2 The Consulting Association |
9. Ian Kerr worked for the Economic League from
1969 until its demise in 1993. In the latter stages of the League's
life, he was responsible for the Services Group, an association
of construction companies who collated data on potentially disruptive
individuals and which was physically housed on the premises of
the Economic League. Jack Winder, formerly Director of Research
at the League, explained:
The Services Group companies therefore provided the
information and added to it. It was put into the Services Group
file, which was separate from the League file, and then regurgitated
only to those companies.
10. Mr Kerr expanded on the purpose of the Services
Within the Economic League there was a group known
as the Services Group, which was composed of the construction
company members who were already, for the most part, members of
the Economic League. Because of the problems that the industry
perceived it hadI am going back to the early '70s, before
my involvement in these mattersthe industry decided it
wanted to take steps to cover itself because of the national strike
it had had in the early '70s, so that it would not be caught in
that way again. Subsequently, for a further subscription, those
companies wished to form what was called the Services Group. That
was operated within the Economic League on behalf of the construction
companies. Economic League staff were given an additional roleor
a rolewhich was to look after the construction companies'
needs, which were very wide- ranging.
11. When the Economic League was wound down in
1993, many of the companies which had been involved in the Services
Group decided that the purpose of the group was still valid and
sought to carry it on in another form. Mr Kerr told us that he
was approached to become 'Chief Officer' of a new organisation,
which became the Consulting Association, and that a number of
construction companies were involved in its inception. He named
them as Amey, Balfour Beatty Civil Engineering, Balfour Beatty
Construction, Ballast Wiltshier, Edmund Nuttall, Higgs and Hill,
John Laing, John Mowlem, Kier Group, Morrison Construction, Norwest
Holst, Sir Robert McAlpine Ltd, Tarmac, Taylor Woodrow, Trafalgar
House, Walter Llewellyn and Willmott Dixon.
In the early days of TCA, Mr Kerr told us that Bovis and G. Percy
Trentham were also involved, but quickly dropped out.
12. The Consulting Association was set up with
a Chairman and a Vice-Chairman, drawn from the subscriber companies.
The first Chairman was Cullum McAlpine, a director of Sir Robert
McAlpine Ltd, and the Vice-Chairman was Tony Jennings, of John
Laing. The main purpose
of TCA was to provide 'reference checks' on individuals. Cullum
McAlpine confirmed to us that the motive behind TCA was that "It
was going to provide a reference service to and from the members."
For this, subscriber companies paid an annual fee, initially £3,500,
and paid an additional charge for each name they submitted for
checking. The transaction
in information was two-way: as well as submitting names for checking
to TCA's database, the subscriber companies would also supply
information on individuals to be added to the database.
13. Mr Kerr also drew our attention to two other
functions which TCA performed. The first was organising meetings
for subscriber companies to discuss areas of mutual interest.
The second was the monitoring of journals and newspapers to keep
members of TCA aware of developments among the 'radical' or 'disruptive'
elements that concerned them. Mr Kerr explained:
I readI obtainedI made it my business
either by subscription or trawling around a lot of the very interesting,
I have to say, radical bookshops that existed in London. There
used to be a very good one in Camden, which closed, the Compendium.
There was another one in Charing Cross and in Caledonian Road
called Housmans. They used to be helpful. There was one in Leamington
] I had a subscription to the Socialist Worker, The Socialist,
Labour Research, which was a very good radical and statistical
magazine, and to a lot of anarchist magazines, which kept coming
and going by the nature of anarchy and anarchists. There was a
whole range of fringe publications around then.
14. The origin of the database from which TCA
drew its information is still unclear to us. Mr Kerr told us that
TCA inherited a core collection of files and reference cards from
the Services Group and the Economic League.
