Lord Foulkes of Cumnock
Main Page: Lord Foulkes of Cumnock (Labour - Life peer)Trade Union Bill
Lord Foulkes of Cumnock Excerpts
Baroness Neville-Rolfe
I think the arrangements on nuclear decommissioning are still under consideration. I can certainly come back to the noble Lord on the question of past disruption. It is clearly an area where it does seem important that strikes should not be entered into lightly. As I have said, there will be regulations, they will be subject to the affirmative procedure and this is on the list with good reason. The noble Lord will understand that we are looking very carefully at the arrangements and we have not come to a final view. I am sorry that on the question of timing I cannot give a firm answer, but I can say that we will be bringing an affirmative resolution forward.
Lord Foulkes of Cumnock (Lab)
But surely all the private schools—or as you call them in England, public schools—are even more important. If the teachers go on strike in them, where are we going to get our Prime Ministers or our Chancellors of the Exchequer from? It would be an absolute disaster for this country if the teachers in those schools, a lot of whom are untrained, did so. The Minister has misrepresented and misunderstood the dangers that we would face.
Baroness Neville-Rolfe
I am very sorry to disappoint the noble Lord but there is no evidence of strike action in those institutions having a major impact or, I think, of strike action at all. I am seeking to explain the difficult decisions that we have taken and set out in our consultation paper for the benefit of the House this evening. Perhaps I may continue, as it is getting late.
I believe members of the public would agree that strikes in the crucial services that I have outlined should take place only when there is a reasonable level of support. Restrictions on Article 11 of the European Convention on Human Rights are permitted where they are justified by a legitimate aim and are proportionate. The courts have made it clear that they will respect the margin of appreciation accorded to each national Government to decide on industrial relations policy. I hope I have assured noble Lords that we have thought carefully about where the threshold should apply, and that the specified services are justified.
“Essential services” of course means something very different. They are referred to by some of the reports of the ILO supervisory bodies in respect of services where it may be legitimate in certain situations to limit or prohibit strike action. Amendments 5, 10, 12 and 13 would wrongly align the 40% threshold with the ILO’s interpretation of “essential services”. The threshold is about ensuring that strikes can go ahead if they have a strong democratic mandate; it does not prohibit strikes. The Government have therefore deliberately chosen the term “important public services” to describe the services covered by the 40% threshold.
Lord Balfe
I shall be brief. I begin where the noble Lord, Lord Hain, ended, which is with the leaked letter. The points put by the noble Baroness, Lady Morgan, were extremely well made. There are clearly a whole number of issues within the Bill. If we are to believe the leaked letter, which I probably do, and as we are not going to vote tonight, I hope that the Minister will look very carefully at all these amendments with a view to coming back and assuring the House that, if we asked to sustain our opposition to them, she has firm advice from the Attorney-General that that will stand up in court. I am not afraid of our occasionally going to the Supreme Court to clarify matters—I think it is probably necessary in a devolution settlement—but we should be on firm ground. If we do go to the Supreme Court, we should have a recommendation from the Attorney-General that he is quite satisfied that legally we are in the right in what we do.
When it comes to things such as deductions of contributions at source, about which at another opportunity I shall make some very clear points, if devolution means anything, surely it does not mean that we are going to ask Cardiff hospital, for example, to stop deducting the subscriptions of their union members if that is done at no cost to public funds and is seen as beneficial to industrial relations in Wales. What does devolution mean if simple things like that cannot happen? Maybe they cannot happen but, if that is the case, I hope that the Minister will be prepared to publish and share with us the views of our Attorney-General as to why this is a sound clause.
The Earl of Courtown
My Lords, I think that it is the turn of the noble Lord, Lord Wigley, whose name is added to the amendment.
Lord Wigley
What about Scotland, indeed? I will not trouble the Committee by going down that avenue. First, I apologise for the fact that, although I was in the House at the time of the Second Reading, I was unable to take part in the debate. However, I read the report of the bits that I was not in the Chamber for. I was particularly impressed by the contributions of the noble Baroness, Lady Morgan of Ely, and the noble Lord, Lord Hain, which are relevant to our debate tonight.
