Despite all the media coverage when The Consulting Association (TCA) was raided in 2009, few realized that, shockingly, it was not against UK law to blacklist a worker because of their trade union activities. Back in the 1997 General Election, Labour had promised to make the practice illegal. UCATT Executive Council member Tony Farrell addressed the first union conference after the election of the Blair government. He said:
‘One of the greatest things as far as I am concerned, they are going to outlaw the blacklisting of trade unionists. I can tell you comrades, there were times when I could not go with my mates on the job because they got the sack as I got the sack as soon as I gave them my National Insurance number.’1
In 2009, Farrell found out the reason for his continual loss of employment: he was one of those on the TCA blacklist.
True to their word, in 1999 the government drafted a set of regulations to make blacklisting illegal as part of the Employment Relations Act. During a debate in the House of Commons on 30 March 1999, Stephen Byers, the Secretary of State for Trade and Industry, laid out the government view: ‘We believe that it should be a criminal offence to use such a list for the purpose of blacklisting individuals.’
The distinction between blacklisting being a criminal rather than civil offence is important. If civil employment rights are granted by legislation, it is up to an individual to enforce those rights by gathering the evidence themselves and raising the issue with their employer or bringing a claim to an Employment Tribunal. The only sanction in court for a civil claim is compensation (in most employment law this is limited to loss of earnings). In criminal law, it is the state that enforces the legislation. The police, Health and Safety Executive or other enforcing authorities have the powers to investigate an offence and, if found guilty in court, the perpetrators can be jailed.
Byers told the authors: ‘One of the most formative events for me personally was the 1972 building workers’ strike. I was in my late teens and living in the Northwest. Many good men lost their jobs and experienced a lifetime of being denied work due to being blacklisted.’2
Unfortunately, despite the many fine words and personal experience of Labour MPs, the draft regulations signalled by the then government were never implemented. In 2003, a Department of Trade and Industry review of the Act was published and the regulations were put out for consultation once more. The official government line was clear:
‘There has been no known case of blacklisting – covert or overt – since the 1980s. In part, these changes reflect the improved state of employment relations today. In line with good regulatory practice, the government considers it inappropriate to introduce regulations where there is no evidence that a problem has existed for over a decade.’3
There was considerable lobbying by employers’ trade associations during the consultation. The Confederation of British Industry, Engineering Employers Federation and Newspaper Society all formally voiced their opposition to implementing the regulations. The TUC, Unison, Association of University Teachers, Graphical, Paper and Media Union, Northern Ireland Public Service Union, the Work Foundation and Thompson’s solicitors all supported immediate introduction. UCATT, the Transport & General and the GMB all supported the government’s position that no regulations needed to be introduced until ‘evidence emerged of the problem reoccurring’. Amicus did not make any submission to the consultation. The ICO response was: ‘We have no specific comments to make on the draft regulations.’4
This was an opportunity to present the numerous examples of ongoing blacklisting in the building industry and influence the government. Yet the government records: ‘No respondent reported any evidence or knowledge of blacklisting taking place in recent years.’
This was in 2003, when hundreds of union members remained unemployed, especially those who had worked on the Jubilee Line, Pfizers and Royal Opera House and when the DAF dispute at Manchester Piccadilly over blacklisting was being supported by the local union movement.
In 2005, following calls by Tameside and Manchester Trades Councils, the National Conference of Trade Union Councils passed a motion against ongoing blacklisting in the building industry. But the motion did not move the Labour government, which considered that evidence of blacklisting was only anecdotal.
After the consultation, the draft regulations were forgotten about until The Consulting Association scandal broke. An adjournment debate was held almost immediately and Mick Clapham MP told the House of Commons: ‘Now that evidence has emerged that blacklisting is taking place, it is time to bring them [the regulations] into effect’.5 So the Labour government launched yet another consultation process – except that any mention of blacklisting being a criminal offence had now vanished from the draft proposals.
As part of its submission to the new consultation, UCATT commissioned Keith Ewing, President of the Institute of Employment Rights and Professor of Public Law at Kings College London, to carry out research. The result was published in August 2009 as Ruined Lives: Blacklisting in the UK construction industry. At the time it was the only academic paper on the scandal and remained the foremost investigation until the Scottish Affairs Select Committee’s first interim report in 2013. Ruined Lives provides a legal overview of the scandal and critiques the inadequacies of the government proposals.
The Blacklist Support Group (BSG) submission highlighted a major shortcoming in that blacklisted workers could only make a claim against the company that refused to employ them. In The Consulting Association situation, it was the major contractors that orchestrated the blacklist but these companies hardly ever employed carpenters, bricklayers or electricians themselves. As the BSG submission said:
‘Even if the proposed Blacklisting Regulations were introduced today, as they stand, most of the current Consulting Association claims would be no better off. The proposed regulations are only an improvement on the current situation if they are enforceable against those guilty of blacklisting.’6
UCATT general secretary Alan Ritchie’s response to the limited protection offered to those involved in union activities was a lot stronger than his union’s supine effort in 2003 had been.
‘Blacklisting took place on the basis of raising health-and-safety concerns, press comments, and even alleged political affiliations. These and a number of other factors fall outside the regulatory protections. The proposed regulations will therefore not stop blacklisting… Given the narrow definitions in the proposed legislation much ‘normal’ trade union activity will fall on the wrong side of the line.’7
Another loophole was that any worker who was blacklisted after raising concerns about safety would only be protected if they were a member of a trade union. Whistleblower protection in the UK is notoriously poor despite the introduction of the Public Interest Disclosure Act 1998, yet these regulations would do little to bolster that support.8
One industry body’s consultation response argued that ‘vetting of prospective employees was necessary to weed out troublemakers, criminal elements and other undesirable people’. The government reassuringly responded: ‘Virtually all vetting activity, which should normally have nothing to do with trade-union matters is left unaffected.’9
The Employment Relations Act 1999 (Blacklists) Regulations 2010 was one of the last pieces of legislation passed by the Labour government. It bans the use of blacklists of trade unionists, makes it unlawful for an employer or employment agency to refuse employment, to dismiss or cause detriment to a worker for a reason related to a blacklist and provides for a minimum £5,000 compensation award at tribunal.