At the time that the Consulting Association was being
thought about, set up and considered, I was charged with finding
officers, putting phone lines in and all that at this point. At
that point, the construction names and cards were moved into the
Birmingham offices of the Economic League, which is where I was
based when I was with the company. The rest of the stuff, to the
best of my memory, was still kept in London, or whatever else
the League dealt with, be it cards or references. It was my job
to go and take those to bring them across once the new offices
had been set up, which was the old construction stuff that the
companies which were then called the Services Group were party
to and helped to generate, I suppose, in principle.
15. Mr Cullum McAlpine, of Sir Robert McAlpine
Ltd, confirmed that the information held by the Services Group,
under the auspices of the Economic League, was purchased on behalf
of TCA for £10,000. This was a controversial decision, according
to Mr McAlpine; several of the subscriber companies had become
sceptical of the purpose of the by then-defunct Economic League
and regarded association with it as potentially damaging in reputational
terms. Mr McAlpine told us:
Just as I became chairman, Ian Kerr told us that
the construction databank from the Services Group had to be paid
for and was going to cost £10,000. A number of the members
were not happy about that, because they believed that some of
the information in that databank was not the kind of information
that they would have put on to their own references to various
people. They were very mindfulconcernedthat there
were political and other references that were not part of what
the Consulting Association wished to be involved with, so there
was quite a discussion about whether this list should be purchased
from the rump of the Economic League. At the end of the day, Mr
Kerr persuaded us that it was the only potential database that
was available at that time and that it would be under his guidance;
he would edit it so that it would become reflective of what the
members of the Consulting Association would expect to have contributed
into the association themselves.
16. It is logical that a database of information
compiled on individuals regarded as 'troublesome' to the construction
industry would be transferred by the Services Group to the Consulting
Association. We note that Mr McAlpine confirmed that his company
paid £10,000 for the information which had been held by the
Services Group, to form the nucleus of the database from which
TCA would operate.
Sir Robert McAlpine Ltd. also provided an additional £10,000
to cover the start-up costs of TCA, the money for the information
from the Services Group having been a loan, which was paid back.
17. However, at this point, the involvement of
Sir Robert McAlpine Ltd. becomes somewhat more complex. If the
information held by the Services Group was transferred to TCA,
we heard that information on individuals held by the Economic
League itself was destroyed when the League was disbanded in 1993.
Mr Winder told us that the League's records were destroyed by
It was decreed by the chairman of the League that
all these records should be destroyed. Securicor came to the Birmingham
office and took away all the stuff for secure destruction. Stan
[Hardy] and I had to sign a statement to that effect for the central
There is a distinction to be drawn between information
held by the Economic League and the files held by the Services
Group. Mr Winder told us that, while the information he had collated
for the League was destroyed, the database maintained by the Services
Group was taken away by Mr Kerr, to form the core records of the
18. Mr Stan Hardy, the last Director-General
of the Economic League, professed bafflement as to why there would
have had to have been payment for the records of the Services
Group. When we put to him that McAlpine had paid £10,000
for the intellectual property rights to the Services Group's database,
he responded, "Hang onto purchase from the Services
Group? They were theirs. It was theirs to throw out."
The argument was that the Services Group member companies had
submitted the information contained on the database, and therefore
owned it already. It is not at all clear to us, under those circumstances,
why they would have had to pay any sum, let alone £10,000,
for ownership of the data.
19. Mr Winder, who had been Director of Information
and Research at the Economic League, and Mr Hardy then formed
a company called CAPRiM (Corporate Asset Protection and Risk Management)
in May 1993. Mr Winder told us that this company was created essentially
to provide employment for himself and Mr Hardy.
Both Mr Winder and Mr Hardy invested their own money in CAPRiM,
but they also received £10,000 from Sir Robert McAlpine Ltd.
Mr Winder characterised this payment as being "partly as
a good-will gesture and partly to say, "Keep clear of Ian
Kerr and all his works"".
He went on to explain that the subscribers to TCA did not want
the organisation to be tainted by association with former employees
of the Economic League. Mr Hardy confirmed that, while the £10,000
was ostensibly a retainer from McAlpine, it was in essence an
inducement to stay away from Ian Kerr and TCA.
