Calling for the devolution of employment law alone, is not a sufficient response to the Trade Union Bill
This blog is not primarily about the rights and wrongs of that policy. However, the most commonly cited reason for opposing it is that it would presage a ‘race to the bottom’ in which the different legislatures competed to lower employment regulation to gain competitive advantage and/or that it would provide encouragement or pretext to the UK Government to introduce different protections on a regional basis in England.
The STUC rejects this view on three grounds. Firstly, there is no evidence that the current Government in Scotland - nor its most likely replacement - would seek to lower workplace protection here (surely the opposite is true?). Secondly, the Westminster Government already possesses the powers and majority required to introduce such regional variations if it so desired. Thirdly, Northern Ireland already has a number of devolved workplace protections and neither of the feared outcomes has ensued.
Firstly, time is not on our side. The Trade Union Bill if passed will become law in March/April of next year, whereas there is no prospect of the devolution of employment law in the near future. Had theTories not been elected with a majority in May 2015, and had we successfully convinced Labour to support our position, things might have been different. But that’s not where we are.
Obviously, we continue to work with Scottish MPs in their efforts to defeat or amend the Bill at Westminster and obviously, we work to unite as many people in Scotland as we can to oppose it. But our key priority in the week ahead is to explore what the Scottish Parliament can do.
Crucially, the Government has not said it with wants to do away with payroll deductions per se. It is not banning their use for charity giving, pension payments or cycle lease schemes. Neither is it banning payroll deduction schemes for union dues in the private sector.
The same is broadly true on facility time. The Government is not banning facility time, nor does it want the power to limit its use in the private sector.
By applying this legislation in a non-universal way, the UK Government is openly admitting that these parts of the Bill are about what public money may, or may not, be used for rather than whether the concepts of payroll deductions or agreed facility time agreements are wrong per se.
The point is that the taxpayers’ money that the UK Government is looking to ‘save’ IS NOT ITS MONEY! This is not just a matter of principle, but of fact. At the point that resources are devolved to the Scottish Parliament or indeed raised through devolved tax-raising powers, it is a matter for our Parliament , and our Parliament alone to decide how to spend it.
It is important to be clear that the question about whether a Legislative Consent Motion is required does not simply centre on whether an act passed by the UK Government might impact on the way the Scottish Parliament may deploy its resources. To use a topical example, if the UK Government were to use its reserved powers on abortion to change the time limits for terminations, it would matter not a jot whether the Scottish Parliament wished NHS Scotland to do differently. The law is reserved and the law is the law. No LCM would be required.
The question of whether an LCM is required revolves around whether the legislative competence of the Scottish Parliament is affected. In his blog Alan Trench argues that the Trade Union Bill involves no such interference.
I’m not so sure.
Take a hypothetical example - though a good one! As far as I can see, the Scottish Parliament would currently be empowered to enact legislation providing that all public service employers under its control MUST offer facility time, or check-off etc. to its employees. This power would have to be limited to areas of its devolved competence (i.e. where it was the employer or had ultimate administrative competence) and it could not be extended to cover non-government employers as this would breach reserved employment legislation.
Presuming that the above argument is wrong, what should the Scottish Parliament do?
Irrespective of whether it breaches the letter of the devolution settlement, these parts of the Trade Union Bill surely breach its spirit.
Therein lies the case for the Scottish Government to state its clear intention not to comply with these clauses. Local government in Scotland has already done so, and there is a very strong case for local government in England and Wales to do the same.