The recent announcement from the Scottish Government on blacklisting makes for good headlines. The ‘National’ lauded that “Construction firms who blacklist workers to be banned from public contracts”, and reported that ‘companies involved in blacklisting are to be banned from bidding for public contracts in a Scottish Government crackdown’. However, the provision of the new Public Contracts (Scotland) Regulations 2015 includes ‘From 18 April 2016, it will be a legal requirement for public bodies to exclude businesses which are found to have breached the Blacklists Regulations 2010, or which have admitted to doing so. This will remain in force until the business has taken appropriate remedial measures, or a period of three years has elapsed since the blacklisting occurred, which is the maximum timescale allowed under EU law’, but only if there has been a breach of the Employment Relations act 1999 (Blacklisting) regulations 2010.
So how much will change as a result of this move by the Scottish Government? In truth, very little. To be fair, ‘Blacklisting’ will be included in the new regulations for the first time in procurement legislation, but the ability to exclude companies from public contracts is already in existence.
Article 57 paragraph 4 of the EU Directive on public procurement states:
Contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure any economic operator in any of the following situations:
(c) where the contracting authority can demonstrate by appropriate means that the economic operator is guilty of grave professional misconduct, which renders its integrity questionable.
It is already against the law to blacklist and the contravention of the blacklisting regulations should ensure that a public contract will not be given to companies that have blacklisted workers, under this paragraph.
The inclusion of the maximum timescale of three years is a real kick in the teeth to those who found themselves in the Consulting Association’s files. In recent months, Unite the Union, Neil Findlay and others have been raising questions around the amount of public sector contracts that have been awarded to blacklisting companies since the publication of the Scottish Procurement Policy Note on blacklisting in November 2013. With recent additions, this has amounted to over £1.5b worth of contracts. This provision lets these companies off the hook and legitimises the inclusion of them in the procurement process.
The Scottish Government says that this is the maximum timescale allowed under EU law. But are they right? Article 57 paragraph 7 of the EU public procurement directive sates:
‘By law, regulation or administrative provision and having regard to Union law, Member States shall specify the implementing conditions for this Article. They shall, in particular, determine the maximum period of exclusion if no measures as specified in paragraph 6 are taken by the economic operator to demonstrate its reliability. Where the period of exclusion has not been set by final judgment, that period shall not exceed five years from the date of the conviction by final judgment in the cases referred to in paragraph 1 and three years from the date of the relevant event in the cases referred to in paragraph 4’.
This seems to suggest that member states can determine the maximum period of exclusion if remedial action isn’t satisfactory, and if they don’t, the three years maximum period sets in, yet the Scottish Government’s interpretation of EU law seems to differ from this point.
It’s very hard to get excited about something that will make very little difference to what is already in place. The BAM’s and Balfour Beatty’s of this world will continue to get public sector contracts and blacklisted workers will receive no justice as a result.
This announcement seems to be more about being seen to be doing the right thing rather than doing the right thing. The SNP’s overwhelming need to be all things to all men, means that they continue to make populist announcements and pronouncements, which don’t stack up under any scrutiny. In other words, they say the right things but rarely deliver. The workers who have suffered most from the insidious practice of big business, now find themselves in the middle of the SNP’s political brinkmanship.
Blacklisted workers deserve better.