory work programmes, like the Texas one noted above, as an ‘alternative to incarceration’. In contrast to non-​payment alone, it reasoned that non-​ compliance with mandatory work programmes provides an appropriate basis for incarceration because ‘the obligor has the present ability to do what is ordered of him or her’.99 Such structured work programmes build on the legal principle, previously established through case law and statute, that the obligation to pay child support—​enforceable ultimately through incarceration as a civil contempt sanction or criminal sentence—​entails an obligation to obtain the means to pay. Thus, the California Supreme Court’s Moss decision upheld incarceration of a non-​paying, penniless child support obligor who ‘fails or refuses to seek and accept available employment for which the parent is suited by virtue of education, experience, and physical ability’.100 Although this duty to work typically is stated in the abstract, in practice it entails an obligation to work in particular types of jobs. For instance, the ‘willful noncompliance’ label

to formal employment, where study data capture only the latter and supervision privileges the latter: National Research Council, The Growth of Incarceration in the United States (n 71). Informal-​formal transitions could also explain wage decreases if they sacrifice a wage premium for informality. I am grateful to Naomi Sugie for raising this point. 93 Daniel Schroeder and Nicholas Doughty, ‘Texas Non-​ Custodial Parent Choices:  Program Impact Analysis’ (Ray Marshall Centre, Johnson School of Public Affairs, University of Texas August 2009) accessed 7 August 2019. 94 Gurusami (n 76). 95 Lawrence M Mead, ‘Toward a Mandatory Work Policy for Men’ (2007) 17 The Future of Children 43. 96 David Weisburd and others, ‘The Miracle of the Cells: An Experimental Study of Interventions to Increase Payment of Court-​ordered Financial Obligations’ (2008) 7 Criminology & Public Policy 9. 97 Elaine Sorensen and others, Assessing Child Support Arrears in Nine Large States and the Nation: The Urban Institute Report to U.S. Department of Health and Human Services (Urban Institute 2007) accessed 7 August 2019. 98 Tamar R Birckhead, ‘The New Peonage’ (2015) 72 Washington and Lee Law Review 1595. 99 79 Fed Reg 68548, 68557  (17 Nov 2014). 100 Moss v Superior Court (1998) 950 P2d 59, 76 (Cal).

508  Criminality at Work would not be applied to refusing—​even through a deliberate choice—​a job that paid a penny and imposed a lashing daily. The challenge, in other words, is the longstanding welfare state task of distinguishing between voluntary and involuntary unemployment.101 In such contexts, ‘voluntariness’ encodes substantive judgements about acceptable and unacceptable job quality under particular personal circumstance.102 Indeed, the Moss Court’s formulation above—​applying a work obligation qualified by job suitability—​echoes standard formulations in US unemployment insurance law. The question, then, is towards what kinds of jobs are work programme participants directed, on pain of being judged non-​compliant and thus subjected to incarceration? The federal regulations referenced above answer that question via the distinction between ‘labour force attachment’ and ‘human capital enhancement’ strategies that structured US policy debates over welfare work requirements. They endorse the former, specifically rejecting ‘services to promote access to better jobs and careers’.103 In other words, the goal is to ‘persuade’—​through threat of incarceration—​people to take the jobs they already could get but might otherwise avoid.

F.  From Double Binds to Subordinated Inclusion How, then, can we generate an integrated analysis of the US criminal legal system’s exclusion from work and coercion into work? Stated this abstractly, these appear to be contradictory phenomena. Of course, contradictions are possible in complex systems. But attending in finer-​grained fashion to the types of work at issue shows how exclusion and coercion can operate in complementary rather than contradictory ways. This section illustrates that general possibility by highlighting a specific form of labour into which carceral work mandates may push people: court-​ordered ‘community service’. Such work operates outside, and below, the legal labour standards applicable to the conventional market employment from which people with criminal records often are excluded. It thus also provides an illustration of how ‘the criminal law is instrumental in determining the boundaries of . . . which relations count as work relations, for the purposes of worker protection’.104 Were the criminal legal system issuing two contradictory edicts, it would impose a double bind on individuals subject to both: accepting exclusion would mean defying compulsion, and vice versa. This apparent contradiction provides the framework for Dallas Augustine’s pathbreaking study of formerly incarcerated job seekers who reported how both exclusion and compulsion shaped their efforts to find and keep employment.105 Augustine explores how these cross-​cutting constraints produce a legal consciousness among respondents that she dubs ‘working around the law’, in which strategies that are ‘extra-​legal’ with regard to one constraint are nonetheless understood as good faith efforts to satisfy another constraint. Her two cleanest examples involve violating the exclusionary constraint by 101 Joel F Handler and Yeheskel Hasenfeld, The Moral Construction of Poverty:  Welfare Reform in America (Sage 1991). 102 Lucy A Williams, ‘Unemployment Insurance and Low Wage Work’ in Joel F Handler and Lucie White (eds), Hard Labor: Women and Work in the Post-​Welfare Era (ME Sharpe 1999); Noah D Zatz, ‘What Welfare Requires from Work’ (2006) 54 UCLA Law Review 373. 103 79 Fed Reg 68548, 68558 (17 Nov 2014). 104 Alan Bogg and Mark Freedland, Introduction, this volume. 105 Augustine (n 4).

The Carceral State at Work  509 concealing a criminal record from employers, either at hire or during employment. A third involves turning to illicit work; this seems unlikely to satisfy formal work mandates, though it might allow satisfaction of the financial obligations that Augustine groups together with work mandates. Of most interest here, however, is Augustine’s observation of a fourth strategy: accepting ‘bad’ jobs characterized by particularly low wages and short job tenure, often involving off-​ the-​books work or mediation by a temp agency. Notably, this strategy appears not to involve violating any legal constraint. The work seemingly satisfies work mandates, and, crucially, these are positions to which the exclusionary constraint does not apply. Indeed, Augustine notes the importance, and difficulty, of finding temp agencies that do not screen for criminal records. The absence of such exclusion helps explain why workers gravitated to these jobs, as opposed to prior (and typically better) lines of work to which they could not return. From a more structural perspective focused on how criminal legal and labour market institutions interact, this last scenario is the most significant because it identifies how there is a way out of the double bind. That way out consists of working jobs that are not subject to exclusions based on criminal records but that do satisfy carceral work mandates. Insofar as these jobs are inferior to those to which access has been blocked, exclusion alone pushes workers either into these inferior work situations or out of work altogether; carceral work mandates then intervene to cut off the exit option.106 The structural possibility, of which Augustine’s findings are strongly suggestive, is that exclusion (from some jobs) and coercion (into others) could operate in complementary, not contradictory, fashion to keep people at work in worse jobs: subordinated inclusion. Analysing this possibility more fully requires a finer-​grained understanding of both prongs of the putative double bind. First, what is the nature and scale of work where a criminal record is not a barrier, or might even be an affirmative credential insofar as it signals reduced bargaining power and legal vulnerability?107 Second, to what extent does such work satisfy carceral work mandates? The latter question is actually two-​fold. Not only must the work satisfy the mandates (as illicit work is unlikely to do), but the mandates must count rejection of that work as a violation that triggers sanction. This last point is where the distinction between voluntary and involuntary unemployment becomes crucial. Imagine someone for whom the only possible employment (being excluded from the rest) is a job that requires working seventy hours at the minimum wage without overtime. Accepting this job would satisfy the mandate, but what if she rejects it? Would that refusal render the worker ‘voluntarily’ unemployed in violation of a work mandate? Or is she ‘involuntarily’ unemployed because no acceptable work is available and she is at liberty to reject what is on offer? If the latter, the exclusion/​coercion combination does not push her into this job. One might expect even carceral work mandates not to require employment under conditions that violate a worker’s labour rights. That certainly is the case with work requirements attached to social welfare programmes, where even rules that nominally require workers to accept ‘any job’ generally exclude those with illegal conditions.108 But that constraint, even 106 Of course, this is only relative to the financial pressures that already weigh against exit. 107 On employer preferences for more exploitable immigrant workers, see Rachel Bloomekatz, ‘Rethinking Immigration Status Discrimination and Exploitation in the Low-​Wage Workplace’ (2007) 54 UCLA Law Review 1963. 108 Zatz, ‘What Welfare Requires from Work’ (n 101).

510  Criminality at Work were it enforceable, still leaves ample room for downward pressure into jobs that remain above the legal floor. Not only may workers be pushed into less advantageous, but still legal, occupations, but within a single job type there is room for downward wage pressures towards the legal minimums; that dynamic is what ‘prevailing wage’ standards are designed to prevent in work-​based benefit programmes. Similarly, various working conditions, though legal, may be considered harsh enough to legitimize their rejection. Often these involve geography and working time, such as long commutes, rotating shifts, relocation, and mandatory overtime. For instance, welfare work requirements, harsh as they are, nonetheless generally permit individuals to refuse to work more than forty hours per week,109 even though such hours are legal. The potential for downward pressure on labour standards, yet within legal limits, is illustrated by carceral work mandates in child support enforcement. Although those subject to these mandates do not necessarily have a criminal record, often they do.110 Judges appear to treat the obligation to pay support as skewing the voluntary/​involuntary boundary towards requiring quite onerous working conditions. Lynne Haney’s recent study reports one trial judge admonishing an obligor by saying, ‘I just had a father here who’s working four jobs and mows lawns on the weekends . . . [d]‌on’t tell me you can’t do it.’111 The Michigan Supreme Court has opined that [T]‌o avoid conviction for felony nonsupport, parents should be required to have done everything possible to provide for their child and to have arranged their finances in a way that prioritized their parental responsibility.112

Though the court still limits the ‘everything possible’ concept to ‘reasonably possible, lawful avenues of obtaining the revenue’.113 Coupled with a widespread assumption that minimally acceptable employment is readily available—​the trial judge in Moss specifically suggested a job ‘flipping hamburgers at MacDonald’s [sic]’114—​this yields a presumption that unemployment is voluntary, even without specific evidence of inadequate search or inappropriate refusal. Similar dynamics are evident in the limited available research on enforcement of criminal legal fines and fees.115 The fines and fees context, moreover, points to how even legal floors beneath working conditions may not constrain the scope of carceral work mandates. To the contrary, when the imperative to find work collides with the unavailability of work above the legal floor, pressure builds to release the policy double bind by lowering the floor—​and to treat that as a boon to those with renewed ‘opportunities’ to work without exclusion. With labour standards relaxed, workers subjected to carceral work mandates may be pushed into work that would be illegally substandard for other workers. By expanding, through degradation, the 109 ibid. 110 Lynne Haney, ‘Incarcerated Fatherhood: The Entanglements of Child Support Debt and Mass Imprisonment’ (2018) 124 American Journal of Sociology 1. 111 ibid 35. 112 People v Likine (2012) 823 NW2d 50, 55 (Mich). 113 ibid at 70. 114 (n 99) 63. 115 Alexes Harris and others, ‘Drawing Blood from Stones: Legal Debt and Social Inequality in the Contemporary United States’ (2010) 115 American Journal of Sociology 1753; Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor (Russell Sage Foundation 2016).

The Carceral State at Work  511 scope of work into which workers may be pushed, the double bind may be transformed into a double standard. This dynamic operates most clearly in the widespread regime of court-​ordered ‘community service’ intertwined with the imposition and collection of criminal legal fines and fees. Recent years have seen rising attention to, and legal attack on, what have been dubbed ‘modern debtors prisons’.116 These arise where defendants, typically low-​income people of colour, face criminal fines and large multipliers of court fees, often for low-​level misdemeanours or violations such as traffic tickets. Unable to pay, they face incarceration. Most jurisdictions allow some form of ‘community service’ to be performed in lieu of paying certain criminal fines and fees, or at least in lieu of being incarcerated for non-​ payment.117 Indeed, greater allowance and utilization of such community service is among commonly proposed solutions to incarceration for debt.118 Apart from any in-​kind debt relief, community service programmes generally are entirely unpaid. Consistent with their ‘community service’ moniker, this unpaid character is part and parcel of a more general characterization as a form of ‘volunteering’—​despite the threat of incarceration that hovers over non-​participation. As ‘volunteers’, the workers are deemed to work outside the employment relationship to which labour protections attach.119 Defendants assigned to community service in Los Angeles, for instance, are required to sign agreements to this effect.120 Similarly, participants in the Oklahoma drug court poultry processing scheme are deemed to be ‘clients’, not employees.121 In the poultry processing case, coercion into subordinated work operates directly—​ participants do not have even the nominal choice to take some other job. But where community service operates in lieu of paying criminal fines and fees, defendants generally retain the option of paying off the debt directly. Defendants generally would be better off taking even a lousy paying job and using the wages to pay down their criminal legal debt. But many do not do so, presumably because they cannot obtain such employment. With regard to conventional employment, such workers are subjected to a genuine double bind—​unable to find employment on the one hand, obligated to do so under carceral threat on the other. But that bind is incomplete precisely because ‘community service’ is made available to them, and the mandate obliges them to accept it. Work outside the employment relationship—​and below the floor of labour standards—​provides the solution. This mirrors a familiar pattern from welfare work requirements where, for instance, the main US work-​based ‘welfare reform’ statute allowed states to mandate participation in unpaid ‘work experience’ (often known as ‘workfare’) programmes ‘if sufficient private sector employment is not available’.122 Indeed, Simon drew on that example to propose that ‘[g]‌iven the grim prospects that released prisoners have of obtaining paid employment, we must also consider the potential of community service labor’ to provide a pervasive 116 Beth A Colgan, ‘The Excessive Fines Clause: Challenging the Modern Debtors’ Prison’ (2018) 65 UCLA L Rev 2. 117 Harris and others, ‘Drawing Blood from Stones’ (n 115). 118 Alicia Bannon and others, ‘Criminal Justice Debt: A Barrier to Reentry’ (2010)https://​www.brennancenter. org/​our-​work/​research-​reports/​criminal-​justice-​debt-​barrier-​reentry> 119 Sabine Tsuruda, ‘Volunteer Work, Inclusivity, and Social Equality’ in Hugh Collins and others (eds), The Philosophical Foundations of Labour Law (OUP 2018). 120 Zatz and others, ‘Get To Work or Go To Jail’ (n 80). 121 Harris and Walter, ‘All Work. No Pay’ (n 87). 122 42 USC 607(d)(4).

512  Criminality at Work component of parole that could deliver the integrative benefits of employment.123 Yet, as Sugie notes with regard to the highly precarious nature of the work actually performed by people recently released from prison, degraded forms of work may fail to deliver the socially integrative functions typically attributed to post-​release employment and, instead, could even be criminogenic.124 Of course, the inability to find regular employment may be a function of many things, not only a criminal record. But the availability of community service or similar work programmes creates the structural possibility that even complete exclusion from the conventional labour market need not lead to non-​work. Instead, it can operate in conjunction with work mandates to funnel workers into a secondary institution for structuring work, one that operates outside the prison but bears many of prison labour’s legal characteristics as unprotected non-​employment. Although the ‘community service’ moniker may suggest limitations to non-​profit or governmental organizations and to the production of public goods outside ordinary product markets, that need not be the case. My ongoing research in Los Angeles, for instance, finds substantial court-​ordered community service placements in Goodwill Industries, which is organized as a not-​for-​profit but sells a range of household goods in the low-​price retail market; there also are many for-​profit entities that operate in sectors associated with non-​ profits, such as cemeteries. The potential for work pursuant to carceral mandates to be incorporated into conventional profit-​making enterprises, and yet sharply differentiated from conventional employment, is also illustrated by the poultry-​processing scheme referenced above,125 by the modest but growing amount of contemporary prison in outside private firms,126 and by its much larger historical footprint in US prisons.127 Intermediate possibilities also exist where work is institutionalized in forms below the ordinary legal floor for employment but without the full exemption from labour rights associated with community service. For instance, Los Angeles recently passed an ordinance raising the minimum wage to $15 an hour, part of the national Fight for $15 movement. That ordinance, however, contained a carve-​out for transitional employment programmes aimed at formerly incarcerated people; such employers are allowed to pay sub-​minimum wages.128 The rationale, of course, was that any job is better than no job. In broadly similar spirit, Samuel Estreicher recently proposed reducing employment law protections for people with criminal convictions in order to incentivize employers to hire them.129 In both cases, the ‘any job is better than no job’ notion is married to the promise that the substandard work is confined to a transitional period that enables the worker to then move on to standard employment with some other employer. But the structure of these schemes allows the employer to rely on permanently substandard positions through which successive temporary workers

123 Simon, Poor Discipline (n 56) 263. 124 Sugie (n 41). For a similar criticism of welfare work requirements, see Zatz, ‘What Welfare Requires from Work’ (n 101). 125 Harris and Walter, ‘All Work. No Pay’ (n 87). 126 Thompson (n 63). 127 Rebecca M McLennan, The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1776–​1941 (CUP 2008). 128 Los Angeles, Cal, Ordinance 184320 (1 June 2016), codified as Los Angeles Minimum Wage Ordinance, Ch XVIII Municipal Code, art 7 (2016). 129 Samuel Estreicher, ‘Achieving Antidiscrimination Objectives Through “Safe Harbor” Rules for Cases of Chronic Hiring Aversion’ (2017) 2 Journal of Law & Public Affairs 1.

The Carceral State at Work  513 ‘churn’.130 There is little evidence that such workers receive labour market benefits that extend beyond the subsidized period.131 All these examples highlight how problems of non-​work are perennially vulnerable to being ‘solved’ with degraded work. Superficially, such solutions appear as efforts to overcome labour market exclusion. Implicitly, they draw their appeal from the idea of creating access to the goods from which workers are being excluded. But vindicating that principle requires access to jobs comparable to those from which workers are excluded. Instead, in a sleight of hand, the remedial imperative often gets stripped of any job quality benchmark; instead, it gets transformed into a generic imperative to work, under any conditions. That is how a double bind gets transformed into a downward ratchet. That ratchet is difficult to reverse because the availability of labour at substandard conditions undermines incentives to hire it at better ones. Worse yet, pointing to the availability of such work—​and the occasional reluctance of the excluded to accept it—​can turn the tables and recast the outcome of structural exclusion (from better jobs) as the consequence of insufficient eagerness to work (in worse ones). This last risk is particularly acute when the workers in question are often doubly marked by racial stereotypes of laziness or unreliability and by institutions—​through criminal conviction or child support arrears—​that directly attribute irresponsibility.

G.  Conclusion To summarize, the US criminal legal system structures work in two distinct and seemingly contradictory ways. On the one hand, it excludes people from work. On the other, it coerces people into work. These phenomena do not simply operate at loggerheads. Instead, by incorporating attention to the quality of work in question, we can see how these seemingly opposing forces may act in complementary fashion. They may hoard better jobs for those not marked by the criminal legal system as undeserving while also driving people so marked into exploitation in worse jobs, indeed by creating new substandard tiers of work. These substandard tiers may be reserved specifically for people facing these carceral work mandates and may be touted as accommodations allowing them to achieve the holy grail of work, in any form. Whether or not such grim possibilities come about, however, is a function of how binding these cross-​cutting imperatives are in practice, in addition to how widely they are applied. This is, in significant part, a question of legal design. With regard to the exclusionary dimension, active efforts are underway to expand access to better jobs for those marked by criminal legal system contact. Most prominent are attempts to reduce both employer hiring restrictions and legal prohibitions on employment; other efforts include hiring incentives for employers, skill-​building for people with records,

130 Sarah Hamersma and Carolyn Heinrich, ‘Temporary Help Service Firms’ Use of Employer Tax Credits:  Implications for Disadvantaged Workers’ Labor Market Outcomes’ (2008) 74 Southern Economic Journal 1123. 131 ibid; Shawn D Bushway and Robert Apel, ‘A Signaling Perspective on Employment-​ Based Reentry Programming: Training Completion as a Desistance Signal’ (2012) 11 Criminology & Public Policy 21.

514  Criminality at Work and publicly supported credentialing techniques that identify those for whom a record is an especially weak signal of future risk.132 A complementary set of reforms could loosen the downward pressure from carceral work mandates. They are complementary in part because, even in the absence of exclusions based on criminal records, people with records independently face grim labour market prospects,133 as do others who typically face carceral work mandates. Short of simply eliminating the mandates, such reforms could operate in two different ways. One would expand the range of activities permitted to satisfy the mandate. This is the question so prominent in welfare work requirement debates over the appropriateness of education, training, rehabilitation, caregiving, and other forms of useful activity apart from employment.134 In the criminal legal debt context, some current reform bills would allow education to satisfy community service mandates in lieu of payment.135 In essence, such reforms create a range of permissible destinations for those exiting the labour market, thereby expanding opportunities to exit. Another path focuses on which forms of work may legitimately be rejected without state-​ imposed consequence. This includes the standard parameters of work requirements in the social assistance and social insurance context, such as limitations on maximum hours, commuting time, or work below prevailing wages, and these can readily include compliance with ongoing standards within the work relationship, such as protections against harassment or retaliation on various protected grounds, from race to union activity. In essence, such reforms expand the range of jobs from which exit is permissible. Both approaches mitigate the downward pressure from work mandates by enhancing exit rights, consistent with the fundamental role in constitutional and human rights law of prohibitions on forced labour136 and with the renewed emphasis on labour exit rights in neo-​republican theory.137 The two techniques can be tied together when access to alternative activities is predicated on the unavailability of acceptable employment or, vice versa, permissible exit from substandard work is not unqualified but rather conditional on exit into a limited range of alternatives. The two approaches can be integrated with active labour market policies to essentially create an alternative to the conventional labour market where that alternative consists of a minimally acceptable work opportunity. By raising labour standards towards those applicable to regular employment, this is functionally equivalent to converting community service into publicly created paying jobs of last resort, again as seen in the welfare-​to-​work context.138 In this configuration, the cross-​cutting pressures of exclusion and mandates 132 Jennifer L Doleac, ‘Increasing Employment for Individuals with Criminal Records’ (Policy Memo 2016–​2, The Hamilton Project October 2016) accessed 7 August 2019. 133 National Research Council, The Growth of Incarceration in the United States (n 71). 134 Iris Marion Young, ‘Autonomy, Welfare Reform, and the Meaningful Work’ in Eva Feder Kittay and Ellen K Feder (eds), The Subject of Care: Feminist Perspectives on Dependency (Rowman & Littlefield 2003); Noah D Zatz, ‘Welfare to What?’ (2006) 57 Hastings Law Journal 1131. 135 ‘SB 1233 (McGuide): The Community Service Opportunities Act’ (The Women’s Foundation of California) accessed 17 December  2018. 136 Pope (n 22); Zatz, ‘A New Peonage?’ (n 78). 137 Alan Bogg and Cynthia Estlund, ‘The Right to Strike and Contestatory Citizenship’ in Collins and others, Philosophical Foundations of Employment Law (n 119). 138 David T Ellwood and Elisabeth D Welty, ‘Public Service Employment and Mandatory Work: A Policy Whose Time Has Come and Gone and Come Again?’ in Rebecca M Blank and David E Card (eds), Finding Jobs: Work and Welfare Reform (Russell Sage Foundation 2000).

The Carceral State at Work  515 would still push people into work, but that work would sit at, not below, the bottom of the general labour market. As this last possibility illustrates, focusing on job quality rather than the basic fact of coercion leaves some difficult questions for labour lawyers. The most fundamental one concerns the relative importance of formal, direct regulation of work relationships versus workers’ underlying bargaining power founded in the availability of exit. Simply put, the offence of forced labour may persist even when workers are coerced only into ‘good jobs’. When a worker still risks incarceration if the state deems him at fault for refusing, losing, or quitting the job, he will experience workplace dynamics that are different—​and worse—​than for a co-​worker in the ‘same’ job but without personal liberty at stake.139 Were this to be the biggest threat posed by carceral work mandates, however, it would be progress indeed.

139 Linda Bosniak makes the analogous point that immigrant vulnerability to deportation necessarily defeats efforts to achieve equality with citizens via parity in employment rights. Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton University Press 2006).

