Legislative consent for the Trade Union bill?

In a speech at the SNP conference in Aberdeen, Grahame Smith of the STUC has apparently argued that the impact of the Trade Union bill currently before the UK Parliament is such that it requires legislative consent from Holyrood under the Sewel convention – ‘a consent that I am confident would not be forthcoming’, so in reality a veto on the bill at least for Scotland. The bill is unsurprisingly under heavy criticism not just from the STUC but also the Greens and Rise. The UK Government does not believe that the bill needs legislative consent, however (see Annex A of the Explanatory Note, available here; the bill itself is here as a PDF document).

Constitutionally speaking, it’s hard to disagree with the UK Government’s view. Industrial relations and trade union law, like employment law more generally, remains a reserved matter under Head H1 of the Scotland Act 1998, beyond the powers of the Scottish Parliament. The criteria for legislative consent under the Sewel convention are set out in Devolution Guidance Note 10 on Post – Devolution Primary Legislation affecting Scotland (available here as a PDF). Consent is not needed for bills which do not apply to Scotland at all; which apply to Scotland but ‘relate to’ reserved matters and do not alter Scots law on non-reserved matters; or which contain provisions applying to Scotland and relating to reserved matters, though they may make incidental or consequential changes to Scots law on non-reserved matters.  Consent is only needed if the bill ‘contains provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers’.

The objection here cannot be that these provisions are for devolved purposes, since industrial relations are reserved.  Likewise, it’s not that these provisions alter the legislative competence of the Scottish Parliament, since it has no such competence. There can’t be any argument that the UK Parliament has the power to legislate regarding the operation of trade unions, balloting requirements, the operation of political funds and the like which make up the bulk of the bill, which operate equally in Scotland as in other parts of the UK. Indeed, do trade unions really want to see different rules applying in Scotland from those in England and Wales when it comes to holding ballots or running a political fund? It would be impossible for them to operate on a UK- or Great Britain-wide basis if that were so.

The argument must therefore be founded on the fact the provisions affecting the public sector trigger the convention. These include the requirement for a forty per cent affirmative vote for strikes in public services in clause 3, the publication arrangements regarding ‘facility time’ in clause 12 and the reserve powers regarding ‘facility time’ in clause 13. These will certainly affect the Scottish Government itself, as well as local authorities, the NHS and other public service employers in Scotland.  In that sense, they will affect devolved executive functions.  But the fact that they affect these devolved-sector employers doesn’t mean that the bill affects a devolved matter. The competence of the Scottish Government (or Parliament) will not be changed, simply the way they go about their business – in the same way that a change in the rate of National Insurance Contributions payable by them would be. The mere fact that legislation affects a devolved institution does not trigger the Sewel convention.

Smith must have been very badly advised on constitutional matters if he thought that this was so, or that this argument was worth advancing.

It’s worth adding that the proposal in clause 3 of the Scotland bill currently before Westminster to put the Sewel convention on a statutory footing would not alter this.

It’s also worth adding that a similar argument applies in relation to Wales, though the conclusion is more tentative.  It’s not quite the same; the Scottish Parliament has full powers to legislate in relation to non-reserved matters, including most aspects of the functioning of the Scottish public sector.  In Wales, the Assembly’s powers to legislate must ‘relate to’ a devolved subject as listed in Schedule 7 to the Government of Wales Act 1998.  This is relevant because the test used to apply Sewel is whether a bill would be within devolved competence if passed by the devolved legislature, and apply that backwards, as it were, to the Westminster legislation.  (This means Sewel gets really complicated where there are legislative grey areas about devolved competence.)  The National Assembly’s powers in relation to ‘public administration’ in subject area 14 are narrow ones; employment is not mentioned in relation to that or to other relevant devolved subjects such as health or education, though it is not an excepted matter either (so it can be regarded as a ‘silent subject’, if one subscribes to that account of devolved powers).  Whether legislation on it would be within devolved competence therefore depends on a combination of inferring such powers into Schedule 7 subjects or using section 108(5)’s powers to make incidental or consequential provision.  This is also made more complicated by the confusing decisions of the UK Supreme Court, notably the wide scope to legislate provided the legislation ‘relates to’ a devolved subject endorsed in the reference regarding the Agricultural Sector (Wales) bill, but complicated by more general uncertainty following the NHS Recovery Of Medical Costs for Asbestos Diseases (Wales) Bill.  This leads me to conclude that the Assembly has no power to legislate for trade union matters relating to devolved subjects, and so Westminster legislation regarding that doesn’t need devolved consent either – but it’s not certain, and the complex nature of this analysis and the fact one can’t be certain may indicate why a clearer way of defining the Assembly’s powers is badly needed.

As far as Northern Ireland is concerned, trade union matters are a devolved matter; the Trade Union bill won’t apply there as a piece of Westminster legislation, nor does the Department of Enterprise and Learning intend to apply similar provisions there.  But the arrangements for Northern Ireland are different from those for Scotland or Wales.

The politics of the argument are rather different from its constitutional propriety, of course. Smith and others may believe that the powers of the Scottish Parliament are other than they are, as part of an argument that they should be broader. This provides a convenient campaigning platform to oppose Westminster legislation they dislike, and to try to mobilise opposition to the legislation they dislike into opposition to the Union more generally. That’s clearly the line the Scottish Government is taking, with Roseanna Cunningham seeking to exempt Scotland from the bill generally rather than argue the constitutional point. Even if Scottish opponents of the bill succeed in getting Holyrood to consider legislative consent (there’s nothing to stop it debating and rejecting a motion), that will have no constitutional impact, because there’s no constitutional basis to say that devolved consent is needed here.

I’ve updated this post since it was first published, particularly to include Wales and Northern Ireland. 

UPDATE, 9 February 2016: A letter from Nick Boles to Oliver Letwin and Chris Grayling about possible amendments to the bill has been leaked to, of all papers, the Socialist Worker. It can be read in its entirety here.  Among other things, it suggests First Treasury Counsel agrees with the analysis above – it says:

First Treasury Counsel … 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. We would, however, want to be consistent in our approach to Scotland and Wales, as we do not think it would be sustainable politically to offer concessions to Wales but not Scotland.

It is worth adding that the Welsh Government has proposed not just a legislative consent motion (which was disappproved on 26 January, signalling the Assembly’s displeasure but with no legal effect), but also to pass its own legislation disapplying the bill in relation to devolved functions. Such a move would create serious problems for the UK Government; assuming it were within devolved competence, the devolved legislation would take precedence over the Westminster legislation on the basis of being the later law in time (lex posteriori, in legal Latin).