Now we know that they know

By a happy coincidence, in view of my previous post, someone has leaked a copy of a letter from Tory Minister of State for Skills, Nick Boles, to Socialist Worker. The online version is here.

I don't think that Socialist Worker realized just how explosive the contents of the leaked letter are. They are obviously, and from their point of view rightly, concerned to prevent as much of the proposed new Trade Union Bill from getting through the UK parliament as they can ... but there is much more to it than that. The BBC version of the story gets closer to the point:

It [the letter] indicated that legal advice suggested that while the measures would apply to Scotland as a matter reserved to Westminster, there was a "very weak case" where Wales was concerned.

The letter added that some concessions could be made to "take some of the heat out of the DAs' [devolved administrations] opposition to the Bill".

BBC, 8 February 2016

To understand what is actually happening, it's best to look at that part of the leaked letter in full:

     

The obvious question is why the Westminster Government think they could probably get the Trade Union Bill through in Scotland, but not in Wales. The answer is first that Scotland has a reserved powers model of devolution, while Wales has a conferred powers model. But second, and more critically, because of the Supreme Court ruling in July 2014 on the Agricultural Wages (Wales) Bill, as reported here.

I set out the points at issue in that case in some detail in this post, before the Supreme Court delivered its verdict. I won't repeat everything from that post, but essentially the Supreme Court ruling means that because an area (in this particular case agriculture) is devolved to Wales, the Welsh Assembly is also able to legislate on matters that are incidental to and consequential on that devolved area, including employment. This is why the current devolution settlement for Wales gives our National Assembly more powers to legislate than Scotland ... at least in some areas.

The established convention (Sewell Convention) is that Westminster cannot legislate on matters that are already devolved without consent in the form of a Legislative Consent Motion. In respect of the UK Government's desire to place new restrictions on strikes in public services, it would apply to the health, education, fire and rescue and transport sectors in Wales because these are devolved to Wales. Or, conversely, if the Westminster Government ignores this and were to go ahead anyway, the Supreme Court ruling means that the Welsh Assembly could then pass its own legislation to modify or nullify that Westminster Act in so far as it applies to Wales.

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What will be particularly embarrassing to the Tories is that they have tried to make out in public that the Welsh Assembly does not have this power. For example, William Graham said:

"I think that's a spurious argument because everybody knows that employment legislation is not devolved – end of story."

BBC, 23 January 2016

And of course this also explains why Stephen Crabb is so anxious to replace the current conferred powers model of devolution for Wales with a new reserved powers model that is much more restrictive than the reserved powers models that apply to Scotland and the Six Counties, and tried to bully those who can see through this attempt to claw back devolution in Wales by calling their views "ill-informed or just plain wrong".

Stephen Crabb and William Graham were bluffing. The leaked letter from Nick Boles shows that the Tories know full well that the Welsh Government, by virtue of the precedent set with the Agricultural Wages Bill, has more extensive powers to legislate than are set out in Schedule 7 of the Government of Wales Act.

Now that we know that they know this, I hope it will mean that the Tories go back to the drawing board and start over again on both the Trade Union Bill (as it applies to Wales) and the Wales Bill. If they don't then we must play hard ball and refuse to give consent to what they propose. We mustn't let ourselves be fobbed off by a few concessions.