The last time he had been seen was in the dock at Knutsford Crown Court in 2009. In the three years since, Ian Kerr had stayed where he preferred: quietly at home with his family. The companies that had employed him for 16 years had clinically severed all connections. Unknown to them, he had given an interview to The Times but for various reasons this had not yet been published. It was a hand grenade with a delayed fuse which would be some payback for those who had cast him adrift. That period of purdah was about to end. A committee of MPs was to give the investigation new momentum.
Astonishingly, this would be the first time anyone involved in the blacklisting scandal would have faced anything like serious questions. Companies had batted away queries via their press offices, with short carefully crafted statements or no comments. The Tribunal process had put a few firms in the dock to be cross-examined. The media, aside from the trade and radical press, had pretty much ignored the story. Trade union stories, when covered by the mainstream media, usually involve industrial action. It’s a simple story of barons versus bosses over better pay. Complicated issues such as health and safety, at the heart of many of the blacklisted stories, didn’t fit this narrative. Honourable exceptions were the Morning Star, Private Eye, Guardian, Observer and Mirror, with the last focusing on the related issue of the lack of rights for agency workers.
A comparison with the phone-hacking scandal is instructive. The scandal had been rumbling on since 2006 when the first reporter had been arrested. Then, in July 2009, four months after the ICO raid, the Guardian revealed that News International had made huge out-of-court payments to several celebrities over phone hacking. A further 3,000 people were suspected of being victims of tabloid intrusion. The timing and numbers are uncannily close to the blacklisting figures but the difference was that the victims in this case were generally celebrities. The results of the phone-hacking scandal were mass resignations, criminal cases and a public inquiry.
This is in no way meant to underplay the significance of the phone hacking scandal or the excellence of its reporting.1 However, no-one had paid a similar price for intruding into the personal lives of health-and-safety representatives working on building sites. So far the scandal had been contained, despite the efforts of campaigners. Some of the companies involved had hired PR firms skilled in managing reputation damage but an expected counter-attack never materialized.2 The likely deliberate policy was to create a vacuum and let the campaigners blow themselves out. It had taken three years but Kerr was about to fill that vacuum and the Select Committee was about to force the story on to the front pages and the front benches.
The Select Committee was the most intense scrutiny that Parliament had offered so far. When the activities of The Consulting Association were revealed it was natural that questions would be raised there. Unions quickly mobilized their sponsored MPs and an Early Day Motion was lodged on the Monday, the story having broken the previous Friday. A fortnight later Labour MP Mick Clapham secured an adjournment debate. It got half an hour and veteran campaigners on the issue such as John McDonnell, who was to raise this issue repeatedly in the House, and Jim Sheridan spoke. All were searching for ways to make sure it could not happen again and that those responsible could be suitably punished. Responding for the government was Pat McFadden. He started off by apologizing for the weakness of his voice and then said that the government took the matter very seriously and would look at it in detail. Wolverhampton MP Ken Purchase witheringly responded: ‘It is not the weakness of your voice that concerns me, but the weakness of the response that our government are making.’ McFadden’s holding statement did reveal that officials in his department had liaised with the Information Commissioner’s Office ‘at an early stage’ when they became aware of its investigation. It seems that liaison did not include passing on the name of Ian Kerr, which had been given to them back in 2007.
While early day motions and adjournment debates were the time-honoured way of raising issues, it was clear that something more substantial would be required. Ian Davidson was elected in 1992 for the old Glasgow Govan seat and, after boundary changes, now represents Glasgow South West. Davidson has had close support from trade unions – particularly those associated with Govan Shipbuilders, which remains a major employer in his constituency – and two of his election agents were full-time UCATT officials. One of the people Davidson beat to retain his seat in 2010 was Tommy Sheridan, who would subsequently find he had a blacklist file. Davidson became chair of the Scottish Affairs Select Committee in 2010 and the issue of health and safety was already something he wanted to investigate.
Sources have suggested that the inquiry was agreed to by Liberal Democrat and Conservative members as they guessed it would be no more than a rehashing of ancient history and in return they could get inquiries into areas that interested them. As it started to break new ground on the scandal, and as the press and public benches began to fill, the Labour members were joined by MPs from other parties as ever more high-profile witnesses gave evidence. As Davidson said: ‘It just kept on unravelling. It was the gift that kept on giving.’3
The Committee began taking evidence on 22 May 2012 from former Glasgow MP Maria Fyfe. She spoke about her experience investigating the activities of the Economic League. Three weeks later, Dave Smith gave lengthy evidence on his experience of being blacklisted and the issues raised by the Blacklist Support Group. Though Smith was from Essex and had no direct experience of blacklisting in Scotland, Committee chair Ian Davidson said it was useful to provide some national context. A fortnight later the Committee announced it was mounting a formal inquiry. Senior figures in the construction industry, along with past members of the Economic League and representatives from the human resources sector, were about to face one of the most damaging investigations into their involvement in blacklisting.
