Why the Scottish Parliament should demand a Legislative Consent Motion and refuse to comply with aspects of the Trade Union Bill

Calling for the devolution of employment law alone, is not a sufficient response to the Trade Union Bill

The STUC advocates the devolution of workplace protection law to Scotland.  This includes employment law, health and safety, equalities, minimum wages and of course the regulation of trade unions.

This position is supported by the SNP, but currently opposed by the Labour Party and by the TUC.

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.

It is also undeniable that, were trade union regulation already devolved, we would not be subject to the vicious Trade Union Bill currently being rushed through Westminster.

But arguing for the devolution of workplace protection is an insufficient response to the Trade Union Bill.  This is for two reasons.

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.

Secondly, even if employment protection was devolved, or indeed if Scotland were independent, it would still be necessary for us to campaign against the Trade Union Bill. This would be partly as an act of solidarity, but also because no sensible analysis of the way in which the UK economy and labour market works could fail to understand that the way in which employment and trade unions is regulated in the UK would have a continuing impact in Scotland.

So, whilst the STUC will continue to campaign for the devolution of employment protection, the question is what do we do in the here and now?

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.

The case for a Legislative Consent Motion (LCM)

The first thing the Parliament can do is demand that aspects of the Trade Union Bill are subject to an LCM  – the process whereby parts of the Act if passed would only be applicable in Scotland with the agreement of the Scottish Parliament. The aspects in question would be:

·      the clause in the Bill determining that public sector bodies should not offer ‘check-off’ facilities to their employees (the system whereby employees, if they wish they can pay their union dues directly from their salary); and

·      the part of the Bill which forces UK public sector funded bodies to give an account of the amount of facility time they offer to union reps (paid time off to represent members) and, the empowers the UK Government  to cap the amount of time public sector bodies offer  if it deems it ‘excessive’.

The UK Government has justified these provisions on the grounds of ‘saving taxpayers money.’ Of course, the real purpose is to attack public sector unions but even this Government cannot say that.

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.

Essentially it does not want (or dare) to interfere with agreements reached between employers and employees in the private sector, particularly where these might be contractual.

Thus, we are facing a discriminatory piece of legislation in which some workers will have rights that others will not.

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.

I am no constitutional lawyer, but it seems to me that this introduces a number of complications and a clear problem relating to the spirit of the devolution settlement.

Now, as it happens, quite a lot of public sector employers make money out of check-off (unions pay for the service) and Government analysis of facility time shows a positive benefit to business, but this is not really the point.
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.

But if the UK Government were to maintain the legal right to a termination at a certain point in pregnancy, but that that such terminations could not be provided by the Scottish NHS, this I think would be viewed differently.  At least it should be viewed differently.

This is effectively what the UK Government is proposing in relation to the parts of the Trade Union Bill. Nick Boles, the Minister in charge, has confirmed that under the provisions of the Bill the NHS in England will be able to tell the NHS in Scotland how it can and cannot spend its money in relation to facility time and check-off.  This effectively means that the UK Health Minister can tell the Scottish Parliament what it can or cannot do with respect to its own resources.

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.

If the Trade Union Bill were to be enacted as currently written, the Scottish Parliament would no longer be able to do this. NOT because it was forced to comply with a universally applied law (i.e. the general banning of all payroll deductions or facility time) but because a law had been written that specifically banned it from using its resources in that way. To my mind, the Scottish Parliament should be looking into this issue very closely indeed. At the very, very least it should be the subject of debate on Tuesday.

If no Legislative Consent Motion

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.

In practice, this would mean refusing to publish details of how facility time was used and how much was spent on it; refusing to cap facility time if the UK Government demanded it; and refusing to abandon check-off.

We do not yet know what the penalties for such an action would be. Although surely any such penalty must be proportionate to the ‘offence’? If, say, a local authority were to refuse to abandon check-off, and was able to show that by so doing it was actually saving the tax-payer money because it would lose revenue by stopping it, how punitive might a penalty reasonably be?

In any case, many will take the view that the penalty is immaterial because the principle is too great.

This returns me to the first part of this blog.  The devolution of workplace protection is a policy the STUC advocates, but alone it not an adequate response to the Trade Union Bill because the threat we face is more immediate and is a matter of principle.

By clearly stating its intention to refuse to comply with the clauses of the Bill, the Parliament can make a clear statement about its own legislative and administrative integrity and lay down a challenge to the Westminster Government which would resonate across the UK.