Trade Union Bill

– in the Scottish Parliament on 26th January 2016.

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Photo of John Scott John Scott Conservative

The next item of business is a debate on motion S4M-15414, in the name of Roseanna Cunningham, on the Trade Union Bill.

I call on Roseanna Cunningham to speak to and move the motion. Cabinet secretary, you have 14 minutes today and we are very tight for time, so less would be more.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

I thank the Devolution (Further Powers) Committee and its convener, Bruce Crawford, for its swift consideration of the legislation and the memorandum that was sent to the committee. The majority of members recognise the urgency of the matter, and I appreciate the flexibility that the committee showed in considering it so quickly.

Concerns about this poorly thought-out piece of legislation are being expressed across the board. Last week, the House of Lords asked the United Kingdom Government to think again about the impact that the bill will have on political funding. The consultation responses, which were also published last week, show an overwhelming level of opposition to the UK Government’s plans, but still it ploughs on.

In November last year, the Scottish Parliament made plain its opposition to the bill with the motion opposing the legislation being carried by 104 votes to 14. In that debate I explained the Scottish Government’s view that trade unions are a force for good in modern society; that unionised workplaces have more engaged staff, a higher level of staff training and a progressive approach to staff wellbeing; that unions help employers to create the safe, humane and productive working conditions that head off industrial disputes and build better businesses; that any legislation that undermines the value and contribution that trade unions can make is a “thoroughly bad idea”; and that the bill is nothing more than an ideological attack on unions, with no evidence to underpin it.

That view was emphasised by the First Minister in the Jimmy Reid lecture at the end of last year, in which she said that the Trade Union Bill

“is based on a world view that I simply don’t recognise. It sees the relationship between employers and trade unions as one of conflict rather than co-operation. It doesn’t reflect public opinion here nor does it reflect the reality of industrial relations here. It offers illiberal solutions to a problem which simply doesn’t exist in Scotland.”

In November, I made clear my intention to continue to pursue the UK Government to exclude Scotland from the bill entirely. Further, if it remained unwilling to seek the consent of the Scottish Parliament, I committed to exploring every basis for a legislative consent memorandum and motion and, in doing so, I fully recognised that it was “uncharted territory”.

Although I am disappointed, I respect the Presiding Officer’s ruling on my legislative consent memorandum, even if I suspect that it would not have been given with any great satisfaction. Similarly, I understand the frustrations that are being felt on the Labour benches regarding the process.

The experience suggests that the Parliament might wish to look again at its standing orders to consider whether Parliament should have a clearer mechanism that would enable it to express its opposition to what is deemed to be reserved legislation. I recognise the spirit of the Labour amendment and I will support that, but it is important to find the right mechanism to achieve it and it is right that we ask the Standards, Procedures and Public Appointments Committee to consider the matter further and come up with options for the best way forward.

By choosing to lay a general policy memorandum on 11 December, I ensured that the Scottish Parliament has been able to express its opposition in the clearest possible terms to Westminster. The Standards, Procedures and Public Appointments Committee might wish to consider how effective that approach has been. However, although expressing our opposition might underline that this fundamentally flawed piece of legislation is unfit for purpose, it will not stop the bill in Scotland. It is clear that the one single action that will do that is giving the Scottish Parliament powers over workplace relations.

While the Trade Union Bill and the Scotland Bill are still going through at Westminster, I call on all those who oppose the legislation to do everything that they can do to push for the bills to be amended to remove Scotland from the extent of such regressive legislation. I assure each and every worker in Scotland that we will leave no stone unturned and no route unexplored as we seek to block this exceptionally damaging legislation being applied in Scotland, and that the Scottish Government is regularly making the case to the UK Government at every level, including through discussions between the First Minister and the Prime Minister; such is the priority we are affording this matter.

Today’s debate, and the strong support from the Parliament, will further strengthen those representations. It is crucial that all of those opposed to this bill, whether they be members of the Scottish Parliament, members of Parliament, union officials, public sector leaders or anyone else, make the case to the UK Government that this legislation is not needed or wanted in Scotland. These issues should be the responsibility of the Scottish Parliament.

The Devolution (Further Powers) Committee’s report recognises that the proposed legislation is a litany of errors, from its questionable purpose and competence to its lack of proper consultation, all intent on destroying the effectiveness of trade unions and Scotland’s good industrial relations.

The committee took evidence on the general impact on industrial relations and the culture of partnership working in Scotland. It considered evidence on the specific proposals within the Trade Union Bill such as ballot thresholds, a statutory cap on facility time and check-off provisions, as well as European convention on human rights matters and other international obligations.

In drawing its conclusions, the committee recognised the complete lack of evidence to support a bill of this nature being imposed on Scotland. That entirely echoes the UK Government’s own Regulatory Policy Committee’s findings that the impact assessment by the Department for Business, Innovation and Skills on the bill was “not fit for purpose” and that there is not sufficient evidence to support the UK Government’s quoted assumptions to justify the bill.

Indeed, the Devolution (Further Powers) Committee heard directly from the Convention of Scottish Local Authorities human resources spokesperson, Councillor Billy Hendry, describing the Trade Union Bill as an

“unnecessary and unjustified imposition, which could ultimately lead to more industrial unrest across Scotland.”—[Official Report, Devolution (Further Powers) Committee, 7 January 2016; c 5.]

That is a view that I have no hesitation in sharing.

I see the smiles of members on the Tory benches. It seems remarkable to me that, faced with a good industrial relations record, it is the intent of the Conservative Party to do as much as it can to damage that record. That seems to me to be utterly opposite to what it claims is the point of the bill, so I agree with the further powers committee that the bill is unjustifiable, both across the UK and in its application in Scotland.

Industrial relations here are good. The number of working days lost due to strikes has declined by 84 per cent since 2007—that is the highest reduction anywhere in the whole of the UK. Last year, fewer days were lost in Scotland, relative to our working population, than in any other part of the UK.

Frankly, the UK Government would have done better to learn from partnership approaches to industrial relations—not just in Scotland but across the whole of Europe—rather than choosing the flat-out confrontation that seems to be its preferred, wholly unjustified route. The UK Government remains hell-bent on demonising trade unions and ignoring the benefits that they bring to employers and our wider economic success.

In its report the committee was deeply disappointed at

“the lack of consultation ... with major public sector employers in Scotland and with other organisations more widely.”

As the report points out, more than half a million people are employed in the public sector in Scotland—that is 21 per cent of the workforce. Ninety per cent of the total are employed in the devolved public sector. As such, the devolved public sector’s views, as major employers with responsibility for industrial relations, should have been taken into account by the UK Government, but they were not.

It is worth looking at some of the measures and how they will impact on that major part of the Scottish workforce. The UK Government wants the right to restrict facility time in the public sector. Facility time means that employees can spend time carrying out union duties: helping employees at disciplinary hearings, offering training, advising on health and safety matters, and meeting and supporting employers. It is a vital part of our partnership working; it is not a drain on taxpayers or an abuse that needs to be controlled. It is most often how we avoid an escalation to strike action, and curtailing it is far more likely to cost the public purse than it is to save money.

The UK Government also advocates a ban on public sector employers using check-off facilities—the payroll mechanism that enables union membership subscriptions to be deducted at source. The Scottish Government, as an employer, has been operating a check-off facility for years. The costs are so minimal that we have never charged unions for it. Attempting to change that is an extraordinary attempt to control how we as a Government act as an employer. It demonstrates that, fundamentally, the UK Government wants to discourage union membership and in turn to curtail the ability of the Scottish ministers to effectively administer devolved public services as we see fit.

It is clear from the UK Government’s actions that it does not care about the impact of the bill on Scotland. In fact, the UK Government seems to have no interest in the impact on any of the devolved nations, and it is showing little respect for the parliamentary processes in England, as most of the bill will be delivered by regulations, which we have yet to see. That is an increasing trend from a UK Government that is trying to push through unpopular policies that do not stand up to scrutiny.

The Devolution (Further Powers) Committee highlighted in its report the need for good working relationships between Governments, with parties seen as equal partners, and for adequate consultation on matters that have an impact on each other’s jurisdiction and competences. I agree entirely but, as I discussed last week with my counterpart in the Welsh Government, Leighton Andrews, the reality is that that is most certainly not the case. A Government debate on the bill is taking place today in the Welsh Assembly. The Welsh Government is taking a different approach to its opposition in a way that reflects the differences in the Welsh devolution settlement. Both Governments are exploring all the options that they can through the processes that are available.

I have called on UK ministers to make clear their intentions regarding how the legislation and the supporting regulations will impact on the devolved nations and in particular the devolved public services, but there has been no response from the lead UK minister. As I said, the First Minister is now making similar representations to the Prime Minister.

I echo the committee’s recommendations that the UK Government should stop the bill in its entirety or reconsider its position on legislative consent, in recognition of the widespread opposition across Scotland. Unfortunately, however, I completely understand and share the committee’s view that such a call will in all likelihood fall on increasingly deaf ears. We must therefore continue, with the Scottish Trades Union Congress, local government, the national health service and others in the Scottish public and private sectors, to oppose and challenge the bill and its effects in Scotland. In the truest spirit of the trade union movement, we must work together if we are to succeed.

The Scottish Government sees trade unions not as opponents but as partners. We want to work with unions and businesses to create a more productive, prosperous and equal society. To do that, we have established a relationship not of conflict but of co-operation. The UK Government’s proposals are deeply damaging to that approach. They represent an attack on the union movement and an assault on the rights and practices that workers have fought to protect over generations.

I fully endorse the Devolution (Further Powers) Committee’s rejection of the UK Government Trade Union Bill, and I commend to members the motion of support.