After Smith, two Scottish electricians – Francie Graham and Steuart Merchant – gave evidence to the Committee. The Committee could have heard from all sorts of people first – but it was the tales of those who suffered who were allowed to set the agenda.
Merchant, from Dundee, has the aggravation of not knowing what exactly was held on file about him. The ICO seized a list of names and a card index – but there are more names than cards and Merchant is one of those without all the evidence. He never expected to see his name on such a list.
‘I have never, in my whole working life, been disciplined for poor workmanship or poor timekeeping. In fact I have never been disciplined in my working life. To get something back saying that I was on a blacklist, I can’t even point at a company and say, “They must have put me on it for some reason”. But there’s nothing.’4
Graham, in contrast, had been able to recover his file, which ran from 1975 to 2000. The effect of his blacklisting, he said, was devastating.
‘I think it has had a massive impact on my family. As a matter of fact, I lost my wife seven years ago. I found it hard to get work in Dundee. Therefore, I had to move out of town, and I was out of town for a lot of years. We had no family; so my wife was left on her own in Dundee. That had a massive impact on her – a massive impact. She was in the house on her own. I couldn’t get local work. I had to work away. I have worked in England and Wales for years and years. I am near enough talking about the whole of my working life, maybe getting home every four weeks or six weeks for what they call a long weekend, but it is not a long weekend. You are just home and you are back on the train again. That had a massive impact on my life and on my wife’s life.’5
Merchant highlighted the impact upon his self-confidence.
‘There were two years during the Eighties when I couldn’t get a job at any place… it begins to get you down and you begin to wonder, “Why’s he getting a job? Why can’t I get a job? I’m as good as him.” Then you begin to get personal doubts, and you think, “Am I any good, or is it because I’m useless that I cannot get a job?” It does get you feeling… I am not suicidal but… I do know that I couldn’t get a job for two years for some reason or other. I still can’t get a job with any of the big companies like Balfour Kilpatrick, Baileys.’6
Merchant’s evidence shows that the blacklist was a blunt tool that couldn’t be disclosed and whose deployment could only be guessed at. In these cases it didn’t stop the men carrying out their legitimate union activities. Since neither were classed as poor performers – and since they judged themselves, and thought others did too, on their skill as electricians – it made no sense to them that they were on a blacklist. The disruption it caused them personally was never explained – they took it as part of the vagaries of the job.
Also giving evidence was whistleblower Alan Wainwright. He confirmed the secretive nature of the operation. At Carillion, he said, knowledge of the checking procedure was tightly controlled, with all name checks being co-ordinated centrally through the office of personnel director Frank Duggan. Although Wainwright submitted names to be checked, even he wasn’t aware that TCA held regular meetings with representatives from companies. This climate of secrecy was backed up by Ian Kerr, who said:
‘The information wasn’t just swimming around in an HR department. It was in the hands – very tightly controlled – of one individual, who, because of his or her experience in the industry, would know how to deal with that information.’
On TCA documentation this is the ‘main contact’ but on the files, the full names are not divulged, only their initials.
Between Ian Kerr and Alan Wainwright, the Select Committee was provided with a list of the company directors and human resources professionals that were intimately involved with blacklisting (listed in Appendix I).
Chairs of The Consulting Association (named by Ian Kerr)
1993-96 Cullum McAlpine (Sir Robert McAlpine Ltd)
1997-99 Tony Jennings (Laing O’Rourke)
2000-01 Danny O’Sullivan (Kier)
2002-03 Stephen Quant (Skanska)
2004-05 Trevor Watcham (Balfour Beatty)
2006-09 David Cochrane (Sir Robert McAlpine Ltd)
Ian Kerr’s wife Mary has told the authors that, despite the number of names coming through from subscriber companies, only a fraction ever matched a file. Her recollection is that on average only about eight names a month ever scored a hit. ‘You actually got a little thrill, a little bolt of adrenalin if one of them matched,’ she said.
In his evidence to the Committee, Wainwright suggested a similar ‘hit rate’. But he also said that at least one company was operating a parallel list that saved it the expense of having to check with TCA. He told MPs:
‘If a name came back as a “no”, then a marker would be put in the database to save us redoubling a check. I think that then makes Carillion a data controller legally. If you look at when I left, as I say, there were at most probably only five noes… Carillion are holding the data in that database, if they continued using it after I left, and I can’t see any reason why they would stop.’
Each evidence session was pulling back the curtain that little bit further. It was to prove vital, along with evidence from others, in union campaigns to target those responsible. A sign of the kind of revelations the Select Committee would provide came during the evidence from David Clancy from the ICO, who was one of the earliest witnesses to be called. A casual question from the Committee elicited the fact that the ICO had only seized between 5 and 10 per cent of the material from Kerr’s office. The ICO maintained that its warrant restricted it to seizing the information on the construction blacklist. The warrant issued by Manchester Crown Court authorized the ICO to seize material to achieve three objectives. The first was to ‘to inspect and seize any documentation that may provide evidence of the existence and operation of the blacklist in breach of the data protection principles’. The second was ‘to inspect and seize any documentation or materials relating to telecommunications service providers whose systems may have been used to facilitate the transmission of communications relating to the blacklist’. Finally it authorized the investigators ‘to inspect and seize any electronic media that may contain evidence of the operation of the blacklist’.
