Criminality at Work

This collection is based on a 3-year project led by the editors, Alan Bogg, Jennifer Collins, Mark Freedland and Jonathan Herring, which investigated the intersection between labour law and criminal law. Particular impetus to explore the intersection between these legal areas had been provided by two pieces of legislation. First, the Modern Slavery Act 2015, which had created new offences in order to criminalize modern slavery (including labour exploitation); and, secondly, the Immigration Act 2016, which rendered employing an irregular migrant or working as an irregular migrant a criminal offence (p.3). Underlying the project is the awareness of the absence of a focus within contemporary scholarship on the nature of interactions between criminal law and labour law. This is identified as a surprising oversight when juxtaposed against an established body of literature within legal history and labour history scholarship which spillover has underscored the repressive regulatory reach of the criminal law into labour relations (p.3).

The original (understated) conviction of the editors that this area ‘would be an interesting one to investigate’ (p.3) is more than borne out by the rich and impressive range of contributions. In the introductory chapter, Framework for Discussion, Bogg and Freedland establish the parameters of the collection. They write with persuasive clarity about the historical and contemporary dynamics which have led to the current lack of dialogue between the disciplinary areas. They also point to the lack of scholarship which grapples with the spillover and impact that each area has on the other. This includes, for example, the ‘deeply embedded’ scepticism of labour lawyers towards the use of the criminal law owing to its historical use as a disciplining and (oppressive) enforcement tool (p.4) and the spectre of historical, morally aberrant, penal Master and Servant legislation which haunts contemporary criminal lawyers (p.6). Bogg and Freedland are refreshingly honest about the bias that they felt about the likely impact of criminal law on the labour market, particularly for the experiences of precarious workers. The chapter also includes the original hypotheses which provided the springboard for the project, as well as reflections on these in light of the findings of the project and book (p.7 and p.29). Overall, this first chapter manages to weave together the legal, political and theoretical strands of the subject area(s), to situate the relationship between labour and criminal law within the historical and contemporary context, and to clearly evidence the pertinence—and urgency—of the analyses across the contributions.

Following Bogg and Freedland’s framing of the criminal-labour law landscape and the overview of project, there are then a further 25 chapters organized into five parts. The three contributions in part 1, ‘Criminality at Work: Mapping the Terrain’, lay the foundations for those that follow by establishing the current state of play in how criminalization interacts with the labour market in the UK. Theoretically, there is consideration of what a social democratic model of criminal law could offer (see Sullivan’s contribution). In part 2, ‘Labour Wrongs as Public Wrongs’, the seven chapters examine a number of public wrongs within the context of criminal law (including exploitation, workplace harassment, violations of human rights, wage theft and public regulation of sex work). In exploring these public wrongs the authors contextualize their presence in the literature on criminalization and explain why the criminal law can be considered an appropriate response to such wrongs. In part 3, ‘The Contemporary Shape of Criminalization Practices: Risk, Status, and Character in the Neoliberal Criminal Law’, the eight chapters explore a variety of contemporary ‘live’ issues at the crux of labour law and criminal law. The contributions here unpack the politics relating to criminalization. This is particularly clearly articulated in the final chapter of this part (by Bogg, Freedland, Collins and Herring) in which Nicola Lacey’s work on modern practices of criminalization¹ is used as a lens through which to examine the role of the criminal law (and police powers) to regulate and restrict collective labour action. In part 4, ‘Criminalization and Enforcement’, the three contributing chapters focus on consideration of the issue of whether imposition of criminal sanctions actually contributes to effective enforcement. The final part then broadens the jurisdictional reach of the analysis by focussing on ‘Comparative Perspectives on Criminalization’. The four chapters here incorporate aspects of how criminalization is interacting with elements of labour law in the US, Canada and Australia.

This brief, top-level overview of the structure of the book does not do justice to the breadth and depth of topics, approaches and arguments that exist within and across the individual contributions. The rich historical perspective woven throughout, combined with the comparative element in the final part, adds further strength to the contemporary examination of criminalization within the UK labour market by providing nuanced counterpoints. A deliberately broad approach to collaboration can run the risk of the resulting collection not holding together as a coherent piece, especially in the absence of a concluding chapter to expressly bring together the threads of the themes embedded in the different discussions. This book, however, successfully navigates the challenge of bringing together such a range of subjects and perspectives. This success rests, first, on the quality of the individual chapter contributions and, secondly, on the adroit nature of the introductory chapter. The inclusion of the original hypotheses, and discussion of how they were later reflected upon, stands as an effective scaffold to lift and situate the collection as a whole.

It is interesting that a springboard to the collaboration was the enactment of the Modern Slavery Act 2015 and the Immigration Act 2016. The cross-border elements of mobility (both when categorized as voluntary and involuntary) and increasing significance of ‘crimmigration’ runs through the collection. Modern slavery, which sits on the cusp of labour law and criminal law’s regulatory reach, features prominently in a number of the chapters (including those by Sullivan, Collins and Ashworth, Madden Dempsey, Cruz, Herring, Mantouvalou and Costello). This is interesting as many of the policy responses to modern slavery can be critiqued in a way that reflects themes of the book. For example, in seeking to protect those deemed as vulnerable—whether that be workers, victims of exploitation or migrants—there are unintended consequences to regulatory choices. A priority should surely be to seek to ensure that such consequences are not the creation of conditions which foster increased vulnerability, for example, by proliferating the unregulated sphere. Furthermore, a message from the book is that the role of post-financial crash policies (including austerity) on labour relations requires greater attention, particularly in light of the potential for a focus on ‘bad employers’ to deflect attention from the role of the state. This also has a parallel in scholarship on modern slavery which points out how a preoccupation with criminal traffickers can deflect from the influence of the state, especially in terms of immigration policy.²

While the relationship between labour law and criminal law is the focal point of the book, it is also the case that migration law is a key aspect of some chapters (eg chapters by Sullivan, Collins and Ashworth, Aliverti, Costello). Throughout the book there is implicitly consideration of the triangular relationship between labour law, criminal law and migration law. To this end the collection stands as a successor to an earlier book which also effectively pushed the boundaries of understanding by exploring the interconnections between labour law and migration law. Migrants at Work³ tellingly involved a number of the contributors to Criminality at Work. This indicates that, in addition to the unquestionably strong scholarly contribution, this collection also offers an insight into how effective academic collaboration can work. A model based on sustained engagement with a topic over a significant period and the bringing together of scholars with different expertise yet a shared interest in interrogating new areas is shown to deliver fruitful results.

Footnotes