Despite these headline changes, the lobbying had paid off and, although the new regulations were a step forward, the failure to make blacklisting a criminal offence was a major flaw. Prof Ewing said: ‘The blacklisting of construction workers because of their trade union activities is a vile practice, which the current government has, to its eternal shame, done next to nothing to eradicate, and even less to compensate the victims.’10
Further, the small legislative step was enough to give future employment ministers a ready-made answer to requests for greater workplace protection. Unions had asked for blacklisting to be outlawed and now it was – what more did they want? To some extent, Labour’s fag-end piece of legislation did more harm than good by shutting down the debate on legal safeguards.
Even if blacklisting wasn’t expressly against the law, the details in the files seemed to offer clear evidence that could be used in Employment Tribunals. However, as we shall see, having evidence of being blacklisted was not enough to gain legal redress and this exposes fundamental problems in the current tribunal system. Indeed, in one case, as we shall see, a company proudly submitted the blacklisting evidence as its justification for sacking a worker.
Almost immediately after the scandal broke blacklisted workers and their unions started submitting Employment Tribunal claims. Some claims were submitted after receiving legal guidance from solicitors, while others were rapidly sent in by the workers without getting advice. The result was that every conceivable claim was put in, from unfair dismissal and trade union victimization to discrimination on the basis of religion or belief and human rights. By the autumn of 2009 there were in excess of 60 claims being heard across the country by different judges.
Prior to 2009, blacklisting cases were unheard of at a Tribunal. The Consulting Association threw up many complex and unusual points of law. The President of the Employment Tribunal, Judge David Latham, therefore made a decision to transfer all of the blacklisting cases to the Manchester Tribunal, where Judge Jonathan Brain would hear all the cases.
The joint Case Management Discussion (CMD) covering all the claims took place on 24 November 2009 in Manchester; blacklisted workers travelled from around the country to attend the hearing. CMDs are the first stage of the Employment Tribunal process, before any witnesses are called or evidence is heard. It is a short meeting arranged to sort out certain technical issues – what the claim is actually about and whether the tribunal has the jurisdiction to hear it – and for the judge to place orders on both sides to submit certain documents by particular dates. They are very low-key affairs without the need for a claimant to be present and no press.
The Manchester CMD lasted a whole day with over 60 people in court at one point. Nick Toms acted as lead barrister for the claimants, supported by David Renton as counsel. The Court allowed four claims already under way – Michael Dooley, Phil Willis, Steve Acheson and Paul Tattersfield – to continue at their original locations. All other claims were to be heard at Manchester. At the time, blacklisted workers were very upbeat about their chances.
In an attempt to get the Tribunal claims thrown out, lawyers for the employers raised a number of issues. The Case Management Order issued by Judge Brain stated that, prior to going to a full Tribunal, all cases would be required to go through a Pre-Hearing Review (PHR). One of the main issues he highlighted was: ‘Whether or not the claims as pleaded have been brought in time or, where they have not, whether the Tribunal should exercise its jurisdiction to extend time to hear the claim.’11
The employers’ lawyers had rightly spotted that the claimants were up against the clock. To be able to go to an Employment Tribunal, any claim needs to be submitted within three months of the date of the incident being complained about. This is a well-known rule and union training courses make a big point of highlighting to new shop stewards the dangers of missing this time limit. The rule is very strictly interpreted and there have been cases disqualified because an email was sent before the deadline but not delivered until a few minutes after midnight on the cut-off date. Under exceptional circumstances, for example if an incident resulted in a claimant being hospitalized, the Tribunal is able to extend the time limit. How much additional time is allowed in these exceptional cases is not specified in statute.
What then of the blacklisting cases? Some of the incidents identified on the files relate to incidents not three months earlier but three decades. It was obviously not possible to complain about being refused work due to your trade union membership in 1992 if the evidence only came to light in 2009. But when a blacklisted worker received their file in the post from the ICO; how long did they have to submit an Employment Tribunal claim?
Blacklisted workers didn’t have long to wait to find out the answer to that legal question. Between July and October 2010, three claims were heard at the Manchester Tribunal that would set the pattern for virtually every other case.
Howard Nolan’s blacklist file has entries that record how he was refused work on two separate Balfour Beatty sites: Pfizers in Kent in 2001 and in Newcastle in 2006. One of the applications for work was via the employment agency Beaver Management Services Limited (BMS). After receiving his blacklist file on 14 May 2009 and contacting his union, a solicitor and the Citizens Advice Bureau, Nolan completed the ET1 form himself on 28 July 2009. This was 11 weeks after receiving his file, well within the three months that he believed he had to make an application.
By the time he reached court, Nolan was supported by Unite and was represented by Nick Toms – but his arguments as to why the case should proceed were rejected, although Judge Brain admitted that ‘it is of course, impossible not to have sympathy with the difficult personal circumstances in which the claimant found himself’. He ruled in favour of Balfour Beatty finding the claim was ‘presented out of time and the time will not be extended to enable me to consider them’; the stated reason being that the claimant had ‘sat on his hands for too long’.12 An appeal by Unite was also rejected.
Balfour Beatty was back in Manchester for another Tribunal in August 2010, again in front of Judge Brain. This was the case of East London electrician John Cullinane. This time the written judgment describes how the claimant had acted ‘reasonably quickly’ and agrees that ‘these cases are complex and it would not be unreasonable to expect the claimant to present the claims himself without the benefit of trade union or legal assistance’.
Within four days of receiving his file, on 30 March 2009, Cullinane had contacted Unite, who had forwarded his file to their solicitors. The application was submitted on 14 May, only seven weeks after the file had been received. Yet the inflexible judgment found that:
‘This is an unfortunate outcome for the claimant who, I find, did all that he reasonably could himself to put in hand steps to have his claim determined. However, I find that a seven-week delay is simply too long to be reasonable.’13
In October 2010, an identical decision was reached in the UCATT-sponsored case of Phil McNeilis v Balfour Beatty. Judge Brain dismissed the claim by the carpenter and former shop steward, saying he and his solicitors had ‘slept on his rights’.
This harsh interpretation of time limits was to be repeated many times over the next three years, with Unite and UCATT members still having their claims dismissed as late as 2012. Of course, there do have to be time limits in legal procedures but legislation does not specify how much additional time should be allowed when it is not ‘reasonably practicable’ to bring a claim within the original three-month period; the decision rests entirely with the court. An excessive delay would supposedly place a terrible burden upon any employer. But when the blacklisting firms had deliberately hidden their illegal activity for decades, it is difficult to see how they would suffer any burden whatsoever by waiting a few days.
