‘I want to make an apology, an apology for the way that you have been betrayed by the state, by the courts, by the Information Commissioner’s Office, by the political parties – all of them – by the police and by the media. All of the institutions of our state have utterly failed you and I am utterly ashamed to be part of a state that has allowed this to happen. You have been the victims of the worst conspiracy of silence and inaction that I have ever known in my parliamentary life.’1
The speech by MP and former minister Michael Meacher to blacklisted workers in 2013 sets out clearly that the failure to bring justice is borne by every section of the state. The more campaigners uncover, the worse the conspiracy appears: and still no-one has properly apologized. Court cases have revealed mountains of evidence, a TV documentary exposed ongoing blacklisting, a parliamentary investigation condemned the guilty parties: and still no-one has offered any redress. The truth is beginning to be exposed – but painfully slowly. So slowly that some blacklisted workers who played a key role in the campaign have passed away without seeing justice.
Five years after the ICO raid, nearly 50 per cent of the 3,213 people with files have still to be traced. By June 2014, 1,724 people knew they were on the blacklist, 467 of whom were identified by themselves or by their unions. The ICO contacted a further 1,257 and of those 776 have been sent their files.2
On 20 November 2013, the TUC organized the first ever National Day of Action on blacklisting under the slogan ‘Own Up! Clean Up! Pay Up!’ Protests were held around the country and blacklisted workers hailed it as a marvellous success. Blacklisted workers were at the front of union-organized events at the Scottish parliament and the Welsh Assembly building. UCATT protested outside every Sir Robert McAlpine office in the country while the GMB targeted the Carillion head office in Wolverhampton. In Leeds, two blacklisted pensioners, Sandy McPherson and Pete Shaw, were hospitalized when they were thrown to the floor by a building security manager described as being built like a ‘rugby league prop’.3 In the City of London, Leadenhall Street was closed for an hour during the morning rush hour as a Blacklist Support Group (BSG) and Unite protest spilled into the road outside the Cheesegrater development being built by Laing O’Rourke opposite Lloyds of London. Green Party leader Natalie Bennett joined blacklisted workers as they blockaded the Francis Crick research centre also being built by Laing O’Rourke just a few days after a young builder, Richard Laco, had been killed on the site, which refuses to allow trade-union officials access. TV cameras filmed union general secretaries and Scabby the Rat at College Green opposite the House of Commons with the BSG banner blocking the road as it led an impromptu march on parliament singing the Bob Marley lyrics ‘Get up! Stand up! Stand up for your rights! Don’t give up the fight!’.
The leader of the Labour Party, Ed Miliband, sent a message of support that praised ‘trade unionists and other campaigners [who] have worked tirelessly to keep the scandal of blacklisting in the public eye.’ He added: ‘Blacklisting is about a race to the bottom: lower standards, insecurity at work, fewer rights and worse conditions,’ calling on the government to ‘end its refusal to act and hold the inquiry into blacklisting that common sense and decency demand.’4
The TUC were demanding that the companies ‘Own Up!’ But to admit one’s sins requires a degree of honesty, self-criticism and contrition: attributes the firms seemed to lack. Former minister Nick Raynsford MP said that the industry was ‘in denial’ over its role in the affair. The introduction to the Scottish Affairs Select Committee first interim report on blacklisting describes the evidence given by directors of transnational companies thus:
‘We are far from certain that all of our witnesses have told us “the truth, the whole truth and nothing but the truth”, despite many of them being under oath.’5
This damning assessment of the firms’ response was one shared by campaigners.
A variety of justifications have been put forward by the companies to excuse their role in blacklisting. Harvey Francis of Skanska claimed that the company used The Consulting Association to improve safety on site. Others have claimed that the purpose of blacklisting was to combat theft or vandalism. On the entire blacklist database there are no more than 30 files that relate to theft or fraud: less than one per cent of the files. The overwhelming reason why people were added to the blacklist and denied work was because of their trade-union activities or leftwing political outlook. It is not against the law to be a member of a trade union or to hold political views that are left of centre.