Under repeated questioning as to why they had left so much material, Clancy said:
‘I was just satisfied at the time. We went in there and looked for the information. We had spoken to Kerr and were satisfied that that was what we had gone in for. That was what was covered by the warrant.’
It failed to convince the MPs. Iain McKenzie said:
‘Forgive me, gentlemen, but it seems a strange raid. I am trying to put it in the context of what the police would do. If the police did a drugs raid, they wouldn’t go in, find a pill and say: “Right, that’s enough, let’s go”, and leave it at that. They would assume that that room had additional things to look at and so on.’
When Kerr came to give evidence a month later it would be clear that potentially vital material that would have been used as evidence in court cases had been left behind, allowing him to destroy it.
Kerr was accompanied by his wife Mary when he sat down to give evidence. Several police officers remained in the room to prevent any disturbance and Davidson came over to the public benches to warn against any disruption of the proceedings. It made for a tense start in the gilded committee room. There were to be fireworks – but they all came from Kerr. Over nearly four hours he set out calmly how the Association had operated, the names of those who had been his main contacts and the kinds of projects involved. McAlpine’s strategy from the day of the raid onwards to keep the fall-out focused on Kerr was in tatters.
Kerr revealed to MPs that McAlpine, Balfour Beatty ‘and possibly Skanksa’ had used the Association for their Olympic contracts. Other schemes for which companies had checked employees were the headquarters for GCHQ, hospital PFI projects, power stations and the Jubilee Line Extension. The ongoing multi-million-pound Crossrail project had been discussed by companies that subscribed to the Association, Kerr said.
MPs heard that the Association was established after Sir Robert McAlpine Ltd paid £10,000 to two of the Economic League’s directors for a list of names. Those directors, Stan Hardy and Jack Winder, would find themselves giving evidence before the MPs in the months to come. Like the scenes of the senate committee hearings from Godfather II, the names of the consigliori from the big construction families who took turns chairing TCA were all unveiled by Kerr. The last to hold the post was David Cochrane, McAlpine’s head of human resources. As an example of how close an interest McAlpine’s took in the Association, Kerr revealed that the company had paid his court fine. The money was paid to his daughters with instructions that they pay it on to their father in small batches to obscure its origin.
As Kerr continued to explain his role, it was clear that a number of leads had been established that would require further investigation. Speaking afterwards Justin Bowden, the GMB National Officer, said:
‘He blew off the lid which the construction companies like Carillion, Sir Robert McAlpine and Balfour Beatty had tried so hard to keep from coming off. They were clearly in it up to their necks.’7
The other witness who helped flesh out the conspiracy, albeit with a lawyer sitting by him and remarks calibrated not to prejudge pending legal action, was Cullum McAlpine. A director of the eponymous building giant, McAlpine generally works out of offices in Bristol. Described in one profile as ‘quite sharp, quite bright; quick on his feet’,8 he maintains impeccable social credentials with his membership of the Merchant Venturers – an exclusive club for Bristol businesspeople originally founded by slave traders.9 McAlpine lives in a manor house in South Gloucestershire, 15 minutes from the M4. According to Mary Kerr, it was a place her husband had visited once when he needed to deliver some items to the construction boss. She disputes the notion that McAlpine had a central role and certainly he attempted to portray his own role as hands-off. But MPs, in their interim report, said they were ‘not persuaded’. Indeed, documents seen by the authors show McAlpine’s signature and handwritten notes on agreements for how much Kerr should be paid each year right up to 2008. A former TCA chair interviewed by the authors described McAlpine as the organization’s ‘patron’.
Between them, Kerr and McAlpine gave the clearest explanation yet of how The Consulting Association operated. Kerr, under McAlpine’s patronage, made secret plans to put in place the successor to the Economic League’s Services Group – taking on the same clients, using the original files as a base, bringing to the new office the same filing system, as well as an administrative assistant from the League.
Everything was ordered around colour-coded files. As Kerr explained to MPs:
‘Each company had a main contact. Their details were kept in what was called a red binder – a red book – per company. It was by company reference number and by name. There was sometimes a second contact should that first contact not have been there for any reason. In addition to that, there was a blue book, which consisted of the personnel departments’ users, who were the day-to-day clerical users, who would be in charge of amassing those names for whichever trades the company was putting together for a particular project. Say they wanted 100 names or, say, 20 people; they would probably put an advert in and accept an application from 50, out of which they would probably eventually take 20. Part of the process of deciding who to take was to put those names through The Consulting Association.’
It was a two-way operation, with companies supplying information to Kerr, which supplemented his own research, as well as receiving names and information. One main contact told the authors that he never knew what was in the files – he just got a confirmation if a name matched a record.
