Examination of Witnesses (Questions 100
- 119)
TUESDAY 9 JUNE 2009
MR OWEN
TUDOR, MS
JANET WILLIAMSON,
PROFESSOR KEITH
EWING AND
MR JOHN
HENDY QC
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.
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