Martin Mansfield says it is fully within the Welsh Government’s power to obstruct the parts of the UK Government’s Trade Union Bill that relate to devolved matters.
‘The UK Government has fallen into error in concluding that the provisions of the Bill are not within the legislative competence of the Assembly.’ Hefin Rees QC
‘A spectacular mess’. Alan Trench
However you cut it, the Trade Union Bill is a disastrous piece of legislation. On the one hand pushing the balance of power still further towards the employer at work while on the other using the brute force of Whitehall machinery to stamp all over Wales’ devolution settlement.
Any good democrat should balk at its progress into statute.
With onerous and unworkable restrictions on the right to strike, the Bill’s provisions will see the UK breach several International Labour Organisation conventions and Article 11 of the European Convention on Human Rights – placing the basic principles of freedom of association and collective bargaining under threat.
As Liberty set out in its evidence during the Bill’s committee stage, its effect will be to make the right to strike ‘illusory’. They are joined by Amnesty International in condemning the notion that your human rights should be diminished if you decide to join a union to make your voice heard at work.
A summer consultation lasting just seven weeks was launched in 2015 to dodge the tough questions on a Bill that has failed to prove its case from the off. Rather than seriously engaging with trades unions, human rights organisations and employers, the UK government chose to lean on anecdotal evidence and that bastion of authoritative research, the Taxpayers’ Alliance.
The Regulatory Policy Committee was rightly scathing about the Bill’s impact assessments; labelling them ‘not fit for purpose’ and pointing to the failure of UK Ministers to provide a logical rationale for their proposals.
Not only has the UK government failed to prove the case for this Bill in relation to public services, the economy and human rights, it has also aggressively undermined the Welsh devolution settlement with a stubborn and deeply flawed argument that this Bill has nothing to do with Welsh Ministers. In fact it does, and there is now an opportunity to protect Welsh services from this mess.
Wales TUC welcomed the move by Welsh Labour, Plaid Cymru and the Welsh Liberal Democrats to vote down the consent motion on the Bill last Tuesday (26/01). They rightly asserted that this Bill intrudes on devolved matters and that consent should have been requested by UK Ministers. Ahead of the vote, Hefin Rees QC presented his independent legal opinion, which was commissioned by Wales TUC, to AMs with a compelling challenge to the UK government’s crude stance.
Across the three areas covered, the evidence comprehensively demonstrates that:
It is ‘strongly arguable’ that clauses within the Bill relate to devolved matters and the conclusion that the provisions are not within the Assembly’s competence is ‘flawed’
consent should have been sought and the failure to do so means that the UK government has broken the Sewel Convention and will therefore be ‘acting unconstitutionally’ if the Bill is passed in its current form
there is ‘nothing to prevent’ the Welsh Government and Assembly from enacting legislation that reverses the Bill in its entirety as long as that legislation relates to devolved matters.
Whatever your view on the Bill as a whole, it is clear that the UK government is riding roughshod over our constitution and undermining the ability of devolution to operate according to the democratic wishes of the people of Wales.
The UK government has not bothered to substantiate its case to the contrary, largely because it can’t. Either way, the focus must now be on ensuring that the Welsh Government, and the clear majority opinion in the Assembly, acts as quickly as possible to prepare legislation that reverses this Bill if it is forced on Welsh public services.
This is urgent because we are seeking to nurture a model in Wales which invests in partnership rather than provoking conflict. It would be undemocratic and utterly bizarre for the Secretary of State for BIS to dictate to the Welsh Health Minister how much facility time he or she should allow for trade union activity within the devolved service.
Major public sector employers in Wales have made their opposition to the Bill very clear at the Workforce Partnership Council, including local authorities, health boards and colleges. What we now need to avoid is a scenario where these employers are forced to go through the tortuous process of complying with this legislation before again reverting to the current system. The hard work must start now to protect union membership from the impact of the ban on ‘check off’ and restrictions on facility time. The last thing our public services need is to have to waste time and resources on this when dealing with positive workforce planning which will affect all of us, whether you deliver, use or indirectly benefit from those services.
A majority of the Assembly has united around a set of values which point in the opposite direction to this Bill. The Welsh Government now needs to act on its welcome statements and prepare legislation as a matter of urgency to ensure those values are protected in the services they are responsible for. We look forward to working with them in developing this with the support of all sensible Assembly Members.