Blacklisting

Jo Swinson Excerpts

Wednesday 16th October 2013 Westminster Hall

[The Parliamentary Under-Secretary of State for Business, Innovation and Skills (Jo Swinson)]

It is a great pleasure to serve under your chairmanship, Sir Alan. I congratulate the hon. Member for Hampstead and Kilburn (Glenda Jackson) on securing the debate and opening it in her typically powerful style, with a degree of conciseness, which other Members have managed to emulate. That has meant that we have heard from a good number of Members today, which is positive. I know that a range of Members from all parts of the House have been working on the issue. We discussed it in January, we are discussing it now, and, as the hon. Member for Nottingham North (Mr Allen) said, I am sure it will be not the last time we discuss it. It is important for the House to return to the issue, to be updated on it and to ask further questions on it. As the Minister, I am more than happy to be part of that.

The hon. Member for Hampstead and Kilburn clearly set out at the beginning of the debate that “the practice of blacklisting” is an innocuous form of words, but that what we are talking about is abhorrent and illegal. All Members who have spoken have rightly echoed those sentiments in their various ways, talking about their experiences in their constituencies or, in some cases, such as that of the hon. Member for Paisley and Renfrewshire North (Jim Sheridan), their own lives.

The Government’s position is the same: this practice is not acceptable in any way. No responsible company should be involved in blacklisting, whether that is providing information for a blacklist, using a blacklist, consulting a blacklist or using information from a previous blacklist that was in operation before the regulations were introduced in 2010. That is not the behaviour of any responsible or law-abiding company or any moral individual. People should be appointed to roles based on their merits and whether they can do the job. If they are independent-minded and involved enough to be able to flag up issues, such as health and safety problems in the workplace, or if they want to give more to their workplace through involvement in trade union activities, that is to be commended. Any employer worth its salt will recognise the positive nature of having an engaged and involved work force that are actively interested in ensuring that their workplace is safe and effective for everyone. The experiences that we have heard about have been not only abhorrent, but hugely counter-productive, as many hon. Members have mentioned, on issues such as workplace safety records. We want to encourage an atmosphere where people can raise issues if there are problems without fearing that that will impact on their future employability.

As hon. Members know, there are significant powers in place to deal with blacklisting, but I entirely understand the frustration. I think it was the hon. Member for Nottingham North who mentioned the case of the Consulting Association and Ian Kerr, the £5,000 fine and the lack of ability to take any kind of serious action against the individuals responsible, because the framework was not in place at that time. That situation rightly needed addressing. The previous Government addressed that issue with the consultation on and implementation of the Employment Relations Act 1999 (Blacklists) Regulations 2010, which mean that someone is looking at a £500,000 fine instead of a £5,000 fine. That might not be the unlimited amount that some hon. Members have called for, but no one can deny that it is a serious amount. There is data protection, but there is also the ability to award maximum compensation of some £65,000—the minimum is £5,000—through the employment tribunals system. We are in a better position on the legal framework.

[Mr Davidson]

Does the Minister accept that the existing legislation must be flawed if someone can be blacklisted on Crossrail without the blacklisting legislation being broken?

[Jo Swinson]

The hon. Gentleman and I have discussed the issue informally around the House on a few occasions, and I very much welcome the work that he and his Select Committee have been doing on it. I look forward to reading the Committee’s report. We are, of course, willing to look again at whether there are any gaps in the legislation as a result of any evidence that his investigation discovers.

On Crossrail, at the beginning of September the two parties involved—I think it was Unite and BFK—announced that blacklisting had not taken place. A further statement was issued by Unite some days later. I am happy to look at that and hear from the hon. Gentleman and Unite whether there are specific issues there, particularly with contracting, which may be partly why that issue arose. I am happy to liaise with him as his Committee continues its investigation with a view to producing a report.

[Mr Meacher]

Is it not clear that at the moment it is illegal to compile or maintain a blacklist, but not to use a blacklist, to supply information or to be supplied with information by someone else? Such matters need to be made illegal, so that all the problems we have heard about today are covered.

[Jo Swinson]

As I have said, I will happily look at the specific regulations, which include provisions on supplying information for blacklists. Perhaps the right hon. Gentleman will write to me if he has any further points, particularly if there are more details that I can study. It is clearly not appropriate for anyone to create a list or to supply information for such a list, or to blacklist workers, because that would quite rightly leave them open to employment tribunal claims or to possible action for breaches of data protection. The protections were put in place in 2009.

As I mentioned, we made a series of commitments about blacklisting in a debate in the House in January 2013. We promised to investigate any evidence provided about the continuation of blacklisting, to look carefully at the Scottish Affairs Committee’s findings about blacklisting that happened before 2010 and to review the legislation if the Committee identified evidence that the practice was continuing.

We are honouring those commitments, and I want to inform the House about our actions since that debate. In February, the Independent Police Complaints Commission began an investigation into allegations that the police may previously have provided information to the Consulting Association blacklist, a point that various Members have made. I suspect that you would not be happy, Sir Alan, if I commented on a live IPCC investigation, but we will of course be interested to see its outcome. If anyone has concerns about allegations that are not currently under investigation by the relevant authorities, I encourage them to take such allegations to the IPCC or, for data protection breaches, to the Information Commissioner’s Office.

The Secretary of State met the Information Commissioner, Christopher Graham, in April to make sure that he is ready and able to investigate any new evidence that comes to light. In July, the hon. Member for Glasgow South West (Mr Davidson) and his Scottish Affairs Committee announced that there was new evidence and information about the continuation of blacklisting. Within 24 hours of that communication, we alerted the Information Commissioner’s Office, which began an investigation. I understand that the ICO is in touch with the Select Committee to ensure that the ICO is provided with the information it needs to further its investigation. I know that the Scottish Affairs Committee is very keen to work with the ICO, for which I thank the hon. Gentleman.

