Category Archives: Right to work

The long history of blacklisting outspoken workers in the UK

Statewatch article: RefNo# 33255
“Every Man a Capitalist”: The long history of monitoring ‘unsuitable’ workers in the UK by Trevor Hemmings, Statewatch
Statewatch Journal; vol 23 no 2 August 2013
“Blacklisting is the practice of systematically denying individuals employment on the basis of information, accurate or not, held in some kind of database.” [1]

In February 2009, investigators from the Information Commissioner’s Office (ICO) raided the premises of The Consulting Association (TCA) in Droitwich, West Midlands, confiscating a database comprising 3,213 names that was being used by 43 construction firms to blacklist workers they deemed “unsuitable” for employment. [2] The seized database was only a small fraction of the information held by TCA, but inexplicably the bulk of the data was left behind and subsequently destroyed. Clandestine blacklisting by multinational construction companies, who submitted the names and addresses for vetting by TCA, denied employment to thousands of workers on the basis of their trade union membership, political beliefs and health and safety activities. [3] Information held in the database was often based on little more than “gossip.” As a consequence of the raid, in July 2009 the director of TCA, Ian Kerr, was fined £5,000 after admitting breaching the Data Protection Act, but his fine was paid secretly by Sir Robert McAlpine on condition that the company’s name was not revealed. [4] Kerr died a fortnight later, taking unknown secrets to the grave.

As a result of the high profile raid, the practice of blacklisting was belatedly made illegal in March 2010 by the introduction of the Employment Relations Act 1999 (Blacklisting) Regulations 2010, under which it is unlawful to compile, sell, use or supply a prohibited list (a list which contains details of people who have been members of Trade Unions or have participated in Trade Union activities). The law has been criticised by trade unionists as being too little, too late. Article 11 of the European Convention on Human Rights, which has been in force since 1953, protects “the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions.” [5]

In July 2012, 80+ blacklisted workers launched a High Court action against the construction firm Sir Robert McAlpine, a Conservative Party donor and builder of the Olympic Stadium, for the firm’s alleged role in creating TCA and cooperating with other firms to keep them out of work. [6] The head of McAlpine’s Human Resources department, David Cochrane, chaired TCA from 2006-2009 and the company effectively set up and funded it. Further insights into this “real live conspiracy” emerged when the House of Commons Scottish Affairs Committee heard evidence from a number of the key players and their victims in November 2012, some of which was later written up in an interim report published in April 2013. [7] The interim report was highly critical of the companies which failed to take responsibility for their “morally indefensible” blacklisting practices.

In January 2013, a House of Commons debate [8] moved by Labour MP Chukka Umana discussed police and security service collusion in the blacklisting and suggested that at least 200 environmental activists were also among those under surveillance by TCA. Umana told the Guardian newspaper:

“Very serious allegations have been raised, including by a serving ICO official who is himself a former police officer, that information contained on the blacklist files came from police and security services. This only reinforces the need for a full investigation into blacklisting so we can get the full truth of what went on.” [9]

In February 2013, the Metropolitan police reluctantly launched an investigation into allegations of collusion in the blacklisting of construction workers. The Met had previously dismissed a complaint from the Blacklist Support Group (BSG) which claimed the police had been involved in compiling the blacklist that came to light in the ICO raid. [10]

A brief history of the Economic League

The twentieth century was dominated by the role played by the right-wing Economic League (EL) in “countering subversion” between 1919 and 1993. Its early years are opaque, although works by investigative journalists such as Mike Hughes, Mark Hollingsworth and Richard Norton-Taylor have thrown some light on this period. [11] The father to TCA, the Economic League was formed in 1919 to fight Bolshevism, combat the “red infection” and “crusade” for unregulated free-market capitalism. The League emerged from various cliques of industrialists, such as National Propaganda (NP), which had close links to the early intelligence services and military. [12] In 1925 the Economic League became a permanent organisation under its first director-general, John Baker White, who had been an intelligence officer and had maintained the security links that formed the basis of the League’s data collection and blacklisting services. As Mike Hughes has pointed out, the Economic League had dual objectives: its council members, pillars of the establishment and other powerful men, opposed socialism overtly, while at a covert level they began to establish the framework of a shadow state. One early anti-democratic activity was a campaign to break the 1926 General Strike under the slogan “Every Man a Capitalist.” [13]

Throughout the 1920s and 1930s, the EL compiled records on trade union organisers, socialists and communists, sometimes based on information which originated from police files. There is also well-documented evidence that the EL and British intelligence agencies were cooperating at this time. [14] Despite this, the influence the League exerted on the British state over its first two decades had diminished by the Second World War when its model of unregulated free-enterprise came into conflict with the mixed economy supported by the mainstream Conservative Party, which was in government between 1951 and 1964. [15]

From the 1960s, a number of investigations, most notably by the Labour Research team, [16] published details of the blacklisting of workers, a practice the EL continued to deny until the 1969 publication of A Subversive Guide to the Economic League, [17] which revealed that in 1968 the organisation had an annual income of £266,000, £61,000 of which was contributed by 154 companies. Twenty-one known banks and financial institutions contributed as much as 47 manufacturing companies. According to the State Research Bulletin, in 1977 the top industrial donors to the Economic League were: Tate & Lyle; Imperial Group; Shell Petroleum Company; National Westminster Bank; Barclays Bank; Midland Bank and Lloyds Bank. The top four banks of the day were not only among the EL’s donors, four of their directors sat on the organisation’s Council. [18] Hollingsworth and Norton-Taylor cite a figure of £1m in annual income and 2,000 subscribers for the EL in their 1988 work, Blacklist. [19]

