The UK Trade Union Bill and Wales

03 June 2016

Article by Alys Thomas, National Assembly for Wales Research Service

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The previous Welsh Government and the current UK Government disagreed about whether parts of the UK Trade Union Bill relate to devolved powers or not. Could this result in a Bill being introduced in the Fifth Assembly to reverse some of the effects of the UK Bill in Wales?

In January 2016 the Fourth Assembly refused its consent to parts of the UK Government’s Trade Union Bill on the grounds that parts of it relate to devolved public services. The UK Government does not accept that Assembly consent is needed. Leighton Andrews, the then Minister for Public Services, said that if back in power, the Welsh Government would introduce a Welsh Bill to overturn the relevant parts of the UK Bill. It is a dispute which could be heading to the Supreme Court.

When the UK Parliament wishes to legislate on a subject matter that has already been devolved to the National Assembly for Wales (or the Scottish Parliament and Northern Ireland Assembly), convention requires it to receive the consent of the Assembly before it may pass the legislation in question. Such consent is given by the Assembly through Legislative Consent Motions, which are accompanied by Legislative Consent Memorandums

The Trade Union Bill

The Trade Union Bill was introduced in the House of Commons in July 2015. Its provisions include a minimum 50% turnout of a union’s members for strike action to occur. For ‘important public services’ 40% of those eligible to vote must back action for a strike to take place. A simple majority is currently required.

The Bill has prompted strong opposition from the unions with the TUC calling it a threat to the basic right to strike. It has also faced opposition in Parliament.

Legislative consent

Both the Scottish Government and the last Welsh Government opposed the Bill. They argued that because parts of it relate to devolved public services, those parts should be subject to the consent of the Scottish Parliament and the Welsh Assembly. The UK Government maintains that the subject of the Bill is entirely reserved to the UK Parliament. During a UK Parliament Public Bill Committee debate in October 2015, Nick Boles, the UK Minister for Skills, said he saw no reason why the UK Government should seek consent before applying the contested provisions.

The Scottish Government submitted a Legislative Consent Memorandum which asked the Scottish Parliament to withhold consent for the Bill because it would impact on devolved functions. However, the Scottish Parliament’s Presiding Officer ruled that the Scottish Parliament’s consent was not required. This meant that no vote could be taken on the Scottish Government’s Legislative Consent Motion.

In Wales a memorandum was laid in November 2015. The memorandum set out the last Welsh Government’s view that the Assembly’s consent would be required for some of the Bill’s clauses as they related to devolved matters. The Welsh Government argued that these clauses fall within the legislative competence of the Assembly because they relate to public sector employers in Wales. Those employers provide a range of devolved public services including education and training, fire and rescue services, health services, local government, and transport services.

The Assembly debated the motion in January 2016. The then Minister for Public Services stated that ‘significant parts of the Bill relate specifically to public services that are clearly devolved, and it is not acceptable for the UK Government to try to impose it on Wales’.

The 2014 Supreme Court ruling

In September 2015 the First Minister issued a written statement in which he argued that the 2014 Supreme Court ruling on the Agriculture Sector (Wales) Bill meant that the Assembly was right to withhold its consent to the Trade Union Bill.

The 2014 ruling said that although employment was not listed as a devolved subject in Schedule 7 of the Government of Wales Act 2006, agriculture was and the contents of the Agriculture Sector (Wales) Bill related to it. Something does not have to be fully within devolved legislative competence in order for it to be within the competence of the Assembly.

In January 2016 a leaked letter from the UK Minister for Skills to other UK Ministers came to light. This showed that legal advice to the UK Government suggested there was a strong case that the Trade Union Bill’s provisions were reserved in relation to Scotland, but that the UK Government had a ‘very weak case’ in relation to Wales because of the precedent set by the Supreme Court ruling.

The Assembly voted to withhold legislative consent to the Bill by 43 votes to 13.

In April 2016, at report stage in the House of Lords, Labour, Plaid Cymru and Liberal Democrat peers put down amendments to disapply parts of the Bill to Welsh public bodies, but the UK Government rejected the arguments and the amendments were withdrawn.

Next steps

In his closing comments in the debate on the motion the then Minister for Public Services indicated that, if re-elected to the Assembly, the Welsh Government would ‘move very swiftly after the May election to introduce what I will, for today’s purposes, call the trade union disapplication (Wales) Bill’. He said that he would use this to remove the contested clauses from the UK Bill.

Should the Assembly pass such a Bill, the UK Government would need to decide whether to refer it to the Supreme Court to determine whether it is within the Assembly’s competence. Given that the UK Government’s own legal advice says that is has a ‘very weak case’, there is some risk in pursuing this course of action.

On the other hand, the Welsh Government and the Assembly would need to act quickly. The Wales Bill, which the UK Government intends to introduce soon, will reconfigure Welsh devolution by introducing a reserved powers model. This would make the devolution model similar to that in Scotland with the likely effect that the UK Trade Union Bill would be deemed outside the Assembly’s competence.

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