I move,

That the Parliament unreservedly supports the report of the Devolution (Further Powers) Committee that reaffirms the Parliament’s opposition to the UK Government’s Trade Union Bill; notes that the Bill, if enacted, has the potential to significantly damage Scotland’s good industrial relations record; welcomes the committee’s recommendations that the Scottish Government continue to use all avenues to remove Scotland from the territorial extent of the Bill or, as a minimum, seek that the regulation-making powers relating to facility time and check off be conferred on the Scottish Ministers as they directly relate to public services in Scotland, and notes that the Scottish Government is working with the STUC, COSLA and others who oppose the Bill.

The Deputy Presiding Officer:

I call Neil Findlay to speak to and move amendment S4M-15414.1.

Photo of Neil Findlay Neil Findlay Labour

I declare an interest, in that I am a member of Unite the union, the Educational Institute of Scotland and the West Lothian Trade Union Council. I also chair the Public and Commercial Services Union parliamentary group, and I am a member of the RMT parliamentary group. Throughout my time in the Parliament, I have consistently worked on trade union issues, because that is where my politics come from.

A few weeks ago, when we debated the substance of the Trade Union Bill, there was a great deal of common cause across the Parliament, with Labour, the Scottish National Party, the Greens, the Liberals and the independents all uniting to reject the bill. Only the nasty party, the party that seeks to divide and victimise and marginalise working people—the party that has a pathological hatred of trade unions and organised labour—supported this dreadful bill. No one was surprised by its actions. It is the party of regressive reactionary politics, personified today by Attila and Genghis, who have been sent out on the front bench to face up to the debate.

The Deputy Presiding Officer:

Stick to parliamentary language, please, Mr Findlay.

Photo of Neil Findlay Neil Findlay Labour

It was clear from that previous debate that an overwhelming majority of members in the Parliament are opposed to the bill. The bill was referred to the Devolution (Further Powers) Committee, which raised serious concerns about it and its impact on Scotland. I believe that the vast majority of members of the Parliament accept those concerns and will, like Labour, support the Government motion at decision time today.

In our previous debate, the cabinet secretary set out the reasons why she believed that the provisions of the bill and its impact on Scotland, Scottish workers, Scottish businesses and Scottish services meant that a legislative consent motion was necessary. She was right to refer to the way in which regulations are to be made and the impact on devolved services and public bodies. To back up her case, she referenced the Scottish Agricultural Wages Board and, critically, she mentioned the potential breach of human rights legislation.

In that debate, Labour members pointed to the impact on the NHS, local government, the police, the fire service, transport, the civil service and all other devolved responsibilities. The cabinet secretary said:

“Ultimately, it will be for the parliamentary authorities to decide on the need for a consent motion, but the political will of the Government is clear. In my view, it is entirely right that the Parliament has the opportunity to vote on proposed legislation that I believe is aggressive, regressive and an unwarranted ideological attack on workers’ rights.”

I agreed with that analysis.

The cabinet secretary also said in that speech:

“I have asked our legal advisers to explore several possible bases for a legislative consent memorandum and motion.”—[Official Report, 10 November 2015; c 23, 22.]

However, the Presiding Officer rejected that motion, and that ruling prevents the Parliament from acting. That was wrong in process and in the decision made, but we are where we are and we have to deal with the hand we have been dealt. Therefore, rather than say “If only this could happen or that had happened” or “If only we had this power or that power,” we should use the powers and procedures that are available to us to ensure that the Parliament’s will is respected and that we have such a debate and vote.

In the previous debate, the cabinet secretary said that she had taken legal advice. I presume that the Government lawyers approved the LCM and could justify it. I contend that that was on the basis that facility time, check-off, the impact on the administration of services, the contracts of employees and competition law all impinge on the Scottish ministers’ executive competence and duties. There is little doubt in my mind that they do that but, despite all that, the LCM approach was rejected.

In that debate, the cabinet secretary also said that it was the first time that the Scottish Government and UK Government had disagreed on the need for an LCM. Given what is happening on the devolution of powers, it may be the first time but I question whether will be the last. We have to do something about that. Should the situation arise again, the Parliament must have the power to deal with it and put the power in the hands of its democratically elected members.

Given the new powers that we are going to get, such disputes are likely to arise more frequently, but we should not leave the decision in the office of the Presiding Officer, whoever he or she is, and leave them exposed, as they would have to put their name to such a ruling. Therefore, we propose that, where there is disagreement between the two Parliaments on whether a legislative consent motion is required, or where any member of this Parliament believes that one is required, members should have the right to lodge such a motion and have the Parliament vote on it. That would put power into the hands of MSPs and increase the democracy and accountability of the Parliament.

Photo of Kevin Stewart Kevin Stewart Scottish National Party

Would it not be easier if we had all the powers in this Parliament so that we did not have to rely on LCMs?

Photo of Neil Findlay Neil Findlay Labour

Mr Stewart makes my case for me: he says, “If only this, if only that.” The reality is that we have the opportunity to take practical steps that will prevent the worst aspects of the bill from impacting on workers in Scotland.

Photo of Neil Findlay Neil Findlay Labour

No. The cabinet secretary is right to work with us on that; I am just a bit disappointed that Mr Stewart appears not to want to go down that route.

My colleague Mary Fee has submitted a proposal, like the one that I outlined, to the Standards, Procedures and Public Appointments Committee. If there is political will, that proposal could move through our parliamentary system very quickly and allow us to have such a debate and reject the bill’s impact on Scotland before the Scottish election.

I am absolutely ready to sit down with the cabinet secretary, as are my colleagues—we can do it tonight, if she wants—to discuss how we move forward as quickly as possible. I extend that invitation to any member of this Parliament who wants to speak to us, even members of the Conservative Party, if—God forbid—they should accept the amendment. We want to take a practical step.

Today, the Welsh Assembly is debating an LCM on the Trade Union Bill, and the Labour Government there has said that it will take action to reverse the effect of the legislation. That shows that the issue is all about political will.

If there is no movement with regard to what we propose, the Labour Party, working with the Scottish trade unions, will pursue every option, including, if necessary, a legal challenge. However, it would be quicker, cheaper and better if we did not need to go down that route.

I welcome the Government’s support for our amendment. I hope that all members of the Parliament will support it at decision time this evening.

I move amendment S4M.15414.1, to insert at end:

“; further understands that the National Assembly for Wales will debate a legislative consent motion on this Bill and its impact on Wales and Welsh devolved public services on 26 January 2016, and calls on all parties represented in the Scottish Parliament to support the proposal from Mary Fee MSP to amend the Standing Orders to allow a similar process to take place here”.

Photo of Alex Johnstone Alex Johnstone Conservative

The Trade Union Bill gives effect to manifesto commitments that the Conservative Party made in advance of being elected as the majority Government of the United Kingdom last May.

Trade unions are an important part of our society. The trade union movement has a proud history of campaigning for workers’ rights and for improvements in health and safety in the workplace and of representing members when they are in need of support.

However, people have concerns about the balance between the right to strike and the misery that such action can cause to the public, particularly in vital public services such as the NHS, the fire service, transport and schools. No one wants to undermine the right of unions to call a strike as a last resort, but that should be based on the views of the union’s membership. It is not right that strikes can be called with the support of as few as one in 10 members, on the basis of very low turnouts.

Photo of Alex Johnstone Alex Johnstone Conservative

No—I will not be taking interventions.

It is not unreasonable to require an opt-in process for union political donations. Often, members are unaware that they can opt out of the political part of their union subscriptions. It is only right that people can make a clear decision about who they donate money to and what that money is to be used for.

On the timing and duration of industrial action, the bill will extend the notice that must be given to employers from seven days to 14. At present, the action must begin within four weeks of the ballot, although that can be extended to eight weeks by agreement with the employer, or 12 weeks by a court. The bill will impose a four-month limit on industrial action before a new ballot has to be held. That means that the action must start within that period, but it will be able to start at any time within those four months.

The bill will put into law some of the provisions of the picketing code of practice. The current version of the code is from 1992, although it originated several decades earlier. It is well followed by responsible trade unions, but one of the catalysts for the legislative change is the inappropriate intimidation tactics that have been used during disputes such as the one at Grangemouth last year or the year before that.

The bill does not propose to stop so-called facility time—time that an organisation’s staff spend on trade union duties and activities during working hours. However, it will ensure greater transparency by extending the requirements on the public sector to publish information on the time and money that is spent on facility time.

Under the so-called check-off process, a number of public sector trade union members have their union subscriptions deducted from their salary by their employer and transferred on their behalf. That also happens occasionally in the private sector. The practice was introduced when many working people did not have a bank account. In the 21st century, it is just as easy to set up a direct debit.

Photo of Neil Findlay Neil Findlay Labour

Will the member take an intervention on that point?

Photo of Alex Johnstone Alex Johnstone Conservative

No, thank you.

Taken together, the proposed measures are not an unreasonable addition to the provisions that previous Governments put in place to facilitate good industrial relations.

I turn to the issue of a legislative consent motion. The Scottish Government has set out in detail its position on the bill. It lodged a legislative consent memorandum in relation to the bill and the Presiding Officer responded with a letter to Roseanna Cunningham in which she stated:

“Having given the matter careful consideration and applying the tests set out in the rules, my view is that the Parliament’s legislative consent is not required and it is not competent to lodge a legislative consent memorandum.”

The UK Government has set out in detail why it believes that it is not necessary to obtain the Parliament’s legislative consent. It believes that that is the case because the subject matter of the bill is not devolved to the National Assembly for Wales or the Scottish Parliament. Unemployment law, industrial relations and trade union legislation are expressly reserved under the Scotland Act 1998.