The EL’s profile became even more visible in the 1980s as investigative journalists delved deep into its clandestine activities to reveal more names of companies that were vetting the politics of potential employees. This information also showed that the EL worked with MI5 to blacklist more than 22,000 “subversive workers”, who ranged from trade unionists to individuals speaking up for work mates to anti-nuclear activists. [20] In light of these disclosures, in 1990 the House of Commons Select Committee on Employment heard evidence from the Economic League about its blacklist. This enabled campaigners and investigative journalists to exert further pressure on the organisation. The investigative journalist, Paul Foot, managed to obtain a complete copy of the EL’s blacklist and ran a series of pivotal stories in the Daily Mirror newspaper. Its practices exposed to the public, the EL was wound up in 1993. Data protection laws meant that it would have had to open its files to further scrutiny, revealing personal data on thousands of shopfloor workers, prominent trade unionists, journalists, political activists and Labour Party MPs. [21]

A chip off the old block: The Consulting Association

The Consulting Association grew out of the Economic League’s Services Group, whose membership was comprised of construction firms. A key link between the EL and TCA was Ian Kerr, who had played a lead role in the League for many years before becoming TCA’s chief officer. Unlike those he blacklisted and made unemployable (and in some instances destitute), while employed by TCA Kerr earned an annual salary of £50,000 plus bonus, had BUPA medical insurance and drove a Mercedes car. [22] Kerr gave evidence to the Scottish Affairs Committee shortly before he died, stating that TCA was founded in April 1993 with a £10,000 loan from Sir Robert McAlpine:

“[The Consulting Association] was started out of the Services Group (SG), operated by and within the Economic League (EL). A Steering Committee of key people in construction companies of the Services Group drafted a constitution. Key operating features of TCA were decided by representatives of the major construction companies, who were the original members.” [23]

TCA operated from 1993 until 2009. Unfortunately the full extent of its operations may never be known as the ICO seized “only a small proportion of the documentation” held at TCA’s Droitwich office. David Clancy from the ICO told the HSAC that:

“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.” [24]

Clancy argued that it had been unnecessary to look at anything else because he had “found the blacklist.” However, TCA’s Ian Kerr, giving evidence to the same committee, admitted that other information was held “including some files on environmental activists. These were not taken away by the ICO and were subsequently destroyed.”

Blacklist Support Group vs. Captains of Industry

The Blacklist Support Group (BSG) is a network of construction workers who have been blacklisted because of their trade union activities. [25] The network has run a campaign to “name and shame” the top construction company bosses who have chaired TCA and have also named the construction industry’s ‘main contacts’ with the covert blacklisting organisation. [26] The Group has published a list of company directors that have chaired TCA:

1993-1996 Cullum McAlpine (Sir Robert McAlpine)

1997-1999 Tony Jennings (Laing O’Rourke)

2000-2001 Danny O’Sullivan (Kier)

2002-2003 Stephen Quant (Skanska)

2004-2005 Trevor Watchman (Balfour Beatty)

2006-2009 David Cochrane (Sir Robert McAlpine)

The BSG is seeking to “blacklist the blacklisters” and asks: Where are they working now? Are they involved in publicly funded contracts?
The BSG has also demanded compensation for blacklisted workers and that the companies responsible for their loss of earnings be made accountable for their actions. BSG is demanding:

• A full public apology,

• Compensation for blacklisted workers,

• Denial of public contracts for blacklisting firms,

• Jobs for blacklisted workers on major projects.

Big spenders

The journal Building published a detailed analysis of the spending of 14 of TCA’s main users in a report entitled “Annual Spending by the Consulting Association 1996-2009.” [27] The main players were Sir Robert McAlpine and Skanska, each spending well over £200,000. They were followed by Laing O’Rourke and Balfour Beatty which both spent more than £100,000, with Carillion and Amec both spending around £70,000.

The Scottish Affairs Committee report also details the roles played by three major construction firms: Sir Robert MacAlpine Ltd, Skanska and Balfour Beatty, describing MacAlpine as a “major force” behind the blacklist and Balfour Beatty as a particularly “hard-nosed” user. Balfour Beatty is heavily criticised, with the SAC pointedly remarking:

“…we are sure that [the company] regrets being caught; we were less convinced that management regretted its involvement with TCA.” [28]

The TCA’s database was accessed by construction companies on an annual subscription basis – membership was at the invitation of an existing member – and a further £2.20 was paid for each name checked. The point of contact with TCA was usually through a senior executive in a company’s Human Resources Department who would submit a list of names, to be checked against a card file held by the Association. Over a four-year period, for instance, Skanska vetted 66,000 names of workers to be employed on Ministry of Defence building projects while Balfour Beatty was vetting 15,000 workers a year.

Red, black, blue and green

While the ICO’s flawed investigation seriously undermined attempts to confirm the broader scope of the TCA covert blacklisting service, other lines of inquiry have been more forthcoming. Ian Kerr’s evidence to the SAC described how blacklisted names were given different colours: black (for industrial relations – general); red/orange (mechanical and engineering); green (environmental activists) and blue (everything else). [29] While there is some question as to the veracity of Kerr’s statements, it is worth briefly exploring the scope of TCA’s activities.

Various industrial tribunal claims have resulted from the construction industry’s blacklisting of workers. Two examples will serve here as an illustration of the effects of blacklisting on individual construction workers.

