Trade Union Bill

Lord Hain Excerpts

Monday 11th January 2016 Lords Chamber

[Lord Hain (Lab)]

My Lords, I very much welcome the speech made by the noble Lord, Lord Tyler, and I hope that if his amendment to the Motion is not carried tonight there may be another vehicle for addressing what he quite rightly described as a partisan and, indeed, pernicious attack on the funding of one particular political party: the Labour Party. I also ask the Minister to acknowledge that throughout modern history, and right across the world, when Governments have moved to attack democracy, they have always targeted trade unions first.

However, today I am asking that special consideration be given to the interests of Wales, for which I served as Secretary of State for seven years and was responsible for the Government of Wales Act 2006—the basis for the settlement that has operated since then. On 14 October last year, the Welsh Minister for Public Services, Leighton Andrews, argued on behalf of the Welsh Government that,

“we believe this Bill and the associated proposal to remove the ban on the use of agency workers during industrial action will … lead to more confrontational relationships between employers and workers. These proposals will ultimately undermine, rather than support, the delivery of public services and the economy”.

The Welsh Government’s position on the Bill was set out in a Written Statement to the Assembly on 9 September 2015, which argued that the Bill relates to its devolved responsibilities. As the author of the 2006 Act I agree, and I believe that the Bill should therefore not be applied to Wales without the explicit legislative consent of the National Assembly for Wales. This, I submit, should be very important to your Lordships, who have an acknowledged expertise on constitutional matters. Significant parts of the Bill relate specifically to “important public services” that are clearly devolved, for instance the additional 40% overall membership support threshold for industrial action.

On 20 November 2015, a legislative consent memorandum was laid before the Assembly by Mr Andrews. It sets out the Welsh Government’s view that the Assembly’s consent should be required for Clauses 3, 12, 13 and 14, as they relate to devolved matters. The memorandum argues that these clauses fall within the legislative competence of the Assembly in so far as they relate to public sector employers in Wales involved in the provision of a range of public services, including education and training, fire and rescue services, health services, local government and transport facilities and services. The memorandum also stated an intention to table a legislative consent Motion under Standing Order 29.6 seeking Welsh Assembly Members’ consent to the inclusion of those clauses, and argued that consent should not be given.

Very significantly, in 2014—I hope that your Lordships will note this—the Supreme Court adopted a broad approach to the interpretation of the Assembly’s legislative competence when considering a challenge by the UK Government against the Welsh Assembly’s Agricultural Sector (Wales) Bill. Lord Reed and the noble and learned Lord, Lord Thomas, giving the judgment of the Supreme Court, held that, when determining the meaning of the relevant subject within Schedule 7 to the Government of Wales Act 2006, the court should consider that:

“Each is intended to designate a subject-matter which is the object of legislative activity”.

In the context of determining the meaning of “agriculture” as a subject heading, this justified a broad interpretation,

“as designating the industry or economic activity of agriculture in all its aspects, including the business and other constituent elements of that industry”.

The Supreme Court found that the Agricultural Sector (Wales) Bill had as its purpose the regulation of agricultural wages so that the agricultural industry in Wales would be supported and protected. Therefore, it was aptly classified as relating to agriculture. By contrast, the Attorney-General argued to the Supreme Court that the 2013 Bill related to “employment” and “industrial relations”, and that it was outside the Assembly’s legislative competence, as neither employment nor industrial relations are listed as a subject in Schedule 7 to the Government of Wales Act.

Although the Supreme Court accepted that the 2013 Bill could also be classified as relating to employment and industrial relations—a subject matter that is not devolved—the court argued that that did not bring it outside the Assembly’s legislative competence. This is crucial, and I submit that much the same argument applies to the Trade Union Bill in so far as it covers public services devolved to Wales. It is therefore not acceptable for the UK Government to impose it on Wales. Policy on how best to support and protect the effective delivery of devolved public services is for the Welsh Government and the National Assembly for Wales. This includes the way public sector bodies in such devolved services work with trade unions to ensure effective delivery of services to the public.

There is an increasing divergence in approach to delivery of public services between England and Wales. It would be wrong and potentially damaging to the UK Government’s stated aim of protecting public services for decisions based on English structures and approaches to be imposed on different service delivery models in Wales, especially when its Assembly has expressly opposed that through a cross-party Motion—I stress “cross-party”—supported by not just Labour but the Liberal Democrats and Plaid Cymru, although sadly not the Conservatives.

How can it be right for the UK Government, who have no responsibility for, or direct knowledge of, policy priorities and devolved service delivery reforms in Wales, to specify how much union facility time devolved public sector employers should allow, or to end the check-off system in the Welsh public sector? That would be disruptive, harming the viability of trade unions, which have, under devolution, been constructive partners in delivering public services of all kinds in Wales, where they are viewed as establishing good and stabilised industrial relations. My noble friend Lord Monks mentioned that point in respect of the many private sector employers, from Jaguar to Nissan, in Sunderland, where trade unions are very strong.

Of course, the Sewel convention provides that the UK Parliament may not legislate for devolved matters without the consent of the devolved legislature affected. I hope that your Lordships will bear this in mind. I therefore hope and trust that your Lordships will accept in Committee, or later on Report, that the Government’s intention to force the Bill upon Wales is fundamentally wrong, and that it is also deeply unwise when the future of the United Kingdom remains uncertain because of the Scottish Government’s separatist stance. If I cannot persuade the Minister and the Benches opposite, I hope that the Liberal Democrats and the Cross Benches will support the case for Wales to be specially protected in this way.