Employment Law: Devolution to Scotland

Hywel Williams Excerpts

Tuesday 6th September 2022 Westminster Hall

[Angela Crawley]

Absolutely. There was ample opportunity when the Lib Dems were in the coalition to transform employment law, and that did not happen.

[Hywel Williams (Arfon) (PC)]

rose—

[Angela Crawley]

I want to make some progress, but I will come back to the hon. Member.

There are more and more people in insecure work, more and more people with insecure wages, and more and more people with insecure rights in the workplace. More people are under-employed, and more people are holding down multiple jobs and yet struggling to support themselves. Sadly, more and more people are struggling to invoke their workplace rights and unionise.

In real terms, that means more people have been plunged into in-work poverty and are unable to rely on stable incomes, which is invaluable to those trying to make headway through what will be a bleak winter for many families as we approach a cost of living crisis. The impact of the pandemic is clear, the impact of Brexit is clear, and the impact of this Government’s stagnation and failure to act is blatant. I call on the UK Government to either act now or let the Scottish Government do so. I would love to have every competence that this Government have to bring forward an employment Bill and transform employment rights. They have failed to do so, and they do not appear to want to.

I was deeply disappointed that there was no commitment in the Queen’s Speech to improve workers’ rights. The decision to shelve the employment Bill represents a missed opportunity for this Government to make serious progress on changing employment law. They have missed the opportunity to update policies on flexible working, carers leave and paid miscarriage leave, which I have argued for time and again. They have failed to strengthen protections against workplace sexual harassment and other equalities protections.

The Minister will recall that I have spent many hours in this place calling for the introduction of paid miscarriage leave. My hon. Friend the Member for Glasgow East (David Linden) has pursued relentlessly the right for neonatal leave and pay, and I welcome the Government’s commitment to introduce those measures. I have pursued numerous vehicles in Parliament to try to ensure that the important policy of paid miscarriage leave is introduced but, sadly, I feel I am reaching the end of the road. The policy has cross-party support, yet it has been unable to succeed because of the archaic working practices of this place and this Conservative Government’s failure to commit to legislating on the issue. That reinforces why this system will never work for Scotland. It is becoming clearer by the day that we cannot trust this Conservative Government to prioritise workers’ rights. Instead, we see the further entrenchment of socioeconomic inequality in our society.

Scotland did not vote for Brexit, Scotland did not vote for this Conservative Government—it has not done so for many years—Scotland did not vote for this latest Prime Minister, and Scotland did not vote to roll back workers’ rights and leave the European Union. Yet we find ourselves in a situation where this Government will not act, and our Government want to act but do not have the powers to do so.

[Angela Crawley]

I thank my hon. Friend for that intervention. I know that the hon. Member for Arfon (Hywel Williams) wished to intervene too.

[Hywel Williams]

I will make two brief points. I find strange the argument that multinational companies are somehow unable to adapt their practices to the conditions required by individual independent countries. That is a fallacy and a fiction. Let me also point to a particular reversal of rights, which I will refer to in my speech if I am fortunate enough to be called. The Government have demonstrated their hostility by intending to scrap the Trade Union (Wales) Act 2017—a law passed by our Senedd to protect workers in Wales.

--- Later in debate ---

[Kenny MacAskill (East Lothian) (Alba)]

It is a pleasure to serve under your chairmanship, Sir Edward. Like others, I congratulate the hon. Member for Lanark and Hamilton East (Angela Crawley) on securing the debate. I take the view that employment law should have been devolved at the outset and should certainly be devolved now. It is an omission, and it might be worth while to consider why it has not been done to date and why, even when we have reviewed it through Calman, through Smith and at other junctures, change has not been taken.