I have always been a strong advocate of free, unfettered trade unions having an essential role in the checks and balances within any free economy. From my previous life in industry—particularly my time as financial controller at Hoover in Merthyr Tydfil—I know the importance of having strong, well-led trade unions. It is in the interests of the owners, the management and the workforce alike that trade unions are facilitated and not undermined in undertaking that essential role.
I support Amendment 16 standing in my name and those of the noble Baronesses, Lady Morgan of Ely and Lady Randerson, and the noble Lord, Lord Hain. It excludes important services in Wales from the provisions of the 1992 Act—specifically health and school-age education, which are entirely devolved functions. Other amendments, which no doubt the noble Lord, Lord Foulkes, will speak to in a few moments, address a wider sphere, but they are all relevant to the central proposition that it is totally unacceptable for the UK Government to create a legislative framework for devolved services which will lead to a totally unnecessary poisoning of industrial relations in Wales.
We have a long and honourable tradition of trade unions in Wales. We recognise the essential need for trade unions to stand up for the rights of their members, and in recent years the workforce of the public services in Wales has not been involved in any spurious or politically motivated strike action. Because of our tradition of partnership working, we have avoided strikes. And, as so many contributors tonight have mentioned, it is not in Wales that the junior doctors have been on strike.
So if it is not broken, why on earth are the Government imposing this legislation on Wales without any discussion whatsoever? Not only is the legislation being imposed on Wales, it is being done in a manner that totally ignores the agreed framework set up as part of the devolution settlement to deal with such issues. As was emphasised by the former Presiding Officer of the National Assembly, the noble Lord, Lord Elis-Thomas, the UK Government are riding roughshod over established agreements. As he said in the debate in the Assembly a couple of weeks ago on this very issue,
“the terms set out in devolution guidance note 9, paragraph 11, have not been adhered to by the UK Government in this case … there has not been proper consultation, either through the Wales Office or directly with Welsh Government”.
This amounts not only to a cavalier disregard of the right of the Welsh Government to be involved in discussions on policy that impacts on their ability to deliver devolved services for which they are held responsible, but also ignores the working practices that have been set up by Westminster, as has been emphasised tonight.
A similar lack of consultation has been witnessed in Scotland. The Minister replying to that allegation in the House of Commons on 14 September merely assessed that consultation was,
“open to every stakeholder in the United Kingdom, including those in Scotland”.—[Official Report, Commons, 14/9/15; col. 771.]
What an appallingly arrogant attitude towards an elected Government and what a glaring example of the lack of respect towards other elected public representatives.
The Government would have been very well advised if they had consulted the Welsh Government before going down this path. Had they done so, they would have realised that, because this Bill, if enacted, will have a direct impact on the way the Welsh Government undertake their statutory responsibility for devolved services, a legislative consent order will need to be passed by the National Assembly for Clauses 3, 12, 13 and 14 to be applicable in Wales. Two weeks ago, as has been mentioned, such an order was in fact tabled in the National Assembly and voted down by 43 votes to 13.
If the Government are so arrogant or, if I may say so, so stupid as to take this Bill forward in its present form, unamended, clearly, the issue will again end up in the courts, which is not where these things should be resolved. To avoid such an outcome, the Welsh Government have asked the UK Government to amend this Bill to exclude Wales and Welsh public services from its provisions. The Labour Government in Cardiff are fully supported by Plaid Cymru and the Liberal Democrats in the Assembly in this matter. Indeed, it has been reported in the press that Conservative AMs are extremely unhappy at having been put in this position. The words quoted in the press were that they are “in despair”. One can well understand that; although out of misplaced loyalty, I suggest, they supported their Westminster counterparts when it came to a vote.
I appeal to the Minister to undertake, between now and Report, to meet representatives of the political parties in Wales, particularly Welsh Ministers, and to bring forward reasonable amendments to avoid the consequences of these disastrous provisions.
