My Lords, I refer to the register of interests. The amendments tabled by my noble friend Lady Morgan of Ely, the noble Lord, Lord Wigley, the noble Baroness, Lady Randerson, and me reflect the cross-party support in your Lordships’ House that is also evident in the Motion overwhelmingly carried by the Welsh Assembly on 26 January with the backing of 43 out of 60 Assembly Members against 13 Conservatives. The Assembly’s vote was on a legislative consent Motion, a convention of this Parliament that enables devolved Governments to give consent to Westminster to amend legislation relating to areas normally within the devolved Government’s responsibility. After this overwhelming vote, the convention would normally require that the UK Government now amend this Bill to remove legislation that pertains to devolved powers, such as the rules governing public servants in Wales, whether payroll deductions of trade union subscriptions should be made, and so on. Moving the Motion, Public Services Minister Leighton Andrews said:
“The Bill is damaging, divisive and risks undermining public services and the economy. The Welsh Government believes it will lead to a confrontational relationship between employers and
workforce. It contrasts sharply with the constructive social partnership approach in Wales, valuing our workforce, supporting public services and encouraging”,
enterprise.
“Overall, we believe the Bill is flawed and should not be pursued”.
He pointed out that:
“In Wales, we have a good record of resolving disputes. There was no junior doctors’ strike in Wales; there was in England. Firefighters took industrial action in England over pensions; they were not doing so in Wales”.
He added that, if the UK Government ignored the Assembly’s wishes, the Welsh Government would seek to overturn the impact in Wales, as they have successfully done on two occasions in the Supreme Court, as we heard from the noble Baroness and my noble friend.
Indeed, Wales’s First Minister, Carwyn Jones, told the Assembly that his Government will fight clauses in this Bill pertaining to Welsh public services if they become law. He said that,
“if it comes to the point where that Bill is passed and its provisions are applied to devolved public services, then we will seek to introduce a Bill in this Chamber to overturn the sections of the Bill that impact in devolved areas. It’s a matter for the UK Government as to whether they then wish to go to the Supreme Court in order to frustrate the will of this democratically elected Assembly”.
Therefore I ask your Lordships to respect the democratic wishes of the Welsh Assembly in backing that same policy by granting Wales’s legislature the right to determine how or if some of the key provisions in this Bill should be applied to public services in Wales. As the First Minister made explicit, if the Bill is enacted without the amendments we have tabled, the Welsh Government will introduce their own legislation to overturn the changes as they affect Wales as soon as possible. This is therefore less an argument about the substance of the relevant clauses in the Bill and more one about the nature of the devolution settlement the UK Parliament has agreed for Wales in the Government of Wales Acts 1998 and 2006, endorsed by subsequent Welsh legislation passed by Parliament, including the Wales Act 2014 proposed and enacted by the last Conservative-led Government.
As my noble friend has done, I draw your Lordships’ attention to the draft Wales Bill now before both Houses of Parliament. Its Clause 2 would place on a statutory footing the constitutional convention that Westminster would not normally legislate,
“with regard to devolved matters”,
without the consent of that devolved legislature. So on the one hand, in the draft Wales Bill, the Government are, commendably, making statutory a convention that has applied since 1999, and on the other hand they are completely undermining it in this Bill. In other words, the Government’s own draft Wales Bill reinforces the point that I am arguing; indeed, it makes that stronger by proposing a statutory requirement as opposed to the current convention that Westminster legislation affecting Wales in matters already devolved to Wales would require a legislative consent Motion from the Welsh Assembly—precisely what we are seeking your Lordships to endorse in respect of this Bill.
My case is not so much about the merits of the issues in the Bill as about the constitutional issues of foisting it upon a Welsh Assembly that has voted
exclusively on a legislative consent Motion insisting that it, not our Parliament, should determine the minutiae of public service delivery provisions within Wales. These amendments would apply solely to those public services that are devolved to Wales—education, health, housing and so on. Consequently, should the Government accept these amendments, which I strongly urge, in line with the request by the Welsh Government and adopted by the Assembly a few weeks ago, the Bill would still apply in the private sector in Wales.
We explained all this in person to the Minister, and I thank her for her courtesy and time in permitting us to do so. Regrettably, though, I gather that the lady is not for turning—unless she says otherwise this evening. If I am right, she appears to insist that the 40% threshold for strikes in the Bill was a matter of principle flowing from a manifesto commitment. I leave aside whether the fact that a party commanding just 37% of the vote and a miserly 24% of the registered electorate constitutes a mandate that your Lordships must respect, but I cannot believe that subsidiary details in the Bill concerning payroll deductions, check-off and opt-ins to the political levy are really of the same order as strikes. If the Minister is still uncompromising on the 40% issue, might she consider making all the other relevant provisions of the Bill covered by our amendments subject to consent by the Welsh legislature? I ask her seriously to reflect on that point.
Having served as Secretary of State for Wales for seven years, during which I was responsible for the Government of Wales Act 2006—the basis for the settlement that has operated since—I am extremely concerned at the damaging precedent that the Bill is establishing. The Minister for Public Services, Leighton Andrews, argued in the Welsh Assembly on 14 October on behalf of the Welsh Government:
“The Bill is driven by a flawed view of trade unions as a problem. We see trade unions as a partner. So, this Bill contrasts sharply with our constructive social partnership approach in Wales of valuing the workforce, supporting public services and encouraging enterprise … The benefits of a constructive approach to social partnership can be seen in our good record of resolving disputes … more quickly than in England”.
