One morning in February 2009, two investigators from
theInformation
Commissioner's Office(ICO) knocked on the
door of The Consulting Association, set discreetly off an alley in
Droitwich, West Midlands.
A 30-year covert operation to build a
database blacklisting union activists in the construction
industry was about to come to an end.
The raid was the culmination of one of the ICO's most ambitious
investigations. The data watchdog took unprecedented legal steps
during its eight-month probe. It
named more than 40 of the country's biggest construction
companies as having potentially broken data laws. And the
investigation led to questions in parliament and a promise by the
government to outlaw blacklisting.
From 1919 onwards, the Economic League was the most prominent
organisation involved in the blacklisting of so-called subversives.
It was paid by companies, and worked closely with Special Branch,
to compile databases of individuals. It was wound up in the early
1990s after pressure from the media and parliament exposed its
flawed operations.
Many of its operatives went to ground and the files went with
them. Ian Kerr, the 66-year-old who ran The Consulting Association,
was one of them. Kerr had worked for the organisation spying on
trade unions, according to a former director general of the
Economic League. "He was a key guy. He was one of our most
effective research people. His information was genuine and
reliable," he said in a newspaper interview.
Construction blacklist comes to
light
For years, rumours circulated in unions that the construction
industry in particular still used blacklists. But how they operated
was a mystery. Last summer,
The Guardian talked to construction workers who said they had
been blacklisted.
Blacklisted construction
workers outside Macclesfield Magistrates
Court (from left to right: Tony Jones, Howard Nolan,
Steve Acheson, Graham Bowker, Sean Keaveney)
One was
Steve Acheson, a 55-year-old electrician from Manchester who
had barely worked in a decade. He had won an employment tribunal
for wrongful dismissal. The tribunal, unusually, had accepted
evidence that Acheson had been blacklisted.
The article landed on the desk of David Clancy, investigator for
the Information Commissioner. On the door to the office he shares
with his three fellow investigators, all with police, military or
Customs and Excise background, there is a sign saying "Abandon hope
all ye who enter here".
Clancy's first job was to establish if there was a case worth
looking into. So he talked to Steve Acheson.
"The day he turned up, I had just received a letter turning me
down for work," said Acheson. "I told him he could not have come at
a better time. "I didn't think he would find much. I told him this,
but he said, 'Once I get my teeth into something I don't let
go.'"
Clancy tracked down
Alan Wainwright,
a former construction company manager, who gave key evidence in
Acheson's tribunal. Wainwright had a huge amount of information to
share. It was clear that there was a prima facie case that required
investigating.
The ICO investigators believed that construction firm Haden
Young had information they required. The ICO took the unprecedented
step of making an unannounced raid on the firm's premises. This
power, under Section 9 of the Data Protection Act, had not been
used before in a case of this kind. The raid ultimately led the ICO
to The Consulting Association and Kerr.
| On the
blacklist |
|---|
Alan Wainright, who worked as a manager in the construction
industry, gave crucial evidence in an industrial tribunal brought
by 55-year-old electrician, Steve Acheson, which exposed the
illegal practice of blacklisting in the construction industry. Wainright worked for construction firms Crown House, Drake and
Scull, and Haden Young. He came across Ian Kerr, who ran The
Consulting Association, in 1997, and found each firm made use of
Kerr's services. He was told that Kerr was a private investigator employed to
carry out checks on staff to identify undesirable employees. And
Kerr told him that many construction companies supplied him with
information. Laing O'Rourke, which now owns Crown House, Emcor, which owns
Drake and Scull, and Balfour Beatty, owner of Haden Young, say they
do not condone blacklists. Wainwright left Haden Young in 2006. He launched and lost an
employment tribunal and became convinced that he too had been
blacklisted. But no one seemed interested in his story, until
now. |
Evidence of illegal
data trading
Construction firms paid a £3,000 annual fee to The Consulting
Association and a further £2.20 for a single name search. More than
40 of the biggest names in the industry had, at one time or
another, subscribed.