26

Restorative Regulation of Criminality at Work in Canada Workplace Safety, Penal Law, and Human Capability Enhancement Bruce P Archibald QC

A.  Introduction Mapping the relationship between criminal law and labour law in Canada seems under-​ researched and under-​theorized.1 This may in part be attributable to a situation where practitioners and scholars in the two sub-​disciplines struggle with their own contested normative paradigms, and the thought of attempting to integrate such conceptually dissonant worlds is rather daunting.2 The realm of labour and employment law is currently in a full-​blown intellectual crisis concerning its rationale and scope.3 As for criminal law, disagreements about its purposes and methods are legion and go back for decades if not centuries.4 But, in Canada’s workplaces, criminal law and labour law are intimately intertwined. Criminal law represses criminal behaviour in the workplace and may proscribe, 1 Legal thinking in Canada shares the North American tradition of distinguishing between labour law (governing collective bargaining) on the one hand and employment law (governing individual employment relationships) on the other. In the more international and comparative context of this volume, I will use the label ‘labour law’ to cover both sides of the that dichotomy. Unfortunately, in North America, the European notion of ‘social law’ to encompass both labour and employment law as well as the legal regulation of cognate areas of social welfare is virtually unknown, even if it is now more common for scholars to think about broader contexts of labour market regulation: see Christopher Arup and Richard Mitchell and others (eds), Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (The Federation Press 2006). 2 The list of Canadian law professors who teach and research in the areas of both criminal law and labour/​ employment law is relatively restricted: Bruce Archibald, Brian Etherington, Janine Benedet are examples. But their efforts at integrating the two fields appear to have been modest. See, eg, Janine Benedet, ‘Same-​Sex Sexual Harassment in Employment’ (2000) 26 Queen’s Law Journal 101, and ‘Hostile Environment Sexual Harassment Claims and the Unwelcome Influence of Rape Law’ (1995) 3 Michigan Journal of Gender & Law 125; Bruce Archibald, ‘Teaching Canadian Labour and Employment Law in the Globalized New Economy: Ruminations of an Aging Neophyte’ (2009) 14 Canadian Labour and Employment Law Journal 139, and ‘Let My People Go: Human Capital Investment and Community Capacity Building via Meta/​Regulation in a Deliberative Democracy—​A Modest Contribution for Criminal Law and Restorative Justice’ (2008) 16 Cardozo Journal of International & Comparative Law 1. 3 Mark Freedland and Nicola Kountouris, The Legal Construction of Personal Work Relations (OUP 2011); Brian Langille and Guy Davidov, ‘Introduction: Understanding Labour Law: A Timeless Idea, a Timed-​Out Idea, or an Idea Whose Time has Now Come?’ in Brian Langille and Guy Davidov (eds), The Idea of Labour Law (OUP 2011) 1. 4 Don Stuart, Canadian Criminal Law, Seventh Edition (Carswell 2014). For a recent and significant example of the difficulties of attaining consensus on the normative principles underlying criminal justice, see Andrew Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000) 116 Law Quarterly Review 225; also RA Duff and others (eds), Criminalization: The Political Morality of the Criminal Law (OUP 2014) ; and AP Simester, Antje du Bois-​ Pedain, and Ulfrid Neuman (eds), Liberal Criminal Theory: Essays for Andreas von Hirsch (Hart Publishing 2016). Bruce P Archibald QC, Restorative Regulation of Criminality at Work in Canada In: Criminality at Work. Edited by Alan Bogg, Jennifer Collins, Mark Freedland QC, and Jonathan Herring, Oxford University Press (2020). © Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. DOI: 10.1093/oso/9780198836995.003.0026

Regulation of Criminality at Work in Canada  517 or at least regulate, some forms of personal work relations. Conversely, penal procedures and sanctions are frequently deployed to purportedly protect workers from various harms which may be generated at work. Historically, collective actions by workers to improve their lot were criminalized and elements of that legacy persist with relation to the discipline of unions and their members in workplaces, despite constitutional developments concerning freedom of association and collective bargaining. However, contradictory developments concerning the imposition of criminal sanctions in Canadian workplaces give rise to the prospect of supplementing punitive measures with restorative ones which can emphasize human capability development. This prospect is relevant to resolving labour law’s normative crisis.5 Given space limitations, the focus of this chapter will be on two aspects of the foregoing matters: (a) protection of worker safety through criminal and quasi-​criminal regulation, and (b) the possibilities, when sentencing employers who (or which) have committed infractions of workplace safety, of enhancing human capability development in workplaces.

B.  Penal Law and Worker Protective Regulation: Labour Standards and Occupational Safety 1.  Statutory Labour Standards for Worker Protection While the repression of ‘public harms’ by workers and the responses of their hirers may historically have been central to the common law’s approach to master and servant relations and the criminalization of certain work relations,6 statutory regulation of the workplace has largely been oriented to protection of workers from harmful actions of employers in their almost inevitably unequal relationships. The factory acts, which were intended to tame the worst aspects of exploitative early industrialization, have been superseded by more comprehensive labour standards legislation in virtually all Canadian jurisdictions.7 The post-​ Second World War consolidated labour standards codes or employment standards acts of the provinces deal with such matters as hours of work, vacation entitlements, minimum wages, periods of notice for termination, mass lay-​offs, equal pay for men and women, leave entitlements of various sorts (pregnancy, care of infants and ill dependents, bereavement, court duties, and recently sexual harassment), employment of children, protection for pay earned, and protections around employment recruiting, among other topics.8 The acts are often statements of intention or principle, with specific rules found in ministerial regulations that are tailored to the needs of specific industries. The regulation-​making process has frequently been alleged as being open to political influence.9 Divergences among regulatory 5 See Brian Langille (ed), The Capabilities Approach to Labour Law (OUP March 2019). 6 Douglas Hay and Paul Craven (eds), Masters, Servants, and Magistrates in Britain and the Empire, 1562–​1955 (University of North Carolina Press 2004); Judy Fudge and Eric Tucker, Labour Before the Law: The Regulation of Workers’ Collective Action in Canada, 1900–​1948 (University of Toronto Press 2004); Judy Fudge and others, ‘Changing Boundaries in Employment: Developing a New Platform for Labour Law’ (2003) 10 Canadian Labour and Employment Law Journal 329. 7 Peter Barnacle, Michael Lynk, and others, Employment Law in Canada (4th edn, LexisNexis/​Butterworth 2005, loose-​leaf), Chap 8 passim. 8 ibid. 9 Kyle Buott and others, Labour Standards Reform in Nova Scotia: Reversing the War Against Workers (Canadian Centre for Policy Alternatives 2012); C Michael Mitchell and John C Murray, The Ontario Changing Workplaces Review Final Report:  An Agenda for Workplace Rights (Final Report, May 2017) accessed 7 August 2019.

518  Criminality at Work models is problematic. While there are labour standards officers who are empowered to investigate breach of the regulations and issue compliance orders to employers who are in breach, the process in many jurisdictions is heavily reliant on employee complaints rather than independent action by inspectorates against problematic employers and industries.10 Employees are often reluctant to use the process for fear of retaliation, so that the statutes are most frequently used to force employers to provide statutory entitlements to employees after the breakdown of the employment relationship.11 The civil enforcement powers of the directors of labour standards are more often deployed than quasi-​criminal prosecutions.12 While there are offences with relatively stiff penalties for breaches of the statutes, public prosecutions are normally directed at employers who are repeat offenders.13 Ministerial consent is normally required for isolated private prosecutions.14 All such prosecutions are summary conviction proceedings in provincial criminal courts, which may in principle benefit workers as a whole by efficient deterrent convictions of employers through the reversal of burdens of proof on certain issues15 and presumptive vicarious liability of employers for the actions of its managers.16 However, whilst these ‘quasi-​criminal’, sanctions are available for breaches of labour standards in Canadian workplaces, the reality is that they are rarely invoked.

2.  Earlier Criminal Law Regimes and Workplace Safety The use of criminal and regulatory offences for worker-​protective purposes in Canadian occupational health and safety matters is arguably more effective than in the general labour standards situation just described. Moreover, unlike the labour standards context, for workplace accidents there is a fascinating overlap between Criminal Code offences and regulatory occupational health and safety offences. The first prominent industrial accident case invoking the then new Canadian Criminal Code was Union Colliery v The Queen,17 where a bridge, as part of a railway owned and operated by the mining company to take coal ten miles from its colliery to the port of Nanaimo, British Columbia, collapsed, killing six men 10 ibid. 11 In some jurisdictions the anonymity of complainants is not maintained, such that problems of retaliation are exacerbated in the name of due process in favour of employers 12 Harry Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century (Human Resources and Social Development Canada 2008). 13 ibid 213. 14 ibid 116. Such private prosecutions could in principle be initiated by unions, but such instances are rare. 15 George Adams, Canadian Labour Law (Canada Law Book, 1985) 10–​16; Canada Labour Code RSC 1985 c L-​2, s 98(4) (hereafter CLC). 16 CLC (n 15) s 98(4). In the Canadian federal system, the label ‘criminal law’ is reserved for that legal domain regulated by the Parliament of Canada under its legislative authority pursuant to s 91 of the Constitution Act 1867, and includes most prominently the Criminal Code of Canada. However, Parliament, and the provincial legislatures under s 92 of the Constitution Act 1867, can enact legislation to regulate various subject matters within their respective spheres of legislative authority which prohibit certain conduct, provide penalties for breach, and which will be prosecuted by the relevant government authorities. Such legislation may contain offences which are called ‘public welfare’ or ‘regulatory offences’, of which occupational health and safety legislation is a significant example. Such legislation is sometimes also called ‘quasi-​criminal’. See the text at n 61 and n 87 below for mention of relevant aspects of quasi-​criminal law. In this chapter, I use the label ‘penal law’ to refer compendiously to both criminal and quasi-​criminal law. 17 Union Colliery v The Queen (1900) 31 SCR 81, 4 CCC 400. The Criminal Code, RSC 1985, c C-​46 (hereafter, Code) based largely on the English Draft Code of Sir James Fitzjames Stephen, was first enacted in 1892, although it underwent a major revision in 1954 and has had periodic amendment throughout its history.

Regulation of Criminality at Work in Canada  519 (two of whom were spuriously identified as ‘Japanese’). The Supreme Court of Canada upheld the conviction of the company with a fine of $5000.00 for breach of the then section 213 of the Code, which criminalized the failure to take precautions to prevent danger to human life caused by an object within the control of the accused. It was noted that the company, rather than just natural persons, could be convicted since the offence was drafted to apply to ‘everyone’ who engaged in such conduct. It was also found that a fine was in the discretion of the court even though the offence prescribed no specific punishment. Moreover, the fact that a manslaughter charge might have been laid was found to be no barrier to conviction.18 This case arose well before the advent of modern occupational health and safety legislation, but despite its potential for significant application of the criminal law to deter workplace accidents, such promise was not to be fulfilled. The 1954 revision of the Criminal Code saw the consolidation and streamlining of many code provisions, including those devoted to the criminalization of criminal negligence causing either bodily harm19 or death.20 The definition of criminal negligence now read: ‘Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.’21 For decades there raged in Canadian criminal law jurisprudence a controversy over whether the test for ‘showing a wanton or reckless disregard’ required proof on a subjective or objective standard.22 To the extent that the subjective approach reigned among lower courts, it made the conviction of employers for criminal negligence following industrial accidents more difficult than it otherwise might have been.23 To this doctrinal problem was added the difficulty of obtaining convictions against corporate persons. Canadian courts, in the time since the Union Colliery decision, had adopted a slightly modified variant of the British ‘identity theory’ of corporate liability for crime, as opposed to the more stringent theory of corporate vicarious liability prominent in the United States of America.24 Prosecuting corporate defendants could only be successful during this period if it were found that the mens rea for the offence could be attributed to the ‘directing mind of the corporation’ (ie the Board of Directors or the top managers).25 These substantive doctrines, as well as the criminal burden of proof beyond a reasonable doubt, made it notoriously difficult to convict corporations of criminal negligence causing bodily harm or death in industrial accidents. The criminal law seemed incapable of fulfilling its protective functions in this regard. Such was the juridical situation on 9 May 1992 when an underground

18 The Court also observed that at the time (prior to a major change with the revision of 1954) the Code did not preclude convictions for offences at common law, which remained in force to the extent that the wording of the Criminal Code did not require otherwise. 19 Now found as Code (n 17) s 221. This offence carries a maximum penalty of ten years’ imprisonment. 20 Now Code (n 17) s 220. The penalty for this offence is maximum of imprisonment for life. 21 Now Code (n 17) s 219. The old s 213 of the Code, which proved to be relatively successful in punishing criminal negligence in the workplace, was no longer part of the Code. AJ MacLeod, ‘Offences and Punishments under the New Criminal Code’ (1955) 33 Canadian Bar Review 20; R v Fortin [1957] NBJ No 11. 22 In the famous case of R v Tutton [1989] 1 SCR 1392, the Supreme Court was evenly divided on whether ‘mens rea’ in this context was to be interpreted as ‘subjective’ (involving knowledge or recklessness) or ‘objective’ (involving ‘a marked and substantial departure from the standard of what a reasonable person would do in the circumstances’). 23 See discussion of the Westray Mine Disaster below. 24 On American corporate criminal liability, see David Uhlmann, ‘Deferred Prosecution and Non-​Prosecution Agreements and the Erosion of Corporate Criminal Liability,’ (2013) 72 Maryland Law Review 1295; VS Khanna, ‘Corporate Criminal Liability: What Purpose Does it Serve?’ (1996) 109 Harvard Law Review 1477. 25 Canadian Dredge & Dock Co v The Queen [1985] 1 SCR 662.

520  Criminality at Work explosion rocked the Westray Coal Mine in Stellarton, Nova Scotia, which instantly killed twenty-​six miners.

3.  The Westray Disaster: A Catalyst for Penal Reform of Workplace Regulation The Westray saga illustrates the complexity of the interrelationship between criminal and quasi-​criminal offences on workplace safety and the potential pitfalls which can beset prosecutions which purport to deploy both regulatory levels simultaneously. In addition, the prosecutions became procedurally enmeshed with a public inquiry that was established to identify the causes of the disaster and make recommendations to prevent such occurrences in the future. A simple chronology of the legal aftermath of the Westray disaster sets out the problems with some clarity. The Public Inquiry established under the Coal Mines Regulation Act26 and the Public Inquiries Act27 began in May of 1992,28 but shortly thereafter the Royal Canadian Mounted Police (RCMP) commenced an investigation into whether criminal negligence or homicide charges might be laid in relation to those responsible for the explosion.29 In July 1992 manslaughter charges were laid by the RCMP against both the corporation which owned the mine and two mine managers.30 In addition, charges of criminal negligence causing death were laid at that same time, rooted in inadequate employee training, faulty equipment, absence of stone dusting, failure to deal with methane build-​ups, and failure to adhere to government approved plans in the construction of the mine.31 In September 1992 an injunction was granted by the Nova Scotia Supreme Court to suspend the Public Inquiry because of procedural fairness concerns from the accused under the relatively new Charter of Rights and Freedoms.32 In October, officials of the Nova Scotia Department of Labour laid fifty-​two charges relating to alleged violations of the Province’s Occupational Health and Safety Act (OHSA)33 and/​or the Coal Mines Regulation Act.34 In November 1992 the Nova Scotia Supreme Court ruled that the Public Inquiry was ultra vires provincial powers under the Constitution because of its overlap with federal criminal legislative authority.35 In December 1992 the Nova Scotia Director of Public Prosecutions withdrew thirty-​four of the OHSA charges, and then in March 1993 withdrew the rest, on the grounds that a conviction on those provincial charges at the trial scheduled to begin in April 1993 could prevent convictions in the later trial on the criminal charges due to the principles against double jeopardy.36 Meanwhile, in January 1993 the Nova Scotia Court

26 Coal Mines Regulation Act, RSNS 1989, c 73 (in force between 22 February 1990 and 3 April 2003). 27 Public Inquiries Act, RSNS 1989, c 372. 28 Justice Peter K Richard, The Westray Story: A Predictable Path to Disaster: Report of the Westray Mine Public Inquiry (Westray Mine Public Inquiry 1997). 29 Christopher McCormick, The Westray Chronicles: A Case Study in Corporate Crime (Fernwood Publishing 1999) 168–​69. 30 Code (n 17) s 234. The particulars related primarily to the failure to properly monitor coal dust build-​up thought to have been a primary cause of the explosion. 31 McCormick (n 29) 176. 32 ibid 170. 33 ibid 171. 34 ibid. 35 ibid 172. 36 ibid 173.

Regulation of Criminality at Work in Canada  521 of Appeal had reinstated the Public Inquiry as being intra vires with respect to provincial legislative authority,37 but delayed the proceeding of the inquiry until after the disposition of the criminal matters. The trial on the criminal charges finally got underway in February of 1995, but in June the trial judge granted a Charter-​based stay of proceedings because of a failure by the Crown to disclose to the defence certain evidence dealing with methane sensors and coal dust samples.38 In May, 1995 the Public Inquiry resumed its sittings after the Supreme Court of Canada overturned the delay previously imposed by the Nova Scotia Court of Appeal.39 In December 1995 the Court of Appeal reversed the criminal trial judge’s stay of proceedings and ordered a new trial on the manslaughter and criminal negligence matters, which decision was upheld by the Supreme Court of Canada in March 1997.40 In October 1997 Justice Richards, the Public Inquiry Commissioner, recommended dropping the criminal charges against the mine managers on the grounds that it would be unfair to punish them alone when there was shared responsibility for the disaster among foremen, other employees, government inspectors and, some might have said, politicians. In June 1998 the Public Prosecution Service stayed the criminal charges because of disagreement among experts on the cause of the blast (coal dust or otherwise), concluding that under the criminal burden of proof it was unlikely that a conviction would result.41 In this context, there was some indication that it may have been an error to drop the occupational health and safety charges where a successful prosecution might have been easier.42

4.  Workplace-​related Reform of the Criminal Code Out of the ashes of the Westray tragedy there ultimately emerged some positive developments in terms of the protective capacities of both criminal and quasi-​criminal regulatory mechanisms for the enhancement of workplace safety. Through intensive lobbying efforts with the federal government by the United Steel Workers of America,43 among others, significant amendments were made to the Criminal Code. Perhaps the simplest change was the addition of an explicit duty upon ‘everyone who undertakes, or has authority, to direct how another person does work or performs a task . . . to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task’.44 This duty, when linked to the criminal negligence provisions of the Code, provides an explicit objective standard of fault in relation to workplace accidents that eases the substantive task for the prosecution, although such criminal negligence must clearly be proved beyond a reasonable doubt.45 The other major change to the Code has been the complete reworking of 37 ibid 172. 38 ibid 177. 39 ibid 178. 40 ibid. 41 ibid 180. 42 ibid. But on that score, there had been previous concerns about short limitations periods for the provincial offences, whereas there were none in relation to the criminal charges. 43 At the time of the disaster, the Westray Mine was not unionized, but in the aftermath the Steel Workers supported the families of the victims and the remaining workers, many of whom favoured a re-​opening of the mine, perhaps in a safer open-​pit configuration. The union was granted status as a party to the Public Inquiry, where it played a leading role. 44 Code (n 17) s 217.1. 45 This specific objective duty now operates in the context of a jurisprudential evolution since the Tutton deadlock (see discussion of Tutton above), whereby the Supreme Court of Canada has now interpreted Code s 219

522  Criminality at Work organizational liability. The identity theory of corporate criminal liability has been replaced by liability for ‘organizations’ which are defined to include: (a) a public body, body corporate, society, company, firm, partnership, trade union, municipality, or (b) an association of persons that is created (i) for a common purpose, (ii) has an operational structure, and (iii) holds itself out to the public as an association of persons.46

The Code was at the same time amended to provide for two different standards for organizational liability, depending upon whether the charge involves a negligence offence or one of subjective fault. These two different standards impose liability on organizations where there are problematic interactions among ‘representatives’47 and ‘senior officers’48 of the organization. For offences of negligence, the organization is a party to an offence, essentially where a representative (or two separately) are parties to the offence and a senior officer (or officers) responsible for the relevant activities depart markedly from the standard of care that could reasonably be expected to prevent the representative from becoming a party to the ­offence.49 For subjective fault offences, the organization can be made criminally liable where one of its senior officers, with intent to benefit the organization, (a) acting within the scope of their authority, is a party to the offence, (b) having the relevant mental state directs other representatives of the organization to commit the offence, or (c) fails to take all reasonable steps to stop a representative whom they know is about to commit an offence.50 These two levels of change, that is redefining criminal negligence and broadening organizational liability, are quite helpful in gaining convictions in situations of serious workplace accidents. However, they did not immediately give rise to a flood of such prosecutions and there was some initial scepticism about their value.51 Their subsequent more successful deployment will be the subject of comment below in the part of the chapter dedicated to sentencing and restorative processes in the workplace.52 A caveat is that it is unlikely that the innovations in relation to organizational liability will apply to provincial offences.53 Nonetheless, it appears that the improvements in the criminal law’s formal capacity to protect workers through potential deterrence echo the positive aspects of the Union Colliery case which occurred a century earlier.

defining criminal negligence to involve a clear objective standard of penal negligence based on ‘a marked and substantial departure from what a reasonable person would do in the circumstances’, thereby abandoning the more stringent ‘subjective recklessness’ approach: see R v Creighton [1993] 3 SCR 3; R v Gossett [1993] 3 SCR 76; R v Finlay [1993] 3 SCR 103; R v Naglik [1993] 3 SCR 122; R v F(J) [2008] 3 SCR 215. 46 Code (n 17) s 2. The full scope and meaning of this very broad definition has apparently not yet been tested in litigation. 47 Code (n 17) s 2 defines representative as ‘. . . a director, partner, employee, member, agent, or contractor of the organization’. 48 Code (n 17) s 2 defines senior officer as ‘. . . a representative who plays and important role in the establishment of an organizations policies or is responsible for managing an important aspect of the organization’s activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer’. 49 Code (n 17) s 22.1. 50 Code (n 17) s 22.2. 51 See Steven Bittle, Still Dying for a Living: Corporate Criminal Liability after the Westray Mine Disaster (UBC Press 2012). 52 Todd Archibald, Ken Jull, and Kent Roach, ‘Critical Developments in Corporate Criminal Liability: Senior Officers, Wilful Blindness and Agents in Foreign Jurisdictions’ (2013) 60 Criminal Law Quarterly 92. 53 Stuart (n 4) 765.

Regulation of Criminality at Work in Canada  523

5.  Reform of Specific Occupational Health and Safety Regimes The second major substantive improvement which followed from Westray was that Nova Scotia amended the quasi-​criminal OHSA and its regulations to bring it up to the standards of the leading approaches in other Canadian provinces.54 Central to effective OHSA regulation in such jurisdictions are not, in fact, the statutory offences which they contain, but rather their internal responsibility systems with their participatory principles.55 The three pillars of internal responsibility are (a) requirements for employers to create occupational health and safety policies to be administered by joint employer–​employee occupational health and safety committees;56 (b) the right to refuse unsafe work;57 and (c) workplace hazardous materials information systems (WHMIS) which are based on federal standards.58 Nonetheless, there is an ‘external’ command and control or quasi-​ criminal regulatory aspect to these statutes which has in some jurisdictions been given stronger deterrent effect through ‘administrative penalty systems’.59 Such penalties can be imposed directly by inspectors who also have the authority to shut down hazardous workplaces, subject to rights of review before administrative tribunals.60 Moreover, occupational health and safety statutes contain strict liability offences, in the Canadian ‘public welfare’ sense, which enable conviction upon proof of external elements of ­offences with a reversal of the burden of proof in relation to defences of due diligence, no negligence, or honest and reasonable mistakes of fact.61 Thus, the protective principle in relation to workplace safety embodied in deterrent sanctions operates through quasi-​criminal OHSA regimes across Canada as well as through the Criminal Code.62 However, there is a nagging concern that despite the progress since Westray, inadequate inspectorates and a residual cultural assumption that accidents are an inevitable cost of doing business still contribute to an unacceptably high incidence of unnecessary workplace injuries and deaths.63

54 Stats NS 1996, c 7 as amended in 2000, 2004, 2007, 2010, 2011, and 2013. 55 Morey Gunderson and Douglas Hyatt (eds), Workers’ Compensation: Foundations for Reform (University of Toronto Press 2000). 56 Small employers have OHSA officers not OHSA committees, and it has been found, of course, that such committees work best in unionized workplaces: Geoffrey England, Individual Employment Law (Irwin Law 2008) 187–​96. 57 Internal and external dispute resolution processes are available, and the test is whether the employee had a reasonable belief that a situation of risk existed. Barnacle and Lynk (n 7), Chap. 9, passim 58 CLC (n 15) s 128; England (n 56) 187–​96. 59 See, eg, Nova Scotia Occupational Health and Safety Act 1996, c 7, s 70; Nova Scotia (Director, Occupational Health and Safety) v Lafarge Canada Inc, 2014 NSCA 9. 60 Some Canadian jurisdictions now have consolidated labour relations tribunals which have jurisdiction to administer trade union acts, labour standards legislation, occupational health and safety statutes, and sometimes human rights and social welfare matters: see Ontario Labour Relations Act SO 1995, c 1, New Brunswick Industrial Relations Act, RSNB 1973, C I-​4, and Nova Scotia Labour Board Act SNS 2010, c 37. 61 Such offences have been found to meet Charter standards: see R v Wholesale Travel Group Inc [1991] 3 SCR 154; R v Cancoil Thermal Corp, (1986) 11 CCEL 219; R v Ellis-​Don Ltd, [1992] 1 SCR 840. 62 Gunderson and Hyatt (n 55). 63 For example, public attention has recently been focussed on the fisheries and its high numbers of drownings and injuries. See article by Tavia Grant, ‘Canada’s Deadliest Jobs’ The Globe and Mail (27 October 2017) accessed 16 November 2018.

524  Criminality at Work

C.  Human Capability Development via Penal Sentencing and Restorative Workplace Approaches The discussion in the preceding section of this chapter unfolds as if one can talk simply about criminal law and labour law and then compare how they intersect, treating them all as somehow reified and relatively static categories. However, when it comes to discussing the interplay between criminal sentencing and labour law remedies, one can no longer evade some hard normative and theoretical questions. What are criminal law and labour law for and how are their structural underpinnings mutually destructive at some turns and mutually supportive at others, particularly in relation to occupational health and safety?

