My Lords, I speak against Amendment 90 in the names of the noble Lord, Lord Hain, the noble Baroness, Lady Morgan, and other noble Lords. The purpose of this amendment is to devolve in part legislative competence for employment and industrial relations to the Welsh Assembly. The noble Lord and others argue that this is consistent with the Supreme Court judgment in respect of the Agricultural Sector (Wales) Bill. In this instance, the court held that the case related to multiple subjects, and thus fell within the competence of the Welsh Assembly. It should be pointed out that the Supreme Court ruling concerned a situation where the devolved subject of agriculture was specifically in play. Indeed, in another Supreme Court case involving the Welsh Government’s competence in relation to recovery of medical costs, the court followed the same approach as in the agricultural sector but came to a completely different conclusion, deciding that the area in play was not devolved.
It would be unworkable to have different employment laws applying in different jurisdictions in Great Britain. As we have previously pointed out, the Smith commission in Scotland recently considered this issue and concluded that employment and industrial relations law should remain reserved. I appreciate that the noble Lord, Lord Hain, has argued that the amendment is not intended to change the reservation of employment law, and we all agree that employment and industrial relations law must remain reserved matters. However, in principle, “terms and conditions” derive from all aspects of employment law—for example, the national minimum wage, parental leave, and dismissal laws—and I believe that there is sufficient flexibility under the statutory framework of employment law for employers to configure their own terms and conditions.
The purpose of bringing in a reserved powers model for Wales to replace the conferred powers model is to bring greater clarity to the respective responsibilities of the UK Parliament and the Welsh Assembly. It is therefore somewhat dismaying that the noble Baroness, Lady Morgan, has told the House that the Welsh Assembly intends to pursue a Bill under the conferred powers model that will only diminish such clarity and cause legal wrangling. My fear is that Amendment 90 will reduce the very clarity that this Bill seeks to achieve. In effect, it could also create a two-tier system, with different employment and industrial relations legislation applying to public, as opposed to private, services in Wales, and, indeed, the whole public and private sectors in England and Scotland. I therefore support the Government in opposing the amendment. There is already a lot of flexibility for employers, but employment and industrial relations law must remain reserved matters to ensure clarity in the free flow of labour across Great Britain.