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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 156-ii
House of COMMONS
TAKEN BEFORE the
Scottish Affairs Committee
Blacklisting in Employment
Tuesday 12 June 2012
Evidence heard in Public Questions 32 - 152
USE OF THE TRANSCRIPT
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Taken before the Scottish Affairs Committee
on Tuesday 12 June 2012
Mr Ian Davidson (Chair)
Mr Alan Reid
Examination of Witness
Witness: Dave Smith, Blacklist Support Group, gave evidence.
Q32 Chair: Could I welcome you, Dave, to this meeting of the Scottish Affairs Committee? As we indicated to you when we met privately, the Scottish Affairs Committee is interested in looking at blacklisting obviously in Scotland-because we are the Scottish Affairs Committee-but we recognise that it is necessary for us to take a wider view in order to assess what has been happening. Throughout the period of discussion, it would be more helpful than not if you were able to identify any particular Scottish dimension. If other House of Commons Committees want to pick up the general issue across the whole of the UK, that is up to them, but our remit is largely Scottish-based. I wonder whether you can start by telling us who you are, why we are seeing you and what experiences you have of blacklisting.
Dave Smith: Thank you very much for inviting me. My name is Dave Smith and I was originally a construction worker from London. I trained as an engineer and was a member of the construction workers union, UCATT, where I was a shop steward, a safety rep and a branch secretary for many years during the 1990s. I have been asked to come to speak and give evidence because I was also blacklisted for my trade union activities. I was blacklisted by an organisation called the Consulting Association, which was a conspiracy of 44 of the biggest construction firms in the country, including a number of Scottish firms.
Since 2009, I have been the secretary of the Blacklist Support Group, which is a network of blacklisted construction workers who have been blacklisted primarily because of their trade union activities. Our first meeting ever was in this building. John McDonnell helpfully chaired the meeting for us, and we set up a support group. Since then, we share information and have done campaigning. Hazards magazine, the well-respected health and safety magazine, runs an online blog for us. We have also brought in support from academics, lawyers, trade unions and investigative journalists, who have worked hand in hand with the support group over the last few years. We do a lot of campaigning at trade union events, but we have also had a private meeting in Brussels with an EU Commissioner, László Andor, whom Brian Higgins, Steve Acheson, Professor Keith Ewing and I visited to discuss blacklisting, with the help of some MEPs.
In addition, I have taken an employment tribunal claim against Carillion. Very few of the cases have ended up in full tribunal; my case did end up there. As part of my particular case, the court granted us a court order that allowed me to view the entire unredacted Consulting Association blacklist, so I have seen every single document on individuals that is in the files of all 3,200 workers. I am one of the few people who have seen them. Probably the only other people who have seen them work either for the Information Commissioner’s Office or for the Consulting Association itself. During my court case, over 400 pages of previously undisclosed material were given to the court. The variety of paperwork to which I will refer during today’s session is all in the public domain, has been issued in a court case, has been used in evidence and discussed in open court, or has been reported previously in the press. The reason that I am bringing it forward is that sometimes it has not necessarily been reported very widely in the press. Also, as the secretary of the support group, inevitably I get lots of information that is probably not widely known from blacklisted workers in a variety of industries and from solicitors and academics. That is why I am doing this.
Q33 Chair: Let us make it clear that the material that you give us is publicly available. It is our intention to place it on the Committee’s website, where it will be more publicly available. Can I clarify a couple of things? You mentioned 3,200 files. Is each of those on individuals?
Dave Smith: Yes.
Q34 Chair: Is that the entirety of the Consulting Association’s files, or is it only the part that was relevant to your case?
Dave Smith: No. Should I set out very briefly the background to the Consulting Association?
Q35 Chair: We are going to come on to that; I will come back to it later. Could you tell us about the impact that having been blacklisted has had on you and your family? Has it made any difference to your lives?
Dave Smith: Yes. My blacklist file starts in 1992 and runs through to 2005. It is 36 pages, which makes it one of the larger files. Virtually everything in my file relates to where I have raised concerns about health and safety, asbestos, toilets overflowing on building sites and a young lad falling off the third floor of scaffolding. In one page in my blacklist file-I think all of you have a copy of it-my union health and safety rep’s credentials, which are meant to give an individual union rep certain legal protection and certain rights, were photocopied with the company office stamp on them and sent off to my blacklist file. Throughout my file, there is nothing that mentions my doing anything other than raising concerns about health and safety, conducting normal trade union activities, giving interviews to various organisations and raising concerns about unpaid wages. Nowhere am I accused of doing unofficial strikes or anything like that; that just isn’t the case.
You ask how it affected me. During the first period in which I was on the blacklist, I found it almost impossible to get a job directly with a company. I could get work through employment agencies and sometimes through small subcontractors, but I could not get a job directly with any major contractor. I am trained and qualified as an engineer, and most engineers work for the main contractor rather than for small agencies.
During the building boom of the late ’90s onwards, to a certain extent that did not really make a lot of difference. I had the normal ups and downs of any construction worker. But there was a point around 1999 when the blacklisting was very persistent; even my blacklist file talks about needing to check whether I was trying to get on to jobs via employment agencies. Employment agencies used to call me on virtually a daily basis, but that completely dried up overnight. When I did ring companies to ask whether they had any jobs for me, I remember an employment agency telling me at one point, "There is no point in you ringing us ever again because we are never going to employ you through the agency again, because on our system you are coming up as code 99." When I asked what code 99 was, they just said, "One of the big firms has rung us up and told us never to employ you or put you anywhere." Nowhere in my blacklist file am I accused of poor workmanship or of not being competent at my job; I was quite good at my job. From 1999 onwards, it became absolutely obvious that I could not get a job.
For my tribunal case, I had to do a schedule of loss, to work out how my income had been affected. In 1999, my income was in the region of ₤36,000; in the year 2000, my gross income, before tax, was ₤12,000. Within a 12-month period, my income was cut by two thirds. This was in the middle of a building boom, when the industry was crying out for skilled labour. There were adverts in the newspapers all the time, but if I ever applied to get a job I could not get one at all. I was a qualified engineer in the middle of the building boom, and my kids were on milk tokens.
A while after it became obvious that I was never going to get a job as an engineer, I got a job with someone I know who works in the industry and worked as a carpenter for about 18 months. To start with, that was okay-we worked together for 18 months-but it reached the point that I could not get a job even as a carpenter. Both the person I was working with and I would turn up for jobs; he would be given a job, but I would not, without even walking through the door. It was just so obvious what was happening, but you can’t really prove it at the time. Now, you will see that the later pages of my blacklist file say, "He is now working as a carpenter. Check whether he is trying to get on your job as a carpenter."
It had a major impact. Inevitably, it puts pressures on your family life and on trying to pay the mortgage. In the industry that I had trained to be part of and I wanted to be part of and where I was quite good at my job, I couldn’t do that any more. In 2001, it reached a point where, physically, I could not pay the bills. I made the decision that I could either carry on in the building industry, trying to fight this, or try to do something else. In 2001, I got a job working in further education, where I now teach.
Q36 Chair: Can I ask one question about your file? You mentioned that it says nothing other than about your involvement in health and safety and other industrial matters. Can you remind me whether it makes any reference to political views and opinions?
Dave Smith: It does. I have 36 pages. On a couple of pages, they talk about my politics, which have always been left of centre; I make no apologies for that. They make the point that I am a member of a number of organisations, including the Construction Safety Campaign and Militant. I make no bones about it-when I was a young man, I was a member of Militant, but at the time all this was going on I wasn’t. In 1999 I was not a member of that organisation. In all honesty, all of the information in my file, when we talk about how it gets compiled, was compiled by managers on building sites. I would raise an issue about toilets or asbestos, and a manager on a building site would send that information up to their head office. The head of HR for that particular company would pass on the information to the Consulting Association. It was always about what I was doing on building sites, really.
Q37 Chair: Can I just clarify something? You made a sort of leap, as it were, when you said that the information went from the building site to the head of HR to the Consulting Association. How do you know that that was the route?
Dave Smith: Because in my employment tribunal case, Carillion told us that that was the route. In other employment tribunals, companies have admitted that that is the route by which the information got into the files.
Chair: Fine. There will be a number of points on which we ask you just for clarification. We want to be clear about whether what you are saying is an assertion or is supported by documentary evidence. Either after we finish this session or at the end of it, you may want to come back to confirm where some things are, if that has not been entirely clear.
Q38 Mr Reid: Dave, thanks for coming along this afternoon. I want to ask you about your experiences with the courts. Can you tell us what it was like trying to sort out the matter through the courts?
Dave Smith: There are a number of issues. I took an employment tribunal case against Carillion and a number of its subsidiaries: Schal International, which is a wholly owned subsidiary of Carillion; and a company called Carillion JM Ltd, which used to trade under the name John Mowlem. First, there was a very big dispute about physically putting cases into the tribunals on time. It may be common knowledge that you get three months in which to complete an employment tribunal form, but all the incidents that happened with me and other construction workers on the blacklist happened in the 1990s. The three months was miles past.
When we first went to court, the president of the employment tribunal sent every single blacklisting case to Manchester, basically because they are unusual; they are not the kind of thing that happens every day; it is very unusual and involves a piece of law that is not very common. So all of the cases got sent to Manchester. I remember attending a case management discussion where there were about 50 claimants in the same room at the same time. I imagine that, of those, 45 of them-probably 95%, as more and more have come through-were declared out of time, because the incidents happened so long ago. It was a very big fight even to get to a full merits hearing. The vast majority of cases did not even get to a full merits hearing because the employment judge in Manchester ruled them out of time. That was the first hurdle that we all had to get over. I managed to get over it.