The constitutional law expert Alan Trench has commented:

“There can’t be any argument that the UK Parliament has the power to legislate regarding the operation of trade unions, balloting requirements, the operation of political funds and the like which make up the bulk of the bill, which operate equally in Scotland as in other parts of the UK.”

It is therefore reasonable for the bill to proceed.

The Devolution (Further Powers) Committee reported on the bill on 18 January. The minister has expressed her views on that report. I should make it clear that I dissented from its conclusions and its recommendations. I believe that the bill is reasonable and that the process is legal, so we should continue with the bill and support it.

The Deputy Presiding Officer:

We move to the open debate. I call Bruce Crawford to speak on behalf of the Devolution (Further Powers) Committee.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

Thank you for giving me the opportunity to speak in my capacity as the convener of the Devolution (Further Powers) Committee. As members are aware, the Scottish Government referred its policy memorandum on the UK Government’s Trade Union Bill to my committee for consideration. I start by emphasising that the committee’s report was agreed by an overwhelming majority of its members, with Alex Johnstone—as he just said—being the only dissenting member. It is fair to say that that was not a surprise to him, and it was certainly not a surprise to the rest of the committee. Nevertheless, I thank him for the way in which he made his views clear and enabled the rest of us to agree the report.

The context for the introduction of the UK Government’s Trade Union Bill is that, since 2007, the number of industrial disputes in Scotland has decreased by 84 per cent. The number of days that are lost to industrial disputes in Scotland is the lowest of the four nations of the UK. Therefore, the bill is not so much a sledgehammer to crack a nut; put simply, it seeks to solve a problem that does not exist.

The evidence that the committee took emphasised the positive working relationship between unions and employers that has existed over decades in some of Scotland’s largest public sector organisations, such as local government and the national health service. I was struck by the comments on behalf of the Convention of Scottish Local Authorities that were made by Billy Hendry, who is a Conservative councillor on East Dunbartonshire Council. He said:

COSLA leaders are extremely concerned that the changes that are proposed in the bill are being brought in without any evidence to back up the assertion that they would modernise industrial relations between councils and trade unions.”—[Official Report, Devolution (Further Powers) Committee, 7 January 2016; c 4.]

Councillor Hendry’s remarks demonstrate well the broad-based opposition that there is across all sectors of Scottish society to the bill, although not everyone opposes it—I note that the TaxPayers Alliance and the Confederation of British Industry support it.

We heard that there has been a lack of consultation with Scottish stakeholders and the Scottish Government on this UK bill. In his evidence to the committee, Dave Moxham of the STUC said:

“There was a failure to consult, a very rushed process, a committee stage that was, in our view, very poor and the introduction of a couple of key additional aspects of the bill in that process. We did not know about the introduction of the check-off arrangements until well after the first reading. That was not subject to any consultation or any assessment of costs.”—[Official Report, Devolution (Further Powers) Committee, 7 January 2016; c 13.]

The bill seeks to provide UK ministers with the power to limit the amount of time that union representatives in the public sector can spend on union duties or activities. The Scottish Government estimated that in 2014-15 the total cost of facility time across the entire Scottish public sector was £5.8 million. That is around 0.002 per cent of the Scottish Government departmental expenditure limit budget.

Photo of Neil Findlay Neil Findlay Labour

Will Bruce Crawford respond to the point that I made about what happens in principle when the two Parliaments disagree and how we can bring forward a procedure to change that?

Photo of Bruce Crawford Bruce Crawford Scottish National Party

I am speaking on behalf of the Devolution (Further Powers) Committee as its convener. That point was not subject to any of the processes that we went through to reach our findings, so I am not in a position to comment on it.

More important, the evidence that we took stressed that facility time should be viewed not as a cost but rather as an investment in effective workplace management and as something that is essential to effective public sector delivery and reform. Shirley Rogers, who is the workforce director of NHS Scotland, said:

“Some years ago, we in the NHS took the view that we wanted to invest in co-production; we wanted to front-load our investment in facility time to allow us to have a better product rather than to spend our time in conflict resolution and dispute management.”—[Official Report, Devolution (Further Powers) Committee, 7 January 2016; c 6.]

The witnesses before the committee raised a number of concerns about the check-off provisions, which ranged from concern about the bill’s placing of regulation-making powers in the hands of UK ministers to questions about how check-off provisions would apply to arm’s length bodies that are set up by local authorities.

The overwhelming majority of the committee agreed with the view of Conservative councillor Billy Hendry that the bill is an

“unnecessary and unjustified imposition, which could ultimately lead to more industrial unrest across Scotland.”—[Official Report, Devolution (Further Powers) Committee, 7 January 2016; c 5.]

Having reached that conclusion, the committee made a series of recommendations. First, the UK Government should refrain from proceeding with this unnecessary bill, which lacks any real evidence for its need in any part of the UK. Secondly, if the UK Government rejects that recommendation, the bill should be amended in the remaining stages in the House of Lords so that it does not apply to Scotland. Thirdly, if the UK Government is unwilling to make such amendments, the Scottish Government should seek to encourage such amendments by any means available to it.

Lastly, if all those recommendations are rejected, the committee recommends that, as a minimum, the regulation-making powers in relation to facility time and check-off should be conferred on the Scottish ministers. That might sound a bit technical, but without it the bill would, for instance, provide Jeremy Hunt with control over significant aspects of industrial relations in the NHS in Scotland. Given that 89.5 per cent of public sector workers in Scotland are accounted for by employment in the devolved public sector, the bill—if it extends to Scotland as passed—will fly directly in the face of the spirit of devolution.

I say to Parliament that such a situation is not acceptable and should be rejected. I commend the report to Parliament.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

On a point of order, Presiding Officer. I wish to raise a point of order that concerns chapter 12 of standing orders, in so far as it relates to the operation of committees. In doing so, in no sense do I make any comment on the selection of amendment S4M-15414.1, and nor do I speak on behalf of the Standards, Procedures and Public Appointments Committee, which has not yet considered the substance of Mary Fee’s proposed amendment to standing orders.

I seek from you, Presiding Officer, an assurance that in the event of the Parliament’s passing amendment S4M-15414.1, which I suspect it shall, the committee will retain the freedom to consider the purpose of Mary Fee’s proposed amendment while not being bound to take the formulation of that amendment. The initial advice appears to be that the formulation of the amendment would have no effect in changing the standing order powers to the Parliament. Therefore, I believe that the committee would wish to be able to consider as wide as possible a range of standing order amendments or other amendments that it might bring forward to give effect to the purpose of Mary Fee’s amendment.

It would be helpful to Parliament and the committee to have your assurance, Presiding Officer, that amendment S4M-15414.1, which calls on political parties to take action, does not bind the committee in its detailed consideration of the issue.

The Deputy Presiding Officer:

I thank Mr Stevenson for the advance warning of his point of order. He is correct that the Parliament cannot compel a committee to take any particular course of action. It would be for the committee to decide how to respond to the amendment if it is agreed to.

Photo of Margaret McDougall Margaret McDougall Labour

I express my disappointment that, on the day that the Welsh Assembly is debating a legislative consent motion that will restrict the imposition of the anti-trade union bill on Welsh public services, we in the Scottish Parliament are unable to do similarly as a result of the Presiding Officer’s ruling.

Members have debated the undemocratic Trade Union Bill in the chamber before and, barring Conservative members, a sizeable majority has expressed opposition to it. All members who have done so have a duty to do all that they can to stop the bill and they should therefore do what the Labour amendment calls for and support my colleague Mary Fee’s proposal to amend the standing orders.

Photo of Margaret McDougall Margaret McDougall Labour

I have just started. Perhaps I will take an intervention later.

Let us be clear: this anti-trade union bill is bad for business and bad for workers. The only people who will benefit are bad bosses, while the rest of us suffer. The bill undermines the fundamental right of workers to remove their labour to fight for and defend jobs, pay and terms and conditions.

I will take Sandra White’s intervention now.

Photo of Sandra White Sandra White Scottish National Party

With reference to what the member said when she opened her speech, will she and her colleagues support employment law being devolved to the Scottish Parliament, so that this would not be necessary at all?

Photo of Margaret McDougall Margaret McDougall Labour

That is not what we are here to discuss and it is not an issue.

Removing the ban on the use of agency workers to break strike action—that ban was introduced by a Tory Government, no less, in 1973—is a dangerous precedent that would undermine the rights of all workers. I fear that, if bad employers are able to use low-paid temporary workers to break strike action, that could lead to a new era of protracted industrial ill health. Bad employers would most certainly use that provision to push down pay and terms and conditions. We should also acknowledge the unacceptable position that many agency workers who are desperate for work will be placed in when they are pressurised by agencies to accept work in those most stressful of situations.

There are concerns that the use of agency workers could have an impact on the quality of public services and on health and safety. Would it really be acceptable, for example, for a business to break strike action with less-qualified temporary workers in heavy jobs where the safety of that worker and the wider public could be put at risk? We in the Parliament should be making it clear that we respect the right to strike—that should be a fundamental right in all democratic societies—and that we do not want devolved public bodies in Scotland to use agency workers to undermine industrial action for the reasons that I have outlined. We should also do all that we can to defend trade union facility time and check-off arrangements.

The Tories always omit two key points in all their rhetoric about those matters. Trade union facility time is not, as the Tories would have us believe, a costly burden on employers that provides no benefits. The reality is very different. Facility time is already tightly defined. It includes undertaking duties, such as negotiating with employers and representing members—duties that I am sure all of us in this chamber would expect trade unions to carry out. In enabling the carrying out those duties, facility time provides a substantive benefit to employers by reducing work-related illness, stress and injury. It saves employers and the Exchequer money by reducing employment tribunal cases; it helps employers retain staff, saving them money on recruitment and training.

