Any of our business? Human Rights and the UK private sector - Human Rights Joint Committee Contents

Examination of Witnesses (Questions 100 - 119)



  Q100  Lord Morris of Handsworth: Have you made representations since the Information Commission report was made public? Have the Institute made representations?

  Professor Ewing: We have been approached by a number of trade unions who are planning to make representations, so we will be supporting and advising the unions who have approached us on this issue.

  Mr Tudor: Our understanding from the Government was that their view when they obtained powers to act in this was that they took the view that there was not a problem that then needed addressing. That does now indeed seem not to be the case and we will be calling for effective and robust laws prohibiting blacklisting on which we can provide you details if you wish. We have had informal discussions obviously with government over that issue and we look forward to something positive on this subject. I do not know whether I have to declare an interest as a former person on the Economic League blacklist. It has not actually affected my career.

  Q101  Lord Morris of Handsworth: It did you a favour, I think. Just to take the debate a step further, because it has been suggested that the Government should create a specific compensation scheme to remedy the hardship potentially suffered by those included on the unlawful database that I mentioned earlier. Do you have any examples of the type of hardship concerned? Would these individuals have no other civil remedies to correct their losses?

  Professor Ewing: I have evidence here of people who have written to us which I am quite happy to put on the record. There are people whose stories have appeared in public. There is a guy, Steve Acheson, from Manchester, a case which has been reported on the BBC and in local newspapers, who says after he had taken an unfair dismissal claim he appeared on a blacklist. He was out of work for a long time. It affected his health and family. His life was devastated. He could not understand why anyone would not employ him. There was no recession then. He was a highly qualify and experienced electrician who worked hard but nobody would take him on because he was on this blacklist. We have another case of a man who must remain anonymous but he has given me permission to refer to his case. This is his file. This is the file which was retrieved from the blacklisting company in question. He invites me to read it and he says, "As you will, see some of it is funny, some of it is malicious smear, some of it is straight victimisation. He goes on to name the companies involved. He says, "I was a qualified engineer responsible for major contracts in control of many staff. Once the blacklisting and victimisation started in earnest I could not get a job anywhere as an engineer and ended up working as a carpenter. After a while even this dried up and during the building boom my children were on milk tokens." Since then he has had to leave the industry and is now happily employed elsewhere. If you speak to the union which has principally been involved in this they will be able to provide you with more details of what I think constitutes hardship. The question you ask is is there an existing remedy. There is a provision in the Data Protection Act of 1998, section 13 I think, which makes provision for compensation for people who are caught up in the unlawful processing of their data, but it seems to me there are a number of problems with this provision. The first of course is that it is not retrospective and a lot of this blacklisting activity took place before the Data Protection Act came into force. The second problem is that you do not get compensation because you are being blacklisted as such; you only get compensation if you can show that you have suffered damage. How you begin to get a case up and to prove that you have suffered damage as a result of having been on a blacklist I would have to defer to people more experienced in these matters than I am, but I imagine it would not be easy. The third problem is even if damages are recoverable you can only get damages for loss; you cannot get damages for injury to feelings or for the other harm that you may suffer. In addition to which there is a problem in that you have to go through normal judicial channels to recover, so it is not an easy process for people to contemplate. What we had in mind was when we had the reverse situation in 1980 when Mrs Thatcher came into government, she was faced with the problem of people who had been dismissed between 1974 and 1980 because they were members of a trade union where closed shops operated. After the Young James & Webster case, in order to prevent a succession of cases to Strasbourg, what the Government at the time did was to introduce a retroactive compensation scheme, paid for from public funds, for people who were "victims" of closed shop arrangements. What we are saying is that it would be appropriate to have the mirror image, if you like, and introduce a similar scheme for people who are victims of this practice and who may have difficulty in using existing procedures to recover any losses which they have suffered.

  Q102  Chairman: Do you have anything on the practicalities of the claim?

  Mr Hendy: The problem, as you know Chairman, is the problem of causation. It would be very, very difficult to show that you did not get the job because you were blacklisted ten years ago, very difficult, and that is the essential difficulty.

  Q103  Chairman: Keith, earlier on you mentioned some correspondence with the Minister; am I permitted to ask you whether we could see the correspondence?

  Professor Ewing: Yes.

  Q104  Lord Lester of Herne Hill: Just a thought—if someone is blacklisted and lacks an effective domestic remedy, could you not then go to Strasbourg and say that under Article 13 the UK have got to introduce an effective remedy for that victim class?

  Mr Hendy: That is under contemplation!

  Q105  Mr Sharma: To the TUC: you have said that a combination of approaches is necessary to address the human rights impacts of businesses. What is more important: promoting human rights and capacity building in host states or pressing the UK Government to take action in respect of the activities of UK companies overseas?