Yet for all the money flowing in, the investigators were
confronted with a shabby two-room office. The furniture dated from
the 1970s and 1980s, with an electric typewriter on one of the
desks and a sophisticated photocopying machine.
Almost immediately, one of the investigators found a ring-binder
in a rather tatty plastic cover. Inside it were names, addresses
and national insurance numbers.
Then they found a card index. It very much resembled the way a
police local intelligence filing system might work.
Card index database seized from Kerr’s
office
It was organised alphabetically and each card related to a name
in the folder. The cards contained newspaper clippings, employment
history and personal comments. There were files on 3,213
construction workers. The companies named in the files were only
identified by code numbers, details which Kerr later gave to the
ICO. Also recovered were invoices from some of the firms which
subscribed to The Consulting Association.
Clancy describes seizing the database as being "like
Christmas".
"This had been going on for years," he says. "Steve Acheson and
others had never been able to get to the bottom of it, but suddenly
we had an answer. It was a nice feeling."
Kerr admits to
crime
Kerr subsequently pleaded guilty before magistrates in
Macclesfield to breaking data protection laws and is due before a
crown court for sentencing. He faces an unlimited fine or
imprisonment. Magistrates also ordered a full disclosure on the
organisation and membership of The Consulting Association.
The ICO is now considering issuing information notices to some
20 construction companies to
warn them to handle data correctly. More than 120 people have
recovered their blacklist files via the ICO and unions are planning
group legal actions against those responsible.
A page from Graham Bowker's
file
There is a feeling of satisfaction at the ICO about how this
particular investigation has panned out. It is easy to forget that
it could have ground to a halt at several key stages. It may not
even have started if the ICO employee had not seen the newspaper
article. The hearing before the judge over the raid set a legal
precedent but could have failed. The Haden Young raid could have
blown the operation. A simple phone call could have alerted Kerr to
the ICO's interest. As it turned out, if there was a call, Kerr did
not stop.
Even on the day his premises were raided, the investigators only
got in because the owner of adjoining property let them in through
a communal door. "The stars must have been all aligned," says
Clancy.
New powers to
aid future investigations
Proposals under the Coroners and Justice Bill could
give the ICO new powers that will make investigations like this
more commonplace.
For instance, it would enable the ICO to do spot checks on
government departments to make sure their data handling processes
are correct. The ICO argues that the same right should also be
extended to the private sector.
Information notices could also be served on third parties during
investigation. This would oblige it to provide information or face
a contempt of court charge.
Clancy says such powers would have helped his investigation.
He admits that these are "quite serious powers", but says the
effect that Kerr's blacklist had on more than 3,000 people over the
past few decades shows the equally powerful impact data can have in
the wrong hands
| Ian Kerr:
guilty |
|---|
Ian Kerr pleaded guilty last month to running a covert database
containing personal information used to blacklist more than 3,000
construction workers. Magistrates in Macclesfield sent Kerr for sentencing at crown
court because they believe the maximum £5,000 fine they could
impose was not sufficient. The crown court can impose an unlimited
fine. They ordered full details on Kerr's firm, The Consulting
Association, be disclosed so the court could properly sentence
him. Kerr's offices were raided by officials from the Information
Commissioner's Office (ICO) in February following a nine-month
investigation. Kerr was charged with offences under the Data Protection Act of
not registering as a data user and not handling data correctly.
Kerr's solicitor, James Strong, told the magistrate that Kerr was
only an employee of The Consulting Association, drawing a £47,000
annual salary, but he was unable to give any further information
about the group. Mick Gorrill, assistant information commissioner, said that
Kerr's offences "went to the heart" of the Data Protection Act
because people were unaware of the information held on them and
could not check it. The information commissioner is now looking at issuing
enforcement notices against some of the construction firms which
subscribed to Kerr's services. A dozen construction workers who had been blacklisted were at
the court to hear the verdict. Steve Acheson, a blacklisted Manchester electrician, said,
"People have got a right to be a trade union member and it is not
right you should be blacklisted just for that. I am pleased at what
has happened." |