Let us be clear that check-off is not free. Local authorities, for example, charge trade unions an administrative fee for check-off arrangements. In recent years, as local government cuts have taken their toll, many local authorities, including those where the Conservatives are in power—South Ayrshire for example—have raised the check-off fees.

We on these benches have always acknowledged the importance of trade unions. We know that in workplaces with trade union recognition workers benefit from better pay and terms and conditions and, as I have just said, employers can benefit from good industrial relations. We believe in the key trade union value of solidarity and the principle of united we stand, divided we fall.

Members on these benches will do everything that we can to oppose the bill and to protect the right of trade unions to represent their members. Labour councils across Scotland have taken decisive action against the bill and have pledged not to co-operate with it. The councils have pledged not to implement the changes to check-off and facility time arrangements; they will also not use agency workers to undermine strike action.

The Deputy Presiding Officer:

The member should draw to a close, please.

Photo of Margaret McDougall Margaret McDougall Labour

I am just closing, Presiding Officer. I am delighted that, in my area, North Ayrshire Council last month became the first Scottish National Party-led local authority to make such a commitment after a successful campaign by Labour councillors. We need to see that approach rolled out across the whole of the public sector in Scotland. We must see a legislative consent motion brought before this Parliament—

The Deputy Presiding Officer:

You must draw to a close, please.

Photo of Margaret McDougall Margaret McDougall Labour

—so that members are not only setting out their opposition to the bill, but making sure that it is not imposed on Scottish public services.

I hope that we can all work together across this chamber—

Photo of Margaret McDougall Margaret McDougall Labour

—to amend our standing orders to allow us to debate that legislative consent motion.

The Deputy Presiding Officer:

Right. Thank you very much. We are very tight for time today. I call Christina McKelvie. You have up to six minutes, please.

Photo of Christina McKelvie Christina McKelvie Scottish National Party

What is wrong with this bill? Dave Moxham from the STUC beautifully summed it up when he gave evidence to the Devolution (Further Powers) Committee:

“You will not be surprised to hear that the STUC’s view is that the bill is designed to fix a problem that does not exist, given that strike levels are at an historic low across the UK. As the Scottish Government has pointed out, the levels are even lower in Scotland. We consider the bill to be an ideological attack on the very basis of trade unionism. Trade unionism is designed to provide an effective balance in the workplace between the interests of workers and the interests of managers.”—[Official Report, Devolution (Further Powers) Committee, 7 January 2016; c 2.]

I could not agree more. Westminster clearly has not managed to get a handle on the idea “If it ain't broke, don't try and fix it.”

What is wrong with the bill? Practically everything. We have heard quite a lot of examples already. The bill not only tries to repair a problem that does not exist—we have more than enough real problems to be getting on with—but cuts to the heart every worker’s basic human rights.

The Law Society of Scotland and the Equality and Human Rights Commission Scotland have drawn attention to what the Government in London seems to feel is a minor impediment. Although the Secretary of State for Business, Innovation and Skills, Sajid Javid MP, is convinced that there is no such threat, he finds it hard to clarify just how he arrived at that conclusion.

The secretary of state has made a statement about the bill’s compatibility with the European convention on human rights—as he is rightly required to do—but he has avoided addressing the obligations under the United Nations and the International Labour Organization treaties ratified by the UK or its obligations as a signatory to the European social charter. Perhaps we should not be surprised by that. The Westminster Government has an astonishing ability to not answer any difficult or challenging questions. We have seen that not just in the context of the Trade Union Bill, but in everything from immigration and refugee policies to flood defences and the Barnett formula. We do not need to go back to the Tolpuddle martyrs in 1834 to concede that the exploitation of workers is bad for workers, bad for employers and bad for the economy.

Currently, the law protects the right of a trade union to organise and encourage its members to take part in peaceful picketing, provided that it meets certain requirements in the Trade Union and Labour Relations (Consolidation) Act 1992. The bill might be in breach of article 11 of the ECHR, which deals with freedom of assembly and association, particularly if it is read alongside article 14, which is about freedom from discrimination in the enjoyment of ECHR rights.

Trade Union officials in the public sector are accustomed to having some facility time to deal with members’ interests—I used facility time when I was a trade union activist. Clause 13 would limit that time and would probably restrict the proportion of the employer’s pay bill that is dedicated to facility time. The powers are dangerously open ended and could readily be used to interfere with freedom of association rights.

The STUC said:

“With less facility time, members would get a poorer service and workplace disputes could increase. Some private sector employers might reduce facility time even though they’re not forced to. Devolution means that employers such as the Scottish Government, councils and health boards should be free to spend resources without interference from the UK Government. We are calling on all public sector employers not to co-operate with the legislation. And many have already agreed to do this.”

The House of Lords is an unelected and unrepresentative body, but it is encouraging that it decisively defeated the Government over trade union funding of political parties, even though there was some self-interest in doing so.

Nothing hobbles an organisation as effectively as the creation of unnecessary but—according to the Government—essential paperwork, and trade unions are no different in that regard. Many people have pointed out that the bill seeks to make everything more time consuming and to take a more old-fashioned approach, while cutting back the time available to comply with the regulations. Westminster is making things more old fashioned; who would’ve thunk it?

Baroness Smith of Basildon rejected the Government’s claims that the bill will not hurt her party financially. She told peers that democracy would be damaged if the Government pushed through the changes on funding without the changes being fully scrutinised by a select committee. To require union members to opt into paying a levy, rather than enabling them to opt out if they want to do so, is a great way of increasing bureaucracy and reducing the budgets that help union members.

As we heard, the First Minister is seeking exemption for Scotland from this destructive, negative bill, which seems designed to damage constructive relationships between employers and staff. The First Minister is absolutely right to take that approach and I think that she has the backing of most MSPs.

That effort is only the tip of the iceberg. What we need is full control over employment legislation. If some members of the Smith commission had supported that, we might not be here debating the Trade Union Bill. What the Scottish Parliament needs is the power to work in Scotland’s interests. A bit of discussion in the meantime would help.

The late Jimmy Reid said:

“From the very depth of my being, I challenge the right of any man or any group of men, in business or in government, to tell a fellow human being that he or she is expendable.”

We should never forget those words as we debate the Trade Union Bill.

Photo of Liam McArthur Liam McArthur Liberal Democrat

In her speech, the cabinet secretary made much of the fact that the bill has no place in Scotland. Frankly, it has no place anywhere in the UK. The cabinet secretary at least acknowledged that.

Trade union reform is not in and of itself unreasonable, but the Trade Union Bill is not about improving democracy, accountability or even the effectiveness of trade unions. Rather, it is a petty attempt to neuter unions and prevent them from properly representing the legitimate interests of their members. It is driven not by the demands of business or the needs of the public sector but by a determination to undermine the Labour Party.

As for the provisions on political funding, if the Tories were at all interested in tackling the distorting effects of money in our politics and elections, they would agree to calls from Liberal Democrats and others for genuine reform of party funding, rather than simply manipulating the rules in their favour. Rigging the deck in the way that the Tories are doing is nakedly political.

UK ministers claim that the bill is necessary in the face of increased strike action in recent years. However, given the profound economic shock that we have collectively been through in recent times, it is scarcely surprising that more people have been in dispute with their employers. To pin the blame, somehow, on irresponsible trade union activity is wrong, and deliberately so. It is also dangerous. Trade unions are vital in standing up for workers’ rights, improving productivity and protecting against workplace abuse and bullying.

Is it the case that some individuals in some unions act irresponsibly on some issues? Yes. Are there even those who make more of a habit of it? Perhaps. But is there anything that suggests that the reforms in the Tory Government’s bill are either justified or proportionate? Not at all, in my opinion. Yes, recent polls indicate that 29 per cent of people believe that trade unions are too powerful, but the same polls show that 77 per cent agree that they are essential to protect workers’ interests. UK ministers would do well to reflect on that.

Of course, it is no coincidence that the bill is appearing only now. As my colleague Willie Rennie reminded the Parliament back in November, the bill is made up almost entirely of measures that were proposed by the Conservatives over the five years of the previous coalition Government but blocked by Liberal Democrats, notably my former colleague Vince Cable.

However, it is not just about measures that Liberal Democrats blocked. In the run-up to last year’s election, Vince Cable drew up proposals on e-balloting that were aimed at helping to increase democracy and participation within trade unions. Those plans, which it seems are good enough for the Tories in selecting London mayoral candidates, are nevertheless off the table when it comes to union reform.

It is not simply trade unions and the Labour Party that stand to lose. A number of the measures risk damaging industrial relations in this country, as almost all the members who have spoken so far have mentioned. That is madness. Good industrial relations not only protect workers from abuse and intimidation but deliver better productivity, and effective relationships between employers, workers and trade unions are in the interests of all three, as well as of our economy as a whole. Trade unions work actively with management to deal with industrial disputes before they go too far. As Unison and others have made clear, if that balance of power is shifted, more serious grievances and greater detriment to that relationship in the workplace could be the result.

An example is facility time, which has been highlighted by the RCN—an organisation that even the most right wing of UK Tory ministers would struggle to demonise as Trotskyite troublemakers. In Scotland, trade union facility time is agreed as part of the NHS staff governance framework, but the changes that are proposed in the bill would, among other things, give ministers the power to impose a cap on the time that trade union representatives are allowed to carry out their duties. The underlying assumption appears to be that there are too many trade union representatives in the public sector, yet independent research suggests that the bill is attempting—as others have said—to solve a problem that does not exist.

