Taking Out The Trash

A winter Lobster

Lobster - the journal of parapolitics - has been published twice a year in print form since 1983; and today becomes an online only magazine.

Here's the table of  contents for the winter 2009/2010 issue:

• John Booth:
  Arnhem 65 years on
• Phil Chamberlain:
  The construction industry blacklist: how the Economic League lived on
• 'a consultant' reviews Alpha Dogs
• Robert Henderson:
  Laissez faire as religion
• Solomon Hughes:
  The curious case of Prospect
• Simon Matthews:
  The life and times of Simon Dee
• Robin Ramsay:
  The miners and the secret state The economic crisis Subservience to America
• Dr. T. P. Wilkinson:
  Superstition and Farce: the survival of the Inquisition in American political culture
• Book review

You can download a copy for yourself by visiting Lobster's website.

What a difference a week makes

Update: The Morning Star has a good comment on this

Update II: Building magazine reports that solicitors Guney Clark & Ryan is ready next month to begin formal legal proceedings against more than 40 companies in a class action suit that, in that favourite phrase of journalists, "could cost millions". They're using the Data Protection Act to bring the action. Amusing aside: the partner handling the case is Sean Curran who has also represented singer Pete Doherty.

Update III: Impassioned comment piece by Prof Keith Ewing in the Morning Star on the failures of the proposed legislation. Construction News on how MPs are being urged to amend the working when it comes before the house. (Having spoken to several and union officials one thing is clear - no-one has the foggiest what the process will be. How can the system be so opaque?)

*******

A little under a week ago the Government published its response to the consultation on outlawing blacklisting.

Its proposed regulations were cautiously welcomed - until people actually had a chance to read them.

Employment law expert Prof Keith Ewing reckons they're not worth the paper they are written on and several MPs who followed the issue closely are similarly disappointed.

Today UCATT, which last week broadly welcomed the publication, issues a stinging condemnation of its detail. In a statement it says:

Construction union UCATT fears that new regulations designed to outlaw blacklisting contain so many loopholes they will not deter the practice. In fact the Government’s consultation document appears to give the green light to employers to blacklist in certain circumstances.

In Ruined Lives UCATT’s submission to the blacklisting consultation, the union argued that the regulations should not just make it illegal to blacklist for “trade union activities” but should prevent blacklisting for “activities associated with trade unions”. The Government has totally ignored this key concern.

The difference is clearest in the event of workers stopping work due to serious safety concerns. This is considered to be unofficial industrial action. Such unofficial industrial action, which is legal, would not be covered by the proposed regulations and companies could continue to discriminate workers who took part in such a stoppage.

The Government’s response appears to encourage this. It says: “. The Government believes such [unofficial] industrial action is especially disruptive and injurious to orderly industrial relations because, by definition, the trade union has not endorsed and controlled it.”

Alan Ritchie, General Secretary of UCATT, said: “The Government has repeatedly promised to outlaw blacklisting. The proposed regulations fail to achieve this. Not only are these regulations entirely inadequate, the Government’s consultation response favours the continuation of blacklisting in certain circumstances.”

The Government also fails to address the routine blacklisting of safety representatives and campaigners, which was a notable feature of the Consulting Association’s blacklisting practices.

The Government gives credit to the Heating and Ventilating Contractors Association call that, “vetting of prospective employees was necessary to weed out trouble-makers, criminal elements or other undesirable people”. Its document says: “virtually all vetting activity which should normally have nothing to do with trade union matters, is left unaffected”. The Government’s response also clearly says it, “does not consider that a safety exemption should be created”.

UCATT are highly disturbed that the failure to specifically protect safety representatives and the allowance of “vetting” for activities other than trade union matters, will mean that these workers will continue to be considered by employers to be “trouble-makers” and “undesirable people” and as such will continue to be blacklisted.

As I write in an article for Tribune this week - the dilemma for campaigners is whether to try and amend the regulations as they pass though Parliament and face losing the proposal outright if they run out of time ahead of a general election, or accept what is being offered in the hope of amending it in the future.

A week ago they might have taken what is offered - now I'm not so sure.

Meanwhile I've had a couple more responses to my FOI requests to police forces for information held by them on The Consulting Association and its boss Ian Kerr.

As reported previously, both the Met and West Mercia could neither confirm nor deny holding information and denied my request on various exemptions including the security services and national security.

