The existence of a blacklist has, for years, been denounced as the thing of paranoid Trade Unionist conspiracies.
The practice of construction companies—large, trans-national, multi-billion pound corporations—keeping and trading names and lists of individuals who occasionally caused them bother, they said, was patently absurd.
This wisdom became received: mooted anti-blacklisting legislation was shelved by Tony Blair’s New Labour government in 2003 for the express reason that it would be folly to pass laws to solve problems that didn’t exist.
Even within Union circles, the existence of a “blacklist” as a physical, corporeal object was doubted: these companies spoke to each other; for sure, but who would be quite so stupid as to actually keep a list of the names of trade union activists.
This consensus was shattered in February 2009; men from the Information Commissioner’s Office raided work premises leased to an individual, Ian Kerr, who traded under the name “The Consulting Company”. There they found what they had been looking for; the thing of legend; the blacklist.
The blacklist contained the names of over 3,200 individuals. It contained details of their political affiliations, industrial action they had taken part in and testimonials from former employers as to the extent of their rabble rousing.
The name also contained a list of Mr Kerr’s clients, which read as a veritable Who’s Who of the construction industry, featuring companies such as Balfour Beatty, Bam Nuttal and Laing O’Rourke.
In the following months, both the scale of the practice and the effect it had had on the lives of blacklisted individuals slowly unveiled themselves. One of the most sinister elements was the extent of the British establishment’s complicity in the creation and maintenance of the blacklist: allegations made by police whistle blower Peter Francis that he had passed on information that found its way onto Kerr’s list have never been fully investigated.
Action was called for by the government, who eventually in 2010 enacted the majority of the regulations that had been proposed in 2003.
The meat of the proposed regulations in 2003, however, was to criminalise the keeping and using blacklists; elevating the practice from mere actionable civil transgression to punishable criminal offence would give the regulations the teeth they needed to eradicate the blacklist.
The New Labour government, by this time under the stewardship of Gordon Brown, kowtowed to the Business lobby and removed this provision from the 2010 regulations.
Mr Kerr was eventually prosecuted under the UK’s privacy laws however we believe the practice should still be instituted as a stand-alone offence in our criminal code.
A large portion of the truth is still out there and as yet remains unveiled. With the weight of the establishment clamming in on itself—and with allegations that the police themselves were or are complicit in the practice (which explains why the eventual arrest and prosecution of Mr Kerr was down not to the police but to the ICO)—brave leadership is required from any new government to combat blacklisting.
To his credit, Ed Miliband has promised a far reaching enquiry into blacklisting if he is elected.
We support Mr Miliband’s calls, and believe the inquiry should be judicial; that is, with the power to compel witnesses. It should be far-reaching and consider all the elements—no matter how big and powerful—to be called to give account.
The new government should act quickly to prevent any of the companies listed as clients of Mr Kerr from receiving any public money whatsoever. This needs to go beyond issues of just procurement and into all building and planning subsidies.
With all the major parties committing to combating the nation’s housing shortage, construction companies can expect the next five years to represent a boom period, irrespective of the result of the election.
This represents an opportunity not just to hit those involved with blacklisting hard in their wallets, but also to reward firms who have practiced good industrial relations.
The practice of blacklisting will likely continue. And history tells us that where the law changes in reaction to a shady corporate practice—whether it is blacklisting, illegal dumping or tax avoidance—the corporations will bring in their lawyers and accountants to help them stay one step ahead.
For this reason, it is necessary for the law changes to go further than to merely address the current problem; the changes need to anticipate what will happen in the future and how the companies will act differently to get around the current law.
There is unlikely to be another raid on the scale of that meted out to Mr Kerr. He was caught unawares, and other blacklisters will learn from his mistakes. For this reason, it may be the case that the government should amend the regulations to reverse the burden of proof in civil cases, leaving it up to the companies to prove they weren’t involved in blacklisting individuals rather than the other way around.
If legislation from the Westminster government is not forthcoming, there are still many steps that can be taken at both a devolved and a regional level. The Welsh assembly has created a Procurement Advice Notice to all public bodies in Wales, advising them whether and how they might legitimately exclude blacklisters from their invitations to tender.
The Scottish Government should not only follow the Welsh initiative, but also go further and take preventative measures from local or devolved government contracts being awarded to blacklisters.