Charon QC interviewed me this afternoon about the “Guardian gag” affair – the attempt by Carter-Ruck solicitors to prevent publication of reports of a parliamentary question by Paul Farrelly MP.

I think some blogger’s references to the Bill of Rights 1689 is over the top – the Bill of Rights protects Parliamentary debates themselves from injunctions, not the reporting of those debates by others. But the case does raise serious questions: Parliamentary privilege means nothing if law protects MPs’ right to speak in the House, but prevents us from knowing what they say. It seems extraordinary, especially in view of section 12 of the Human Rights Act, that a court should have felt it in the public interest to prohibit reporting of a Commons question. I hope this case prompts Parliament to look closely at what further protection is needed in this area – and prompts the courts to take more care in making sure “superinjunctions” – which prevent any discussion of the fact of the injunction or of who obtained it – are granted only where really necessary.

Listen to the podcast here.

The latest development – the arrest of Baroness Scotland’s former housekeeper and her husband – means this story continues to roll. And if what Guido is reporting turns out to be true, surely her career must be over. If the husband isn’t a solicitor, that’s a bit embarrassing. But if the housekeeper says she never showed her passport to the Attorney, then one of them must be lying, and Baroness Scotland can’t, it seems, prove it’s not her. This must be pretty awful for her: everything she says may be true, and if she does lose her job for it, it’ll be the wrong issue – her taking an overnight allowance in spite of having a London residence is much the worse of the mistakes she’s made. But if that really is what the cleaner says, I doubt even Rasputin could survive it.

It’s doubtful she’ll even make it to Brighton for the Labour conference – and if she does, it may only be for a seaside weekend.

I doubt they have much future, now Alan Johnson has abandoned a second one since the Lords ruling in AF. I’m a bit surprised by the government’s approach – I’d expected them to fight, Ypres-style, over every inch of disclosure it was suggested they make. Clearly Johnson has decided it’s not worth it, at least in these cases; and perhaps Lord Carlile will recommend their abandonment in toto when he reports to the Home Secretary next year. It’ll be interesting to see how many, if any, of the remaining 14 orders he tries to maintain in the meantime.

Stephen Hesford’s resignation is very unhelpful from Baroness Scotland’s point of view, and may be very dangerous, too: Gordon Brown’s entire government is a fragile rock since the failed coup earlier this summer, and he must fear that the resignation of even the lowliest government bag-carrier might set off an avalanche. Charon sees the call for her resignation as largely partisan hounding but it seems to me her staying is least defensible from a partisan Labour point of view. I’m sure Gordon Brown genuinely doesn’t want to lose her, but neither that nor her competence is the point. In one sense, this was an opportunity: she is sackable (unlike, say, important leadership rivals or potential plotters in the Commons), she has a ready replacement, and sacking her could allow Brown to grandstand his integrity for once, something he allowed David Cameron to outdo him on during the expenses scandal.

I’m sure a scalp would help the Conservatives, but surely it helps them more to have a damaged minister staying on, a story that keeps rolling and further evidence of the Prime Minister’s weakness and indecision.

Or interim guidelines, really. Here they are. They seem very sensible to me, unsurprisingly, and make it admirably clear that they do not purport to “clarify the law”. The CPS is consulting on them until 16 December – read about the consultation and how to reply to it, here.

If you read magazines aimed largely at commercial lawyers, you’ll be familiar with the sort of article in which a solicitor argues against some proposed or actual piece of regulation, saying business would be better off without it. Sometimes they have a point, but often they’re extremely predictable, and merely reflect either a wish to be heard saying things the writer thinks his or her clients want to hear, or else complete ideological capture by those clients and their worldview. Mildly irritating over coffee in the office but no big deal, and arguably no different from immigration lawyers railing against the iniquities of immigration law, say.

But Fox lawyer Michelle Chance’s piece in the Telegraph today does require comment, I think. It’s a plea for a radical simplification of the “minefield” of employment law, raising the suggestion that employers should to be able to sack workers at will, Victorian-style. She says

for an employer to fire an under-performing employee, the law requires a performance management process, which involves setting goals and objectives for the employee to meet over a specific timeframe, during which his performance will be monitored. This usually takes at least a month. The employee must be given the tools to enable them to try and meet the objectives that have been set for them which will take even more time.