1.  Sentencing, the General Part of Criminal Law, and Human Capacity The Criminal Code declares [t]‌he fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions [that have half a dozen enumerated utilitarian objectives].64

These objectives are: (a) denunciation of unlawful conduct; (b) general and specific deterrence; (c) isolation of offenders where necessary; (d) rehabilitation; (e) reparation of harm; and (f) promotion of a sense of responsibility in offenders and an acknowledgement of harm done to victims and the community.65 Please note that neither punishment nor retribution are statutory purposes or objectives of sentencing, although the Supreme Court of Canada does not seem to accept this.66 The Code then declares the existence of the following fundamental principle of sentencing: ‘A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.’67 Finally, the Code enumerates five corollary principles: (a) a sentence should be increased or reduced in relation to any relevant aggravating or mitigating circumstances;68 (b) parity with similar offences in similar circumstances; (c) no unduly long or harsh totality of consecutive sentences; (d) restraint in the deprivation of liberty; and (e) avoidance of incarceration where reasonably possible, particularly regarding aboriginal offenders.69 This framework is a classical exposition of what some scholars would describe as limiting retributivism:70 that 64 Code (n 17) s 718, pt XXIII. 65 I have paraphrased slightly for reasons of brevity and have added the emphasis for purposes of clarity. I have also omitted reference to Harper government amendments via ss 718.01 and 718.02 which require courts to give primary consideration to denunciation and deterrence for offences against children or police and other justice system participants, which are not essential to the general scheme. 66 R v Proulx [2000] 1 SCR 61. The Court there contrasts punitive and restorative objectives of sentencing and asserts that the latter are often more effective at achieving rehabilitation. 67 Code (n 17) s 718.1 68 Code (n 17) s 718.2(a). There then follows a list of non-​exclusive examples: (i) motivation based in discriminatory bias, prejudice, or hate; (ii) abuse of a spouse or common law partner; (ii.1) abuse of a person under 18; (iii) abuse of a position of trust or authority; (iii.1) impact on the victim, including health and finances; (iv) involvement of a criminal organization; (v) terrorism. 69 Once again, I have paraphrased s 718.2 for reasons brevity and simplicity. 70 The Canadian Sentencing Commission, Sentencing Reform: Report of the Canadian Sentencing Commission (Canadian Government Publishing Centre 1987); Bruce Archibald, ‘Sentencing and Visible Minorities: Equality and Affirmative Action in the Criminal Justice System’ (1989) 12 Dalhousie Law Journal 377.

Regulation of Criminality at Work in Canada  525 is, the purpose and utilitarian objectives of the criminal law and sentencing are to be achieved in accordance with principles of proportionality, equality, mercy, and restraint which are sometimes rooted in notions of retributivism, but not as a purpose of the exercise.71 Linking this criminal sentencing discussion to the purposes and potential remedies in the labour and employment context requires a brief excursion into the general principles of criminal liability. The general part of criminal law72 establishes the broad principles for thinking about elements of offences (actus reus or external offence elements and mens rea or fault elements) as well as defences (justifications, excuses, and non-​exculpatory or procedural defences).73 In Canada, the general principles of criminal liability are not fully codified and thus the common law is the source of the law for these purposes.74 To create a bridge between criminal law and labour law, the key notion is capacity, which is a precursor of human capabilities to be discussed below. It is a basic criminal law principle that only persons who have the capacity to appreciate the nature and quality of their conduct or the capacity to understand the law can be found criminally liable: otherwise they must, if charged with an offence, be excused and found not guilty.75 Incapacitating excuses come in various guises:  youth below twelve years of age are deemed incapable of committing criminal ­offences;76 those suffering from certain mental disabilities maybe excused;77 those who find themselves in circumstances of duress78 or necessity79 or other recognized constraining contexts may be excused,80 and so on. But the importance of capacity to criminal liability does not end with excuses. In Canadian law it is now highly significant for fault elements of offences. In the first decades following the Second World War, there developed among most scholars and judges in common law countries a commitment to a ‘subjective orthodoxy’ in matters of fault necessary to ground criminal liability. All ‘adults’ were presumed to have capacity sufficient to be found guilty of a crime unless ‘excused’, but only if they possessed the requisite mens rea for the crime.81 In the absence of special mens rea words, such as ‘wilfully’ or ‘fraudulently’, mens rea was deemed to involve a subjective awareness of the material or external elements of the offence by one’s intention to cause the harm, one’s knowledge of the relevant circumstances, or one’s recklessness or wilful blindness to these matters.82 The basic principle here was liability for a capable person’s wrongful choice to engage in criminal behaviour where they knew what was at stake. By the 1980s, however, 71 In R v M(CA) [1996] 1 SCR 500. The Court almost gets this limiting retributivism right, but then drops the ball four years later in Proulx, and subsequent cases. 72 See Glanville Williams, Criminal Law: The General Part (Stevens 1961). The distinction between the General and the Special Parts of criminal law was well established in continental penal law scholarship before it crossed the English Channel/​La Manche: Stuart (n 4) 4. 73 George Fletcher, Rethinking Criminal Law (Little, Brown & Co 1978); Paul Robinson, Criminal Law Defenses (West 1984); Bruce Archibald, ‘The Constitutionalization of the General Part of Criminal Law’ (1988) 67 Canadian Bar Review 403. 74 Code (n 17) s 8 which saves common law defences is the critical connector here: lack of mens rea is a ‘failure of proof defence’. 75 Criminal lawyers will know that this language is derived from M’Naghten’s case (R v M’Naghten (1843) 8 ER 718) and found in approximately this form in s 16 of the Canadian Criminal Code. 76 Code (n 17) s 13. 77 Code (n 17) s 16. 78 Stuart (n 4) 531–​38. 79 ibid. 80 ibid. 81 Stuart (n 4) 179-​81. 82 ibid.

526  Criminality at Work this subjective orthodoxy was under attack, and as described above in relation to criminal negligence causing death or bodily harm,83 many argued a return to an ‘objective fault’ for certain offences.84 Objective fault is essentially one’s failure to conduct oneself in the manner expected of a reasonable person in the circumstances,85 or in the new Canadian language ‘a marked and substantial departure from what a reasonable person would do in the circumstances’.86 The key distinction, however, between subjective fault and objective fault standards is that with the latter one is not concerned with what the accused knows or is aware of, but rather with what a reasonable person in the circumstances would be aware of. In other words, objective fault is not based on wrongful choice but rather on the failure to exercise one’s presumed capacity to do what is reasonable. This basis for liability is not limited to criminal law, but also applicable to public welfare offences of strict liability, such as occupational health and safety statutes. Strict liability involves lack of due diligence, no negligence or an honest and reasonable mistake, with a reversal of the burden of proof on these fault issues.87 These offences are thus based on a failure to exercise one’s capacity to act reasonably and are very important in regulating workplaces. There is a parallel in this analysis to those who argue that the civil law of contracts (including employment contracts) is rooted in notions of capacitas which reflect basic aspects of human capability theory.88 Thus, we have reached the linking point between criminal law and labour law, if one accepts the idea that a capabilities approach is a sound basis on which to ground labour law—​this is the question which must be explored next.

2.  Capabilities Approaches and Labour Market Regulation What normative principles ought to govern labour market regulation? The predominant ­historical rationale for labour law is to protect the vulnerable worker in a unequal relationship where the employer exercises multiple forms of power, unless the employee is in a position to quit to seek a better job elsewhere.89 Such protection can be achieved by turning up the bargaining power on the employee side via forcing improvements in one of two ways: (a) legislative changes to the bargain through statutory minimum standards; or (b) promoting collective bargaining through unionization which enables workers to negotiate on a footing of greater economic equality.90 A second stream of justificatory thinking about labour law, flowing from the creation of the International Labour Organization by the Treaty of Versailles in 1919 but strongly reinforced by the Universal Declaration of Human Rights and the United Nations post-​Second World War, is to conceive of basic labour standards

83 Celia Wells, ‘Swatting the Subjectivist Bug’ (1982) Criminal Law Review 209. 84 Toni Pickard, ‘Culpable Mistakes and Rape: Relating Mens Rea to the Crime’ (1980) 30 University of Toronto Law Journal 75. 85 Lewis Klar, Tort Law, Sixth Edition (Thomson Reuters 2017) 191–​92. 86 R v Creighton (n 45). This standard is said to be distinct from ordinary civil negligence, but it is reminiscent of the discredited formulation of ‘gross negligence’ for some torts and ordinary negligence for others. 87 See discussion above. 88 Alain Supiot and Simon Deakin, Capacitas:  Contract Law and the Industrial Preconditions of a Market Economy (Hart Publishing 2009). 89 Otto Kahn-​Freund, Labour and the Law (Stevens 1977). Lord Wedderburn of Charlton and others (eds), Labour Law and Industrial Relations: Building on Kahn-​Freund (OUP 1983). 90 Brian Langille, ‘Labour Law’s Theory of Justice’ in Davidov and Langille, Labour Law (n 3) 101.

Regulation of Criminality at Work in Canada  527 and collective bargaining as fundamental human rights.91 Neither the protective rationale nor the human rights justification are wrong, and indeed they have strong historical pedigrees and carry considerable political clout. However, they are susceptible to attack in that they fail to take into account economic costs, and that labour laws constitute an inefficient tax on production which encourages a race to the bottom in terms of jurisdictional competition for investment.92 By contrast, the capabilities approach as a justification for labour law sees such labour market regulation as a positive contribution to economic growth and human development.93 The capabilities approach has societal and institutional aspects as well as individual, personal elements which relate to both criminal law and labour law. Amartya Sen’s work is set primarily in the broader institutional domain.94 While Sen speaks of an individual’s abilities and functionings which lead to capability sets that give people the freedom to make choices about living lives they have reason to value,95 he places the development of such capabilities within the context of various ‘instrumental freedoms’. He identifies five categories of instrumental freedoms which contribute directly to the overall freedom of individuals to choose lives they would like to live. These are: political freedoms to participate in free democratic societies shaping their lives; economic facilities to enable people to participate in work, production, and consumption; social opportunities, like education and health care to allow people to effectively participate in life’s activities; transparency guarantees to protect social interactions such as the rule of law, rights to disclosure, procedures to combat private and public corruption; and finally protective security to protect against adversity in old age, poverty, and emergencies.96 Martha Nussbaum, oriented more to the personal aspects of capabilities, identifies ten central capabilities which are necessary to live a life worthy of human dignity in a just society. In short, these can be described as: reasonable life expectancy; bodily health including access to food, shelter, and health care; the ability to imagine, think, and reason including education and freedom of expression and religion; the ability to live a life with healthy emotional attachments; the capacity to exercise practical reason in ordering one’s life and moral relations; being able to develop affiliations which are characterized by respect and concern for the dignity and equality of others; an ability to live with concern for other species and the environment; a capacity to laugh, play, and enjoy recreation with others; and being able to have a degree of control in relation to one’s political and material environment, including the world of work.97 This capabilities approach arguably has much in common with a parallel vein of thought which considers all human beings to be vulnerable to varying degrees and that an ethical polity must be oriented to assisting all citizens to achieve an acceptable level of resiliency.98 Capability approaches, along 91 Hugh Collins, ‘Contractual Autonomy,’ in Alan Bogg and others (eds), The Autonomy of Labour Law (Bloomsbury 2015); Virginia Mantouvalou (ed), The Right to Work: Legal and Philosophical Perspectives (Hart Publishing 2015). 92 Kevin Banks, ‘Must Canada Change its Labour and Employment Laws to Compete with the United States?’ (2014) 38 Queen’s Law Journal 419. 93 Simon Deakin, ‘The Contribution of Labour Law to Economic and Human Development’ in Davidov and Langille, Labour Law (n 3). 94 Amartya Sen, Development as Freedom (Knopf 1999). 95 ibid 75. 96 ibid  38–​40. 97 Martha Nussbaum, Creating Capabilities: The Human Development Approach (Belknap 2011). 98 Marth Fineman and Anna Greer (eds), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate 2013).

528  Criminality at Work with vulnerability theory and restorative justice approaches,99 all share an understanding of people as relationally situated as regards one another and a commitment to go beyond the neo-​liberal views of individuals being atomized economic decision-​makers and competitive individual rights bearers.100 While Sen would reject a simplistic correlation between capabilities enhancement and the development of human capital as an element of capitalist production, there is some value in thinking about criminal law and labour law as being properly concerned with human capability enhancement: investing in society’s most important asset—​people.101 These insights are critical when examining the acute aspects of the nexus between criminal law and labour law: sentencing and dispute resolution in the regulation of workplace problems and labour markets.

3.  Sentencing Reform and Capability Enhancement So what can be said about the positive sentencing developments connected to the Westray Inquiry in relation to sentencing of organizations for workplace offences which were referred to above? Can they assist in capability enhancement? In amending the Code to enlarge the scope organizational liability, Parliament made significant amendments to the powers of judges when sentencing organizations. Fines were always the main penalty against companies, since a corporation, unlike its officers who may convicted for their personal criminal liability, cannot be sentenced to imprisonment. Canada has long since done away with the death penalty, and Parliament in 2003 did not choose to allow ‘corporate capital punishment’ through the revocation of corporate charters, articles of association, and the like. However, the amendments do provide a separate set of aggravating and mitigating factors to be taken into account when sentencing organizations. These include the benefit to the organization; the planning, duration, and complexity of the offence; attempts to conceal assets re sentencing; the impact the sentence would have on the viability of the organization and the continued employment of its employees; cost to the public authorities of the investigation and prosecution; other regulatory penalties or sanctions imposed on the organization; any penalties imposed by the organization on its representatives; any restitution made to victims; and measures taken to reduce the likelihood of subsequent offences.102 These factors when taken as a whole indicate an interesting blend of standard criminal and regulatory goals and seem to encourage a blurring of public and private interests which are of interest in the workplace context, perhaps to potentially good effect insofar as human capability enhancement is concerned.103 99 Jocelyn Downie and Jennifer Llewellyn, Being Relational: Reflections on Relational Theory and Health Law (UBC Press 2012); Bruce Archibald, ‘Restorative Justice and the Rule of Law: Rethinking Due Process Through a Relational Theory of Rights’ (2013) SSRN accessed 7 August 2019. 100 Jennifer Nedelsky, Law’s Relations: A Relational Theory of Self, Autonomy, and Law (OUP 2011). 101 Sen (n 94) 292–​97. 102 R c Transpavé Inc 2008 QCCQ 1598. 103 The first case to go to sentencing under these new provisions was in Quebec Provincial Court, where a sensitive analysis of these factors after a guilty plea by the accused corporation to charges of criminal negligence causing death led to a fine of $100,000 and restitution to the family of the victim of $10,000. This was a first offence by a family-​owned firm which employed roughly 100 workers, and which spent $750,000 before the trial to bring the firm’s premises up to European health and safety standards which were said to be more stringent than those of the Province of Quebec. The local director of occupational health and safety for the provincial government was

Regulation of Criminality at Work in Canada  529 As to the range of penalties, the amendments did affirm that fines for indictable offences are in the discretion of the sentencing judge and raised the maximum fines for summary conviction of organizations to $100,000 rather than the $5,000 to which individuals may be liable.104 Moreover, the legislation also affirmed that such fines may be collected by the relevant government using a streamlined civil enforcement mechanism.105 Fines, of course, rest on denunciatory and deterrence principles which are of questionable empirical validity, but perhaps in the corporate context emphasis on risk management by insurers and consultants may create some purchase for the denunciatory and deterrent elements of the fine.106 However, Parliament seems to have been operating on some communitarian theory of the firm, rather than an economic rationalist theory which would eschew corporate criminal liability entirely on the grounds that only real people commit crimes and that corporate criminal liability merely harms shareholders, employees, consumers, and tax collectors by reducing the bottom line.107 In one of the few sentencing cases under the new amendments, a construction company pleaded guilty to four counts of criminal negligence causing death when four workers were killed on a swing stage which collapsed and fell fourteen storeys to the ground.108 The Ontario Court of Appeal raised the trial judge’s fine of $200,000 to $750,000 on grounds of deterrence and denunciation and the need to maintain the effectiveness of the amendments.109 In British Columbia, a company operating a quarry was fined $100,000 plus a $15,000 victim fine surcharge after pleading guilty to criminal negligence in the death of a twenty-​two-​year-​old worker killed on her second day in the operation of a rock hauling vehicle for which she had not received training.110 This was imposed after a joint submission by Crown and defence on sentencing. These cases provide some evidence that the criminal law can be used with vigour to denounce, and perhaps deter, workplace accidents with penalties that go beyond the level of regulatory occupational health and safety violations. In the long run, all of this can contribute to capability enhancement across the board, rather than to its destruction. The communitarian, or perhaps simply pragmatic and utilitarian, motivation by federal legislators seems even more prominent in relation to the types of probation orders made available to judges sentencing corporations after the amendments. Conditions in probation orders for the sentencing of corporations can now include: restitution; the establishment and internal communication of corrective policies, standards, and procedures; identification of a senior officer responsible for compliance; and publication of the offence, the sentence, and the corrective measures imposed.111 However, before imposing such measures, reported to have congratulated both the company and the union for raising the firm’s culture of health and safety to a very high level within the year after the accident. R c Transpavé (n 102). 104 Code (n 17) s 735(1). 105 ibid s 735(1.1) and (2). 106 Canadian Sentencing Commission, The Fine as a Sentencing Option in Canada (Department of Justice 1988). 107 On fines and criminal sanction in the corporate context, see, eg, WR Thomas, ‘The Ability and Responsibility of Corporate Law to Improve Criminal Fines’ (2017) 78 Ohio State Law Journal 601. 108 R v Metron Construction 2013 ONCA 541; Occupational Health and Safety Act penalties had previously been imposed in this case. A supervisor was also convicted of criminal negligence in a separate trial for his personal involvement and sentenced to three and a half years on each count to be served concurrently: see R v Kazenelson 2018 ONCA 77, where convictions and sentences were upheld. 109 R v Metron Construction (n 108) [118]–​[120]. The Court also noted that the trial judge’s concern to take into account the corporation’s ability to pay was a reversable error. Assuming a court was willing to push an organization into bankruptcy, this becomes close to corporate ‘capital punishment’. 110 R v Stave Lake Quarries Inc 2016 BCPC 377. 111 Code (n 17) s 732.1(3.1).

530  Criminality at Work the sentencing judge is required to consider whether it would be more appropriate for another regulatory body to supervise the development of the policies, standards, and procedures in question.112 This is a rare example of cooperative regulatory action, which in the context of workplace accidents could involve joint action by a criminal court and occupational health and safety authorities. This sentencing provision seems to introduce a role for criminal courts in the management of the workplace with respect to occupational health and safety which goes well beyond a simple punitive function for the criminal law. Were the subject of the sentencing a private individual, this might be thought to be a concern with the objective of rehabilitation. It does seem to involve an attempt on the part of the criminal law to make an employer a ‘good corporate citizen’. But it does so in ways which assume that specific deterrence through reliance on the goodwill of corporate managers may not cut it, and that closer judicial supervision is thought to be required. This might be considered as the judicial setting of conditions which can lead to the enhancement of human capabilities in the workplace.

4.  Human Capabilities and Restorative Approaches to Workplace Safety Offences The final objective of this section of the chapter will be to attempt to square the circle, linking criminal capacity and human capability development through a discussion of restorative approaches to dispute resolution and workplace management which span the gap between penal law and labour law. Here is where it started, at least formally speaking:113 at the same time the Canadian Criminal Code was amended to introduce sentencing purposes, objectives, and proportionality principles in a system of limiting retributivism, amendments on a parallel track introduced the possibility of ‘alternative measures’ in response to crime.114 Some provinces introduced programmes to divert young and first-​time offenders from stigmatizing criminal procedures.115 Quebec ramped up rehabilitative programmes and social support for offenders.116 Some provinces turned to restorative justice programmes to complement traditional court process,117 of which the most comprehensive instantiation was Nova Scotia.118 In the latter case, restorative process can be adopted by police or prosecutors as a form of diversion or as a matter of substantive sentencing or corrective programming in the hands of judges or probation authorities.119 Successful restorative justice is rooted in 112 ibid s 732.1(3.2). 113 There is a long back history of restorative justice advances in Australia, New Zealand, Canada, the USA, and the UK which runs through victim–​offender mediation, police conferencing, aboriginal healing circles, and restorative justice experiments and a huge literature on the subject which cannot be rehearsed here. For a helpful quick summary, see Katherine Beatty Chiste, ‘Origins of Modern Restorative Justice:  Five Examples from the English-​Speaking World’ (2013) 46 University of British Columbia Law Review 33. 114 Code (n 17) s 717 (1995); Youth Criminal Justice Act SC 2002, c 1, s 10. 115 Ontario and Nova Scotia did this early on. This was rooted in criminological claims based on labelling theory. 116 On youth rehabilitation in Quebec, see Canadian Research Institute for Law and the Family, Best Practices for Chronic/​Persistent Youth Offenders in Canada: Summary Report (Department of Public Safety Canada, 2009) 6–​8. 117 Saskatchewan was in the game early (1997), as was British Columbia (Sparwood Project). 118 Bruce Archibald, ‘Rights at Work:  Fairness in Personal Work Relations and Restorative Labour Market Regulation’ (2016) accessed 7 August 2019; Jennifer Llewellyn, Restorative Justice, Reconciliation, and Peacebuilding (OUP 2014). 119 Alternative measures programmes can be promulgated under the Code and Youth Criminal Justice Act by the Attorney General of the relevant province or territory, including the federal jurisdiction.

Regulation of Criminality at Work in Canada  531 a relational understanding of human interaction based on values of equality, dignity, mutual concern, and respect120 which can spawn multi-​level restorative approaches that may include mediation,121 restorative conferences with all stakeholders involved in a dispute, and more long-​term complex processes which aim to transform the cultures of organizations or communities.122 Restorative justice advocates argue that restorative justice transcends backward-​looking notions of retribution and punishment for wrongs against the state through centring the response to wrongs against people in their community context by engaging victims, offenders, their supporters and community representatives in finding practical forward-​looking solutions to the problems and their genesis in society.123 Some critics of restorative justice argue that the localization, informalization, and fragmentation of justice through restorative justice processes breaches notions of equality, proportionality, and a public interest in the universality of justice processes.124 Others suggest that the traditional criminal justice values can be reconciled with restorative approaches because the two share many common objectives, such as deterrence, incapacitation, rehabilitation, and denunciation, even if they may part company on the notions of retribution, reparation of harm, community empowerment, and restoration of egalitarian relationships as objectives.125 The upshot for this chapter, however, is that restorative approaches are congruent in most respects with the a human capabilities approach in so far as they enable the criminal justice system to respond to wrongs in ways which help wrongdoers to enhance their connections to community and workplaces in a manner potentially consistent with the goals of labour and employment law. The use of a capability-​friendly restorative approaches in the management of workplaces is growing.126 This consultative, inclusive, and egalitarian approach encompasses policies to prevent conflict and discrimination and to improve safety in workplaces, both in the public and private sectors.127 Grievance arbitrators in unionized workplaces are being introduced to restorative justice for purposes of resolving disputes both among employees and between union and management.128 In Nova Scotia, the Human Rights Commission is regularly 120 Llewellyn, Being Relational (n 99). 121 Restorative justice purists would claim that true restorative justice goes beyond mere dyadic victim–​ offender mediation by involving representatives of the relevant community or communities: see John Braithwaite, ‘Restorative Justice and a Better Future’ (1996) 76 Dalhousie Law Review 9. 122 Carol LaPrairie, Will the Circle be Unbroken: Aboriginal Communities, Restorative Justice and the Challenges of Conflict and Change (University of Toronto Press 2005); Jennifer Llewellyn and Robert Howse, ‘Institutions for Restorative Justice: The South African Truth and Reconciliation Commission’ (1999) 49 University of Toronto Law Journal 355. 123 Bruce Archibald and Jennifer Llewellyn, ‘The Challenges of Institutionalizing Comprehensive Restorative Justice: Theory and Practice in Nova Scotia’ (2006) 29 Dalhousie Law Journal 297. 124 See Ashworth (n 4); Duff and others, Criminalization (n 4). 125 Hadar Dancig-​Rosenberg and Tali Gal, ‘Restorative Criminal Justice’ (2013) 34 Cardozo Law Review 2313; Archibald, ‘Relational Theory of Rights’ (n 99). 126 See Nussbaum (n 97); Simon Deakin, ‘Capability Theory, Employee Voice, and Corporate Restructuring: Evidence from UK Case Studies’ (2012) 33 Comparative Labor Law and Policy Journal 427. 127 This is happening in various jurisdictions in New Zealand (Wanganui) and the UK. For the latter, see efforts in education, social services and the justice systems in Birmingham (West Midlands Police and Crime Commissioner, Making Sense of the Restorative Justice Landscape in Youth Justice in the West Midlands (2015) accessed 7 August 2019); Bristol (see ‘Restorative Bristol’ accessed 7 August 2019); Hull (Laura Mirsky, ‘Hull, UK: Toward a Restorative City’ (2009) Restorative Practices E-​Forum accessed 7 August 2019); and Leeds (eg, at Carr Manor Community School, see ‘Restorative Learning: Carr Manor Community School’ (2014) accessed 7 August 2019). 128 International Institute for Restorative Practices in Ontario, Quebec Conference of Arbitrators (Montreal) and a World Restorative Justice Conference (Nova Scotia 2011). Mediation and latterly mediation-​arbitration have

532  Criminality at Work using restorative approaches to respond to discrimination complaints arising from individual incidents or negative cultures in workplaces.129 However, it should not be forgotten that these approaches are ‘capabilities compatible’ in so far as they enhance individuals’ abilities to function in what may heretofore have been workplaces characterized by dysfunction and even danger. To employ compatible language from another scholarly angle, restorative approaches can address widespread phenomena of vulnerability and thereby strengthen the resilience of employees as individuals and as participants in an enterprise.130 It is therefore not surprising that such restorative approaches may be coming to mind more frequently in connection with criminality at work in its various guises. Occupational health and safety is an area where restorative approaches are being implemented in sophisticated ways often under the rubric ‘responsive regulation’.131 Braithwaite’s famous regulatory pyramid is a useful heuristic in this context: at the broad base are offenders who are honest and well-​intentioned but who have negligently contravened regulations for whom restorative and collaborative assistance is envisaged; next up as the pyramid narrows are rational offenders who are knowingly breaching standards to enhance profitability who need to be deterred, perhaps through stiff fines; and finally at the top there is the small group of repeat or serious offenders who may need to have their operating licences withdrawn because of the danger they pose or have posed to workers.132 Labour standards officers and occupational health and safety officers in Canada are receiving more intense training in such graduated approaches. One can see that the range of sentences found for organizations under the Canadian Criminal Code as discussed above can fit into this context. However, some observers have suggested that restorative approaches should and can be used following workplace fatalities133 in ways which might have been helpful in the wake of the Westray disaster and may have been presaged to some degree in Transpavé. Thus, in the labour standards and occupational health and safety protective contexts, one finds fertile ground for subtle and balanced interactions between penal and restorative models more consistent with capability enhancement, worker protection, and sustained enterprise profitability than a simple and unvarnished punitive approach to regulation of the workplace. The role of unions in this context can be helpful. As is often argued, occupational health and safety committees often operate best in unionized environments where whistleblowers have protection against retaliation through the grievance process.134 Indeed, there are arguments that the occupational health and safety model could be extended to provide jurisdiction over other labour standards issues to provide more nuanced remedial pressures operating

been deployed by arbitrators for decades, but as suggested above restorative practices go beyond dyadic mediation processes. 129 See, eg, Nova Scotia Human Rights Commission, ‘Annual Accountability Report for the Fiscal Year 2016–​ 2017’   accessed 7 August 2019. Email from Sean Hardy to author (31 May 2018). 130 See generally, Martha A Fineman and Jonathan W Fineman (eds), Vulnerability and the Legal Organization of Work (Routledge 2017). 131 John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (OUP 1992). 132 Archibald, ‘Corporate Liability’ (n 52); John Braithwaite, ‘Regulating Nursing Homes:  The Challenge of Regulating Care for Older People in Australia’ (2001) 323 British Medical Journal 443, and To Punish or Persuade: Enforcement of Coal Mine Safety (State University of New York Press 1985). 133 Derek Brookes, Restorative Justice and Work-​Related Death (Creative Ministries Network 2009). 134 David Doorey, ‘A Model of Responsive Workplace Law’ (2012) 50 Osgoode Hall Law Journal 47.