Greater Manchester Police have now given the same response citing the following exemptions:

Section 23(5) – Information relating to Security Bodies
Section 24(2) – National Security
Section 30(3) – Criminal Investigations
Section 31(3) – Law Enforcement
Section 38(2) – Health and Safety
Section 40(5) – Personal Information

However Merseyside Police have written to tell me:

In this case we have not yet reached a decision on where the balance of the public interest lies in respect of either of the above obligations. Therefore we plan to let you have a response by 18/12/09.  If it appears that it will take longer than this to reach a conclusion, you will be kept informed.

The specific exemption(s) which apply in relation to your request is/are;

Section 24 National Security
Section 30 Criminal Investigations
Section 31 Law Enforcement
Section 38 Health & Safety

which require public interest tests. This is what is currently taking place.

I know they could ultimately refuse and neither confirm nor deny information is held. However, is it just me or could there only be a public interest test to be applied if there is information to consider? Or is that the act of releasing in theory needs to be tested? I feel like I'm getting into Rumsfeld's known unknowns so any FOI experts out there who can shine a light would be most welcome.

Government announces rules outlawing blacklisting

This press release was issued this morning by the Dept for Business, Innovation and Skills

Update: See below for response from UCATT.

Update II: Report by Computer Weekly on this as well as one by the Morning Star and Unite the union has issued a press release. And a Facebook site has been set up to defend blacklisted electrician Steve Acheson.

Update III: Prof Keith Ewing, employment law expert from King's College London who wrote the UCATT report Ruined Lives, called the proposed legislation "disgraceful" and added: "In their present form the regulations are not worth having; they change nothing, give no new rights, and its is a delusion to think otherwise."

BLACKLISTING TO BE OUTLAWED

It will be unlawful for trade union members to be denied employment through blacklists under plans outlined by Employment Relations Minister Lord Young today.

To prevent employers from blacklisting workers for their trade union membership or activities the Government will introduce new rules banning the practice. The move comes as the Government publishes its response to a public consultation on the subject held over the summer, and follows evidence that a number of employers in the construction sector had been unlawfully vetting workers.

Employment Relations Minister Lord Young said:

“Blacklisting someone because they are a member of a trade union is totally unacceptable.

“There is already legal protection against the misuse of people’s personal details. We will now strengthen the law by introducing new regulations to outlaw the compilation, dissemination and use of blacklists.

“The Government is determined to stamp out this despicable practice and our legislative proposals are a proportionate and robust response”.

The regulations will:

• make it unlawful for organisations to refuse employment or sack individuals as a result of appearing on a blacklist;
• make it unlawful for employment agencies to refuse to provide a service on the basis of appearing on a blacklist; and
• enable individuals or unions to pursue compensation or solicit action against those who compile, distribute or use blacklists. 

The Government plans to table the regulations for Parliament to consider as soon as possible.   They will need to be debated and approved by each House before they can be implemented.  Provided Parliament gives its approval, the regulations could be brought into effect early next year.

Notes to Editors
1.      Under section 3 of the Employment Relations Act 1999, the government has the power to introduce regulations prohibiting the blacklisting of workers for their union membership or activities.

2.      In March the Information Commissioner reported that 40 construction companies had subscribed to a database used to vet construction workers, which has now been closed under data protection law.  On 16 July, Mr Ian Kerr, the individual who operated the database, was fined £5,000 at Knutsford Crown Court for committing a criminal offence under data protection law.   

3.      In response to this new evidence on 11 May 2009, the government announced that it would seek to bring forward legislation to outlaw blacklisting – the statement to Parliament can be found here http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090511/wmstext/90511m0001.htm#column_33WS

4.      A public consultation on revised draft regulations took place between 7 July and 18 August this year. The Government response to the public consultation can be viewed here: http://www.berr.gov.uk/files/file53734.pdf

Update: UCATT's response

Construction union UCATT have welcomed today’s publication (December 2) by the Department of Business of the new regulations designed to outlaw the blacklisting of trade unionists.

Alan Ritchie, General Secretary of UCATT, said: “Blacklisting is a disgraceful, underhand practice. Until early this year most major construction companies were involved in the blacklisting of workers. The introductions of laws, which are designed to prevent blacklisting, are welcome and long overdue. Never again must the lives of workers and their families be ruined because of blacklisting.”