As the Devolution (Further Powers) Committee argues, if the issue cannot be resolved at a UK level—Bruce Crawford helpfully set out the ways in which that may yet be achieved—we will need to ensure that Scotland is enabled to take a different approach, and the same applies with regard to the provisions on check-off. I say that as someone who believes that employment law is ideally consistent across the UK—indeed, a European Union-wide approach has delivered significant benefits in recent times.

On political funds, just as English votes for English laws is a self-interested, piecemeal and counterproductive way of dealing with the serious constitutional reform that our country needs, so, too, is picking off the Labour Party and trade unions for special measures instead of addressing the pressing need for fundamental reform of how all our political parties are funded.

The SNP Government often stands accused of legislating not because it should or it needs to but because it can, and of fixing problems that do not exist. Sometimes that criticism has emanated most vociferously from members on the Conservative benches, yet I can think of few more egregious examples of wrong-headed law-making than the Trade Union Bill. UK ministers propose to act not on the basis of what is in the interests of our country, our economy or our workforce, but for other reasons. They have made a political calculation about what they think will damage the Labour Party financially and politically. The fact that their proposals risk damaging workplace relations, workers’ rights and productivity seems to matter little to the UK Government.

On the grounds of civil liberties, workplace harmony and higher productivity, Liberal Democrats will continue to work with others here and at Westminster to oppose the Trade Union Bill, and I will support the motion and the amendment at decision time.

The Deputy Presiding Officer:

I ask members to keep to their six minutes, please.

Photo of Kevin Stewart Kevin Stewart Scottish National Party

I refer members to my entry in the register of members’ interests and declare that I am a member of Unison.

The Trade Union Bill seems to be part of a wider Tory agenda to restrict employees’ rights. We have already seen the removal of legal aid access for personal injury claims, and anyone who started working after 6 April 2012 must work for their employer for at least two years before they meet the qualifying period for unfair dismissal. Changes to employment tribunals have restricted access to workplace justice, and tribunal fees of up to £250 just to register a case have been introduced. Those changes—all attacks on employee rights—were bad enough, but now we have the Trade Union Bill, which seems to be an outright ideological attack on worker representation.

In its briefing for the debate, the British Medical Association has provided us with an excellent summary of the bill. The BMA does not have a political fund and is not affiliated to any political party or to the Trades Union Congress. No one—unless their name is Hunt—could ever accuse the BMA of being a reactionary, militant organisation. The briefing states:

“The BMA believes that the Trade Union Bill risks diminishing not only the important role trade unions play in the work place, but also their legitimate right and need to represent their members’ interests. The imposition of tighter restrictions on trade unions may have the inadvertent effect of prolonging workplace disputes, thereby making it more difficult to resolve disputes amicably.”

A similar view is held by Shirley Rogers of NHS Scotland, who stated at the Devolution (Further Powers) Committee that

“the NHS took the view that we wanted to invest in co-production; we wanted to front-load our investment in facility time to allow us to have a better product rather than to spend our time in conflict resolution and dispute management. The proof of that pudding is that, during the past 10 to 15 years, we can count on one hand the number of disputes that we have had.”—[Official Report, Devolution (Further Powers) Committee, 7 January 2016; c 6.]

My experience of facility time is similar—it has been beneficial to some organisations that I have been involved with, including Aberdeen City Council, in which it has been beneficial in areas such as health and safety, input to the local education committee—including work on the three Rs project, which built 10 new schools in Aberdeen—and budget setting. Trade union colleagues were at the forefront in those examples. I hope that that continues throughout the country for ever and a day.

The bill undermines workers’ rights to representation: of that we can be in no doubt. The BMA briefing tells us:

“The Secretary of State for Business, Innovation and Skills has stated that ‘this Bill is not a declaration of war on the trade union movement’. However, this Bill, alongside the measures introduced by the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014, appears to be another ideological attempt by the Government to curtail the legitimate activities of trade unions.”

Esther Lynch, who is a confederal secretary of the European Trade Union Confederation, recently wrote:

“The very fact that the Trade Union Bill has been proposed is shocking. Attacks on the fundamental right to strike, recognised as a basic human right, are not just an attack on workers and their trade unions, they are an attack on society as a whole. Weaker unions mean greater inequality. By interfering with trade union collective action Governments prevent workers from effectively participating in the choices involved in their workplace, society and economy. The deck becomes firmly stacked in favour of the powerful and the privileged.”

Should we be surprised that, once again, the Tory party is attempting to stack the odds in favour of the powerful and the privileged? Probably not. However, in the Scottish Parliament, we should be doing all that we can to ensure that such draconian laws cannot be implemented here. We must all support the call from the Devolution (Further Powers) Committee that Scotland be excluded from the bill.

We have heard today from Mr Findlay that he would like to explore every avenue to combat the bill. Margaret McDougall said that we should take every measure required to do so. The measure that we must take—the avenue that we need to go down—to protect trade unionists and employees across the board, to protect human rights and to defend our freedoms, is ensure that all aspects of employment law are devolved to this Parliament.

Photo of Lesley Brennan Lesley Brennan Labour

I first note my interest as a member of Unite the union.

As we have heard already, a significant number of local authorities have debated motions, including my Dundee City Council where, thankfully, the SNP administration supported a Labour motion that said how much we are against the Trade Union Bill. Scottish trade unions, trade unionists and other stakeholders including NHS Scotland are opposed to the bill.

The extent of the opposition to the bill in Scotland was made clear, as we have heard, when the bill was debated in Parliament on 10 November and there was a significant majority of support for the motion against the bill, with only 14 members voting against that motion.

It is disappointing that the Scottish Government's legislative consent memorandum was rejected, because there is evidence that the Trade Union Bill will have an impact on devolved functions. For example, the proposed changes to facility time, which I would like to concentrate on today, will impact on the NHS, on local authorities and on other organisations that come under the remit of the Scottish Parliament. There is therefore a strong argument that the bill encroaches on the legislative competence of this Parliament.

It is important to remember why the current UK Government is taking the bill forward. Let me quote the Institute of Employment Rights, which has said:

“It is a fact that workers in unionised workplaces enjoy better terms and conditions.

Why? Because trained trade union reps are active in the workplace, negotiating, representing and promoting the wellbeing of the workforce.”

Facility time is an important component of the role of trade union representatives. Time off from an individual’s job is granted by the employer to enable a union representative to carry out his or her trade union role. It has been a right since 1975. As Margaret McDougall has said, union representatives’ duties are tightly defined. We must acknowledge the work that they do on top of their own workload—especially those in the public sector—and how much their workload has expanded over the past seven years. Many representatives do casework and preparation for meetings in their own time; facility time is not the complete amount of time that is involved in resolving issues. We need to be mindful of the contribution that union representatives make.

The proposals on facility time in the Trade Union Bill are very concerning because, if it is passed, all public sector employers in Scotland will be required to publish information on the amount of money that is used for trade union facilities, including paid time off, and trade unions will have to publish the amount of money that is spent on facility time and how much time is taken up with trade union activities. The critical point is that the UK Government will have the power to introduce a cap on the amount of money that local authorities can spend on facility time. The cap could also apply to various other trade union activities.

It is very important to remember that facility time is not some altruistic action by employers; there is a clear business case for facility time. According to the Royal College of Nursing,

“The Trade Union bill could have serious consequences for productivity and morale in the NHS, as new research shows that trade unions are saving the NHS across the UK at least £100 million every year. Independent evidence has revealed that staff turnover in organisations without union representatives is three times higher than in those with union representatives.”

When it is added up, the saving comes to £100 million year.

Evidence from a survey for the TUC and the “Personnel Today” website notes that the majority of

“HR professionals ... agree that unions are an essential part of modern employer/employee relations”.

However, the Tories at Westminster want to weaken seriously the effectiveness of unions rather than promote industrial harmony and business efficiency, so the evidence of those beneficial outcomes is not being considered. No plausible case can be made for regarding the Trade Union Bill as constructive. It is not constructive; it is destructive. Facility time benefits not just trade union members, but everyone.

The Scottish economy is weak, and further reductions to the public sector will further weaken the economy. Scotland therefore needs a robust response from the Scottish Parliament on the Trade Union Bill, because Scotland cannot afford the bill. The Scottish Government acknowledges that the bill will have an impact on devolved functions. It will have devastating implications for Scottish public services, which benefit from facility time. Research that was published earlier this month in the journal Work, Employment & Society notes:

“In NHS Scotland, union participation in strategic decisions produced extensive co-operation to ... improve services and enhance staff terms and conditions.”

There is overwhelming opposition to the Trade Union Bill. I feel that we have a unique opportunity today to move beyond the rhetoric and instead genuinely to work together for Scotland. I was heartened to hear that the minister will support Neil Findlay’s amendment to support the proposal from Mary Fee to amend standing orders to allow thorough debate of the Trade Union Bill.

Photo of Elaine Smith Elaine Smith Labour

You really must come to a close.

Photo of Lesley Brennan Lesley Brennan Labour

The proposed changes to facility time will impact on devolved matters and the productivity of the organisations that I mentioned. I am therefore delighted that the Scottish Administration will support Neil Findlay’s amendment today.

The Deputy Presiding Officer:

Again, I ask members to keep to their six minutes; otherwise, members who speak at the end of the debate will lose time.

Photo of Clare Adamson Clare Adamson Scottish National Party

I declare an interest as a member of the National Union of Journalists and as a member of the SNP trade union group, which is now over 16,500 strong.

I was born and brought up in industrial Lanarkshire, and the trade union movement and industrial relations have often been prominent in my life. The traditions of solidarity and unity in Lanarkshire were brought home to me last year when I stood with representatives from the trade union movement, the STUC and people from the communities of Motherwell and Wishaw at the unveiling of the steelworkers memorial, which is a beautiful sculpture by Andy Scott and a fitting tribute to the many workers in the steel industry who lost their lives or were injured in the workplace. However, the site of Ravenscraig on which the statue stands will forever be remembered by me as the place that epitomised in my formative years the failure of industrial relations.