Construction worker, Steve Acheson (58), from Greater Manchester, obtained a copy of his 22-page file following the ICO raid on TCA. Achesons’s trade union activities began in 1996 after the death of a 21-year old colleague at a site on which he was working. This compelled him to ensure that companies for which he worked complied with health and safety legislation. He has won four cases of unfair dismissal at various industrial tribunals. His TCA file began in April 2000 and confirmed that he had been placed on the blacklist because of raising health and safety issues and because of “suspected” trade union membership. The file included his name, address, date of birth, National Insurance number, mobile telephone number and a reference to his union membership. As a result of being blacklisted, Acheson was unemployed “for nine of the last 11 years and in the last five years [he] received only 16 pay packets.” On the few occasions when he secured employment he was swiftly removed from the site. This has had a devastating effect on his family and his wife had to work full time to support him.

Engineer, Dave Smith (47) had a 36-page file him held on him by TCA and he was repeatedly victimised for highlighting safety hazards on sites. The file contains many entries regarding Smith’s role as safety officer for the building workers’ union, Ucatt, while working on building sites controlled by John Mowlem and Schal International (both subsidiaries of Carillion) after he raised safety issues relating to the presence of asbestos and working conditions. In 2009, Smith became the secretary of the Blacklist Support Group. In January 2012, he pursued a claim against Carillion through an employment tribunal. Although Carillion accepted that Smith had been blacklisted, the company successfully argued that because he was not employed directly by them, but through a sub-contractor, Carillion was not legally responsible. Smith told the Guardian newspaper:

“This is about human rights. I have not done anything illegal; I am a member of a trade union. I have worked in an attempt to improve health and safety on building sites and yet it appears my employers, the state, security services and the police have been conspiring against me.” [30]

It should be noted that the majority of those who have sought redress through the courts have failed. [31]

The scope of TCA’s blacklisting has recently been shown to have included Irish construction workers; 370 people on the 3,200-name TCA database have typically Irish names. Irish workers were illegally barred from Ministry of Defence projects and the ICO’s David Clancy has alleged state involvement, saying that some information on TCA’s records “must have been supplied by either MI5 or police.” The Labour MP, John McDonnell, who has spent many years highlighting the blacklisting scandal, called for the truth on how Irish workers were targeted and asked “who in the state authorised or turned a blind eye to this organised victimisation.” To this end he called for an independent public inquiry into blacklisting:

“I am calling for an independent public inquiry into blacklisting because many believe that what we have found out so far about the activities of The Consulting Association is just the tip of an iceberg.” [32]

According to the GMB trade union, the TCA’s blacklist also included 582 workers who were living or working in Scotland. Describing the practice of blacklisting as “a deplorable activity that has ruined livelihoods for decades,” Labour MP Jim McGovern called “on authorities to look into whether it remains an ongoing practice.” [33] The GMB has met with officials from the Scottish government, which is considering preventing companies implicated in the blacklisting scandal from bidding for future contracts, worth billions of pounds. A Scottish government spokesman said: “Officials met union representatives to discuss new guidance to update existing public procurement processes and procedures in light of blacklisting of employees by contractors in the construction industry.” [34]

In January 2013, a House of Commons debate on blacklisting discussed police and security service collusion in the practice, suggesting that at least 200 green activists involved in road building protests were among those under surveillance by TCA. TCA’s Ian Kerr had revealed to the parliamentary committee that construction firms wanted information on green protestors after being “badly hit” by their campaigns in the 1990s. He told the MPs:

“In the mid-90s the industry was literally taken unaware by the people who came along and built treehouses, cut the hydraulic lines on the equipment and put sand in tanks, because at the time it was quite easy to win a contract and put a route through an area.” [35]

He went on to say that the construction industry had organised a meeting to debate green activism: “The targets were [activists at] the M11, Twyford Down, the Manchester second runway and the Bath eastern bypass.” [36]

In a recent Panorama television investigation [37] Ian Kerr’s wife, Mary, who worked as a bookkeeper for TCA, described the vetting that occurred during the building of the London “Dome” as extending to acrobats, dancers and entertainers who were seeking employment.

The legal fight back

An estimate of the extent of TCA’s activities can be gauged by legal documents lodged by Sir Hugh Tomlinson QC, acting on behalf of 80+ alleged victims of the blacklisting organisation. Their legal claim alleges that TCA’s clandestine database monitored the trade union activity of workers in the construction industry, including compiling details on industrial action, political views and affiliation and membership of unions, with entries frequently being made after workers had made complaints about matters concerning health and safety. Addressing health and safety issues was considered by companies to be likely to delay construction and therefore lessen profits for no discernible benefit. The TCA’s files did not only make recommendations on employment, with entries such as “do not employ” and “not recommended”, but even commented on individual’s relationships and wrongly accused others of criminal activities, such as accusing one man of claiming unemployment benefit while working. Victimised workers say that the conspiracy to run the blacklist caused them to suffer “loss and damage” by preventing them from obtaining employment [38].

The action also claims that Sir Robert McAlpine, and in particular Cullum McAlpine, had a central role in the establishment and operation of TCA.

“[Cullum] McAlpine was the founding chairman at the organisation’s inception in 1993. He was intimately involved in the foundation and operation of TCA. He formally offered Mr Kerr the position of director in August 1993. He finalised the written particulars of Mr Kerr’s employment, sending them to members for approval and obtaining legal advice in relation to them. He oversaw the arrangement of life and health insurance for Mr Kerr as part of his remuneration.” [39]

The legal claim also says that once TCA’s database was exposed in 2009 and Kerr was prosecuted, he was warned that if McAlpine’s name was mentioned the company “might encounter serious difficulty in obtaining major construction contracts.” Sir Robert McAlpine Ltd paid Kerr’s winding up costs, legal costs and the fine imposed by the ICO through cheques not paid to him directly. McAlpine was invoiced by Kerr’s daughter for “services rendered” and Callum McAlpine paid the bill. The company denies that these underhand payments “…were in any way linked to his taking responsibility or protecting Sir Robert McAlpine Ltd or any other member of the Consulting Association.” [40]

However, Mike Hughes, in an article for SpinWatch, has warned that the legal complexities of the case and obscurity of the law “means that it will be hard to see that even if this case is successful it will set sufficiently clear precedents to change recruitment practices in general.”

