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20
January 2010
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 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 which believed in good faith 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 having been
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 to file a complaint to the European Court of Human
Rights arguing that there has been a breach of their convention
rights - under 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
would no doubt wish the European Court of Human Rights to
investigate.
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 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 outsourced to the private sector and, if so, does
this amount to covert or directed surveillance under the Regulation
of Investigatory Powers Act, which has been dubbed the snoopers'
charter?
In the meantime, this
is yet another own goal for new Labour, which is well experienced
in turning optimism into despair and opportunity into disaster.
In 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 be tempted to stay at
home or go elsewhere on election day.
Keith Ewing is professor
of public law, King's College London, president of the Institute
of Employment Rights and author of Ruined Lives, the UCATT
submission to the government's consultation on blacklisting.
Original printed in the Morning
Star on 9 December 2009
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More info:
Read
the government response to the public consultation
Buy the IER and UCATT book on 'Ruined
Lives: Blacklisting in the UK Construction Industry'
Read
'Government announces plans to introduce new anti-blacklisting
regulations' 2 December 2009
Read
'Blacklisting of union members to be made illegal' 28 May
2009
Read
our article 'Blacklisting Disgrace' 9 March 2009'
Read
the Guardian article 'Blacklisting of union members by companies
to be outlawed'
Read
the UCATT Press Release 'UCATT Response To Government Announcement
On Blacklisting'
Read
the Whitehall article 'Mandelson pledges action over union
blacklisting'
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