Trade Union Bill

Baroness Morgan of Ely Excerpts

Monday 11th January 2016 Lords Chamber

[Baroness Morgan of Ely (Lab)]

My Lords, many speakers today have underlined how pernicious and unnecessary the Bill is. As many have noted, it is one of a catalogue of attempts by the Government to curtail and control opposition in this country in an attempt to stack the cards in favour of the Conservative Party. It is a nakedly partisan Bill and is wholly unnecessary at a time when strikes are at an all-time low.

Many distinguished trade unionists who have spoken today have noted how wrong it is to insist that there should be a minimum threshold of votes for strikes to happen, and yet the Government will not allow the use of electronic or workplace balloting, despite the fact that we know that this increases turnout. E-balloting was good enough for the Tory mayoral selection procedure; why is it not good enough for trade unions? It is wrong to insist that trade union members will have to opt in to allow funding to go to a political party, although it is notable that the same individual consent is not demanded for hedge funds nor shareholders in companies which contribute to the Tory party. It is unfair to push for intrusive requirements for anyone who is involved in picketing, and it is vindictive to introduce a measure which means that in future you will not be able to deduct union subscriptions via payroll. However, today I will concentrate, as did my noble friend Lord Hain, on the constitutional breach which is being proposed in the Bill, with its insistence that the measures introduced in the Bill will impact not just on England but on other parts of this devolved country.

The Bill works on the assumption that employment and employment law is a reserved matter, on which the UK Government speak for the whole of the United Kingdom. I make it clear that I agree that, in general, employment law should continue to rest with the UK Government. Unravelling the minimum wage, health and safety standards and employment rights across the UK could lead to a race to the bottom, a situation which would undermine the hard-fought rights that UK workers enjoy today. However, goodness knows what the Bill might have looked like had we not been a part of the European Union, where the protection measures in place because we are a part of the European Union have prevented the Government going even further. Nevertheless, the lines are blurred—in particular, on the broader aspect of how trade unions interact with public services—when it comes to where Westminster powers start and stop. Many of our key public services—health, education, local government, fire, transport and public administrations—are devolved. I will focus my comments on how the Bill relates to Wales.

Conventions have developed, and have been respected, since 1999 which have made it clear that Westminster should not intervene in matters which have been devolved. I underline that the Welsh Government are extremely exercised about the fact that the UK Government are trying to intervene in matters which they believe are rightly matters for the Welsh Government to decide. The introduction of the Bill will undermine the Sewel convention and will lead to a long and protracted battle in the courts, certainly between the Welsh Government and the United Kingdom Government. The Welsh Government are concerned that there is a breach in the Bill as regards matters which relate to the 40% threshold in support of strike action in public services, the ability to place restrictions on trade union facility time in the public sector, and banning check-off arrangements in the public sector, despite the fact that many public service employers draw an income of at least 2% for making such deductions.

Of course, many would argue, “The Welsh Government would say that, wouldn’t they?”. They are of a different complexion politically and, unlike the Tories in the United Kingdom, they have a close working relationship with the trade unions, which has led to successful schemes and measures being introduced such as the pioneering Jobs Growth Wales plan, which has ensured that 15,000 young people have found new jobs. The Welsh Government have worked hand in glove with the trade unions. That is not a bad thing. That model has served Germany and other countries extremely well over recent decades.

Where are the doctors going on strike? It is in England, not in Wales. Strike action in the NHS in Wales over the last decade has been minimal, despite significant organisational change and the introduction of changes to terms and conditions. Indeed, debate and discussions with trade unions helped to lead to the living wage being introduced throughout the NHS in Wales. However, not only the trade unions and the Welsh Government are concerned; the people who run the public services in Wales are extremely concerned that the Bill will lead to a deterioration in industrial relations. The Cardiff and Vale University Health Board chief executive has written to the trade union Unison to state very clearly that;

“The Trade Union Bill could have a detrimental effect on the mutually beneficial working between the health board and its personnel and could potentially lead to unnecessary challenging industrial relations in future”.

Public sector employers in Wales do not want this to happen.

However, I argue that this is not just about politics and party-political positions. It is about respecting the devolved settlement. In the amendment that we will set out, we will attempt to ensure that the UK Government do not finish up paying hundreds of thousands of pounds of taxpayers’ money on High Court battles, which will happen in order to settle this issue if the Bill gets through in its current format. It is understood constitutionally that, if the United Kingdom Parliament wants to introduce a law on a devolved matter, it needs the consent of the Assembly before it can pass that law. This is given through a mechanism called the legislative consent Motion. The Welsh Assembly will be voting on a legislative consent Motion on this issue on 26 January. It will argue that the UK Government are working beyond their mandate on this and it will encourage Assembly Members to vote against giving legislative consent, which will lead to a collision course with the UK Government unless things are changed.

I am quite an old-fashioned politician when it comes to who should decide what. I guess that it is a bit ironic to say, sitting here in the House of Lords, that elected politicians should decide these things and not courts. That is yet another example of why it would be beneficial for us to have a comprehensive debate on constitutional matters in a constitutional convention, which could iron this matter out along with so many others. However, on which side are the courts likely to settle? My noble friend Lord Hain referred to the attempt by the Welsh Government to introduce a law which would give protection in terms of wages to Welsh agricultural workers. This was challenged by the United Kingdom Government, who claimed that the Welsh Government had gone beyond the powers allocated to them in the Wales Act. The Supreme Court came down firmly on the side of the Welsh Government. It acknowledged that employment matters were not devolved or given a specified exemption, but it decided that, as agricultural issues came firmly under the remit of the Welsh Government, they should decide on agricultural wage levels. It concluded that the legislative provision may relate to both devolved and non-devolved subject matter.

The evidence would therefore suggest that, if this matter came before the courts, they would refer to this earlier judgment and would come down on the side of the Welsh Government on the matters referred to in this Bill. The TUC in Wales has also had Queen’s Counsel advice suggesting that, even if the Bill is enacted in its current form, there would be nothing to prevent the Welsh Government and the Assembly enacting legislation that would overturn, in full or in part, the effect of this Bill in Wales, as long as that legislation relates to a devolved subject matter.

I therefore hope that the Government will not just be open to the view that this Bill could lead to deteriorating industrial relations across the whole of the United Kingdom, but will respect the devolved settlement of this country and not impose these rules on the whole of the United Kingdom.