16 August 2013

By Paul Statham, Pattinson and Brewer

I recently chaired a group of lawyers responding to the Ministry of Justice discussion paper on Part 3 of the Transparency of Lobbying etc Bill for the Employment Lawyers Association. This is the proposal that trade unions certify their membership register on an annual basis and that it is independently audited each year by someone called an Assurer.

This blog is not about that ridiculous proposal which only serves to show that the so-called Red Tape challenge does not extend to Trade Unions, but to a supplementary clause slipped into the Bill extending the powers of the Certification Officer (CO) to request information from a union about the membership register – Clause 38 of the Bill.

At the moment, a trade union has a duty of confidentiality in respect of the Register of names and addresses of members and can only disclose any name and address in "permitted circumstances"– S.24A (3) of the Trade Union & Labour Relations (Consolidation) Act 1992 ("1992 Act"). One permitted circumstances is in relation to a ballot of members of a trade union,

"where it is requested by the Certification Officer for the purposes of the discharge of any of his functions or it is required for the purposes of any functions of an inspector appointed by him".

A member can complain about a breach of S.24 or S.24A to the CO. That means they can only complain about their own entry on the register. It follows that the only name and address that can be disclosed to the CO is that of the member.

Clause 38 inserts a new clause 24ZH:

"(1) If the Certification Officer thinks there is good reason to do so, the Officer —
(a) may give directions to a trade union, or a branch or section of a trade union, requiring it to produce such relevant documents as are specified in the directions;
(b) may authorise a member of the Officer’s staff or any other person (“an authorised person”), on producing (if so required) evidence of that authority, to require a trade union, or a branch or section of a trade union, to produce immediately to the authorised person such relevant documents as that person specifies.
(2) “Relevant documents”, in relation to a trade union or a branch or section of a trade union, means —
(a) the register of the names and addresses of the trade union’s members..."

Now anyone can complain to the CO of a suspected breach of the duty to maintain a register of members' names and addresses and if the CO "thinks there is a good reason", he can require the whole register to be handed over to him, an authorised member of staff or any other authorised person. Who is this authorised person if it is not a member of the CO's staff? Whilst I have every confidence that the current CO will not use this new power without good reason – he was previously a partner in my firm and gave me my first job – what of the future? This is a government official whose appointment, pay and pension is in the control of the political party in government. What if his successor is less sympathetic?

It would be interesting to know if the CO asked for this additional power – I believe the TUC have made a Freedom of Information request asking just that question.

This is, of course sensitive personal data under the Data Protection Act 1998, but can be released "where disclosure is required by or under any enactment" – S.35(1) Data Protection Act.

In other parts of the world, such disclosure can get you killed. In this country, it can get you blacklisted. Say the PM wanted to know who in the Cabinet office staff was a member of the FDA and then moved them elsewhere, as they had concerns about "loyalty".

The proposed legislation certainly has Article 11 of the European Convention on Human Rights implications. If workers know the state can so readily find out if they are a member of a union and where they live, that could act as a disincentive to remaining a member or making use of union membership to protect themselves – See Wilson v UK (2002) 35 EHRR 20.

Now before it is suggested I am succumbing to the paranoia that afflicts some on the Left (about MI5 targeting "the enemy within", right wing plots and spies with union organisations) I should explain a recent experience. I was recently contacted by a union client who had received a notice from HMRC.

It requested the union's complete current membership register. The notice was issued under paragraph 1 Sch 23 of the Finance Act 2011. The notice gave 30 days to comply. No reason for the issue of the notice was given. The accompanying letter sinisterly stated

"we want to know about the individuals that appear on the registers described in the notice. We will use this information to check that those individuals are also registered for tax".

We responded, questioning the extent of the power and whether it was being exercised properly. They persisted through several exchanges of correspondence. Liberty got involved in the case. Only when we wrote indicating that we considered their notice was not compatible with Article 11 of the Convention did they withdraw the notice.

The power in Sch 23 of the Finance Act 2011 is very wide. HMRC can seek data from a data-holder in various circumstances. Para 17 covers "any person by whom...a register is maintained" and covers names and addresses. They only have to show the power is exercised "to assist with the efficient and effective discharge of HMRC's tax functions".

I very much doubt it was Parliament's intention that this power was to be used in this way, but having been granted the power, HMRC are obviously testing its boundaries. I find that rather worrying. Membership of a trade union and your home address should not be disclosed without your consent. If this was Columbia or Tunisia or Turkey we would be condemning the anti-democratic nature of the oppression. Why should it be any different in the UK?