17 January 2017
Article by Alys Thomas, National Assembly for Wales Research Service
In January 2016 the Fourth Assembly refused its consent to the UK’s Government Trade Union Bill on the grounds that parts of it relate to devolved public services. The UK Government does not accept that Assembly consent was needed. Leighton Andrews, the then Minister for Public Services, said that if back in power, the Welsh Government would introduce an Welsh Bill to overturn the relevant parts of the UK Bill. It is a dispute which could be heading to the Supreme Court.
The Trade Union (Wales) Bill 2017
The Trade Union (Wales) Bill was published by the Welsh Government on 16 January 2017. It is very short Bill with just three clauses. The Bill amends the Trade Union and Labour Relations (Consolidation) Act 1992 as amended by the Trade Union Act 2016
The Trade Union Act 2016 received Royal Assent on 4 May 2016. Its provisions include a 50% turnout of a union’s members for strike action to occur. For ‘important public services’ 40% of those eligible to vote (as opposed to those actually voting) must back action for a strike to take place. A simple majority of those who vote is currently required. The Welsh Bill would disapply the 40% threshold to Welsh public authorities. It also includes powers to require the publication of information on facility time and to impose requirements on public sector employers in relation to paid facility time. It also introduces restrictions on deduction of union subscriptions from wages by employers.
The Legislative Consent Motion
Both the Scottish Government and the last Welsh Government opposed the UK Bill. They argued that because parts of it related to devolved public services, those parts should be subject to the consent of the Scottish Parliament and the National Assembly for Wales. The UK Government maintained that the subject of the Bill was 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 (LCM) 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 LCM. The subject matter of the Trade Union and Labour Relations Consolidation Act 1992 –is a reserved area in Scotland Act 1998. The is no equivalent exception from competence in the Government of Wales Act 2006.
In Wales an LCM was laid in November 2015. The LCM 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 fell within the legislative competence of the Assembly because they related 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 considered the LCM in January 2016. Leighton Andrews, 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 reserved the right to withhold its consent to the Trade Union Bill. He said:
It is clear, however, that significant elements of the Bill relate specifically to public services which in Wales are unambiguously devolved responsibilities. I therefore do not accept the suggestion that the Bill must be regarded as concerned exclusively with non-devolved issues.
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 relate only to devolved subjects 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 its 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.
The impact of Wales Bill
The Wales Bill, which is completing its passage through Parliament, 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 Trade Union Bill would be deemed outside the Assembly’s competence.
However, provided the Trade Union (Wales) Bill completes Stage 1 of the legislative process “before the appointed day” when the relevant parts of the Wales Bill are commenced, it may proceed. The transitional arrangements also state that nothing in the in the Wales Bill affects Acts and Measures already passed by the Assembly. Nevertheless, a challenge by the UK Government in the Supreme Court remains a possibility.