The lawyer Nick Toms reflected:
‘Ultimately, it was unfortunate the decision was taken to case manage all the blacklisting cases in Manchester. There seemed no good reason for this given each case depended on its own facts. Elsewhere in the country some judges had shown a great deal of sympathy for the claimants. However, it rapidly became clear that the Manchester Tribunal was going to take a hard line on whether the claims were presented in time. It was a very unusual situation but little leeway was offered and many cases were struck out without the merits ever being considered.’
Experienced lawyers consider the rulings by Judge Brain particularly harsh. He had stated that his overriding objective in looking at the cases was to ensure that they were dealt with justly, which meant
‘ensuring that the parties are on an equal footing; dealing with the case in ways that are proportionate to the complexity and importance of the issues; ensuring that it is dealt with expeditiously and fairly; and saving costs.’14
But it is difficult to square this when on one side were retired or ex-building workers with only the most rudimentary (if any) knowledge of the law; on the other side were blue-chip construction giants with expensive legal teams.
On a number of occasions the written judgments identify delays by unions and their solicitors. Someone untrained may not appreciate the nuances of employment law but lawyers are paid handsomely for their expertise. Where solicitors gave incorrect advice, those blacklisted workers who lost their opportunity to be heard in court have every right to feel aggrieved. However, the decision on whether or not to allow the blacklisting cases to continue was entirely at the discretion of the judge. These particularly unsympathetic rulings resulted in every single case heard by Judge Brain being denied the opportunity to have that evidence aired in court.
In addition to the time-limit issue, another major legal hurdle stood in the way of blacklisted workers. This was employee status: a crucial issue in UK employment law. You can only claim unfair dismissal, redundancy and other breaches of employment law if you are a direct employee. What then of a situation where an individual was blacklisted by a major contractor but was employed via a sub-contractor?
Michael Dooley v Balfour Beatty was one of the few claims allowed to proceed after the Manchester CMD. It became the first unfair dismissal claim to reach a full hearing at the Central London Employment Tribunal in January 2010. A majority decision found in favour of the company. This was despite documentary evidence showing that Balfour Beatty had supplied information to the blacklist database being shown to the Tribunal (which Judge Charlton described as ‘ghastly’ in court and ‘an abuse of people’s rights’ in the written judgment).15 Balfour Beatty did not dispute the blacklisting evidence. With commendable chutzpah, the company had provided the blacklist file as part of their bundle of documents. It argued that the information on the file was justification for Dooley’s dismissal from a West London building site in early 1993. The Tribunal decision turned on the question of employee status and found that Dooley was working for a sub-contractor called Bansal Building Company Limited and was not an employee of Balfour Beatty. Since only ‘employees’ are covered by unfair dismissal legislation, the claim was lost.
The Dooley scenario is typical of many of the blacklisting cases because most construction workers are employed by sub-contractors, employment agencies or are nominally ‘self-employed’. The reality of how the blacklist operated in the building industry is that the major contractors set up The Consulting Association to co-ordinate the sharing of information about trade unionists. It is the major contractors who exercise control on large projects. It was the major contractors who used the blacklist to deny employment to trade unionists who appear on The Consulting Association database. Even when they are not employing the workers directly themselves, they use their influence with the sub-contractors and the employment agencies to achieve the outcome of refusing employment to trade unionists and activists. The blacklist files are clear evidence of this. But as the major contractors did not directly employ the workers they blacklisted, they become removed from the legal remedy of unfair dismissal.
Another disturbing element of the Dooley decision relates to the truthfulness of the entries on the blacklist files. Much of the information held on the TCA database is wildly inaccurate or constitutes little more than malicious smears. Incidents are exaggerated out of all proportion. Terms such as ‘troublemaker’, ‘communist’ and ‘unlawful’ are used like confetti and without evidence. One file accuses a safety rep of arson, while another claims a blacklisted electrician attacked a site agent with a hammer. Both allegations are untrue. Hundreds are accused of participating in unofficial strike action or violence without the slightest shred of evidence. The lawyer for Balfour Beatty argued that ‘it is not an issue of whether the contents of the blacklist dossier were accurate or not’ but that after reading the information on Dooley’s file ‘any employer would be concerned’ and this would make the dismissal fair in law.
While the Tribunal found that Dooley’s claim for unfair dismissal failed because he was not a direct employee of Balfour Beatty, Judge Charlton mused on the information in the file:
‘If we had found that Mr Dooley had been directly employed by Balfour Beatty, we would have no doubt that Balfour Beatty as a subscriber to the blacklist would have consulted it with regards to his appointment… the correct test was to consider what was in the mind of the person making the decision to terminate employment when he took the decision. We would have decided that it was the contents of the dossier… and that the dossier principally refers to activity not within the protection of the statute but unlawful activity and whether those allegations were true or not it is the majority view that this would have given rise to the decision to dismiss.’16
So having checked Dooley against an illegal blacklist, even where information was completely untrue, if the term ‘unofficial’ was written on the file, the company would have acted within the law to dismiss. The judgment clearly identifies a weakness in the Blacklisting Regulations 2010, which only cover the narrowly defined ‘official union duties’. Even if they had been in place at the time, they would not have protected Dooley.
During 2010, there was a noticeable change of attitude by the unions and their solicitors. The original positive outlook altered as Thompsons and OH Parsons began receiving letters from the companies quoting the Dooley, Nolan and Cullinane decisions and threatening the claimants with costs. Solicitors started to telephone their clients to tell them that the union was no longer prepared to represent them because they were likely to lose on either time-limits or employee status. The blacklisting cases were being assessed purely on the legal merits of the cases rather than as an element of a wider campaign to expose the wrongdoings of the companies. What appeared to be lacking in the original evaluation of the Tribunal cases was any overarching strategic plan. In some cases there was a hastily agreed compromise agreement signed (the average settlements for these were around £1,000) but in most cases the claims were simply dropped.