  Ms Williamson: I think you need both and that those two avenues are not mutually exclusive but in fact are mutually reinforcing. Capacity building can achieve a great deal in terms of making sure that business knows what standards it should be applying and is aware of best practice and how to go about implementing that and is able to assess barriers to human rights compliance in its activities. All of that would best be done in a situation where there is a clear legal framework of rights which can, if necessary, be legally enforced. I think you do very much need both. There is evidence that backs up the need for that dual approach. There was a study of trade agreements which found that the most improved firms had both negative and positive inducements to improve their actions. There was a study of the Ethical Trading Initiative that found that while there had been quite a lot of improvements among member companies and their supply chain firms in several areas, quite a few other problem areas remained, notably freedom of association, harassment and discrimination. One of the core conclusions of that assessment study was that there needs to be a stronger institutional and legal framework for collective bargaining and freedom of association in order to uphold other labour rights.

  Q106  Mr Sharma: Should it make a difference if the host state has not ratified the relevant international standards which bind the UK?

  Ms Williamson: I think we would argue no it should not because we are talking about fundamental human and labour rights here. Whether legally it makes a difference one of my other colleagues will have to address, but from our perspective we believe that all states and all companies should uphold in their different roles the fundamental human and labour rights which we have been talking about.

  Mr Tudor: Our general approach, to be honest, is that companies operating in other countries ought to look for whatever the highest standard is, whether it is the British standard or the local standard. You can have problems with that, for instance in terms of where higher standards might even be illegal in another country, for instance freedom of association in China, which we know provides problems although they are lots of ways round that, and lots of things that you can do. I would also draw attention, or redraw attention, to the fact that for instance the ILO core Conventions apply regardless of whether countries have ratified those Conventions or not, unless you are not a member of the ILO, which applies to only a very small number of very small states. Thus in many cases under things like freedom of association it does not actually make any difference whether the country has ratified that or not; they are bound by it.

  Q107  Baroness Prashar: You support the suggestion of CORE for establishing a new Commission on Business, Human Rights and the Environment. What would the UK Commission add to the ability of individuals who suffered poor employment conditions overseas to remedy their position?

  Ms Williamson: I think it would do several things. One of the key things it would do is provide a route for redress and for remedy for overseas victims, as you were hearing in the earlier session, and that would provide both the avenue of redress but also be a deterrent to companies and an incentive for them to improve their behaviour overseas where they are operating in their supply chain. I think alongside that it would also provide a focus for work on developing and particularly perhaps co-ordinating all the different best practice standards that exist at the moment. The Commission could also have a key role in trying to promote those standards and disseminate them more widely. To go back to the earlier question about legal enforcement versus capacity building, the Commission could have an important role doing both, both on the capacity building, dissemination and promotion side in trying to draw attention to the importance of human rights and, on the other hand, also providing an avenue for redress and for remedy for victims where abuses do occur.

  Q108  Baroness Prashar: Could you give us an example?

  Ms Williamson: An example is Unilever. Unilever states in its CSR report that it upholds high standards with regard to its employees and yet in practice throughout India and Pakistan workers have been punished severely when they have tried to form a union with lockouts, beatings, cuts in working hours, and severe abuses of their human and labour rights. There have been five challenges to these practices under the OECD Guidelines to the National Contact Point and yet so far there has been no action and no remedy for those people whose rights have been abused, so perhaps in an example like that the Commission would be able to provide additional means through which redress could be obtained.

  Mr Tudor: Some of what this and any formal process would do is it is not just telling people this is what you must do and they therefore do it; partly it is changing internal company priorities, what has most weight when a company is deciding what to do about something. In some cases it just strengthens the hand of some people inside a corporate body who want to do a certain thing compared with other people inside who do not. I used to sit on the Health and Safety Commission for instance and we regularly found, and I have walked round workplaces, a factory inspector occasionally misses something only to have the health and safety manager tap him on the arm and say, "If you could possibly serve something on me for that, I could get it sorted where I have not been able to get it sorted before." Then there is also the issue of external competition. We know that companies in many cases are facing stiff competition from other people in the sector. Something which actually made it a requirement to act in a certain way would strengthen the hand of those companies which do not want to go for the lowest possible route by driving cowboys (that is the phrase) out of that industry or require them to not undercut what an ethical company would want to do.

  Q109  Chairman: This does come back to the point you made about say China. Supposing you have a UK Commission dealing with human rights and so on, Chinese law forbids trade unions and freedom of association and yet the standards applied by the UK Commission says if you operate overseas must allow trade union membership. How do you square the circle?