Lord Foulkes of Cumnock
My Lords, we have heard four powerful and eloquent pleas from Wales. I hope it is now possible just to say a few words on behalf of the quiet, unassuming people of Scotland. To be serious, this is a matter that people in Scotland, and particularly the Parliament and Government of Scotland, feel equally as strongly about—if not more strongly—as the Parliament and Government of Wales. I am therefore concerned that the House of Lords—and I say this knowing that the Government Chief Whip is here—is dealing with this at 10.45 pm. This is a matter of great importance. It is a very serious matter. It is a matter which more Members of the House should be participating in. It is a pity that it was not dealt with at a more suitable time.
The Minister said early on—I have sat through an awful lot of her speeches—that she was in listening mode. I have yet to see evidence of that, but let us give her the benefit of the doubt and assume that she is. There could not be an issue on which it is more important for her to be in listening mode than this one. The fact that neither she nor her colleagues have had discussions with the Governments and Parliaments of Wales, Scotland and Northern Ireland on these issues is lamentable. It does not indicate that the Government are willing to listen.
As far back as November 2015 in Holyrood, they voted by 104 votes to 14 to oppose this Bill. All the parties except the Conservative Party—every one of them, and the independents too—opposed it. They discussed it again in Holyrood on 26 January, the same day that the Welsh Assembly discussed it. Again, the opinion was overwhelming: only one spokesperson, the Conservative spokesperson, defended the Bill—rather inadequately, but we are used to that. Powerful arguments were made against it.
I do not often do this, but I shall now quote Roseanna Cunningham, the Cabinet Secretary for Fair Work, Skills and Training—a member of the SNP. On this occasion she made an excellent, powerful speech against the Bill, and in favour of the Holyrood motion. Unusually, she also paid tribute to the House of Lords—we do not often hear that from the SNP—because we had been able to ask the Government to think again. Other tributes to the House of Lords were also made in that debate. That is something that we should acknowledge.
Roseanna Cunningham is not a Labour person; she is an SNP member, but she said that she had explained,
“the Scottish Government’s view that trade unions are a force for good in modern society; that unionised workplaces have more engaged staff, a higher level of staff training and a progressive approach to staff wellbeing; that unions help employers to create the safe, humane and productive working conditions that head off industrial disputes and build better businesses; that any legislation that undermines the value and contribution that trade unions can make is a ‘thoroughly bad idea’; and that the bill is nothing more than an ideological attack on unions, with no evidence to underpin it”.
That is a powerful argument, which we on the Labour, Liberal Democrat and Plaid Cymru Benches here have been putting here, and our arguments are echoed by the SNP in Scotland.
The Devolution (Further Powers) Committee took evidence on the Bill from STUC, from employers and from a whole range of local government people. It said that there was no support for ballot thresholds, or for a cap on facility time or check-off provisions—there was no evidence to support the Bill. The committee went through the kind of exercise that we have not gone through here: it looked at the Bill in detail, and expressed concern at the lack of consultation with public sector employees in Scotland. It also pointed out that—as was also mentioned in the Holyrood debate—the Scottish Government as an employer has had check-off for years, and the costs are so minimal that the unions have not needed to be charged. Yet the Scottish Government are now being forced to act against their own will and experience. It is outrageous that this Government are forcing the Scottish Government to act in that way.
Roseanna Cunningham and the Scottish Parliament went on to say that they wanted Scotland removed from the Bill. That is their main aim, and that is what the Welsh Assembly said as well. But at the very minimum—I put this forward as a hint or suggestion for the Minister—they wanted regulation-making powers relating to facility time and check-off to be conferred on Scottish Ministers. That, at least, would be a compromise. It would not be the ideal situation, but if such regulation-making powers were conferred on Scottish and Welsh Ministers, that would be a move in the right direction.
Incidentally, during the debate, Bruce Crawford, who chaired the committee that looked at this issue, pointed out that even Tories in local government—the noble Lord, Lord Balfe, is here to show this—do not like aspects of the Bill. He pointed out that a Tory councillor in East Dumbartonshire, Billy Hendry, was concerned about the provisions of the Bill, saying that there was no evidence to support it and that it was an “unnecessary and unjustified imposition”.
