Trade Union Bill

Lord Hain Excerpts

Monday 8th February 2016 Lords Chamber

I say to the Government that, in the view of Liberal Democrats, this Bill is an assault on civil liberties. It is yet another attempt by this Government to create effectively a one-party state in terms of weakening the opposition parties and the opportunities for the opposition to speak its case. What is even more important—to the Government, at the very least—is the fact that the Bill is unconstitutional. They will find that they have set themselves a set of obstacles and a barrier that is very difficult to cross, if they do not listen to the concerns expressed here this evening.

[Lord Hain (Lab)]

My Lords, I refer to the register of interests. The amendments tabled by my noble friend Lady Morgan of Ely, the noble Lord, Lord Wigley, the noble Baroness, Lady Randerson, and me reflect the cross-party support in your Lordships’ House that is also evident in the Motion overwhelmingly carried by the Welsh Assembly on 26 January with the backing of 43 out of 60 Assembly Members against 13 Conservatives. The Assembly’s vote was on a legislative consent Motion, a convention of this Parliament that enables devolved Governments to give consent to Westminster to amend legislation relating to areas normally within the devolved Government’s responsibility. After this overwhelming vote, the convention would normally require that the UK Government now amend this Bill to remove legislation that pertains to devolved powers, such as the rules governing public servants in Wales, whether payroll deductions of trade union subscriptions should be made, and so on. Moving the Motion, Public Services Minister Leighton Andrews said:

“The Bill is damaging, divisive and risks undermining public services and the economy. The Welsh Government believes it will lead to a confrontational relationship between employers and workforce. It contrasts sharply with the constructive social partnership approach in Wales, valuing our workforce, supporting public services and encouraging”,

enterprise.

“Overall, we believe the Bill is flawed and should not be pursued”.

He pointed out that:

“In Wales, we have a good record of resolving disputes. There was no junior doctors’ strike in Wales; there was in England. Firefighters took industrial action in England over pensions; they were not doing so in Wales”.

He added that, if the UK Government ignored the Assembly’s wishes, the Welsh Government would seek to overturn the impact in Wales, as they have successfully done on two occasions in the Supreme Court, as we heard from the noble Baroness and my noble friend.

Indeed, Wales’s First Minister, Carwyn Jones, told the Assembly that his Government will fight clauses in this Bill pertaining to Welsh public services if they become law. He said that,

“if it comes to the point where that Bill is passed and its provisions are applied to devolved public services, then we will seek to introduce a Bill in this Chamber to overturn the sections of the Bill that impact in devolved areas. It’s a matter for the UK Government as to whether they then wish to go to the Supreme Court in order to frustrate the will of this democratically elected Assembly”.

Therefore I ask your Lordships to respect the democratic wishes of the Welsh Assembly in backing that same policy by granting Wales’s legislature the right to determine how or if some of the key provisions in this Bill should be applied to public services in Wales. As the First Minister made explicit, if the Bill is enacted without the amendments we have tabled, the Welsh Government will introduce their own legislation to overturn the changes as they affect Wales as soon as possible. This is therefore less an argument about the substance of the relevant clauses in the Bill and more one about the nature of the devolution settlement the UK Parliament has agreed for Wales in the Government of Wales Acts 1998 and 2006, endorsed by subsequent Welsh legislation passed by Parliament, including the Wales Act 2014 proposed and enacted by the last Conservative-led Government.

As my noble friend has done, I draw your Lordships’ attention to the draft Wales Bill now before both Houses of Parliament. Its Clause 2 would place on a statutory footing the constitutional convention that Westminster would not normally legislate,

“with regard to devolved matters”,

without the consent of that devolved legislature. So on the one hand, in the draft Wales Bill, the Government are, commendably, making statutory a convention that has applied since 1999, and on the other hand they are completely undermining it in this Bill. In other words, the Government’s own draft Wales Bill reinforces the point that I am arguing; indeed, it makes that stronger by proposing a statutory requirement as opposed to the current convention that Westminster legislation affecting Wales in matters already devolved to Wales would require a legislative consent Motion from the Welsh Assembly—precisely what we are seeking your Lordships to endorse in respect of this Bill.

My case is not so much about the merits of the issues in the Bill as about the constitutional issues of foisting it upon a Welsh Assembly that has voted exclusively on a legislative consent Motion insisting that it, not our Parliament, should determine the minutiae of public service delivery provisions within Wales. These amendments would apply solely to those public services that are devolved to Wales—education, health, housing and so on. Consequently, should the Government accept these amendments, which I strongly urge, in line with the request by the Welsh Government and adopted by the Assembly a few weeks ago, the Bill would still apply in the private sector in Wales.

We explained all this in person to the Minister, and I thank her for her courtesy and time in permitting us to do so. Regrettably, though, I gather that the lady is not for turning—unless she says otherwise this evening. If I am right, she appears to insist that the 40% threshold for strikes in the Bill was a matter of principle flowing from a manifesto commitment. I leave aside whether the fact that a party commanding just 37% of the vote and a miserly 24% of the registered electorate constitutes a mandate that your Lordships must respect, but I cannot believe that subsidiary details in the Bill concerning payroll deductions, check-off and opt-ins to the political levy are really of the same order as strikes. If the Minister is still uncompromising on the 40% issue, might she consider making all the other relevant provisions of the Bill covered by our amendments subject to consent by the Welsh legislature? I ask her seriously to reflect on that point.

Having served as Secretary of State for Wales for seven years, during which I was responsible for the Government of Wales Act 2006—the basis for the settlement that has operated since—I am extremely concerned at the damaging precedent that the Bill is establishing. The Minister for Public Services, Leighton Andrews, argued in the Welsh Assembly on 14 October on behalf of the Welsh Government:

“The Bill is driven by a flawed view of trade unions as a problem. We see trade unions as a partner. So, this Bill contrasts sharply with our constructive social partnership approach in Wales of valuing the workforce, supporting public services and encouraging enterprise … The benefits of a constructive approach to social partnership can be seen in our good record of resolving disputes … more quickly than in England”.

The Welsh Government’s position on the Bill was set out in a Written Statement to the Assembly on 9 September 2015, which insisted that the Bill relates to devolved responsibilities. In carrying out this House’s long-established duties of scrutiny and revision, your Lordships have consistently and rightly taken a forensic interest in constitutional matters. I submit that key proposals in the Bill encroach upon the responsibilities of the Welsh Government in respect of the administration and delivery of public services in Wales. Provisions in the Bill should therefore not be applied to Wales without the consent of the National Assembly for Wales, and that is the purpose of these amendments.

I want to be clear: adopting these amendments would not necessarily mean passing judgment on the Bill’s provisions as they apply to public services in Wales. If after the coming election, for example, a Conservative-led coalition were to emerge as the new Welsh Government—perhaps unlikely but certainly not impossible, given recent opinion polls—they could choose to accept all the Bill’s provisions as they apply to Welsh public services through a legislative consent Motion. Significant parts of the Bill relate specifically to important public services, which are clearly devolved. The legislative consent memorandum laid in the Assembly by Leighton Andrews prior to the recent vote set out the Welsh Government’s view that the Assembly’s consent would be required for Clauses 3, 12, 13 and 14 of the Bill as they relate to devolved matters. The memorandum explained why the legislative consent Motion was tabled under the Assembly’s Standing Order 29.6 seeking Welsh Assembly Members’ consent to the inclusion of Clauses 3, 12, 13 and 14 in the Bill, and explained that the Welsh Government’s view is that consent should not be given. On 26 January, as I have mentioned, the Assembly overwhelmingly endorsed the Government’s position.