Regulation of Criminality at Work in Canada  533 punitive and restorative regulatory enforcements models in tandem.135 Once again, the synergy between restorative processes in the quasi-​criminal regulatory context and the capabilities approach as a foundational approach to labour law is useful to keep in mind.

D.  Conclusion Both labour law and criminal law are multifaceted regulatory fields without normative paradigms which command universal consensus. These complexities may render criminal law and labour law at cross-​purposes when they meet. However, the goals of criminal law and labour law can be harnessed in complementary ways, particularly in relation to occupational health and safety. It has been argued here that this is particularly true when a capabilities approach to labour law is coupled with restorative justice insights from penal law. In that sense, it can perhaps be said that capabilities theory can envelop criminal and labour law in a unified field, and that their purportedly autonomous spheres are only relatively so.136

135 Cindy Estlund, Regoverning the Workplace: From Self-​Regulation to Co-​Regulation (Yale University Press; 2010). This is not as easy as it sounds. Balancing the models can require sensitive use of prosecutorial discretion, and a recent example from a cognate domain caused a mini-​constitutional crisis in Canada. The Canada-​based global engineering and construction firm SNC Lavalin was charged with corruption in relation to conducting its affairs in Libya, and involving the gift of a yacht to the son of Colonel Khadaffi, among other things. Controversy arose as to whether it was an appropriate case for the use of a remediation agreement rather than standard sentencing under s 715.3 of the Code. The Prime Minster’s office thought yes, the Canada Director of Public Prosecutions and the Attorney General thought no. The heavily politicized tale is too long to be told here, but an opportunity for a sophisticated discussion around blending punitive and restorative models in the context of corporate wrong-​doing was lost. See A. Anne McLellan, Review of the Roles of the Minister of Justice and Attorney General of Canada, June 28, 2019 for a careful assessment of part of the legal background to the issues. For another, and I believe flawed, perspective, see Mario Dion, Trudeau II Report (Ottawa, Office the Conflict of Interest and Ethics Commissioner 2019). 136 See Alan Bogg and others, The Autonomy of Labour Law (Bloomsbury 2015); Bruce Archibald, ‘The Significance of the Relative Autonomy of Labour Law’ (2017) 40 Dalhousie Law Journal 1.

Index Note: For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on occa­sion, appear on only one of those pages. abortions  293, 295, 307–​8 abuse see abuse of position, fraud by; harassment and abuse, criminalization of abuse of position, fraud by  18–​19, 121–​23, 131–​32, 134,  146–​47 access to employment see criminal convictions and access to employment accessory liability see National Minimum Wage violations, accessory liability for account of profits  18,  130–​32 actus reus care workers  274, 275–​76, 277 corporate manslaughter offence  396 fraud  118, 120, 121–​22, 128–​29 health and safety  525–​26 mens rea and actus reus, coincidence of  18 Modern Slavery Act 2015  346 National Minimum Wage violations, accessory liability for  441, 443, 444 strict liability  410–​11 agencies see Employment Agencies Standards Inspectorate (EASI), enforcement role of agreed sums, actions for  136–​39 Alexander, Michelle 501 Aliverti, Ana  112–​13, 309, 321, 322, 325 Andelman, Larissa  447–​48 Anderson, Bridget  353, 356–​57, 361 Anderson, Clare  333–​34 Anderson, Elizabeth  163–​64, 166–​67, 178, 183 Andrijasevic, Rutvica 353 Arnot, Robin Page  375–​76 Ashley, Lord (Cooper, Anthony Ashley)  461,  466–​67 Ashworth, Andrew  118–​19, 182–​83, 213, 225 assistance or encouragement harassment and abuse, criminalization of  154–​55 National Minimum Wage  26, 436, 440, 441–​43,  449–​50 assisted reproduction and embryonic research  296–​98 Attlee, Clement  36,  373–​74 Augustine, Dallas  505,  508–​9 austerity measures  15–​16, 23–​24,  282–​83 Australia Australian Criminal Intelligence Commission  479 Australian Human Rights Commission  488–​90 care workers  283–​84 children, working with  475, 480–​81

criminal convictions  27–​28, 475, 477–​78, 479,  480–​81 deterrence  445–​46 discrimination  488–​90,  491 enforcement undertakings  445–​46 Fair Work Act 2009 (Cth)  489–​90, 491 Fair Work Commission  489–​90 Fair Work Ombudsman (FWO)  445–​46, 447, 449 good faith  124–​25 historic homosexual offences  488 indigenous groups  483 inquiries 445 National Minimum Wage violations  26, 432–​33, 439, 444–​49, 451 procurement and inducement, difference between  446–​47 professional employees  481 autonomy boxing 45 care workers  279–​80 exploitation  104–​5,  109–​10 Modern Slavery Act 2015  350 omissions  271–​72 police power  392 regulation 7 sex work  174, 180–​81, 186, 187–​88, 206–​7 statutory rights, enforcement of  14, 64 Ayres, Ian 253 Baer, Stijn  166–​67 bail conditions  381, 382 Baldwin, Stanley 373 Bales, Kevin 353 Barclay, Charles 348 Barnes, Lizzie  152–​53,  171–​72 Barry, Kathleen 187 Bentham, Jeremy  413, 466–​67, 472 Bergin, Darby  469–​70 Bianchi, Herman 68 black economy see informal or illegal economy blacklisting in construction industry  15, 29–​30, 70,  83–​85 collective labour rights  218–​24, 225–​26, 228 communicative function  211 compensation  21, 221–​22, 223–​24,  225–​26 Consulting Association  218–​19, 221 Data Protection Act 1998  83–​84, 221–​23 deterrence  223, 225

536 Index blacklisting in construction industry (cont.) discrimination collective labour rights  218–​19, 220, 221, 225–​26,  228 GLAA  84–​85 fair labelling  222–​23 freedom of assembly and association  211, 219, 221, 223–​24, 225–​26,  228 GLAA  83–​85 health and safety  43 overcriminalization/​exclusive focus on criminalization  224–​27 positive obligations  211, 220, 221–​23, 228 private and family life, right to respect for  211, 219–​23, 225, 228 prosecutions 221 redress  21, 221–​22, 223–​24,  225–​26 reform 224 regulations  223–​24 right to work  219–​20 serious wrongs  211 state involvement  218–​19,  221–​22 Blackstone, William  368, 387 Blokland, Arjan  482,  485–​86 body modification  294–​95 border controls  327–​28,  339–​40 Boswell, Christina 325 boxing  13–​14,  44–​46 agency 45 autonomy 45 bare knuckle prize fighting  46 British Boxing Board of Control (BBBC)  44–​45 harm principle  45 Braithwaite, John  253,  532–​33 breach of statutory duty  43, 409, 429 breaches of the peace, anticipation of  381, 382 bribery  232,  233–​34 British Empire  332–​34,  336–​37 Brodie, Douglas  143–​44 Brooks, Rosa Ehrenreich 163 bullying  151–​52, 165–​66, 169, 282 Cable, Vince 84 Cameron, David 422 Campbell, Alexander  469–​70 Canada see also health and safety in Canada children, working with  475 class crimes in Ontario  27, 455–​56, 463–​64, 469–​72 Factories Acts  469–​72 indigenous groups  483 Master and Servant legislation  463–​64, 472 candour, duty of  305–​6 capitalism  200–​7,  209 carceral state at work (United States)  496–​515 alternatives to incarceration  505, 507 bad jobs/​quality of work  497–​98, 504–​5, 506,  508–​15 Ban the Box or Fair Chance Hiring  499, 500–​1 channelling down  503–​4

child support payments  505–​7, 510, 513 coercion into work  28, 496, 497, 498–​99 economic pressure  498–​99 exclusion  508–​15 labour in prison  28, 496, 503–​5 legal coercion  498 physical coercion  498 Thirteenth Amendment’s ban on slavery and servitude 498 work or starve imperative  498, 499 community service  505–​8, 511–​13,  514–​15 criminal records concealment  508–​9 exclusion  28, 496, 500–​1, 503, 508–​9, 514 debt obligations  498, 505, 507, 511–​13 disciplinary tools  496, 506 double bind  508–​13 enforcement migrants 499 unauthorized employment  499 exit rights  498–​99, 505, 509, 514–​15 exploitation  497–​99 future incarceration, threat of  496 informal or illegal economy  499, 503–​4, 506, 508–​9 intermediate steps  503–​5 labour in prison  28, 496, 503–​5 labour market competition  503 mass incarceration  503 parole 504 prison industrial complex  503 private firms  503 labour rights  509–​13 migrant labour  497, 499, 504 opportunity hoarding  497–​98, 499 parole  504,  505–​7 poverty 496 prisonfare 502 quality of work  497–​98, 504–​5, 506, 508–​15 racialization  11, 28, 496, 497–​502 exploitation  497–​98 New Jim Crow  497, 501–​2 social categorization  497 reform  513–​14 refusal of work/​reluctance to accept work  509–​10, 513, 514, 515 repression  28, 496 skills and experience  499, 501, 506, 507, 513–​14 stigma 504 stratification 497 subordinated inclusion  497–​99, 503, 505 double binds  508–​13 migrant labour  497, 499 race 497 supervision, conditions of  505–​8, 511–​13, 514–​15 transformative effect of criminalization  28 types of work  496, 507–​8 unemployment and underemployment  501, 502, 503–​4, 505,  507–​8 voluntariness  498, 507–​8, 509–​10, 511

Index  537 wage penalties  504–​5, 506–​7, 509–​10,  512–​13 warehousing of surplus populations  502 welfare work  505, 506–​7, 508 care workers, criminalization of  267–​90 abuse in care settings, problems of  279–​89 Criminal Justice and Courts Act 2015  287–​89 disciplinary powers with third parties  281–​82 organizational dynamics  282–​84 prevalence 280 privacy  280–​81 surveillance/​CCTV  280–​82 training and regulation of conduct  284–​88 TV exposés  280–​81 undercover investigations  280–​81 accountability  267, 268 actus reus  274, 275–​76, 277 autonomy  279–​80 care worker offence  23, 29–​30 caring, crime against  270–​73, 289 conduct, regulation of  284–​87 context of social care work  276–​77 Criminal Justice and Courts Act 2015  23, 267–​69, 272–​73,  287–​89 culture  269–​71, 279–​80,  287 discipline  11, 23, 281–​82, 286–​87, 289–​90 elder abuse  269, 271, 273, 281–​82, 283–​84 employment contracts  289–​90 employment relations, erasing  277–​79 feminism 271 fines 274 gender  268, 270–​73, 276–​77, 284–​85,  288–​89 ill-​treatment and wilful neglect  23, 267–​79, 287–​90 children  274–​76, 277, 289 disciplinary procedure  286–​87 mens rea 275 Mental Capacity Act 2005  275–​76, 287 Mental Health Act patients  275 special, medical professionals as  23–​24, 296–​97 vulnerable adults  275–​79 imprisonment  274,  278–​79 inequality of bargaining power  270, 289–​90 labelling as worker’s crime  269–​70, 272–​73, 279, 289 managers  23, 269–​70, 286, 287 marketization  267–​68,  273 Master and Servant legislation  23 mens rea  270–​71, 272–​73, 274–​75,  276–​77 mental capacity  268–​69, 274, 275–​76, 277, 287 National Advisory Board on Patient Safety  287–​88 not caring, mental state of  270–​71, 272–​73 omissions  267, 271–​72, 273, 275–​76, 277 ontological confusion  273, 289 organizational dynamics of abuse  282–​84 personal care tasks  267–​68 politics  23, 273, 289 poor management  23 privacy  279–​81 professional standards  289 prosecutions  274–​79,  289 qualifications  267–​68,  284

registration schemes  285–​87, 289 regulation of conduct  284–​87 residential and nursing homes  267–​68 resources, lack of  23, 269–​70, 273, 277 sentencing  269, 271, 274, 276–​77, 278–​79 sickness absences  23 size of workforce  267–​68 staff shortages  269–​70, 278 Stafford Hospital, death of older people at  287 surveillance/​CCTV  280–​82 training  23, 267–​68, 272–​73, 276, 284–​88 Scotland  285, 286–​87, 289 Wales  285, 286–​87, 289 turnover of staff  23, 284 unpaid care workers  268–​69, 272–​73 Carson, WG  465–​66,  468 Carter, Bob  335–​36 Cartwright, Richard  471–​72 Casey, George  471–​72 Certification Officer (CO)  383,  385–​86 Chartism  460–​61 checks see criminal record checks children Australia  475,  480–​81 Canada 475 care workers, abuse by  274–​76, 277, 289 child, definition of  480 class  456, 457, 466–​68, 472–​73 Canada  469–​70,  471–​72 factories  455, 461, 464–​68 criminal convictions  475, 480–​81 European Convention on Human Rights  214, 216 factory work  455, 464–​68, 469–​70, 471–​72 health and safety  412–​16 independent child trafficking advocates  39–​40 Modern Slavery Act 2015  348 sex work  176 trafficking  39–​40,  323–​24 universities 480 voluntary work  480–​81 working time  414–​16,  464–​66 Christie, Nils 68 citizenship active citizenship  385 corporate manslaughter offence  398 migrant labour  334–​37, 340, 342 civil liability blacklisting in construction industry  84 criminal and civil liability, interaction between  14, 53–​69, 71,  97–​98 dignity  167–​69 dragging effect on civil regime, criminal liability as having a  19, 151–​53, 162 harassment and abuse  151, 152–​56, 161, 162,  167–​69 Miners’ Strike  379–​80,  381–​82 police  379–​80, 381–​82, 383, 384, 385, 386–​87 effectiveness of criminal sanctions to enforce labour rights  79, 81–​82, 87–​88,  92–​93

538 Index civil liability (cont.) exploitation  104–​5,  109–​10 fraud  118–​19, 123,  131–​32 GLAA  82–​83 health and safety  416–​17, 423, 424–​25 Master and Servant legislation  459, 463 National Minimum Wage by HMRC, enforcement of  81, 85, 88–​89 private enforcement model  53 sex work  192–​93, 209 standing to seek civil remedies  19, 151 strict liability  429–​30 working time  81, 85 Clark, Nick 431 class crimes  455–​73 Canada (Ontario)  27, 455–​56, 463–​64 Factories Acts  469–​72 federal enforcement  27 Master and Servant legislation  463–​64, 472 provincial police regulation  27 children  456, 457, 466–​68, 472–​73 Canada  469–​70,  471–​72 factories  455, 461, 464–​68 corporate manslaughter offence  398 discipline function  27, 455, 457, 458–​64, 472 Factories Acts  27, 464–​72 children  455, 464–​68, 469–​70,  471–​72 visitors/​inspection  465, 466–​67, 468–​69,  472 women  469–​70 working time  464–​66 freedom of contract  27 health and safety  27 hierarchies  456–​57,  458 historical context  27, 455, 457 industrial capitalism  455–​56 Industrial Revolution  455–​56, 464–​65, 469–​70, 472 mala in se crimes  27, 456, 457 mala prohibita crimes  27, 456, 457 Master and Servant legislation  27, 455, 458–​64, 472 Canada (Ontario)  463–​64, 472 Chartism  460–​61 coercive control  455–​56, 458–​59, 461–​62,  463–​64 disciplinary regime  457, 458–​64 freedom of contract  458 summary jurisdiction  457, 459–​61 trade unions  460–​61,  463–​64 wage claims  463–​64 mens rea 457 politics  471–​72 racialization 205 real crimes and regulatory crimes, difference between  456, 457, 467 reciprocity  455–​56 regulation  27, 456, 457, 467 repression 27 role and function of criminal law  250–​51 sex work  195–​96, 203–​4, 205, 206, 209 status-​based relations  456

strict liability  457 subordination  455–​56,  457 summary jurisdiction  457, 459 women  461,  469–​70 worker protection  27, 455–​57, 472–​73 Cobb, Neil  272–​73 Cockayne, James 351 coercion see coercion into work; workplace welfare and state coercion coercion into work carceral state at work (United States)  28, 496, 497,  498–​99 economic pressure  498–​99 exclusion  508–​15 labour in prison  28, 496, 503–​5 legal coercion  498 physical coercion  498 work or starve imperative  498, 499 coercive control, offence of  358–​59 collective labour rights see also police and collective labour relations; trade unions blacklisting in construction industry  218–​24, 225–​26,  228 disclose information, fraud by failure to  126 harassment and abuse, criminalization of  19,  171–​72 historical context  205 sex work  203–​4 Collins, Jennifer  122–​23,  188–​89 colonialism British Empire  332–​34,  336–​37 migrant labour  332–​34,  336–​37 Modern Slavery Act 2015  351 Combination Acts  3–​4, 364–​71,  387 Commonwealth citizens 336 communicative function  211, 391 communitarianism  529–​30 community service  496, 505–​8,  511–​13 comparative law  26–​28 compensation see also damages blacklisting in construction industry  21, 221–​22, 223–​24,  225–​26 breach of statutory duty  25–​26, 31, 409 compensation culture  421–​22,  424–​25 health and safety  421–​22, 424–​25 compulsory labour see coercion into work; slavery, servitude, forced and compulsory labour Conaglen, Matthew 130 confidentiality  127, 168–​69, 291, 307 confiscation orders  116, 345 consequentialism  37–​38,  398–​99 conspiracy  364–​65, 367, 368, 369 construction industry see blacklisting in construction industry contracts of employment breach of contract  17–​18, 29–​30, 117–​18, 204–​5 care workers  289–​90 deterrence 118 employees’ duties under contract  18–​19

Index  539 fraud  17–​18, 29–​30,  117–​18 freedom of contract  27, 458, 471 good faith  118 loyalty or fidelity, implied duty of  127–​29, 132–​33 property offences  17–​18 relational contractual obligations  18, 118, 123–​25,  127–​28 sex work  204–​5 trust and confidence, implied duty of mutual  17–​18, 125, 126–​27,  132–​33 conversion  117–​18 convictions see criminal convictions and access to employment corporate liability see also corporate manslaughter offence bribery 232 ‘capital punishment’  528 corporate failure-​to-​prevent offences  232–​34 culture  43–​44,  232 exploitation 101 fines 29 harassment and abuse, criminalization of  19, 29–​30,  156 health and safety  5, 29, 518–​22, 528–​30 identity theory  519–​20 police 386 probation orders  529–​30 prosecutions 29 strikes and industrial action  386 corporate manslaughter offence  25, 391–​92, 395–​401 actus reus 396 attribution  26, 396, 404 barriers to application  401 complex organizations  397, 399–​400 context  404–​7 controlling mind  396–​97 Corporate Manslaughter and Corporate Homicide Act 2007  395–​401,  404–​7 culture  43–​44,  405–​6 disasters  397, 399, 405 employment status  404–​5 fines 400 gross negligence manslaughter  396–​97 health and safety  25, 43–​44, 391–​92, 395–​401, 518–​19,  520–​21 identification doctrine  396 internal considerations  396 large organizations  399–​400 legitimacy  398–​99 management failure  396–​97, 399–​400, 404 medical professional as special before criminal law  306–​7 mens rea  396–​97,  400–​1 motive  407–​8 New Public Management  405–​6 organizational structures  404 police power  398–​99 politics 397 prosecutions  391–​92, 399–​401

public policy  405 public/​private distinction  405–​6 publicity orders  400 reform  397–​98 regulatory offences  398–​99 Sentencing Guidelines  400 state coercion  13–​14,  43–​44 state corporate crime  405–​6 corrective justice  18,  75–​76 Countouris, Nicola  99–​100 Craven, Paul  332–​33 criminal convictions and access to employment  474–​95 actors in labour market and in society, ex-​offenders as  481–​76 aged persons, working with  475, 480 background  474–​77 black market economy  483 children, working with  475, 480–​81 context  474–​77 criminal behaviour  491–​93 criminal record checks  475–​76, 477–​81 Australia  475, 477–​78, 479, 480–​81 consent  475, 482 contents 479 mandatory schemes  479–​81 police 479 policy  479–​81 professional employees  481 reviews  480–​81 voluntary access  479 custodial sentences  474–​75 deterrence 482 Disclosure and Barring Service (DBS)  479 disclosure requirements  475–​76, 477–​78, 479,  482–​83 discrimination  476, 481–​82, 483, 487, 488–​90, 491, 495 dismissals  476, 489–​90, 491–​93, 495 drug and alcohol addiction programs  474–​75 education and training  474–​75, 483–​84, 486 employers, needs of  475–​76 exclusion  496, 500–​1, 503, 508–​9, 514 formal sources of information on criminal backgrounds of job applicants  479 indigenous groups  483, 489 informal sources of information about person’s conduct  477,  493–​95 information on criminal records access  475–​77 disclosure requirements  475–​76,  477–​78 formal sources  479 informal sources  477, 493–​95 use in employment decisions  477–​78 instrumentalism  27–​28 integration  27–​28 irregular migrants  27–​28 legal intervention to assist vulnerable job seekers  487–​91 mental illness  483, 489