For UCATT member John Jones, legal representation was withdrawn only a few days before his hearing was set to take place. The retired bricklayer was left with the option of representing himself, with the danger of costs being awarded against him, or dropping the claim. Like many others, he reluctantly agreed to withdraw his complaint, even though he had already paid for a hotel and train ticket to Manchester from his home in Kent (eventually reimbursed by the union). As it was the union lawyers who had submitted the Tribunal claims in the first place, there was considerable criticism by the disgruntled claimants.
Of all the Tribunal claims submitted, a grand total of five cases actually had their day in court, each time with more unredacted evidence disclosed by the ICO and the employers. To date, only three claimants have been successful at Employment Tribunal: Phil Willis, Paul Tattersfield and Steve Acheson. All three were successfully represented by Nick Toms and Unite.
The Phil Willis v CB&I case was based around the refusal to employ the steel erector on the Isle of Grain power station site in Kent in September 2007. The Unite member from Kent was one of the workers that erected the iconic yellow masts of the Millennium Dome and is a prominent trade unionist, having been the shop steward on both Canary Wharf and Heathrow Terminal 5. His wife Cathie is a well-known union activist in her own right.
Willis applied to CB&I by submitting an application form but also had his CV given to Ron Barron, the senior HR manager and Employee Relations manager responsible for recruiting labour on the site. Willis received a letter from the company saying that they were recruiting in the next three months but he was never contacted again. When his blacklist file was disclosed in 2009, it transpired that entries had been added from CB&I at the time of his application, even though he had never worked for the company.
The written judgment in the case shows how Ron Barron, the CB&I main contact for The Consulting Association, was a regular user of the blacklisting database. In the six months between April and September 2007 he had made 984 name checks at the cost of £2,164.80. Barron had actually introduced the blacklisting procedure to CB&I and is quoted as the source of the information added to The Consulting Association about Phil Willis in October 2007.
The judgment recorded its annoyance that despite being a key witness who used the blacklist as a matter of routine, Barron refused to attend the court case, even though he lived in Ashford, the very town where the case was being heard. The Tribunal ‘concluded that the sole purpose of TCA database was use as a blacklist’17 and Phil Willis became the first person to win an employment tribunal specifically for having been blacklisted by The Consulting Association. Willis was awarded £18,375 compensation for loss of earnings and hurt to feelings, of which £2,000 was for ‘aggravated damages’ – a pay-out almost unheard of in UK employment law. Ron Barron will appear again in this story when we look at allegations of blacklisting on current projects such as Crossrail.
Aggravated damages were also awarded to Paul Tattersfield following his successful Employment Tribunal decision against Balfour Beatty Engineering Services in February 2011. Tattersfield had been denied work by Balfour Kilpatrick (now BBES) at the Lindsey Oil Refinery, close to his home in Hull in September 2008. The key company witness in the case was Gerry Harvey, director of human resources at BBES and the firm’s main contact with The Consulting Association. The written judgment records Harvey’s evidence that he had personally attended a number of TCA meetings and that the company recruitment process was based upon ‘whether The Consulting Association holds any records relating to the applicant’.
The written judgment records that ‘at no stage in these proceedings has the respondent led any evidence that the claimant was anything but a good electrician’. The judgment reprints extracts from the TCA blacklist file, which it describes as ‘direct evidence of trade union discrimination’:
2007 December: above applied to 3221/M in North East and was not furthered. 3221/M main contact states that ‘serious concerns’ have been expressed. An active member of UNITE-amicus. A member of the North East J.I.B. committee. He has been around for some time.
Source: 3221/M main contact (SMcG)
Further note via 3293 M.C. BMcA states ‘He’s alright, a good electrician. Ex rugby league player – gave up due to serious injury. Could be a handful if he wants to be.’ Assumption from this is that B.McA would have indicated if above was sided either with D Simpson or EPIU faction. However, view was ‘he’ll be in the know and be demanding of everything that’s due and possibly more’.
Source: 3292 main contact (I.C.)
2008 September 25th: Applied to 3223/F directly for Lindsey Oil Refinery Project, Immingham, NE Lincs. Main contact EG given details. Co has not furthered.
3233/F = Balfour Kilpatrick (now BBES)
E.G = Elaine Gallagher who worked in the human resources department for Balfour Kilpatrick and was managed by Gerry Harvey.
3292 = Emcor Rail (previously Drake & Scull)
I.C = Iain Coates, previously Labour Manager at Haden Young and served on the national council for the Heating and Ventilating Contractors Association.
3221/M = Morgan Est
SMcG = Steve McGuire, head of Human Resources, previously with AMEC and currently owner/director of McGuire Construction based in Preston.
BMcA = Bernard McAuley, current Unite national officer for construction.
The Tribunal commented on Harvey’s evidence:
‘It was only in the course of cross-examination that we discovered that Mr Harvey had attended regular meetings of The Consulting Association and he must, by this fact alone, have been considerably more aware of its activities. Mr Harvey told us that, although he attended a number of these meetings, there were no agendas nor minutes. This raises questions for us and again we are not satisfied with Mr Harvey’s evidence.’18
Mary Kerr, the bookkeeper for TCA, has told the authors she personally typed up the minutes from TCA meetings. Up until January 2015, despite numerous requests in court and Parliament, not a single blacklisting firm had put any minutes into the public domain and all have claimed that they do not exist.
In his evidence, Tattersfield told how he had suffered long periods of unemployment since 2009 despite having made a very large number of applications. ‘These companies will have long memories and this will affect my future employment,’ he told the Tribunal; a sentiment with which they fully concurred.
Following the Manchester Royal Infirmary dispute, Steve Acheson, Tony Jones and Graham Bowker continued to apply for work but were repeatedly turned down, even though it was the height of the building boom. One of the applications Acheson made was to a company called Lindhurst for work on the Fiddlers Ferry Power Station site in Warrington, Cheshire. At 8am on Friday 11 July 2008, some 12 months after he originally applied, he received a phone call and was offered employment on site to start the following Monday with at least three months’ work. Four hours later, Mr Ambrose, the site manager, telephoned to say the job offer was withdrawn.