Q39 Mr Reid: How did you manage it when the others failed?
Dave Smith: I think that I have a fantastic legal team, who are acting for me pro bono. I think that they were just very good and efficient.
Q40 Mr Reid: What were the grounds on which they managed to persuade the judge to hear your case?
Dave Smith: I put in my tribunal paperwork virtually three months after I physically got my file because, incorrectly, I assumed that the three months would start from when I got my file. The law does not actually say that; it says that it starts from when the incident happened, which was back in the ’90s. If you get some information that comes through later, you have to put it in as quickly as is reasonably practicable. I spent the three months running around trying to get some advice. I am no longer a member of any of the construction unions because I do not work in the industry any more, so I went to some of the construction unions. Because I was making an effort to find things out and preparing stuff myself, which I then put in late, the judge allowed my case to go through, but the vast majority of the other cases did not even get to a full merits hearing. This is a bit of a technicality, to be honest.
Q41 Chair: Can I be clear about that? The others were put in more than three months after they had had their files.
Dave Smith: No, less than three months after they had got their files. All of the cases were put in less than three months after they had got their files-some only a few weeks after they had got them-but the judge still ruled them out of time. I think that it is a disgrace.
Q42 Chair: Because that related to the incident.
Dave Smith: Yes. Bearing in mind that most of the people who were filling these in were ex-construction workers, very often filling them in on their own, personally I think it is a travesty because, even if they were not going to win in court, the opportunity to raise it in court has been denied them.
Chair: Okay, we understand that issue.
Q43 Jim McGovern: What was the justification for refusing these applications?
Dave Smith: Because the strict interpretation of the legislation-about which I knew nothing at the time, but in which I have now, unfortunately, become an expert-says that the three months starts from when the incident happened. If the incident you are complaining about is a time when you were dismissed because you were a trade union rep and that is recorded in your blacklist file, but the incident happened in the 1990s or in 2002, the three months starts from that point. The clock does not start three months from when you get your blacklist file; it starts 10 years ago. We are miles past it. In exceptional circumstances, they are allowed to grant you an extension of time.
Q44 Mr Reid: Did your lawyer persuade the tribunal that your circumstances were exceptional?
Dave Smith: I put on record that my lawyers, David Renton and Declan Owens, who are acting for me pro bono through the Free Representation Unit, managed to persuade the judge, and we were allowed to go to the full merits hearing.
Q45 Jim McGovern: Surely if you are taking a company to a tribunal on the basis of unfair dismissal, you have three months from the date of your dismissal-when your contract expired. You are saying that that was refused.
Dave Smith: Because all of the incidents happened back in the ’90s. Some of them were unfair dismissal, some were failure to appoint, and some were detriment because of trade union activities. To be honest, until you got your blacklist file, you would never have known about them. It was only once you got the file sometimes that you knew the reason why you were dismissed or what the companies were doing to you. At the time, you would just have thought, "Oh, I have lost my job", and off you would have gone. Only 10 years later would you get your file, which gives the reason why you were sacked. Because they never thought that the documents would ever be seen, they were quite blatant about what they wrote about people in them.
Jim McGovern: Right, I see.
Q46 Mr Reid: Having overcome that hurdle, what happened after that?
Dave Smith: When we went to the full merits hearing, the claim that I put in was for detriment. I was claiming victimisation for trade union activities under the Employment Relations Act 1999-no, the Employment Relations Act deals with health and safety; it was under TULRCA, which is the Trade Union and Labour Relations (Consolidation) Act 1992. I cannot remember the section, but it deals with victimisation for trade union activities. We were arguing that merely putting information about me into my blacklist file, and the fact that this information was then shared among all of the biggest construction companies in the country, was a detriment to me, and the only reason they had put the information into my blacklist file was because of my trade union activities.
On the very first day that we went to court, Carillion handed in a document that it had prepared jointly with us in which it conceded that it had blacklisted me, that its managers had supplied the information to the blacklist file, and they had done so because of my trade union activities and because I had raised health and safety concerns. Its entire defence in the court, and the only thing that, effectively, the court ended up talking about, was that, because I was not employed directly by these companies-Schal International, Carillion JM and Carillion-but was employed via a subcontractor or via an employment agency, I was not protected by law. It had accepted that it had done all of the stuff against me and that it had been the company that had put the information on my file, but the entire issue of whether I won my case turned on the question of whether I was an employee of these companies. Under the legislation, you have to be an employee of the company. Because I worked for a subcontractor and for an employment agency, I lost the case.
Q47 Mr Reid: Could you have taken the employment agency to court?
Dave Smith: To be honest, I think that that misses the point. The employment agency that I was working for was a small agency. It consisted just of an engineer who put me through his books and whom I have never met. He was not the person who was blacklisting me. The people who were blacklisting me and putting the information into my file were multinational companies. It is not the people at the bottom end of the food chain, if you like, who are doing the blacklisting; it is those at the top end-the multinational companies-who are doing it. Basically, the individual employment agency was just doing as it was told. I would not have wanted to take it to court, because I do not think that it is the guilty party. The guilty party is big business-the major contractors, who have been the people driving this through.
Q48 Jim McGovern: Surely if the multinationals or big business managed to walk away from the tribunal saying, "Okay, we accept that we did that, that and that, but we are not to blame because we are not Mr Smith’s employer", and you continued to seek some sort of redress or justice, you could have taken the agency to a tribunal and, possibly, won.
Dave Smith: Even then I am not convinced, because what we were arguing for was detriment. It was the placing of the information in my blacklist file that was causing me detriment. The people who put the information in my blacklist file were the multinational companies, not the agency. The agency has never even heard of the Consulting Association. Most of these small subcontractors have never heard of it. The people who were organising this blacklisting conspiracy were the big multinational companies, not the little outfits. If I am arguing that the information in my file is a detriment-
Q49 Jim McGovern: I realise that entirely, Dave, but were you left entirely without any sort of redress? Could you have said that you would take the wee small agency to court over this?
Dave Smith: For what we were doing there, even then, no.
Jim McGovern: No?
Dave Smith: No, because it was to do with detriment. My employment tribunal case is actually under appeal at the moment; we have gone to the Employment Appeal Tribunal, so we are appealing it. We are doing so primarily in order to-
Q50 Mr Reid: Was there any legal reason why you could not take the agency to court, or was it just that you felt that it was not to blame?
Dave Smith: I don’t think that it is to blame; that is the main issue.
Q51 Mr Reid: But they are the people who fired you.
Dave Smith: Even in my blacklist file, if you read about that particular case involving the agency, prior to dismissing me, the Consulting Association file has entries in it about the company-not the agency, but Schal International, which is part of Carillion-talking about how it is going to dismiss me and how it is going to get the agency to get rid of me.
Q52 Mr Reid: When the agency dismissed you, did it give you any reason?
Dave Smith: It was quite a big dispute at the time, in 1999. I had worked on that job for eight months. Then a young lad fell three floors from the scaffolding. The union full-time official came into the place and said, "Look, we need someone to be a safety rep, because there have been a number of health and safety issues here." I volunteered to become the safety rep and was elected. Literally, within one or two days of that, my pay and hours were cut; a couple of days after that, I was dismissed.
Q53 Mr Reid: Did they give you a reason for dismissing you?
Dave Smith: Yes, they said that there was no work around.
Q54 Chair: Was that true?
Dave Smith: Of course not, because my blacklist file quite blatantly-
Q55 Chair: We want to be clear. Could they plausibly argue that the two things had happened at the same time?
Dave Smith: There was another 12 months’ work on that job. They brought in other people to do the work I was doing.
Dave Smith: That happened time and time again, repeatedly. As soon as I became the safety rep or as soon as people found out who I was, I would be dismissed. That is not something that has happened only to me-it has happened to safety reps in the construction industry time and time again. We could bring in coach loads of trade union safety reps who would say, "I raised concerns about health and safety. As soon as I did so, suddenly the company’s attitude to me changed and I was dismissed."
Q56 Chair: If there are Scottish examples of that or examples involving Scots who were working on sites elsewhere, it might be helpful if you could provide those to us.
Dave Smith: There are definitely examples of Scottish companies-Balfour Beatty is a Scottish company-doing that. I have some information that I am going to refer to when we come to that stage.
Q57 Jim McGovern: You may feel that you are being dismissed because of your health and safety or trade union duties, but the company may try to bury that among 20 redundancies on the Friday, of which you are one-or were you the only one?
Dave Smith: I was the only one.
Jim McGovern: Right.
Q58 Mr Reid: Do you know whether the information that was held by the Consulting Association was passed to the agency?
Dave Smith: Almost certainly not. It was all done very secretly. The information that has come out from various employment tribunals and witness statements from senior managers, and during cross-examination of some of the managers who were involved, is that it was all kept very secret. A small number of people at the company’s head office would know about it. Only the most senior people in the HR department or directors of the organisation would know what this was all about. In my case, we had a manager from the site as a witness, who openly admitted that he had written the information in my file but said that he had not passed it to the Consulting Association. He had been asked to compile the information and had sent it up to the company’s head office. He had never heard of the Consulting Association until it came out in the press. The people in the head office had passed on the information. Carillion named the individual who had passed on the information.