I remember the miners’ strike and picketing at Ravenscraig. I fully believe that that conflict, as it is in my mind, was orchestrated by a Government that had an agenda to damage irreversibly the trade union movement. I thought that the anti-trade-union legislation that followed was the worst that a Tory Government could do to a movement that has done so much to secure workers’ rights, to improve health and safety, and to protect workers. Unfortunately, I was wrong.

The proposals in the Trade Union Bill will further restrict the fundamental rights of workers to organise, to bargain collectively and, where necessary, to withdraw their labour. One has only to look at the position of junior doctors in England and Wales to see how important that last right is when one is faced by an unjust Government. In Scotland, we have good industrial relations. The trade unions are well recognised; they are a hugely important part of our society and are indicative of a healthy modern democracy.

As convener of the cross-party group on accident prevention and safety awareness, it has been my absolute pleasure to work with Scottish Hazards in its endeavours with the STUC to raise awareness, and to train and support workers with the aim of reducing the amount of work-related injury, ill health and death. The group aims to increase knowledge and awareness and, most important, to improve practice and develop workers’ involvement in the most important part of their lives—their working environment.

How many of those hard-won protections for workers would exist, however, without the efforts of an effective trade union movement? We have heard the mantra from other parties in the UK, particularly from the United Kingdom Independence Party, about the red tape of health and safety, but it is not so. Those are hard-fought-for protections that were put in place for workers through the endeavours of a strong and effective trade union movement.

In Lanarkshire, unfortunately, we all understand the dangers and the legacy of those industrial days—mesothelioma, pleural plaques, chronic obstructive pulmonary disease and vibration white finger. The list goes on and on. If we do anything that further diminishes the rights of workers and the trade unions in the UK, we do it at our peril.

I have talked about my formative teenage years. I remember the 1979 devolution referendum and the late amendment that required 40 per cent of the electorate, not just a simple majority, to support the proposal. That was an affront to democracy then, and clauses 2 and 3 of the Trade Union Bill are an affront to democracy now. There has been talk about how the bill will be debated in the Welsh Assembly today, and Liam McArthur said that he is in favour of a UK-wide employment legislation solution, but we do not have that now: the bill will not be discussed in the Northern Ireland Assembly, because the matter is devolved to the Northern Ireland Assembly. Had we had support in the Smith commission, the bill’s subject matter might well have been in Scotland’s power too. It is a shame that we do not have that power, because it would make such a difference to the future and to today’s deliberations.

One of the reasons that have been mooted for the need for the Trade Union Bill is that through it the number of days’ productivity that are lost in the UK economy can be limited. I would like to see the UK Government look to what the Scottish Government has done by introducing the living wage—which research has proved increases productivity, motivates workers and benefits people. We can do things differently here; we can take different decisions. We need the power to do so, and we should use every way that we can find to reject the bill that is being promoted by the Tory Government.

Photo of Patricia Ferguson Patricia Ferguson Labour

It is widely recognised that the Trade Union Bill is one of the most ill-judged, unnecessary and ideologically driven pieces of legislation since the days of Margaret Thatcher. It is ill judged because it will take away the last resort that is industrial action by workers and will force them to take more direct political action; it is unnecessary because days lost to strike action are at an all-time low; and it is ideologically driven because it seeks to give Government and employers more power and working people less. In short, it is a bad bill and we must do everything in our power to oppose it.

We debated the issue in November so I do not intend to rehash all the arguments that were used then. They still stand and are a matter of public record. Today, I want to look at where we now stand and what options are open to this Parliament to make its view on the bill known to the UK Government and, crucially, to seek change. Ideally, the UK Government would drop the bill, but we know that that is unlikely to happen.

The report by the Devolution (Further Powers) Committee is a welcome addition to the discussion around the bill. As we know, one of its recommendations was that we should have this second debate on the Trade Union Bill, so that the committee’s conclusions could be aired. The committee took evidence from relevant people with a direct interest in the bill’s provisions and their evidence backs up the view that the proposed legislation was rushed into Parliament and has not been properly consulted upon.

Indeed, the committee quotes the conclusions of the UK Government’s Regulatory Policy Committee, which stated that the Department for Business, Innovation and Skills’s impact assessment on the bill said that it is “not fit for purpose” and

“lacks evidence to support many of the quoted figures”.

The committee concluded that the provisions on check-off and facility time will not lead to savings or efficiencies.

I was struck by something that Clare Adamson said about health and safety and the Scottish Hazards movement. As members know, I have been greatly involved with the Stockline factory. That was not a unionised workplace; I like to think that if it had been, and if the trade union officials and lay trade union members had been able to go on a health and safety course, parts of the build-up to the incident that happened that day and which cost the lives of nine people would not have happened. People would have been alive to the dangers that were so apparent if one just cared to look.

The Devolution (Further Powers) Committee noted that the UK Government does not believe that a legislative consent memorandum or motion is needed, in spite of the fact that the proposed legislation seems to confer powers on UK ministers over the operation of check-off and facility time in the public sector. The committee suggested that it wants to encourage the UK Government to think again about that, but it recognises that it is unlikely to do so.

As we know, our debate is taking place at the same time as the same debate is taking place in the Welsh Assembly. Although the Welsh Assembly has considerably fewer powers than the Scottish Parliament, it is debating an LCM. As matters stand, an LCM in the Scottish Parliament has been ruled out by our Presiding Officer and her legal advisers. Consequently, Scottish Labour has suggested a change to standing orders that would alter the way in which an LCM is handled in the Scottish Parliament. If there is a will to do so, there is no reason why Parliament cannot quickly change its standing orders to allow any member to lodge an LCM.

I am pleased that the Scottish Government has said that it will accept our amendment. I say to my colleague Mr Stevenson, who is not in the chamber at the moment, that the Labour members who are on the Standards, Procedures and Public Appointments Committee will be happy to work with him and other colleagues to ensure that the amendment that we come up with is absolutely right for the purpose.

Parliament’s Devolution (Further Powers) Committee suggested that Scotland should be removed from the territorial extent of the bill by amendment. As we know, time is running out so the committee suggested the further fallback that, as a minimum, the regulation-making powers relating to facility time and check-off should be conferred on Scottish ministers as they relate directly to public services in Scotland. I know that my Labour colleagues Eluned Morgan, Peter Hain and George Foulkes, as well as Jeremy Purvis of the Liberal Democrats, have tabled amendments to do just that, but perhaps the minister can tell us what discussion and engagement she has had with them about those issues. I understand that the amendments will be taken in the House of Lords on 8 February.

The UK Government seems to see the bill as some kind of demonstration of its virility. To me, it is a sign of weakness to seek to reduce the rights of workers and attempt to silence their voices through process rather than argument and discussion. It is symbolic of the UK Government’s attitude to trade unions, the ECHR and democracy.

Symbols can be important, so I suggest that we, as a Parliament, might like to make a small symbolic gesture. Perhaps the business managers of all the parties represented in the Parliament that oppose this anti-trade-union bill should go to Downing Street, taking with them copies of the Official Report of the two debates that have been held here to hand in, in order to make a practical and symbolic demonstration to the UK Government that a strongly held contrary view is held by the majority of Scots and their representatives.

The Deputy Presiding Officer:

I am sorry, but you must close.

Photo of Mark McDonald Mark McDonald Scottish National Party

My colleague Kevin Stewart spoke of his time at Aberdeen City Council as the convener of the finance and resources committee. He mentioned the important role that trade unionists played in a number of the budget discussions and in resolving the vexed issue of single status and equal pay in modernisation—regrettably, that remains unresolved in a number of local authorities. If the Trade Union Bill were to be passed at Westminster, I wonder what the impact would be on the ability of unions to effect a resolution to that issue.

During my time at Aberdeen City Council, I convened the appeals committee. I saw at first hand the benefits of trade union facility time in enabling the provision of appropriate support and representation for staff members who were lodging appeals against disciplinary procedure. I have serious concerns that, if the bill is passed, the ability of trade union officials to work on behalf of their membership in such appeals or in matters of grievance will be severely restricted, which could remove some recourse to justice for those members.

I also spent time on the council’s corporate health and safety committee. That was an important forum that brought together council officers, union representatives and elected members in order to drive forward the health and safety agenda. My colleague Clare Adamson spoke of that agenda in its wider context. At local authority level, again I have concerns that those union voices could be lost to that process if the changes concerning facility time in the bill are introduced.

Recently at Aberdeen City Council, my colleague Councillor Jackie Dunbar, who leads the SNP group, tabled a motion that was worded similarly to motions passed by other local authorities across Scotland, seeking to express the council’s explicit opposition to the Trade Union Bill and to put the council in a position in which it would not take action that would undermine union rights as a consequence of some of the bill’s measures. Regrettably, the motion was ruled to be incompetent by the Labour Lord Provost, despite it being along the same lines as those that have been passed by other councils. An attempt to lodge a motion with different wording, in a bid to get consensus, was not included on the agenda of the council’s urgent business committee.

My hope is that that was not a narrow consideration that a motion put forward by the SNP was the issue, and I hope that a resolution can be found so that Aberdeen can join those other councils that have, I believe quite rightly, expressed their opposition to the Trade Union Bill.

I was interested to hear Margaret McDougall speak about regressive union legislation that was passed by the Conservatives in the 1970s and remains on the statute books to this day. I regret the fact that that regressive legislation remains on the statute books despite 18 years of unbroken Labour Government from 1997 to 2015. That raises a secondary concern for me. Were the Trade Union Bill to be passed—I hope that it will not be, but we have to work with the reality that there is a majority Tory Government at Westminster—and were there to be a change of Government, we have no explicit guarantee that the legislation would be reversed, given what we saw following 1997.