Some of those who opposed the devolution of employment law at the outset have learned hard lessons and have correctly moved on; others will have to explain why they continue to be intransigent, as has been asked by Members. It seems to me to be an omission from the Scotland Act 1998, but that always was an Act that lacked cohesion. It was neither federalism nor logical, and there was arguably no logic to which matters were reserved. Indeed, matters were devolved summarily, which has left us with a situation whereby the economy is devolved but the fiscal levers that can operate it are not. Criminal justice—I was privileged to serve as Justice Secretary—was devolved, but firearms and narcotics were not. Show me a jurisdiction in the world in which firearms and narcotics are not the basis of criminal law or the breach thereof. We had a situation at the outset where euthanasia was devolved but abortion was reserved. We even had the absurdity that Antarctica and powers over it were devolved but foreign affairs were reserved. I do not know anybody in any political party who ever sought for Scotland to have a say over Antarctica.

[Hywel Williams]

I just want to add a pertinent comment. When further devolution was being considered for Wales, water was to be retained in London and sewerage was to be devolved.

[Kenny MacAskill]

That shows the illogicality of the current devolved set-up.

We obviously have seen changes—some have come through Smith, some have come through Calman and some have come through other ways. We now have air weapons devolved, even though firearms are reserved. We have the drink-driving limit devolved, although road traffic remains reserved. Indeed, abortion has since been devolved in order to join with euthanasia as powers within the Scottish Parliament. During my tenure as Justice Secretary, the Scottish tribunal service was established. It became the Scottish Courts and Tribunals Service, having previously been the Scottish Court Service and Tribunal Service. At the head of the Scottish Courts and Tribunals Service sits Lord Carloway, who is the Lord President and the very pinnacle of the judicial system in Scotland. Beneath that, we have tribunals being operated and run in Scotland, yet many of their most fundamental aspects—the law, legislation and regulations—are reserved to Westminster. That makes no logical sense; indeed, it is absurd.

More citizens appear before a tribunal than ever appear before a court of law, yet the tribunal that Scots are most likely to go to in order to seek recompense, change or whatever it is—some aspect of justice—is led by the senior Scottish judiciary, but the organs and levers are controlled. It should have been devolved, and it should be devolved now, because it is essential. We have a new Prime Minister, who has already laid down where she sees things going. I think that is fundamentally wrong, because we cannot go backwards.

I recently read a book about a radical MP called Joseph Hume, who had served in Middlesex, Montrose and Killarney—not in Wales. He came to fame because he opposed the Combination Acts 1799 and 1800. The Combination Acts were legislation that did not outlaw striking; they outlawed the right of workers to organise. They predated laws that came in through Keir Hardie and others. That was not in the 1930s; it was in the 1830s. Joseph Hume opposed the Combination Acts, which existed before Queen Victoria came to power, yet we have an incoming Prime Minister who, in 2022, is talking about ruling out strikes and attacking the fundamental rights of workers to organise. Under the new Administration, we are going back not to the 1930s, but to the 1830s—whether or not employment law is devolved.

Enough is enough. The Prime Minister will have to recognise that whether it comes from law changes in Holyrood, as it should, or from actions in defence to legislative changes here in Westminster, workers ain’t going to take it any more. The changes to be brought in have already seen the likes of the RMT, Unite and the Communication Workers Union out on strike. It is about not just wages, but terms and conditions of employment. We know that, in the fundamental RMT dispute, it is not simply a wage that workers are seeking—not the figures of £55,000 that are bandied about, because the average RMT worker gets nothing like that. It is also about the fundamental terms and conditions: the reduction in workers, making those who remain work longer and reducing the terms of their safety. Enough is enough. It is unacceptable.

I conclude by saying that employment law should have been devolved at the outset, and it should most certainly be devolved now. Irrespective of that, the fight is on. The current Administration may try to bring changes in and use the powers they have here, but those changes will be opposed in Scotland and across the country.

[Hywel Williams (Arfon) (PC)]

It is a pleasure to serve again under your chairmanship, Sir Edward. Apropos of the list the hon. Member for East Lothian (Kenny MacAskill) gave earlier on, in Wales, we have a legislature that does not have its own jurisdiction, as the jurisdiction is retained in England and Wales. Wales is peculiar in that respect and, possibly, unique in the world.

