Blacklisting

Chris Heaton-Harris Excerpts

Wednesday 23rd January 2013 Commons Chamber

[Mr Umunna]

I absolutely agree. This is particularly serious and shocking, and if the police are to command the confidence of people in this country, the questions that hang over them in respect of their involvement with blacklisting must be properly investigated.

What about legal protections for construction workers and the system of redress for victims? Although it was and remains the case that it is unlawful to refuse employment on the grounds of trade union membership alone, at the time of the Information Commissioner’s raid on the Consultancy Association in 2009, there was no specific general prohibition on blacklisting. It was therefore left to the commissioner to prosecute Mr Kerr for failing to comply with the Data Protection Act 1998. As I said, he was fined just £5,000 as a result, which seems a shockingly small amount, given the devastation caused over the years. We have heard the evidence in the House this afternoon. Following the raid and the emergence of the blacklist, the Labour Government consulted on the issue of increasing the maximum monetary fine that could be imposed for serious breaches of data protection principles from £5,000 to £500,000. The increase came too late for the Kerr case.

Perhaps more shocking still is the fact that those firms that set up the association and became members—which supplied information to and accessed the blacklist—were neither charged with any offence like Mr Kerr nor ordered to pay compensation to the workers involved under that or any other law. To date, as I said, not one director of those companies has been brought to book for what happened. We also introduced the Employment Relations Act 1999 (Blacklists) Regulations 2010 a few months after the raid. They provide for victims of blacklists to seek redress from employment tribunals and civil courts only. They do not contain criminal sanctions, but they make it unlawful to compile, supply, sell or use a “prohibited list”'. To be prohibited, the list must contain details of current or former trade union members, or details of people who are taking part, or who have in the past taken part, in trade union activities. Non-trade union members on a list that includes trade union members qualify for protection too. The list must be compiled with a view to its being used by employers or employment agencies for the purpose of discriminating when recruiting or during employment.

As cases have progressed through the courts it has become apparent that the regulations need to be strengthened. I am coming on to the point that the hon. Member for Gosport (Caroline Dinenage) made. First, the regulations are not retrospective in effect. While they act as a strong deterrent to those considering using blacklists, many of the victims of the blacklisting in the past, whom I have described—and some hon. Members have been victims—are unable to make use of them to secure compensation. Given that this is the case, what more can be done to ensure that those who have been wronged have some form of redress or compensation?

Secondly, it is unclear to what extent those who are not employed, in the strict sense of that word, but are self-employed, may bring claims under these regulations where they have been refused work. We know that false self-employment in the construction sector is rampant, so this is an important point that needs to be cleared up.

Thirdly, claims can be brought in the employment tribunal or the county court. Though the cap on compensation in the tribunal is £72,300 and there is no cap in the county court, people often prefer—I know this from my previous practice as an employment lawyer—to claim in the employment tribunal because it can be less laborious for claimants and the cost consequences of losing a case are less severe. However, claims brought in the tribunal must be brought within three months of the alleged unlawful act. Claims brought after that time can be allowed only at the discretion of the tribunal. Again, that needs to be looked at, because so many of the people affected are not even aware that these unlawful acts took place.

The upshot of all this is that often the only legal remedy for a significant number of victims of blacklisting is through a complaint to the European Court of Human Rights in respect of a breach of their convention rights—article 8 on privacy and article 11 on freedom of information. That, of course, can take a long time and a great deal of resource. There are a number of cases going through the courts at present, which I will not refer to now as I do not wish to prejudice those trials, but we must be realistic about asking individual workers, many of whom have lost their livelihoods and so do not have huge resources, to enforce their rights against those very well resourced companies.

For these reasons I ask the Secretary of State, who I am pleased is here today, to carry out a review of the law in this area to see how it might be tightened up and protections and sanctions strengthened, and for him to report back to the House on his findings. I have deliberately not set out detail in respect of legal changes that may be needed to address these technical issues. That is something on which we can work together to achieve consensus. However, just as we correctly argue for robust legislation to protect whistleblowers, we must ensure that a climate of fear is not allowed to continue around the issue of blacklisting.

No worker on any building site or at other workplaces throughout the land should hesitate before reporting an unsafe site or a dangerous working practice. That means that they must have confidence that the law is with them—is firmly on their side—and that there will be no question of that report being noted down somewhere in a file for troublemakers, allowing firms such as the construction companies to get away with what they have been doing.

Finally, I turn to the work of the Information Commissioner.

[Chris Heaton-Harris (Daventry) (Con)]

Will the hon. Gentleman give way?

--- Later in debate ---

[Dame Tessa Jowell (Dulwich and West Norwood) (Lab)]

I welcome this debate and the “open door” tone of the Secretary of State’s approach, and I hope that we can build on that and reach a practical conclusion. The debate gives the House the opportunity to unite in condemning blacklisting as an assault on the legitimate rights of trade unionists. My second reason for welcoming the debate is that I want to underline the extent to which excellent partnership between trade unions and contractors is essential to achieving the progress in big infrastructure projects, particularly when building on the success of the construction programme in the Olympic park.