Lindhurst was a small electrical company with no connection with The Consulting Association but labour was being engaged via the employment agency Beaver Management Services Ltd (BMS), whose industrial relations manager was ex-Amicus official Jim Simms. The Unite legal department and Derek Simpson personally intervened on Acheson’s behalf with the result that, at the end of August, Simms offered Acheson a job as a supervisor. Simms denies that BMS, which was not a subscriber to TCA, had any involvement in blacklisting but rather contends that it was the main contractors that vetted all staff. He said:
‘I’m the only person who gave Steve a job in 12 years! What would happen is someone like Carillion would need 20 electricians but would ask us to send them 40 names and they would screen them themselves.’20
In the intervening six weeks since the original job offer, hundreds of workers had started on the project but Acheson had finally found himself with 12 months’ work ahead of him on a unionized site under national agreements. He worked for 16 weeks before he was made redundant. There is a matrix for redundancies under a national agreement. Over 300 workers made redundant on Fiddlers Ferry Power Station project were dismissed using that matrix. Acheson claims that, when it came to him, the national agreement was temporarily suspended and an ‘otherwise agreement’ made which led to his early redundancy, the matrix being immediately reinstated after the redundancy was issued.
After his dismissal, Acheson submitted an Employment Tribunal claim against BMS but before the case came to court the ICO raid took place and Acheson received his blacklist file, which included detailed surveillance of him at Fiddlers Ferry. This contained the following entry, which is formatted and reads suspiciously like it has been taken from the minutes of a Consulting Association meeting. A former Consulting Association chair has confirmed to the authors that Acheson’s name came up in its meetings.
Stephen Acheson, EPIU Activist – Fiddlers Ferry Power Station, The Wirral
A verbal job offer was made to Stephen Acheson by a small on-site electrical sub-contractor. This was for a night shift which was later abandoned. Following this, Acheson is understood to have gathered support from fellow workers for strike action. At the request of Alstom, the project managing agent, he was transferred onto the books of BMS, acting as labour-only supplier to the site. After attempts to divert him to several smaller local sites failed, Alstom resolved matters whereby BMS offered him a senior foreman’s role on site. This was effective from 18 August when Jim Simms [sic] of BMS was to go over his job specification with him.
Comment is that Acheson will keep his head down, provoking from a distance and letting others lead on confrontation. His aim continues as before, to end up in tribunal as part of a claim for trade union activities to further the ongoing EPIU grievances against employers.
An alternative view is that BMS has knowingly taken Acheson onto their books and are confident that in the role of foreman he will find difficulty in representing the men on site. Further thoughts suggest this may be a manoeuvre to contain in the north west the EPIU activist element of Unite, weakening any EPIU actions on major projects in London and the south east.
Of interest will be his overt or covert response if fellow EPIU colleagues apply to Fiddlers Ferry and receive no offers of work.
Simms is adamant that this information did not come from him but was put together by the industrial relations officer from the contractors. Simms said:
‘Alan Audley was a gobshite. What he’d do is he used to go to all the trade association meetings and say to someone “what’s going on?” Someone would say “Steve Acheson is on as a foreman at Fiddlers Ferry”.
But he would fabricate something and add something on like… oh, that is to keep him quiet.’21
Audley, who in retirement lives only a few miles from Fiddlers Ferry, refused requests by the authors to comment.
Finally, on 12 March 2013, Acheson won his claim for the original refusal of employment by Lindhurst due to his previous trade-union activities and was awarded £11,728.60 (after being out of work for four-and-a-half years).22
The only remaining blacklisted worker that made it to Tribunal was Dave Smith, whose 36-page blacklist file arrived on 23 April 2009. Within days of receiving it, he supplied UCATT with a copy for use in publicity. However, his former union declined to provide any legal representation for his claim. At the time, this appeared to be a major setback. Subsequently it proved extremely fortuitous.
Smith submitted the ET1 forms against three companies that were all part of the Carillion group: Carillion PLC, Carillion (JM) Ltd (formerly John Mowlem) and Schal International on 15 July 2009, 12 weeks after he received his blacklist file. On a summer afternoon in an Italian café opposite Congress House, Smith sat down to discuss his case with David Renton. They are an unlikely pairing. Smith is from a council estate in east London. He went to a comprehensive school where he failed his O-level English. All of the male members of his family work in the construction industry as electricians, carpenters, bricklayers, plumbers, glaziers and concrete wagon drivers. Renton, meanwhile, went to Eton and one of his uncles is Lord Renton, a former Conservative Chief Whip and the man ‘in the grey suit’ who told Thatcher when it was time for her to go. At the time Renton was a member of the Socialist Workers Party and a pupil barrister at the leftwing legal enclave Garden Court Chambers as well as being an active member of the socialist lawyer group, the Haldane Society.
This lunchtime meeting set the strategy for the entire case. Both agreed that the claim was unlikely to win in the British courts because of the employee status issue but viewed Keith Ewing’s Ruined Lives document as a route plan for manoeuvring a test case into the European Court of Human Rights. It is only possible to submit a claim to the ECHR once all domestic remedies have been exhausted. On the basis of running a test case to change the law as part of broader political campaign, Renton agreed to represent Smith on a pro-bono basis via the legal charity, the Free Representation Unit (FRU).
Looking back, Renton remembers:
‘Dave told me “I’ll be representing myself. The case is quite straightforward really. All I’m looking for is a barrister to bounce a few ideas off before I get to court.” And then we discussed the time limits and how they work, and how many respondents he was suing. I knew immediately that this was something that was going to take hours and hours of work.’
Other members of the Haldane Society assisted and after a few months Declan Owens, a softly spoken solicitor from Ireland who read law at Trinity College Dublin, agreed to act as solicitor via the FRU. Owens remembers why he got involved:
‘When I first saw the files, I was shocked by the level of detail involved and the epic scale of the conspiracy was really brought home to me. The phrase “the banality of evil” also came to mind when I considered how TCA operated. I was dismayed how casually employees and directors of these companies could conspire to prevent people from working to feed their families.’
Smith overcame the time-limit difficulty by requesting that the case be heard not in Manchester but in Central London, where the Employment Tribunal proved to be more sympathetic. The Tribunal granted a Third Party Disclosure Order allowing access to all the unredacted documents held by the ICO that referred to either Smith or the three Carillion companies. This would entail painstakingly sifting though the Consulting Association database held in the ICO offices near Manchester and identifying every page where the reference numbers for Carillion or Mowlem were recorded.