20. We are not satisfied with
the explanations we have received about the creation of TCA and
the parallel development of CAPRiM. It is not at all clear to
us why any money would have had to have been paid for the files
of the Services Group, since it was a membership organisation
and therefore its property was, presumably, that of its members,
who went on to be the founding members of TCA.
21. Mr Kerr explained to us how TCA operated.
Apart from the subscription, members of TCA paid a fee for every
name they submitted for checking against the database. He said,
"It was a cost per name that was put through to the office
from a member to access their own information."
The amount of the individual charge varied between £1.00
and £2.20 over TCA's life.
Mr Kerr noted that there was a clearly fixed routine by which
subscriber companies accessed the database.
Each company had a main contact. Their details were
kept in what was called a red bindera red bookper
company. It was by company reference number and by name. There
was sometimes a second contact should that first contact not have
been there for any reason. In addition to that, there was a blue
book, which consisted of the personnel departments' users, who
were the day-to-day clerical users, who would be in charge of
amassing those names for whichever trades the company was putting
together for a particular project. Say they wanted 100 names or,
say, 20 people; they would probably put an advert in and accept
an application from 50, out of which they would probably eventually
take 20. Part of the process of deciding who to take was to put
those names through the Consulting Association.
He went on to explain that each company's main contact,
which would be a senior person at HR director level, controlled
a very small number of other contacts at the company, typically
two or three at most. Each company would also have a reference
number to be used in dealing with TCA. They would then fax to
TCA a list of people whom they were considering employing, and
Mr Kerr would check these names against the database which TCA
held. After this, Mr Kerr told us:
Most of the time we would go back, by telephone,
identify the list and say to the HR department girl or man, "All
clear." If there was a name that we had information on, we
would say to them, "All clear, except a certain name",
and that would be the end of the conversation. I would then speak
to the main contact.
22. It was clear from the evidence Mr Kerr gave
to us that there was a degree of secrecy in the relationship between
TCA and construction companies. He told us that the information
on names submitted, if any, did not go back to the HR department
of the company, and was in fact "deliberately withheld";
instead it would only go to the appointed main contact.
The explanation for this was that the main contact would be experienced
and would know the specific circumstances of the site on which
the proposed employees were to work, and would therefore be best
placed to judge what to do with the information. Mr Kerr stressed
that TCA did not in any sense editorialise the information they
provided, and that the judgement was left entirely to the companies.
"I gave him [the main contact] the information as it was
on a card, pure and simple, with no suggestion as to what he should
do with it, no comment and no interpretation."
23. Mr Kerr was reluctant to concede that this
process made TCA a blacklisting organisation, because he argued
that a person's presence on the files did not automatically exclude
them from employment; a decision was made by someone else (and
it is only fair to note that the service TCA was providing was
not illegal when it was established nor for a significant portion
of its lifetime). He argued that the service was "to bring
these names to their attention. It wasn't to facilitate them not
However, when it was put to him that he was involved in a process
which was used by subscriber companies to weed out individuals
who would then most likely not be employed, he agreed, "Certain
24. It is very clear to us that
the service which the Consulting Association offered was a blacklisting
one: that is, subscriber companies put information into and took
information out of a database, and they used the information on
that database to make decisions about whether or not to employ
certain individuals. We concede that the legislative framework
meant this was not initially illegal, and it was a service which
the Economic League had performed for many yearsbut by
the end of TCA's life it certainly was illegal and all those involved
should have know that. We consider it unethical, and to be condemned.
We do not accept the argument made in self-justification that
blacklisting did not occur because people were not automatically
excluded from employment. This is evasive wordplay.
25. The Information Commissioner's Office (ICO)
became aware of the activities of TCA in 2008, after an article
was published in The Guardian.
The Deputy Information Commissioner, David Smith, told us that,
subsequent to that article, the ICO traced TCA to Droitwich and
sought and obtained a search warrant for the premises.