Commenting on the legal cases against Sir Robert McAlpine Ltd, a spokesman said:

“TCA was established by a large group of construction companies. All the member companies contributed to, and accessed information from, the CA from time to time. Directors and representatives of a number of major construction firms chaired CA over the years. These included Mr Cullum McAlpine who was chairman for a period in the 1990s.” [41]

The depth of the company’s state of denial was clear when a spokesman added that it had never operated a “blacklist.”

“We are, and have always been, wholly committed to maintaining good relationships with our workforce and to responsible trade unionism.” [42]


Protests at local and European level

At the local level, members of trade unions such as Unite have been leafleting, petitioning and demonstrating to mobilise public support to prevent local authorities using the companies that blacklisted, and in some cases allegedly continue to blacklist, workers. Unite is calling on local authorities:

“…to desist from using the services of companies proven to have blacklisted workers and in particular those companies, such as Royal Bam and Kier which appear to be continuing to abuse the basic human rights of ordinary working people.” [43]

Hull City Council voted unanimously to remove blacklisting firms from all council contracts at a full council meeting in December 2012. The council also recognised the GMB trade union campaign to win an apology and compensation for those who have been unable to work as a result of being blacklisted. [44] Around a dozen other councils in England, Scotland and Wales are considering moves to exclude blacklisting companies from local government contracts. The Blacklist Support Group has called on other local authorities to follow Hull’s lead:

“…until the blacklisting firms apologise and compensate the workers whose lives they have ruined. They have destroyed careers in order to increase their profits. As profits are the only thing that the blacklisting companies are interested in, perhaps losing publically funded projects will make them own up to their responsibilities.” [45]

The Unite trade union [46] maintains that blacklisting continues to be rife in the UK and that this is evident on the £15 billion publically funded Crossrail project (Europe’s largest railway engineering programme underway in southeast England). The union’s general secretary, Len McCluskey, has called for a national mobilisation against Crossrail consortium Bam Ferrovial Kier (BFK), after alleging that “blacklisting activity is continuing at Crossrail.” [41] The union says that workers’ have been excluded for raising safety issues, an allegation that will be tested at an employment tribunal by electrician, Frank Morris (38), who says that he was dismissed after becoming a union representative and voicing safety concerns.

At the European level, in April 2013 the Unite union led a delegation to Amsterdam to protest outside Royal Bam’s annual general meeting. Bam is the latest major contractor to have its overseas meetings targeted by anti-blacklisting protesters from the UK. Unite is running a campaign against the Crossrail project and its delegation to Holland was protesting at Bam Nuttall’s role in the London scheme. In the same month, the Blacklist Support Group and GMB trade union targeted the Skanska annual shareholders meeting in Stockholm. Unite’s assistant general secretary, Gail Cartmail, who attended the protest in Amsterdam said “Blacklisting ruins lives and we believe it is continuing today on Crossrail.” She continued: “Unite believes that the people of Holland and Bam’s shareholders deserve to know about Bam’s behaviour elsewhere in Europe.” [47]

“We are all Thatcherites now”

Following the death of former Conservative Prime Minister, Margaret Thatcher, on 8 April 2013, the current Conservative Prime Minister David Cameron paid tribute to her, declaring that “We are all Thatcherites now.” Thatcher, who laid waste to vast swathes of working class communities when taking on the miners and other trade unionists during an earlier programme of privatisation that left generations unemployed and unemployable, stands as an appropriate symbol for the blacklisting scandal. Like Thatcher before him, David Cameron has also targeted workers’ rights and imposed neo-liberal austerity measures that take from the poor to subsidise wealthy captains of industry, who continue to get vast bonuses that exceed what the average worker will earn in an entire lifetime.

The blacklisting and removal from employment of those workers who are represented by trade unions, or have the temerity to question health and safety standards, evokes this Thatcherite ethos, but also accurately signifies the role that working class people can expect to play in twenty-first century Britain. It is therefore unsurprising to find that the HSAC’s interim report also expresses grave doubts as to whether the illegal practice of blacklisting has actually ended. The Committee felt obliged to investigate the extent to which the practice continues within the construction industry and further afield, and will report its findings in a forthcoming report. In future sessions, the Committee will also examine the ongoing issues of compensation for victims and penalties for offenders.

However, it is clear that private websites, like HR Blacklist, [48] which describes itself as “an ethical human resources community for employers and employees” that promises to reveal “the truth about employees,” is continuing an old tradition. The company advertises five reasons for using its HR Blacklist:

1. Blacklisting an employee is free

2. Almost 50% of the candidates lie in their CV’s

3. Hiring the wrong person, may cost you money and reputation

4. Fast and easy CV search: find what other employers had to say about the candidate

5. Rate an employee, or check his/her rating

However, Mike Hughes has warned that:

“…the technology of blacklisting is moving offshore and embracing wiki models where the conspiracy becomes more dispersed and tortuous and certainly less actionable.” [49]

Endnotes

[1] House of Commons Scottish Affairs Committee “Blacklisting in Employment: interim report” (The Stationery Office), 16.4.13 link

[2] Information Commissioners Office “The Consulting Association” Press release (undated) See also: Phil Chamberlain “The Construction Industry Blacklist: how the Economic League lived on” Lobster 58, Winter 2009/10, for a detailed account of the raid.