Balfour Beatty is the only firm to have attempted to defend its use of The Consulting Association. Chief operating officer Andrew McNaughton expressed regret, emphasized that it never sought to suppress lawful union activity and enjoyed relations with unions. However:
‘The reason for our involvement with the TCA was to seek to mitigate and prevent any disruption caused on our construction sites throughout the UK by unofficial and unjustified industrial action. Unfortunately, this type of unofficial industrial action was prevalent for decades and was a symptom of an extremely difficult and turbulent industrial-relations climate which, in turn, had an adverse effect not only on our company but on our industry, our customers and the country as a whole.’6
While some parts of the blacklisting scandal have been investigated, others still remain completely in the dark. Loose ends remain floating in the air, such as what happened to all of the minutes of The Consulting Association meetings. Ian and Mary Kerr both admit typing minutes and sending them to the main contacts, yet despite 16 years’ worth of correspondence, to date not a single set of TCA minutes has been disclosed by any of the firms. On 26 January 2015, to comply with a High Court order, the defendant companies disclosed five small boxes of documentation as full disclosure of their 50-year involvement in the Economic League and The Consulting Association. The documents have yet to be submitted in evidence. If these documents, which would undoubtedly be used as evidence in legal cases, have been deliberately destroyed, this would have perverted the course of justice: a serious criminal offence. A bigger unanswered question is, who else was involved? What exactly was the role of the police and the security services? Given the revelations about the undercover policing of protest movements that the secret police thought were threats to democracy, such as environmental activists and the Lawrence family: were trade unions also considered a threat to national security? Even though documentary evidence exists that senior officers from an undercover police unit attended Consulting Association meetings, both the companies and police continue to suffer a form of collective amnesia on the matter. Investigations so far have only scratched the surface.
There remains unfinished legal business. The group litigation is still live at the High Court and is likely to go to full trial by the summer of 2016. Employment Tribunals are still in the system and claims submitted to the European Court of Human Rights are still waiting to be heard in Strasbourg. The blacklisting firms are fighting every step of the way, employing the most expensive lawyers money can buy to find legal loopholes that will excuse their actions. To this day, no blacklisting firm has made a public apology to the workers whose working lives they ruined. Mealy-mouthed press releases have claimed the firms were sorry for their involvement in The Consulting Association. The companies are only sorry for being caught. Far from owning up, the blacklisting firms will go to any lengths to protect the corporate brand.
The TUC also called for the companies to ‘Clean Up!’ This is of course very difficult, if you don’t think you’ve done anything wrong in the first place. Internal investigations were the opportunity to self-cleanse but at best discovered that staff may need training or a new clause should be added to a company policy. In response to questions from MPs Stephen McPartland and Kevin Hopkins, Costain, NG Bailey and Morgan Sindall said that new but undefined procedures have been introduced. Skanska gave them a detailed explanation of training on data protection for staff, highlighting that: ‘Ethical dilemmas are discussed at management meetings to keep the code of conduct and ethical behaviour high on the agenda within the company.’7
With complete unanimity, the internal inquiries found that no-one needed to be disciplined for their actions. If building workers take their tea break a few minutes early they are likely to be sacked, yet senior directors implicated in covert human rights violations likely to cost the companies millions of pounds don’t apparently merit even a verbal warning on their personnel file. An outside observer may think involvement in blacklisting brought ‘the company into disrepute’. Yet, as Will Hurst revealed in Building magazine, of the 39 alleged TCA contacts named by Kerr and known to be working, ‘78 per cent remain in senior HR roles within construction while 61 per cent are still working in HR at the same firms they were when, it is alleged, they interacted with TCA’.8
Dianne Hughes, for instance, is now HR director for the Big Lottery Fund. She had previously been a senior HR professional at Carillion and its then mechanical and electrical subsidiary Crown House, and a main contact for Ian Kerr. Others have moved up the corporate ladder. Paul Raby, named by Kerr, now sits on Balfour Beatty’s executive board. Sheila Knight, former personnel director for Drake and Scull on the Jubilee Line and assistant director of ACAS, now runs two consultancies called Anderson Knight Associates and Synatus. Her consultancy practice includes acting as a visiting lecturer, and teaching employment law and human resource management to MA students at the University of Reading.