Bruce Crawford went on to say that the Bill should be amended in the House of Lords—again an acknowledgement of the role of the House of Lords from an SNP member which I was encouraged to hear. We are making progress on this. It is wonderful. We will have them in here soon, so that Dafydd will have friends—he has friends now but he will also have associates. Bruce Crawford said that,
“the bill should be amended in … the House of Lords so that it does not apply to Scotland”;
and that such amendments should be,
“by any means available to it”,
encouraging us to press and push as hard as possible.
In one of the most powerful speeches in the debate in Holyrood on 26 January, Patricia Ferguson—a good friend of mine, a Labour Member of the Scottish Parliament and a former Minister in the Scottish Government—referred to the amendments to which I and my noble friends Lady Morgan and Lord Hain and the noble Lord, Lord Purvis—who is not in his place—have put our names. She asked for the support of the House of Lords. She said—this is good—that if we do not see any movement from the Government then the Scottish Parliament, the Welsh Assembly and the Northern Irish Assembly should get together on an all-party basis and come down in a protest to No. 10 Downing Street and put strong, powerful pressure on this Conservative Government. If we do not get some movement then the constitutional firestorm to which my noble friend Lady Morgan of Ely predicted will come about.
I hope the Minister will pass these message back to her colleagues, to Mr Boles, to the Secretary of State and to the Prime Minister that this provision must be amended, otherwise there will be an outrage the like of which she has never seen before.
Lord McAvoy
My Lords, I have some class acts to follow from this side of the Committee on the case that has been put for the amendments, which I support, but I want to touch on the fact that we are debating the future of Scotland and Wales at eight minutes to 11 at night. We agreed extra time for this debate because we are responsible and co-operative—I am one of the most co-operative Front Benchers here—but half of the contributions of the noble Lords, Lord King and Lord Balfe, out of the time that we were good enough to give the Government, were spent attacking the Labour Party, the trade unions and our role and place in society. Again, that is testament to the vindictive nature of the Government’s legislation. I think it was Winston Churchill who said that no temporary political alliance in government should disadvantage its political opponents. That is what is happening in this Government, both in the Short money and through other legislation against the trade unions. We are here discussing the future of Scotland and Wales at seven minutes to 11. That message will not be lost in Scotland and Wales. It is further evidence that this Government are badly damaging the unionist cause.
This legislation is politically pernicious: it flies in the face of what we know about effective industrial relations policies and undermines the devolution settlement. It is the latter that I want to focus on today. In my brief contribution, I want to concentrate my attention on the constitutional implications that this Bill will have in Scotland. The amendments would exclude the Scottish Government and, indeed, the other devolved Administrations across the UK from certain elements of the Bill, ensuring that the Government’s commitment to the devolved Administrations is kept and upholding the settlement which they claim to support.
We suggest that the devolved Administrations should not be subject to specific clauses in the Bill: Clause 3, which introduces the 40% support requirement for industrial action in certain public services; Clause 10, which provides requirements for opting-in to trade union political funds by public sector employees who work in sectors or provide services that are devolved; the requirements on publication and the provision for facility time in Clauses 12 and 13; and Clause 14, which introduces the ban on check-off arrangements.
Check-off arrangements have worked successfully throughout this country for many, many years. The noble Lord, Lord Wigley, mentioned working in the Hoover factory in Merthyr Tydfil. I worked in the Hoover factory in Cambuslang. In both factories, there were quite satisfactory check-off arrangements, and they worked for years. The employer, for the most part, was an enlightened employer and co-operated fully.
Taken together, our proposals would have the effect of mitigating the elements of the Bill which placed obstructions on the Scottish Parliament’s ability to decide how best to engage with staff and trade unions when delivering devolved services. One of the most blatant ways the Government are doing this is by limiting the amount of facility time trade union workplace representatives can spend representing members of the public sector—the result being that trade unions would be prevented from representing their members’ interests by negotiating improvements on pay and conditions, raising safety standards, promoting access to skills and training and accompanying individuals to grievance and disciplinary hearings. All these and a good employer-employee relationship benefit everyone.
