Labour Research October 2015

Law Back-up

Certification Officer role to be further politicised

This month, Back-up examines another aspect of the Trade Union Bill, this time focusing on Tory plans to fundamentally alter and expand the role of the Certification Officer, including sweeping new powers to investigate, demand documents and fine unions.

The office of Certification Officer (CO) was first created in 1975 as an independent and neutral agency appointed by the government in consultation with Acas. It was established to regulate trade unions and employers’ associations. 

Under current law, its functions and powers, set out in the Trade Union and Labour Relations Consolidation Act 1992, are relatively limited. They include maintaining a list of trade unions, certifying whether trade unions are independent and dealing with complaints about union elections and political fund ballots. Current CO David Cockburn, a solicitor, has held the role following successive re-appointments for around 14 years. 

The Tory obsession with politicising this role follows on from the Transparency of Funding Non-Party Campaigning and Trade Union Administration Act 2014 (the Lobbying Act), which created new and intrusive powers for the CO to require trade unions to hand over confidential information and documentation, including members’ names, addresses and private correspondence. 

Under the Trade Union Bill, if implemented, the CO’s powers are set to expand in even more confrontational, authoritarian and employer-friendly ways. Writing on the UnionsTogether blog, Labour MP for Cardiff Central Jo Stevens accurately describes the Bill as an attempt to transform the CO role “from a neutral adjudicator on union law and rules into a state snooper”.

Under Clause 6 of the draft Bill, national unions are to be required to report annually to the CO on all industrial action in the previous 12 months, including the nature of the dispute, action taken, turnout and ballot results. Unions don’t necessarily collect this information centrally, and these changes will create yet another layer of expensive bureaucracy. 

There is no obvious legitimate purpose for the changes. However, a number of hidden purposes can be speculated at, including depleting union resources, distracting unions from challenging attacks on terms and conditions and contributing to the broad “chilling effect” of the Bill as a deterrent to lawful industrial action.

The proposals also appear to be aimed at breaking down the links between unions and the growing band of wider democratic grassroots protest movements (who will not be bound by the constraints of this Bill), using the pervasive threat of financial penalties by the CO to try to persuade union members to distance themselves from unofficial strikes and protests.

Beyond the measures already in the Bill, the government is also consulting on new powers to restrict protests linked to industrial action (see Labour Research, September 2015, page 25). These proposals involve an even more radical re-vamp of the CO role — as surrogate policeman of public order, as opposed to regulator. 

They include requiring unions to give the CO (as well as employers and the police) 14 days’ advance notice of all plans for industrial action and protest; providing detailed information for example, as to the intended location of a protest or picket, how many people will be involved, whether there will be “loudspeakers, props, banners etc”, use of social media such as Facebook or Twitter, the content of any blogs or websites, and the involvement of other unions.

Unions who fail to provide the information, or to update it when plans change, would risk a financial penalty from the CO (up to £20,000), and an increased risk of injunction. 

Inevitably, the proposals, if implemented, will make it much easier for employers to plan ahead to neutralise the impact of action. The plans, as well as being condemned by the government’s independent Regulatory Policy Committee, have been described as a “major attack on civil liberties” by human rights groups including Liberty, Amnesty International and the British Institute of Human Rights.

Union political expenditure is also affected, with new powers for the CO to investigate how unions’ spend their political funds. Information must be broken down in an annual return into categories such as: party funding, providing services or property for use by a political party, funding conferences or meetings by or on behalf of a political party and party political electioneering material.

The new reporting rules would apply to unions spending over £2,000 each year from their political fund. The information is to be published on the CO website alongside the annual membership return. Failure to comply would again result in a financial penalty. 

In addition, the CO is to have new powers to appoint inspectors to launch proactive investigations of unions, instead of waiting for a member’s complaint. 

The investigation can be based on information from third parties, including employers, with the power to demand copies of documents and confidential details of members’ names and addresses from union national and branch offices, and from “union assurers” appointed under the Lobbying Act. 

This represents a new low in relation to members’ rights of privacy. Only legally privileged documents will be exempt. The new financial penalties on unions, available to the CO, are to range from £200 to £20,000. 

Union members are expected to pay for the privilege of being subject to these new regulatory burdens, through a charge to cover the CO’s running costs — currently around £1 million per year. The CO’s costs are currently met by Acas, funded by the government.