I will dwell only briefly on the analogy with phone hacking. It appears that in certain parts of the industry, phone hacking became insidious, endemic and culturally tolerated. The question that the Opposition are testing is the extent to which a similar acquiescence prevails in the construction industry today, even in the context of the very best intentions.

I should like to focus specifically on the construction of the Olympic park. To provide context, I should say that the work of the trade unions was the hallmark of the success of the Olympic park development. In that context, the allegations revealed by the widely praised and thorough investigation by the Scottish Affairs Committee come as a surprise and cause great alarm. Had it not been for the persistence and determination of the Committee, we would not be having this debate.

As we embarked on the construction of the Olympic park, there was a determination by the then Government that every public pound should work harder for a social purpose. A number of months were spent negotiating principles of co-operation with the trade unions. The signatories to those principles were the Government, the Olympic Delivery Authority, the London Organising Committee of the Olympic Games and Paralympic Games, and the Mayor of London. The essence of the principles is captured in their pledge:

“The procurement processes will require contractors to uphold employment law and encourage them to promote effective industrial relations dialogue between employers and recognised unions, apply industry agreements, and to encourage a positive role for recognised unions in the workplace.”

I argue that those commitments set a blueprint for good industrial practice. They reaped great benefits for the country and for the regeneration of the Olympic park.

However, so insidious is the practice of blacklisting that, as has been mentioned, one of the contractors, Balfour Beatty, felt that it was okay and acceptable to check the database of the Consulting Association in relation to 12 employees. The fact that all 12 went on to get employment is not the point; the point is that Balfour Beatty felt that it was okay to use the practice of blacklisting to check the people out. That is completely antipathetic to the whole ethos of the development, in partnership with the trade unions, of the Olympic park.

[Chris Heaton-Harris]

I understand what the right hon. Lady said about the negotiations beforehand that took so long to get to this point and yet still blacklisting happened. Knowing what she does now, and having been involved in those negotiations in the past, what does she believe to be the lessons we can learn so that what happened cannot happen in future?

[Dame Tessa Jowell]

The hon. Gentleman makes a good point. I refer again to the Secretary of State’s reaction to this debate, which is to say, “Give me the evidence”, and that is perfectly fair. However, right hon. and hon. Members on the Labour Benches, and no doubt Members in all parts of the House, sense that this reprehensible practice has not been squeezed out of the construction industry altogether. This is an opportunity for the House to come together and set the scale of its resolve to end this practice and, in so doing, create a sense of liberation for many trade unionists who feel that it is always a threat sitting on their shoulder. That is why we are asking for this action. Specifically, we are looking at all the legal obstacles and impediments to bringing forward the necessary action and sanctions when construction firms fall short and resort to this practice, in whatever way.

The Olympic Delivery Authority had a senior trade unionist on its board as a way of facilitating easy access to the trade unions in voicing their concerns. I thank Barry Camfield, who was a senior official of the then Transport and General Workers Union, for the service that he gave. Many other progressive initiatives supported the central objective of partnership in the development of the Olympic park, including the establishment of a community and trade union learning centre that had a permanent presence in the park and gave hundreds of learners who were working there the opportunity to improve their English and maths skills and to master basic IT, and the promotion of opportunities for women and disabled people to find a place in the construction industry. The bigger mission was to change the face of the construction industry from being predominantly older and male to something much more diverse and much more open to the range of available skills, and there were huge achievements.

There was an emphasis on health and safety at the Olympic park. As we have heard, sometimes the fact that a trade unionist was very vigilant about reporting health and safety matters could be cause for discrimination against them. At the Olympic park, health and safety was given pre-eminence to such a level of achievement that the ODA was awarded a Diamond Jubilee award by the Royal Society for the Prevention of Accidents. It is unprecedented for a construction project of that size, scale and complexity to be completed without a single serious reported accident or a single death. That is what we get through partnership with the trade unions.

[Chris Heaton-Harris (Daventry) (Con)]

I congratulate the Opposition on bringing this motion before the House. I tried to intervene on the shadow Secretary of State, the hon. Member for Streatham (Mr Umunna), when he was about to deal with a part of the motion that needs a tiny bit of clarity—where it states that blacklisting “may be taking place” still.

[Mr Umunna]

I am happy to explain that. It goes back to a point made by the Secretary of State. I used the word “may” because there have been a lot of allegations about what may be happening right now, but we need people to come forward with the evidence. I believe that that evidence will be forthcoming to the Secretary of State fairly quickly after this debate.

[Chris Heaton-Harris]

I thank the hon. Gentleman for clarifying that.

I have no great knowledge of blacklisting, so when I decided to look into it for the purposes of this debate I read through the papers from the Scottish Affairs Committee, and it became fairly obvious that something pretty horrible had been happening over a long period. The right hon. Member for Dulwich and West Norwood (Dame Tessa Jowell) detailed her achievements in the delivery of the Olympic park. It is fascinating that even with such detailed negotiations involving the Olympic Delivery Authority, Government and trade unions, this practice could still take place. I would therefore ask her how, even with such detailed negotiations beforehand and probably a very beady eye being cast over all the proceedings, we can stop this practice happening. There is a lesson to be learned in relation to contracts and how we procure in future.

