Analysis: Baroness Scotland's ignorance is no defence
Ignorance is no defence when it comes to the law on employing illegal immigrants - which was promoted by Baroness Scotland, the Attorney General, who now finds herself facing questions about whether she has acted legally.
By James Kirkup, Political Correspondent www.telegraph.co.uk
The law concerned, the Asylum and Immigration Act 2006, says that an employer can face a fine up to £10,000 for each illegal worker they hire. It also makes clear that it is the responsibility of employers to check the immigration status of people they hire.
Under the terms of the law, anyone hiring a new employee is responsible for making all reasonable efforts to establish if they are legally allowed to work in Britain. That means checking and copying the official documents showing entitlement to work.
Significantly, the Act makes clear that only those employers who meet all of its requirements for vetting employees can have any defence if those employees turn out to be in the country illegally. As a UK Border Agency leaflet for employers published this year says: “Not knowing is no excuse”.
Failing to establish a “statutory excuse”, by not carrying out the proper checks, also carries a punitive penalty of up to £10,000 per illegal worker. The civil penalties under the Act came into effect in February 2008. In the first eight months of the new rules, 354 employers were issued with liability notices relating to employing illegal immigrants .
Stuart Maclean, Managing Director of Nannytax, an advisory firm for people employing domestic staff, said that the peer was now encountering some of the bureaucratic troubles that face thousands of ordinary parents and businesses. “Baroness Scotland should know this because she helped push the legislation through in the first place. So she, and indeed all domestic employers, cannot even claim ignorance of the law, which is no defense in law in any event,” he said. “Baroness Scotland appears to have fallen foul of legislation she herself promoted”.
A spokesman for Baroness Scotland has said the peer hired her housekeeper, Loloahi Tapui "in good faith and saw documents which led her to believe that Ms Tapui was entitled to work in this country."
The 2006 Act was not the first law to penalise employers for hiring illegal immigrants, but previous laws were rarely used and carried much lower penalties. Labour ministers repeatedly lauded the law as part of their response to illegal immigration. In 2007, Liam Byrne, now a Home Office minister, said: "To combat illegal immigration it is not enough to stop illegal journeys. We have to close down the illegal jobs that tempt people to try their luck coming to Britain.”