The ICO did not have enough staff to do this and the pro-bono lawyers suggested that Smith did it himself. This turned out to be another piece of good fortune. Four hundred pages of unredacted documentation were disclosed, including blacklist files, invoices, pages from the sales book that recorded dates of meetings, the Consulting Association constitution and the handwritten list to identify the code numbers for each company. The unredacted files meant that, for the first time, it was possible to read the names or the initials of the individuals who had supplied the information to the blacklist files. In addition, Smith was able to identify dozens of activists who had not previously applied for their files, including individuals who did not work in the construction industry, such as journalists, academics and even elected politicians.
One of the journalists with a blacklist file is Molly Cooper, one-time Executive Council member at the National Union of Journalists and secretary of the NUJ freelance branch. Cooper was shocked when she discovered she had a file.
‘As a photographer you are just there to cover stories, so I cannot understand why they should open a file on you’.23 Cooper was never aware of losing any work because of the file and now works in Higher Education.
Michelle Stanistreet, NUJ general secretary, said:
‘The union is very concerned that NUJ members carrying out their legitimate work as journalists have been targeted by blacklisting companies. People targeted because of their journalistic work or trade union activity is illegal and deplorable. The NUJ totally condemns blacklisting and the union will take action in support of journalists who fear their personal details were unlawfully recorded.’24
Smith’s tribunal hearing started on 16 January 2012. Smith was arguing that the mere placing of information about him on a blacklist was a ‘detriment’ which amounted to victimization due to his trade union activities and for health and safety reasons. Carillion admitted blacklisting the former UCATT safety rep, that their managers had supplied information to his blacklist file, that the reason was because of his trade union activities and because he had raised health and safety issues. They also agreed that the blacklist had caused him a detriment.
Dave Smith still lost the tribunal. This is because he had never been a direct employee of any of the Carillion companies but had been engaged via employment agencies when the blacklisting took place. As UK employment law only protects employees, the case was lost. The written judgment from Judge Snelson 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.’25
Smith, Renton and Owens were jubilant. This was the very outcome they had hoped for. Supporters packed into the Seven Stars pub, the historic lawyers’ haunt at the back of the High Court, to celebrate.
At the Employment Appeal Tribunal (EAT), cases are no longer heard based on the facts but on the interpretation of the law. Neither Renton nor Owens had ever appeared in the EAT before but John Hendy QC volunteered to join the FRU legal team in representing the blacklisted safety rep. Hendy represented the NUM during the miners’ strike, Unite in the British Airways dispute and pretty much every progressive and trade union cause in between. He is a campaigner as well as a lawyer, just as much a regular at union conferences as the Supreme Court. In 2013, he was awarded Employment Silk of the Year at the Legal 500 Awards. At a time when he could be naming his price, he decided to act pro bono in the Smith v Carillion case.
Damian Brown QC, representing Carillion, was a one-time protégé of John Hendy and even followed in his tutor’s footsteps by speaking at major leftwing meetings, sharing platforms with Tony Benn during the 1980s. He is now based at Littleton Chambers, whose website tells potential clients: ‘The “much in demand” Damian Brown comes highly recommended for his specialist injunction work on strikes and industrial action, as well as his commercial experience particularly in the sphere of “business protection”’ (emphasis in original).
In October 2013, the two QCs met each other at the EAT, at the appeal against the original decision. Hendy argued that blacklisting breached Articles 8 and 11 of the European Convention on Human Rights (ECHR) and that the Employment Tribunal had a duty under the Human Rights Act to interpret UK legislation in such a way as to uphold Convention rights. The written judgment by Mrs Justice Slade acknowledged the human rights violations and expressed concern that Smith ‘suffered an injustice from blacklisting’ but again found in favour of Carillion because the claimant was not directly employed by the construction transnational but by an employment agency.26
Smith has appealed the decision to the Court of Appeal where his lawyers are asking the judge to issue a Declaration of Non-Compatibility with the ECHR as Smith’s human rights under the Convention are patently not being protected by UK employment law. In June 2014, lawyers acting on behalf of Secretary of State Vince Cable intervened in the case and provided a written submission, which for the very first time, presents the UK government’s legal position on the human rights issue. 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).’27
This is the UK government admitting that blacklisting of trade unionists is a breach of Articles 8 and 11 of the European Convention on Human Rights and that 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, Hendy and 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.’28
The case is still ongoing.
Smith v Carillion is a vivid example of how the expense of litigation stacks the system in favour of big business rather than ordinary working people. It has currently had six separate hearings totalling 15 days in court, including three with a Queen’s Counsel. The pro bono team have spent far in excess of a thousand hours on the case and the legal fees alone would bankrupt most people if fully realized. Without pro bono legal support, the claim would have had little chance of achieving anything tangible within the justice system.
Of the five blacklist cases that reached the full employment tribunal hearings, the three Unite-backed cases of Willis, Tattersfield and Acheson won their claims. The two remaining cases of Dooley and Smith lost on the employee status issue. The increasing piles of unredacted TCA documents used as evidence in each case brought another small piece of the jigsaw puzzle into the public domain. It is without doubt that if the remaining ET cases had passed the time-limit test, a high proportion would have been successful in court. Even if they had failed, they would have generated publicity to highlight the inequities of the UK employment law system and provided cases to take forward to the European Court of Human Rights (ECHR).
The Consulting Association cases are not one-off incidents of unfair dismissal but centrally orchestrated prolonged victimization. The blacklisting files provide documentary evidence of deliberate systematic breaches of the European Convention on Human Rights, which has now been publicly acknowledged by the UK government. However, the Human Rights Act (HRA) is only applicable to public bodies. As the organizations that are breaching the convention are private companies, it is not possible to make a direct claim against them under the HRA. Once claimants have exhausted legal redress, however, they can take a case to Strasbourg because the respondent becomes the government for not giving them legal protection.
Only two blacklisting cases have been lodged with the ECHR. The first was for Terry Brough, a retired bricklayer from Liverpool. Supported by UCATT, John Hendy QC prepared the submission and Brough v The UK Government (case number 52962/11) is now being pursued.
