This article was written by Cerys Williams, Counsel
In the Post-referendum political maelstrom, old certainties seem less reliable and everything is up for negotiation. There has been much talk about whether Brexit will trigger Scottish independence, in order for Scotland to remain in the EU or a reunification of Ireland and Northern Ireland. Likewise, despite the fact that Wales voted by a narrow margin to leave, there have been calls that it too should leave the UK, in order to remain in Europe. Other models, such as a federal UK have also been floated as options to resolve the challenges of regional differences in appetite for remaining in the EU. Any of these routes are likely to involve increasing divergence in employment law between each of the component countries of the United Kingdom (particularly if some find a way to remain in the EU). We previously wrote about the potential implications of an independent Scotland here
However, in the middle of this general clamouring, there was an odd legal development that seems to have been largely overlooked. On 28 June, shortly after the Brexit vote, the Welsh First Minister, Carwyn Jones, announced that the Welsh Assembly would put forward legislation to repeal sections of the Trade Union Act 2016 recently passed by the Westminster government. This will put the Welsh Assembly on a direct collision course with Westminster, given the UK government’s position that employment rights, duties and industrial relations, are clearly reserved matters for the UK Parliament under the Welsh devolution settlement.
This scrap has been bubbling under for a little while now. Where Westminster legislation impinges on legal areas devolved to either of the regional assemblies, their legislative consent will be sought. Since neither the Scottish or Welsh assemblies have devolved authority for employment law matters, such consent was not sought for the Trade Union Act 2016. However, the Welsh Assembly objected to the bill on the basis that it intruded on the delivery of devolved public service, on which Wales has the right to develop its own response. In January 2016, Carwyn Jones announced that if the bill was enacted as planned then he would seek to introduce a Welsh Assembly bill to overturn the sections that impacted on devolved areas, stating that "[i]t's a matter for the UK government if they want to go to the Supreme Court in order to frustrate the will of this democratically elected Assembly."
The Scottish Assembly likewise had requested that Scotland should be excluded from the bill, on the basis that it would undermine the effective engagement of trade unions, particularly in the public sector, in a manner contrary to the Scottish government's more collaborative approach to unions. Ultimately, these requests were not accepted and the bill passed into law on 4 May 2016, and is fully applicable in both Wales and Scotland. Hence the latest move by the Welsh Assembly to take action of its own initiative.
This dispute does not have its origins in the Brexit referendum, but the latter gives a wholly different complexion and significance to the row, which now seems to have potentially unpredictable consequences. Will this issue become a test case or a political lever for increased devolution, including in respect of employment law? In these times, anything seems possible.