This seems to me exaggerated: she makes it sound as though the law requires a bureaucratic process to be gone through in every case. But it doesn’t. It requires an employer who fires an underperforming worker to act reasonably in doing so. And not even that in many cases, since employees who’ve worked for less than a year have no right at all not to be unfairly dismissed, something right-wing and business commentators on employment law often fail to mention for some reason. So the worker who Michelle Chance is impatient to sack has presumably performed adequately for a year, if the employer has to worry about their rights. Has his or her performance never been monitored in any way in all that time? If not, how do you know they’re underperforming? Why’s it so unreasonable to expect a few weeks of thinking about their performance, and how to improve it, before they’re simply sacked?

She goes on to say

In the case where an employee cannot deny gross misconduct, for example when he has been caught red-handed with his fingers in the till, his employer must still call him to a disciplinary hearing, at which he has the opportunity to explain his actions accompanied by a colleague or trade union representative of his choice. The allegations against him must be set out in writing and he must have sufficient time to consider them and prepare for the hearing. Investigations must be carried out and witness statements taken, all of which the employee is entitled to see before the hearing.

I’m not at all sure it’s right to say an employer must take witness statements: neither the ACAS Code of Practice (which is legally binding in the sense that Employment Tribunals will take it into account and may increase any compensation for unreasonable failure to follow it) nor the non-binding guidance mention a need to take them – simply to disclose them to the employee in advance of a disciplinary hearing if they exist.

More importantly, though: is it really so shocking that even an employee who has been “caught red-handed” doing something wrong should have a chance to know what they are accused of and to give their side of things? What does it mean to say someone has been “caught red-handed”? I’m not sure she’s really thought about that beyond accepting the vague idea unquestioningly. Does it mean someone says they saw them doing something wrong? An accusation of sexual harassment would fall into that category. And what if someone really were “caught red-handed” in a truly undeniable sense, say by being recorded on CCTV fighting with a colleague or stealing from the till. Police involvement and instant dismissal might well be reasonable. But would an employer really be harmed by showing the worker the tape and hearing what he or she had to say? There might, just might, be some explanation for punching someone, or at least some important background about what the punchee said or did that the employer should know. There might be some important background fact, such as that the supervisor told the worker to borrow money from the till, something the employer really needs to know. But they never can know if they’re not listening.

It’s worth noting that Michelle Chance presents every element of basic fairness – holding some sort of hearing; putting the allegation in writing, surely not a very onerous idea; allowing the worker a bit of time to prepare; allowing them some source of help – as tiresome burdens or “needless obstacles”. The truth is that an employer can sack a worker fairly on the basis of a reasonable suspicion of serious misconduct. The odds are not stacked in a worker’s favour at all.

I’m afraid this article is an example of some narrow conventional thinking among some business circles. It also reflects the political ideology of the Thatcherite right. But it’s unbalanced, and unrealistic about power in the workplace and the behaviour of some employers. I hope no mainstream politician wants to take us to Michelle Chance’s world.

Extraordinary that, while I was away, the Attorney General Baroness Scotland should have come under such pressure. Now, she’s been fined for employing an illegal immigrant as her housekeeper. Here’s her apology and defence of her “technical” error. I do have some sympathy with the Attorney – she obviously trusted this woman, apparently partly because she’s married to a solicitor (a touching detail), had no reason to think she was an overstayer, and has fallen foul of the great mass of rules we all have to comply with nowadays and which are a bigger problem in my view than, say, the growth of CCTV cameras. I have the same sympathy for her as I have, say, for people who are penalised for failing to pay their tax on time, or for forgetting to renew their tax disc. What reduces my sympathy somewhat is the line of defence she’s putting out, which implies she’s been fined for failing to photocopy something, which is a bit misleading. She’s been fined under section 15 of the Immigration, Asylum and Nationality Act 2006 for employing an illegal immigrant – the technical bit comes in because, having failed to copy the document, she does not benefit from the statutory “excuse”.

I’m not sure she should remain as Attorney after this. But she certainly shouldn’t remain if the more serious allegation is true, that she’s been pocketing over thirty thousand pounds a year in London overnight allowances in spite of having a London home. Even if within the now notorious rules, that is scandalous – and of course there is a link, because the £5000 fine she’s paid today was all the less painful for having been so generously subsidised by the government.

Sadly, I think Gordon Brown may now be so out of touch that he stands by her in spite of everything, and simply does his government more damage. So she may yet survive, after a fashion. She certainly should go, though.