540 Index criminal convictions and access to employment (cont.) names and identities, changing  487 policy  479–​81,  488 post-​employment convictions  476 private and family life, right to respect for  492,  494–​95 probationary periods  493 professional employees  481 race  483, 489 recidivism  474–​75,  484–​87 reform 495 rehabilitation  28, 474, 475, 483, 484–​86, 487, 488, 495 relevant convictions  475, 476, 482–​83, 488–​89, 492 reputational issues  475–​76 social inclusion and exclusion  486–​87 social media  477, 493–​95 spent convictions or clean slate legislation  476, 482–​83, 487, 488, 491, 495 Australia  488, 491 historic homosexual offences  488 social media  494 themes  474–​77 third parties, safety of  475–​76 unfair dismissal legislation  489–​90, 491–​93, 495 United States  27–​28, 477–​78, 479 carceral state  28, 496, 500–​1, 503, 508–​9, 514 Fair Credit Reporting Act  479 vulnerable groups  475, 479–​81, 487–​91 whistleblowing 493 worker protection  487 wrongful dismissal  492 criminal record checks  475–​76,  477–​81 Australia  475, 477–​78, 479, 480–​81 consent  475, 482 contents 479 mandatory schemes  479–​81 police 479 policy  479–​81 professional employees  481 reviews  480–​81 United States  477–​78, 479 voluntary access  479 culture care workers  269–​71, 279–​80, 287 corporate liability  43–​44, 232, 405–​6 harassment and abuse, criminalization of  165, 171–​72 health and safety  25, 393, 405–​6, 407 medical professional as special before criminal law  301,  305–​6 Modern Slavery Act 2015  353–​54 organizations  162–​63 sex work  178, 180 custodial sentences see carceral state at work (United States) damages see also compensation Master and Servant legislation  462

punitive damages  162–​63 wage theft  18, 136, 137, 139 Dan-​Cohen, Meir  169–​70 data protection  221–​23 Davidov, Guy 436 Davies, ACL (Anne)  112–​13,  325 Davies, Paul 380 Davis, Adrienne 185 Davis, James 462 debt obligations  498, 505, 507, 511–​13 deceit  117–​18 Defence of the Realm legislation  375, 376 Dempsey, Michelle Madden  360–​61 Department of Business, Energy and Industrial Strategy (BEIS)  48, 74, 75–​76, 88–​89 deterrence blacklisting in construction industry  223, 225 breach of contract  118 criminal convictions  482 discrimination 65 effectiveness of criminal sanctions to enforce labour rights  88, 93 European Convention on Human Rights  210, 216–​17, 225, 226 exploitation 113 fraud  116–​19,  131 GLAA 87 harassment and abuse, criminalization of  165–​66 health and safety  391–​519, 522–​23, 529–​31 illegal workers, offence of employing  239 Labour Market Enforcement Orders (LMEOs)  246 Labour Market Enforcement Undertakings (LMEUs)  87, 246 licensing  253–​54,  265–​66 National Minimum Wage  48, 431, 440, 445–​46, 450 omissions  233–​34 prevention  243, 246 statutory rights, enforcement of  63–​64, 65, 67 strikes and industrial action  378–​79 dignity civil and criminal law, relationship between  167–​69 consent, role of  169–​71 employer duties  164–​67 foundational constitutional value, as  32 harassment and abuse, criminalization of  19, 32, 151, 155, 156, 163–​71 humiliation 166 Modern Slavery Act 2015  350 sex work  185 discipline carceral state at work (United States)  496, 506 care workers  11, 23, 281–​82, 286–​87, 289–​90 crime  27, 455, 457, 458–​64, 472 fraud 18 Master and Servant legislation  457, 458–​64 medical professional as special before criminal law 11 police 25 private disciplinary power  31

Index  541 disclose information, fraud by failure to  17–​18, 120–​315 Disclosure and Barring Service (DBS) 479 discrimination see also race and racialization Australia  488–​90,  491 blacklisting in construction industry  218–​19, 220, 221, 225–​26, 228 care workers  282 criminal convictions  476, 481–​82, 483, 487, 488–​90, 491, 495 deterrence 65 equal pay claims  54 European Convention on Human Rights  211 harassment and abuse, criminalization of  154, 169 Modern Slavery Act 2015  40–​41 public solidarity  65 restoration  530–​32 sex work  196 statutory rights, enforcement of  54, 56, 59–​61,  63–​65 Disraeli, Benjamin  368, 462 diversion  530–​31 Doherty, John  465–​66,  468 domestic abuse  164–​65 domestic workers  354–​61 coercive control, offence of  358–​59 employment tribunals  247 European Convention on Human Rights  214–​15, 222–​23,  344 feminism  354,  355–​58 housework, feminist analysis of nature of  355–​58 Independent Anti-​Slavery Commissioner (IASC) 354 leisure time, gendered differences in  357–​58 migrant workers  214–​15,  222–​23 Modern Slavery Act 2015  343, 352, 353, 354–​55, 358–​59,  361 patriarchy  360–​61 racism 356 statistics 354 visa scheme  354 working time  356 Donovan Commission  377–​78 Dottridge, Michael 352 double effect doctrine 293 Dromey, Jack 84 drug and alcohol addiction programs  474–​75 Du Bois, WEB  497–​98 Dubber, Markus D  363, 369, 381, 387–​88, 393,  396–​97 Duff, Antony  10, 14, 16, 30, 57–​63, 67, 68–​69, 182, 252, 297, 300, 303, 316–​17, 320 Dutton, Mary Ann 359 EASI see Employment Agencies Standards Inspectorate (EASI), enforcement role of Edelman, Lauren  171–​72 Edwards, Bert 374 Edwards, James 316

effectiveness of criminal sanctions to enforce labour rights  70–​94 see also Employment Agencies Standards Inspectorate (EASI), enforcement role of agencies  15–​16 austerity measures  15–​16 behavioural change  88 breaches, criminalization of  15, 80–​81 civil liability  79, 81–​82, 87–​88, 92–​93 complexity of legal responses  79–​83 criminal and civil liability, boundary between  71 definition of powers  71–​79 Department of Business, Energy and Industrial Strategy (BEIS)  88–​89 deterrence  88, 93 employment tribunal fees  92–​93 exploitation  112–​13 fines 93 funding  88–​89,  92 Gangmasters and Labour Abuse Authority, licensing regime administered by  15, 70, 72–​74 breach of order offences  80 EASI  82–​83 Immigration Act 2016  87–​88 imprisonment  79–​80 individuals, enforcement by  81 Modern Slavery Act 2015  87–​88 risk of enforcement  92 strict liability  79–​80 individual rights to bring claims  72, 81, 89, 92–​93 Labour Market Enforcement Unit, Office of the Director of  15–​16, 71, 78–​79, 85–​87 Enforcement Strategy 2018  93–​94 GLAA 90 modern slavery  93–​94 proposals  93–​94 mens rea  15, 80 Modern Slavery Act 2015  71, 90, 93–​94 National Minimum Wage by HMRC, enforcement of  15, 70, 88–​89 awareness, lack of  92 breach of order offences  80 civil enforcement  81, 85, 88–​89 funding  88–​89,  113–​14 GLAA 90 mens rea 80 politics  85–​88 risk of enforcement  92 Taylor Review  254–​55 working time  82–​83 nature and extent of enforcement  88–​90 politics  15, 70, 71, 83–​88, 90, 93 private remedies, loss of power to seek  15–​16 reasons for criminalization  83–​88 regulatory offences  79–​80,  82–​83 risk of enforcement  92 statistics 91t,  92–​93 strict liability  15, 79–​83 subsidiary role for criminal law  15–​16

542 Index effectiveness of criminal sanctions to enforce labour rights (cont.) trade unions blacklisting  15, 70, 83–​85 membership  87–​88 working time rights by HSE, enforcement of  15, 70,  77–​78 breach of order offences  80 civil liability offences  81, 85 fines  79–​80 funding 89 GLAA 90 holiday pay  87, 89 individuals, enforcement by  81, 89 politics  85–​88 prohibition orders  80 prosecutions 89 regulations 81 risk of enforcement  92 strict liability  79–​80 emergencies  363–​64, 375–​82,  387 declarations of emergencies  376 Defence of the Realm legislation  375, 376 First World War  375–​76, 377–​78 martial law  376–​77 Miners’ Strike 1984–​85  379–​82 normalization  25,  375–​79 picketing 376 reserve powers  379–​82,  386–​87 Second World War  377–​79 strikes  375–​78 terrorism 375 Employment Agencies Standards Inspectorate (EASI), enforcement role of  15, 70, 74–​75 abolition of licensing  258, 259–​60 Agency Workers Regulations 2010  254–​55 breach of order offences  80 civil liability offences  81, 85 command and control regulation  260 Department of Business, Energy and Industrial Strategy (BEIS)  74 Employment Agencies Act 1973  112–​13, 257–​58, 261, 262 employment status  259 Enforcement Policy Statement  75 failure to comply as a criminal offence  74–​75 false records  15, 75 fees 259 fines  79–​80,  261 funding  89, 243, 259, 262–​63 GLAA  82–​83 ILO 259 Immigration Act 2016  259–​60 increase in powers  254–​55 Labour Market Enforcement, Director of (DLME)  78, 254–​55,  259–​60 LMEUs/​LMEOs regime  75, 244, 259–​60 mission of EASI  74 obstruction of officers  75

politics  85–​88 powers, list of  74 prohibition orders  75, 262 public enforcement  254–​55 refusal or revocation, grounds for  258 regulation  258, 259 remuneration  258–​59 risk of enforcement  92 single enforcement body, proposal for  254–​55, 258 statistics 259 strict liability  79–​80 warning letters  75, 89 young workers  258–​59 employment status see also independent contractors control  198–​99 corporate manslaughter offence  404–​5 effectiveness of criminal sanctions to enforce labour rights 259 independent contractors  174, 175, 176, 185 mutuality of obligation  198–​99 precarious, insecure, and non-​decent work  99–​100,  102 sex work  198–​99, 203–​4, 207 gig economy  199 independent contractors  174, 175, 176, 185 personal performance  198–​99 social hurdles  199 sham doctrine  434–​35 employment tribunals deductions from wages  54 discrimination  54, 247 domestic servitude  247 equal pay claims  54 fees  22, 92–​93, 241, 247 prevention  246–​47 statutory rights, enforcement of  54 unfair dismissal  54 working time  426, 427 encouragement see assistance or encouragement Enemy Criminal Law  374–​75, 383–​86,  387 enforcement see effectiveness of criminal sanctions to enforce labour rights; enforcement of statutory employment rights through criminal law; Labour Market Enforcement Unit, Office of the Director of (ODLME); National Minimum Wage by HMRC, enforcement of enforcement of enforcement of statutory employment rights through criminal law  53–​69 agencies  55–​56 autonomy  14, 64 civil law and criminal law, interaction between  14,  53–​69 deterrence  63–​64, 65, 67 discrimination  54, 56, 59–​61, 63–​65 employment tribunals  54 fundamental rights  14 harassment  63–​64 harm principle  63–​64

Index  543 health and safety  14, 55, 56, 59, 62, 64, 66, 67 inequality of bargaining power  55 justification for criminalization  59, 62–​63, 66–​67,  68–​69 labour standards  14 mixed enforcement regimes  14 National Minimum Wage  14, 56, 59, 63–​64, 66, 67 politics  14, 54–​55, 59 private enforcement model  14, 53 public wrongs  14, 53, 57–​69 negative and positive versions  59–​62, 64–​67 positive to the absolute, from the  62–​67 public/​private dichotomy  58–​59,  68 publicness criteria  59–​61 wrongfulness criteria  58–​64,  68–​69 redundancy, failure to inform and consult on collective 56 regulation of labour market  14 unfair dismissal  56, 59, 61, 64–​65, 67 working time  56 written particulars  56, 59–​62, 64, 66 wrongfulness  57–​64,  68–​69 Estreicher, Samuel  512–​13 EU law see European Union European Convention on Human Rights (ECHR) see also freedom of assembly and association blacklisting in construction industry  29–​30, 211, 218–​24, 225–​26,  228 compensation  21, 221–​22, 223–​24,  225–​26 redress 21 breaches of labour rights, criminalization of  213–​24 children  214, 216 collective labour rights  218–​24, 225–​26, 228 communicative function  211 deterrence  210, 216–​17, 225, 226 discrimination 211 domestic workers  214–​15, 222–​23, 344 ECtHR, jurisprudence of  21, 210–​28 effective enforcement  103, 210, 225, 226, 410–​11 European Social Charter  216 exploitation 103 fair trial, right to a  226–​27, 233–​34, 253, 404–​5 freedom of assembly and association  211–​12 ILO 215 immigration status  214–​15, 216–​17, 222–​23, 228 inhuman or degrading treatment  212, 213, 214, 215, 216 life, right to  212, 213, 214, 215, 216 margin of appreciation  212 Modern Slavery Act 2015  xii–​218, 227 moral entitlements  21 no punishment without law  226–​27 overcriminalization/​exclusive focus on criminalization  211,  224–​27 positive obligations  21, 210–​14, 216, 217, 228 private and family life, right to respect for  492,  494–​95 blacklisting  211, 219–​23, 225, 228

European Convention on Human Rights  211, 212–​13, 214, 215 public wrongs  21 qualified rights  212 regulation  210, 216 severe labour exploitation  214–​18 Slavery Convention  215 slavery, servitude, forced and compulsory labour  21, 39, 210, 211–​12, 214–​18, 222–​23,  344–​46 structural context  21, 227 sufficiently serious breach  218 trafficking  103, 215–​16, 217, 227 European Social Charter (ESC) 216 European Union Agency for Fundamental Rights Agency  107–​8 health and safety  410–​11, 422, 423 trafficking  39, 41, 344 working time  425–​28 exclusion/​inclusion carceral state at work (United States)  28, 496–​505,  508–​15 criminal records  486–​87, 496, 500–​1, 503, 508–​9,  514 migrant labour  24 subordinated inclusion  497–​99, 503, 505 exploitation  97–​115 autonomy  104–​5,  109–​10 binary framing of criminalization  17, 97–​98, 110, 115 civil and criminal law approach  97–​98 civil law measures  97–​98, 110–​11 communicative function  108–​9, 111 conceptual framework  99–​103 connections between exploitation and work  99–​101 corporate liability  101 definition 17 deterrence 113 effectiveness  112–​13 efficiency 113 enforcement  109–​10,  111–​15 European Convention on Human Rights  103,  214–​18 exploitation in work relations, definition of  73,  101–​3 external limitations  98, 106–​8 fair labelling  97 for and against criminalization  17, 97–​98, 110, 115 Gangmasters and Labour Abuse Authority (GLAA)  112–​14 harm principle  108–​9 illegal working, offence of  106–​7, 111 Immigration Act 2016  97–​98, 106–​8, 112–​13, 115 inequality of bargaining power  17, 99–​100, 114–​15 internal limitations  98, 104–​5 international obligations  103 interpersonal exploitation  17, 101 interpretation  109–​10

544 Index exploitation (cont.) investigations, requirement for effective  103 licensing regimes  113 limitations of criminal law interventions  103–​8 mala in se crime  111, 113 migrant workers  99–​100,  106–​8 Modern Slavery Act  17, 97–​98, 114–​15 core offences  101 GLAA  112–​13 immigration control  17 interpersonal exploitation  101 National Referral Mechanism (NRM)  99–​100 serious public wrongdoing  111 trafficking  106–​7 transparency 101 victims, criminalizing  108 multidimensional regulation  17, 110–​15 National Referral Mechanism (NRM)  99–​100 negative constraints  109 outsourcing 100 penalties 111 politics  17, 98, 105, 108, 110, 113 precarious, insecure, and non-​decent work  17, 97–​98,  106 abolition 17 accountability 100 employment status  99–​100, 102 gig economy  100 hyper-​precarity  104 legislative precariousness  99–​100 temporal precariousness  99–​100 zero-​hour contracts  100 predatory conduct or working practices  102–​3 principled criminalization  98 regularisation, idea of  114–​15 regulation  17, 98, 108 alternatives  104–​5, 108–​10,  113 design 110 Macrory Sanctions Review  113–​15 mala in se crime and regulatory offences, distinction between  111 multidimensional  17,  110–​15 plus crime measures  72, 98 serious breaches of regulatory standards  113–​14 residence  99–​100 rule of law  111 serious public wrongdoing  108–​9, 111 sex work  20, 173–​91, 200–​3, 204, 209 situational vulnerability  99–​100 standards 17 state, obligations of the  103 subcontracting 100 theoretical structure, proposal for  17 trade union density  17 trafficking  17, 103, 106–​7 undocumented migrant workers  99–​100 United States  497–​99 visa regimes  17 vulnerable persons  17, 99–​101, 102–​3, 105

alternatives to regulation  108 same bodies charged with protection and enforcement, where  107 situational vulnerability  99–​100 Fabre, Cecile 178 Factories Acts British North Nationality Act  469–​70, 471 Canada (Ontario)  469–​72 children  455, 464–​68, 469–​70,  471–​72 class  27,  464–​72 criminalization 391 due diligence  470 enforcement  465–​68 fines  465, 466, 470 freedom of contract  471 health and safety  413–​17, 517–​18 Factories Acts  413–​14, 416, 417–​18 inspectorate  413, 419 imprisonment  466, 468, 470 mens rea  467, 468 patriarchal control  464–​65 police powers  471 regulatory offences  469, 472 Royal Commissions  466–​67,  471–​72 Sadler Committee  466–​67 strict liability  467, 468, 472 Tory radicalism  466, 469–​70 trade unions  465–​66 visitors/​inspection  465, 466–​67, 468–​69,  472 women  469–​70 working time  464–​66 fair trial, right to a  226–​27, 233–​34, 253,  404–​5 false or misleading representations, fraud by  119–​20 Farmer, Lindsay  24, 104–​5, 149–​50, 233, 328–​31, 363–​64, 368, 387, 411, 429 fault  25, 406–​7, 408, 413–​14, 439, 447, 525–​26 Federici, Silvia  355–​56 Feinberg, Joel  251–​52 feminism capitalism  200–​6 carceral agenda  199–​200 care workers  271 domestic workers  354, 355–​58 harassment and abuse, criminalization of  164–​65 housework, feminist analysis of nature of  355–​58 Marxism  20, 197, 200–​6 sex work  20, 187, 188, 194, 195–​96, 197, 199–​200 Fetterolf, Janell  357–​58 fiduciary relationships  122–​23, 129–​31, 142,  143–​44 Fielden, John  466, 468 financial interests of other parties, duties to safeguard  129–​32 financial penalties care workers  274 corporate liability  29, 400 EASI  79–​80,  261 effectiveness of criminal sanctions to enforce labour rights 93

Index  545 Factories Acts  465, 466, 470 GLAA  72, 256 health and safety Canada  518–​19,  528–​29 criminalization  405, 416–​18, 419, 421–​22, 429 illegal workers, offence of employing  234–​35, 240 Labour Market Enforcement Orders (LMEOs)  243–​44 Labour Market Enforcement Undertakings (LMEUs)  243–​44 magistrates’ courts  5 Master and Servant legislation  462, 463 National Minimum Wage  46–​47, 48 working time  79–​80 First World War  375–​76,  377–​78 fissured workplaces  26, 432–​39, 443–​44, 447, 450,  451–​52 Fitzjames Stephen, James  368, 387 flexibilization  337–​38 Focus on Labour Exploitation (FLEX)  449–​50 forced labour see coercion into work; slavery, servitude, forced and compulsory labour Ford, Michael  68,  240–​41 Foster, Steve 348 fraud  116–​33 abuse of position  121–​23, 131–​32 actus reus  121–​22 dishonesty  121–​22 fiduciary relationships  122–​23 omissions  121–​22 wage theft  18–​19,  146–​47 account of profits  18, 130–​32 actus reus  118, 120, 128–​29 breach of contract  17–​18, 29–​30, 117–​18 civil law  118–​19, 123, 131–​32 corrective justice  18 criminal justice system, functions of  116–​17 deceit  117–​18 deterrence  116–​19 disciplinary powers  18 disclose information, failure to  120–​315 collective bargaining and consultation bodies 126 dishonesty 121 legal duty to disclose  121 loyalty or fidelity, duty of  127–​29 proportionality 18 relational contracts  18, 125 scope and content  17–​18 standards of ordinary decent people, dishonest by reference to  121 transparency 126 trust and confidence, implied obligation of  126–​27 wage theft  146 employees’ duties under contract  18–​19 equitable remedies  130–​31, 132 false or misleading representations  119–​20 dishonesty  119–​20 gain or loss  120

imprisonment and fines  120 wage theft  146 financial interests of other parties, duties to safeguard  129–​32,  146 abuse of position  131–​32 account of profits  130–​32 advice, provision of  129 deterrence 131 equitable remedies  130–​31 fiduciary relationships  129–​31 loyalty or fidelity, implied duty of  129–​32 relational contracts  129–​30, 131 warn, duty to  129 Fraud Act 2006  17–​18, 118–​23 abuse of position  121–​23 deterrence  118–​19 disclose information, failure to  17–​18, 120–​315 European Convention on Human Rights  118 false or misleading representations  119–​20 Law Commission  118, 121, 122, 131 omissions  17–​18,  119–​23 over-​criminalization  132–​33 relational contractual obligations  18, 123–​25 wage theft  18–​19, 29–​30,  146–​50 good faith in employment contracts  118 immigration control  116 loyalty or fidelity, implied duty of  127–​29, 132–​33 mala in se crimes  18–​19 Master and Servant legislation  17–​18 migrant labour  116 omissions  17–​18, 119–​23,  128–​29 over-​criminalization  132–​33 proportionality 132 quasi-​familial incidents of status  18 regulation 116 relational contractual obligations  18, 123–​25 rule of law  17–​18 sanctions  116–​17 standards 116 theft  116–​18 trust and confidence, implied duty of mutual  17–​18, 126–​27,  132–​33 Freedland, Mark 380 freedom of assembly and association blacklisting in construction industry  211, 219, 221, 223–​24, 225–​26,  228 European Convention on Human Rights  211–​12 police  385,  387–​88 strikes and industrial action  385 Fudge, Judy  24–​25, 97–​98, 106–​7, 110, 205–​6, 318, 339, 351–​52, 361 fundamental rights see human rights gagging clauses 163 Gangmasters and Labour Abuse Authority (GLAA), licensing regime administered by  15, 72–​74, 249,  255–​57 abolition 249 Additional Licensing Conditions (ALCs)  257

546 Index Gangmasters and Labour Abuse Authority (GLAA), licensing regime administered by (cont.) advantages and disadvantages  260–​61 agriculture  23, 72, 256, 264, 265 breach of order offences  80 chief police officers, requests for assistance from  112–​13 civil liability  82–​83 code of practice  74 conditions  256–​57 decent work  264 deterrence 87 EASI  82–​83 effectiveness  70, 90 extension of scheme  249 fines  72, 256 forced labour  264 funding  113–​14, 240–​41, 243,  262–​63 gangmaster, definition of  256 health and safety  43 hybrid civil-​criminal orders  15, 74 Immigration Act 2016  87–​88, 265–​66 immigration officials, requests for assistance from  112–​13 imprisonment  72, 79–​80, 256 improvement, opportunities for  260 individuals, actions by  81 inspections 73 investigations 264 Labour Abuse Prevention Officers (LAPOs)  73 Labour Market Enforcement, Director of  78, 90, 249,  254–​56 Labour Market Enforcement Orders (LMEOs)  15, 73, 80–​81,  82–​83 Labour Market Enforcement Undertakings (LMEUs)  73–​74,  87 breach of order offences  15, 80–​81 code of practice  74 Immigration Act 2016  256 mixed civil and criminal approach  82–​83 trigger offences  243–​44 labour market offences  73 Licensing Standards  72 mala prohibita crimes  23 mens rea 80 Modern Slavery Act 2015  87–​88, 112–​13 moral censure  265 Morecambe Bay disaster  83, 255–​56, 263–​64 National Crime Agency, requests for assistance from Director General of  112–​13 National Minimum Wage by HMRC, enforcement of  90,  112–​13 obstruction of enforcement officers  15, 72 organised gangs  83 over-​criminalization  263 penalties  23, 72 politics  83–​85, 90, 263–​64, 265 powers of enforcement officers  72 prosecutions 90

public enforcement  254–​55 refusal or revocation of licences  260, 262, 264 requests for assistance  112–​13 risk of enforcement  92 scope 256 scoring system  257, 261, 264 sentencing  72, 256, 258 shellfish gathering  72, 83, 256–​57, 263–​64 single enforcement body, proposal for  254–​55, 258 statistics  40, 257 strict liability  79–​80, 256, 265 trade union blacklisting  83–​85 trafficking  83, 264 triangular relationships  264 trigger offences  73–​74 working time  90 Garland, David 233 Gavison, Ruth 360 gender see also feminism; patriarchy care workers  268, 270–​73, 276–​77, 282–​83, 284–​85, 288–​89 class 461 Factories Acts  469–​70 harassment and abuse, criminalization of Equalities  151, 161–​63, 164, 166–​67, 168–​69 health and safety  414–​16 House of Commons Select Committee on Women and Equalities  151, 161–​63, 164, 166–​67,  168–​69 leisure time, gendered differences in  357–​58 Master and Servant legislation  461 Modern Slavery Act 2015  351, 352 sex work  7–​197, 200, 201–​3, 205 toxic masculinity  170–​71 working time  425–​26 General Medical Council (GMC)  250–​51, 291, 302,  303–​4 General Strike  25, 372–​73, 376, 379, 380 GLAA see Gangmasters and Labour Abuse Authority (GLAA), licensing regime administered by Gordon, Jennifer 318 Gottfredson, MR 486 Grayling, Chris 423 Grono, Nick 351 gross negligence manslaughter  396–​97 Grunfeld, Cyril  370–​71 Hampton Report  421–​22 Haney, Lynne 510 harassment and abuse, criminalization of  151–​72 assistance or encouragement  154–​55 bullying  151–​52, 165–​66,  169 civil law and criminal law, relationship between  151, 152–​56, 161, 162, 167–​69 collective bargaining  19, 171–​72 confidentiality  168–​69 consent, enquiries into  19, 151, 169–​71 corporate liability model  19, 29–​30, 156 culture  165,  171–​72