Also colour coded were the indexes to the files. The orange folder was for mechanical and electrical, black was for industrial relations, green covered environmental groups and blue was for older names. A joke by Ian Davidson about the significance of orange and green to a Glaswegian passed Kerr by. Indeed, the by turns gruff, sardonic and penetrating questioning by the Scottish MPs appear to have unnerved a number of English witnesses. One of the most dramatic moments in Kerr’s evidence came when MPs returned to the issue of the files. It was almost by chance that Ian Davidson wanted to clarify why some of the names in the indexes didn’t have corresponding files. Kerr dropped the bombshell that files on around 200 environmental and animal-rights activists were among the material not seized by the ICO.
Those files in the green folder were subsequently destroyed by Kerr, along with the computer hard drives and the memory sticks used to hold material. There are also references in the files to others covering groups and these would have been general portraits of organizations or publications of interest to the subscriber companies. One example is the OILC, which represents workers in the oil industry. Another was for the rail union the RMT which had a number of people on the blacklist. None of those files were recovered. Former Special Branch officer Peter Francis told the authors that the set-up mirrored the way it managed its own intelligence files.
The Association had a clear structure, with a constitution, and meetings that only company directors were allowed to attend. Companies received copies of the minutes, according to Mary Kerr, who would sometimes type them up. Despite numerous court cases and questions in parliament, the companies have all repeatedly claimed that they held little or no documentation from their 16-year involvement with TCA. Although Harry Pooley, the main contact at Rosser and Russell, told the authors:
‘I’ve been retired nearly 12 years now and I’ve got a new life now and really don’t want to get into it. There were many many other people involved. I destroyed most of my records when I retired.’
TCA had a finance committee, chaired by McAlpine, which met in February and October each year in McAlpine’s Bernard Street offices near Russell Square. It also had separate regional industrial relations meetings. In London these would take place at the Stafford Hotel. Discussions at these meetings would be on a range of issues of current concern to members. Those who attended the meetings say that individuals were rarely discussed – though the names of well-known activists would come up. Minutes were sent out after each meeting but to date not a single set has been found by any of the blacklisting firms (although many of the blacklist files have entries that read exactly like part of a set of minutes). However, some topics were apparently off limits. Former TCA chairman Stephen Quant told the authors:
‘We never, ever discussed commercial issues because it is against the law. That would be criminal. You would normally discuss if you had trouble with disputes; you see, there were some nasty disputes.’
Dudley Barrett, Costain’s former industrial relations chief, told the authors he attended the quarterly Services Group and TCA meetings. He repeats Quant’s claim:
‘Very rarely did names come up at those meetings. It was people in the same kind of job discussing what was going on on their contracts. It wasn’t specifically finger pointing at anybody. Sometimes you would have someone say, “I had so and so and he’s on your job now. He causes a few problems, be careful about putting him on”. Other people would say “so and so is a carpenter but he’s not a very good one”.’
Although, in the same interview, Barrett admits the meeting entailed,
‘all the people at my level going through a whole box list of names saying “you can take him off now because he has passed the age or you can take him off because he has been on my site for so long. I can recommend him, he has been no problem whatsoever”. It was very clearly vetted along the way as well. There wasn’t anyone on there who didn’t deserve to be on there is the simplest way of putting it.’10
Kerr was well chosen for the work. A lot of trust was placed in him to ensure it operated efficiently and the bureaucratic procedures gave everybody clear rules to operate by. Kerr told MPs:
‘It was a system that was understood clearly by all. Part of my job was to ensure, for instance, to any new company came on board that I explained very thoroughly how it worked. Each of them was aware of the need, because it was, if you like, a secret organization, to keep its information. People were very good and very thorough in keeping to the rules and regulations that it had in its constitution, for a start.’
Kerr tried to maintain neutrality when it came to reporting back to companies: ‘I didn’t embellish. I didn’t put emphasis on certain things. I didn’t interpret. You could have dialled the office like the speaking clock, in a sense.’ There were, though, flickers of independence. Kerr said that some companies were more ‘hard-nosed’ than others; Balfour Beatty and Skanska were named. Kerr said:
‘If they sent a list of, say, 20 names in to us and we could quite clearly say, “No, we don’t know 19”, but there was one name where we had partial identifying features, like the name, the area they lived, and maybe a bit of the address and a bit of their date of birth but we couldn’t be positive, some companies we perceived over a period of time would think, “That’s good enough for us” and not employ them. We ceased to give that bit of information on that particular name back to the company, so we would say that we had 20 clearances.’
Asked by Pamela Nash MP if, given his time over, Kerr would do it again. He said:
‘I wouldn’t. Absolutely not. Is there anything that I regret, did you say? I would be truly sorry if we had ruined somebody’s life permanently but, as I pointed out, they were all in a position to seek employment for their trades and skills elsewhere in the industry. If it caused genuine hardship, then no, that’s not right. It was felt that these companies had a right to protect themselves, and by refusing employment they were not flagging them up openly to stop them getting work elsewhere. That is what I would come back to all the time. I would equally say that where it had ruined lives and it could be genuinely shown to have done that, then that would be a concern and a matter of regret for me.’