Brough, though, remains sceptical about whether a change to the law would actually stop the practice:
‘You hear many times about blacklisting going to be resolved by legislation. It will never be resolved by legislation. You can’t get boots off an employer, that’s legislation, that’s lawful. There’s only one way to beat the blacklist and that’s traditional strong trade union organization.’29
At the time the Brough claim was submitted, it was hoped that dozens of others would be added to his case against the British government on a variety of different issues. The BSG even organized a meeting in July 2011 at John Hendy’s Old Square Chambers, chaired by Professor Keith Ewing, with legal representatives from OH Parsons, the Free Representation Unit, Guney Clark & Ryan and Unite to discuss this issue. In June 2014, a second application to the ECHR was submitted on behalf of Dave Smith in relation to his claim against the Carillion-owned subsidiary, Schal International. Unfortunately, because of the Employment Tribunal decisions, it seems likely that Brough and Smith will be the only human rights claims taken to the ECHR.
Howard Beckett, director of legal services at Unite, sums up the attitude of many:
‘The legal system of this country has been weighted against victims of blacklisting. No-one should be in any doubt that the Tribunals had the discretion to allow those cases to proceed and for claims to be heard on their own merit. Instead Tribunals ruled cases out of time and looked to turn members against their union. That the establishment again sided with employers is no surprise.’30
The Employment Tribunals may have failed but unions and blacklisted workers have used a number of other avenues to try to force the courts at least to hear their claims. The most high-profile of these examples required a little bit of luck to get started.
One of those blacklisted following his work on the Jubilee Line is an electrician called Bobby Hawkes, whose family knew a young Irish barrister called JC Townsend. Hawkes remembers, ‘When I got my file I showed it to JC and told him “I want to do these bastards”. He said, “OK, I’ll see what we can do”.’31
Townsend is engaged by a small solicitors’ firm in north London called Guney, Clark and Ryan (GCR) and works regularly at the High Court. GCR doesn’t usually take high-publicity human rights cases. It is a small law firm specializing in criminal and family law, with an office next to a Turkish restaurant. Townsend persuaded GCR to take up the blacklisting cases on a no-win no-fee basis. This was in the summer of 2009 when the unions were just starting to engage with Employment Tribunals.
Sean Curran, a partner at GCR, said:
‘This is the type of case that all lawyers dream of working on – a case where ordinary people have been trampled on by those in positions of power and privilege and one where the justice system appears to provide the means to redress the balance.’
The GCR case to the High Court is based around the legal notion of an unlawful conspiracy, the very thing for which the Shrewsbury pickets were sent to prison. Conspiracy comes into play when a group of people (or companies) participate in a joint venture to carry out an illegal act. By actively participating in the preparation and execution of the crime, all of the conspirators become equally responsible, regardless of whether they personally carry out the unlawful act.
The groundbreaking GCR case first conceived by JC Townsend argues that The Consulting Association was an unlawful conspiracy. Ian Kerr’s prosecution for breaches of the Data Protection Act and the successful tribunal cases won by Unite demonstrate the illegality. The covert nature of the Association’s blacklist, the invoices and blacklist files demonstrate the conspiracy. The argument for a joint venture is strengthened by the Association’s constitution which describes the body as an ‘unincorporated trade association’ owned and controlled by the member companies. If the court agreed with the unlawful means conspiracy argument, it would mean that every one of the companies that subscribed to TCA would be equally liable for the actions of all the other companies.
Initially only a handful of blacklisted workers contacted GCR, though one of the first was blacklisted safety rep Jim Lafferty. The electrician from County Roscommon had been a union activist on major sites including the NatWest Tower, Broadgate and the Royal Opera House. He was an active member of the JSC and a regular contributor to Builders Crack. At the founding meeting of the BSG back in 2009, Lafferty gave a report about the High Court claim and persuaded those present to put their trust in GCR. Lafferty was to play the lead role of liaison between the blacklisted workers and GCR until his untimely death in December 2010. His 12-page blacklist file recorded his contribution fighting for working people but he is another of the blacklisted workers who never got to see justice.
One difference between the Tribunal system and the High Court is in legal costs. At a Tribunal, so long as there is a case to answer, even if the claimant loses, they do not have to pay the other side’s costs. Only in exceptional circumstances, where the Tribunal considers a case to be a completely ‘vexatious’ mudslinging exercise or if the judge at a pre-hearing stage states the claim has no reasonable prospect of success, will there be costs awarded against an unsuccessful claimant. Without such a rule, the disparity of resources between a worker and their employer would allow companies to hire very expensive lawyers and simply scare the workers into dropping their claims.
In the High Court it is different. Whichever side loses pays the other side’s legal costs. Without funding, the High Court claim was going nowhere. The only option is a no-win no-fee agreement funded by an insurance policy to cover the costs should the case lose. This is not the kind of insurance you can get by ringing a call centre for a quote and a free Meerkat toy. Many insurance brokers offer such policies to cover minor legal claims but a High Court case for unlawful conspiracy relating to blacklisting was unheard of. To convince the money people, a QC needs to write a legal opinion about the prospect of success. Within weeks, GCR had managed to convince one of the superstars of the British legal system, Hugh Tomlinson, of Matrix Chambers, to act as lead counsel. Tomlinson literally wrote the book on human rights law and is QC of choice for celebrities in need of a super injunction. He is a founder member of Hacked Off and was the silk that represented victims of the News of the World phone-hacking scandal that led to the Leveson inquiry. Tomlinson not only agreed to represent the blacklisted workers, but he also agreed to do it on a no-win no-fee basis. This was a real coup and soon Tomlinson and Townsend had produced a written legal opinion on the likely success of the High Court claim.
The crunch moment came in March 2012 when the claim was lodged at the High Court and there was still no insurance scheme in place. Inevitably the claimants were worried but Sean Curran had invested his law firm’s time and money on the High Court case when no-one else was even talking about such actions and was now asking people to trust him. After a nerve-wracking few weeks, the Lloyds insurance syndicate QBE agreed to provide insurance cover for the High Court case. There was a huge sigh of relief from everyone involved in the legal action.
