Monday, 2 February 2015

Court of Appeal Blacklist Case: Smith V Carillion

Smith v Carillion (JM) Ltd
Court of Appeal
Wed 4th Feb 
(predicted to last 2 days) 

In an unusual step, the UK government has joined themselves to a legal test case being heard at the Court of Appeal this week. The Court of Appeal judges are being asked to rule on whether blacklisting of engineer Dave Smith breached the European Convention on Human Rights (ECHR) in the case of . 

Carillion (JM) Ltd have admitted that their managers supplied information to the notorious Consulting Association blacklist about Smith because of his activities as a Safety Rep for construction union UCATT but he still lost his original Employment Tribunal in 2012 because he was not working directly for the company but via an employment agency. As only direct employees are covered by this section of employment law, therefore as an agency worker Smith was not protected. The original ET written judgement created media headlines at the time and concludes by stating, “We have reached our conclusions with considerable reluctance. It seems to us that he has suffered a genuine injustice and we greatly regret that the law provides him with no remedy.” 

In the Court of Appeal on Wednesday, John Hendy QC and David Renton will be arguing that blacklisting is a breach of Article 8 & 11 of the ECHR and that if Smith is not protected by UK employment law, then UK law itself cannot be compatible with the European Convention Rights. They are asking the Court of Appeal to agree a " Declaration of Non-compatibility". If this is granted it would require the UK government to amend statutory legislation. 

The UK government has joined the case as an "intervener". The legal submission from lawyers acting on behalf of Vince Cable  presents for the first time ever, the UK government's legal position on blacklisting and human rights. 
Paragraph 58 reads:  
“The Secretary of State accepts that the Appellant's Article 8 rights were engaged by the conduct of the Respondent. There has been an interference with his right to respect his family life due to covert collection of data on him.” 
Paragraph 61 reads:
"The Secretary of State accepts that the Appellant's Article 11 rights were engaged by the activities of the Respondent, insofar as they would have breached s.146 TULRCA (but for the issue of his employment status)” 

This is the UK government admitting that blacklisting of trade unionists is a breach of Article 8 and Article 11 of the European Convention on Human Rights and the only reason that Smith did not win his case was because of his employment status. Despite this massive legal admission, the UK government has now intervened in the case in order to fight against Smith and is arguing that the Court should not issue a declaration of non-compatibility.
Following the Secretary of State’s intervention, John Hendy QC and David Renton responded:
The European Convention is to be considered in the light of the fact that it was drawn up in the aftermath of the Second World War to prevent in future the development of totalitarian regimes such as that of Nazi Germany by forestalling the incremental abuses of human rights which lead such regimes ultimately to the grotesque atrocities for which they are responsible. Blacklisting of workers was precisely one of the early abuses by which the Nazis suppressed opposition to their rule from the labour and trade union movement” 

The Labour Party manifesto pledges an inquiry into the blacklisting of union members in the construction industry. 

Note to Editors:
Dave Smith is the secretary of the Blacklist Support Group, the campaign fighting on behalf of blacklisted union members in the construction industry. 

Smith is also co-author (with investigative journalist Phil Chamberlain) of the book: "Blacklisted: the secret war between big business and union activists" to be published by New Internationalist in March.

Comments on "Blacklisted":

This book will be a wake up call to all who think we live in a democracy where all are equal before the law. These are big questions for the employers and the police, as well as Labour politicians and union leaders. - Ken Loach, film director.
The book on blacklisting by Phil Chamberlain and Dave Smith could turn out to be one of the most important of 2015. - Rob Evans, journalist for The Guardian, and author of Undercover.
Blacklisting destroyed the lives of many workers and their families over the years. It took courage and determination to stand up to it and expose its operation. This book makes a significant contribution to telling the truth of the blacklist. - John McDonnell, MP.


Derek said...

What exactly are the grounds on which the Government are arguing that the Court of Appeal should not issue a declaration of non-compatibility in your case? This is not explained in your briefing. As I understand it, they are saying that even though your Human Rights were breached (Articles 8 & 11), you cannot rely on this part of Human Rights legislation because it hadn't been enacted at the time you were in employment and it cannot be applied retrospectively. Is this the gist of it.

Blacklist Support G. said...

That is one part of it - We are arguing that firstly, Dave Smith is covered by the Human Relations Act because blacklisting was ongoing until the Consulting Assoc. was closed down in 2009, and the info on my files had an impact on me all that time (long past the introduction of the HRA). Also, the Tribunal is the public authority that needs to comply with the Europian Court of Human Rights - so therefore, the correct date is the date of the original Employment Tribunal ie: 2012. There are a few other technicalities but that is it essentially.

The government also claim that since the Blacklisting Regulations introduced by the Labour government in 2010, that UK legislation now complies with the European Court of Human Rights.

The pleadings from all 3 legal teams are like wading through treacle at times. The Nazi quote and the gov admissions are the obvious eye-catchers.

Blacklist Support Group