Blacklisting is a secretive, insidious and shoddy practice that has brought shame on our construction industry. Those who were responsible for it have yet to be properly held to account for their actions and the matter has fallen off the radar. It must be put firmly back on the national agenda.
It is important to state that there is still much to be proud of in the sector – look at the Olympic Park venues, Heathrow Terminal 5 and the new buildings that we see springing up around us on time and on budget in so many different communities. Let us also never forget why the sector is the success it is: primarily because of its construction workers. They build the offices and factories we work in. They build the homes in which we live. As a nation, we owe them a huge debt of gratitude, particularly when we consider those who have lost their lives working on construction sites in this country.
But there is also a dark side to the sector – anyone who has worked in it knows this only too well – that leads to good people being subject to the most terrible injustices. As a result, lives have been ruined, families have been torn apart and many have been forced out of the industry.
Blacklisting involves systematically compiling information on workers, which is then used by employers or recruiters to discriminate against them, not because of their ability to do the job, but because they have raised health and safety issues or been active trade union members. It has meant that people cannot find work and therefore cannot support their families – they cannot put food on their children’s plates – and the result is all the stress and upheaval that comes with that.
The extent of the blacklisting activity in the construction sector was exposed for all to see following the raid in 2009 by the Information Commission’s Office on the shadowy and secretive organisation called the Consulting Association. That was born out of a right-wing organisation called the Economic League, which was set up in 1919 to promote free enterprise and to fight left-wing thinking, to which it objected. The league, which blacklisted more than 10,000 people, was wound up in 1993, but its construction sector member companies wanted to continue this unforgivable practice and its activities, so the Consulting Association was born.
Forty-four construction companies made up the hall of shame that was the membership of the Consulting Association at the time of the 2009 raid, including five companies in the Amec group, Amey Construction Ltd, six Balfour Beatty companies, BAM Construction Ltd, Carillion plc, Kier Ltd, Laing O’Rourke Services Ltd, Morgan Est and Morgan Ashurst, which are now known as Morgan Sindall, Sir Robert McAlpine Ltd, Skanska UK plc, Taylor Woodrow Construction, and VINCI plc – to name just a few of the companies listed. In 2009, half of the 20 biggest construction companies were all named as being involved in the association. It did not just maintain lists and files on thousands of construction workers; the material that it collected included personal information, such as information on workers’ private relationships, in addition to whether they had raised health and safety issues, their trade union activities and so on.
It is worth reflecting on this: member companies were charged a £3,000 annual fee to be part of the Consulting Association and then had to pay £2.20 on top of that for each blacklist check on a construction worker. For the cost of £2.20, the association would be able to dictate whether a worker got a job and whether they could put food on the table that week. Worse still, taxpayers’ money was being used to inflict that misery on people. Blacklisting checks were carried out on workers on publicly funded projects, ranging from airport runways, the Jubilee line, the millennium dome, hospitals, schools, roads and Portcullis House on the parliamentary estate.
In addition to the blacklist checks, David Clancy, the Information Commission’s investigations manager, who carried out the raid in 2009 and is himself a former police officer, gave evidence to the Scottish affairs select committee that he believed that some of the information held by the association would have come from the police or security services, because of the nature of that information. One file features an in-depth analysis of an individual’s home circumstances and what his neighbours thought about him. I have seen some of those records, and it is clear that they contained information based on the surveillance of individuals away from construction sites. It is improbable that such information came exclusively from the construction firms themselves.
What about the legal protections for construction workers and the system of redress for victims? Although it was and remains unlawful to refuse employment on the grounds of trade union membership alone, at the time of the 2009 raid on the Consultancy Association there was not a specific prohibition on blacklisting. Following the raid and the emergence of the blacklist, the Labour Government acted to outlaw blacklisting and introduced the Employment Relations Act 1999 (Blacklists) Regulations 2010, which allow individuals to bring civil claims against those found guilty of blacklisting in employment tribunals. If successful, that can lead to compensation of between £5,000 and £65,300. However, the regulations were not retrospective, and there is no criminal sanction. In truth, I believe the Labour Government should have acted much earlier, because that was too late for many victims.
Perhaps more shocking still is the fact that the firms that set up the association and supplied the information to and accessed the blacklist were neither charged with any offence nor ordered to pay compensation to the workers. To date, not one director of any of those companies has been brought to book for what happened. That is an outrage.
In October 2013 a number of construction firms announced that they intended to establish a compensation scheme for workers who had been blacklisted. On the surface, such a move should be welcome, but there are many problems with the Construction Workers Compensation Scheme. It was brought together without reaching prior agreement with the unions – which, as I said, have been absolutely critical in all this– and it provides inadequate compensation. Applicants to the scheme are required to waive any future legal claims, and the companies involved do not have to admit liability or give an apology as part of the process. In fact, the workers were able to get a public apology only by dragging the construction firms kicking and screaming through the courts. I pay tribute to the Blacklist Support Group, some of whose members are here today, which secured an apology from the firms involved in the Consulting Association in the High Court, although many victims feel that the apology was half-hearted and insincere.
Serious questions remain about the role of the police services in the collection and passing of information to the Economic League and the Consulting Association. The undercover policing inquiry chaired by Sir Christopher Pitchford has said that blacklisting is potentially a matter within its scope. That is welcome, but not enough. It should be within the scope of that inquiry. There are many unanswered questions, and we cannot let this matter go.
As cases have progressed through the courts, it has become apparent that the blacklisting regulations need to be strengthened. For example, the extent to which it is possible for those who are not employed in the strict sense of the word but are self-employed to bring claims under the regulations if they have been refused work is unclear. That is important, because we know that full self-employment is an endemic problem and is rampant in the construction sector. Claims can be brought in employment tribunals or county courts, but the cap on compensation in a tribunal is £65,300. There is no cap in a county court, but to bring a claim in a county court there are added risks for a potential claimant because of the costs involved, and they need more resources. It is easier to do it in an employment tribunal, as there are not the costs consequences, but the claim has to be brought within three months of the alleged unlawful conduct, and sometimes people who have been blacklisted do not realise it for some time.
The upshot of all that is that the only legal remedy for some is a complaint to the European Court of Human Rights, based on the right to privacy in article 8 and the freedom of association in article 11. For all those reasons, the government needs to carry out a review of the law in this area to look at how it might be tightened up. All UK government agencies and devolved governments must require firms that have been involved in blacklisting to demonstrate how they have “self-cleaned” before being allowed to tender for future public contracts. The Welsh government have introduced that measure, and it should be introduced across the whole of the UK.
We need a full public inquiry into whether the intelligence services were involved in blacklisting because people have not seen justice and we do not know exactly what happened. We cannot allow a climate of fear to hang over our construction sites. No worker on any building or in any other workplace up and down this land should hesitate before reporting an unsafe site or a dangerous working situation. The bottom line is this: if people do not report their concerns and do not highlight dangers, people could lose their lives
Chuka Umunna is Labour MP?for Streatham. This article is an edited extract from a Westminster Hall debate.