The Government’s publication of the regulations follows a consultation exercise earlier this year. In its response to the consultation UCATT published a document Ruined Lives which argued that the regulations should be strengthened in order to ensure that all forms of blacklisting are eradicated.

Specifically UCATT called for the regulations to be extended to cover all “activities associated with trade unions”, that the discovery of a blacklist should result in it being automatically forfeited, maintaining a blacklist should be a specific criminal offence and being blacklisted should result in an automatic award for basic compensation.

The regulations need to be debated by both Houses of Parliament before becoming law. UCATT will explore with sympathetic backbench Labour MPs if the regulations can be strengthened when they are debated in the House of Commons.

Mr Ritchie, added: “UCATT will be working with members of Parliament in order to ensure that when the blacklisting regulations are finally introduced they are as robust as possible.”

What information is held by the police on The Consulting Association?

On a whim I put in a Freedom of Information request into West Mercia police as it covered the area where The Consulting Association was based.

I wanted to know if it had any information on TCA and/or on Ian Kerr who ran it on behalf of the construction industry as a secret vetting service. Partly this was sparked because the Economic League used to have good contacts with Special Branch as part of its modus operandi.

I wasn't massively hopeful about getting much of a response as I can think of at least two exemptions it might fall foul of (personal information and law enforcement).

And that assumes there was any link.

So today's letter from West Mercia wasn't too surprising but perhaps there is a nugget of interest if you keep reading.

FREEDOM OF INFORMATION REQUEST REFERENCE NO: RFI 2194/1

Firstly, the information I asked for on Ian Kerr was refused:

Your request for information has now been considered and I am not obliged to supply the information you have requested.

In accordance with the Act, this letter represents a Refusal Notice for this particular request.  West Mercia Police can neither confirm nor deny that it holds the information you requested as the duty in s1 (1) (a) of the Freedom of Information Act 2000 does not apply, by virtue of the following exemption:

Section 40(5): personal information

Any information that relates to an individual, or from which an individual could be identified, constitutes personal data and to release information that constitutes personal data into the public domain contravenes the Data Protection Act 1998.

The information that you have requested pertains to that of a third party and to confirm or deny that we hold information in relation to yourselves or a third party under the Freedom of Information legislation would in itself place such information into the public domain and would be in breach of the Data Protection principles, it is therefore exempt from disclosure, the exemption that applies to this type of information is Section 40 of the Freedom of Information Act 2000.

This action cannot be taken as confirmation or denial that West Mercia holds the information you have asked for.

I also asked about any information the force holds with regards to The Consulting Association. This was the response:

Your request for information has now been considered and I am not obliged to supply the information you have requested.

In accordance with the Act, this letter represents a Refusal Notice for this particular request.  West Mercia Police can neither confirm nor deny that it holds the information you requested as the duty in s1 (1) (a) of the Freedom of Information Act 2000 does not apply, by virtue of the following exemptions:

Section 23(5) Information relating to Security Services

Section 24(2) National Security

Section 30(3) Criminal Investigations

Section 31(3) Law enforcement

Section 38(2) Health and Safety

Section 40(5) Personal Information

If West Mercia Police states that no information is held for one request about an individual or group but then exempts for another, requestors will obviously be able to deduce with absolute accuracy what subjects or group’s police have an interest in.  Similarly we never release details of who we may consult with in relation to any police investigation as this would identify particular areas of interest or the purpose of the investigation and the type of people that may or may not be concerned.  This would be highly likely to undermine National security, any on-going investigations and any future investigations as it would enable targeted individuals or groups to become aware of police interest.  This would help subjects avoid detection; inhibit the prevention and detection of crime and place the advantage with the offenders.

Please be advised that any information released as a result of a Freedom of Information request, in effect, is being released into the public domain. Therefore, it could subsequently be published or would have to be made available to any member of the public if it were requested

And I asked about any information Special Branch might hold and was told to refer to the answers above.

Am I reading too much in to those exemptions quoted in the refusal to release information on The Consulting Association?

Update: The Met has just sent me the same refusal notice, same reasons.

Blacklisting round-up

It's a legal matter baby

In what some described as chaotic scenes, today saw the latest stage in the employment tribunal process for those bringing unfair dismissal claims because of blacklisting.

There are about 80 separate actions and so the tribunal service has lumped them all together. It held a case management discussion in Manchester. The aim was to work out what information was still needed by all parties and agree the next step.