[Mr Henry Bellingham (North West Norfolk) (Con)]

I have been contacted by trade unions in my constituency that are very concerned that some of my constituents might have been on the blacklist. Obviously, this will all come out in due course as the investigation gains pace. Does my hon. Friend agree that if the case is made for a change in the law, that could involve a very simple amendment to the relevant legislation, and the Government should act with great haste to make sure that this is sorted out?

[Chris Heaton-Harris]

I very much hope that that is the case and thank my hon. Friend for his intervention.

The shadow Secretary of State talked about how different Governments had tried to act on this but found it difficult. I completely understand that, having gone through the history of blacklisting as best I could with the information provided to me. In 2003, as he detailed, the former Labour Government consulted on introducing regulations against blacklisting but announced that they would not bring any into force because the evidence suggested that blacklisting had been eradicated in the 1990s. Six years later, in 2009, they announced that they had plans to implement regulations to outlaw the blacklisting of trade unionists. I was quite surprised to find that Labour chose not to make compensation or penalties retrospective. If the weight of evidence that would be required was not available back in 2009 when the shadow Secretary of State’s party was making those choices and decisions, why is it so relevant to secure it now? As the Secretary of State said, and as the shadow Secretary of State will know, retrospective action has lots of unforeseen consequences and is therefore rarely taken by any Government of any political ilk.

In 2008, when the Information Commissioner’s Office closed down the blacklisting of construction workers by the Consulting Association, it did its job in a reasonable way, if slightly slowly, as the hon. Member for Streatham said. It went about trying to establish a fast-track service and a helpline to assist those who suspected that they had been on the list, but many significant entries on that list were incomplete and very dated. I therefore suspect that the gathering of the information slowed down the ICO’s investigation.

The law does now protect employees from blacklisting. When I read through the history in the articles I had assembled, I thought—this has not been mentioned by anyone else—that the problem is not so much the existence of a blacklist but people knowing of its existence and having to worry about whether their employment chances are affected by its being in effect. The pure knowledge of the existence of the list has a huge detrimental effect on people.

[Cathy Jamieson]

Does the hon. Gentleman agree that we should look into the suggestion that there has been a separate blacklist of people who have been involved in environmental activism? As he rightly says, the fact that people are aware that a blacklist exists means that they will also want to know how to get information about whether their names have been included and how it has affected them.

[Chris Heaton-Harris]

I thank the hon. Lady for her intervention. I would hope that the current legislation would help to eliminate those issues and tidy them up. I could make a few political points, but I am trying to reflect the feeling of the debate so far. Employees in the UK are already protected against blacklisting by the Employment Relations Act 1999 (Blacklists) Regulations 2010. The regulations allow them to bring a case to a civil court or employment tribunal, as detailed by the Secretary of State, if they suspect that they have been denied employment, suffered detriment or been unfairly dismissed as a result of an illegal blacklist.

The Information Commissioner’s Office is working to help people who are concerned that they have been affected in such a way and is, supposedly,

“committed to investigating any intelligence databases being operated in breach of the Data Protection Act 1998.”

The ICO continues to help people who are suspected of being on a list and is doing more, supposedly, proactively to contact others who do not know that their names are on a list in the first place.

We have to wonder whether the ICO has the capability to do the job that we are asking it to do, or the job that it has been doing, in its given time frame. It has so many names with only basic entries—some with no addresses and others without much detail at all—and finding and contacting them will take a huge amount of time. I am not arguing for more resources for the ICO; I am just making the point that this is a fairly big job on a fairly lax database, and that needs to be investigated.

I think I heard the Secretary of State say that there is no evidence that the practice of blacklisting trade union members is a widespread problem. I am comfortable, to a certain point, with the questions he asked of the Opposition, because the tiny bit of the motion that says that the practice “may be” happening now opens a new kettle of fish. It should not be going on now, because it is illegal under the 1999 Act.

The ICO undertook an investigation in 2008-09 and the Labour Government subsequently introduced blacklisting regulations. Given that the Scottish Affairs Committee has been given seemingly new evidence by those involved at the time, will the Secretary of State confirm whether there are grounds to go over the ICO’s original investigation?

I have tried to be non-partisan up to a point. I have some interesting experiences of trade unions. I used to run a business that operated with the help or hindrance of the Transport and General Workers Union. I ran the business during the last closed shop. It was not a great experience and it did not endear me to unions. However, I have a close relative who is a teacher and who was accused of doing something ridiculous. His teaching union—yes, one of those teaching unions that we on the Conservative Benches do not particularly like—was magnificent in the way in which it protected, helped and supported him. It provided a superb service.

I am not as wary of unions as some of the others on the Conservative Benches and I perhaps have more knowledge of them. I am, however, wary of the way this debate came to take place. The hon. Member for Streatham should be very wary of the potential for allegations to be made with regard to union paymasters and so on. [Interruption.] That is absolutely the case. We need only look at the Register of Members’ Financial Interests to see that there might be a link between debates on the Floor of the House and where they came from.