[3] A Health and Safety Executive report published in April 2013 revealed that “nearly a quarter of building sites in London failed to meet minimum health and safety legal standards, BBC News 5.4.13. See link

[4] Daniel Boffey “McAlpine denies high court claim it had major role in ‘blacklist scandal’” The Guardian 12.1.13

[5] European Court of Human Rights “The European Convention on Human Rights” 1950 link

[6] “Blacklisted builders launch mass legal action against Sir Robert McAlpine” The Guardian, 29.7.12 link

[7] Op. cited House of Commons Scottish Affairs Committee 2013.

[8] Parliament “Blacklisting Debate: Opposition Day” 23.1.13. link

[9] Matthew Taylor “MPs call for inquiry into blacklist of green activists” The Guardian, 29.1.13

[10] ibid

[11] See for instance: Mark Hollingsworth and Richard Norton-Taylor, Blacklist: the inside story of political vetting (The Hogarth Press 1988) Mike Hughes “Spies at Work” (1995) online book: link

[12] See for instance the role played by Sir Admiral Reginald ‘Blinker’ Hall a director of Naval Intelligence who advised the government on the establishment of MI6 in 1909

[13] Op. cited, Hughes 1995

[14] Matthew Taylor “MPs call for inquiry into blacklist of green activists” The Guardian, 29.1.13

[15] Op. cited, Hughes 1995

[16] The journal Labour Research still publishes news and information for trade unionists and continues to play an important role in exposing the activities of major construction companies in illegal blacklisting. Website: link

[17] Labour Research “A Subversive Guide to the Economic League” 1969

[18] State Research “The Economic League” Bulletin No. 7, pp. 135-145, 1978

[19] Op. cited Mark Hollingsworth and Richard Norton-Taylor 1988

[20] David Hencke “Left blacklist man joins euro fight” The Guardian, 9.9.00

[21] When the Economic League was wound up two of its former directors formed a similar organisation called CAPRiM. The role of this organisation is enigmatic, but Ian Kerr has said that it was primarily an organisation that put out publications and checked potential employees curriculum vitaes. He also suggested that it was a vehicle to ensure that he and other ex-Economic League employees were able to maintain their standard of living.

[22] Op. cited Scottish Affairs Home Committee 2013

[23] Op. cited Scottish Affairs Home Committee 2013

[24] Op. cited Scottish Affairs Home Committee 2013

[25] The BSG blog can be found on the Hazards website. See link

[26] ibid

[27] link

[28] Op. cited Scottish Affairs Home Committee 2013

[29] Ibid

[30] Daniel Boffey “Blacklisted building workers hope for day in court after ruling” The Guardian, 3.3.12 link

[31] ibid

[32] Irish Post, 9.2.13

[33] The Courier, 5.2.13

[34] Paul Cahalan and Sanchez Manning “Building firms could face bans over blacklisting of workers” Independent 9.6.13.

[35] Op. cited Scottish Affairs Home Committee 2013

[36] Op. cited 7. Parliament “Blacklisting Debate: Opposition Day”, 23.1.13

[37] Panorama “Blacklist Britain” BBC 1, 10.6.13

[38] Daniel Boffey “Blacklisted builders launch mass legal action against Sir Robert McAlpine” Observer 29.7.12. link

[39] Daniel Boffey “McAlpine denies high court claim it had major role in ‘blacklist scandal’” The Guardian 12.1.13 link

[40] Panorama “Blacklist Britain” BBC 1, 10.6.13

[41] Op. cited The Guardian, 12.1.13

[42] Op. cited The Guardian, 12.1.13

[43] Tim Lezzard “Shoppers asked to support blacklisted workers (Union News 11.5.13)

[44] Morning Star, 4.1.13

[45] See Unite webpage:link

[46] Matthew Taylor “Unite calls for national action over Crossrail blacklisting allegations” The Guardian, 10.6.13.

[47] Will Hurst “Blacklisting protesters target Royal Bam” link

[48] HR Blacklist website: link

[49] Mike Hughes “First concerted legal action against blacklist will reveal need for a radical rethink of employment regulations” SpinWatch, 18.1.13

 

 

RIGHT TO WORK: Economic Rights Under Military Occupation

RIGHT TO WORK: Economic Rights Under Military OccupationPreface to 1st Edition Preface to 2nd Edition Introduction

Preface to First Edition

This report is published as part of a series of reports under the Economic, Social and Cultural Rights Initiative of LAW – the Palestinian Society for the Protection of Human Rights and the Environment.

The right to work, is a right set out in the Universal Declaration of Human Rights, which marked its 50th anniversary in 1998. In the International Covenants that gave force to the Universal Declaration, the right to work falls under economic, social and cultural rights covenant. The separation arose, not because there is any meaningful difference between the ESCR Covenant and that of Civil and Political Rights, but as a result of negotiations when drawing up the treaty. However, the division has developed in epic proportions, during the twentieth century, as civil and political rights moved to the centre of international and domestic discourse and may have become the principal stated goal of strategic policy, while economic, social and cultural rights remain the less-regarded twin.

International declarations, most significantly the 1993 Vienna Declaration, emphasised that human rights are interrelated, interdependent and indivisible and that, in practice, States should not be picking and choosing between rights. However, it remains the case that civil and political rights have precedence over economic, social and cultural rights in many respects.

This is due to an unwillingness of States to recognise the rights, or a belief that they involve large-scale expenditures, or have a political slant, or that they are quite simply not of the same nature as civil and political rights.