I should tell the House that despite the significant debate on the issue—I am glad that it is a high-profile one, because people will therefore be aware that we are open to new evidence—the Scottish Affairs Committee was the first body to get in touch with new information about the continuation of blacklisting. Significant amounts of evidence have been presented about blacklisting in the past, but the Committee’s evidence is the only piece we have received since the regulations came in and, therefore, the only information that we have been able to act on. We will of course carefully consider both the Scottish Affairs Committee’s report and the outcome of the Information Commissioner’s investigation into its evidence.

Some hon. Members have called for a public inquiry, but while those two investigations are ongoing, it makes perfect sense to await their outcome before jumping to an additional inquiry. The issue is currently being explored through those two avenues, and we should wait to see the reports.

My hon. Friend the Member for Stevenage (Stephen McPartland) asked a question, which was echoed by other Members, about ensuring that the victims of this abhorrent practice are made aware of that fact. I very much enjoyed his comment that he was the first Conservative MP to write for the Morning Star, which I am sure its readers appreciated. That earned him a kind offer from the hon. Member for Nottingham North to give him information about how to join a trade union. Perhaps my hon. Friend should be careful, but I note that no Conservative Whips are in the Chamber, so perhaps we will not tell them.

My hon. Friend’s very fair question was about proactively contacting people on the database. It is important to say that there is a fast-track service, so anyone who suspects that they are on the list can find out whether that is the case and get a copy of the information. For anyone who is interested—hon. Members may wish to pass this on to constituents who are concerned about the issue—the helpline number is 0303 123 1113. So far, 3,919 people have contacted the helpline, of whom 446 have been identified on the Consulting Association blacklist.

The ICO is trying proactively to contact individuals on the list in other ways. It has made sure that union lawyers can access some of the information, so that they can write to any of their members they identify on the list, and invite them to get in touch with the ICO. The ICO has undertaken a project with Equifax to check whether address information in the files is up to date. As a result, it has written to 103 individuals, of whom 27 have contacted the ICO to make a subject access request. The ICO has also worked with the Department for Work and Pensions to determine whether up-to-date addresses can be identified from a national insurance number when that is included in the information held. The ICO hopes shortly to write to individuals for whom it has obtained up-to-date addresses.

I understand Members’ frustration, but I would say in the ICO’s defence that such processes are not straightforward. The information is not contained in a snazzy database; much of it is on paper or in card files, and some of it is very scant, with sometimes only a first name and surname. If the name is John Smith, that is almost meaningless, for someone trying to contact the person, without address details and other information. The range of actions that the ICO is taking to piece information together—working with unions, the DWP and credit reference agencies—is certainly very positive. I repeat that anyone who is concerned should contact the helpline.

[Mr Meacher]

The Minister is making a case for the ICO’s efforts to contact people. The obvious question that remains is whether the ICO is under instructions to correspond with or contact everyone for whom it has information that is adequate enough to enable it to do so. That is the key point. I understand that if the name is one like John Smith, that person cannot be traced, but when the ICO can contact someone because it has a name, a telephone number or anything else, is it under instructions to contact them?

[Jo Swinson]

The ICO is making every effort to contact people. It is not a body sponsored by the Department for Business, Innovation and Skills, but we have discussed the issue with the ICO, and that is exactly what is happening. We recognise that there are some cases in which the process is difficult, but the ICO is determined that when it can contact people, it absolutely is doing so.

[Mr Iain Wright]

The Minister is quite rightly focusing on the construction industry, but hon. Members have mentioned other sectors. What active steps are the Government taking to find out whether there is blacklisting in other parts of the economy?

[Jo Swinson]

I have outlined the investigations that are ongoing. We do need something to go on: there is much speculation about and many suggestions of blacklisting taking place, but the relevant authorities need somewhere to start to look for it. That is why in the debates earlier this year and today I have reiterated that if anyone has information, concerns or suspicions—they do not need to have firm evidence, because it is a challenge to produce bona fide evidence when, by definition, the activity is clandestine—we will of course happily look at such evidence, as the Select Committee has done.

[John McDonnell]

To make it clear to the ICO, will the Minister state that she expects it to contact everybody on the list?

[Jo Swinson]

I absolutely expect the ICO to contact everyone on that list, where that is possible, practical and feasible, but I also recognise that the information is incomplete in some cases, and that its attempts to do so may not therefore be successful. I hope that the House recognises those basic practicalities.

[Mr McKenzie]

Is the Minister aware of the TUC’s campaign to make blacklisting a criminal offence, and will she support it?

[Jo Swinson]

I am obviously aware of the campaign. A range of civil and criminal offences exist, including in employment or health and safety legislation. Criminal offences are much less common, but some breaches of data protection carry a criminal penalty, so blacklisting would be a crime in those cases. However, that does not apply to a wide range of offences, such as unfair dismissal, causing detriment to whistleblowers or discrimination.

--- Later in debate ---

[Jo Swinson]

My final point was about procurement. The Welsh guidance has been referred to, although that guidance just restates how existing legal provisions already apply, and we look forward to the procurement Bill in the Scottish Parliament, which I understand we may see more details of next week. Of course, the Cabinet Office has general guidance, covering a range of issues affecting procurement, which of course means checking that contractors are adhering to practices that comply with the law—

[Sir Alan Meale (in the Chair)]

Order.