Ian Davidson said Kerr’s evidence was important because it made the process of blacklisting ‘real’ to people who otherwise couldn’t grasp how it operated. As for Kerr, Davidson said:
‘He was loading the train. Other people told him who to put on it, how to do it. He was hostile to the left but basically he was just operating the machinery. It was a job. He was not all that apologetic. He did think people deserved it.’11
Kerr, knowing that behind him sat men whose lives he had monitored for years, slowly broke the habit of a lifetime and revealed name after name. And then he was done. He and his family had been told they could leave by a side entrance but they were taken the wrong way and had to turn back and walk through many of those in the public seats. The day ended as it had begun, with Kerr forced to run a gauntlet.
Two weeks later Kerr was dead from an existing heart condition. He was at home correcting his evidence on the day he died.
Mary remains bitter about how her husband was treated – and that includes the Select Committee, which she says knew that he was ill. Kerr was due to have heart surgery in January 2013. Davidson said: ‘I think it was probably true that it was the writing of the evidence for us to clear his name that possibly kept him alive as long as he did.’12
Only two former TCA contacts, Alan Audley and Danny O’Sullivan, sent their condolences to Mary Kerr. Cullum McAlpine did, three months later. No TCA members attended his funeral.
Kerr’s evidence was dynamite but the Committee had to tread a careful line to make sure it did not stray outside the borders of its remit. Too much of a focus on blacklisting operations unconnected with Scotland could raise questions about the legitimacy of their work. However, it is clear that a carefully thought-out strategy kept the Committee heading in a particular direction. Former UCATT general secretary Alan Ritchie, now working as an adviser to the Committee, was one of a number of senior union officials who regularly met Davidson and other committee members to discuss this strategy. They agreed that certain aspects of the scandal were not going to be covered. One was any involvement by trade unions. Union officials were called but the question of collusion barely raised. Another was the involvement of the police or security services. That also meant no real analysis of why environmental or animal rights campaigners had been targeted.
Davidson told the authors:
‘We were quite ruthless in focusing on working-class people rather than being diverted into these issues. It took us into a whole range of other issues and there is already an industry there to pursue these matters and the danger is that they would hijack the question of blacklisting. Similarly, the question of the greens. I mean the whole middle-class constituency would love to think they had been blacklisted and would see it as a badge of honour and they would get in the television studios and be far more articulate and presentable than building workers and therefore the attention would be diverted.’
It didn’t mean that these issues were not raised. Ian Kerr and former Economic League members Stan Hardy and Jack Winder were all asked about their links with Special Branch.
The evidence given by David Clancy from the ICO to MPs was crucial in establishing the likelihood of police collusion. However, no representatives from the police were called and nor were any environmental campaigners. Uncovering those links would be down to a network of journalists and activists working outside of Parliament, who later on would expose a whole other murky side to the scandal. The Labour Party at its most senior levels has long had a troubled history on how to deal with the police and security services. The evidence that Labour officials have been spied upon since the Party’s formation is barely contested. Nor has that stopped members who had MI5 files obtaining senior positions in government; Harriet Harman, Patricia Hewitt and Peter Mandelson among them. However, the party is always sensitive to allegations that it undermines the work of those charged with protecting the state – and often overcompensates to try to destroy this canard.
If the Committee was going to produce a unanimous report then it didn’t want to raise issues which might drive a wedge between members. A strategy was identified early on that kept the blacklisted inquiry in the industrial sphere and framed it as one where companies operated iniquitously, for whatever reason, and had to be ‘shown back towards the path of righteousness’, as Davidson put it. As the investigation proceeded, the witnesses and questioning tended to confirm that interpretation of events.
The strategy behind the Select Committee approach was outlined in a report it issued on 14 March 2014. This said that it was up to the state at a national, devolved or local level, to ensure blacklisting does not recur by using its leverage as a contractor. Unless firms implicated in the scandal demonstrated that they had ‘self-cleansed’, and any bidders could show best practice, then they would be disqualified from publicly funded work. It defined self-cleansing as:
‘Various activities, including an admission of guilt, full compensation and other appropriate remedial steps. We believe that the levels of restitution should not be solely for the companies themselves to determine, but must be agreed after negotiations with the relevant trade unions and representatives of blacklisted workers.’
As for best practice, it suggested that the model should be the contracts agreed between unions and French energy firm EDF for the construction of the Hinkley Point C nuclear power plant.
‘We support their mechanisms for ongoing monitoring and reporting procedures for health and safety, as well as the commitment to direct employment and the establishment of an employment brokerage for all jobs on the site. We will be urging the UK and devolved governments to implement these standards on all publicly funded contracts in future.’