Q59 Mr Reid: When Carillion spoke to the agency before the agency dismissed you, do you know what Carillion told them?
Dave Smith: I can only surmise. [Interruption.]
Chair: No, we are just taking contributions from the witness, I am afraid. I have Pamela and then Iain.
Q60 Pamela Nash: Before we move too far from discussing your employment agency, you said that you did not think it was aware of the Consulting Association’s services. How, then, was it getting access to your file or getting a code 99?
Dave Smith: Oh, the code 99 stuff. As I said, prior to about 1999, I could not get a job working directly for big companies. Although I applied-I applied lots of times-I just never ever got a job, even though there was a building boom going on. After about 1999, particularly after the dispute that I have mentioned, which related to a brand new building for British Telecom in Brentwood for which I was the engineer-it was quite a large dispute that made a bit of press at the time-there is information in my blacklist file that says, "We have to check Dave Smith coming on to"-
Q61 Pamela Nash: But how did employment agencies check?
Dave Smith: I imagine that at that point the big companies were ringing up, because I had never heard of this code 99.
Q62 Pamela Nash: I suppose I was just a bit surprised when you said that you did not think that they were culprits at all. Obviously, you are not saying that they are the main culprits. I am trying to find where their role is in this.
Dave Smith: Clearly, some of the bigger employment agencies rely on the big contractors for all of their work. That is where they get their work, so keeping the big contractors sweet is the future for them. There is a list of the companies that subscribe to the Consulting Association. The Information Commissioner’s Office has published that list and we have the invoices for those companies. I think that is already in your bundle; you have seen the list of companies, which include some Scottish companies. None of them are employment agencies; they are all major contractors.
Q63 Pamela Nash: Thinking about the flow of information the other way round, in your tribunal, or in other tribunals that you are aware of, was there any evidence that smaller employment agencies were passing on information to the Consulting Association?
Dave Smith: No, not that I have seen.
Q64 Iain McKenzie: Was it always the case that you were the one who was dismissed, or were there ever incidents where someone would raise a health and safety issue with yourself or with the company and be dismissed along with you?
Dave Smith: The case where I was quite obviously dismissed and that is reported in my blacklist file was a job for Costain in a Tesco’s, where the demolition people found some asbestos or what they thought was asbestos. I was the union safety rep and raised the issue with Costain. I said that we thought that this was asbestos and that we should slow down the job, or at least get someone to come in to inspect it, and stop working until we had found out what it was. I gave in a written safety report. I was actually walking around the job on a Friday afternoon with the foreman, who was telling me what I was going to do on Monday morning, because it was the beginning of the job-there was another 18 months on it. When we went back into the site hut, the site manager told me that I was dismissed and I had to ring the agency. It was obvious.
Q65 Iain McKenzie: But was there ever an instance where you were not the only one dismissed from a site on health and safety grounds?
Dave Smith: For me, it always tended to be because I was the individual who raised the concerns about health and safety. I think that, once you raised concerns, they checked to see whether your name was on the file. If it was, they would add some more information. There are some jobs in my blacklist file that I had forgotten about, because I was there for such a short period of time. It actually says in my file, "Raised health and safety concerns on this day. Dismissed the next day."
Q66 Iain McKenzie: Health and safety concerns were always raised through you to management.
Dave Smith: Because I was the union health and safety rep.
Q67 Iain McKenzie: There was never an alternative route for an individual employee to take it to their foreman and so on.
Dave Smith: If you want the truth, one of the consequences of the blacklist and by quite overtly being able to dismiss union health and safety reps in the industry is that people become scared. You wouldn’t think that of the grown men who work in the construction industry, but they become quite fearful. Although companies say, "You can raise concerns and if there is a health and safety issue bring it to us", people don’t, because they are concerned that, if even a union health and safety rep who raises concerns gets dismissed, it may also affect their job prospects if they start raising concerns about the toilets, the scaffolding or whatever. It is very well documented. It is always being reported in the construction press that this kind of thing happens time and time again. That has an impact on the other workers on the site, who keep their heads down and say nothing, and end up working with asbestos and in places where they should not be. That is one of the reasons why the construction industry has such a terrible fatality record. People are not prepared to raise issues; if you do, you end up getting blacklisted and dismissed. To be honest, I was a trade union activist, so I made a point of being prepared to say it.
Q68 Pamela Nash: Do you think it is as bad today as it was 10 or 15 years ago?
Dave Smith: When I was first involved in this, 150 building workers a year were being killed on construction sites, which is three building workers a week. That is why the Construction Safety Campaign was such a big issue, why all of the construction unions have health and safety as a major issue and why more of us get elected as health and safety reps than as shop stewards. The fatalities are not as bad as they were 15 years ago, but the graph is going up again, if you look at the trend. I think that has more to do with the light touch of the Health and Safety Executive, which allows big companies to do their own inspections, but that is a separate issue. However, I still think the blacklisting is going on today.
Chair: Let us come back, if we can, to Alan’s points.
Q69 Mr Reid: Do you have any suggestions as to how the system of seeking redress through employment tribunals could be improved?
Dave Smith: First, I think the issue of blacklisting should not be taken 100% through the employment tribunals; I think it is a breach of our human rights. Every individual has the right to be a member of a trade union. Article 11 of the European convention on human rights gives everyone the right to association, including the right to join a trade union. I think that what these companies have been doing is a breach of our human rights. It has deliberately been done in secret-covertly-because they know that it is a breach. The problem with going down the employment tribunal route is that we will always have to get over the hurdle of, "Have I got an employment relationship with the people who are actually doing the blacklisting?" Even the new blacklisting regs that were introduced in 2010 fall a long way short, because they still talk about either being blacklisted by your employer or not being taken on for a job through an employment agency. You still have to demonstrate some kind of employment relationship, but very often in the construction industry people work via a number of subcontractors.
I don’t think that the construction industry is the only place where this is happening. Casualisation in the work force, with casual workers, part-time work and short-term contracts, is taking place across lots of industries. I think that it misses the point; blacklisting should be a criminal offence. If it were, the individuals doing it would potentially face jail sentences. Recently, the Select Committee that Alan Beith chairs suggested that major breaches of the Data Protection Act 1998 involving abuse of individuals’ personal data should end up with prison sentences. I can’t think of a situation where there has been a more organised, systematic abuse of data protection than this. In his report "Ruined Lives: Blacklisting in the Construction Industry", Professor Keith Ewing of King’s College London, who is the leading academic on this subject, called for it to be a criminal offence.
Q70 Mr Reid: Is the Data Protection Act itself adequate, other than that you feel the penalties are not severe enough?
Dave Smith: One of the other reasons that I think the legislation is insufficient is that some of this stuff is not retrospective. There are 3,200 workers on this blacklist. Blacklists are done in secret; we never get evidence, so they have to be found by some fluke. Very often you find them many years after what has gone on. Therefore, as well as blacklisting being criminal, so that companies can be fined and people can be jailed, the existing blacklisting regulations should be retrospective.
Q71 Chair: Can I bring you back to the specific point that Alan raised, which is whether or not the fines and system through the Information Commissioner are sufficient?
Dave Smith: In the only case on this issue that has been brought through the Information Commissioner’s Office, under the Data Protection Act, the Office took a case to court against Ian Kerr, who was the chief executive of the Consulting Association. The fine that Ian Kerr got for misuse as a data controller was ₤5,000.
Q72 Mr Reid: Do you feel that, other than the penalties, which you do not think are severe enough, the Data Protection Act is sufficient? That is the point that I am trying to get at.
Dave Smith: I think that the Data Protection Act should include more investigatory powers for the Information Commissioner’s Office, because these blacklists are done in secret. Someone like me, or any of the other people who are on the blacklist, would have no earthly chance of ever discovering this thing. The only way it will ever be discovered is if someone with investigatory powers goes in and finds it when they have got some suggestions. They have very limited investigatory powers to go and do any investigations.
Q73 Mr Reid: So what do you feel is wrong? Can you tell us what investigatory powers they have and where you feel they need to be strengthened?
Dave Smith: To be honest, I am not an expert on that, and I won’t try to claim to be. There are people I can suggest the Committee talks to.
Q74 Chair: It may be helpful if you let us know whom we ought to speak to in order to clarify that further. Can I seek a bit of clarification on another point? I was under the impression that the Information Commissioner had powers over information held electronically and that, if things were on, say, cardboard cards, his or her remit would not cover those. Is that correct?
Dave Smith: I think that was changed.
Q75 Chair: So the Information Commissioner would be able to access the information held in any manner whatsoever.
Dave Smith: But they would have to go and get a court order to allow them to do it, with the evidence beforehand. I am suggesting that someone like the Health and Safety Executive has investigatory powers to go and investigate breaches of health and safety. There is no equivalent for the Information Commissioner’s Office when it thinks that this thing is going on.
Q76 Mr Reid: Do you have any evidence that these blacklists are still in existence following the passage of the 2010 regulations that you referred to earlier?
Dave Smith: As I understand it, the Employment Relations Act 1999 is an enabling Act that allows regulations to be published from it. The consultation on the blacklisting regulations first went out in 2003. The regulations were produced, were ready to be published but were not published, primarily because of lobbying from the business community and the trade associations. They said, "These blacklists don’t exist. It is a complete myth and paranoia by the trade unions." Therefore, the regulations were not introduced. In 2009, suddenly the blacklist was exposed and we found that the very people who were lobbying Government saying that blacklists did not exist were the people who were doing the blacklisting. Do I think that blacklisting still goes on? Yes, I do-absolutely I think it still goes on. Have I got absolute proof of it? No, I have not, because that is very difficult and it is all done in secret.