He went on to explain that scanning the media was one of the ways
that his organisation looked for possible breaches of data protection
law. The ICO obtained
the search warrant from Manchester Crown Court, then searched
TCA's premises in February 2009. The investigation was led by
David Clancy. He said:
We identified the Consulting Association database-the
card index system that operated the blacklist. With this was an
index system that clearly indicated A-Z who the workers were within
the database. We quickly identified the construction companies
that were using the database.
Mr Clancy added that the warrant issued by the court
had not given the ICO carte blanche; it allowed the ICO
team to search for a blacklist of workers in the construction
industry. What other information was held by TCA is an issue which
we discuss below.
26. The database held by TCA comprised 3,200
names. It was used
by more than 40 construction firms, and contained a wide variety
of information, including trade union activities, employment history
and personal and relationship details. The database was confiscated
by the ICO, who still hold it, and have allowed the Chair of this
Committee access to it under the condition of confidentiality.
We are grateful to the ICO for allowing this access, but we believe
that, in the public interest, the contents of the database, suitably
redacted, should be made public. We continue to discuss this matter
with the ICO.
27. Mr Kerr was fined £5,000 for breach
of the Data Protection Act. The money was in fact paid by Sir
Robert McAlpine Ltd, on the grounds that, in Mr Kerr's words,
he had "put [himself] at the front and took the flak".
In addition, 14 of the subscriber companies to TCA were issued
with enforcement notices. Mr Smith told us: "They [the enforcement
notices] basically said, "You must stop supplying information
and you must stop using this database."" To have continued
to use the services of TCA after being served with an enforcement
notice would have been a criminal offence.
The ICO contacted all of the subscribers and received a variety
of responses; some denied using the reference service of TCA;
some claimed to have been previous users but to have ceased using
it; some had changed ownership and identity since TCA was founded;
some claimed to have been mistaken for other entities.
Mr Smith said that the ICO did not use its powers to pursue the
matter further with any of the construction companies because
it was satisfied that the confiscation of the blacklist had closed
down the practice and the activities of TCA.
28. Having confiscated the material from TCA,
the ICO then publicised this fact and invited those who suspected
they might have been included on the blacklist to contact it.
2,400 individuals contacted the ICO by telephone, of whom 620
then wrote in because they were possible matches with individuals
on the blacklist. Of those, 198 were positively identified as
being on TCA's files.
This is a small proportion of the number of people on the blacklist.
Mr Smith said that the ICO had not been more proactive because
in many cases the information on individuals was incomplete or
out of date, and he did not feel that writing to addresses which
might no longer be applicable was a good use of resources. He
noted that the GMB and Liberty had criticised the ICO for not
doing more to alert individuals to the fact that they were on
a blacklist. He conceded that perhaps more could have been done,
but argued that the ICO had taken the action which was deemed
proportionate at the time.
29. Mr Smith did tell us that the ICO was now
working with the GMB and UCATT to try to coordinate an attempt
to match union members with names on the TCA blacklist. He also
revealed that his organisation was looking at a pilot of using
the services of a commercial organisation to contact the people
whose details were held by TCA.
We are likely to do a trial run of, say, 100 or 200
and write out to them to see what response we get. That will provide
evidence, Chair, for the points you are making as to whether there
really is a pent-up demand or people are not interested.
30. We are not satisfied that
sufficient action has been taken to alert individuals to the fact
that information was improperly held about them by the Consulting
Association, and that checks were made against this database by
construction companies. The ICO has relied too much on individuals
to take the initiative and contact it, rather than trying to identify
the people who were on TCA's blacklist. Many may be unaware that
they were being systematically discriminated against in employment.
They deserve to know. We acknowledge that the ICO is now doing
more to contact those whose names and details were held by TCA,
and we welcome this direction of travel, but encourage the ICO
to go further and to work closely with trade unions who have been
active in this field. We recommend that the ICO write to us to
update us on their progress.