Photo of Neil Findlay Neil Findlay Labour

The member really needs to keep up with the news. Jeremy Corbyn is absolutely committed to reversing that legislation.

Photo of Mark McDonald Mark McDonald Scottish National Party

First, we will see whether Mr Corbyn is prime minister after 2020 and, secondly, we will see whether he keeps to his word in that respect.

Mr Findlay and his colleagues have spoken about the legislative consent motion, and we will accept the Labour amendment at decision time. However, until the UK Government changes its position around the requirement for legislative consent, the passing of an LCM will have no meaningful effect. The legislation can still be passed at Westminster and the parliamentary supremacy that Westminster commands means that a challenge to legislation that it has passed is almost certain to fail.

No amount of hand wringing can deflect from the fact that the Labour Party, in the Smith commission and during the debate on the Scotland Bill following it, argued to leave employment law and trade union law in the hands of the Conservative Party at Westminster. Labour rejected the proposal by my colleagues at Westminster to devolve employment rights. I heard the argument that union movement solidarity transcends national borders. However, as my colleague Clare Adamson pointed out, the bill will not affect unions in Northern Ireland, because the decision has already been taken to devolve those matters to Northern Ireland. The simple and clear fact is that the Trade Union Bill is not an example of better together; it is an example of suffer together.

Photo of Sandra White Sandra White Scottish National Party

Is my microphone on, Presiding Officer? I thought that it was like the nightmare that we had last week when the lights went out and that perhaps my microphone had gone off, too. Maybe some folk would have preferred it if it did but, never mind, it is on now, anyway.

I echo the views of those who have spoken in opposition to the Trade Union Bill. It is important that we speak up against this regressive bill. I believe that it is a direct attack not only on trade union rights but on human rights, and it must be seen as that. As a former shop steward, I was proud and privileged to represent and serve my members in the Union of Shop, Distributive and Allied Workers. We not only raised issues that trade union members raised with us; we facilitated meetings with management. That is the crux of a lot of the argument about the bill. I think that we actually prevented strike action through those meetings with management. We put the voices of union members and their concerns first, and we won a lot of concessions. That is one of the jobs of the trade union movement.

To reiterate what the cabinet secretary said, trade unions are an essential part of the workforce, not just because they represent their members but because of the training that they provide and the fact that they put people through colleges. Trade unions do an absolutely fantastic job, and the bill is a very bad proposal for legislation. Some of the issues that members have mentioned obviously worry me, and I will probably pick up on some of them.

The UK Government’s lack of dialogue with not only the Scottish Government but the other devolved legislatures in the UK is deeply troubling for a number of reasons. Given devolution as it stands, many of the dealings that we have with trade unions in Scotland relate to sectors for which responsibility is already devolved, and further powers and responsibilities will I hope transfer to Scotland. That is important. Over the past 16 years, relations with those sectors have been largely influenced by the actions of consecutive Administrations in Scotland. We have a distinct relationship with those sectors and the employees in them. The proposed legislation will have a direct impact on that relationship, so I believe that the Scottish Government and the Parliament should have had a major say in it. As members have said, Dave Moxham and others mentioned that they were not consulted in any way whatever. It is troubling that the present Conservative Government is more interested in bypassing Parliament to implement what I would call its ideological drive against the poor in favour of the rich.

The conventional guarantees against autocratic rule in any democratic society are the rule of law, the separation of powers and public access to legitimate scrutiny of action. However, the Tories want to restrict that. As has been said, they introduced the Criminal Justice and Courts Bill, which would have made it more difficult to challenge unlawful Government decisions or subject public bodies to effective scrutiny. That bill was defeated in the House of Lords. At the time, the Labour peer Lord Beecham said:

“In the unlikely event of Mr Putin becoming aware of the Government’s approach, he would be lost in admiration.”—[Official Report, House of Lords, 9 December 2014; Vol 757, c 1742.]

I love that wee quote. I do not think that that is the kind of admiration that we want. I would hope that even those on the Conservative benches would not want that.

The Conservatives then wanted to bypass Parliament to introduce new freedom of information laws. Incredibly, the Information Commissioner described that as an attempt by the Tories to return to “private government”. Since the elections, the Tories have increasingly used statutory instruments to try to introduce swathes of significant new laws and measures such as benefit cuts without debate in the House of Commons.

The Trade Union Bill is another way of removing people’s voices and making it more difficult for them to challenge Government decisions. It comes on the back of a concerted war against workers by the Tories, who have removed legal aid for employment tribunals, changed the rules governing unfair dismissal, changed the rules for employment tribunals and cut back on health inspectors, all to the detriment of workers.

That is all part and parcel of the Tory plan. It is another way of rolling back democracy and rights that, as we know, are hard fought for. The lack of proper discussion and scrutiny shows that it is also another example of the Tories’ lack of respect for Parliament, whether in Westminster or Holyrood. The Tories are keen to go to war in Syria and, covertly and without parliamentary approval, in Yemen. Their new war is the war on democracy.

We must oppose this badly thought-through legislation. It is a fundamental attack on workers’ rights and, more insidiously, a further attack on our democracy by an increasingly secretive and totalitarian Tory party that is hell bent on eroding fundamental rights throughout the UK. In addition, as other members have said, we must call for the devolution of employment law because, regardless of its stance against the Trade Union Bill, the Labour Party fails to support the one measure that would defeat it.

Photo of John Wilson John Wilson Independent

I declare an interest in relation to the debate, as I am a registered member of Unite the union and a member of the RMT parliamentary group.

I thank the Scottish Government for bringing the debate to the chamber and the Devolution (Further Powers) Committee for its report. It is a vital debate and of particular interest to me. Trade unions are a vital resource for workers across a broad range of industries. The Trade Union Bill represents nothing less than an attack on the rights of trade unions and, as a result, the rights of workers throughout Scotland and the rest of the UK.

As I said in the recent debate on the oil and gas industry, I applaud the role that the trade movement played in securing and defending the rights of workers in that industry, especially on health and safety issues. We have a duty to listen to the trade unions that represent workforces throughout Scotland. The STUC, COSLA and other organisations have made their professional opinion on the matter clear: the Trade Union Bill is a draconian, archaic and politically motivated piece of legislation. It is an attack on trade unions and nothing more.

Trade unions organise workforces, represent the workforce and ensure that workers are protected in more ways than just earnings. They protect workers on health and safety and make representation on behalf of workers. The facility time that we are talking about the Trade Union Bill eroding is time that trade unions take to represent their members on a wide range of issues to their employers and others.

The right to strike has had a long and proud tradition in Scotland and the UK. It is a fundamental right. People who take strike action do not do so lightly. When we went on strike when I worked in industry, the majority of workers lost financially by doing so but won the right to protect their rights and the health and safety conditions for which they had fought.

The right to stand up to employers and businesses and demand a certain standard of rights and welfare in employment is fundamental to our society. It is fundamental to creating a just and fair society for all. The Trade Union Bill comes from an incorrect assumption that striking is a problem in modern-day UK. According to the STUC,

“Last year there were only 151 strikes. Less than 2 per cent of workers participated in a strike. The days lost due to strikes were less than 3 per cent of the 28.2 million days lost due to work related accidents and ill-health.”

If the Tories wanted to stand up for working families, as they keep on claiming that they do, they would protect health and safety legislation and ensure that workers have safe, fair contracts that allow them to work in a consistent and stable manner. They would also ensure that workplace health and safety representatives were protected against employers who wished to undermine hard-fought-for protections in the workplace.

The Trade Union Bill is undemocratic and anti-worker. The imposition of a minimum 50 per cent turnout of eligible voters is a nonsense. The UK Government would not have been elected if it had required 40 per cent of the eligible voting public to support it. The UK Government has claimed that it is attempting to increase democracy in the workplace by imposing these restrictions. However, greater restrictions on vote results will serve only to strangle democracy.

The UK Government is consulting on draft regulations that will allow employers greater freedom to employ strike-breaking temporary workers. That fundamentally undermines the right to strike and the purposes of striking. Undermining the purposes and actions of the strike undermines the democratic principle behind the strike, once again showing how the legislation does not increase workplace democracy, as the Tories have claimed, but instead simply serves to undermine and attack trade unions and their right to collective action.

A lot has been said today about political funds, and I suggest that Alex Johnstone, in particular, goes and looks at the relevant legislation that the Tories introduced in the 1990s to undermine the political representation that unions can make on behalf of their members. Political funds are not about funding political parties; they are about allowing unions to protect their members and represent them in relation to electoral and other campaigns, and they enable unions to put across their members’ views in those elections.

On the issue of whether the legislation that goes through Westminster is legal, it can be legal, because it may be passed by Westminster, but I would argue about whether it is legitimate to put in place some of the legislation that is currently being proposed. The embarrassing thing for the UK Government at the moment is the fact that the junior doctors—a sector that is the least organised in our workforce—have highlighted the role that the UK Government is playing in undermining the rights of workers not only in industry but also in the NHS.

This legislation is a precursor to attempts that will be made by the Westminster Government in the coming months and years to undermine the fundamental rights of workers to withdraw their labour and of unions to represent their members and campaign for better rights, better health and safety and better workplace security. This legislation clearly shows that the Conservative Government is interested only in protecting the rights of employers and undermining all the other rights that have been hard fought for by the trade union movement over the centuries.

Photo of Gordon MacDonald Gordon MacDonald Scottish National Party

I thank the members of the Devolution (Further Powers) Committee for their comprehensive report on the impact on Scotland of the UK Government’s Trade Union Bill. I believe that, if it is enacted, the bill will have a detrimental effect on labour relations in Scotland for many years to come.