Index  547 damages  162–​63 deterrence  165–​66 dignity, value of  19, 32, 151, 155, 156, 163–​71 discrimination  154, 169 domestic abuse  164–​65 dragging effect on civil regime, criminal liability as having a  19, 151–​53, 162 effectiveness 152 entertainment and media sector  151, 161 Equality and Human Rights Commission. Turning the Tables 156 feminist legal theory  164–​65 health and safety model  19, 155–​56, 160, 161 horseplay and consent  169, 170–​71 House of Commons Select Committee on Women and Equalities  151, 161–​63, 164, 166–​67,  168–​69 hybrid civil-​criminal measures  385 ILO  151, 159–​61, 162, 164 Convention and Recommendation Concerning the Elimination of Violence and Harassment  159–​61 core principles  160 health and safety approach  160 violence and harassment, definition of  159 mandatory duties  162 Master and Servants legislation  164, 166–​67 #MeToo movement  161, 171–​72 negative effect of criminalization  152–​56 non-​disclosure orders (NDAs), misuse of  163, 168–​69 organizational culture  162–​63 parallel tort and criminal liability  19 personalized wrong, harassment as  19, 25, 151, 154–​55,  156 dignity  168–​69 employer duties  164–​65 enforcement 171 humiliation 166 ILO 162 Master and Servant Acts  166–​67 over-​personalization  151,  156–​58 precarious, insecure and non-​decent work  19, 156, 162,  167–​68 Protection from Harassment Act 1997  19, 151–​54, 160–​62, 164–​65,  171 reform  151, 155, 159–​63, 171–​72 regulation  19, 151–​54, 155, 160–​61, 171 deregulatory criminalization  162–​63, 168 dignity  165–​66 dragging effect  19, 151–​54, 162 effectiveness 152 House of Commons Select Committee on Women and Equalities  151, 161–​63, 164, 166–​67,  168–​69 ILO 162 sexual harassment  161–​62 safeguarding duties  151, 165–​66, 171 sexual harassment  161–​62, 163, 164–​65, 168–​69 stalking  152,  164–​65

standing to seek civil remedies  19, 151 statutory rights, enforcement of  63–​64 structural and organizational context  19 toxic masculinity  170–​71 trade unions  19, 151, 171–​72 vertical and horizontal relationships  165–​67 vicarious liability  154–​55 victimization  156, 162 Hardy, Tess 436 harm boxing 45 exploitation  108–​9 harmful conduct principle (HCP)  316–​17 harm prevention principle (HPP)  316–​17 harm principle  63–​64, 108–​9, 251–​53, 412 boxing 45 indirect harm  20, 183–​85, 186–​87 sex work  182, 183–​85, 186, 188–​89 volenti non fit injuria  183–​85, 186, 187 health and safety  412 labour market  317–​18 licensing  251–​53,  320–​22 locals, to  316–​19 material harm  317 migrant labour  24, 309–​26 police  384–​85 proximity 317 psychological harm  317 sex work  182, 183–​85, 186, 188–​89 criminalization  21, 195, 206–​7 sex work as work  21, 195, 206–​7 statutory rights, enforcement of  63–​64 tax evasion  320–​22 territorial integrity, violation of  319 volenti non fit injuria  183–​85, 186, 187 Harrison, Amy 413 Hart, HLA 38 Hattery, Angela 503 Hay, Douglas  332–​33 Haynes, Jason  348, 350 health and safety  409–​30 see also health and safety in Canada; working time rights by HSE, enforcement of; workplace safety and criminalization boxing  13–​14,  44–​46 breach of statutory duty  25–​26, 31, 43, 409, 428–​29 burden of proof  404–​5, 409, 414–​15, 428 children and young people  412–​16 civil actions  416–​17, 423, 424–​25 class 27 compensation culture  421–​22,  424–​25 consent or connivance  417–​18 construction sites, reduction in visits to  43 corporate manslaughter  13–​14,  43–​44 criminalization  409–​30 deregulation  25–​26, 31, 411, 422–​24, 429–​30 deterrence  410–​11,  421–​22 development of criminalization-​limiting principles  25–​26

548 Index health and safety (cont.) directors, managers and others, personal liability of  417–​18 effective remedy, right to an (ECHR)  410–​11 EU law  410–​11, 422, 423 factories  413–​17 Factories Acts  413–​14, 416, 417–​18 inspectorate  413, 419 fair trial, right to a  404–​5 fault  413–​14 fines  405, 416–​18, 419, 421–​22, 429 harassment and abuse, criminalization of  19, 155–​56, 160, 161 harm principle  412 Health and Morals of Apprentices Act 1802  412–​14 Health and Safety at Work Act 1974  409, 417–​22, 429 Robens Committee  418–​20,  421–​22 so far as is reasonably practicable (SFAIRP) test  404–​5 state coercion  43–​44 Health and Safety Executive (HSE)  232, 419, 422–​23, 426, 428 historical context  25–​26, 411–​17, 429 ILO 160 imprisonment  405, 419, 429 inequality of bargaining power  410 injured persons  414, 416–​17, 429–​30 inspection  413, 419, 424–​25 instrumentalism  25–​26 justification of criminalization  25–​26 Löfstedt Report  423–​25 Macrory Report  421–​22 mala in se crimes  9, 409–​10 medical professional as special before criminal law  301,  306–​7 mens rea  409, 413, 419 omissions 232 over-​criminalization  409 policy  405–​7 politics 43 regulation  31, 43–​44,  409–​25 Robens Committee  392, 418–​20, 421–​22 sex work  13–​14, 20, 184, 185, 192–​98, 207–​8 state, enforcement as property of the  13–​14, 31, 37,  43–​46 statutory rights, enforcement of  14, 55, 56, 59, 62, 64, 66, 67 stigma  421–​22 strict liability  409–​11, 413–​15, 416, 419, 429–​30 deregulation  424, 425 Löfstedt Report  423 state coercion  43 stigma  421–​22 values  25–​26 vicarious liability  409, 414–​15, 416 women  414–​16 worker protective criminalization  25–​26 working time  77, 409, 414–​16, 425–​28, 429–​30 Young Report  422

health and safety in Canada  516–​33 actus reus  525–​26 alternative measures  530–​31 burden of proof  517–​18, 523 capacity  525–​26 Charter of Rights and Freedoms  520–​21 communitarianism  529–​30 corporate liability  518–​22,  528–​29 ‘capital punishment’  528 fines 29 identity theory  519–​20 probation orders  529–​30 prosecutions 29 Criminal Code  518–​25, 528, 530–​31 defences  525–​26 deterrence  517–​19, 522–​23,  529–​31 diversion  530–​31 Factories Acts  517–​18 fault  525–​26 fines  518–​19,  528–​29 general part of criminal law  525–​26 grievance arbitrators  531–​32 historical context  518–​20 human capability development  516–​17, 524–​33 instrumental freedoms  527–​28 sentencing reform  528–​30 vulnerability theory  527–​28 imprisonment 528 inequality of bargaining power  526–​27 internal responsibility  523 manslaughter  518–​19,  520–​21 Master and Servant Acts  517–​18 mens rea  525–​26 negligence  519–​22 definition of criminal  519–​20 objective fault  525–​26 subjective fault  525–​26 organizational liability  521–​23 penal law  517–​30 politics  517–​18,  527–​28 prosecutions  517–​18,  522 public harm  517–​18 punitive measures  516–​17,  524–​25 reform 523 refuse unsafe work, right to  523 regulation  28–​29 capabilities  526–​28 cooperation  529–​30 quasi-​criminal regulation  516–​18, 520–​21, 523,  532–​33 responsive  532–​33 rehabilitation  529–​31 responsive workplace law  29 restoration  530–​33 Criminal Code  530–​31,  532–​33 discrimination  530–​32 diversion  530–​31 equality  530–​31 grievance arbitrators  531–​32

Index  549 human capability development  516–​17, 527–​28, 530–​33 proportionality  530–​31 public interest  530–​31 punitiveness  516–​17 regulatory pyramid  532–​33 responsive regulation  532–​33 sentencing  516–​17,  530–​31 trade unions  530–​31,  532–​33 vulnerability  531–​32 whistleblowing  532–​33 retribution  524–​25,  530–​31 sentencing  524–​26 purposes  524–​25,  530–​31 reform  528–​30 specific occupational health and safety regimes, reform of  523 standards  517–​30,  532–​33 strict liability  525–​26 trade unions  29, 516–​17, 522, 526–​27, 531–​33 vicarious liability  517–​18,  519–​20 Westray Coal Mine disaster  519–​22, 523, 528, 532–​33 worker-​protective standards  28,  516–​30 workplace hazardous materials information systems (WHMIS)  523,  526–​27 health professionals see medical professional as special before criminal law Heath, Edward 418 Hepple, BA 259 Herring, Jonathan  267–​68 Hirschi, T  485–​86 historical perspective class  27, 455, 457 collective labour relations  25, 363–​88 Combination Acts  3–​4, 364–​71, 387 First World War  375–​76, 377–​78 General Strike  25, 372–​73, 376, 379, 380 health and safety  25–​26, 411–​17, 429, 518–​20 Master and Servant legislation  3–​4 migrant labour  24, 331–​41 police  25,  363–​88 regulation of labour markets  3–​4 Second World War  377–​79 sex work  204–​6, 208 Statute of Labourers  204–​5 Vagrancy Laws  204–​5 HM Revenue and Customs see National Minimum Wage by HMRC, enforcement of Hobsbawm, Eric 364 Holmstrom, Nancy 202 Horder, Jeremy  6, 322, 393, 405–​6, 412, 429 hours of work see working time housework, feminist analysis of nature of  355–​58 Hulsman, Louk H 68 human capability development  516–​17,  524–​33 human rights see also effectiveness of criminal sanctions to enforce labour rights; European Convention on Human Rights (ECHR) Agency for Fundamental Rights Agency (EU)  107–​8

Australian Human Rights Commission  488–​90 Charter of Fundamental Rights of the EU  427–​28 illegality  11, 24 inhuman or degrading treatment  313 migrant labour  315, 325 police  374–​75, 376, 385 statutory rights, enforcement of  14 Universal Declaration of Human Rights (UDHR)  526–​27 Husak, Douglas  409, 422 Hutchins, BL 413 Hutter, Bridget 403 Hyde, Alan  434–​35 illegal workers, offence of employing  234–​40, 247–​48, 338,  340–​41 checks  235,  236–​38 civil penalties  234–​35, 236–​37,  239–​40 collaboration/​collusion  238–​39 cooperation with Home Office  236–​37 deterrence 239 discrimination  237–​38 due diligence  235 enter and search, warrants for  237 financial incentives  236–​37 fines  234–​35,  240 Immigration Act 2016  22, 234–​35, 236–​37 imprisonment  235, 240 informed consent to enter  237 knowledge  234–​35 landlords 236 modern slavery  238–​39 objective test  234–​35 private employers, enforcement by  22 reasonable cause to believe  234–​35 subjective test  234–​35 visits to premises/​raids  237–​39 warning notices  236–​37 illegal working as a criminal offence exploitation  106–​7,  111 migrant labour  24, 309, 325, 338–​39 penalties  106–​7,  111 prevention  234,  239–​40 wages, recovery of  234, 239 illegality see also illegal workers, offence of employing; illegal working as a criminal offence civil claims, barring  11 illegality doctrine  11, 24, 107, 207 informal or illegal economy carceral state at work (United States)  499, 503–​4, 506,  508–​9 criminal convictions  483 sex work  203–​4, 205–​6, 207, 208 ill-​treatment and wilful neglect by care workers 23, 267–​79,  287–​90 children  274–​76, 277, 289 disciplinary procedure  286–​87 mens rea 275 Mental Capacity Act 2005  275–​76, 287

550 Index ill-​treatment and wilful neglect by care workers (cont.) Mental Health Act patients  275 special, medical professionals as  23–​24, 296–​97 vulnerable adults  275–​79 immigrants see migrant labour imprisonment see also carceral state at work (United States) care workers  274, 278–​79 collective labour relations  372–​73, 378 criminal convictions  474–​75 drug and alcohol addiction programs  474–​75 Factories Acts  466, 468, 470 GLAA  72, 79–​80, 256 health and safety  405, 419, 429, 528 illegal workers, offence of employing  234–​35, 240 Labour Market Enforcement Orders (LMEOs)  245 Labour Market Enforcement Undertakings (LMEUs) 245 licensing 253 Master and Servant legislation  459, 463 Modern Slavery Act 2015  240–​42, 243, 345 National Minimum Wage  48 strict liability  38–​39 inclusion see exclusion/​inclusion Independent Anti-​Slavery Commissioner (IASC) 354 independent contractors false self-​employment  18, 135, 198–​99, 207 labelling  18, 135 National Minimum Wage  18, 48–​49 sex work  174, 175, 176, 185, 198–​99, 203–​4, 207 transparency 18 indigenous groups  483, 489 industrial action see strikes and industrial action industrial capitalism  455–​56 Industrial Revolution  455–​56, 464–​65, 469–​70,  472 inequality of bargaining power  10, 30 care workers  270, 289–​90 exploitation  17, 99–​100,  114–​15 fraud 147 health and safety  410, 526–​27 medical professional as special before criminal law  291, 302, 304, 305 prevention  231,  239–​40 statutory rights, enforcement of  55 wage theft  144, 146 informal or illegal economy carceral state at work (United States)  499, 503–​4, 506,  508–​9 criminal convictions  483 inhuman or degrading treatment  212, 213, 214, 215, 216, 313 insecure work see precarious, insecure, and non-​decent  work inspections see Employment Agencies Standards Inspectorate (EASI), enforcement role of institution, criminal law as an  329–​31 International Labour Organization (ILO) EASI 259

European Convention on Human Rights  215 forced labour, definition of  215 harassment and abuse, criminalization of  151, 159–​61, 162, 164 Convention and Recommendation Concerning the Elimination of Violence and Harassment  159–​61 core principles  160 health and safety approach  160 violence and harassment, definition of  159 regulation 162 standards  526–​27 internships/​work experience  49–​51 Ireland fishing industry, immigration and employment status in  114–​15 regularisation  114–​15 irregular work see precarious, insecure, and non-​decent  work Jacobs, Antoine  362–​63,  366 Jacobs, James 488 James, Natalie 445 joint and several liability  436, 439, 449–​50 joint employment, concept of  434–​35 Kahn-​Freund, Otto  4–​5, 25,  99–​100 Kamp Dish, Claire M  357–​58 Kempadoo, Kamala 351 Kerr, Ian 221 Kerr, John 487 Keynesian welfare state 337 Khader, Serene J  180–​81 Khaitan, Tarunabh 166 Kirkwood, David 376 labelling blacklisting in construction industry  222–​23 fair labelling  18–​19, 26, 97, 222–​23, 437, 438–​39 migrant labour  24 self-​employment  18,  135 sex work  174 wage theft  18–​19, 135 Labour Abuse Prevention Officers (LAPOs) 73 Labour Market Enforcement Orders (LMEOs)  240–​41, 243,  247–​48 breach of order offences  15, 80–​81 code of practice  244 deterrence 246 EASI  75,  259–​60 effectiveness 90 fines  243–​44 GLAA  15, 73, 80–​81 breach of order offences  15, 80–​81 effectiveness 90 mixed civil and criminal approach  82–​83 Immigration Act 2016  240–​41, 243 imprisonment 245 licensing 245 LME Undertakings  244, 245

Index  551 National Minimum Wage  48, 439 number of undertakings  245 organized gangs  244–​45 trigger offences  245–​46, 439 working time, exclusion of  245 Labour Market Enforcement Undertakings (LMEUs)  240–​41, 243–​45,  247–​48 breach of order offences  15, 80–​81 code of practice  74 deterrence  87, 246 EASI  75, 244, 259–​60 fines  243–​44 GLAA  15, 73–​74,  80–​81 breach of order offences  15, 80–​81 code of practice  74 deterrence 87 Immigration Act 2016  256 mixed civil and criminal approach  82–​83 trigger offences  243–​44 Immigration Act 2016  240–​41, 243, 256 imprisonment 245 Labour Market Enforcement Orders (LMEOs)  244, 245 licensing 245 National Minimum Wage  48, 244 number of undertakings  245 organized gangs  244–​45 time limits  244 trigger offences  243–​44, 245, 246 working time offences, exclusion of  245 Labour Market Enforcement Unit, Office of the Director of (ODLME)  15–​16, 71, 78–​79,  85–​87 EASI  78, 254–​55,  259–​60 Enforcement Strategy 2018  93–​94 GLAA  78, 90, 249, 254–​56 HMRC 78 HSE 78 Immigration Act 2016  78, 85–​86 licensing  254–​55 National Minimum Wage by HMRC, enforcement of  76–​77,  254–​55 politics  85–​87 proposals  93–​94 responsibilities  78–​79,  86 labour rights see effectiveness of criminal sanctions to enforce labour rights; human rights; worker protection Lacey, Nicola  13, 22, 31, 165–​66, 363–​64, 374–​75, 383, 384–​85, 386, 387, 457 Lansley, Andrew  286–​87 Laub, John 486 Lewis, Penney  292–​93 Liberto, Hallie 178 licensing of employing entities and criminalization  249–​66 see also Gangmasters and Labour Abuse Authority (GLAA), licensing regime administered by characteristics 250 civil penalties  253

command and control regulation  250, 253–​54, 260 deterrence  253–​54,  265–​66 employment settings  254–​65 exploitation 113 fair trial, right to a  253 Gangmasters’ licensing scheme  23 General Medical Council (GMC) revalidation scheme  250–​51 harm principle  251–​53 imprisonment 253 justifications for licensing schemes  250, 251 Labour Market Enforcement, Director of (DLME)  254–​55 Labour Market Enforcement Orders (LMEOs)  245 Labour Market Enforcement Undertakings (LMEUs) 245 Modern Slavery Act 2015, National Referral Mechanism under  263 over-​criminalization  251–​52,  265–​66 preventive criminal law  22, 23, 30 prior approval  250–​51 professional occupations  254 prosecutions, lack of  253–​54 redress for workers  263 regulation  249, 252, 253–​55 stigma 253 unfair dismissal  254 life, right to  212, 213, 214, 215, 216 LMEOs see Labour Market Enforcement Orders (LMEOs) LMEUs see Labour Market Enforcement Undertakings (LMEUs) Lobban, Michael 364 lost property  136–​46 loyalty or fidelity, implied duty of  127–​29, 132–​33,  142–​43 Lyons, Christopher 504 Mac, Juno  196–​97,  198 McCann, Deidre 110 McDonald, Ramsay  376–​77 MacGregor, Ian  379–​80 MacKinnon, Catharine  164–​65 McLean, Iain  375–​76 mala in se crimes class  27, 456, 457 collective labour relations  388 definition 8 exploitation  111, 113 fraud  18–​19 health and safety  9, 395, 409–​10 mala prohibita crimes  8–​9, 30 medical professional as special before criminal law  296–​97 mens rea 9 migrant labour  316, 319, 330–​31 modern slavery  9 regulation 111 sex work  20, 184, 185, 186–​87, 188–​89

552 Index mala prohibita crimes blameworthiness of individuals  11 class  27, 456, 457 definition 8 GLAA 23 health and safety  409, 413, 419 mala in se crimes  8–​9, 30, 392, 395 medical professional as special before criminal law  296–​97 migrant labour  24, 310, 316, 319–​22 modern slavery  9, 30 National Minimum Wage  10 real crimes, as  5, 8–​9 regulation  8–​10,  319–​22 sex work  184, 185 stigma  8–​9 vulnerable workers  30 management failure  396–​97, 399–​400,  404 Manne, Kate 179 manslaughter see corporate manslaughter offence Mantouvalou, Virginia  99–​100, 107, 361 Margalit, Avishai 166 Marshall, SE  14, 57–​59, 61–​62,  68–​69 martial law  376–​77 Marx, Karl/​Marxism  20, 100–​1, 192–​93, 200–​7, 398, 405–​6, 411–​12,  472–​73 Massey, Douglas S  497, 498, 499 Master and Servant legislation  3–​4,  458–​64 Canada (Ontario)  463–​64, 472 care workers  23 Chartism  460–​61 civil liability of masters  459, 463 class  27, 455, 458–​64, 472 coercive control  455–​56, 458–​59, 461–​62,  463–​64 collective labour relations  364–​65, 370, 371, 387 damages 462 desertion 463 disciplinary regime  457, 458–​64 enforcement 4 fines  462, 463 fraud  17–​18 freedom of contract  458 gender 461 harassment and abuse, criminalization of  164,  166–​67 health and safety  517–​18 imprisonment  459, 463 loyalty or fidelity, duty of  132–​33 magistrates, bias of  459–​61 migrant labour  332–​34 oppression 5 penalties 458 police  364–​65, 370, 371, 387, 459 political opposition  461 poor law settlements  458 protective function  457 reciprocity  455–​56,  458 reform 462 regulation  3–​4,  6

serfdom 458 sex work  204–​5 specific performance  458 Statute of Artificers  458 summary jurisdiction  457, 459–​61 trade unions  5, 460–​61, 463–​64 villeinage 458 wage claims  463–​64 May, Theresa  42, 254–​55, 317, 343 medical professional as special before criminal law  291–​308 accountability  301,  306–​7 arguments supporting special treatment  301–​4 assisted reproduction and embryonic research  296–​98 austerity measures  23–​24 body modification  294–​95 breach of trust  300, 301, 303–​4 candour, duty of  305–​6 care workers, ill-​treatment or neglect by  23–​24,  296–​97 confidential information  291, 307 corporate manslaughter  306–​7 culture  301,  305–​6 defences, special and general  23–​24, 293–​96 abortions  293, 295, 307–​8 double effect doctrine  293 doctor-​patient relationship  291–​92, 302,  303–​5 exemption from criminal culpability  291–​96, 301, 304–​5,  307–​8 expert medical opinion  23–​24 General Medical Council (GMC)  291, 302, 303–​4 health and safety  301, 306–​7 inequality of bargaining power  291, 302, 304, 305 mala in se crimes  296–​97 mala prohibita  296–​97 medical manslaughter/​gross negligence manslaughter  23–​24, 31, 295, 298–​300, 301,  305–​7 mistakes and errors of judgment  23–​24 morality  301, 302 organ transplants and consent  304 organizational model of criminal liability  23–​24, 31 particular criminal liability that doctor’s professional role attracts  296–​301 personalization of criminal liability  23–​24 private wrongs  302–​4 professional role of doctors influential role  292–​96 judgment  23–​24 particular criminal liability  296–​301 special treatment, arguments for  301, 304 public interest  291–​92, 297, 298–​301, 303–​4, 305–​6 public wrongs  291–​92, 302–​4,  306–​7 scandals 301 sexual exploitation  300, 305 structural context  23–​24 mens rea actus reus and mens rea, coincidence of  18

Index  553 care workers  270–​71, 272–​73, 274–​75,  276–​77 class 457 corporate manslaughter offence  396–​97, 400–​1 effectiveness of criminal sanctions to enforce labour rights  15, 80 Factories Acts  467, 468 GLAA 80 health and safety  392, 407–​8, 525–​26 mala in se crimes  9 migrant labour  325 Modern Slavery Act 2015  347 National Minimum Wage accessory liability  442–​44, 447, 448, 450–​51 HMRC, enforcement by  80 strict liability  410–​11 mental capacity/​mental illness care workers evidence 274 ill-​treatment and wilful neglect  275–​76, 287 Mental Capacity Act 2005  268–​69, 275–​76, 277, 287 criminal convictions  483, 489 health and safety  407–​8 Mental Capacity Act 2005  268–​69, 275–​76, 277, 287 Metcalf, David  447–​48 #MeToo movement  161,  171–​72 migrant labour  3,  327–​42 18th century to 1900s  331–​41 1900s to 1980s  334–​37 1980s to present  337–​41 Agency for Fundamental Rights Agency (EU)  107–​8 authoritarian state craft  24 blameworthiness 316 border controls  31, 327–​28, 339–​40 British Empire  332–​34,  336–​37 carceral state at work (United States)  497, 499, 504 citizenship  334–​37, 340, 342 civil order  24, 31, 328–​31, 342 coercive enforcement  309–​10, 315 Commonwealth citizens  336 consequences of criminalization  324–​26 control  311–​15,  325 dangerous threats to civil order, migrants as  24 defences for the blameless  322–​24 deportation  315, 321, 325–​26 deregulation  24, 31, 337–​41 detention  315, 321 developing countries  337 discrimination  309, 315 documentation, lack of  309, 323 domestic workers  214–​15,  222–​23 EASI  259–​60 economic structure  327–​28,  341–​42 enforcement of immigration law  315 European Convention on Human Rights  214–​15,  222–​23 exclusionary practices  24, 312–​13

exploitation  97–​98, 99–​100, 106–​8, 112–​13,  115 expressive power of criminalization  324, 325 flexibilization  337–​38 for and against criminalization  24 fraud 116 gender  311–​12 GLAA  42, 87–​88,  265–​66 harm  24,  309–​26 harmful conduct principle (HCP)  316–​17 harm prevention principle (HPP)  316–​17 labour market  317–​18 locals, to  316–​19 material harm  317 proximity 317 psychological harm  317 territorial integrity, violation of  319 historical context  24, 331–​41 hostile environment  339 human rights  315, 325 illegal workers, offence of employing  22, 234–​35, 236–​37, 338,  340–​41 illegal working as a criminal offence  24, 309, 325,  338–​39 illegality doctrine  24 Immigration Act 2016  24, 309, 318, 338–​39 inclusionary effects of criminal law  24 industrialization  331–​32 inequality of opportunities  311–​12 institution, criminal law as an  329–​31 justification for criminalization  324, 326 labelling 24 Labour Market Enforcement Orders (LMEOs)  240–​41,  243 Labour Market Enforcement Undertakings (LMEUs)  240–​41, 243, 256 Labour Market Enforcement Unit, Director of  78,  85–​86 labour market governance  24, 331–​41 landlords  236, 309, 315 liberal principles  24 mala in se crimes  316, 319, 330–​31 mala prohibita crimes  24, 310, 316, 319–​22 justification of criminalization  321 regulations  319–​22 regulatory crimes  319–​22 Master and Servant legislation  332–​34 mens rea 325 modern slavery  41–​42 coercive control  12–​13 enforcement  13–​14 exploitation 17 precarious, insecure, and non-​decent work  13–​14 status, lack of enhanced  41–​42 undocumented  176–​77 National Minimum Wage violations, accessory liability for  432 nationalism 24 nationality  311, 315