  Mr Tudor: Strictly speaking in terms of China obviously trade union membership is not prohibited at all; in fact in many cases it is mandated, but you are not free to choose your own union to join. The underlying principle of freedom of association is that workers should be able to operate collectively to do roughly whatever they want but, in particular, to enforce their legal rights and so on. That can be achieved even within the context of operating in China. The smart way that companies are adopting at the moment is to work partly with the established trade union movement in China—the All-China Federation of Trade Unions—but also simply to encourage the development of collective forms of organisation within their workplace and among their employees which can operate almost regardless of the requirement that they should only be part of the ACFTU. As I say, there are ways round that.

  Q110  Chairman: So you do not envisage some sort of conflict arising between the high standards imposed by a UK Commission and others? There is a difference between standards which are just low where you can do best practice and standards which are effectively capped and you are not allowed to go above those standards.

  Mr Tudor: Yes, well, the final analysis obviously is that if you are operating in a country such as, for instance, Burma where freedom of association is comprehensively breached by the regime all the time, then the answer may simply be that if it is absolutely impossible to operate according to those standards then you have to not operate in those countries, which is indeed the position that we hold in terms of Burma at the moment.

  Q111  Mr Sharma: You—and others—have suggested a new system of monitoring and penalties for companies found to breach the OECD Guidelines by the UK National Contact Point, perhaps through removal of government subsidies or export levies. The CBI have told us that penalties might change the nature of the Guidelines. Would this create a system of binding standards through the back door?

  Mr Tudor: To be honest, I am not particularly worried about what door you use if you are raising standards. I would not describe it as through the back door. I would simply say that it would undoubtedly change the ways in which companies address potential breaches of the OECD multi-national enterprise guidelines and if they are discouraged from breaching those guidelines then, outside flagrant illegality, I think we should embrace those approaches, and that is indeed one of the reasons why we argue it should be done. I should say in terms of the national contact points, our view is that the Government has done quite a lot to improve the functioning of the national contact point. I do not know whether you see this as a positive thing or a negative thing but the UK National Contact Point is held up around world as one of the most effective contact points (it is a comparative issue) of national contact points around the world, partly because of some of the things that have been introduced in its operation. However, we would say that we need to go further, especially in terms of ways of ensuring enforcement of the decisions that the national contact points reach to make sure that companies take more notice of what they are required to do under the OECD Guidelines. I assume we have cited the case in our evidence of the fact that the NCP can actually get things done. It did play a major part in the agreement between G4S and UNI of an international framework agreement recently, so it can achieve things even with the limited powers that it has got at the moment, but we think it could be much more effective if it could actually enforce the remedies that it proposes. One extra thing I think is worth noting is that one of the more imaginative ways of using those sorts of remedies is actually to get companies for instance—and this goes beyond what we have said in our evidence—to use the fines that have been applied to boost the collective bargaining arrangements in their companies worldwide. We have advocated this in particular for instance in terms of the general system of preferences that the EU runs under trade, which is rather than just having fines on the countries for breaching things, that money should actually be used to remedy the situation, and the same could apply under the national contact points in terms of individual companies. That would actually, we would argue, be of benefit to the company and that is all to the good. Our view is not that we simply want punishment for the sake of it or a deterrent; we actually want to improve the situation.

  Q112  Lord Lester of Herne Hill: Oscar Hahn, the Birmingham employer and philanthropist when trying to persuade trade unions and employers to support a race discrimination law used to quote Archbishop William Temple who famously said, "Whenever I travel on the underground I intend to buy a ticket but the fact there is a ticket collector at the other end just clinches it." As I understand your argument, what you are saying is, as with all social legislation, you need the legislation to be there so that instead of conforming to bad practices employers, commercial firms and so on can say we are simply conforming to the code and the system, and that makes it easier for all of us who are weak to follow the line of least resistance which is to comply with the law. Is that really part of the message that you are putting across?

  Mr Tudor: A large part of it, yes.

  Q113  Lord Bowness: Really to all our witnesses if I may—in your evidence and this afternoon you have indicated a number of steps that the Government could take to increase the effectiveness of existing voluntary measures, including guidance and awareness raising, and other witnesses have told us the Government does not currently have a coherent approach to any of these issues. Which part of government do you think should take it forward and how should they do it?

  Mr Tudor: We do not have a fixed position on that. We do not have a view that this would be the ideal way to do it. Our overriding concern is that someone should do it and it is the principle of coherence and co-ordination that is the most important thing. I can think immediately of some areas of government that I am not entirely certain we would be that keen on having the lead role in this area, and there are competing claims for who would be best at doing it. I simply think at the moment that the important case is arguing that some mechanism should be found for making this more coherent. I would say however that in terms of producing coherence and leadership within government, we should not be looking at that as removing responsibility from every element of government to pursue these approaches. There is always the danger that if you pick one body to co-ordinate this work then everyone else will say, "Thank the Lord for that, we do not have to do it, we can simply allocate it to that." That certainly must not be a side effect of bringing coherence and co-ordination.

