The Wales Act fails its first test: The Trade Union Bill and a Westminster power grab

Dai Lloyd considers the dispute which is brewing between the National Assembly and Westminster, touching both policy and constitutional principle






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This January, I joined my Plaid Cymru colleagues in voting against the Legislative Consent Motion for the Wales Bill, and spoke in the debate to that effect.

I didn’t lay into other colleagues who supported the LCM for strategic reasons, as I understood their rationale that refusing consent, could mean the Wales Bill would fall off the agenda because of Brexit. But having scrutinised the legislation, I was left in no doubt, that this Wales Bill would claw back powers from the National Assembly. I had no reservations (no pun intended) in voting against the LCM.  

When Plaid Cymru, votes against more powers, something must be wrong. It now gives me little pleasure to talk of that stance being vindicated.

The ink has barely dried on the Wales Act 2017, and a signal has already arrived from the UK Government that its reserved powers model will be used to quite rigidly police what we in Wales cannot do when it comes to legislation.

At the Constitutional and Legislative Affairs Committee on Monday 6th March, the Cabinet Secretary for Finance and Local Government discussed the content of a UK Government letter which he said constituted a “direct threat” to our country’s legislative ability.

The Welsh Government’s Trade Union (Wales) Bill, which is within competence under the Assembly’s current “conferred powers” model, covers industrial relations within the devolved public sector.

I won’t go too far into the policy detail, but the Bill would dis-apply aspects of the UK Trade Union Act 2016, which a majority in the Assembly support.

Industrial relations will be specifically reserved to Westminster once the Wales Act comes into force, as is the case in Scotland. But the Welsh Government’s attempt to exploit the advantages of “conferred powers” will be wiped out by the UK Government.

Once the Wales Act is in force, the UK Government intends to legislate solely on Welsh industrial relations to overrule whatever the Welsh Government has done.

In theory, there are several examples where the UK Government will be able to over-rule legislation that has been passed in the National Assembly, which will no longer be within competence under a reserved powers model. The Welsh legislation on the Agricultural Wages Board for example, another success of conferred powers, will not be undone in the same way because a specific exception exists in the Wales Act which allows that legislation to stand.

So rather, there is a political motive at work here: the Conservatives at Westminster are seeking to enforce the uniformity of industrial relations policy across Wales, England and Scotland, rather than respect the National Assembly’s devolved competencies as it stands.

As a Plaid Cymru AM, taking off my Committee hat – a role in which I scrutinise process rather than policy – I see this as yet another example of how Wales is treated unfairly by Westminster.

A UK Government that believes in accountability and fairness could easily respect the democratic legitimacy of the National Assembly and its legislative legacy under the current devolution settlement.

But on this instance, it is clear that they are hell bent on seeking to retain uniformity in the constitutional conundrum of Brexit, rather than respect the democratic decisions made in devolved institutions.

Plaid Cymru supports the principle of a reserved powers model, as is the case in Scotland and Northern Ireland. Due to the sheer number of reservations in the Wales Act, however, the reality is that under conferred powers, particularly following the Supreme Court successes, we had a wider and more expansive ability to legislate.

We have heard in recent weeks from Professor Richard Rawlings that the Wales Act “contains the seeds of its own destruction”.

This brewing dispute, which touches both policy and constitutional principle, is a clear indication that the seeds are already growing and gaining root.

While the citizens of Wales are understandably not interested in the technical detail, the perception which comes across to the public will be of yet another squabble over making devolution work in Wales – a problem for which Westminster will continue to evade responsibility.

The UK Government had an objective to provide a “lasting settlement”. Not only have they failed, they have also expedited the need for a new settlement altogether.

The Wales Act now represents a device which can be used to roll-back powers from the National Assembly, and narrow the scope of what the democratically elected parliament of Wales can do for their constituents.

Dr Dai Lloyd is a Plaid Cymru Assembly Member for South Wales West and is a member of the National Assembly’s Constitutional and Legislative Affairs Committee. He is also the Chair of the Plaid Cymru group at the National Assembly, and the Shadow Cabinet Secretary for Culture and Infrastructure