This has been evident in practice: whereas, civil and political violations are deemed worthy of serious and coordinated international attention, economic, social or cultural rights violations are viewed less seriously. Again, apologists have justified inaction on ESC rights in numerous ways but the result is the same: the person killed by a handgun is more serious than the person killed by poverty.

In all fairness, though there is a gap between the rights, there is also a gap between what decision-makers say about human rights and what decision-makers do. In the fifty years since the Universal Declaration, there has been significant standard-setting in human rights and corollary protection mechanisms, and even instances of actions against violating states, but it would be incorrect to state there is a global human rights policy that is effectively and uniformly applied.

One of the reasons for this inconsistency is that States are selective in the response and action they undertake. They balance national interests with human rights goals when deciding upon responses to gross systematic violations.

When meaningful action is undertaken, the target of these actions tend to be weaker States that are perhaps viewed as unorthodox – the present favourite unorthodox traits are Islamicism and perhaps Communism as a distant second. In both instances, States will point to civil and political rights violations to justify their interventions, even where other motives of national interest actually drive the action.

These arguments explain the selectivity in States’ responses to human rights violations. This selectivity tends to incense and confound victims of atrocities, when they see their own egregious situations are passed over, while others of less intensity or shorter tenure result in a mobilisation of the international community.

This partially explains why Israel has successively perpetrated serious human rights violations without an effective response from the international community. Israel’s abusive record, though consisting of systematic economic, social and cultural rights violations, tends to elicit greatest response when there are civil and political rights violations. In addition, Israel is an important economic, political and military power, States feel they have little interest in taking affirmative action to protect human rights, particularly when there are repercussions that affect their own interests.

During 1998, discussions of human rights and Israeli violations were very present: the years celebrated the 50th anniversary of the Universal Declaration of Human Rights at the same time as the 50th anniversary of the establishment of the State of Israel and, the 50th year of the Nakba. In the Nakba, thousands of Palestinians were killed and hundreds of thousands of Palestinians removed from their homes in Palestine to make way for Jewish colonisation. A process that would now be described as ethnic cleansing and would, the two arguments above notwithstanding, would be deserving of international intervention.

During 1998, for the first time, Israel came under scrutiny be the Committee on Economic, Social and Cultural Rights. The expert committee, created to examine States’ fulfilment and violation of the obligations of the International Covenant, severely criticised Israel for its violations against the Palestinian population living on both sides of the Green Line.

One other event took hold during the period of 1998, the UN General Assembly pressed the High Contracting Parties of the Fourth Geneva Convention to act upon their obligations to ensure Israel’s respect of the Convention. At the time of publication, High Contracting Parties had undertaken no measures of enforcement and neither had they called a conference, as proposed by the UN General Assembly, for this purpose. Nonetheless, the principal issue that had elicited the strong condemnation from the States’ Parties of the UN, were also economic, social and cultural rights violations, i.e. the removal of Palestinians and the establishment of Israeli settlements.

The Israeli Government led by Prime Minister Netanyahu set out in 1996 as one of its guiding principles the establishment of Jewish settlements in the West Bank and Gaza Strip, as well as in the Negev and Galilee. The irony is that Israel sees no division between the occupied territories and recognised Israeli territory; their large Palestinian populations provoke Israel’s selection of these areas and give them significance only arising from the Zionist mission of establishing Jewish colonies across Palestine. This mission is the same as that in the late 19th century, in 1948 and in 1967: it is directed towards the removal of the resident Palestinian population to make way for Jewish colonisation.

This is an endeavour that violates the Fourth Geneva Convention and should automatically involve consideration of measures of enforcement by High Contracting Parties. The UN General Assembly and the Fourth Geneva Convention, therefore, provides a suitable means to guarantee respect of these human rights where the human rights machinery is patently unable to secure the necessary respect. Fortuitously, in this instance, there are political considerations that have encouraged States to be driven to consideration of action. It remains to be seen whether there will be any meaningful intervention by State Parties of the Geneva Convention.

The appearance of Palestinian migrant workers is linked to the Zionist colonialist endeavour, they were and continue to be the cheap labour for Jewish-Israeli development. Their existence is evidence of colonialist economic policies within a post-colonialist era. The economic relationships in Palestine, as elsewhere in the developing world, are defined by a distortion in the power balance secured by political, military and economic dominance.

This work shares in this understanding of Israeli colonialist economics. However, it takes a legal perspective and draws conclusions incumbent in human rights law of responsibility, culpability and liability, creating an obligation on the wrongdoer for redress, including restitution. The argument is that Israel must return Palestinians to the position they would have been had Israeli military force not intervened in their economic, social and cultural development. This is a bold argument, but justified in our opinion by law, precedent and developing practice. By raising these arguments, it is hoped that the discourse on what is and is not acceptable in economic, social, cultural and related policy is re-examined and decision-makers and those that influence opinion embrace legal maxims about conduct and responsibility for violations.

This argument is just as relevant in other parts of the world where colonialist pursuits have been undertaken against or in disregard of the wishes of indigenous population. In this respect, this examination offers a case study in application of law to human rights violations.

Consequently, the approach of the authors has been to employ economic, social, political and other disciplinary analysis in the factual and legal examination of human rights. This is problematic as information can be contradictory and affirmative conclusions on approaches and policy are dependant on the point of view of the analyst. A number of views are apparent from the material analysed.

The view is that Israel operates colonialist policy in relation to workers and the Occupied Territories is aptly represented in this paper. This view draws on material that emphasises Israeli control.