  Q114  Earl of Onslow: The counter-argument of that surely is that if you do not know which minister to go and see you will not get to see anybody at all.

  Mr Tudor: To be honest, actually my experience over the years is that the worst outcome is that you end up seeing a succession of different ministers.

  Q115  Earl of Onslow: From different departments?

  Mr Tudor: In different departments yes, and being passed from one to the other, but you are right the fundamental issue and our overriding interest is that we believe that there should be co-ordination and there should be a central part of government that has overriding responsibility for co-ordination and coherence, precisely because of the various different problems of not having that.

  Q116  Earl of Onslow: That is asking quite a lot of this present Government, is it not?

  Mr Tudor: It was said by the previous Prime Minister that it was our job to ask for things.

  Q117  Chairman: I think we have finished. Is there anything you would like to add to anything you have said to us?

  Professor Ewing: Can I add one thing about the Commission which is being discussed and which we heard a bit about in the last session. I do not want to be unpopular for the sake of it, but I think you need to be careful about any kind of displacement in the sense that it is a good idea perhaps to have a Commission but there is not much point having a Business and Human Rights Commission unless the Commission has something to do, and the problem is we talk about all these human rights obligations, and human rights obligations are obligations of government, not obligations of companies, with the possible exception of the provisions of the OECD Guidelines, so I would strongly urge you that if you are going to have a Commission there have got to be certain obligations as well on companies, and the creation of a Commission should not deflect our attention from having certain legal obligations on British-based companies in terms of their commitment to human rights. I would say there are three things which are important in that respect. Firstly is a duty on companies to audit their commitment to human rights, secondly, a duty on companies to respect certain prescribed human rights obligations so they become duties of the company as well as duties of the state; and, thirdly, what we should be trying to do, apart from using the state, is trying to create countervailing sources of power in the voluntary sector to deal with these companies. In our society the only feasible countervailing source of power in most countries is a trade union. We should be looking at ways by which we can encourage companies to enter into global framework agreements with trade unions of the kind that we saw in the Group 4 situation which are dealt with in the ICTUR submission to this Committee.

  Mr Hendy: Chairman, can I just come back to a question which you posed earlier which is whether the solution to these criticisms of UK trade union rights is by legislation or are there policy measures. I just wanted to say this in relation to two of the fundamental aspects of trade union rights, collective bargaining and the right to strike: so far as the right to strike is concerned, it seems to me the only way forward is changes to our legislation so that the restrictions on the right to strike in the UK are in compliance with permissible limitations under the international treaties that we have signed up to. That is simple. Collective bargaining is more subtle because the right to collective bargaining is not a right to compel an employer to enter an agreement with a trade union. None of the jurisprudence that we have talked about has ever held that. The principle obligation is on states to promote machinery for collective bargaining and that is to be found explicitly in Article 6 of the European Social Charter or ILO Convention 98. Of course there is also an obligation on states not to impede trade union access to collective bargaining which is what the Demir and Baykara case is all about, but there are steps in relation to the promotion of collective bargaining which are not dependent on direct legislation to permit it. There may be indirect changes. If one looks back 100 years to see how collective bargaining developed in this country, it was because collective bargaining was a policy pursued by all governments of all shades from 1896 right through until 1979, and they fostered collective bargaining not simply by legal mechanisms such as the right to extend collective bargaining to people who are not party to it, or by requirements of public compliance by making public contractors comply with minimum standards of recognition and so forth, they also did it by policy steps. It seems to me that there is a range of policy measures that could be adopted by government which would help to restore the freedom of collective bargaining which this country is obliged to maintain because of this range of international treaties which it has ratified.

  Q118  Chairman: Would those policy steps be compliant with international conventions?

  Mr Hendy: They would not be enough by themselves but they would go a way to doing that.

  Q119  Chairman: On the right to strike, perhaps I ought to put this to you: is one of the problems with the right to strike that we do not actually have a right to strike and it is a series of exemptions from tort law with exemptions to the exemptions and nobody is prepared to sweep all that away and do it the other way round and get a positive right?

  Mr Hendy: Absolutely. We are unique in the world in having a backwards, stand-on-your-head sort of freedom to organise industrial action. Yes, we ought to do what South Africa did in 1996 and declare a right to strike as part of a bill of rights, and that would bring us in line with our international obligations. I would just make it clear—and I know all the members of this Committee are well aware—the right to strike is not without limitations in international law. Everywhere the right to strike is limited. The question is the permissible limits under the international instruments and the demarcation lines are very, very clear and, unfortunately, our restrictions go beyond them.

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2009
Prepared 16 December 2009