New powers for the certification officer

In addition to the changes set out above, the TUA 16 has radically overhauled the role of the certification officer (CO). It has given the CO new investigatory powers over unions, including the power to demand production of documents and to call on union officers to give evidence, backed up with financial penalties of up to £20,000. These new powers can be exercised by the CO acting on their own initiative, or at the instigation of a third party (schedules 1 and 2 to the TUA 16). Consultation on the penalties connected to the new powers closed in May 2017.

Writing in his final Annual Report in 2016, outgoing CO David Cockburn echoed the concerns of many commentators when he warned of the potential for abuse of the new statutory right allowing any third party to refer a union to the CO. He anticipated that, in future, unions may face a “myriad” of references by external organisations with something to gain, such as employers or contractors looking for new ways to undermine lawful industrial action. That third party may have substantial financial and legal resources at their disposal, and a CO who does not do their bidding could face the threat of judicial review.