The Chartered Institute of Personnel and Development (CIPD)carried out an investigation in secret, which resulted in not a single HR professional suffering any public sanction by the organization. In November 2014, Mike Emmott, CIPD employee relations expert, was a keynote speaker at the Manchester Industrial Relations Society 50th anniversary conference and told 200 of the UK’s leading academics that blacklisting was ‘a big fuss about very little’ and that he found ‘union moral outrage over blacklisting rather distasteful’.9 The employers’ federations have never even discussed the matter at their meetings.
The TUC also called for the companies to ‘Pay Up!’ Frances O’Grady, TUC general secretary, told the packed rally inside parliament:
‘It’s a disgrace that none of the companies involved have faced any criminal sanctions. It’s an abomination that many continue to use blacklists. And it’s an outrage that not a single penny has been paid to the victims.’
But finally, more than five years after the ICO raid, eight of the contractors involved in the blacklist scandal have launched a compensation scheme for workers on The Consulting Association database. It is no coincidence that the announcement came just days after the High Court granted a Group Litigation Order and that the eight companies involved – Balfour Beatty, Carillion, Costain, Kier, Laing O’Rourke, Sir Robert McAlpine, Skanska UK and Vinci – are the same eight defendants in the upcoming trial. The Construction Workers Compensation Scheme was decided upon as a suitably innocuous name for the scheme. The firms have employed the recently retired John Taylor, the former chief executive of ACAS, as a figurehead for the scheme, which has been devised by Richard Slaven, a partner at Pinsent Mason solicitors (the go-to solicitors for corporations involved in major corporate criminality, having previously specialized in representing bankers and the finance sector).
The blacklisting firms had first indicated their intention of setting up a compensation scheme back in October 2014 (only days before the initial High Court hearing).
If they thought that their scheme would be greeted with applause, they were sorely mistaken. Dave Smith, Steve Kelly and Roy Bentham of the BSG met with representatives of the Construction Workers Compensation Scheme at the offices of Pinsent Mason solicitors in the City of London. The meeting finished abruptly once the initial draft proposals for the scheme revealed that the vast majority of those on the blacklist were likely to be offered a one-off payment of £1,000 without an apology but with the proviso that all legal claims were dropped.
The BSG delegation walked out and issued a statement saying:
‘These are not proposals designed for genuine negotiations. It is a piss-take masquerading as a publicity stunt. We were not prepared to continue with the charade. They can shove their grand right up their profit margin.’10
Union general secretaries condemned the compensation proposals. Steve Murphy from UCATT called them a ‘travesty of justice’ while Paul Kenny from GMB declared contemptuously that ‘a few pounds would not buy off the bloodstains of the victims. Throwing a few quid on the table is not the answer here. We need that public inquiry and justice.’
The Select Committee produced a second interim report which argued that the firms should fully compensate the workers they blacklisted and that the level of compensation should not be set by the companies themselves but jointly with the trade unions.11 Lawyers for the claimant groups presented Pinsent Mason with a detailed 10-page letter which highlighted serious inadequacies and presented a series of proposals that they considered were needed to make the scheme acceptable and therefore allow for a jointly supported scheme in line with the Select Committee recommendations. These included some kind of positive action scheme to allow blacklisted workers back into employment, with compensation levels to be set at a level to compensate for human violations. Ian Davidson and the Select Committee were in constant contact with the scheme in order to encourage a collaborative approach.
Instead, when the scheme was launched, on 4 July 2014, it was on a unilateral basis, without the support of any of the trade unions, of the BSG or of the lawyers working on their behalf. But it would have been difficult to guess that from the public-relations blitz that announced the arrival of the scheme, which saw it trumpeted on the BBC flagship morning news programmes. The spin put on the launch and a letter sent to every single MP in parliament gave the impression that the unions jointly supported the scheme. So much so, that a group of leftwing MPs putting down an Early Day Motion in the House of Commons welcomed the development and ‘points out that the scheme has been agreed between trades unions and employers’.12
Only a few days later, the Select Committee called Nick Pollard, chief executive of Balfour Beatty, Andrew Ridley-Barker, managing director of Vinci Construction, and Callum Tuckett, group finance and commercial director at Laing O’Rourke, plus Richard Slaven from Pinsent Mason and Richard Jukes from the PR company Grayling to explain why the firms had completely ignored the recommendations of the MPs’ interim report.
