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Watchdog’s blacklisting investigation questioned by Labour

Shadow business secretary Chuka Umunna has written to the Information Commissioner’s Office demanding to know why the watchdog did not seek a wider search warrant for its blacklisting raid in 2009 and whether it is investigating the existence of further lists.

The letter, which was also sent to CN, says it was a matter of “great concern” that the vast majority of documents at the Consulting Association site investigated three years ago were left untouched.

Following a raid carried out by the Information Commissioner’s Office in 2009, the Consulting Association was found to hold records of 3,213 workers.

The drive to inform those on the list is being facilitated by the trade unions, and Mr Umunna warned against the sidelining of blacklisted workers who were not union members.

Labour MP Tom Watson last week urged the ICO to follow the example of the Metropolitan Police in informing victims of phone hacking, according to the Financial Times.

So far, the ICO says the lack of accurate data held on some listed workers has made it difficult to contact all of them, and told CN it would be running a pilot exercise with a sample to see if it could get in touch with all the workers on the database.

The spokesman said the ICO had seen “no evidence of the existence of any other employment blacklists, whether during the investigation into the Consulting Association or since”.

He added: “The nature of the ICO’s role as a regulator means we need the courts to issue us with a search warrant before we can compel a company to allow us to search their premises.

“In the case of the Consulting Association, that search warrant allowed us to look specifically for evidence proving the existence of a construction industry blacklist, with a view to using our powers under the Data Protection Act to close the list down.

“The files we seized enabled us to do exactly that. The warrant did not permit us to search the premises further.”

The GMB union said the ICO had given it “weak and depressing excuses” for not contacting people on the list.

Until recently the ICO was only committed to telling those that approached the body whether they were on the list.

The ICO met with the GMB on 12 September and is working with the union’s lawyers to help identify which members may be on the list, while UCATT is involved in a similar process.

A source close to Mr Umunna refused to rule out further action being taken in parliament, telling CN it was “a developing issue” and that the ICO should do “everything in its power to inform victims as soon as possible”.

The ICO revealed to a parliamentary committee last week it had only removed 5-10 per cent of files from the Consulting Association when it raided the firm for evidence in 2009.

A BIS spokesperson said: “The government takes blacklisting very seriously and changed the law in response to the findings of the investigation by the UK Information Commissioner.

“Regulations introduced in March 2010 make it unlawful for trade union members to be denied employment through blacklists.

“Under employment law, individuals cannot be refused employment or the services of an employment agency because of their trade union membership.

“They are also protected against detriment and dismissal on the same grounds.”

The full text of Chuka Umunna’s letter to the information commissioner Christopher Graham:

Dear Mr Graham,

Blacklisting – The Consulting Association

I am writing further to the evidence given last week by your officers to the House of Commons Scottish Affairs Committee regarding the blacklisting of individuals by The Consulting Association (“CA”) and related enforcement action taken by the Information Commissioner’s Office (“ICO”).

As further evidence of blacklisting in the construction sector emerges, we already know that thousands of people have been affected, livelihoods have been destroyed, reputations unfairly tarnished and families torn apart by consequent financial stress.  Employees were blacklisted merely for exercising their human right to belong to a trade union, standing up for their colleagues or for raising legitimate health and safety concerns.

I have seen at first hand examples of the files held by the CA, run by Ian Kerr until his premises were raided in 2009, and was shocked by both the scale of the blacklisting and the level of detail held on the files – in some cases they even included information on employees’ private lives.

The further tragedy is that the vast majority of the individuals affected have no idea that they were included on the CA list: no way to make sense of why work dried up and they were continually turned away from construction sites; and in some cases, why their lives fell apart.

Given the huge detrimental impact on those affected, it is imperative that they are informed so they can seek redress.  With proceedings currently ongoing to seek compensation from firms which are alleged to have used the CA list, only a small window of time remains for those affected to add their names to the collective action.  That is why we believe you must do everything in your power to ensure that the blacklisted workers are informed swiftly, adopting a proactive approach.

Giving oral evidence in Parliament last week, Deputy Information Commissioner David Smith admitted that the ICO could and should have done more to ensure that affected individuals were notified. It is crucial that this is now rectified.

I understand that the ICO is working alongside trade unions in order to facilitate this process, and we welcome this approach. However, in their evidence last week, your officers admitted that not all those on the list were trade union members, and so it is crucial that those who do not belong to a trade union who are on the list are not overlooked by the notification process adopted.

It emerged last week that when ICO officials conducted their search of Mr Kerr’s premises in 2009, 90 to 95 per cent of documents on the site were not removed and were left untouched. Understandably, this revelation has caused great concern: it is possible that there are many thousands more employees who were blacklisted, with their details held on files by Mr Kerr.

I would be grateful if you could clarify:

1.       Why the ICO did not seek a further warrant to search Mr Kerr’s premises for other files;

2.       Given that ICO officials giving evidence last week admitted that there were strong grounds for suspicion that files were passed to construction companies without employees’ knowledge or consent, why a warrant to search the firms listed as having used Mr Kerr’s blacklist was not sought.

3.       Whether there are any further investigations ongoing in relation to the unrecovered documents, or have been attempted since the initial raid, and what steps you plan to take in this regard.

4.       Are you pursuing investigations into whether blacklists existed in relation to other sectors or were operated and maintained by other bodies distinct from Mr Kerr and The Consulting Association.

I look forward to receiving your response.

Yours sincerely

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