The UK Trade Union Bill and Legislative Consent

14 March 2016

Article by Alys Thomas, National Assembly for Wales Research Service

Here is a picture of Westminster.

Image from Pixabay. Licensed under the Creative Commons.

The Trade Union Bill 2015-16 was introduced in the House of Commons on 15 July 2015. The Bill makes some changes to the Trade Union and Labour Relations (Consolidation) Act 1992. Provisions include:

  • Strike action can only be approved by a ballot in which more than 50 per cent of those who are entitled to vote turnout and for “important public services”, any proposed action will have to be approved by a majority of at least 40 per cent.
  • Unions will now have to give employers at least two weeks’ notice of any industrial action.
  • Unions would no longer be able to automatically deduct contributions to political parties from members’ fees. Members would have to opt-in to any such contributions.
  • Union activities and finances will also be more strictly regulated. The Certification Officer (who regulates unions) will be given powers to investigate and access membership lists even if no-one has complained about them.
  • Public sector workers will also no longer be able to directly pay union fees through their wages, but will have to sign up and pay for union membership independently.

The Bill has prompted strong opposition in Parliament and is now at Report Stage in the Lords.

Both the Scottish and Welsh Governments have voiced opposition to the Bill and argue that because parts of the Bill relate to devolved public services they should be subject to the legislative consent of the legislatures. The UK Government maintain that the subject of the bill is entirely reserved. During a Public Bill Committee debate on 27 October 2015, Nick Boles, the Minister for Skills, said:

‘All the provisions in the Bill relate to employment and industrial relations law, which are clearly reserved matters under the devolution settlements for Scotland and Wales. New clause 11 relates to the same reserved matters, so it is entirely in order for the Government to propose that its provisions should also apply to the whole of Great Britain. I see no reason why the Government should seek consent before applying those provisions in particular areas.’

A Legislative Consent Memorandum (LCM) which asked the Scottish Parliament to withhold consent from the UK Government’s Trade Union Bill was submitted by Scottish Ministers who argued that the bill will have an impact on devolved functions. However, the Presiding Officer of the Scottish Parliament ruled that the bill was wholly reserved and the Scottish Parliament’s consent was nor required. This meant that no vote could be taken on the Scottish Government’s LCM.

In Wales an LCM was ruled in order and was laid on 20 November 2015. The LCM set out the Welsh Government’s view that the Assembly’s consent would be required for clauses 3, 12, 13 and 14 of the Bill as they relate to devolved matters. It argued 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; provision of health services; local government; and transport facilities and services.

The LCM was considered in Plenary on the 20 January 2016. The Minister for Public Services, Leighton Andrews AM stated:

‘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.’

Prior to the vote the GMB union published a legal opinion it had commissioned from Hefin Rees QC. It concluded:

‘In summary, in our view it is strongly arguable that clauses 3, 12, 13 and 14 of the Bill relate to the following devolved subject matters: “education and training”; “fire and rescues services”; “health and health services”; “highways and transport”; “local government”; and “public administration”.

Further, the Bill relates to “industrial relations” and “employment”, matters which are neither devolved subjects nor specified exceptions to devolved subjects.

In these circumstances, the UK Government’s conclusion that the Bill’s provisions are not within the legislative competence of the Assembly is flawed; a legislative provision may relate to both a devolved and a non-devolved subject matter: see In re Agricultural Sector.

The Opinion alluded to the Supreme Court’s ruling on the Agriculture Sector (Wales) Bill which said that industrial relations and employment are not specified exceptions in Schedule 7 of the Government of Wales Act 2006.

This concurred with the view of the Welsh Government which was set out in a Written Statement issued by the First Minister in September 2015 which stated:

‘Initial correspondence received from UK Government Ministers asserts that the Bill relates to a non-devolved matter and no Legislative Consent Motion is required in the National Assembly for Wales. 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 judgment of the Supreme Court in the reference of the Agricultural Sector (Wales) Bill confirmed that provided that an Assembly Bill fairly and realistically satisfies the test set out in section 108 of the Government of Wales Act 2006 and is not within an exception, it does not matter whether it might also be capable of being classified as relating to a subject which has not been devolved, such as employment rights and industrial relations.’

In January 2016 a letter from the Minister, Nick Boles to other Ministers, was leaked which said:

‘We have sought legal advice from First Treasury Counsel who has confirmed that we have a strong case that these provisions are reserved in relation to Scotland, but a very weak case in relation to Wales.’

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

In his closing comments to the debate Leighton Andrews indicated, that if re-elected in the forthcoming Assembly election, 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 to remove [the] clauses’ from the UK Bill.

Should such a Bill be passed by the Assembly, the expectation is that the UK Government would refer it to the Supreme Court to determine whether it is within the Assembly’s competence.

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