Conservative MP Simon Reevell condemned the letter sent by the industry’s hired spin doctor Richard Jukes, which he said was ‘intended to mislead every member of parliament’ by claiming falsely that unions and representatives of blacklisted workers supported the scheme. Labour MP Jim McGovern told the industry bosses bluntly that they had ‘misled this committee and misled parliament’, while Ian Davidson accused the scheme of being ‘purely damage limitation’ rather than a genuine desire to show ‘repentance’.
The levels of compensation being offered by the scheme were also forensically taken apart by MPs and Richard Slaven, partner at law firm Pinsent Mason, was forced to admit that he could not quote a single authority to justify the pitifully low figures being offered by blacklisting firms that MPs identified as having a combined annual turnover of £34 billion.
The MPs suggested a number of changes that the firms said they would go back and consider, including extending the period of the scheme to three years to allow for the High Court trial to conclude before workers needed to make a decision. Ian Davidson suggested that the compensation scheme should exist purely to provide ‘interim damages’ which would be increased once the High Court trial finished. The MPs stated that, unless the scheme was drastically improved and the firms showed real attempts to clean up their acts, they should ‘be denied access to future public contracts’.
Despite grovelling apologies to MPs and promises to go back and make amendments to the scheme, no changes were made and the scheme remains fundamentally the same as when it was first mooted, albeit with slightly elevated levels of financial award. The scheme involves a Fast Track option offering between £4,000 and £20,000 based purely on the information written on the files (which are considered to be a true record of events). The £4,000 offer is 20 per cent less than the £5,000 minimum compensation provided under the 2010 Blacklisting Regulations, which were so roundly criticized for being inadequate. Alternatively, a Full Review option requiring a written submission detailing loss of earnings, offers a maximum award of £100,000. A retired judge would make the final decision on the level of compensation without any hearing. In December 2014, the High Court was told that the first 131 claimants in the group litigation alone had a combined schedule of loss in excess of £14 million.
The employers’ scheme sent letters or emails to blacklisted workers informing them of the package being offered. The emailed response of Jack Fawbert, blacklisted joiner, was typical.
‘£4,000 from you criminals for decades of human rights abuses that forced many decent people including myself out of the industry, leading to me suffering years of deprivation to build another career in education, seeing my kids on free school meals and the family nearly splitting up. And for what? For simply representing my fellow workers on a building site as a UCATT shop steward and legally appointed safety rep. This PR stunt makes no admission of guilt or gives me an apology for what you did to me and my family.’13
The most glaring omission from the compensation scheme was any offer of jobs. Pound notes and crocodile tears mean nothing until blacklisted workers can again provide for their families and stand alongside their fellow trade unionists on major construction projects.
The TUC slogan was ‘Own Up! Clean Up! Pay Up!’ So far the blacklisting firms have refused to admit their guilt, continue to employ those responsible and have offered compensation at such a pitifully low level that it has been universally criticized as a publicity stunt. The legal, political and industrial campaigning has achieved spectacular success, far in excess of what many had predicted, but real justice is still out of reach. Blacklisted workers believe that it is only through a full public inquiry that the depths of the scandal will be exposed. Every major trade union and the TUC has now adopted this as national policy.
Unite general secretary Len McCluskey has said:
‘Blacklisting is a scandal on the scale of phone hacking. Except it was ordinary working people whose lives have been torn apart by a conspiracy hatched by a greedy elite who were prepared to go to any length to attack decent hardworking men and women.’14
Many comparisons have been made between phone hacking and blacklisting. In phone hacking, transnational media corporations outsourced their illegal activity to private detectives and colluded with the police to spy on celebrities. In blacklisting, transnational construction firms set up The Consulting Association to outsource their illegal activity and colluded with the police and security services to spy on union and environmental activists. While there are many similarities with phone hacking, there are also important differences. Police collusion with phone hacking was apparently due to a number of corrupt officers taking bribes in order to pass on information to the media. Police collusion in blacklisting is not individual corruption but standard operating procedure by the state to target campaigners under the guise of ‘domestic extremism’. There was a ‘two-way exchange of information’15 between big business and the UK’s secret political police units. A full open public inquiry into blacklisting would inevitably touch on the political decision-making behind spying on trade-union activists and providing that information to companies operating an illegal blacklisting operation.