Q77 Mr Reid: But there were obviously people like you who were being dismissed for no apparent reason. We have subsequently discovered that that was because of the blacklist. Do you have any evidence of people still being dismissed for no apparent reason in similar circumstances?
Dave Smith: Yes, lots. If you get in the trade unions-Unite, UCATT, the RMT, the Offshore Industry Liaison Committee-they will be able to bring you real examples that are going on now. On the Olympics site, there was a dispute about two workers who were dismissed because of blacklisting. There were demonstrations at the site, and cases were taken to employment tribunals.
Q78 Mr Reid: But, under the Data Protection Act, people can put in requests to companies for all the data that they hold about them. Do you know whether people who were dismissed in these circumstances made such a request to the company?
Dave Smith: Once again, this is the point of this. Because the big businesses know that what they are doing is wrong, they have set up an arm’s length organisation called the Consulting Association so that, even if I did ask Carillion or one of the other major companies that dismissed me or were behind dismissing and blacklisting me whether they hold any information on me, they could quite easily say, "No, we don’t," in exactly the same way that Rupert Murdoch can say, "Oh no, no one in News International was phone hacking," because they gave it to a private investigator to do on their behalf.
Q79 Mr Reid: Do you have any evidence that an organisation similar to the Consulting Association still exists and is holding a blacklist?
Dave Smith: Have I got absolute evidence of it? No.
Q80 Mr Reid: Have you got circumstantial evidence of it?
Dave Smith: Have I got anecdotal evidence that safety reps and trade union activists continue to be dismissed and cannot find jobs? Yes, absolutely.
Q81 Mr Reid: Do you think that the 2010 regulations are inadequate?
Dave Smith: Yes.
Q82 Mr Reid: How would you like to see them strengthened?
Dave Smith: As I said, I would like them to make blacklisting a criminal offence. Even in the regulations, it should be an absolute right not to be blacklisted. Forget applying for a job and not getting one. My name may be on a blacklist that is being shared among big multinational companies to stop me getting work. If we ever discover it, the mere fact that my name is on that list should be enough.
Q83 Mr Reid: Under the 2010 regulations, would it be illegal to hold your name on a blacklist?
Dave Smith: Yes. However, because the claim has to go through the employment tribunals, it has to be all about the fact that I applied for a job and never got one, and whether the people who did it were my employer. It has to go through the whole employment tribunal/worker, employee/employer argument, which very expensive lawyers are very good at exploiting.
Q84 Chair: Alan has raised a very important issue, which is how you would wish to see the system improved. Rather than our just having a dialogue about it, it would be helpful if you could take time to consider it and write to us so that we have a systematic set of proposals about how to deal with it. That is possibly the best way forward on that.
Dave Smith: Sure.
Chair: Are you happy with that, Alan?
Mr Reid: I am.
Q85 Jim McGovern: Thanks very much for coming along; you are very welcome. Earlier you mentioned that the Blacklist Support Group was formed following a meeting that was hosted by John McDonnell. Can you pad that out a wee bit and say who else was there and what the group’s remit is? How does it help people who feel that they are being hard done by because of the blacklist?
Dave Smith: When the Consulting Association was first uncovered, there was a little bit in the press. Do you want me to talk about the group or how the Consulting Association works?
Q86 Chair: We will talk about the Consulting Association afterwards. We want to talk about your group first.
Dave Smith: Okay. You can apply to get a copy of your own file. The Information Commissioner’s Office holds these 3,200 files, but, because it is a Government Department, you can apply to get a copy of your own file. The thing is that you have to think that you are on the blacklist to start with. Even though it has the 3,200 names, with the people’s addresses and national insurance numbers, it does not contact you; you have to think that you have a file and contact the Information Commissioner’s Office. Within a few months of the blacklist being exposed, some of the more leading people who had clearly suffered from blacklisting for a long time realised that they were on it, so you applied for your file and got copies of it. Basically, we were meeting each other. I think that another dispute was taking place in the industry at the time, and lots of us turned up-it might even have been in this room-to a meeting that took place during the daytime. Mick Clapham MP chaired one of the meetings, and there were a lot of us in the room. Between us, we did a bit of informal networking and said that we needed to meet and have a discussion about this. John McDonnell, who was one of the MPs there, said that he would book a room in the House of Commons if we got people along. I think we had 40 people turn up to the first meeting.
Basically, we agreed that we should set up a support group. It is mainly an information-sharing service so that we share what is going on among ourselves. In addition, as we have grown, we have got more and more people involved, as more and more files have come on board. We have held a couple of fairly well-attended AGMs. Our last AGM was in September; we had about 80 or 90 people at that. Because of the nature of what we are, we are getting lots of assistance from academics, lawyers, QCs, investigative journalists and the trade unions, such as Unite, UCATT and the RMT. The GMB has come down to give us assistance. As I said, the support group has organised meetings with European Commissioners. We have fringe meetings; in fact, I am speaking on the group’s behalf at a fringe meeting at the GMB conference tomorrow lunchtime.
In lots of the tribunal cases, like mine, the idea is to feed the information out to journalists, once we have got it, because we think that this will be changed only if the multinational companies who have been doing it in secret get exposed for what they have been up to. That is what we are trying to do. We try to work hand in hand with the trade unions. We are not opposed to what they are doing-we see ourselves as part of the same campaign-but lots of the individual workers are not in the particular construction unions any more and have moved out; some of them are just not in the industry any more. It is a way of bringing people together. Our mailing list is well over 1,000. As I said, we get lots of very good support from people like Hazards magazine, which is a well-respected health and safety body. Is that enough?
Q87 Jim McGovern: Yes, but is the Blacklist Support Group a sort of mutual support group to challenge the concept of blacklisting or do you actually support people who have been victimised by it?
Dave Smith: No. Primarily, we are a support group for the people who have been caught up in the Consulting Association scandal. Most of the people who make any decisions in the group are blacklisted workers, with their actual Consulting Association files. Some of them are in the public gallery today. We are there to make sure that our voice is heard and to try to keep pushing it so that this story does not just vanish. Thank you very much, the Scottish Affairs Select Committee, for doing this, because it has taken three years for us to get to this point.
Q88 Jim McGovern: So it is to highlight the plight of people who have been victimised rather than to provide active support for those victims.
Dave Smith: A bit of both, really. In addition, a High Court claim is being prepared, to which virtually all of the people involved in the support group are signed up. It is not physically at the High Court yet, but it is being prepared at the moment.
Q89 Jim McGovern: Earlier you said that, because you are no longer employed in the construction industry, you are no longer a member of UCATT. Are you still a member of a trade union?
Dave Smith: Yes. I am a member of UCU-the University and College Union.
Q90 Jim McGovern: Thanks; that was just for my curiosity. Do you have any idea how widespread the practice of blacklisting might be in Scotland? Obviously, this is the Scottish Affairs Select Committee and we have to retain some sort of Scottish link, whether it is to Scottish employers or to Scottish employees who have been suffering because of blacklisting.
Dave Smith: I have quite a lot of information that has come out that relates specifically to Scotland. I can go through that, if you want me to.
Q91 Chair: We have to be somewhere by 9 o’clock tonight. We do not want to go through everything verbatim, but you could give us a review and make the information available to us so that we can look at it ourselves later.
Dave Smith: Sure. Do you want to ask me about any particular companies?
Q92 Chair: No; just give us an overview of your work in Scotland so that we will know what to dig into.
Dave Smith: When the Information Commissioner’s Office published its first press release, it issued the names of all the companies that were subscribers to the Consulting Association. A number of those are Scottish companies. Balfour Beatty and McAlpine are the most obviously Scottish companies. In addition, most of the other companies, because they are such huge companies-they are not small firms-will inevitably have major projects and be the main contractors on major, significant publicly funded projects up in Scotland. I have a compromise agreement. There are only certain things I can say about Balfour Beatty, but I can talk about the general stuff that is in the public domain.
Q93 Chair: That’s it. We have a sheet here about sub judice things, and every now and again the Clerk looks at it as if to remind me that it is there. He will tell me to interrupt you if he thinks you have gone too far.
Dave Smith: The Information Commissioner’s Office issued enforcement notices against a number of companies. The organisation against which most enforcement notices were taken was Balfour Beatty; six enforcement notices were taken against it, including Balfour Beatty Scottish and Balfour Kilpatrick, whose head offices are based in Glasgow. In addition, because of the court order that allowed me to see all of the unredacted files-I have seen the blacklist files for many workers, completely unredacted-and because of my role as a secretary, people have shown me their files, and I know that there are many files relating to Balfour Beatty victimising and blacklisting people because they raised health and safety concerns. A safety rep named Jim Lafferty who worked for Balfour Kilpatrick at the Royal Opera House in Covent Garden-unfortunately, he is not with us any more, but he was a Unite health and safety rep on that job-was victimised and blacklisted because of the health and safety issues that he raised there. A number of electricians-Steve Acheson, Tony Jones, Graham Bowker and Colin Trousdale-have taken cases against Balfour Kilpatrick, which is now called Balfour Beatty Engineering Services. All of those were for raising health and safety issues with the company.
