Government’s response to blacklisting consultation is disgraceful

10 December 2009 Keith Ewing, IER President Earlier this year the government lifted the spirits of many people when it appeared willing to do the decent thing, announcing that it would introduce laws to put an end to the blacklisting of trade unionists.

Commentary icon10 Dec 2009|Comment

Professor Keith Ewing

President of the Institute of Employment Rights

10 December 2009

Keith Ewing, IER President

Earlier this year the government lifted the spirits of many people when it appeared willing to do the decent thing, announcing that it would introduce laws to put an end to the blacklisting of trade unionists.

The highly publicised prosecution of Ian Kerr – whose Consulting Association provided blacklisting services to dozens of construction companies – exposed a practice that many thought had died out.

Far from having died out the Consulting Association’s files revealed blacklisting as a flourishing industry. Records going back to the 1970s stored an extensive amount of data about hundreds of people, including their trade union and political activities. Kerr was fined the princely sum of £5,000 for breaking the Data Protection Act, while the big boys who bought his information got off scot-free.

But having created great expectations, the mood of trade unionists soon changed when the small print of the government’s proposals was carefully studied. What should have been a good news story simply reinforced the alienation from the government of the very people whose support it desperately needs at the next election. When the penny dropped, it became all too clear that behind the promise to stamp out a vile and nasty practice, nothing was going to change.

No doubt driven by a desire not to offend big business, the government’s original proposals failed even to provide a right not to be blacklisted. Workers were expected to be pleased that there would be a right to recover compensation if they could prove that they had suffered loss as a result of having been blacklisted. There would be no automatic compensation for being blacklisted, and no criminal penalties.

Needless to say this was not good enough. Blacklisting should be a criminal offence. Full stop. Nor was it good enough to say that protection from blacklisting would apply only to ‘trade union activities’ and not ‘trade union related activities’. This would leave it to the courts to decide whether unofficial action was in or out, and how far in or out.

Nor was it good enough to fudge the question of participation in industrial action. The government’s strategy seems to be based on the hope that the judges would say official industrial action was protected, thereby permitting blacklisting to continue for those engaged in unofficial action, as well as those who had unwittingly got on the wrong side of the police on a picket line.

The treatment of Kerr’s victims also left much to be desired. In the 1980s the Tories introduced a retroactive compensation scheme for people sacked for non-membership of a union where a closed shop had operated. If a Tory government could compensate those sacked for not being union members, surely a Labour (a Labour) government could do the same for people sacked because they were trade unionists?

A scheme of this kind would provide a guaranteed minimum amount of compensation for people who appeared on Kerr’s database, with the compensation to be increased for those who had suffered loss as a result. For good measure, some unions proposed that any compensation scheme should be paid for by the construction companies who had trafficked in human misery and violated human rights.

These and other points were put to the government forcefully by no fewer than 26 trade unions in the good faith belief that the government had engaged in a genuine consultation. But the government’s response to these concerns published last week reveals that the government has no interest in stamping out blacklisting. No significant change will be made to the original proposals, the government now bending both knees in servile fealty to the construction companies.

The new law proposed by the government will not stop blacklisting. Blacklisting per se will be neither criminal nor unlawful, the government being told by the Heating and Ventilating Contractors’ Association that the ‘vetting of prospective employees was necessary to weed out troublemakers, criminal elements or other undesirable people’. So right on cue the government has concluded that ‘it does not wish to deter employers from vetting prospective employees’.

Even more alarming, the narrow focus of the proposed legislation will ensure that ‘virtually all vetting activity, which should normally have nothing to do with trade union matters, is left unaffected’. What is this other than an open invitation to employers to continue to engage in blacklisting (even of trade unionists)? Given the narrow definitions in the proposed legislation much ‘normal’ trade union activity will fall on the wrong side of the line.

But just to make sure that no one ever succeeds in a blacklisting complaint, the burden of proof will remain with the complainant to show that he or she has been blacklisted and to establish loss as a result; the government will have no role in conducting investigations into improper blacklisting; and trade unions will be denied an enhanced role in the process by giving them the right to take legal actions on behalf of members, who must reveal their trade union activities to all and sundry.

Nor will there be any retroactive compensation scheme for the past victims of blacklisting. Their only remedy now will be by way of a complaint to the European Court of Human Rights complaining that there has been a breach of their Convention rights (article 8 (privacy) along with article 11 (freedom of association) which the government has disgracefully failed to address, despite the much vaunted human rights culture it claims to have introduced.

While in Strasbourg, there are a number of other questions which the victims of blacklisting will no doubt wish the European Court of Human Rights to investigate. Thus, why was the government department responsible for promoting the interests of business given access to the unredacted files of blacklisted workers, without the consent of the workers in question (an oversight which might have been excused if State access to files had helped to produce good law)?

Just as pertinent, what – if any – are the links between those who operate blacklists on behalf of construction companies and the State? Does (or has) Special Branch and/or the security and intelligence services receive information from private sector blacklisters, and do these agencies provide information to private sector blacklisters? Is intelligence work of this kind out-sourced to the private sector, and if so does this amount to covert or directed surveillance under the Regulation of Investigatory Powers Act (the snoopers’ charter)?

In the meantime, this is yet another own goal for New Labour, well experienced in turning optimism into despair, and opportunity into disaster. Proposing a law carefully constructed never to be used, the government’s behaviour is nothing short of disgraceful, revealing a complete lack of empathy with real victims of disgusting behaviour. Here we have yet another enduring parable about this government, and yet another reason why Labour’s natural supporters will stay at home or go elsewhere on election day. How utterly foolish.

Professor Keith Ewing, President IER
December 2009

This article first appeared in the Morning Star

Professor Keith Ewing

Professor Keith Ewing is Professor of Public Law at King's College London. He has written extensively on labour law including recognition procedures and international standards. He is the President of the Institute of Employment Rights and a Vice President of the Campaign for Trade Union Freedom.