554 Index migrant labour (cont.) neoliberalism  337–​41 overcriminalization  337–​38 overstayers  311–​12 penal regulation  327–​28 politics  11–​12, 24, 311 populism  11–​12 race and ethnicity  24, 309, 311–​12, 315, 333,  335–​36 refugees  309–​10,  311–​13 asylum claims  312–​13 defences  322–​24 exclusion from regular migration opportunities  312–​13 inhuman or degrading treatment  313 prosecutions 323 state’s generation of illegality  314 regularization of status  114–​15, 310, 325–​26 regulation  29, 311–​15,  337–​38 residence rights  312, 314 selectivity of immigration law  311–​12 sex work  176–​77, 188, 205–​6, 208 sociological context  24 sovereignty  331–​42 state’s generation of illegality  314 status of migrants  311–​15 strict liability  310, 312, 316, 322–​23 structural context  24 trafficking  322–​24,  325 undocumented/​irregular migrants  11, 99–​100, 107, 116, 176–​77, 188 visas  311–​13,  315 vulnerable workers  334–​35, 338, 339, 341 wage penalties for undocumented migrants  499 welfare offences  335–​36 Windrush scandal  314 worker protection  334–​37 wrongfulness  316,  322–​24 Mill, John Stuart  45,  251–​52 Mills, David  471–​72 Miners’ Strike 1984–​85  379–​82 bail conditions  381, 382 breaches of the peace, anticipation of  381, 382 civil law to criminal law, shift from  379–​80, 381–​82 mass arrests  377 policing  5, 25, 363–​64, 379–​82, 388 prerogative powers  381 preventive powers  381–​82 repression 5 watching and besetting offences  380 minimum wage see also National Minimum Wage by HMRC, enforcement of; National Minimum Wage violations, accessory liability for modern slavery and Modern Slavery Act 2015 3, 7–​8,  343–​61 actus reus 346 agency  176–​77 assessment  349–​50 autonomy 350

awareness training  344 background  343–​44 children  39–​40,  348 colonialism 351 confiscation 345 consent 347 culture  353–​54 defences  39–​40,  347–​48 developing countries  351, 352 dignity 350 discrimination  40–​41 domestic workers  343, 352, 353, 354–​55, 358–​59,  361 effectiveness of criminal sanctions to enforce labour rights  71, 90, 93–​94 European Convention on Human Rights  xii–​218,  227 exploitation  17, 97–​98, 112–​13,  114–​15 interpersonal exploitation  101 National Referral Mechanism (NRM)  99–​100 serious public wrongdoing  111 trafficking  106–​7 transparency 101 victims, criminalizing  108 family law  24–​25 for and against criminalization  12–​13 gender  351, 352 GLAA  39, 87–​88,  112–​13 illegal workers, offence of employing  238–​39 imprisonment 345 Independent Anti-​Slavery Commissioner (IASC)  39–​40, 348–​49,  354 independent child trafficking advocates  39–​40 Labour Market Enforcement Unit, Director of  93–​94 legal aid  39–​40 licensing 263 mala in se crimes  9 mala prohibita crimes  9, 30 mens rea 347 migrant labour  41–​42 coercive control  12–​13 enforcement  13–​14 exploitation 17 precarious, insecure, and non-​decent work  13–​14 status, lack of enhanced  41–​42 undocumented  176–​77 modern slavery, definition of  350 National Referral Mechanism (NRM)  41–​42, 217, 349 exploitation  99–​100 licensing 263 Reasonable Grounds decision  99–​100 vulnerable workers  99–​100 organized criminal gangs  24–​25, 176–​77, 184, 187–​90,  350 patriarchal structures  24–​25 police response  217–​18 politics  12–​13, 24–​25,  353–​54

Index  555 precarious, insecure, and non-​decent work  13–​14 prevention  239–​40 prosecutions, number of  217, 227 protection and assistance for victims  39–​42 racialization  351–​52 regulation  11, 12–​13, 24–​25, 29 reparation orders  39 sentencing 345 sex work  20, 176–​77, 184, 187–​90, 205–​6, 207, 208 slavery and human trafficking statements  449–​50 Slavery and Trafficking Prevention Orders (STPOs)  240–​43,  345 breach as criminal offence  241–​42 enforcement  240–​41 imprisonment  241–​42 justifications  245–​46 legal aid  247 Modern Slavery Act 2015  240–​41, 243 number of orders  242–​43 scope 246 Slavery and Trafficking Risk Orders (STROs)  240–​41,  242–​43 breach as criminal offence  242 enforcement  240–​41 imprisonment 242 justifications  245–​46 legal aid  247 Modern Slavery Act 2015  240–​41, 242, 243 number of orders  242–​43 scope 246 slavery, definition of  346, 352 state coercion  13–​14,  39–​42 state responsibility, marginalization of  24–​25 statistics  217, 349 strict liability  38–​39 structural factors  11, 24–​25, 227, 353–​54 subsistence allowance  40–​41 summary of legislation  344–​50 terminology  350–​54 trafficking  24–​25, 31–​32, 323–​24,  344 children  39–​40 defences  347–​48 exploitation  106–​7 Palermo Protocol  344, 350–​51 sex work  205–​6 statistics 349 Trafficking Convention  41–​42 Trafficking Directive  39, 41 trafficking prevention orders  345 transparency 101 underenforcement  217–​18,  227 vice and bad character, judgments of  31 victims, criminalizing  108 violence and abuse  343 visas 354 vulnerable workers  12–​13 white slavery  181–​82 wives and partners  343 Moffitt, TE  485–​86

Mongia, Radhika  341–​42 Moore, Michael 38 Morgan, Candace  107–​8 Murphy, Clíodhna  114–​15 Murray, Jill  142–​43 Nagin, Daniel 482 Napier, BW 259 National Minimum Wage  37, 46–​52 see also National Minimum Wage by HMRC, enforcement of; National Minimum Wage violations, accessory liability for benefits 47 collusion with employers  49–​51 criminal offences  46–​47, 48 Department of Business, Energy and Industrial Strategy (BEIS)  48 deterrence 48 enforcement  47–​48 financial sanctions  46–​47, 48 gig economy  49 housing costs  51–​52 imprisonment 48 independent contractors  18, 48–​49 internships/​work experience  49–​51 Labour Market Enforcement Orders (LMEOs), breach of  48 Labour Market Enforcement Undertakings (LMEUs) 48 National Living Wage  46–​47, 48–​52 National Minimum Wage Act 1998  46–​47 prosecutions 48 rates  46–​47,  51–​52 record-​keeping  46–​47 social democracy  36–​37 socio-​economic backgrounds  50–​51 trade unions  19 zero hours contracts  48, 49 National Minimum Wage by HMRC, enforcement of  15, 70 arrears  75, 88–​89, 263 awareness, lack of  92 breach of order offences  80 civil enforcement  81, 85, 88–​89 common good  10 corrective justice  75–​76 criminal offences  76 Department of Business, Energy and Industrial Strategy (BEIS)  75–​76 dual criminal and civil enforcement  15 effectiveness  88–​89 false records  15, 76 funding  88–​89, 113–​14, 240–​41, 243,  262–​63 GLAA  90,  112–​13 investigations 75 Labour Market Enforcement Undertakings (LMEUs) 244 Labour Market Enforcement Unit, Director of  76–​77, 78,  254–​55

556 Index National Minimum Wage by HMRC, enforcement of (cont.) living wage  10 mala prohibita crimes  10 mens rea 80 naming and shaming scheme  76–​77, 87 National Living Wage  56, 75 notices of underpayment  263 obstruction of enforcement officers  15, 76 penalties  75–​76 politics  85–​88 public enforcement  254–​55 punitive element  75–​76 risk of enforcement  92 single enforcement body, proposal for  254–​55, 258 small infringements, series of  261–​62 state coercion  13–​14 statutory rights, enforcement of  14, 56, 59, 63–​64, 66, 67 Taylor Review  254–​55 wage theft  18 working time  82–​83 National Minimum Wage violations, accessory liability for  431–​52 Accessories and Abettors Act 1861  441 accessory liability, definition of  26 actus reus  441, 443, 444 aiding, abetting, counselling, and procuring  441, 442–​43,  446–​47 assistance or encouragement  26, 436, 440, 441–​43,  449–​50 attribution 26 Australia  26, 432–​33, 439, 444–​49, 451 blameworthiness  438–​39 broadening liability  445–​49 causation  436, 437, 438, 441–​43, 451 commercial bargaining  26 conduct element  446–​47, 450, 451 culpability  26, 437–​38, 439, 440, 443, 451 deterrence  431, 440, 445–​46, 450 directing mind and will  448 effectiveness  437–​38, 449–​50,  452 enforcement 26 crisis  431–​33 primary liability  431–​33 public 431 strategies  433–​39 failure to prevent offences  449–​50 fair labelling  26, 437, 438–​39 fault  439, 447 fictional attribution of employer status  26 fissured workplaces  26, 432–​39, 443–​44, 447, 450, 451–​52 functional employer  434, 435–​36 holiday pay  431 Immigration Act 2016  432 incentives  431–​32 inchoate liability  440–​41,  449–​50 inducement  446–​47, 450, 451

joint and several liability  436, 439, 449–​50 joint employment, concept of  434–​35 knowledge requirement  432–​33, 436, 447, 448 Labour Market Enforcement Orders (LMEOs)  439 Labour Market Enforcement Strategy  431 lead companies in supply chains  26, 29–​30, 432–​35, 439–​52 mens rea  442–​44, 447, 448, 450–​51 novus actus interveniens 438 primary liability  431–​33, 434, 436–​39, 441, 442, 443,  449–​50 prosecutions, number of  431 reform 26 regulation  432, 434–​35, 437–​38, 449–​50, 452 sanctions  431–​32 sham doctrine  434–​35 slavery and human trafficking statements  449–​50 stigma 438 strict liability  443 structure of liability  440–​44 summary offences  441 transparency  449–​50 trigger offences  432 vicarious liability  440, 449–​50 wage theft  449–​50, 452 whistleblowing 440 wilful blindness  438, 441, 447, 448, 450, 451 nationalism 24 nationality  311, 315 neglect see ill-​treatment and wilful neglect negligence gross negligence manslaughter  396–​97 health and safety  519–​22, 525–​26 neoliberalism  7–​8, 31, 35, 337–​41 New Public Management (NPM)  405–​6 New Zealand  198, 488 Nichols, Vincent 350 no punishment without law  226–​27 non-​decent work see precarious, insecure, and non-​decent  work non-​disclosure orders (NDAs), misuse of  163,  168–​69 novus actus interveniens 438 Nussbaum, Martha  527–​28 Oastler, Richard 466 Obama, Barack 507 obstruction  15, 72, 75, 76, 367–​69 occupational health and safety see health and safety O’Connell Davidson, Julia  202, 206, 353 ODLME see Labour Market Enforcement Unit, Office of the Director of (ODLME) Ogus, Anthony  250–​51 Okin, Susan 358 O’Malley, Pat 233 omissions autonomy  271–​72 bribery  232,  233–​34 care workers  267, 271–​72, 273, 275–​76, 277, 283

Index  557 corporate failure-​to-​prevent offences  232–​34 corporations and employers, imposition of responsibility on  233–​34 deterrence  233–​34 fair trial, right to a  233–​34 fraud  17–​18, 119–​23,  128–​29 health and safety  232 justifications  233, 272 prevention  22, 231–​34,  247–​48 responsibilization 233 special relationships  272 tax evasion facilitation offences  232–​34 vulnerable persons  233 opportunity hoarding  497–​98,  499 organ transplants and consent 304 organized criminal gangs GLAA 83 Labour Market Enforcement Orders (LMEOs)  244–​45 Labour Market Enforcement Undertakings (LMEUs)  244–​45 Modern Slavery Act 2015  24–​25, 187–​88, 350 prevention  244–​45 sex work  20, 176–​77, 187–​88 Orth, John V  365, 366, 370–​71 othering  194, 196 Overall, Christine 179 over-​criminalization  29–​30 blacklisting in construction industry  224–​27 collective labour relations  383 Enemy Criminal Law  383 European Convention on Human Rights  211,  224–​27 fraud  132–​33 GLAA 263 health and safety  409 licensing  251–​52,  265–​66 migrant labour  337–​38 non-​wrongful statuses, targeting  30 politicization  7–​8 preventive measures  30 regulation 7 parole  504,  505–​7 paternalism 458 patriarchy definition 360 domestic workers  360–​61 Factories Acts  464–​65 Modern Slavery Act 2015  24–​25 precarious, insecure, and non-​decent work  20, 175, 179, 186–​87,  190–​91 sex work  20, 175, 179, 186–​87, 190–​91 violence 360 pay see National Minimum Wage; wages Peel, Robert  464–​65 Pettit, Becky  504,  506–​7 picketing code of practice  381–​82

Conspiracy and Protection of Property Act 1875  370–​71 emergencies 376 flying/​secondary pickets  381–​82 immunities  381–​82 injunctions  370–​71 intimidation  367–​68, 369–​70, 384, 386 oaths 366 police powers  380, 381 private interests, crimes against  368 road blocks  381 Trade Union Act 2016  383, 384, 386 Pilinger, Jane 159 police see also police and collective labour relations autonomy 392 corporate manslaughter offence  398–​99 courts 459 criminal record checks  479 discretionary state intervention  11–​12 Factories Acts  471 governance practice  11–​12 Modern Slavery Act 2015  217–​18 sex work  195–​96 police and collective labour relations  362–​88 18th and 19th century  363–​68, 387 1875, after  363–​64 arbitrary use of police powers  377 autonomy of labour law  387–​88 Certification Officer (CO), powers to impose civil penalties of  383, 385–​86 civil law to criminal law, shift from  379–​80, 381–​82, 383, 384, 385, 386–​87 civil liberties  374–​75, 376, 385 Combination Acts  364–​71, 387 Communists  372–​74 Conspiracy and Protection of Property Act 1875  363–​64,  368–​71 continuing presence of criminal law  371–​75 corporate criminal liability  386 covert surveillance  25 criminal conspiracy  364–​65, 367, 368, 369 disciplinary control  25 discretion  25, 363, 371, 380–​81, 387–​88 emergencies  363–​64, 375–​82,  387 declarations of emergencies  376 Defence of the Realm legislation  375, 376 First World War  375–​76, 377–​78 martial law  376–​77 Miners’ Strike 1984–​85  379–​82 normalization  25,  375–​79 reserve powers  379–​82,  386–​87 Second World War  377–​79 strikes  375–​78 terrorism 375 Employers and Workmen Act 1875  370 Enemy Criminal Law  374–​75, 383–​86, 387 executive power  371 First World War  375–​76, 377–​78 flying squads of police  377

558 Index police and collective labour relations (cont.) freedom of assembly and association  385, 387–​88 General Strike  25, 372–​73, 376, 379, 380 harms  384–​85 historical context  25, 363–​88 hybrid civil-​criminal measures  383, 385–​86, 387 immunities 367 imprisonment  372–​73,  378 intimidation  384–​85,  386 legislative state  368–​69 mala in se crimes  388 Master and Servant legislation  364–​65, 370, 371, 387 MI5 and Special Branch  374 Miners’ Strike 1984–​85  25, 363–​64, 379–​82, 388 bail conditions  381, 382 breaches of the peace, anticipation of  381, 382 civil law to criminal law, shift from  379–​80,  381–​82 mass arrests  377 prerogative powers  381 preventive powers  381–​82 watching and besetting offences  380 molestation  367–​69 National Reporting Centre (NRC)  380–​81 obstruction  367–​69 over-​criminalization  383 penal provisions  366–​67, 370 picketing code of practice  381–​82 Conspiracy and Protection of Property Act 1875  370–​71 emergencies 376 flying/​secondary pickets  381–​82 immunities  381–​82 injunctions  370–​71 intimidation  367–​68, 369–​70, 384, 386 oaths 366 police powers  380, 381 private interests, crimes against  368 road blocks  381 Trade Union Act 2016  383, 384, 386 politicization  380–​81,  383 character-​based theories of culpability  383 risk-​based criminalization  383 preparatory offences  383 preventive powers  381–​83, 385, 387–​88 private rights  368–​71 public order  371–​72, 380, 381, 384, 388 public wrongs  368–​71 radical trade unionists, dangerous status of  25 recognition  362, 371, 386–​87 repression and control  25, 362, 364–​68, 386–​87 reserve powers  379–​82,  386–​87 revolutionary action  372–​73 risk-​based criminal responsibility  384–​85 Second World War  377–​79 sedition  365–​66, 368, 372–​73, 374, 380, 386–​87 sociological context  25 strikes and industrial action  25, 363–​74

corporate criminal liability  386 deterrence  378–​79 emergencies  375–​76 First World War  375–​76, 377–​78 freedom of assembly and association  385 General Strike  25, 372–​73, 376, 379, 380 illegal strikes  373–​74 injunctions 371 leverage protests  384–​85 Miners’ Strike 1984–​85  25, 363–​64, 379–​82, 388 naming and shaming  384 notice  375–​76 public order offences  371–​72 public sector  386 reserve powers  379–​82 Second World War  377–​79 social media  384 troops, use of  371–​72 unofficial strikes  377–​78 subversion  372–​75, 379,  386–​87 surveillance  371–​72,  374 terrorism 375 toleration  362,  386–​87 tort liability  370–​71 Trade Disputes and Trade Unions Act 1927  373–​74 Trade Union Act 2016  363–​64 United States  363 Unlawful Oaths Act 1797  366 wartime  25, 375–​76,  377–​79 politics care workers  23, 273, 289 character-​based theories of culpability  383 class  471–​72 collective labour relations  380–​81, 383 corporate manslaughter offence  397 EASI  85–​88 effectiveness of criminal sanctions to enforce labour rights  15, 70, 71, 83–​88, 90, 93 Enemy Criminal Law  383 exploitation  17, 98, 105, 108, 110, 113 GLAA  83–​85, 90, 263–​64, 265 health and safety  43, 517–​18, 527–​28 Labour Market Enforcement Unit, Director of  85–​87 migrant labour  24, 311 modern slavery  12–​13, 24–​25,  353–​54 National Minimum Wage by HMRC, enforcement of  85–​88 over-​criminalization  7–​8 police  380–​81,  383 preventive measures  22 public wrongs  16 risk-​based criminalization  383 sex work  21, 195–​96, 206–​7 statutory rights, enforcement of  14, 54–​55, 59 working time  85–​88 poor law settlements 458 populism  11–​12, 24,  337–​38 Prassl, Jeremias 435 precarious, insecure, and non-​decent work

Index  559 abolition 17 care workers  23, 283 deregulation 11 employment status  99–​100, 102 exploitation  17, 97–​98, 99–​100, 102, 104, 106 gig economy  49, 100 GLAA 23 harassment and abuse, criminalization of  19, 156, 162,  167–​68 hyper-​precarity  104 illegality barring civil claims  11 irregular migrant workers  11 legislative precariousness  99–​100 patriarchy-​precarity constraints  20, 175, 179, 186–​87,  190–​91 racialization 11 regulation 11 sex work  20, 175, 179, 186–​87, 190–​91 structural determinants  7–​8 Taylor Report  48, 254–​55 temporal precariousness  99–​100 zero-​hour contracts  36–​37, 48, 49, 100, 283 prerogative powers 381 preventive role of criminal law in employment relations  231–​48 access to justice  241 civil measures  246 deterrence  243, 246 employment tribunals  246–​47 illegal workers, offence of employing  234–​40,  247–​48 Immigration Act 2016  22, 234–​35, 236–​37 private employers, enforcement by  22 illegal working, offence of  234, 239–​40 inequality of bargaining power  231, 239–​40 Labour Market Enforcement Orders (LMEOs)  240–​41, 243–​44,  247–​48 code of practice  244 deterrence 246 Immigration Act 2016  240–​41, 243 imprisonment 245 licensing 245 LME Undertakings  244, 245 number of undertakings  245 organized gangs  244–​45 trigger offences  245–​46 working time, exclusion of  245 Labour Market Enforcement Undertakings (LMEUs)  240–​41, 243–​45,  247–​48 deterrence 246 enforcement  240–​41 Immigration Act 2016  240–​41, 243 number of undertakings  245 trigger offences  245, 246 working time offences, exclusion of  245 licensing  23, 30 Modern Slavery Act 2015  239–​40 omissions  22, 231–​34,  247–​48 organized gangs  244–​45 over-​criminalization  30

political choices  22 preventive orders  22, 240–​47 public wrongs  16 regulation  22, 32 responsibilization  247–​48 retribution 37 safeguarding duties of private actors  22 Slavery and Trafficking Prevention Orders (STPOs)  240–​43, 245–​46,  247 Slavery and Trafficking Risk Orders (STROs)  240–​41, 242–​43, 245–​46,  247 standards, deregulation of  22 trade unions  22 trafficking 22 tribunal fees and access to justice  22 worker-​protective labour law  22, 231, 239–​40 previous convictions see criminal convictions and access to employment prison see carceral state at work (United States); imprisonment privacy care workers  279–​81 private and family life, right to respect for  492,  494–​95 blacklisting  211, 219–​23, 225, 228 European Convention on Human Rights  211, 212–​13, 214, 215 social media  494–​95 Wolfenden Committee  279–​80 probation orders  529–​30 professional employees see also medical professional as special before criminal law Australia 481 criminal convictions  481 fit and proper reasons  481 licensing 254 registration 481 prohibition orders  75, 262 prosecutions blacklisting in construction industry  221 care workers  274–​79, 289 corporate liability  29, 391–​92, 399–​401 discretion 5 effectiveness of criminal sanctions to enforce labour rights  15–​16 exceptionalism 391 GLAA 90 health and safety  391, 403–​4, 517–​18, 520–​21, 522 licensing  253–​54 migrant labour  338, 340 Modern Slavery Act 2015  217, 227 National Minimum Wage  48, 431 private prosecutions  19, 171–​72, 517–​18 public inquiries  520–​21 refugees 323 repeat offenders  517–​18 trafficking  323–​24 working time  89 public inquiries  520–​21 public order offences  3–​4, 371–​72, 380, 381, 384, 388

560 Index public/​private distinction  405–​6 public wrongs  11–​12 account, public calling to  16 collective labour relations  368–​71 common good of decent work for all  11 doing nothing  16 effectiveness of criminal sanctions to enforce labour rights 15 European Convention on Human Rights  21 guilt, authoritative determinations of  16 identification  10, 16, 32 labour wrongs  7–​8,  31–​32 medical professional as special before criminal law  291–​92, 302–​4,  306–​7 modern slavery  12–​13 negative and positive versions  59–​62, 64–​67 politics 16 positive to the absolute, from the  62–​67 preventive measures  16 private law  16 public censure  16 public/​private dichotomy  58–​59,  68 publicness criteria  59–​61 punishment 16 regulatory differences between criminal law and labour law  11 restorative justice  16 serious public wrongdoing  108–​9, 111 sex work  32, 178 statutory rights, enforcement of  14, 53, 57–​69 wrongfulness criteria  58–​64,  68–​69 publicity orders 400 quality of work  497–​98, 504–​5, 506,  508–​15 race and racialization carceral state at work (United States)  11, 28, 496, 497–​502 class 205 criminal convictions  483, 489 domestic workers  356 exploitation  497–​98 migrant labour  24, 309, 311–​12, 315, 333, 335–​36 Modern Slavery Act 2015  351–​52 New Jim Crow  497, 501–​2 populism 12 precarious, insecure, and non-​decent work  11 sex work  21, 178, 194, 196–​97, 200, 201–​3, 205 social categorization  497 warehousing of surplus populations  502 Ramsay, Peter  335–​36,  384–​85 real criminal law, idea of  6–​7 records see criminal record checks redundancy, failure to inform and consult on collective 56 refugees  309–​10,  311–​13 asylum claims  312–​13 defences  322–​24 exclusion from regular migration opportunities  312–​13

inhuman or degrading treatment  313 prosecutions 323 state’s generation of illegality  314 visas  312–​13 refusal of work/​reluctance to accept work  509–​10, 513, 514, 515 registration schemes  285–​87,  289 regulation  3–​4, 6–​8, 22 see also licensing of employing entities and criminalization alternatives  104–​5, 108–​10,  113 autonomy 7 Canada  28–​29 capabilities  526–​28 cooperation  529–​30 quasi-​criminal regulation  516–​18, 520–​21, 523,  532–​33 responsive regulation  532–​33 care workers  284–​87 class  27, 456, 457, 467 command and control  250, 253–​54, 260 corporate manslaughter offence  398–​99 criminal law plus model  32 deregulation  15, 162–​63, 168 harassment  162–​63,  168 health and safety  25–​26, 31, 406–​7, 411, 422–​24,  429–​30 migrant labour  24, 31, 337–​41 precarious, insecure, and non-​decent work  11 strict liability  424, 425 working time  425–​26 design 110 dignity  165–​66 EASI  258, 259 effectiveness of criminal sanctions to enforce labour rights  79–​80,  82–​83 efficiency 32 European Convention on Human Rights  210, 216 exploitation  17, 98, 108 alternatives  104–​5, 108–​10,  113 design 110 Macrory Sanctions Review  113–​15 mala in se crime and regulatory offences, distinction between  111 multidimensional regulation  17, 110–​15 plus crime measures  72, 98 serious breaches of regulatory standards  113–​14 Factories Acts  469, 472 fraud 116 GLAA 23 harassment and abuse, criminalization of  19, 151–​54, 155, 160–​61, 171 deregulatory criminalization  162–​63, 168 dignity  165–​66 dragging effect  19, 151–​54, 162 effectiveness 152 House of Commons Select Committee on Women and Equalities  151, 161–​63, 164, 166–​67,  168–​69 sexual harassment  161–​62

