Nye Davies looks at the dispute between the Welsh and UK Governments over the Trade Union Bill.
One of the first actions of Sajid Javid in his role as Business Secretary was to announce that there would be “significant changes” to strike law in the UK. The Trade Union Bill would require that 40% of eligible union members must vote to back strike action in public services and there would need to be a turnout of at least 50%. By requiring a larger number of members to vote, the Government wants to make it more difficult for a strike to take place, citing the disruption caused to public services as the reason for changing the law.
An interesting aspect of the bill is its effect on Wales, as employment law is not a devolved matter. This has led to dispute between the UK and Welsh Governments. First Minister Carwyn Jones has said his Government will attempt to defy the Trade Union Bill as parts of the bill relate to health and education, areas which are devolved to Wales. He has argued that the bill will be “socially divisive” and that the UK Government should not be allowed to “impose it on Wales”. After originally requesting an opt-out for Wales, the Welsh Government now seems willing to take the fight to the courts in order to stop the bill taking effect in Wales.
Carwyn Jones has proposed to introduce a bill in the Assembly in order to overturn the parts of the bill which impact on devolved services. Former Secretary of State for Wales Lord Hain, speaking in the House of Lords, argued that the “explicit legislative consent of the National Assembly for Wales” should be required before it can be passed. The Wales TUC has accused the UK Government of acting “unconstitutionally” after it published legal opinion which states that “the UK Government has fallen into error in concluding that the provisions of the Bill are not within the legislative competence of the Assembly”. In November, Plaid Cymru joined with other parties in Parliament, including Labour and the SNP in an attempt to defeat the bill. Carmarthen East and Dinefwr MP Jonathan Edwards said that “the only way to protect Welsh workers from these vicious assaults by the Tories is to move responsibility for employment law from Westminster to Wales.”
In response to the criticisms of the Bill in relation to devolved services, the UK Government responded by saying “The Trade Union Bill relates to employment rights, duties and industrial relations, all of which are clearly reserved matters for the UK Government under the Welsh devolution settlement.”
The Trade Union Bill is yet another issue of contention between the Welsh and UK Governments. The tension that has been created concerning UK legislation and its impact on devolved services highlights the technical difficulties involved in the Welsh devolution settlement. Constitutional expert Alan Trench details the implications of the bill on Wales, concluding that, though it is not certain, “the Assembly has no power to legislate for trade union matters relating to devolved subjects”. However, he argues that due to the uncertainty and the complexities involved in interpreting the Assembly’s ability to legislate on issues related to devolved subjects “a clearer way of defining the Assembly’s powers is badly needed”. This conclusion has been reached by many in Wales who have called for a move from conferred to reserved powers, as a way of providing more clarity to the Welsh devolution settlement.
As well as debates surrounding devolution that arise from the bill, there is a clear party political issue. Another important aspect of the Bill, which will mainly affect the Labour Party, would require trade union members to opt-in to paying a political levy to political parties as part of their fees, whereas currently they need to opt-out. Labour has predicted it could lose £6m a year if the proposals were to be carried through. A Labour motion in the House of Lords has been passed meaning that the part of the bill concerning political funds will be examined by a cross-party committee.
Trade union funding of political activities has been branded as an attack on the Labour Party – even Tory peer Lord Forsyth admitted that the bill “will take away funding from the Labour Party at a time when the Labour Party is perhaps not at its strongest… our Parliamentary system does depend upon having a strong and effective opposition.”
2010 marked a significant change in the UK as Labour no longer enjoyed power at both Westminster and the National Assembly for Wales. During this period, when we’ve had two different parties in power both ends of the M4, we have seen numerous intergovernmental disputes between the Welsh and UK Governments, ranging on matters from local government byelaws to the NHS. The Trade Union Bill is yet another example of the Labour administration in Wales being at loggerheads with the Conservative government in Westminster. Whilst the outcome of this debate is unknown as of yet, until there is a clearer devolution settlement available to Wales, it is unlikely to be the last dispute between the two governments.
Even with the election on the horizon, this growing conflict represents, I would argue, something of greater significance.
For the first time that I can remember, the First Minister is threatening not just party political, not just inter-governmental but institutional defiance of a Westminster Act.
The underlying tension seems to be between the Welsh Government pursuing a social democratic agenda and a Conservative Government in Westminster pursuing a laissez-faire one, especially concerning employment relationships.
Carwyn is adopting a position within the confines of statute and common law. I assume he is basing his view on the decision of the Supreme Court which ruled that the Agricultural Sector (Wales) Act 2014 dealing with agricultural wages was valid in that it dealt with a devolved matter, agriculture. Presumably the argument will be that health and education are devolved matters and therefore conditions of work that apply to workers in those sectors are also devolved.
Plaid Cymru has taken matters one step further in calling for the devolution of employment law, which is not surprising. However Welsh Labour should consider this as an option. The Welsh electorate has no particular appetite for adopting Conservative attitudes towards the workforce or employment rights and such an agenda is being pushed by a party that gained only 37% of the UK vote. One of the reasons for this measure being railroaded is the fact that it does not enjoy popular support.
This is an area where Labour could play to a strength and seek to take Welsh workers out of the Conservative firing line altogether. I suspect that Carwyn will seek to exhaust the tactical path before considering the more strategic one. But if he and Welsh Labour did, they would find themselves, somewhat embarrassingly, alongside the SNP who are also taking their country down the social democratic route.