I congratulate the hon. Member for Lanark and Hamilton East (Angela Crawley) on securing this important debate and on her dedicated work campaigning for paid miscarriage leave. Like others, she has set out the case for devolving employment law to Scotland very effectively, and many of those arguments apply equally to the question of the devolution of employment law in Wales. I will refer to both countries in my remarks.

The tedious tit-for-tat we have seen in the last weeks and months around the Conservative leadership contest has demonstrated that Scotland and, even more so, Wales are very much an afterthought for Westminster. Our workers would be better protected by laws made in Scotland by Scotland’s Parliament and in Wales by our Senedd. As I said earlier, the situation was made clear when, in June, the UK Government announced their intention to scrap the Trade Union (Wales) Act—a law that was passed by our Senedd in Wales to protect Welsh workers. The UK Government’s response was to announce their intention to scrap it, demonstrating not only their disregard for Welsh workers, but their disrespect for devolution. We have, of course, seen moves to reverse devolution entirely consistent with the argument I am making.

In this regard, I should draw the Chamber’s attention to the Government of Wales (Devolved Powers) Bill, introduced in the other place by my friend and predecessor as hon. Member for Arfon, now Lord Wigley. This important Bill would enshrine in law the principle that powers devolved to the Senedd should

“not be amended or withdrawn without a super-majority vote”

of Senedd Members, which would introduce a safeguard—in the short term, at least—against the sorts of action proposed by the UK Government. The Bill is scheduled for Second Reading on Friday. Despite the Westminster Government’s hostile attitude to devolution, further devolution and to devolution as a process—one that, I would say, is one way, not two way—I hope that Lord Wigley’s Bill will, in due course, come before us in the Commons.

Returning to the question before us, devolving employment law to the Scottish Parliament and the Senedd would allow the introduction of an enhanced package of support for workers, which, as others have said, could include paid bereavement leave and miscarriage leave as day one employment rights, outlawing fire and rehire tactics and bringing in properly funded carers’ leave. A further priority for employment law in Wales and, I am sure, in Scotland would be shared parental leave, which is key to enabling more equal parenting, tackling endemic pregnancy and maternity discrimination in the workplace and ending the gender pay gap.

As has already been said, in 2017, amid concerns that uptake of shared parental leave was low, the UK Government indicated that they wanted to re-evaluate the scheme. On 15 July 2022, the newly appointed Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Loughborough (Jane Hunt), told MPs that the Government were evaluating the scheme and would publish findings in due course. We are still waiting for those findings, so I would say to the Minister and any new Minister—devolve the power to a legislature that will act. For what is already clear is that this policy on maternity leave is failing. Using data obtained by Her Majesty’s Revenue and Customs and the Department for Work and Pensions, Maternity Action has calculated that since April 2015 just 47,000 of the 2.95 million new mothers who took statutory paid maternity leave have used shared parental leave to transfer some of their paid leave to the child’s father or other parent. That is just 1.6%. That is the measure of a policy that is quite clearly failing.

One of the main problems with the scheme, as well as the current flat rate of £156.66 per week, is that a parent must transfer the maternity leave entitlement to the partner. That transferability makes the scheme extremely complex and consequentially poorly understood by both employers and parents. There is also the question of eligibility with at least a third of working new fathers failing to meet the qualifying conditions because of their level of pay or employment type. In Wales we have a great deal of low pay and self-employment is a very common pattern. What we need, and what I believe we would get if powers were devolved, is a system based on individual non-transferable rights for each parent to have leave.

There are solutions for the problems that I and other hon. Members have identified today. What is missing is the political will to act. The incoming Prime Minister has signalled that she will restrict workers’ rights collectively to secure fairer employment. Wales’s Senedd and Scotland’s Parliament, empowered with the ability to legislate for employment law, would do things differently, and I sincerely believe that we would do things better.