Blacklisting stands alongside the Shrewsbury pickets, the miners’ strike and Hillsborough in that the police colluded against working-class communities legitimately standing up for their rights. Those affected stand shoulder to shoulder with the Lawrence family, women who suffered sexual abuse from police officers, environmental activists, anti-racist campaigners and socialist political parties in calling for a fully independent public inquiry with a wide enough remit to cover all aspects of undercover policing against democratic protest and justice campaigns.
But blacklisting in and of itself demands a fully independent public inquiry. In July 2014, prime minister David Cameron reaffirmed his opposition to a public inquiry.16 A comprehensive analysis by Will Hurst in Building of construction companies and unions and their political donations shows Sir Robert McAlpine Ltd has been a regular contributor to the Tories.17 But only days after the Cameron refusal, the Labour Party national policy forum decided issues to appear in its General Election manifesto, with the following wording agreed on blacklisting:
‘If the current government will not launch a full inquiry into the disgraceful practice of blacklisting in the construction industry the next Labour government will. This inquiry will be transparent and public to ensure the truth is set out.’
Steve Rotheram, MP for Liverpool Walton, who has actively campaigned on the issue, emphasized the point:
‘There should be a full public inquiry. We need to know how far this went into the upper echelons of the establishment. How far did the collusion go between certain Tory donors, undercover police officers and certain politicians?’
On the Shrewsbury pickets, the Policy Forum agreed: ‘In the case of the Shrewsbury 24 we will approve the release of all papers concerning the Shrewsbury Trials and place them in the public domain.’
The workers who have been denied the right to support their families want to expose the conspiracy but also to make the guilty parties pay for their actions.
Professor Keith Ewing suggested what the level of criminal sanction should be:
‘Why is it in the case of phone hacking that you can go to jail for two years but in the case of blacklisting there is no sanction? If two years in jail is good enough for phone hacking, then two years in jail should be good enough for blacklisting as well.’18
Blacklisting is a disease that needs to be eradicated and those at risk need to be inoculated against any future contamination. But whether blacklisting has actually stopped is questionable.
Appearing before MPs, Jim Kennedy, highly influential political officer for UCATT and chair of the Labour Party NEC, said:
‘Kerr operated and oversaw the blacklist files in collusion with 40-odd major contractors. Do we think, following the raid and following Kerr’s £5,000 fine, that all the files disappeared, that they retired to the south of France or something like that? Absolutely not. It’s not the nature of the beast. They want the control. They want to control everything on site. They want to control the health-and-safety regime and organized labour there. So the nature of the beast wouldn’t allow it to just stop.’
Information Commissioner’s Office investigator David Clancy talked about ‘the stars being aligned’ when he led the raid on The Consulting Association – and there is a series of lucky breaks in this story. The fact that someone at the ICO happened to read the article in the Guardian about blacklisting and thought it worth dropping on David Clancy’s desk. That when Clancy visited blacklisted Steve Acheson he had that very morning received notification of another job offer turned down. That, when the ICO raided Haden Young, for some reason no-one tipped off Ian Kerr even though they had months to do so. That Kerr returned from holiday and put his files back in the office just three days before the raid. That a staff shortage gave Dave Smith access to the files – and that he then recognized a name that pointed towards police involvement.
As Mark Thomas, one of those on the blacklist, said: ‘The tragedy of this is we were lucky to get this. The tragedy is we have grabbed a snippet of this.’19 On numerous occasions the government asked corporations if they were behaving themselves, companies said they were, and that was enough to end any prospect of legislation. Even when legislation did make it on to the books it was not enacted. At every stage the benefit of the doubt was given to the companies and the evidence from thousands of blacklisted workers was marginalized. If ever there were a sign that regulations were systematically failing, it is in the case of blacklisting, because it took numerous lucky breaks to get this far. And if, in the future, such cases recur, what chance is there that they will be uncovered?