31. We heard from several former construction
workers who believed they had been blacklisted. One, Dave Smith,
pursued a claim against Carillion through an employment tribunal.
Although Carillion accepted that Mr Smith had been blacklisted,
his claim was unsuccessful on the grounds that he had not been
directly employed by Carillion but had been employed through a
sub-contractor, and therefore Carillion was not legally responsible
for him. We also heard from Alan Wainwright, who had formerly
been employed by Tarmac, then Carillion, then Haden Young, a subsidiary
of Balfour Beatty. He had raised concerns with the last named
about their use of the services of TCA. He told us that he had
then found himself on a blacklist for that reason and had been
unable to find work.
We also took evidence from Francis Graham and Steuart Merchant,
two electricians from Dundee, who believed they had been blacklisted
and are among a group pursuing a claim in the High Court. We are
grateful to all of those who shared their personal experiences,
and encourage readers to look at the transcripts of their evidence.
32. When TCA was wound up in 2009, it had various
outstanding costs. These were met by Sir Robert McAlpine Ltd.
Mr Kerr said:
We had a surplus of £58,000 from which we were
not able to cover all the winding-up costs, including statutory
redundancies to the staff and to me. They covered the shortfall
on that and the contract we got out of with rent and rates on
copiers and all that sort of thingthat we had to get out
of and cancel. We covered as much of that as we could out of the
£58,000 and there was still a shortfall. There was also a
payment made to a solicitor for the costs of representing me at
one of the IT cases as a further payment.
He indicated that the shortfall was of the order
Cullum McAlpine, a Director of Sir Robert McAlpine Ltd who was
the first Chairman of TCA, claimed that his company had not been
obliged to cover the winding-up costs of TCA, but had felt it
was the right thing to do. "We did not have to do it, but
it was sensible to do it. Mr Kerr was an officer of the organisation
and had incurred costs because of his role in the organisation."
He added that it was "humanitarian, fair and reasonable"
to pay Mr Kerr's fine.
33. Mr McAlpine also explained that his company
suggested to other members of TCA that they might help cover the
costs. "We did approach a couple of the members, one of which
was sympathetic. Then I think everybody ran for the hills."
BAM and Vinci had initially been supportive, but in the end the
total costs were covered by McAlpine.
34. One issue on which we still do not have clarity
is the full extent of the information held by TCA, and how much
of it remains. David Clancy, of the ICO, told us that his team
took away only a small proportion of the documentation which was
held in TCA's office in Droitwich. "We are talking of between
5% and 10% of what was in the office. What the other 90% or 95%
was I can't comment on because we didn't go through lots of it.
We just took the information that was relevant to our inquiry."
He insisted that it had not been necessary to look at anything
else, because he had been certain that he had found the blacklist,
which was all that was within the scope of the warrant. "We
didn't go through all the other information. We looked and said,
"We are satisfied that that is the information. That is the
blacklist that operates within the construction industry.""
However, Ian Kerr confirmed to us that other information was held,
including some files on environmental activists.
These were not taken away by the ICO and were subsequently destroyed.
The only evidence that remains is the names of individuals.
35. Mr Kerr also explained that the ICO had returned
to him photocopies of the documents they had confiscated. The
vast majority of these were burned,
and after his death Mrs Kerr passed to us some documentation which
he had left in his possession. However, it is not clear to us
what happened to the alleged 95% of the papers that the ICO claim
to have left behind. It may be that these were among the items
Mr Kerr told us he destroyed.
36. We find the ICO's justification
for leaving behind the vast majority of documents at TCA's office
unconvincing. We accept that the ICO was concerned that the warrant
which it had obtained was limited in scope, but we regret that
more documents were not seized. Even if the Consulting Association
is now defunct, there remains the possibility that its activities
could have been more widespread than has so far come to light.
A greater degree of curiosity on the ICO's part might have demonstrated
this one way or the other.
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More information about Mr Wainwright's case can be found at alanwainwright.blogspot.com. Back
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