A centrist view recognises the abuses of power, perhaps even accepts colonialist economic policy is at work or would, at least, recognise that there is discrimination of wages and employment. This group would hesitate to state that Israel has undertaken anything unlawful and may point to benefits to Palestinian workers and to increases in the Palestinian economy to support this opinion.

The third opinion would accept the Israeli Government position that the Occupied Territories are territory without sovereignty or with inconclusive sovereignty and anything provided to Palestinians, such as work, has been of mutual benefit or has solely benefited the Palestinian population. As evidence they would point to improvements in social and economic conditions, particularly by making unfavourable comparisons with previous Jordanian and Egyptian rule.

The legal approach criticises Israel for colonialist policies and refutes the power of an occupier to reduce the capacity of the indigenous populations to pursue its own development by making use of occupied resources. The abuse of power is crucial and it is irrelevant that the occupied population has obtained some secondary or improved benefit because, in this case, this is neither provable nor changes the fact that individuals and peoples are to be free from domination and consequent exploitation. The serious violations of dignity, particularly the wholesale extermination, removal or exploitation of peoples, are illegal. The law ignores the secondary and usually incidental benefits arising from these violations.

Just a note on terminology, economic, social and cultural rights tends to be described in this long-hand form or as ESC rights or ESCR. The phrase “human rights” is tended to be reserved for the benefit of civil and political rights. The authors, adopting the Vienna formula, view the rights as indivisible, inter-related and interdependent, as this is the only construction that can be accurate under human rights jurisprudence. The definitions between ESCR and civil and political rights are not insuperable barriers but are mere separations to make the work of practitioners and beneficiaries in analysing and understanding the texts simpler. The authors, thereby, reject any preference given to one right or sets of rights over another as legally incorrect and choose to use the phrase human rights in its true construction, except on occasion, where it is necessary to distinguish rights, for the reader’s ease, a distinction is made.

It is true that the term ‘human rights’ is more associated with civil and political rights and this may reflect Government apprehensions about economic, social and cultural rights. In defence, the authors argue that the one-fifth of the world’s population suffering from acute economic, social and cultural rights violations and the 40 million that die of hunger each year would not make such a preference. As human rights are innate, it must be the case that their opinions override the willingness of States to accede to the full recognition of these fundamental rights.

Each section here proceeds with the legal provisions that require respect of economic, social and cultural rights. Again, a range of instruments are used to describe this, particularly general principles and customary international law, human rights law, the Fourth Geneva Convention and the International Labour Organisation conventions. These should assist the reader in understanding the obligations, analysis and conclusions.

The legal discussions have been made accessible and have sought to avoid detailed discussions of jurisprudence, except where the arguments are necessary for those lawyers that may choose to rely on the arguments. These are few, and the general reader, indeed, the specialist from other disciplines, will find the text on the whole readable and we hope enlightening. We have also sought to avoid the turgidity of legal writings and have discussed the issues in, we hope, an interesting and informative way. A final point on writing style, both authors have sought to use technical terms from other disciplines accurately and, at least, consistently – economic terms, in particular, have been used. We hope that any improper usage does not distract the reader.

The authors would like to would like to offer their thanks to the Palestinian General Federation of Trade Unions, the Democracy and Workers Rights Centre, and special thanks go to Hanna Zohar, Harriet Lewis and Jason Myers of Kav La’Oved. Thanks also go to Saed El-Zain for his research assistance and to Dr Laetitia Bucaille for her analysis and support. A significant debt of gratitude is owed to Nina Sovich, an investigative journalist with a mindful of sources, information and analysis, her assistance was invaluable. Additional thanks must go to the staff at LAW for their support, assistance and publication. A special debt of gratitude goes to Khader Shkirat, for his boundless energy and commitment to the project. Numerous other people contributed to the project, in particular those that have examined economic, social and cultural rights and the economic relationship between Israel and the Occupied Palestinian Territories.

Finally, any errors are entirely the responsibility of the authors. The process of writing may have contributed to this; with the authors preparing different sections and difficulties increased by distance, opportunity for discussion and constraints of time arising from the pressing schedules common in human rights practice. The authors’ apologise for these and any differences in style that may be apparent, and were unintentionally overlooked. Nonetheless, we would hope that the reader finds the discussions interesting and is encouraged to contribute their own thoughts and opinions on economic, social and cultural rights.

Mervat Rishmawi and Rhys Johnson Jerusalem, 1 May 1999

Preface to Second Edition

The second edition has involved major development in some areas. In particular, there has been further analysis of the economic situation, including the recent changes in Israeli Government, and in the legal developments in relations to employment conditions particularly of those working in Israel and in Israeli settlements.

There has also been some movement on the efforts to ensure Israel’s respect of the Fourth Geneva Convention. The High Contracting Parties met on 15 July 1999 in Geneva with the intention of discussing measures of enforcement. The negotiations that preceded the conference, from which all but High Contracting Parties were excluded, decided the outcome of the conference itself. The result was that the conference met briefly, in closed session, and agreed a resolution before adjourning:

This statement reflects the common understanding reached by the participating High Contracting Parties to the Conference…

The participating High Contracting Parties reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem. Furthermore, they reiterated the need for full respect for the provisions of the said Convention in that Territory.

Taking into consideration the improved atmosphere in the Middle East as a whole, the Conference was adjourned on the understanding that it will convene again in the light of consultations on the development of the humanitarian situation in the field.

Human rights groups expressed their disappointment and objection to the failure to agree measures and to conduct proceedings openly and in the spirit of the humanitarian issues at stake.

