My Lords, how to follow that? I shall speak to Amendment 90 in my name and in those of my noble friends Lord Murphy, Lord Kinnock and Lady Morgan. I begin by expressing my disappointment that the Minister has not been able to persuade the rest of the Government to think again on this issue and that they continue to press ahead with their transparent move, not simply to go beyond overriding decisions that the Welsh Government have taken since 2011, but deliberately to claw back powers from the National Assembly. From everything the Minister has told your Lordships, and much of what the Bill contains, this is supposed to be a pro-devolution, not an anti-devolution, Bill. But in the way in which devolved public services are configured, and especially their staff relations organised, it is repatriating powers that are already the preserve of the Assembly. Surely, that cannot be right.
When we considered this amendment in Committee, the Minister acknowledged our shared belief that employment law is, and should remain, a reserved matter. He said that,
“the underlying legislative framework concerning rights and responsibilities in the workplace must be reserved”.
I agree with that. He went on to say that the,
“system we have allows workers to be clear on their rights, whether they are in the public sector or the private sector”.
Again, I agree. However, he then said that this,
“is a fundamental principle and I cannot accept that the law underpinning the terms and conditions of public sector workers should be different from the law that underpins the rights of other workers”.—[Official Report, 15/11/16; col. 1384.]
On that point, we diverge.
My noble friend Lady Randerson spoke previously about the fact that the Welsh Assembly has long had considerable powers—for example, over doctors’ pay, terms and conditions. The principle has been conceded and accepted by the Government, ironically, as it has been in this very Bill in another respect. A government amendment to give the Assembly legislative competence over teachers’ pay and conditions has been accepted as part of this Bill. For the Minister to somehow then argue that it is impossible to disentangle fundamental employment rights from the terms and conditions of employees in the devolved public services seems somewhat irrational and contradictory, to say the very least. For the sake of clarity, I hope the House will permit me a short time to highlight the four different elements of this and to unpick a number of aspects that have been conflated during previous debates.
5.30 pm
The four interrelated and interconnected but unique things that we are discussing are: first, employment rights and duties; secondly, industrial relations; thirdly, employment terms and conditions; and fourthly, collective bargaining. As we have already established, I do not believe that employment rights and duties—industrial action, unfair dismissal, equal pay, paternity and maternity rights, for instance—should be devolved, but as the earlier illustrations about doctors and teachers show, employment terms and conditions are a separate issue. I am talking about employment terms and conditions, not rights and duties.
The amendment before us today does not undermine the basis for England and Wales’s collective bargaining arrangements, something which is outside the scope of this Bill. Nor does it erode employment rights by creating a situation where differential rights will be available to workers in different parts of the United Kingdom. This, by the way, is of considerable importance to all of us in the context of the Brexit negotiations. None of these scenarios would be welcome to me, to the Welsh Government or to the Wales TUC. Instead, the amendment permits the National Assembly for Wales and the Welsh Government to continue managing and adapting the social partnership arrangements they have painstakingly established over many years to strive to deliver the world-class public services in Wales that the public deserve and expect.
I remind your Lordships and the Government that many of the public sector disputes afflicting England have not happened in Wales. As my noble friend Lady Morgan said, the doctors’ strikes come immediately to mind; they did not happen in Wales because the Welsh Government, with the backing of the Assembly on a cross-party basis, has had the powers to organise its employment terms and conditions differently—exactly what this amendment addresses. I do not have time today to rehearse many of the arguments we considered at Second Reading and in Committee. Needless to say, I have not been convinced by any of the arguments put forward by the Minister in response to those debates. It is clear to me that the UK Government are intent on clawing back the competence from the Assembly in relation to the delivery of public services and believe they have found a way to ensure that the flexibility offered by the unanimous Supreme Court ruling in 2014 can be removed by this Bill. That is unacceptable.
We have all appreciated the way that the Minister has generally responded in a conciliatory manner to arguments on the Bill from Opposition and Cross-Bench Members. We know he has Wales’s interests at heart, as we all do. I plead with him to think again. If there is some technical drafting issue, then by all means let the Government now offer to bring forward a redraft of this amendment, possibly at Third Reading. Otherwise, I will have no option but to divide the House over a very important matter that is very likely, without a government reconsideration which I hope he will, even at this late hour, address, to provoke a dispute with the Welsh Government and end up in the Supreme Court again. What a sad epitaph that would be for an otherwise well-intentioned Bill and an otherwise well-intentioned Minister.