To be fair to the service, it is an unusual situation and it appears that the claimants are being every opportunity to put their cases.

A few cases will be held early next year around the country but it's going to be well into 2010 before we see the bulk of these dealt with and these will all be heard in Manchester. If you run a hotel in the city I'd start putting together a special blacklisting rate.

The meeting was so packed with barristers and solicitors it could have been the Law Society's AGM. Today must have cost the various construction companies tens of thousands in legal fees, and the meter is still running. This is likely to prove a strong incentive for companies not to go the distance. (Indeed one case has, apparently, already been settled out of court). Claimants want to air their greivances but some cases will be ruled out of time. So there is a big question mark over how many will finally see the inside of a court room.

The waiting game

Tribune has a comment piece from Labour MP Dave Anderson on the blacklisting issue which says (among other things):

Any party that has aspires to be progressive should not need to argue about outlawing this type of discrimination and using tough new laws to do so. Ministers should work with the unions and Keith Ewing, author of the UCATT report, to put in place the real protection that many workers desperately need.

I've been checking Hansard daily and pestering Matt at the BIS press office weekly to see when the new regulations outlawing blacklisting are going to get published. Still nothing. I can't imagine they'd be sneaked out, could they?

Pointing the finger

Over at Northern Voices they've picked up on a particular aspect of the blacklisting story which I included in my Saturday piece for the Guardian. Interesting to see how this is taken up.

Blacklisting - it was for health and safety reasons

Update: Saturday November 21

The Guardian runs my feature today updating the various aspects of the blacklisting story; from the court cases to the pending legislation and the continued drip of information that the files are releasing.

Seventeen months after Guardian Work exposed blacklisting in the construction industry, new laws outlawing the practice are set to come into force, and next week 23 of its alleged victims will start their court cases.

But for electricians such as Colin Trousdale it doesn't mean the scandal is over....

Read on

Northern Voices follows-up today's story and Panopticon has a considered take on the latest developments. I'm also intrigued by its suggestion here of a particular project in this area.

****

Yesterday building firm Skanska, one of those which subscribed to a secret intelligence-gathering company, today revealed the results of its internal investigation into the matter.

People Management Magazine Online reports that:

Building firm Skanska used an illegal blacklist of construction workers to vet employees for a history of violence and drug or alcohol abuse, an internal investigation has revealed.

Harvey Francis, executive vice-president for HR, told PM that it had subscribed to the list, which contained confidential details of 3,213 construction workers, “to ensure the safety of people working on our sites” – not to blacklist people on the grounds of trade union membership as reported in the press.

One person a week dies on a construction site in the UK so it is a laudable aim to put health and safety front and centre. However, many of the blacklisted construction workers I have spoken to (and whose files I have seen) have ended up on the system because they raised health and safety issues. A campaign group representing families bereaved because of deaths in the construction industry has spoken out specifically about this.

The report says that the Skanska investigation has led to:

"all white-collar staff were given training sessions on a new company code of conduct, which included guidance on employee referencing. A new position of data protection officer was created, and all of the 80-strong HR team were retrained on a new data protection policy – with yearly refresher courses planned."

It's pretty clear from what Francis says that there was a system-wide failure in the HR department but, the report says, no-one has been sacked. So in one case we have mistakes that have been proved and no-one gets the chop. On the other hand, false or irrelevant allegations are made and construction workers industry-wide are sacked. Somehow it does not seem that people are being treated equally.

The human relations departments in construction firms have been pretty succesful in avoiding the spotlight in this scandal. It is to Francis's and Skanksa's credit that they have been upfront about their investigation.

Concerns about how the HR industry has acted have been raised - it would be useful to know what steps other companies have taken to overhaul their HR departments in the manner Skanska has.

Now RMT members found on blacklist files

Tribune magazine has posted up a news story from me about how RMT members have found they have blacklisting files. So far it was thought just construction workers in Ucatt and Unite were affected.

Members of a third trade union have been revealed as being victims of the infamous construction industry blacklist.

In February, officials of the Information Commissioner’s Office raided the Consulting Association in Droitwich. They discovered secret files on some 3,200 workers in the construction industry which had been maintained on behalf of building firms for vetting purposes.

Of the 238 files released so far, most have been on members of the UCATT and Unite unions – but now it turns out that some RMT members were blacklisted as well.

You can read the rest here.