The “improved atmosphere in the Middle East” refers to the election of an Israeli Government with a greater pronounced commitment to the peace process. The new Government has proposed some changes in human rights practice: in the context of political negotiations, appears committed to the safe passage routes between the West Bank and Gaza Strip, but this excludes Jerusalem. There has been a release of political prisoners and, due to a High Court ruling that the General Security Services were engaging in torture, a reported change in interrogation practices. Ministers, including the Prime Minister, have indicated changes in Jerusalem residency revocation policy, in settlement and house demolition.

On workers, there has been no obvious change in numbers of workers or transit of goods. The practice of the Netanyahu Government for improved economic movement, both Palestinian workers and goods, has continued. As there have not been significant changes in the underlying system of movement, the discussion on closure is still relevant. Although political and economic analysts and other commentators may take the view this information is dated, from a legal perspective, these policies continue to be current until examined and found not to be violations or deserving of redress. In any case, as the control on movement remain in place, there is no certainty that restrictions will not be imposed at some future date.

On the fundamental questions of Palestinian self-determination, these will be decided in the proposed accelerated final status talks. It is, however, unlikely that all Palestinian land will be transferred or that full sovereignty will be granted. Additionally, compensation and restitution appear not to be on the agenda.

In addition to those already thanked, we are grateful to Uda Walker for her meticulous editing and Harriet Lewis at Kav La’Oved and Yezekhel Lein at B’Tselem for their assistance in the research.

Any errors in this edition are entirely my responsibility. I hope the reader can bear with these and still find the discussions interesting.

Rhys Johnson Jerusalem, 1 October 1999

Introduction

The economics of occupation has been one of the key aspects of the Palestinian-Israeli conflict. Although the conflict has tended to be focused on land and people, as reflected in the final status issues of Jerusalem, refugees, borders; the inter-play between Palestinians and Israelis has also been viewed through economic relations. Characteristic of this is Peres’ “New Middle East”, in which the global economy would drive the Palestinians and Israelis in economic intercourse, thereby ameliorating conflict through mutual gain. It was this vision that drove Israel in its bid with the Palestinians for peace culminating in the Oslo. The importance of these economic issues is not merely an academic or policy-makers exercise, they have a practical consideration and the individual worker, the worker’s household and the wider community Palestinian community all depend on good economic policy.

The economic relations between Palestinians and Israelis have not been balanced. These have tended to favour the first world economy of Israel, which has held military dominion over the Occupied Territories, at the expense of the Palestinian economy. Palestinians have been unable to produce goods that compete domestically or internationally with those of Israel. Only in the agricultural sector, where the quality of the product is indiscernible to the consumer, can there be anything close to fair competition. But trade restraints and structural impediments imposed through Israeli military rule have benefited heavily subsidised Israeli agriculture.

The Israeli control has taken three forms. Firstly, it has impeded through the maintenance of conflict a situation that impedes the inflow of capital, thereby cutting Palestinians off from much needed aid to facilitate development. Secondly, Israel controls the means of production, through licensing and controls, and natural resources to fuel production, through confiscation, structural and usage restrictions. The third aspect of Israel policy involves the development of restraints on trade and movement, particularly outflows, of capital, goods and persons.

The first two aspects controlling inward investment and indigenous development led to under-employment of the workforce, encouraging migrancy, the last aspect permitted the flow of the migrant labour force but only to the extent required by the Israeli economy. Migrancy is therefore a result of enforced weaknesses in the Palestinian economy.

As a result of these policies, the migrant workforce buttresses the entire Occupied Territories’ economy and this is the Palestinian economy’s dependency on Israel. The figures confirm this: without work in Israel 100,000 would be unemployed with a loss of income of an estimated US $135 million.

The importance of the situation of workers in Israel has a dual significance. The worker pays for goods and services for the household and so it has immediate importance to the worker’s family. At the same time, by spending money, the worker contributes to the development of the entire economy in the Occupied Territories; the importer, shopkeeper and countless other Palestinian rely on the worker’s spending for their income. Workers, therefore, underscore the economy’s weakness and they continue to fuel Palestinian dependency on Israel. For this reason, the situation of workers, particularly since the Oslo period, has been used as the yardstick for economic stability in the Occupied Palestinian Territories.

Thus, any examination of workers has to be viewed in its socio-economic and political context: the conditions that have forced migratory labour and economic dependence of the Occupied Territories rest on the conditions that have affected Palestinian development, namely the Israeli occupation.

Israeli military control has resulted in economic, social and cultural rights violations in the Occupied Palestinian Territories of the West Bank, including Jerusalem, and Gaza Strip. Palestinians have little option but to provide cheap labour to the first world economy of Israel. Palestinians workers give a strategic influence in the economic, political and security relationship between Israel and the persons living under occupation and Israel exploits them in these respects. The contention being made here is that unlike free market relationships in, for example, the Economic Union, Israel has used and continues to use its control over Palestinian land, secured by military force, to distort relations to its own purposes. Considerations of Palestinian development are almost entirely ignored, save for some small scale development. Israel’s characterisation of the Palestinian workforce as a migratory labour force, which can lawfully be subject to restriction at will is incorrect.

The authors examine the causes of migrancy and the conditions of employment to describe human rights violations that arise from the original violation of colonial expansion. The conclusion is that Israel adopts unlawful colonialist policies, these deny the rights of Palestinians to control and benefit from their own resources, labour and markets and have instead been directed towards Israel. Likewise Palestinians workers have no rights over their own labour, the conditions are decided by Israel for its own purposes. These illegal actions involve responsibility, culpability and liability: Israel is obliged to compensate Palestinians for the actual and potential losses incurred as a result of these illegal acts.

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