In the preparation for the High Court claim, Curran and Liam Dunne visited the home of Ian and Mary Kerr. Liam Dunne recalls:
‘It was hard to reconcile the fact that these warm and welcoming people were involved in a practice that we knew had affected so many decent hard-working men in such an egregious manner. It seems they were disengaged from the reality of the damage their actions had caused to people’s lives. They became tools to be used by the companies in their campaign to eliminate any dissenting voices.’32
After some persuasion, Ian Kerr handed over a number of documents that had not been seized during the ICO raid and the lawyers assisted in drawing up a draft witness statement. After meeting with Kerr on a number of occasions it became clear to GCR that Sir Robert McAlpine Limited were the key company in the entire blacklisting conspiracy. It was Sir Robert McAlpine Limited that paid for The Consulting Association to be set up and bought the historic blacklist files from the Economic League. Cullum McAlpine had been the founding chair of the Association who agreed Ian Kerr’s salary, BUPA cover and even a Mercedes from the construction giant’s car pool. David Cochrane, head of human resources at Sir Robert McAlpine Limited, was chair at its demise and was responsible for paying the fines and legal costs incurred by Ian Kerr. Invoices also show that Sir Robert McAlpine Ltd spent around £28,000 in the final year of its operation, requesting in excess of 10,000 name checks.
On 20 March 2013, GCR served notice at the High Court against just one defendant, in the case of Steve Acheson and others v Sir Robert McAlpine Limited. If the conspiracy claim were successful, it would mean that McAlpine would be held responsible for the actions of all of the companies involved, even though none of them were in court. From the claimants’ point of view it did not matter if 1 or all of the companies were in the dock – the evidence would be aired and, if successful, any award would be the same.
Sir Robert McAlpine Limited filed its defence in July 2013. The company admitted that it was a member of The Consulting Association but denied that there was a conspiracy intended to cause injury to the claimants. The defence then named 34 other companies that, if the ruling went against McAlpine, would be equally liable for any damages. The 34 companies are all subsidiaries of the eight construction giants: AMEC, Balfour Beatty, BAM, Carillion, Costain, Laing O’Rourke, Kier, Skanska and Vinci (including Taylor Woodrow).33 The eight companies are all now co-defendants in the High Court.
But the GCR claim was not to be the only one brought to the High Court. In mid-2012, the GMB held a meeting in Swindon Hospital among a group of low-paid ancillary workers. The workforce, who were mainly from Goa, in India, were complaining about the attitude of their supervisors. As the story unfolded, the health workers alleged that there was systematic racist bullying, including corruption, bribery and demands for payments if workers requested a change in shift when family members visited from abroad. When the workers complained about the alleged bribery and racist bullying, 10 of them found themselves disciplined by the employer and their union reps targeted. The GMB workers took 21 days of official strike action and multiple Employment Tribunal claims were submitted. All of the GMB strikers are employed by Carillion, which built and runs the hospital under the Private Finance Initiative, and the lead negotiator for the company was Liz Keates, who was named in documents disclosed at the Dave Smith tribunal. The files show that Carillion actually blacklisted workers during the construction of Swindon Hospital. Carillion denies the allegations which, at the time of writing, were still to be decided at an Employment Tribunal.34
In June 2012, GMB published a report on blacklisting by Carillion as part of their ongoing dispute at Swindon hospital. A year later, GMB national officer Justin Bowden announced to 500 delegates at the union’s annual conference that a High Court claim had been started against Carillion for conspiracy and also for defamation. Blacklisted GMB member Dirk McPherson, a welder from Redhill in Kent, was blacklisted after complaining about the lack of safety equipment at the Pfizer site.
‘If me and five other workers have started on a job where there is, say, 18 months’ work ahead of you, all of a sudden after two weeks I am no longer required but the other welders are still there. Or, conversely, you phone up for a job on the Wednesday, they say “can you start Monday?” then all of a sudden on the Friday you get a phone call saying the job’s been cancelled. When you apply for jobs with welders that are perhaps not as good as you and they are earning money and you are sitting indoors skint, it is not a great deal of fun.’
The GMB research discovered ever more of their members who were blacklisted, including national officer Martin Smith, who is chair of the Workers Beer Company.
On 29 November 2013, more than four-and-a-half years after the ICO raid, blacklisted workers finally made it to the Royal Courts of Justice. There were not enough seats for all the lawyers and blacklisted workers crammed into court, with some forced to sit in the aisles of the raised public gallery. As Unite and UCATT both announced their intention of joining the claim the week before, there was a plethora of QCs in court to hear Hugh Tomlinson describe The Consulting Association as ‘a blacklist for trade union and political activities’ and accuse the firms of being involved in ‘a conspiracy to injure’.
The opening shots had not yet reached full battle as the court put the case on hold to allow the two newly joined unions to fully prepare their cases.
On 10 July 2014, the reconvened trial saw the superstars of the legal profession plus nearly 50 blacklisted workers packed into the snug Court 65 at the Royal Courts of Justice.
Up until this point, every blacklisting case had involved individual workers seeking redress for specific incidences of dismissal or victimization. But the lawyers for the claimants – Hugh Tomlinson QC (Guney Clark & Ryan solicitors), John Hendy QC (Unite), Guy Vassall-Adams (GMB) and Matthew Nicklin (UCATT) – asked the Court to agree a Group Litigation Order (GLO), equivalent to a US class action. This was to allow all of the cases for the blacklisted workers to be heard together against all of the blacklisting companies. The Senior Master Leslie granted the GLO: effectively putting the entire construction industry on trial for blacklisting.
Stephen Kennedy, blacklisted electrician from Johnstone, Renfrewshire, and BSG activist, was in the court to see the proceedings and summed up his thoughts:
‘After five years of pursuing the beast, we have witnessed the first harpoon landed. I wish more of our number could have lived to see this seed of justice. But blacklisting is a malady not yet cured or beaten.’35
The case is now bogged down in procedural wrangling and the full trial is not expected to start until summer 2016. There are numerous legal strands to the High Court claim, including conspiracy, defamation, human rights and breaches of the Data Protection Act, with different legal teams arguing slightly different issues based on the same basic facts. The prospects of industry grandees such as Cullum McAlpine plus former and serving police officers being grilled by QCs at the High Court about their involvement in the Economic League through to the Consulting Association, is bound to turn this into a show trial. To paraphrase Roy Scheider, they will need a bigger courtroom.
Whatever the outcome of the trial or of the ECHR in Strasbourg, speaking on the steps of the High Court, blacklisted electrician Dick Grey summed up the thoughts of many about the way the legal system has responded to the blacklisting scandal: ‘They are very rich these people, and if they can just buy their way out of this, that is not justice, is it?’36