Tories on shaky ground asWales fights off interference with unions
Will the Welsh Government succeed in its bid to fend off what it regards as anti-trade union legislation from Westminster, asks Chief Reporter Martin Shipton
ONE of the paradoxes about the Conservative Party is that while in many policy areas it is in favour of deregulation and “reducing red tape”, in the field of industrial relations it believes in a maximalist regulatory framework, at least so far as trade unions are concerned.
Since Margaret Thatcher’s period as Prime Minister in the 1980s, unions have been subject to some of the most restrictive laws in the socalled free world.
The greatest restrictions apply when industrial action is contemplated, and the Conservative government’s latest piece of employment legislation takes things further.
Under the Trade Union Act 2016, industrial action can only go ahead lawfully when there has been a ballot turnout among union members of at least 50%.
And in “important public services”, including in the health, education, transport, border security and fire sectors, an additional threshold of 40% of support to take industrial action from all eligible members must be met for action to be lawful.
From the point of view of publicsector trade unions and parties of the left, this went down no better in Wales than in England.
Here, however, the Welsh Government saw a way of rolling back the Act in the public-sector areas for which it is responsible.
Explaining what it hoped to achieve with legislation of its own, Finance Secretary Mark Drakeford said: “We have always said that the Trade Union Act was unnecessary and would lead to more confrontational relationships between employers and workers, undermining rather than supporting public services and the economy.
“Social partnership is founded on respect for the work of trades unions and the rights of their members. In Wales, employers and the trade union movement work together constructively. We are not prepared to let the Trade Union Act undermine the approach we have built on this side of the border.
“Not only is the Act damaging and divisive, but it interferes with devolved policy and the powers held by the National Assembly for Wales. [Our bill] seeks to ensure the damaging provisions of the UK Act do not apply to public services in Wales.”
The bill has now duly been passed, with the support of Labour and Plaid Cymru.
Under the terms of the devolution settlement, however, the UK government can question the right of the Welsh Government to make legislation in a policy field it considers its own. If a formal challenge was made, a case would be fought out in the Supreme Court.
In the case of the Welsh Government’s Trade Union (Wales) Bill, it would be open for the UK government to argue that it fell within the field of employment – one that is not devolved to the National Assembly.
However, Mr Drakeford has received what he regards as robust legal advice to the effect that he is on solid ground. He made a statement saying: “The Supreme Court has made it clear that provided a bill provision fairly and realistically relates to one or more of the subjects in Schedule 7 to the Government of Wales Act 2006, and does not fall within any exception in that Schedule, it does not matter whether a provision might also be classified as relating to a subject that has not been devolved, such as employment rights and industrial relations.
“Significant elements in the UK Government’s Act relate specifically to public services that in Wales are unambiguously devolved responsibilities. The Act refers explicitly to health services, the education of those aged under 17 and fire services – all of which are plainly devolved.
“It is untenable, we believe, for UK ministers to argue that their legislation must be regarded as concerned exclusively with non-devolved matters. It is this government’s view that the relevant provisions of the Government of Wales Act 2006, insofar as they involve the delivery of public services... bring the provisions of this bill within the devolved competence of this National Assembly.”
The Welsh Government has, however, been in a race against time to get its bill through. Complicating the matter further, a provision of the recently passed Wales Act – which nevertheless has yet to come into force – will deprive the Assembly of the right to legislate on all matters of employment law, even concerning public services, for which it is responsible.
If the Assembly’s Welsh Bill hadn’t gone through before Westminster’s Wales Act comes into force, it wouldn’t have been possible to take it forward.
In the meantime, will the UK government take the Wales Bill to the Supreme Court?
The response I got from a Wales Office spokesman could hardly be described as gung-ho: “The UK government will assess the legislative competence of this bill, as is standard practice with all Welsh Assembly bills.”