Perhaps the key change here is the one on direct employment. False self-employment had been identified by the unions as a major obstacle to maintaining wages and conditions and to workers asserting their rights at Employment Tribunals. However, the government rejected the main proposals in the report, citing European procurement rules and the need for ‘flexible employment structures’. Employment minister Jenny Willot said: ‘Our view is that an effective regulatory regime, along with the promotion of the benefits of best practice and a culture of transparent and responsible businesses, should guard against individuals being blacklisted from the outset.’13 The wearily familiar line was trotted out that the blacklisting regulations would be reviewed if evidence of the practice was produced. Davidson immediately announced that his Committee would carry on its investigations.
The tactic of targeting public-sector contracts as a way of putting pressure on the companies involved in blacklisting had been pioneered by the GMB. Although this is the union with the smallest number of members affected by the issue, it has mounted an incredibly effective campaign, backed by an astute media team led by Steve Pryle, to embarrass construction firms. Many of the blacklisting building firms are now providing all sorts of different services as the public sector has been opened up to private providers. Carillion’s expansion into the public sector includes supplying cleaning staff to the NHS. Carillion and the GMB were already locked in a dispute over the treatment of hospital workers in Swindon and in June 2012 the union issued a 26-page report with the unwieldy title Blacklisting – illegal corporate bullying: endemic, systematic and deep-rooted in Carillion and other companies. The report used documents from Dave Smith’s Employment Tribunal against Carillion to turn the issue from one involving an unidentifiable mass of people into something that resonated at local level. An analysis of the postcodes of 224 blacklist files enabled the GMB to create a perfect story for media dissemination across the UK. The postcodes covered most of the country’s regions, so that suddenly the blacklisting scandal broke out of the industrial heartlands. It gave an obvious hook for local media to write a story and for local activists to campaign for action.
The campaign to bar blacklisting firms from publicly funded contracts took on a life of its own when GMB general secretary Paul Kenny sent a copy of the report and a covering letter to every Labour councillor in the country. The first council to agree not to deal with blacklisters unless they could show they had reformed was Knowsley, followed by Hull. Tower Hamlets council in London became the first authority in the capital to say that it would not deal with companies involved in blacklisting. Shortly after, the Welsh Assembly announced that it was instructing 103 public-sector bodies, including local councils, NHS trusts and police organizations that they can exclude such companies from public contracts unless the firms have taken measures such as compensating victims of blacklisting. It is estimated that annual public procurement spending in Wales is £4.3 billion, with around £1 billion a year spent on construction.
John Wheeler was a rigger at Fawley refinery in Southampton but found himself unable to get work for 20 years. He had a blacklist file – one of an estimated 50 people from the Hampshire area on the TCA list. Unite general secretary Len McCluskey visited the city to highlight his case. Subsequently local councillor Andrew Pope pushed through a motion that saw the City Council pledge not to deal with blacklisting firms. More than 24 councils followed suit, including major authorities such as Bristol, Manchester and Islington. The London Borough of Islington is one of many where the blacklisting firms are already providing services to the local authority for building maintenance. Kier, for example, had set up separate subsidiary companies for various public-sector contracts of this kind. The blacklist file for Chris Murphy, who was the elected UCATT convenor for building workers employed by the council, includes insulting personal comments added by a manager when the council building maintenance contract was privatized and awarded to Kier Islington. Chris Murphy is another blacklisted worker who, sadly, did not live to see justice.
In February 2013 MSP Neil Findlay organized a summit on blacklisting in Scotland, where more than 400 people are estimated to be on TCA files. Findlay was one of several Labour MSPs, including Drew Smith, who had been pressing for the SNP-led government to stop public contracts going to firms implicated in blacklisting. In November of that year the Scottish government issued a procurement policy note to public-sector bodies saying they could end contracts if firms were found to be blacklisting or discriminating against trade union members. In March 2014 the Northern Ireland Assembly agreed similar rules.
Almost 100 public bodies have taken the symbolic step of passing a resolution opposing contracts going to blacklisting firms. But, in autumn 2014, the London Borough of Islington became the first local authority to throw a blacklisting construction firm off a public contract when they took the contract for council-house repairs back in-house from Kier. The £16.5-million-a-year contract had been carried out by Kier for the previous 14 years. In all, 140 former Kier employees are now directly employed by Islington Council. Islington resident Chris Clarke, blacklisted since being a TGWU steward at Vascrofts, responded to the announcement: ‘Marvellous decision! Not just the loss of the contract for the blacklisters but 140 taken on as direct labour. A good day for Islington. A bad day for blacklisters! Bye bye Kier.’
Labour councillor Gary Doolan:
‘As an elected councillor there are times when doing the right thing is easy. There was no other way to deal with this, but to send a message loud and very clear to any contractor wishing to bid for work in our borough, in that those contractors who are guilty of blacklisting or using the services of The Consulting Association, that unless these contractors can satisfy the council that they have now satisfactorily cleansed themselves, they will be excluded from any tendering for work. Islington is the first local council that’s made this statement. However, it should be made by the Local Government Association on behalf of every council, not just a minority. If it’s right for one council to stand up for workers, it’s good enough for all the others to take the same stance. Perhaps that way blacklisting will finally be eradicated.’