In addition, one of the documents that were issued to me from the Information Commissioner’s Office under the court order for disclosure was the sales book. Effectively, I was sent their invoices, showing who had been invoiced for attending certain meetings. The document consists of page after page of invoices that were sent to these big companies.
Q94 Chair: Does it specify the addresses to which the invoices were sent?
Dave Smith: Sometimes it does. I also have some invoices with the actual names of the individual managers involved. There were meetings that were held in Scotland from 1996; I have them through to about 2006. We have the dates of the meetings and can tell how many of these managers attended them. In some cases, 11 senior managers attended Consulting Association meetings.
Q95 Chair: Does it give the names of the senior managers? Is it almost like a minute, where you have the companies represented, the named individuals who are there, and the date, time and place?
Dave Smith: The sales book does not do that, but some of the individual invoices that have been sent do. Some of the tribunal witness statements that have been taken also name individual managers. For example, the director of human resources for Balfour Beatty Engineering Services is Mr Gerry Harvey. He is a blacklister who attended Consulting Association meetings. In the tribunal case of Tattersfield v. Balfour Beatty-I have the document here and will give it to Members-he turned up at the hearing and admitted in open court, and it is in the written judgment, that he was the person who attended Consulting Association meetings on behalf of Balfour Beatty Engineering Services, whose head office is based in Glasgow.
Q96 Chair: Do you have attendance lists for the meetings that took place in Scotland?
Dave Smith: My court order only allowed me certain information. Because my tribunal case was against Carillion and against Carillion JM, which is John Mowlem, all of the information in the sales book that was issued to me under the court order relates only to those companies. Although I have the whole thing, they have blanked out the other company names. Clearly, if the Select Committee went to the Information Commissioner’s Office and asked for the full information about the Scottish meetings, I am sure that it would provide you with a list of all of the big companies.
Chair: I am sure Eliot will be able to arrange all that. Good man, Eliot.
Dave Smith: In addition, a senior HR manager called Elaine Gallagher, who works for Balfour Beatty Engineering Services, accepted in the same tribunal case that she was the main contact between Balfour Beatty Engineering Services and the Consulting Association.
Q97 Chair: Can I be clear? All of this information is publicly, legitimately available.
Dave Smith: Yes.
Q98 Chair: You can make it available to us, and we are free to put it on the Committee’s website.
Dave Smith: Yes. That is pretty much it for Balfour Beatty; no, sorry, there is one more thing. In one sales book issue-even if I can’t find it, I know what it says-specifically written in there it talks about people being invoiced for offshore stuff. Balfour Kilpatrick is specifically mentioned as being invoiced by the Consulting Association for some work that it was doing offshore for it.
Q99 Chair: Can I clarify if you are able to specify-or we can identify from these documents-whether the firms were involved in undertaking blacklisting on people working on public contracts in Scotland, or can you not make that jump from the information that you have?
Dave Smith: You can tell from individual blacklist files which job people were blacklisted from. Some of those are publicly funded projects.
Q100 Chair: But you will not have or be able to make available to us the individual files. Is that correct?
Dave Smith: I have some individual files that were disclosed to me under a court order and were presented in my particular tribunal, which have some information about Scottish firms written in them. That is out in the public domain now, so I am not doing anything wrong. I have 400 pages of information, but there are 3,200 individuals on the blacklist, and some of the files are up to 49 pages long. So there is much more in there.
Q101 Chair: I understand that. Let me be clear, though. Will it be known by anybody that we can ask how many people have asked for their files, and the names of those people? Will we then be able to access those files to clarify whether any of them have been dismissed, as a result of the operation of a blacklist, from public sector contracts in Scotland that have been run by, say, the Scottish Executive or the Scottish Government?
Dave Smith: I think that information would be available, if not from the individuals who have got their files, then, clearly, once again the Information Commissioner’s Office has that information. As I said, my court order allowed me to go through-
Q102 Chair: As I understand it, part of the information that you have, you have got physically, as bits of paper. Some of it you have in your head, because you remembered seeing other things that you went through. First, referring to the things that you have got physically, I want to be clear about whether there are health board contracts, local authority contracts or Scottish Government contracts from which people have been dismissed in Scotland using the blacklist.
Dave Smith: I have already sent to the clerks 200 pages of unredacted files. Some of that information relates to Scottish workers and some relates to Scottish projects. I would be lying if I said that I had gone through and checked whether those are publicly funded.
Chair: I am sure that the staff will be working on that tonight and will have an answer for us by the morning.
Jim McGovern: Overnight.
Q103 Chair: Absolutely. I have no doubts about that, so committed are they. The other thing is the stuff that you are holding in your head.
Dave Smith: I have some more publicly available stuff.
Q104 Chair: I am just coming back to the stuff in your head that we can ask the Information Commissioner for. Is there information that you have seen but do not physically have that would help us with the issues that I have just raised?
Dave Smith: With those issues or with general issues?
Q105 Chair: Particularly with the issues of Scottish workers or firms in Scotland undertaking public sector contracts utilising the blacklist to sack them.
Dave Smith: Absolutely, yes.
Q106 Chair: Fine. It is particularly helpful to us to be able to demonstrate that these are issues of significance in Scotland, not just to the Committee but to health boards, local authorities and the Scottish Government. We will want to pick up some of these issues with them.
Dave Smith: It is very obvious that Carillion, which is primarily a construction firm, has now ventured into PFI projects in the national health service. One of the reasons that the GMB is involved is that it is in dispute with Carillion at the moment in a hospital in Swindon. Once again, I absolutely have the evidence that managers for Carillion are involved. In 2008, a manager for Carillion called John Edwards was invoiced for attending a meeting of the Consulting Association. Liz Keates, who is the head of human resources for Carillion Health, is the woman who is doing the stuff in the national health service at the moment; I am absolutely certain that Carillion will have national health service projects in Scotland as well as in the rest of Britain. She was identified in my employment tribunal case as LK, one of the managers who had supplied information to the blacklist from Carillion. During my tribunal case, Carillion also supplied another couple of names for managers. I don’t know whether they still work for the company because Carillion offered them up, which gives me the impression that they probably don’t. John Ball, who used to be the head of human resources for Carillion, was identified by Carillion as being the main contact between Carillion and the Consulting Association. An individual called Alf Lucas was the contact between John Mowlem, which is now Carillion JM, and the Consulting Association. There are a number of people, especially as Carillion is going into the health service. We have the names of the managers and the documents that back it up.
Q107 Jim McGovern: In what group is Carillion?
Dave Smith: Carillion used to be part of Tarmac.
Q108 Jim McGovern: Briggs Tarmac.
Dave Smith: Yes. Tarmac demerged; the Tarmac name is now used for all the Tarmac stuff that has more to do with mining and aggregate extraction, whereas the construction part of it took on the name Carillion.
Q109 Jim McGovern: Is that Nynas as well? I think that in Scotland Briggs has become Nynas.
Dave Smith: No, it is pretty much Carillion. It is very big in PFI and in the national health service. It has taken over lots of hospitals.
Q110 Jim McGovern: Chair, with your permission, that leads me on to the next question. When you were here previously, I think that I mentioned to you that, when I was an apprentice-a glazier-in the construction industry, we worked on a big site in Perth. I am from Dundee, but this site in Perth was a McAlpine site, and McAlpine had said that it would never allow anyone from Dundee on to its sites. We had to go to that site each day and pretend that we were from Edinburgh.
Chair: To be fair, you have met people from Dundee-they are awful.
Jim McGovern: However, ultimately, regardless of whether it was originally Carillion, Tarmac or Briggs, do you think there is a major problem with companies who are involved in blacklisting suddenly changing their names overnight, being resurrected on the Monday with a different name and feeling that that excludes them from any legal pursuit?
Dave Smith: I think that is exactly one of the things that is going on. One of the other difficulties in the employment tribunal cases is identifying the actual company. We know who did it, as we have the invoices and information about which companies were doing it, but because the companies change names so often and demerge-very often you have a parent company with up to 20 or 30 wholly owned subsidiaries-it is almost like playing chase the lady, especially as the blacklisting is outsourced, effectively, to a third party to make it look as if the individual companies were not involved. The name changes are something that has definitely come up. Some of the companies have tried to excuse their involvement in blacklisting by saying that it was so long ago that they did not realise that it was happening. Carillion has tried to use that excuse, but, as I said, we have invoices from literally a couple of months before the Consulting Association was closed down. Clearly, Carillion was still doing it, even though it tried to present it as something that happened years ago. Some of the other companies-Nuttalls, for example-have claimed that the blacklisting was being done by companies that they took over and they did not realise that it was going on, but, if you are paying ₤28,000 a year and your senior managers from the HR department and directors are attending meetings, you would think someone would know about it.
Q111 Jim McGovern: I have one further question, if it is okay. Earlier you mentioned the News International carry-on. It seems to me that, because there is a police investigation, the police are gradually getting round the people who have allegedly had their phones or computers hacked and informing them that they have been subjected to this. Is it not possible for your group to pursue some sort of legal case, so that the police are obliged to inform people who have been subject to a blacklist that they have been on one?
Dave Smith: One of the things about the Leveson inquiry is the fact that there was some kind of police collusion between some of the press and the police, which is why it has come to that. The head of investigations for the Information Commissioner’s Office, whose name is David Clancy, is himself an ex-police officer of many years’ standing. During my employment tribunal case, he made a statement under oath that some of the information in the some of the blacklist files could have been supplied only by either the police or the security services. That is why both Michael Meacher and John McDonnell have asked questions about a potential public inquiry to look into potential police collusion on the blacklist.