Moreover, in Scotland it will also impact health bodies, as union representatives sit on health boards. Not only would this cut across the face of the devolution settlement, it would also hinder constructive employment relations which contribute to the level of the delivery of quality public services.
Furthermore, as drafted, this legislation enables the Secretary of State to make regulations to redefine “important public services”. Leaving aside for a moment the fact that broadening the definition of essential services, recognised in international law, raises the serious prospect of legal challenge—as has been mentioned by many noble Lords—I point out that many public services are devolved issues. This is, therefore, a clear example of the UK Government overstepping the mark.
The amendments would also protect against the democratic deficit that would be created by the enactment of this Bill. At present, secondary legislation to restrict or repeal trade unionists’ rights could be used, thereby preventing an opportunity to amend or even debate the legislation. While this Government seem to hold the process of consultation and engagement in contempt, we have a firm belief that this is an essential way of getting not only the best legislation but also the highest standards in our public services.
These amendments are just one mechanism we are using to make our defence against this Bill. From the outset, we have been clear that we will leave no stone unturned, and that includes support for lodging a legislative consent Motion in the Scottish Parliament. Your Lordships will know that such a Motion was filed with the Presiding Officer of the Scottish Parliament by James Kelly, a Member of the Scottish Parliament for my own constituency of Rutherglen. He tried tenaciously and courageously to get the legislation consent Motion. He is a doughty fighter for trade union rights and representing the people, and he was ejected from the Chamber. There is a lot of feeling over this.
Given the very clear and legitimate grounds for proceeding in this manner, we are bitterly disappointed that this application was denied. We believe that, due to the detriment that this Bill will have on the Scottish Government’s ability to carry out its devolved responsibilities, we are legally justified in pursuing this course of action. My colleagues in the Scottish Parliament have written to Stewart Stevenson, convener of the Standards, Procedures and Public Appointments Committee, to urgently request a change in the standing orders. This would ensure that,
“If a Bill under consideration in the UK Parliament does not identify a requirement for a Legislative Consent Motion, a member (including a member of the Scottish Government) may lodge a motion seeking the Parliament’s consent to treat the Bill as a ‘relevant Bill’”,
in relation to an LCM. Last month, Labour tabled the necessary Motion, backed by Green and independent MSPs, and will continue to press for this change.
Let there be no doubt: we will fight this tooth and nail, not just in Westminster, Holyrood and Cardiff, but at grass-roots level. Labour-controlled Scottish local authorities have led the way by passing motions of non-compliance with restrictions to facilities time and abrogation of the check-off. Among those councils that declare an interest is the council area where I stay, where my brother, Edward McAvoy is council leader. I make that plain. He has done a brilliant job. He is my big brother by the way; I am scared of him.
Our commitment to standing up for the rights of workers and trade unions across the UK is unwavering. The Bill is nothing more than a Conservative Party political tool that will, in the same breath, undermine effective industrial relations and have a corrosive impact on the entire devolution settlement. Curtailing the powers of the devolved Administrations to act in the interest of the people who have elected them is utterly shameful. I call on the Minister to heed the many warnings and pieces of advice she has received today and take a moment to consider with her colleagues the scale of the constitutional precedent the Bill will set. We have made very clear our views on what we regard as the motivation for the Bill, but, as we have also attempted to set out, our frustration and concern also relate to the Government’s disregard for the very foundations of the devolution settlement of the United Kingdom. To rectify this, I beg and urge the Government to accept the amendments.
Baroness Neville-Rolfe
My Lords, I thank noble Lords for the debate and note the passion that has been expressed. I am particularly grateful to the noble Baroness, Lady Morgan of Ely, and to the noble Lord, Lord Hain, for the useful meeting we had last week and for the trouble that they took in taking me through how they see the impact of this Bill applying to devolved public services and public bodies in Wales. I thank the noble Baroness for explaining the legislative consent Motion debate in the Welsh Assembly that took place two weeks ago, for giving her views of the implications this evening, and for reminding us of the forthcoming elections in Wales, where, last year, this party made good progress. I thank the noble Lord, Lord McAvoy, for doing the same service this evening for Scotland.
