Employment Relations Act 1999 (Blacklists) Regulations 2010

My Lords, now for something completely different. For a country proud of its tradition of tolerance and fairness, the blacklisting of trade unionists should be anathema. It is the sort of out-dated practice we had hoped to leave behind long ago. It is underhand and unfair; it is discriminatory; and it blights people’s lives. Workers have a fundamental right to join trade unions if they wish. There is also a fundamental right for trade union representatives and other members to participate in their union's activities. Trade union representatives are the unsung heroes of the trade union movement. These volunteers provide valuable support for millions of workers and help to create safe, fair and productive workplaces. No one should lose out because of their union role. We have long had legal protections in place to safeguard trade unionists from discrimination. These legal protections fulfil our international obligations to guarantee freedom of association, and are widely accepted as essential for good industrial relations. For many years, it appeared that the protections were broadly sufficient. The last known blacklister—the Economic League—was exposed and its work terminated in the early 1990s. We had hoped that with its demise we had seen an end to that style of industrial relations. Sadly, that was not to be. In March last year, a large-scale and clandestine vetting system was discovered in the construction industry, run by an organisation called The Consulting Association, or TCA. Through painstaking work, the Information Commissioner found evidence that 40 construction companies had engaged with TCA’s secret vetting system, containing details of some 3,300 people, many of whom were trade union activists. That vetting system had been systemically used to deny gainful employment to those listed. TCA was successfully prosecuted by the commissioner for breaching data protection law, and it was shut down. Its proprietor, Mr Ian Kerr, was fined £5,000, and 15 enforcement notices were issued against TCA and some of its user construction companies to stop them collecting and using personal data for vetting purposes. We have to ensure that that clear breach of rights can never happen again. That is why we are introducing the draft regulations. We believe that trade union blacklisting should be made expressly unlawful as a matter of principle. We should not rely on more general legislation, such as the Data Protection Act 1998, to achieve that effect. The regulations build on that legislation, extending it to ensure that we send a clear signal to employers and compilers that activities associated with such lists are wrong, damaging and unlawful. They provide clear and targeted remedies for individuals and trade unions. Blacklisting represents an aggravated form of discriminatory behaviour. In recognition of that, the employment tribunal is empowered under the regulations to award £5,000 as the minimum level of compensation, so most complainants should be able to receive higher compensation under the regulations than they would if they relied on existing protection under trade union law. I will now briefly explain some of the other main features of these draft regulations. They are made under Section 3 of the Employment Relations Act 1999, which provides a power to introduce regulations which would prohibit the blacklisting of trade unionists. In Regulation 3, a prohibited list—the name that the regulations give to a blacklist—is tightly defined. Such lists need to contain details of trade union members or activists, and, importantly, they must also be compiled with a view to being used to discriminate in recruitment or employment on the grounds of trade union membership and activities. I stress that. We believe that very few lists which employers or others hold would meet those criteria. For example, when the draft regulations were debated in the other place, it was asked whether the list of individuals barred or restricted from teaching or otherwise working with children and vulnerable adults would be prohibited by the regulations. That is an important, legitimate list, which is held by the Department for Children, Schools and Families and utilised for vetting and security purposes. It is possible—indeed likely—that some trade union members will be on that list. However, it will be unaffected by the regulation because the DCSF list was clearly not compiled with the purpose of discriminating on grounds of trade union membership or activity. In Regulation 4, we provide exceptions for certain activities involving blacklists. For example, it will permit whistleblowers and lawyers to access such lists in certain circumstances. Under the regulations, there are avenues for complaint to either the employment tribunal or the court. In the latter case, the courts can exercise important order-making powers which are unavailable to the tribunal. As our impact assessment shows, the costs of complying with the regulations are very low. Businesses and individuals should not be involved in blacklisting because, in the main, it is already unlawful under existing law. Some businesses will incur some modest costs in familiarising themselves with the regulations and checking their current listing practices. The impact assessment concludes that small businesses are much less likely to need to check lists, in part because union membership is very low in such companies. Small businesses are therefore much less likely to hold lists of trade unionists, such as lists compiled to enable trade union members to pay their union subscriptions from their earnings at source. We must send out a strong message to all those who feel that it is acceptable to act in that corrupt and deceitful manner. We know that the vast majority of employers do not use blacklists, and the regulations do not interfere with their normal vetting practices. The draft regulations are balanced, reasonable, and robust. They have been through two periods of consultation. They have been built to complement existing protections in the area, which are found in trade union and data protection law. The regulations have been debated in the other place and accepted, and the Joint Committee on Statutory Instruments has raised no objection to them. I strongly believe that this new piece of legislation will bring to an end the disreputable practice of blacklisting once and for all, and I therefore commend the regulations to the House.