The direction in which we have been pointed by a response from Theresa May is that we should raise the issue with the Independent Police Complaints Commission. As a group, we are doing that with some of the files. As I said, most of the information in the files has clearly been supplied by a manager on a building site, who has sent the information up to the head office. The head office people, who actually know about the Consulting Association, have forwarded it on. Some of the information could not under any circumstances have come from a manager on a building site; it is just impossible. Some of it is very specific police records, in detail. Some of them actually relate to Scottish workers.
Q112 Chair: It would be helpful if you could draw to our attention anything in the bundle of paperwork that, in your view, has come from either police services or the security services and relates to workers living in Scotland, Scottish companies or Scottish workers who are working elsewhere in the UK. We will have a look at that and consider which appropriate agency in Scotland to approach.
Dave Smith: Sure, okay. Some of it is individual police records. On the other hand, I have here the file of one gentleman named Dan Gilman, who has already given me permission to mention it. He is a teacher now. He was never a construction worker and has a blacklist file on him because he attended an anti-racism demonstration in London on a Sunday afternoon. There is information about him and three other people who are also construction workers on the blacklist, not because they were arrested-they were not-but because they were spoken to by a police officer for being there. That information was never in the press. No manager on a building site would ever know this. These four individuals have never worked together, but they all attended an anti-racism demonstration in London on a Sunday afternoon. How has that ended up on a blacklist file about construction workers if it has not come from some source?
Q113 Chair: Earlier I asked you specifically whether matters of your political opinions were in your files. I think that you confirmed that they were. Presumably, the reason for the entry for these individuals related to their political activities rather than anything on a building site.
Dave Smith: Yes. All of the information that we have got from the Consulting Association so far and all of the information that has come out in witness statements indicates very much that information was fed up from managers on building sites to the Consulting Association and put on. The question is how a manager of a building site would know that four separate individuals who had never worked together were on this demonstration. Where would that information come from?
Q114 Chair: Okay, I understand that, but let us come back to you and your membership of or involvement in Militant. Presumably, nobody on a building site would have had that information either.
Dave Smith: No-well, to be honest, people within the union might have known it.
Q115 Chair: The point that I am making, in a sense, is that, if this sort of information went into your file about you, it is quite likely that the same sort of information about other people would get into their files, probably by the same route.
Dave Smith: Yes.
Chair: Jim, are you finished with that?
Dave Smith: Can I continue? The reason we think that the stuff about the anti-racism demonstration comes specifically from the police is that, a couple of years ago, The Observer did an exposé about undercover police officers who were sent into environmental campaigns and anti-racism campaigns, basically to spy on these people and pass on information. The timings and the anti-racism group involved tie in exactly with the undercover police officer who is now on record in The Observer and The Guardian. It just looks like the information from there has ended up on this private blacklist.
Q116 Chair: It would be helpful if, again, you could draw to the attention of either the staff or our specialist adviser any connection with Scots.
Dave Smith: Some of them are Scottish workers.
Q117 Chair: It would be particularly helpful to have that drawn to our attention. As I said before, we cannot cover the whole country. I turn now to the question of the Consulting Association, which has been mentioned on a number of occasions. We have already had as a witness Maria Fyfe, who outlined the issues that she had in relation to the Economic League. It would be helpful if you could outline to us what the Consulting Association is, how it works, what happened to it and whether it is still active-those sorts of issues. We will follow that up with questions.
Dave Smith: I listened to Maria’s evidence; it was a pleasure to meet her afterwards. The Economic League was closed down in the early 1990s because it was exposed by undercover journalists from "World in Action". Maria Fyfe then did some work on it in the Houses of Parliament. Within the Economic League there was a particular section called the services group, which was made up exclusively of construction companies. The construction companies within the Economic League paid additional subscriptions and annual fees to them in order to employ additional people to spy on what was going on in the construction industry.
The person who was the head of the services group when the Economic League closed down was an individual called Ian Kerr. When the Economic League closed down, Ian Kerr became the chief executive of the Consulting Association within a short period of time. The Consulting Association was really in existence only from the mid to early ’90s, but some of the blacklist files go back much longer than that. In fact, I spoke outside to one of the gentlemen sitting in the room-his name is Mick Abbott-and he showed me a copy of his file, which goes back to 1964 and has the letter K on the top of it. In a number of tribunals, David Clancy has said that, basically, those old files are just the Economic League files. The same individual who was running the blacklist for the Economic League set up the Consulting Association with the same documents.
When Ian Kerr was taken to court, in his court case he said that he did not go to the companies and suggest that he set it up but that the big companies came to him and suggested that he set up the organisation. One of the documents that were disclosed in my court case is the constitution of the Consulting Association, which had chairmen, vice-chairmen, a chief executive and an elected finance committee. If you go through it-it is three pages long-it makes very clear that representation at the Consulting Association’s meetings needs to take place at director level. It would not be some small, fly-by-night builder somewhere. This organisation was set up by multinational companies, at director level, even with a written constitution, to carry on the work that the services group was doing but within the construction industry.
Q118 Chair: Let us be clear, though. The constitution does not give the names of the officers.
Dave Smith: No.
Q119 Chair: That is unfortunate.
Dave Smith: Yes, very. When you look at the list of companies that were in the services group within the Economic League and the companies that are the subscribers to the Consulting Association, you see that they are virtually the same people, with the occasional different name here and there but virtually the same organisation. Effectively, they are just carrying on with the same process as in the Economic League, but under a new, separate guise.
The companies paid an annual subscription fee to be members of the Consulting Association. When you look at the sales book, it is clear that the subscription fees have gone up over the years. When the Consulting Association was disbanded in 2009, the annual subscription was £3,000. In addition to information going up from the companies to the Consulting Association from building sites, whenever workers like me or some of the individuals sitting in the room applied for a job, the HR department would ring up the Consulting Association, with a list of names to check whether they were on the blacklist. Sometimes they would do it over the phone, so there was no paper trail, but sometimes they would use faxes; we actually have copies of the faxes that they sent. If the response from the Consulting Association was, "Yes, this person is on the blacklist", you never got the job. It is written down in a number of people’s files that phone checks were done and the person never got the job.
There was a price for each time that a company checked a name. In 2009, it was £2.20 every time they checked a name. The invoices that were discovered when they raided the Consulting Association said that, at £2.20 a name check, Skanska’s invoice for that year was £28,000. Sir Robert McAlpine, a Scottish company, was second highest on the list. I think that its invoice was about £28,000 as well-certainly in that area. So, £28,000 at £2.20 a time gives you an indication of-
Q120 Chair: Do you have only the aggregate figures? You do not have lists of the people for whom the checks were made for the £28,000.
Dave Smith: For some of them, we do. For some of them, we still have the actual faxes that were sent through saying, "Please check these names." In people’s individual blacklist files, sometimes it says, "I applied for this job building the Scottish Parliament"-as you said-"but was name checked and refused work because of it." Sometimes it is very specific; sometimes it is a bit looser. When you see the sales book, the only thing for which they appear to be invoiced is for attending the Consulting Association’s meetings, for doing name checks or, occasionally, for videos. It looks clear that sometimes individual workers were videoed and the videos were sent up. I remember that I was videoed on a picket line once, by one of the managers who attended my employment tribunal.
Q121 Chair: What was the point of videoing?
Dave Smith: I have no idea, but the information is clearly in the sales book. It gives the charge for supplying the video and tells you which companies they supplied the video to.
Q122 Chair: You have made a number of assertions about how the Consulting Association worked. Do I take it that all of those can be substantiated from the paperwork that you have?
Dave Smith: There is nothing that I have talked about that is not in the public domain, that we do not have documentation for, or that has not already been very widely publicised and not disputed when people have come to tribunals. That is the reason why I deliberately brought all this paperwork with me.
Q123 Chair: Can I be clear that, while you may have evidence for some bits of some things, as it were-you have mentioned a number of Scottish firms and Scottish workers-not all of the firms from Scotland will have all of the material that you indicated. For example, they will not all have copies of faxes, records of having been at meetings or entries in the cashbook. Is that correct? You have enough from different firms to be able to piece together the whole thing, but it will be a bit like a jigsaw, with certain bits left out.
Dave Smith: It certainly is at the moment. Once again, the people who have the information are clearly the Information Commissioner’s Office.
Q124 Chair: Can I be clear? The Information Commissioner’s Office seized a section of the files. Has it retained them or given them back?
Dave Smith: It has retained the originals. I believe that it has actually given the copies back to the Consulting Association because, although it has seized them, under its powers it has no right to hold them. The originals are still in the Information Commissioner’s Office up in Manchester, along with invoices, the sales book, the constitution and other things like that.
Q125 Chair: We can clarify that with the Information Commissioner. Can I again clarify something? Earlier I thought-maybe I misunderstood-that the information that has been seized by the Information Commissioner related to your case and construction. It was not everything, was it? I have the impression that they went in with a warrant, or whatever the equivalent legal document is, that enabled them to seize some things, but they were not able to seize everything, and you were able to see only what they had seized. Almost by definition, you were not able to see things that they had not seized.
