My Lords, at the outset I want to address the issue of blacklisting that was raised by the noble Lords, Lord Whitty and Lord McAvoy, as we take any allegations of blacklisting very seriously. It is unlawful under the Trade Union and Labour Relations (Consolidation) Act 1992 to refuse to employ a person because they are a member or not a member of a trade union or because they refuse to join or leave a trade union. It is equally unlawful for an agency to refuse employment services on those grounds.
In 2010, in response to the Consulting Association blacklist uncovered in 2009, the Government strengthened anti-blacklisting legislation and increased the penalties for unlawful processing of data. Data controllers can now be fined up to £500,000 for serious offences. Despite several allegations of new evidence of blacklisting, to date we have seen no evidence of this practice recurring. As noble Lords will know, the Scottish Affairs Select Committee and the Information Commissioner are both currently investigating the potential for ongoing offences, and the Government continue to take a close interest in this issue. I thank noble Lords for raising this particular point.
Let me now turn to the individual amendments that have been proposed. Amendment 144 seems intended to prevent the certification officer and any authorised person from being able to require any branch or section of a trade union from supplying relevant documents. Even if the amendment had the desired effect, I do not believe such a change would be necessary or desirable. The phrase,
“a trade union, or a branch or section of a trade union”,
is used elsewhere in the Trade Union and Labour Relations (Consolidation) Act 1992, for example in the context of financial investigations. I would imagine that a union would want the certification officer to make every effort possible to obtain relevant documents. If its record keeping is decentralised, a union’s head office may not know if there is a problem.
Amendments 145, 146, 148 and 149 are probing the protections for unions with regard to the new investigatory powers of the certification officer and any inspectors he may appoint. These amendments all seek to restrict access to a union’s register of member names and addresses. Clause 38 gives the certification officer the power to require a union to produce relevant documents where he believes there is good reason to do so. If the certification officer has appointed an inspector to investigate, the inspector can also require documents relevant to the investigation. In both cases, “relevant documents” is defined as including a union’s register of members’ names and addresses.
Noble Lords are proposing instead that “relevant documents” should “not normally include” the register. They go on to propose that production of the register may be required by the certification officer only where the High Court has concluded there has been a criminal offence, a breach of human rights, or substantial danger or damage to third parties or to national security. The noble Lords also state that the registers shall not be available to third parties. This represents a significant set of constraints. I fully understand the concerns driving the amendments. Sensitive data on
who is a member of a trade union must not be treated lightly, but I hope that I can offer reassurance about the legislative protections already in place, as well as those included in the Bill.
In the first place, however, I need to be clear that access to the register by the certification officer or his inspector is an essential requirement of providing assurance. Establishing compliance with the legislation would be impossible without either the certification officer or the inspector being able to exercise a right to access the register itself. Without this, they are wholly reliant on what the union tells them. This is inadequate in circumstances where there is reason to believe there is a problem. Access to union membership data by third parties is something that already occurs. Both the certification officer and independent scrutineers, who are responsible for ensuring the propriety of ballot processes, often need access to membership data, but there is no suggestion this has led to any misuse.
Let me explain what protections are in place. The certification officer is an independent officeholder. He is also under a duty to exercise his powers consistent with rights conferred by the European Convention on Human Rights, including the rights to privacy and freedom of association. The certification officer is well placed to deal with sensitive data and there have been no problems in the history of the office of which we are aware. The Data Protection Act also applies to the certification officer and his inspectors so that they will be required to use any personal data, including data on union members, consistently with the protections it contains. The Information Commissioner has powers to enforce the data protection principles and can impose substantial fines for some breaches.
Amendments 147 and 150 would specifically allow the certification officer or his inspector to require names, dates of birth and national insurance numbers held by the employer to allow for cross-referencing to complete an investigation. It is not clear why the certification officer would need to request this information or why the inspector would require it. None of the comments we received during our targeted consultation over the summer suggested that this information was necessary. In practice, the duties under Section 24 of the 1992 Act do not require the union to keep members’ dates of birth or, indeed, national insurance numbers. More importantly, this could have the unintended consequence of widening the scope of sensitive information handled by the certification officer and the inspector for no particular reason. There is no reason why they should automatically have access to dates of birth and national insurance numbers during an investigation. Nor is there any reason why they should be able to require it from an employer.
Amendments 151 and 153 share a common goal of ensuring that there are appropriate protections to ensure that the inspector handles sensitive membership data properly. I will therefore speak to them together. I would like to reassure noble Lords that there are already strong safeguards in place to ensure that union membership data will not be compromised by an inspector’s investigation. The certification officer will use his discretion to appoint an inspector—as he does at the moment for inspectors appointed to investigate
a union’s financial affairs. It will be for the certification officer to ensure that he appoints someone capable of fulfilling their responsibilities. The inspector will owe a duty of confidentiality to the certification officer. Extending that duty of confidentiality to the trade union could have the unintended consequence of interfering with the independence of the investigation.
Should the inspector breach the duty of confidentiality owed to the certification officer, it will be for the certification officer to decide how to deal with this. The officer will want to consider the circumstances and severity of the breach to decide what is appropriate. For example, if the inspector is a member of the certification officer’s staff—as they could be—the certification officer will have a range of options, from retraining to dismissal.
A third party appointed as an inspector is likely to be someone in a professional firm. It would seem unnecessarily restrictive to require that the certification officer could never appoint that firm again, no matter what happened to the individual concerned.
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