The Welsh Government’s position on the Bill was set out in a Written Statement to the Assembly on 9 September 2015, which insisted that the Bill relates to devolved responsibilities. In carrying out this House’s long-established duties of scrutiny and revision, your Lordships have consistently and rightly taken a forensic interest in constitutional matters. I submit that key proposals in the Bill encroach upon the responsibilities of the Welsh Government in respect of the administration and delivery of public services in Wales. Provisions in the Bill should therefore not be applied to Wales without the consent of the National Assembly for Wales, and that is the purpose of these amendments.
I want to be clear: adopting these amendments would not necessarily mean passing judgment on the Bill’s provisions as they apply to public services in Wales. If after the coming election, for example, a Conservative-led coalition were to emerge as the new Welsh Government—perhaps unlikely but certainly not impossible, given recent opinion polls—they could choose to accept all the Bill’s provisions as they apply to Welsh public services through a legislative consent Motion. Significant parts of the Bill relate specifically
to important public services, which are clearly devolved. The legislative consent memorandum laid in the Assembly by Leighton Andrews prior to the recent vote set out the Welsh Government’s view that the Assembly’s consent would be required for Clauses 3, 12, 13 and 14 of the Bill as they relate to devolved matters. The memorandum explained why the legislative consent Motion was tabled under the Assembly’s Standing Order 29.6 seeking Welsh Assembly Members’ consent to the inclusion of Clauses 3, 12, 13 and 14 in the Bill, and explained that the Welsh Government’s view is that consent should not be given. On 26 January, as I have mentioned, the Assembly overwhelmingly endorsed the Government’s position.
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This is therefore a dispute between two Governments and also now between two legislatures, unless your Lordships endorse the amendments and the UK Government accept our verdict and the dispute ends.
I drew your Lordships’ attention on Second Reading to the Supreme Court’s judgment in 2015 and will not repeat it. However, it is crucial and I submit that much of the same argument applies to the Bill in so far as it covers areas devolved to Wales. It is therefore not acceptable for the UK Government to impose it on Wales, without the agreement of its Assembly.
Policy on how best to support and protect the effective delivery of public services such as health, education, fire and housing is for the Welsh Government and the National Assembly for Wales, including the way public sector bodies in such devolved services work with trade unions to ensure the effective delivery of services to the public.
Since 1997, there has been increasing divergence in the approach to the delivery of public services between England and Wales. In Wales, for example, cancer treatment and social care is much better than in England, although waiting times for urgent operations such as hip replacements are worse. The terms of the devolution settlement preclude the UK Government from imposing English structures and approaches to different public service delivery models in Wales, especially when its Assembly has expressly opposed that in a cross-party Motion.
Surely it cannot be acceptable for the UK Government, who have no responsibility for and no direct knowledge of policy priorities and devolved service delivery models in Wales, to specify how much union facility time devolved public sector employers should allow; or whether ending the check-off system in the Welsh public sector will be disruptive, harming the viability of trade unions, which under devolution have been constructive partners in delivering public services of all kinds in Wales, where they are viewed as stabilising good industrial relations.
The Sewel convention provides that the UK Government may not legislate for devolved matters without the consent of the devolved legislature affected. I therefore ask your Lordships to accept in Committee and later on Report, if necessary in a vote, that the Government’s current intention to impose the Bill on Wales’s devolved public services is seriously mistaken and unacceptable. It is also damaging to harmonious
intergovernmental and interlegislature relationships in the United Kingdom, at a time when the Scottish Government’s separatist stance endangers our union.
The Minister can avoid such an unnecessary conflict and inevitable reference to the Supreme Court by showing some empathy for and understanding of the views of Wales in adopting the amendments, or at least coming back with her own on Report which would achieve the same objective.
Finally, I underline this point so that your Lordships are crystal clear about the impact of the amendments. They do not go to the case for or against the Government’s proposals in the Bill. They go to the right of Wales through its elected Assembly and accountable Government to run and organise the minute detail of the public services for which this Parliament has, under devolution, granted them exclusive responsibility.
On 18 January 2016, the Welsh Public Services Minister, Leighton Andrews, wrote to Nick Boles, Minister of State for Skills, noting that the Lords Committee stage:
“provides you with the ideal opportunity to reconsider your position, acknowledge the relevance of the Supreme Court’s judgment and act to exclude the devolved Welsh public services from the provisions of the Bill by accepting these amendments”.
Mr Andrews argued:
“It is clear to us that the Bill is not ‘concerned exclusively with non-devolved matters’ but intrudes on the delivery of the devolved public services for which Wales has the right to develop its own approach”.
Can the Minister also comment on the leaked letter from Nick Boles, the Minister of State, which has come into the public realm today? It admits that legal advice sought from First Treasury Counsel:
“has confirmed that we have … a very weak case in relation to Wales”.
If, as I pointed out earlier, the people of Wales elect a Conservative-led Assembly and Welsh Government, they would doubtless endorse all the provisions of the Bill. After all, Welsh Conservative Assembly Members voted to endorse it just a few weeks ago.
These amendments would enable choices to be made within and by Wales for matters long devolved by Westminster. I trust and hope that this important constitutional principle will be upheld by your Lordships in revising the Bill through these amendments.