Dave Smith: It is even more limited than that. The Blacklist Support Group held a meeting in Parliament, which was open to lots of people, at the end of 2009, I believe. David Clancy, the head of investigations-the man who actually did the raid, got the warrant and seized the documents-was one of the speakers there and explained how it all happened. He said they had a warrant to gain specific stuff to do with the construction industry and, because they are the Information Commissioner’s Office, to do with documents that related to individuals. He has been quite open about the fact that, when they got there, there were other documents there that they did not seize because they did not have a warrant for it. When you read people’s blacklist files, sometimes on the file it says, "Refer to another file." It says, "Refer to the Construction Safety Campaign file," "Refer to the UCATT file," "Refer to the RMT file," "Refer to the Offshore Industry Liaison Committee file", or "Refer to the London Joint Sites Committee file." Quite clearly, there were separate files on those particular organisations that, personally, I have not seen. I think that the warrant that the Information Commissioner’s Office had when it went in meant that it did not actually seize them. It may have; it may just not have shown me, because my court order would not allow me to see those things.
Q126 Chair: So there are different categories of things. We will ask the staff to clarify right away with the Information Commissioner what they have. Your understanding is that all of that has been retained by them.
Dave Smith: If they seized it, they have still got it. I believe that David Clancy said that, when they went in, there were some documents that they did not seize because they did not have-
Q127 Chair: Everything they seized, they have still got.
Dave Smith: Yes.
Q128 Chair: We are not clear, are we, about where the rest of the stuff that they did not seize now is? Presumably, it is in the garage or the offices of the Consulting Association or wherever, or it could have been destroyed. Is that true? You do not know.
Dave Smith: I have no idea.
Q129 Chair: I just wanted to be clear. We have no information at all, other than the points that you mentioned about where there are cross-references of files, about whether there is another complete section dealing with, say, engineering, because, unless it is actually covered by a cross-connection, you would not have known that.
Dave Smith: No. As I said, I have seen every blacklisting file that they let me see-all 3,200. I would say that the vast, vast majority of them are to do with the construction industry.
Q130 Chair: Yes, but that refers only to those that they seized.
Dave Smith: Yes.
Q131 Chair: We therefore have no idea what they did not seize.
Dave Smith: Precisely.
Q132 Mr Reid: Earlier you referred to the fact that Mr Kerr was with the Economic League and then, when it was exposed, the Consulting Association. Have you any evidence that, since the raid on the Consulting Association’s offices, Mr Kerr is carrying on similar activities.
Dave Smith: No, I don’t think he is.
Q133 Chair: I think that has clarified matters. We have already asked you about the Consulting Association having meetings in Scotland. You will not have a complete, methodically drawn-up list of the meetings in Scotland; you will have a record just of those meetings for which you have paperwork.
Dave Smith: Yes, but they are almost on a quarterly basis, so you have the list. If you get the fuller-
Q134 Chair: You have them.
Dave Smith: If you get an unredacted copy-
Q135 Chair: You have a redacted one.
Dave Smith: I have a redacted copy that relates only to Carillion. I can tell you that Carillion and John Mowlem attended those meetings, because it is written down that they were attending them. I can also tell you that Balfour Kilpatrick was invoiced for some work that it was doing offshore, because that is written down there. If you get the unredacted copy, I am sure it will have a big list of all the companies that attended Scottish meetings.
Q136 Chair: We have complete faith in the ability of our staff to get us the unredacted copies. As soon as they have gone through all the other files, they will go and get them. We will pursue that. That is helpful. Again, I want to be clear. You have seen stuff only on construction workers.
Dave Smith: No.
Q137 Chair: Tell me what else you have seen.
Dave Smith: I have seen the entire database. The vast majority of it relates to construction workers, but there are other people on it, as well, who had some kind of link to construction.
Q138 Chair: I am sorry. Before you go on, let me be clear about this. You have seen the entire database, but that is the entire database that they seized. You have already accepted-
Dave Smith: Okay. Even the stuff that I have seen does not relate only to construction.
Q139 Chair: That is right, but there may very well be other databases. When Ian Kerr left, he could have taken the entire files of the Economic League.
Dave Smith: I will come on to that separately later, if you want. We can have a separate conversation about that.
Dave Smith: From what I have seen, it is not only construction workers. There are files on academics. One file I have here-the gentleman concerned has said that it is okay for me to talk about it-is on Professor Charles Wolfson, who was a senior lecturer at the university of Glasgow. He was blacklisted because he was doing research into health and safety in the North sea after the Piper Alpha disaster. It is actually written there that some of the big companies were thinking of withdrawing funding from Glasgow university because of his continued research. Charles Wolfson has this file only because I saw the unredacted blacklists and thought, "Oh, look." It rang some bells, I went on the internet, found out who he was and got him to apply, because the Information Commissioner’s Office does not tell you; you have to realise you are on the blacklist. Charles Wolfson has got his file-I have a copy of it, and so can you-and it is linked to the offshore industry. Other academics are also there but mainly because they have done research into health and safety. Some lawyers, who have clearly supported construction workers in the past, are on there. A number of journalists are on there-one is a member of the national executive committee of the National Union of Journalists-for writing articles about construction disputes. There are elected politicians on the blacklist. Some of them are councillors. At least one of them is an ex-Member of the Scottish Parliament-an MSP. I have contacted some of these people; some I have not been able to contact. Without any shadow of a doubt, because an MSP turned up at some kind of construction dispute, they have ended up having a blacklist file opened up on them, with lots of other stuff about them. They were not just looking at construction workers but at lawyers, academics, investigative journalists and elected politicians as well.
Q140 Chair: You are able to recall these simply from memory. They are not things that you were given as part of your case.
Dave Smith: They have not been disclosed to me, but they are not simply from memory. I have quite a good memory, to be honest. Immediately after I left the Information Commissioner’s Office, I wrote down about four pages of names. I have now contacted quite a lot of them, who have then got their files. Charles Wolfson and the other fellow I talked about, with the police file, got their files only because I managed to track them down. I can’t give you their names, because they are not in the public domain, but I can say with cast-iron certainty that there are journalists and elected politicians, including MSPs, on the list.
Q141 Chair: But they themselves will have their files.
Dave Smith: Some of them-some of them not.
Q142 Chair: Yes, because they will have chosen not to approach the Consulting Association. Sorry-I am referring to the ones you have approached.
Dave Smith: Most of the ones I have approached have got their files. I have not yet been able to get hold of some of them, so they have not yet got their files.
Q143 Chair: You are taking the view that the names of those whom you have not been able to approach are confidential and should not be disclosed to us.
Dave Smith: I think that is reasonable.
Q144 Chair: I just want to be clear. Some of the files that we saw refer to companies in codes, as it were. Is there a cross-reference system that will allow us to identify all the companies, or are they the companies that are simply listed in Annex A of our report?
Dave Smith: They are those companies, but the Information Commissioner’s Office disclosed the reference list as well. Once again, this is a document that I have. If you look at the blacklist file, it never says Balfour Beatty or Carillion; it has a number next to it. One of the documents that was disclosed-
Q145 Chair: So, by cross-referencing any Scottish company that is on that with the files that are available to us, we would be able to see what action they took in particular circumstances.
Dave Smith: Yes.
Q146 Chair: Lest they simply say, "We were listed there, but we never used it." If there is evidence that they have used it, it will be in those files that have been disclosed.
Dave Smith: Yes, bearing in mind that what I have is a very tiny fraction of the entire thing.
Chair: I understand. In a sense, we can’t prove what we don’t know.
Jim McGovern: Surely if someone has their file and it says that they applied on such and such a date to, for example, 3233-I refer to information I have-and the application was unsuccessful, they will know that 3233 means Laing O’Rourke.
Chair: They might not remember. From our point of view, to take the example of Laing O’Rourke, if we speak to a company and it says, "No, we never used it", but we have an evidence trail in a Consulting Association file that shows that an individual notified such and such, that ties it in. That is the point. It is just a question of approaching it by different routes.
Q147 Pamela Nash: You said towards the beginning of the evidence session that construction workers were frightened to become safety reps or even to report any health and safety breach. You also mentioned the continuing bad safety record of the construction industry throughout the UK, which we all know about. This is really the crux of the matter. Do you believe that, over the last two decades, people have been unnecessarily injured and killed in the construction industry as a direct effect of blacklisting and the fear that it has instilled in construction workers?
Dave Smith: I think that is absolutely certain. Construction has often suggested that the reason is that it is a dangerous industry. There are lots of dangerous industries, but the construction industry death rate per thousand is just so much higher than everybody else’s. I genuinely believe that it is to do with the fact that, in some industries, the companies and major employers decide that, on health and safety, they are going to work together with the trade unions. By working together, you get an employee voice on health and safety issues, and therefore people are more likely to take it seriously. I have many years of experience in the construction industry. There are also countless examples from other workers, some of whom are sitting behind me. A safety rep who is sitting behind me was suspended a couple of weeks ago for being a trade union activist. It is clearly going on. There are people who stand up on behalf of the trade unions and say, "This thing is unsafe. We believe that we should have decent changing facilities. We believe that, when it is pouring with rain, we need to have somewhere to be able to dry our overalls. We believe that we should have an input into the fact that the toilets are an absolute disgrace and overflowing with human excrement every day." Those are pretty basic things. If you are a safety rep, you will raise those concerns. Hundreds of people on this blacklist have been blacklisted for little more than that.
Q148 Pamela Nash: You have given a very recent example, from the last couple of weeks. In that case, there are people working on construction sites this afternoon in Scotland and throughout the UK whose lives are at risk.