The Bill will ensure that strike action can go ahead only with a strong and recent mandate from union members. It will increase protections for non-striking workers against intimidation, and increase transparency for union members and taxpayers. It will create an appropriate regulatory environment for unions. It is clear that the benefits this will bring to the wider public should apply consistently across the whole of Britain.
Employment and industrial relations law are clearly reserved matters, as has been said, under the devolution settlements with Scotland and not conferred in Wales. The noble Baroness, Lady Morgan, referred to the Supreme Court judgment in the Agricultural Sector (Wales) Bill, where the court held that the case relates to multiple subjects and thus fell within the competence of the Welsh Assembly. The Supreme Court ruling concerned a completely different situation, where the devolved subject of agriculture was specifically in play. By contrast, this Bill has nothing to do with the regulation of public services. It is squarely concerned with industrial relations and how trade unions are regulated.
The issue of competence is a fact-specific question that can be answered only by careful analysis of the statutory and factual context. In another Supreme Court case in the area of deciding the competence of the Welsh Government—re recovery of medical costs—the Supreme Court followed the same approach as in the agricultural sector case, but came to a completely different conclusion. It decided that the area in play was not devolved.
It would be unworkable to have different employment laws applying in the different jurisdictions in Great Britain. This was recently considered by the Smith commission for Scotland, and it concluded that employment and industrial relations law should remain reserved.
The noble Baroness, Lady Morgan, asked about legal advice. As noble Lords would expect, the Government have taken legal advice on the measures in the Bill relating to a number of areas. The Government do not, as she probably knows, disclose such advice; nor do we comment on leaked documents. The Government are committed, in implementing the Trade Union Bill, to fairly balance the right to strike with the rights of millions of people to go about their normal lives. Having said that, it will come as no surprise to noble Lords that I am always keen to explore areas of potential agreement, but the measures before us do reflect our manifesto and were supported by a clear majority in the elected Chamber.
The noble Lord, Lord Hain, said that he was less interested in the substance of the Bill than in the constitutional issues. As it is late, I will not go through the amendments clause by clause—although I can respond if that is wanted. I just point out that many employers will have staff across some or all of these regions. Business leaders have rightly raised concerns that this could create administrative complexities and could result in differential treatment of different groups of employees. This is not a matter of minute detail. The Government’s objective is to drive productivity and growth across the United Kingdom. These amendments could generate a lot of confusion and additional costs for both employers and unions and make it more complex for businesses to expand into other regions.
The Trade Union Bill is not the right forum for pushing forward the frontiers of the devolution settlements. Employment and industrial relations are reserved matters and the Bill, which deals with employment and industrial relations law, should respect that.
Lord Foulkes of Cumnock
Before the Minister closes the debate, she has not dealt with my suggestion, which comes from the Scottish Executive, that, at the very least, regulation-making powers for check-off and facility time might be given to Scottish and Welsh Ministers. That does not take away our powers here in the United Kingdom Parliament over employment law. We are still making the law; all that we are saying is that these regulation-making powers for those two areas should be given to Scottish and Welsh Ministers. If the Minister really is in listening mode, she does not need to agree to that today; all she needs to say is that she will look at it, discuss it with her colleagues and come back on Report.
Baroness Neville-Rolfe
My Lords, in the tradition of this House, I do not want to close the debate without saying that we are open to further discussion. We are, of course, open to discussing implementation of the Trade Union Bill in Wales and Scotland. To answer, as far as I can, the questions from the noble Baroness, Lady Randerson, and the noble Lord, Lord Wigley, my colleague Nick Boles spoke only last week to Roseanna Cunningham, Cabinet Secretary for Fair Work in the Scottish Government, and to Leighton Andrews, Minister for Public Services in the Welsh Government; both “stars” who have already featured in this evening’s debate. Of course, discussions are still going on in the context of the Scotland Bill, which is being scrutinised by a Committee of this House, and the draft Wales Bill, which the Government published in October. They are also part of a complex picture and need to be taken into account.
My Lords, it is late, we have discussed this at length and I ask noble Lords to withdraw their amendments.