Index  561 health and safety  28–​29, 31, 43–​44, 409–​25 capabilities  526–​28 cooperation  529–​30 criminalization  25,  406–​8 quasi-​criminal regulation  516–​18, 520–​21, 523, 532–​33 responsive regulation  532–​33 historical perspective  3–​4 Immigration Act 2016  29 inequality 11 labour markets  3–​4 Macrory Sanctions Review  113–​15 mala in se crime and regulatory offences, distinction between 111 mala prohibita crimes  8–​10 Master and Servant legislation  3–​4, 6 migrant labour  311–​15,  337–​38 modern slavery  11, 12–​13, 24–​25, 29 moral dimension  32 multidimensional regulation  17, 110–​15 National Minimum Wage violations, accessory liability for  432, 434–​35, 437–​38, 449–​50, 452 over-​criminalization  7 penal regulation  327–​28 plus crime measures  72, 98 precarious, insecure, and non-​decent work  11 preventive regulation  22, 32 privatization 337 public inspectorates  7 public wrongs  11, 16 pyramid  532–​33 quasi-​criminal regulation  516–​18, 520–​21, 523,  532–​33 real crimes  7, 456, 457, 467 reflexive regulation  418 responsive regulation  532–​33 serious breaches of regulatory standards  113–​14 sex work  20 state coercion  13–​14, 29–​30,  37–​38 statutory rights, enforcement of  14 strict liability  7, 38–​39, 424, 425 structural determinants  11 vulnerable persons  11 wage theft  18–​19 rehabilitation criminal convictions  28, 474, 475, 483, 484–​86, 487, 488, 495 health and safety  529–​31 relational contractual obligations  18,  123–​25 remuneration see National Minimum Wage; wages reparation orders 39 repression  3–​5 carceral state at work (United States)  28, 496 class 27 collective labour relations  25, 362, 364–​68, 386–​87 responsibilization  233, 247–​48, 403–​4, 408 restorative justice Canada  530–​33 Criminal Code  530–​31,  532–​33

human capability development  516–​17, 527–​28,  530–​33 discrimination  530–​32 diversion  530–​31 equality  530–​31 grievance arbitrators  531–​32 health and safety  530–​33 human capability development  516–​17, 527–​28,  530–​33 proportionality  530–​31 public interest  530–​31 public wrongs  16 punitiveness  516–​17 regulatory pyramid  532–​33 responsive regulation  532–​33 sentencing  516–​17,  530–​31 trade unions  530–​31,  532–​33 vulnerability  531–​32 whistleblowing  532–​33 retribution  37, 38, 524–​25, 530–​31 Ricketts, Robert 468 Robens Committee  392, 418–​20,  421–​22 Roberts, WP 460 Ross, Jacqueline E  374–​75 Rossi, Benedetta  353–​54 rule of law  17–​18,  111 Sadler Committee  466–​67 Sampson, Robert 486 sanctions see effectiveness of criminal sanctions to enforce labour rights Sandberg, Sheryl 358 Satz, Debra 178 Second World War  377–​79 sedition  365–​66, 368, 372–​73, 374, 380, 386–​87 self-​employment see independent contractors Sen, Amartya  527–​28 sentencing see also financial penalties; imprisonment care workers  269, 271, 274, 276–​77, 278–​79 corporate manslaughter offence  400 GLAA  72, 256, 258 health and safety  524–​26, 528–​31 human capability development  528–​30 Modern Slavery Act 2015  345 purposes  524–​25,  530–​31 reform  528–​30 restoration  516–​17,  530–​31 serfdom 458 servitude see slavery, servitude, forced and compulsory labour sex work  192–​209 activists  192–​93, 194–​95, 196–​97, 199–​200,  205–​6 adaptive preferences  177, 180–​81, 184–​85 agency  19–​20, 21, 176–​77, 187 alternative options adaptive preferences  180–​81 adequate range of alternatives  174, 175, 177, 179, 183–​84,  186 baselines 175

562 Index sex work (cont.) preference for sex work  174, 175, 179, 180–​81, 184–​85,  187 autonomy  174, 180–​81, 186, 187–​88, 206–​7 brothels  174, 175, 185, 192–​94, 195–​96, 198–​200, 202–​3,  206–​9 capitalism  200–​7,  209 children 176 civil law  192–​93, 209 class  195–​96, 203–​4, 205, 206, 209 collective bargaining  203–​4 commercial sex  173, 174, 181–​90 definition 174 structural inequalities  177, 178–​79 commercial-​sex-​as-​exploitation (CSE)  184, 186–​87,  188–​90 commercial-​sex-​as-​modern-​slavery  184,  187–​90 commercial-​sex-​as-​varied  184,  188–​90 commercial-​sex-​at-​work  173, 184–​85, 188,  190–​91 commercial sexual exploitation, definition of  175–​76 commodification of sex  176–​78, 179, 184–​85, 186,  187–​88 decommodification  204, 205 sex work as work  202–​4, 205, 208 compulsion of labour  204–​5 conceptualizing commercial sex  173–​77 consideration, exchange of valuable  174, 184 control and punishment  181, 182–​83 culture  178, 180 decriminalization  192–​98, 205–​6, 207, 209 dehumanization  19–​20, 21, 179 dignity 185 discrimination 196 diversity of sex work  193–​94, 196 empowerment 179 entry and exit, restrictions on  206 Erotic Professionals  196–​97 employment status  198–​99, 203–​4, 207 exploitation  20, 173–​91, 200–​3, 204, 209 feminism  20, 187, 188, 194, 195–​96, 197, 199–​206 forced commercial sex  181–​82, 187 form of work, sex work as a  20, 192–​94, 198–​200,  206–​8 free labour  203–​4, 209 gender  7–​197, 200, 201–​3, 205 harm principle  182, 183–​85, 186, 188–​89 criminalization  21, 195, 206–​7 indirect harm  20, 183–​85, 186–​87 volenti non fit injuria  183–​85, 186, 187 health and safety  13–​14, 20, 184, 185, 192–​98,  207–​8 historical perspective  204–​6, 208 human-​givers, women as  179 human rights  195, 198 illegality  203–​4, 205–​6, 207, 208 independent contractors  174, 175, 176, 185 intermediaries, targeting  20 irregular migration  176–​77, 188 labelling 174

labour rights  192–​93, 194–​95, 209 de facto rights  192–​93, 199–​200 de jure rights  192–​93, 199–​200 labour, whether commercial sex work is  174–​75,  177–​81 commercial-​sex-​at-​work  173, 184–​85,  190–​91 philosophical issues  177–​81 limiting principles  20 mala in se crimes  20, 184, 185, 186–​87, 188–​89 mala prohibita crimes  184, 185 market demand  20, 189–​90, 191 Marxism  20, 192–​93,  200–​7 capitalism  200–​6,  209 feminism  20, 197, 200–​6 meaningful work  174–​75 medical professionals  300, 305 migrant workers, criminalization of illegal  205–​6,  208 minimalism  182–​83, 184–​85, 186, 187, 190 modern slavery  205–​6, 207, 208 commercial-​sex-​as-​modern-​slavery  184,  187–​90 Modern Slavery Act 2015  20, 176–​77, 181–​82 organized criminal gangs  187–​88 modest legal moralism  182, 183, 184–​85 non-​interference, presumption of  183–​85, 187, 189 normative account of commercial sex and criminalization  182–​84, 189,  190–​91 organized criminal gangs  20, 176–​77, 187–​88 othering  194, 196 patriarchy-​precarity constraints  20, 175, 179, 186–​87,  190–​91 personal work relations  20 pimps  20, 175, 176–​77, 181, 186, 188–​89, 191 politics 174 preference for sex work  174, 175, 179, 180–​81, 184–​85, 187,  189–​90 presumption of non-​interference  20 public wrongs  183, 187 purchasers  20, 185, 186–​88, 189–​91, 195 racism  21, 178, 194, 196–​97, 200, 201–​3, 205 rape  187–​88 reciprocity  178, 183 refusal, right of  198–​99, 206, 207 regulation 20 self-​employment  198–​99, 203–​4,  207 sex of sex work  192, 194 sex work, definition of  174–​75 objective criteria  174–​75 subjective criteria  174–​75 sexual practices  196 state coercion  13–​14, 19–​20,  44–​45 stigma  21, 194, 196–​97 structural inequalities  20, 177, 178–​80, 184–​85, 186 taxonomy  20, 173–​77,  190–​91 third parties  176 tort law  207 trade unions  205 trafficking  175–​76, 178, 181–​82, 186–​87, 188–​89, 191, 207, 208

Index  563 definition of sex trafficking  175–​76 Palermo Protocol  175–​76 UN Special Rapporteur  178 undocumented immigration  176–​77 unfreedom  20, 192–​93, 200, 203–​9 varied work  20 violence and abuse  185, 186, 187, 188–​89, 195, 197, 206,  207–​8 waste management model  502 Wolfenden Committee 181 work, sex work as  20, 192–​94, 198–​200, 206–​9 worker-​protective goals  20–​21, 192–​93,  208–​9 activists 197 brothels  199–​200 class 205 decriminalization  194–​95 free labour  200 migrant labour  205–​6 New Zealand  198 working conditions  192, 194, 198–​99, 201–​3, 205–​6 sexual harassment  161–​62, 163, 164–​65,  168–​69 sham doctrine  434–​35 Sheridan, Jim 83 Shipman, Harold 300 Siegel, Reva  164–​65 Simester, Andrew  98, 111, 154–​55, 231–​32 Simon, Daphne 370 Simon, John 373 Simon, Jonathan  502,  511–​12 Skrivankova, Klara 101 Slaven, Mike 325 slavery see modern slavery and Modern Slavery Act 2015; slavery, servitude, forced and compulsory labour slavery, servitude, forced and compulsory labour see also modern slavery and Modern Slavery Act 2015  344–​47 defences  347–​48 definition 344 employment tribunals  247 European Convention on Human Rights  21, 39, 210, 211–​12, 214–​18, 222–​23,  344–​46 forced or compulsory labour, definition of  347 GLAA 264 Slavery Convention  215 United States  498 Slesser, Henry  376–​77 Smith, Earl 503 Smith Inquiry (Shipman) 300 Smith, Molly  196–​97,  198 social democracy  13–​14, 19–​20, 29–​30, 35–​39, 42, 52 social media  384, 477, 493–​95 sovereignty  331–​42 Spena, Alessandro  312, 320–​21, 325 Spencer, John 344 Stafford Hospital, death of older people at 287 standards see Employment Agencies Standards Inspectorate (EASI), enforcement role of; worker protection

Stark, Evan  358, 359 state coercion see workplace welfare and state coercion Statute of Artificers 458 Statute of Labourers  204–​5 statutory employment rights see enforcement of statutory employment rights through criminal law stigma carceral state at work (United States)  504 criminal convictions  482 factory crimes  5 licensing 253 mala prohibita crimes  8–​9 National Minimum Wage  438 sex work  21, 194, 196–​97 strict liability  421–​22 working time  427–​28 Strauss, Kendra  24–​25, 351–​52,  361 stress  407–​8 strict liability actus reus  410–​11 class 457 consequentialism  37–​38 deontology  37–​38 deregulation  424, 425 EASI  79–​80 effectiveness of criminal sanctions to enforce labour rights  15,  79–​83 Factories Acts  467, 468, 472 GLAA  79–​80, 256, 265 health and safety  392, 409–​11, 413–​15, 416, 419,  429–​30 deregulation  424, 425 Löfstedt Report  423 state coercion  43 stigma  421–​22 imprisonable offences  38–​39 Löfstedt Report  423 mens rea  410–​11 migrant labour  310, 312, 316, 322–​23 Modern Slavery Act 2015  38–​39 National Minimum Wage violations, accessory liability for  443 regulation  7,  38–​39 retribution 38 social democracy  38 state coercion  13–​14 stigma  421–​22 working time  79–​80 strikes and industrial action  25,  363–​74 corporate criminal liability  386 deterrence  378–​79 emergencies  375–​78 First World War  375–​76, 377–​78 freedom of assembly and association  385 General Strike  25, 372–​73, 376, 379, 380 illegal strikes  373–​74 injunctions 371

564 Index strikes and industrial action (cont.) leverage protests  384–​85 loyalty or fidelity, duty of  128 Miners’ Strike 1984–​85  25, 363–​64, 379–​82, 388 naming and shaming  384 notice  375–​76 public order offences  3–​4, 371–​72 public sector  386 reserve powers  379–​82 Second World War  377–​79 social media  384 troops, use of  371–​72 unofficial strikes  377–​78 structural context criminal convictions  27–​28 European Convention on Human Rights  21, 227 harassment and abuse, criminalization of  19 health and safety  25 inequalities  177, 178–​80, 184–​85, 186 medical professional as special before criminal law  23–​24 migrant labour  24 Modern Slavery Act 2015  24–​25, 227, 353–​54 precarious, insecure, and non-​decent work  7–​8 sex work  19–​20, 177, 178–​80, 184–​85, 186 vulnerability  7–​8 Sturman, Rachel  334–​35 subordination class  455–​56,  457 inclusion  497–​99, 503, 505 subversion  372–​75, 379,  386–​87 Sugie, Naomi  504–​5,  511–​12 Sullivan, GR  154–​55,  231–​32 surveillance  280–​82, 371–​72,  374 Taylor, Ingmar  447–​48 Taylor Review  48,  254–​55 tax evasion associated persons  232 facilitation offences  232–​34 harm  320–​22 terrorism 375 Thatcher, Margaret  35–​36, 337, 418 theft  116–​18 see also wage theft as a legal concept Thomas, Maurice 413 Thompson, EP 365 Thompson, John  471–​72 Thornton, Glenys (Baroness Thornton) 288 tipping, abuse of  135,  144–​45 Tolpuddle Martyrs 366 tort collective labour relations  370–​71 negligence  396–​97, 519–​22,  525–​26 parallel tort and criminal liability  19 sex work  207 trade unions see also blacklisting in construction industry; police and collective labour relations; strikes and industrial action density 17

harassment and abuse, criminalization of  19, 151,  171–​72 health and safety  29, 516–​17, 522, 526–​27, 531–​33 Master and Servant legislation  5, 460–​61, 463–​64 membership  87–​88 National Minimum Wage  19 prevention 22 private prosecutions  19, 171–​72 radicalism  25,  465–​66 restoration  530–​31,  532–​33 sex work  205 trafficking Anti-​Trafficking Directive  344 children  323–​24 Council of Europe Anti-​Trafficking Convention 344 defences  322–​24,  347–​48 double vulnerability  99–​100 European Convention on Human Rights  103, 212, 215–​16,  217 exploitation  17, 103, 106–​7 GLAA  83, 264 GRETA  323–​24 independent child trafficking advocates  39–​40 independent contractors  176 migrant labour  322–​24, 325 Modern Slavery Act 2015  24–​25, 205–​6, 344 Anti-​Trafficking Directive  344 coercion  31–​32 Council of Europe Anti-​Trafficking Convention  344 defences  347–​48 migrant labour  323–​24 Palermo Protocol  344, 350–​51 statistics 349 Palermo Protocol  175–​76, 215–​16, 344, 350–​51 private employers, enforcement by  22 prosecutions  323–​24 sex work  175–​76, 178, 181–​82, 186–​87, 188–​89, 191 statistics 349 structural context  227 Trafficking Convention  39, 41–​42 Trafficking Directive  39, 41 trafficking prevention orders  345 UN Special Rapporteur  178 training care workers  23, 267–​68, 272–​73, 276, 284–​88 criminal convictions  474–​75, 483–​84, 486 tribunals see employment tribunals trust and confidence, implied duty of mutual  17–​18, 125, 126–​27, 132–​33,  142–​43 Tucker, Eric  149–​50 Tulkens, Francoise  213,  224–​25 Uggen, Christopher  485, 486 unemployment and underemployment  501, 502, 503–​4, 505,  507–​8 United States see also carceral state at work (United States) collective labour relations  363 criminal convictions  27–​28, 477–​78, 479

Index  565 dignity  164–​65 Fair Credit Reporting Act  479 joint employment, concept of  434–​35 race 489 Universal Credit 36 utilitarianism  415,  524–​25 Vagrancy Laws  204–​5 van der Geest, Victor  482,  485–​86 Veltman, Andrea 174 Verbruggen, Janna  482,  485–​86 vicarious liability harassment and abuse, criminalization of  154–​55 health and safety  409, 414–​15, 416, 517–​18, 519–​20 joint employment, concept of  434–​35 National Minimum Wage violations, accessory liability for  440, 449–​50 sexual abuse  151 victimization  156, 162 villeinage 458 Virgo, Graham 148 visas  17,  311–​12 discrimination 311 domestic slavery  354 fees 311 Modern Slavery Act 2015  354 outsourced and offshored processing  311 refugees  312–​13 students 315 temporary stays  311–​12 UK Overseas Domestic Worker visa  227 volenti non fit injuria  169–​70, 183–​85, 186, 187 voluntariness carceral state at work (United States)  498, 507–​8, 509–​10,  511 health and safety  407–​8 voluntary work  480–​81 von Hirsch, Andreas  98, 111 vulnerability Australia 480 care workers, abuse by  275–​79 criminal convictions groups  475, 479–​81 discrimination  488–​89 double vulnerability  99–​100 exploitation  17, 99–​101, 102–​3, 105, 108 GLAA 23 human capability development  527–​28 legal intervention to assist job-​seekers  487–​91 mala prohibita crimes  30 migrant labour  334–​35, 338, 339, 341 modern slavery  12–​13,  99–​100 omissions 233 regulation 11 restoration  531–​32 same bodies charged with protection and enforcement, where  107 situational vulnerability  99–​100 structural determinants  7–​8

Wacquant, Loïc 502 wage theft as a legal concept  134–​50 abuse of position, fraud by  18–​19, 134, 146–​47 agreed sums, actions for  136–​39 appropriation  18, 136, 137–​38, 140, 148 arrears of pay  138–​39 belonging to another  18, 136 constructive trusts  140–​41, 142, 144 damages  18, 136, 137, 139 deductions from wages  135, 145 dishonesty  18, 145–​46, 148 equal pay  139 examples of wage theft  134–​35 fiduciary relationships  142, 143–​44 fraud offence under Fraud Act 2006  18–​19, 29–​30,  146–​50 gain or loss  145–​46, 147–​50 general principles of criminal law  18–​19 inequality of bargaining power  144, 146 labelling  18–​19,  135 lost property  136–​46 loyalty or fidelity, implied duty of  142–​43 mens rea and actus reus, coincidence of  18 National Minimum Wage  18, 449–​50, 452 property, definition of  135–​36 proprietary status of wages  18 regulation  18–​19 self-​employed, false labelling as  18, 135 social concept of wage offence  18 specific performance  141 Theft Act 1968  18, 134, 136–​46 theft, definition of  135–​36 tipping, abuse of  135, 144–​45 trust and confidence, implied duty of mutual  142–​43 wage theft, definition of  134–​35 wages see also National Minimum Wage by HMRC, enforcement of; National Minimum Wage violations, accessory liability for; wage theft as a legal concept carceral state at work (United States)  504–​5, 506–​7, 509–​10,  512–​13 equal pay claims  54 illegal working, offence of  234, 239 Master and Servant legislation  463–​64 penalties  504–​5, 506–​7, 509–​10,  512–​13 Waldfogel, Joel 482 Waldron, Jeremy  167–​68 Walkowitz, Judith  195–​96 Wallington, Peter  380,  381–​82 warehousing of surplus populations 502 Warrior, Betsy 355 watching and besetting offences 380 Webb, Sidney  411–​12 Weber, Max 325 Wedderburn, Bill (Lord Wedderburn)  4, 5–​6, 25 Weil, David  433,  437–​38 welfare see workplace welfare and state coercion Wells, Celia 233

566 Index Wertheimer, Alan  102–​3 whistleblowing  127, 440, 493, 532–​33 wilful neglect see ill-​treatment and wilful neglect Wilson, Harold 379 Windrush scandal 314 women see gender worker protection carceral state at work (United States)  509–​13 class  27, 455–​57,  472–​73 criminal convictions  487 deregulation 22 enforcement  4–​5, 6, 31 European Convention on Human Rights  21,  210–​28 exploitation 17 fraud 116 health and safety  25–​26, 28, 395, 517–​30, 532–​33 migrant labour  334–​37 neoliberalism  7–​8,  31 prevention  22, 231, 239–​40 sex work  20–​21, 192–​93,  208–​9 activists 197 brothels  199–​200 class 205 decriminalization  194–​95 free labour  200 migrant labour  205–​6 New Zealand  198 statutory rights, enforcement of  14 Universal Declaration of Human Rights (UDHR)  526–​27 working time  409, 414–​16, 425–​28 see also working time rights by HSE, enforcement of Charter of Fundamental Rights of the EU  427–​28 children  414–​16,  464–​66 civil aviation  427 civil sanctions  426, 429–​30 criminal sanctions  426, 427–​28, 429–​30 declaratory relief  428 deregulation  425–​26 domestic workers  356 effectiveness  426–​28 employment tribunals  426, 427 EU law  425–​26,  427–​28 Factories Acts  464–​66 fire brigades  428 health and safety  409, 414–​16, 425–​28, 429–​30 Labour Market Enforcement Orders (LMEOs)  245 Labour Market Enforcement Undertakings (LMEUs) 245 merchant shipping  427 National Minimum Wage by HMRC, enforcement of  82–​83 regulations  425–​28 rest periods  427 road transport  427 shop workers  425–​26 stigma  427–​28 strict liability  426–​27

women  425–​26 Working Time Directive  426–​27 young persons  425–​26 working time rights by HSE, enforcement of 15, 70,  77–​78 annual leave  77 breach of order offences  80 civil liability offences  81, 85 criminal offences  78 effectiveness  89, 90 fines  78,  79–​80 funding 89 GLAA 90 health and safety  77 holiday pay  87, 89 individuals, enforcement by  81, 89 Labour Market Enforcement Unit, Office of the Director of  78 maximum weekly work  77 night work  77 politics  85–​88 prohibition orders  80 prosecutions 89 record-​keeping  77 rest breaks  56, 77 risk of enforcement  92 strict liability  79–​80 weekly rest  77 Working Time Officers  78 Working Time Regulations  15, 77–​78 young workers  56, 77 workplace hazardous materials information systems (WHMIS)  523,  526–​27 workplace safety and criminalization  391–​408 Approved Codes of Practice (ACoPs)  403 capacity 25 choice 25 communicative function  391 context  25, 391–​92, 401–​2,  403–​8 corporate manslaughter offence  25, 391–​92, 395–​401,  404–​7 culture  25, 393, 405–​6, 407 deregulation  406–​7 deterrence 391 due diligence  393–​94 ends-​oriented offences  391–​92,  406 Factories Acts  391 failure to ensure health and safety  403 fault  25, 406–​7, 408 Health and Safety at Work Act 1974  391–​95, 403–​8 mala in se crimes  395 mala prohibita crimes  392, 395 mens rea  392,  407–​8 mental health  407–​8 non-​employees, harm to  391, 392–​93 organizational norms  25 personalization 25 police power  392 procedural unfairness  394–​95

Index  567 prosecutions  391,  403–​4 public health  391 public policy  391–​92, 405 regulation  25,  406–​8 responsibility  25, 403–​4,  407–​8 social policy  391–​92 standards 395 stress  407–​8 strict liability  392 structural context  25 voluntarism  407–​8 workplace welfare and state coercion  35–​52 boxing  13–​14,  44–​46 corporate manslaughter  13–​14,  43–​44 dominant liberal paradigm in Anglo-​American criminal theory  13 health and safety  13–​14, 37, 43–​46 minimum wage enforcement  13–​14

modern slavery  13–​14,  39–​42 National Minimum Wage (NMW)  37, 46–​52 regulatory criminalization  13–​14, 29–​30,  37–​38 right to work, workers without a  37, 39–​42 sex work  13–​14, 19–​20,  44–​45 social and economic welfare  13 social democracy  13–​14, 19–​20, 29–​30, 35–​39, 42, 52 strict liability  13–​14 Wotton, Barbara 38 written particulars  4–​5, 56, 59–​62, 64, 66 wrongs see public wrongs; tort Young, David (Lord Young) 422 young workers see also children EASI  258–​59 working time  56, 77, 425–​26 zero-​hour contracts  36–​37, 48, 49, 100, 283