Update

• The application by Scottish and Southern Electric for an injunction to stop picketing outside the Fiddlers Ferry power plant on Merseyside was thrown out of the High Court yesterday (wed). See the BBC and Building magazine (and a clip from BBC North West below).
• Out of 1,872 people who have rung the Information Commissioner's Office to see if a blacklisting file is held on them; 238 have had copies of their files sent to them. There were more than 3,200 names on the blacklist database in total.
• My review of Newspeak In The 21st Century is drawing some comment from Medialens: have a look for yourself.

Call for scrutiny of blacklisting legislation

A couple of weeks back I covered a meeting of the Blacklist Support Group where John McDonnell MP said that there would  only be a limited opportunity to inspect proposed legislation aimed at making blacklisting illegal.

Below is a release from Ucatt which explains why it is necessary for there to be scrutiny and why Lord Mandelson should not simply sign the rules into law.

I've filed a longer piece on this (and on many other aspects of the story) for The Guardian. We now await publication of the new rules.

In other news: one of the blacklisted electricians is due before the High Court tomorrow (Wednesday) having been served with an injunction to stop him picketing the Fiddlers Ferry power station on Merseyside. Scottish and South Electric claim he is a threat to the National Grid. Which seems a tad excessive.

A group of Labour MPs have agreed to work with construction union UCATT to pressurise the Government to strengthen the draft regulations designed to outlaw blacklisting.

 

The MPs agreed to take this action at the parliamentary launch today (October 20) of Ruined Lives, an academic report which reveals that the Government’s proposed anti-blacklisting regulations are inadequate. Ruined Lives was commissioned by UCATT and produced by the Institute of Employment Rights.

 

Professor Keith Ewing the author of Ruined Lives said the Government’s draft regulations were “hopeless and inadequate”. He described how the regulations do not provide a right not to be blacklisted, if a worker is blacklisted there is no automatic right to compensation and that it would not be illegal to supply information to a blacklist. The Government does not propose to make blacklisting a criminal offence so the burden of proof remains on the affected worker.

 

Mr Ewing also described how the draft regulations were too narrowly defined as they only referred to trade union activity, which could mean that the blacklisting of political activists would remain legal. The draft regulations also do not cover industrial action.

 

Alan Ritchie, General Secretary of UCATT, described how union health and safety reps were especially targeted by companies, as they were often swiftly laid off after assuming their duties and then were unable to find work with other companies.

 

Speaking about the need for the draft regulations to be strengthened Mr Ritchie, said: “The regulations don’t just have to be watertight they have to be airtight so the employers can’t wriggle out of them.”

 

John Winstanley a UCATT activist who was blacklisted throughout his working life told the meeting how between 1964-1987 he had 54 different employers, due to being blacklisted. Resulting in often having to claim benefits a situation which placed a huge “strain on his relationship”.

 

Despite having been in the construction industry for 50 years Mr Winstanley said that he felt he could not provide a reference for any of his family because of the, “fear that as I was blacklisted it would affect the work of my relations.”

 

The Government is due to publish the anti-blacklisting regulations before Christmas, following a consultation exercise that ended in August. The MPs have agreed to ask parliamentary questions, lobby the Department of Business and use parliamentary scrutiny methods in order to ensure that the regulations are strengthened.

Thursday round-up

Ferociously busy with work so lax with the posting but here are a few items:

I'm looking at putting together an online resource which will collate all the information published regarding the blacklisting scandal. This is in conjunction with Spinwatch. If you've got info/ideas which you think should be on such a site let me know. Meanwhile a Blacklisting Support Group has been set up. See my article in tomorrow's Tribune or a piece on Labournet.

Since January 26 2006: Two new children for me, a new president for America, a new Prime Minister for Great Britain, Spurs still providing comedy light relief for football fans. It's also the day I put in an FOI request to the National Offender Management Service (NOMS). Yesterday I got a letter from the ICO saying they upheld my appeal that NOMS should release me the info I asked for.
Three-and-a-half years. Including 250 days for them to carry out an internal review when the ICO says it should take 40 at most. Shouldn't be surprised as the BBC's Martin Rosenbaum made  clear a year ago.
Hopefully the results are going to end up in a newspaper article so that will be some satisfaction.

Finaly: via a tweet from Tom Watson MP this story about state-sponsored spyware in Blackberrys. Why would you call your surveillance app Interceptor though? Doesn't that kind of give the game away?