The Select Committee evidence has conclusively proven that blacklisting was in operation on the Olympics and Crossrail. The NRB (‘Not Required Back’) system is an open blacklist in the North Sea, while there is strong anecdotal evidence that similar practices operate in other sectors such as retail, the railways, airlines and banking. Experienced and highly qualified NHS whistleblowers have found it immensely difficult to find employment in the Health Service after exposing patient safety scandals. Yet despite all the indications of the practice being widespread across British industry, the regulators and the police seem unable or disinclined to carry out any inquiry.
Even those at the centre of the blacklisting operations do not think that blacklisting has stopped. Stan Hardy, former director general of the Economic League, told MPs:
‘The Consulting Association lasted for the best part of 20 years as a stand-alone but way-below-the-parapet operation. It was not recorded and was not registered as a company; it was operating as what I think is described as an unincorporated association. The League was a limited company, up front, easily identified and publicly known about; The Consulting Association was way below the parapet. Does that not beg the question that there may be more than one somewhere?’20
Some would like to present The Consulting Association as an aberration, exclusively restricted to a few bad apples in the UK construction industry. But blacklisting is a global phenomenon that has been going on for centuries. Wherever working people organize against big business, targeting of activists in an attempt to behead the movement is to be found. Stan Hardy told MPs:
‘Blacklisting has operated since the Pyramids were being built… I do not think there is an HR professional in the world who does not have a filing cabinet with a drawer in it that is marked “do not re-employ”.’21
Bertolt Brecht, Paul Robeson, Pete Seeger and Harry Belafonte are all superstars of the arts world whose careers suffered for their campaigning. McCarthyism during the 1950s resulted in harassment by the state and blacklisting by employers for those with ‘un-American’ attitudes, which often meant little more than being a left-of-centre trade unionist. The Hollywood blacklist gained global notoriety but thousands of local union activists in schools, engineering and car plants suffered too.
At the same time as the blacklist scandal was unfolding in the UK, Australia saw high-profile criminal trials brought by the Australian Building and Construction Commission against CFMEU union activists Ark Tribe22 and Bob Carnegie23 because of union meetings on building sites. In 2011, Mexican migrant workers were reportedly added to a Canadian government blacklist after they joined a union.24 In 2012 it was alleged that Swedish furniture company IKEA had used a security company to pay for access to police intelligence files in France in order to spy on customers and staff.25
In 2014, companies in Jakarta producing World Cup footballs for Adidas sacked and circulated a blacklist of 300 workers who supported union demands for better wages.26 In New Orleans, in the US, campaigners with the National Guest Workers Alliance and the Workers Center for Radical Justice have filed federal complaints against employers for blacklisting mainly Hispanic guest workers who joined a trade union.27 Denmark’s DR1 TV exposed blacklisting by the Atlanco Rimec employment agency, with offices in the UK and Ireland supplying staff to the construction industry and the NHS.28 The list goes on and on. The Consulting Association may have been an extreme example but far from being a rarity, blacklisting of workers prepared to stand up for their rights is used daily in the war between labour and capital.
Long before the ICO raid, workers battled against blacklisting, most of the time in small unpublicized skirmishes. Since 2009, the fight has come out of the shadows into the political arena. Blacklisted workers themselves have driven the campaign forward, pulling in support from their trade unions, investigative journalists, lawyers,politicians, artists and musicians along the way. In the political, legal and industrial sphere, the fight for justice is still ongoing and many issues remain unresolved. But what has already been uncovered means that blacklisting is no longer just an industrial-relations issue: it is a human rights conspiracy involving big business, the police and the security services.
The blacklisting scandal is not just about 3,213 construction workers or whether trade unions can operate freely in a supposedly democratic society. It is about young children who can’t go on a school trip. It is about the family heartache of an industrial accident. It is about the right of working people to have a voice.
The blacklisted workers cannot ignore the toll that blacklisting has taken on their family life. Nor do they underestimate the scale of the effort involved in the secret war to build trade unionism on building sites, but Paul Crimmins, blacklisted bricklayer, shrugged, ‘It’s a thankless task but someone’s got to do it.’