The Trade Union Bill is the latest in a series of standoffs between London and Cardiff, Furthermore, says Huw Pritchard, lecturer in Devolved Law and Governance at the University of Cardiff, the conflict may well encourage further tensions over the passage of the draft Wales Bill.
Billed by WalesOnline as an ‘epic battle about who runs Wales’, the Trade Union Bill, which is already an inherently politically charged policy, is the latest flare-up of the current devolution settlement in Wales. This highlights both the difficulties in determining what is devolved or not in Wales and the breakdown of intergovernmental relations. Also, an interesting backdrop to the current circumstances is what the draft Wales Bill may mean for future circumstances like this.
The Bill seeks to implement the Conservative Party manifesto commitments to reform trade unions and to protect important public services from strikes. The UK Government was clear that the Bill is not within legislative competence of the devolved legislatures in neither Scotland nor Wales and so legislative consent motions were not required. However, the Welsh Government was of a different opinion as the Bill touches upon public services, such as health and fire services, which are devolved. A legislative consent motion was tabled in the Senedd and the Assembly voted against consenting to the Bill.
Another twist in the battle came early last week when a leaked letter from Nick Boles MP, Minister of State for Skills and Equalities, suggested that amendments were required to the Bill in general and that concessions may need to be offered to both Wales and Scotland.
As followers of the Welsh constitutional settlement know too well, this is another matter which falls in limbo between what is reserved and non-reserved. While trade unions and industrial relations are not conferred they are neither expressly reserved nor excepted and so fall into a grey area of where the devolution line should lie. Therefore, it is arguable whether a legislative consent motion was required or not but as it touches on devolved competences in terms of public services the Welsh Government decided that it was.
The UK Government may seek to pass the Bill regardless of the lack of consent by the National Assembly for Wales. If this is the case, it has been suggested that the Welsh Government may seek to legislate to reverse the effects of the Trade Union Bill in Wales. This brings into question whether the Assembly has the competence to do so.
It is likely that such legislation passed in Cardiff will be referred to the Supreme Court. Precedence following the Agricultural Sector (Wales) Bill suggests that as long as the Welsh Government could show that their legislation fairly and realistically ‘relates to’ devolved public services then it would be sufficient to fall in their favour. The UK Government have already recognised this to a degree as the leaked letter admits that it has a ‘very weak case’ in relation to Wales. Further analysis of this position can be seen by Alan Trench and the legal advice provided to Wales TUC Cymru [PDF].
Secondly, it highlights the issues regarding intergovernmental relations between London and Cardiff. These relations are regulated by a Memorandum of Understanding and specific Devolution Guidance Notes. Although quite weakly phrased, Devolution Guidance Note 9 recommends that UK Departments should speak with the Welsh Government and seek legal advice when in doubt regarding whether matters are devolved or not. However, it was suggested by Leighton Andrews AM, and re-enforced by Dafydd Elis-Thomas AM, in the Senedd plenary session that this had not been the case. Also, a worrying part of the leaked letter is that the Minister suggests that consultation with the Welsh Government would be a concession, even though it is arguable that it should be undertaken under the intergovernmental process anyway.
Would these situations be a thing of the past under the draft Wales Bill?
The draft Bill would make the position much clearer in one respect. As in Scotland, trade unions and industrial relations would be a reserved matter. This would allow the UK Government to treat both administrations with parity at the very least, even if it does so by strengthening the UK position. The side-effect is that the National Assembly for Wales would be losing competence when the line is more clearly drawn under the new settlement.
Another fundamental concern is that the Wales Bill as it stands does not provide any strengthening of the intergovernmental structure even though several provisions are dependent on it. Therefore, the underlying weakness of intergovernmental relations will remain a significant issue and may result in further public flare-ups under the current and future settlement.
Lastly, the current dispute may be a further incentive for both camps to dig their heels in a bit deeper when the Wales Bill is formally introduced next month.