Dave Smith: I would say that the cumulative effect of safety reps being blacklisted by the big multinational companies, victimised and dismissed, and of people then knowing that they find it difficult to get other jobs in the future, is that other workers keep their heads down. When there are big safety issues, very rarely do people want to be the person who stands up and says, "Look, we need to raise this issue", because they know and have seen what has happened to other workers. Because of that fear process, it is very rare for people to be very well organised and to come together collectively and in strength.
When we say that someone was a safety rep, raised concerns about health and safety, and lost their job and was blacklisted in the future, it sounds like paranoia. When you talk to people from other industries, sometimes they just do not believe that that sort of thing would happen, until we actually get the documents and bring in lots of different people who have sometimes been out of work for years on end. A fellow up in Manchester called Steve Acheson was dismissed for being a safety rep and has been out of work for about eight years out of the last 12. When you first hear that, you think, "Surely you could have got a job." When you see his file, you find that, when he gets a job, within a few weeks they find out who he is and he is dismissed.
He was originally blacklisted because he raised health and safety concerns about electrical safety. That was actually with Balfour Beatty or Balfour Kilpatrick, a Scottish firm. I genuinely believe that that has had an impact on the way health and safety is run and operated in the construction industry in the UK, because other countries do not necessarily have such a bad health and safety record. It is partly to do with the victimisation and partly to do with false self-employment in the industry, where the employers try to absolve themselves of all responsibilities. I think people have died, have had severe injuries and have picked up asbestosis over the years precisely because the unions have been pushed out of this and union activists have suffered for it.
Pamela Nash: Thank you.
Chair: I think that covers virtually all the points that we have, but Jim wants to ask another question.
Q149 Jim McGovern: It is possibly more an observation than a question. I am sure Dave is aware of this, but, back in the mid-’90s, there was a big dispute in Dundee-the Timex dispute. I was quite close friends with quite a number of the shop stewards who were on the shop stewards’ committee at that time. Once they closed Timex and the dispute was finished, those shop stewards had great difficulty getting employment elsewhere, even though they were fully qualified engineers. They were able successfully through the courts to sue potential employers for refusing to employ them because of their trade union backgrounds. Is your support group pursuing that sort of case?
Dave Smith: To be honest, that is exactly the sort of thing that we have tried to do. However, as I said, most of the tribunal cases have not actually ended up in tribunal, because they have been classed as so out of time. One of the main reasons that people did not put in claims 10 years ago saying that they had been blacklisted was that they would not be believed if they went to a tribunal and said, "I was a trade union safety rep on a job 50 miles away. Now I have applied for a job here and cannot get one." It just sounds implausible. All of the companies would have said, "There’s no such thing as a blacklist," and we would have had no evidence to be able to present our case. I cannot remember a single case that was ever taken against blacklisting by the Economic League. If one does exist, I don’t know of it.
I think it is very likely that the Timex workers were blacklisted, because the Consulting Association’s was not the only blacklist. There were other blacklists in operation. With some of them, it is even easier to get the people who were involved. When the Economic League was closed down, one of the organisations that were set up in its aftermath was the Consulting Association, but another organisation was set up as well. Basically, the chief executive and one of the directors of the Economic League set up a new company called Caprim Ltd. Because it was a limited company, you can actually get its records from Companies House. I am trying to remember the gentleman’s name off the top of my head.
Q150 Chair: How do you know that that was a blacklisting organisation?
Dave Smith: The two people who organised it were the chief executive of the Economic League and one of its directors. The other director of the company was one of the key funders of the Economic League prior to that. This information is quite widely available. Even in their own publicity material, they talk about how they can do individual checks for prospective clients or existing employees, if you want to check up on them. That is what their own publicity material says. They carried on doing that for a long period of time. They were set up in the early ’90s and carried on doing it until the raid on the Consulting Association, which happened in February 2009. Caprim Ltd went into liquidation the following month. It has been reported quite widely what Caprim was doing over a long period of time. If you ask where the other Economic League files went, I think a lot of them went to Caprim Ltd. There has actually been quite a lot of publicity about Caprim.
Q151 Chair: I must confess that I have not seen any of that. I was not at all aware of that.
Dave Smith: There was another organisation called the National Staff Dismissals Register. Ironically, it was partially funded by the DTI when it first came out. It was criticised by everyone, including, I believe, People Management, the human resources magazine. I think that even the Chartered Institute of Personnel and Development criticised it for being a blacklist. The National Staff Dismissals Register was for when a company dismissed someone because they were costing them money. It was dressed up as being primarily about theft. If a worker had stolen from their employer, when they went for another job, they would not say that they had lost their previous job for stealing from their company. All these companies would pool their resources and therefore they would not employ someone who had committed theft from a company in the past. But it was not just about theft. The information that was added to it could be anything that the company had lost money over. It could be that people had taken cases to employment tribunals against the company, even if the cases were successful. Once again, it could be that you were a health and safety rep or a trade union rep who had been involved in an official dispute. The trade unions criticised it quite widely at the time, but, as I said, even human resources officialdom criticised it as being a blacklist. I think that that one was wound up, but they actually got funding from the DTI to set it up.
Q152 Chair: Can I pull us back, because I think that we are just about at the end of the meeting. As I outlined at the beginning, the main remit for us is obviously matters Scottish. We have asked you to come back to us about the question of legal changes. As we say to everybody, if there are things that occur to you after you have left and you wish that you had thought of saying such and such, it would be helpful if you could let us have that. We would like our staff and our specialist adviser, Alan Ritchie, to discuss some of these items with you, if other things come up.
In particular, we want to be clearer than we are at the moment about whether there is any evidence that this is still going on. One of the observations that have been made is that all this is historical, bad practice went on and there is new legislation in place. All the files I have seen relate to a number of years ago. Are we simply pursuing something that is dead and gone? The question of clarifying whether bad practices are still occurring and, in particular, whether there is any proof of that is therefore a major issue for us because, if we were minded to suggest legislative change, we would obviously be asked whether this change is necessary. If there is no evidence of any misbehaviour going on, obviously the request for legislative change will be dismissed, which is a not unreasonable position. If anything like that that would be helpful to us occurs to you later, it would be useful if you could draw it to our attention.
Finally, are there any answers that you had prepared for questions that we have not asked you? Is there anything that you feel we ought to be told?
Dave Smith: There are a couple of things, if it is okay. You raise the issue of whether it is still going on. I think it is almost certain that it is still going on. Throughout my working life, the employers in the construction industry denied that there was such a thing as a blacklist. Whenever the trade unions raised it with them, they said it was complete paranoia and there was never a blacklist. Of course the evidence now shows that there was a blacklist and that it was not just something informal. It had a constitution, they were paying tens of thousands of pounds every year to be part of the operation and they were attending meetings, but it was all done in secret because they knew they were up to no good.
Do I think it is still going on? I absolutely think that. If I were doing it nowadays, it would all be done on the internet, with encrypted codes, so that it would not be so easy to find and documents would not be seized. In the offshore industry, there has been continued anecdotal evidence about activists being dismissed because of that. They have a system in the offshore industry called "not required back"-NRB. Any Scottish MP is probably fully aware of that. Lots of people have said that, effectively, it is a way of getting rid of trade union activists there. As I said, there was recently a dispute on the Olympics site. There are other workers-especially among the electricians, who have been involved in a very big dispute recently-who have been told to their face that they will never work on a major project in this country again, because it is still going on. Of course, when you ask whether we have evidence, it is very difficult. Inevitably, it is all hidden and secret.
In terms of Scottish companies, I wanted to point out a number of managers who were involved. We have talked about most of them. I have only one other from a Scottish company-Sir Robert McAlpine. In correspondence between Sir Robert McAlpine and myself, I asked which managers attended the meetings for Sir Robert McAlpine and dealt with the Consulting Association. The head of human resources, whose name is David Cochrane-he was certainly the head of HR between 1998 and 2009-has admitted in correspondence that he was the person who was doing it. I have identified today a number of senior managers, some at director level, who have openly admitted that or have had documents invoiced to them individually. I think they would be very good witnesses to bring in.
Finally, thank you very much for inviting me. There are 3,200 workers on this list, and a lot of them are Scottish. There are major construction firms on it, and a lot of the construction firms involved are Scottish. The other construction firms are such big players that they are clearly doing construction projects, including publicly funded construction projects, in Scotland. Carillion is now part of the PFI in the national health service and other issues and is almost certainly getting public funding in Scotland.
This is an absolute human rights scandal that has gone on. Professor Keith Ewing has called it the worst organised human rights scandal in Britain for over 50 years. If we were celebrities, this would be all over the newspapers. The Leveson inquiry is looking at celebrities having their telephones listened to. We are ordinary building workers, some of whom have been out of work time and time again-not celebrities who have a lot of money anyway, with a little bit of tittle-tattle on their phone, but people who have lost their jobs and sometimes their houses because they can’t afford to pay their mortgage, and have had family breakdowns because of that.
I thank the Committee for allowing us to do this. We are not victims; we are trade unionists. As trade unionists, we believe we can change things. That is why we are campaigning and will continue to campaign. When Rupert Murdoch went to the Leveson inquiry, he at least had the decency to apologise for what the company had done. To this day, not a single one of these multinational firms has apologised publicly for anything that they have done to any of us. I think that is an absolute disgrace. We are going to carry on the campaign. It will be me, but it will also be other people. There are people who have suffered much worse than I have. I hope you will get them into this investigation to talk to them, because you just have to carry on until we get some justice. Thank you very much.
Chair: Thank you for that.