Changes to the role of the Certification Officer


The role of Certification Officer (CO) was first created in 1975, as an independent and neutral agency appointed by the government in consultation with Acas, to regulate trade unions and employers’ associations. The CO’s functions and powers, set out in TULRCA, are relatively limited. They include:


• maintaining a list of independent trade unions and certifying whether unions are independent;


• ensuring annual returns are submitted on time and that there have been no financial irregularities;


• considering complaints by members about union statutory elections and ballots;


• dealing with complaints about union membership records;


• resolving disputes between unions and members as to union rules; and


• overseeing unions’ political funds and finances.


Unions have an excellent track record in complying with their statutory duties. Since 2000, the CO has upheld fewer than four complaints, and issued less than one enforcement ruling a year.


The TUA 16 radically transforms and politicises the role of the CO. Once necessary regulations have been enacted, the CO is to become an enforcement agency with wide-ranging powers, including the power to launch investigations into union decision-making processes at the request of third parties where no union member has complained (section 15 and 16, TUA 16).


Specifically, schedule 1 of the TUA 16 gives the CO new powers:


• to initiate an investigation into union activities whether or not a union member has complained or raised an issue of concern;


• to appoint investigators, either from the CO’s own staff or as an external appointment of the CO’s choosing, where there are “reasonable grounds to suspect” that a union has not complied with its statutory duties, and for these investigators to have the power to summon union officers to appear before them and to provide “all reasonable assistance” with the investigation;


• to demand immediate production by unions (including national officers or branch officials) of documents, including membership records (subject to a duty of confidentiality) and to take copies;


• to make enforcement orders, (for example, where a union has failed to produce documents or co-operate with an external inspector); and


• to impose financial penalties of up to £20,000.


Appeals from the CO to the Employment Appeal Tribunal will be on fact or law. (Appeals are currently restricted to issues of law only).


In addition, from 1 March 2017, unions must include extra information on their Annual Returns to the CO (Form AR21), identifying: 


• all industrial action undertaken (nature of the dispute, date(s) and type of action) by the union and the results of strike ballots in the preceding twelve months (see page 190); and


• all payments by the trade union for political purposes, and any other payment from its political fund if not made for a political purpose (see page 180).


The CO will be able to punish non-compliance with these reporting requirements using declarations, orders and financial penalties. Consultation on the proposed new regulations opened in April 2017.


Under the new regime, there will be a new levy on unions and employers’ associations to fund, once in place, the CO’s running costs (section 18(1), TUA 16). These costs are likely to increase significantly, given the CO’s extra new powers and responsibilities. The government has conceded that the levy will not cover the cost of external investigators. The CO will be responsible for administering the levy. There is to be consultation with Acas and the TUC over the regulations to introduce the levy.



The government says that the CO will be free from ministerial direction and will be appointed by the Commissioner for Public Appointments.


Even so, these new powers, once in force, are expected to place the government in breach of International Labour Organisation standards, which state that unions must be free to draw up their own rules and administer their own affairs (Articles 3 and 5, ILO Convention No.87 – see page 146).


Writing in the CO’s Annual Report on resigning his post in 2016, outgoing CO, David Cockburn anticipates that the planned changes to the role will result in unions facing a "myriad" of references to the CO by external organisations with something to gain. Cockburn also questions whether the new role of the CO as "investigator, prosecutor and adjudicator" is compatible with the human right to a fair trial (Article 6, European Convention of Human Rights).