An attempt to stop firms involved in blacklisting winning public contracts had been made decades earlier, when bricklayer John Bryan was elected to Southwark Council in London in 1982. At Bryan’s instigation the Housing Committee began vetting companies that bid for work. Poor safety, lump labour and blacklisting were criteria for removal from the preferred contractors list. The response of the firms was not always positive. Bryan remembers what happened when one company was removed: ‘A few days later two big fellas come knocking on my door saying to me, “You’re Johnny Bryan, ain’t you? There are a lot of people really unhappy”.’ Despite this veiled threat, the contract compliance scheme continued for several years.
Decades later, John Bryan found that he had been blacklisted himself. His TCA file starts in 1979; the first entry records a speech he made at a Labour Party meeting and covers his years as a UCATT activist, elected councillor and parliamentary candidate. Bryan says:
‘I thought by being a councillor I could help that fight for building workers, for working people in general to improve our conditions and now I found I was being blacklisted for that as well.’
The political campaigning amongst elected politicians was beginning to make headway. The more direct-action approach adopted by the Blacklist Support Group – which involved everything from halting traffic on Oxford Street to handing out blacklisting ‘awards’ at construction industry events and at one point even attempting to perform a citizen’s arrest on Cullum McAlpine – had a mixed response from union leaders, being seen by some as useful and by others as counter-productive.
Union leaders’ strategy, exemplified in the Select Committee’s report, was to go for the contracts and establish a new relationship with the companies. UCATT general secretary Steve Murphy said:
‘If we politically get Labour into power we can then say [to the companies] that if you blacklist workers, as part of procurement exercise, you won’t get the job unless compensation is paid to blacklisted workers. Now, from my perspective, we can jump up and down, we can do all the demonstrations, but the only way you are going to hit them is in the pocket and procurement hits them in the pocket.’14
Murphy’s faith in the potential of a future Labour government to take action in this area was shared to varying degrees by his fellow union leaders and by MPs who had long campaigned on the issue. Since the government had failed to implement what it had promised in 1999 and then brought in what was widely seen as ineffective stop-gap legislation in the dying days of the Brown administration, there was understandable caution among many others. Nonetheless, hope was bolstered when shadow business secretary Chuka Umunna went on Radio 4’s Today programme in January 2013 to demand a full investigation into blacklisting.
‘To date, nobody has been properly held to account about what happened. We need a proper investigation as to the extent of blacklisting across the public sector and finally we also need to look at the law to see whether that is sufficient to actually protect people who could be victims of this or have been victims of this in the past.’
What was becoming clear was that Labour could count on a growing cross-party consensus. When Panorama screened its Blacklist Britain programme in June 2013, including allegations that the practice had been used during the building of the Millennium Dome and the Olympic sites, it offered political cover for those who wished to raise the issue but didn’t come from the left. Suddenly it wasn’t just activists who were making these claims. Actually, much of that programme’s material had been revealed previously by campaigners and journalists. However, as with Umunna’s appearance on Today, it took a flagship mainstream programme to make it acceptable for politicians to take the issue seriously. Suddenly campaigners found some unusual supporters. While at an awards night organized by the civil liberties group Liberty, where the Blacklist Support Group had been nominated for its work, the campaign was congratulated by Tory MP David Davies. The former Home Secretary revealed that his grandfather had been blacklisted while working in the mines.
Keeping a cross-party consensus was a key part of the strategy for the Select Committee so that companies would see no option but to accept the recommendations for action and Labour would feel emboldened enough to make this a manifesto commitment.
It also helped that the Select Committee had been treated to a series of woeful performances by witnesses from the construction and human resources sectors. Of particular note was the appearance by Stephen Ratcliffe, director of the UK Contractors Group (UKCG), one of several industry trade bodies. Described variously during his testimony as ‘shifty’ and ‘evasive’, Ratcliffe gave an insight into the blankly amoral approach of his organization and its members. According to its website, one of the UKCG’s principal objectives is: ‘To encourage contractors to work together (especially in health and safety and environmental issues) to promote change and spread best practice.’ Ratcliffe has run the UKCG since it was formed in 2009 and earns £120,000 a year. Before that, he headed another trade body called the Construction Confederation. Despite having been a civil servant in the Department for Trade and Industry in the 1970s and involved in construction for decades, he said that prior to 2009 he had never heard any hints about blacklisting.
Of the 32 members of the UKCG, 11 had been subscribers to TCA but Ratcliffe told MPs that blacklisting had never been raised at its meetings. It had been mentioned informally in an email to members but only because the Chartered Institute of Personnel Directors had been in contact suggesting a meeting about the issue. Despite allegations raised subsequently about blacklisting on the Crossrail project that would contravene UKCG’s ethical principles, it had not asked the consortium involved, BFK, for an explanation.
When asked why nothing had been discussed about blacklisting generally, Ratcliffe said it was still early days – though it was four years since the TCA raid had taken place. Ratcliffe agreed that blacklisting contravened its code of conduct but there was no automatic sanction for members who broke that code – indeed it appeared the code itself is pretty much whatever companies decided it to be. Ratcliffe did say, however, that he was sure the companies were embarrassed by what had been revealed by the raid and subsequent investigation. It turned out under further questioning that this assumption was based on reading the transcripts of evidence given by companies to the Select Committee because it had never come up at the UKCG. In fact Ratcliffe was not convinced that blacklisting had actually occurred. According to him, dealing with The Consulting Association ‘was clear evidence that there was a breach of the Data Protection Act. I don’t think there is yet clear evidence that they were blacklisting’. Ratcliffe also told MPs that his member companies had apologized for what happened but it turned out he had emailed this statement to them all and ‘five or six’ had replied and he assumed the rest agreed. Conservative MP Simon Reevell said:
‘Can I say that you are the most evasive and potentially dishonest witness I have encountered at this Committee – and, frankly, in 20 years of practising at the Bar?’
The UKCG does not have a regulatory function. Construction companies abide by various pieces of legislation drawn up by Parliament or from Europe. In some cases they might have agreements with unions on how they should operate. They may also have their own internal codes of conduct. The Select Committee exposed the weakness of these codes, which appear to be applied as a company sees fit and breaches of which provoke few, if any, sanctions. Only one person was removed following the raid. Stephen Quant left Skanska when it began investigating its links with The Consulting Association. Quant described the move as ‘mutually advantageous’ but was unable to say more because of a gagging clause. Other than that, there is no evidence of any employees being fired, demoted or otherwise punished. That includes those engaged in human resources, which has a much better established and more professional trade body than the UKCG – the Chartered Institute of Personnel and Development (CIPD).
Peter Cheese, chief executive of the CIPD, told MPs when he appeared that, as a result of the raid, his organization was investigating a number of its members to see if they had broken its new code of conduct. He said that it had voluntarily begun investigations into 19 members relating to blacklisting as a result of information in the public domain. By coincidence, the Blacklist Support Group contacted the CIPD on the very day its new code of conduct was published, asking it to investigate members named as being blacklisters. According to Cheese, the organization was going to do this anyway.
The professional body introducing a code of conduct after a blacklisting scandal has a sense of déjà vu about it. In 1988, when the Economic League was being exposed, the authors Hollingsworth and Norton-Taylor noted: ‘The Institute of Personnel Management, which represents most personnel directors, does have guidelines on “Standards of Professional Conduct” and a “Recruitment Code” for its members... one highly experienced former Personnel Director, an IPM member for over 20 years, did not even know the IPM had a code of conduct! There is no indication at all that the IPM is going to do anything about the practice of blacklisting by its members. Unless the government introduces rigorous reforms (an unlikely prospect), it will be up to officials themselves to take a stand.’15
However, while construction companies have said separately that they have improved their internal practices, it turns out that none of them have consulted the CIPD on this. The Select Committee report said:
‘All the information available to us suggests that most of the firms involved would have continued to use TCA and its sinister and odious practices had they not been caught.’16
Indeed, Mary Kerr recalls one company main contact ringing her husband several months after the raid to see if he would continue, as ‘there was a need for this checking’. Understandably, he declined to carry on.
When asked whether he thought that companies engaged in activity that is morally wrong should be debarred from public-sector contracts, the response of the UKCG’s Ratcliffe was: ‘This is governed by the EU procurement rules.’ This suggests that if the EU has authorized it, or not forbidden it at least, then that is all construction firms need to guide them on their behaviour.
If companies were looking for cover for their inaction by looking to Europe, however, that hope was misplaced. The Blacklist Support Group had been out in Brussels in September 2011 talking to MEPs about what role the European Parliament could take. It was to prove a successful new field of action. At the time there was no specific EU-wide legislation against blacklisting of individuals for ‘safety reasons’. However, many of the firms involved in blacklisting in the UK either had parent companies in other European countries or operated across the continent. These include Swedish firm Skanska, Bam from the Netherlands, Vinci from France, Ireland’s Laing O’Rourke and UK-based transnationals, including Sir Robert McAlpine, Balfour Beatty, Kier, Costain and Carillion. Two of those in that initial BSG delegation were Steve Acheson and Brian Higgins who had been dogged in pushing the issue with MEPs. They were able to present the files to the EU Commissioner for employment, social affairs and inclusion, László Andor. The visit had been arranged by Labour MEPs Glenis Willmot and Stephen Hughes, and the blacklisted workers also had backing in their European lobbying efforts from employment lawyer Professor Keith Ewing and the GMB.
In 2013 the European parliament voted in favour of an amendment to the draft data protection regulation that would make blacklisting on the basis of trade union activity a breach of EU law. It was only draft legislation and it took another year before it came to a vote. In March 2014, MEPs passed amendment 192 of the General Data Protection Regulation. This states that workers’ personal data, especially sensitive data, such as political orientation and trade union activities, may not be used to compile blacklists and ‘the processing, the use in the employment context, the drawing-up and passing-on of blacklists of employees shall be prohibited’. The Council of Ministers is still to consider the proposal.