In my contribution to the debate on this subject that was held in the autumn, I highlighted the problems that would be created by introducing a general voting threshold, reducing facility time, making it difficult to collect union dues and undermining democracy by not allowing electronic voting. Those concerns still stand, so today I want to raise my concerns about clause 3 of the bill, which relates to ballot thresholds for “important public services”.

Clause 3 would require that at least 40 per cent of those eligible to vote would have to vote yes before any industrial action could take place. The areas of public employment that would fall under that clause is yet to be defined but it is likely to include the NHS, education, fire service and transport.

In its policy memorandum, the Scottish Government stated that that provision

“is wide enough to affect and have a negative impact on trade unions and their members who work in the public sector in Scotland in the important public services”.

The 40 per cent rule has been used to Scotland’s detriment before, back in the 1970s, but what would it have meant for the Tory Government if it had been introduced for Westminster elections? In 2015, the Tories received 11.3 million votes across the UK, or 37 per cent of the vote. That fails to meet the 40 per cent level, but that is not even the criterion that the Tories are seeking to impose. The turnout at the 2015 general election was 66 per cent of 46.4 million potential voters. Therefore, the Conservatives were voted for by only 24 per cent of eligible voters. Is it not a nonsense for them to impose a threshold for union ballots that they failed to reach?

In a submission to the relevant committee at Westminster, the BMA said:

“the ballot threshold levels ... are arbitrary, unnecessary and inappropriate. We have seen no evidence as to why an additional 40% threshold in ‘important public services’ has been chosen; the purpose of this double threshold appears only to be to make it more difficult for unions to organise industrial action.”

Even the Fire Brigades Union, which has met those thresholds in its recent ballots, stated in its written evidence to Westminster:

“These restrictions have no basis in domestic or international law or in other voting systems.”

The Devolution (Further Powers) Committee’s report highlighted the evidence of Dave Moxham of the Scottish Trades Union Congress, who argued:

“it is fundamentally and democratically wrong that an abstention should be counted as a no vote.”—[Official Report, Devolution (Further Powers) Committee, 7 January 2016; c 18.]

It is not as if we have a strike problem in Scotland. Since 2007, the number of industrial disputes has decreased by 84 per cent. The Scottish Government’s policy memorandum on the bill highlights that

“the Scottish trend in days lost to industrial disputes is the lowest of all the UK nations. If enacted as it is the Bill has the potential to destabilise the balance of the employer/employee relationship.”

Of course, the way to ensure that the number of days lost to strikes continues to fall is to improve dialogue between employers and employees. Clause 13 of the bill seeks to create a reserved power whereby a UK minister may make regulations to restrict facility time. As the Scottish Government has argued,

“Restricting facility time is likely to limit the Scottish Government’s ability to work effectively with trade unions on a range of issues as they will not have the capacity to engage.”

The justification for cutting facility time is explained in a letter from the UK Minister of State for Skills to the Westminster committee considering the Trade Union Bill in answer to a request from the SNP MP Chris Stephens. The UK Government seeks to cut facility time from 0.14 per cent to 0.07 per cent of the public sector pay bill but, as Bruce Crawford has highlighted, facility time in Scotland is already lower and costs the public purse less than the target that the Tories have set. Once again, the bill tries to resolve a problem that simply does not exist.

On 17 January, the First Minister told the Unite Scotland conference that the bill

“is nothing short of a full frontal attack on the rights and freedoms of trade unionists. It is, in my view, an attack on basic human rights.”

Of course, if all the political parties that opposed the bill had supported the devolution of employment law, as the STUC called for at the time, we would have been able to address the problem instead of just talking about it.

I believe that the devolution of employment law would be the most effective means of preventing the imposition of punitive and regressive Tory attacks on workers’ rights in Scotland. Last June, Labour refused to support a Scottish Government motion that called for the immediate devolution of employment law in order to ensure the protection and promotion of the rights and responsibilities of workers in Scotland. The Labour Party has repeatedly refused to support the devolution of employment law. I am sure that Labour does not prefer to leave power over workers’ rights in the hands of the Tories at Westminster but, unfortunately for Labour, people are judging it on the basis that actions speak louder than words.

Photo of James Kelly James Kelly Labour

My constituency has a strong industrial heritage—it has a strong history of mining, steel making and manufacturing, through which was born strong trade unionism. There was a need for collectivism because, historically, some of the employers in the constituency had very bad employment practices.

If we fast forward to the 21st century, although industrial relations and working conditions have improved substantially, even just a cursory glance at recent news cuttings shows that we still have major issues to deal with.

Last week, the Resolution Foundation reported that one in five Scots earns below the low pay threshold, and we have seen the reports about Sports Direct, where thousands of workers are on exploitative zero-hours contracts. The role of trade unions in giving a voice to people in the workplace is more relevant than ever. When we look at the logic of the Trade Union Bill, we must ask what it does for those who need the strong voice of trade unions. The bill undermines that voice.

The bill has been introduced by the Conservative Government because it operates on the basis that trade unions are not a force for good. A lot of members have mentioned the attempt to restrict facility time, which is all about shutting down trade unions’ opportunities to organise and assist workers. However, trade unions also assist employers. Lesley Brennan pointed out that the benefits of facility time include lower exit rates, lower incidences of people going to employment tribunals, and lower rates of illness and injuries. There are clear benefits.

This afternoon’s debate is about how the Parliament can move the issue forward and express a view that is legally binding in Scotland. Bruce Crawford made a very relevant point when he said that an implication of the bill was that Jeremy Hunt could have responsibility for a substantial amount of trade union activity in the Scottish NHS. To me, that makes the point that the Scottish ministers do have executive competence over areas of the bill, so it is regrettable that the Presiding Officer ruled that we were not able to debate an LCM.

Mary Fee’s proposal to the Standards, Procedures and Public Appointments Committee is helpful. I note the contributions from experienced members of the committee—Stewart Stevenson and Patricia Ferguson—which demonstrated the committee’s political will to explore how an LCM could be brought before this Parliament. That could be very helpful indeed.

I do not agree with Mark McDonald, whose analysis was that if this Parliament debated an LCM it would be a moot point.

Photo of Mark McDonald Mark McDonald Scottish National Party

I do not think that I said that it would be a moot point—indeed, we will back the Labour amendment at decision time. My point is that, unless the UK Government takes the view that legislative consent is required, an LCM will have no practical effect because it will still be able to force the bill through at Westminster.

Photo of James Kelly James Kelly Labour

I do not agree with that. I draw Mark McDonald’s attention to the Welsh example. The Welsh Assembly’s standing orders allowed an LCM to be debated. The legally binding aspects of that LCM should be considered. Members should look at the Supreme Court’s ruling in 2013 on the Agricultural Sector (Wales) Bill, which was in favour of the Welsh Assembly. It can be broadly interpreted from that that there is a strong argument to debate an LCM in not only Wales but Scotland. That is helpful. [Interruption.]

The Deputy Presiding Officer:

Order, Ms Fabiani. If you wish to request an intervention, perhaps James Kelly will consider it; if not, I ask James Kelly to continue speaking.

Photo of James Kelly James Kelly Labour

Thank you, Presiding Officer.

Linda Fabiani (East Kilbride) (SNP) rose—

No, thank you; I am in my last minute.

I emphasise that it is important that we move things forward and explore how to oppose the bill. When I read the Devolution (Further Powers) Committee’s report, I was interested to see the Law Society’s contribution in relation to ECHR. Although it noted that the UK Government had published a statement of compatibility, it questioned whether the bill, if all its measures were considered together, would be compatible with ECHR. That is another basis on which the Scottish Government could oppose the bill.

There have been a lot of strong speeches in opposition to the Trade Union Bill, which is understandable. The key issues to take forward are the ECHR point and the Standards, Procedures and Public Appointments Committee’s opportunity to explore whether the standing orders could be changed to allow an LCM to be brought to the floor of the chamber.

Photo of Alex Johnstone Alex Johnstone Conservative

There are one or two things that I can say with some conviction. The first is that the past couple of hours were a couple of hours of my time that I will never see again.

Members have failed to notice that there is an alternative interpretation of the bill and have debated a bill that does not exist. The truth is that members have been more interested in out-lefting one another for political reasons than in debating the bill. That has come across in a number of ways, not least in the fact that a bit of name calling has gone on. At various times, I or my colleagues have been described as Genghis Khan, Attila the Hun or, latterly, Vladimir Putin. I am not sure about that last one, but I might show a degree of pride in the first two.

Nevertheless, there is a case for talking about the bill in the way that it is meant to be implemented, and we have failed to do that. It is unfortunate that we have got too tied down in dogma and that not enough has been said about the bill itself.

During the debate, a specific interest arose in me about the different interpretations of where we are coming from and what the status quo is. We heard in Roseanna Cunningham’s opening statement that she appears to believe that things are going rather well in industrial relations in Scotland. However, that has been established on the basis of reforms that were introduced 20 years ago, when, if I am not much mistaken, she was a member of the House of Commons and argued against the very reforms whose achievements she is now willing to claim credit for.

Another strange thing has gone on during the debate.

Photo of Alex Johnstone Alex Johnstone Conservative

No, thank you.

Others have been willing to highlight the hypocrisy of the Labour Party. Much of the current trade union regulation in this country was introduced against fierce opposition by the Labour Party in the House of Commons. That same party then served in government for many years and never at any time did anything to reverse any of those regulations.

Photo of Alex Johnstone Alex Johnstone Conservative

No, thank you—not at this point.

Photo of Alex Johnstone Alex Johnstone Conservative

I will give way briefly. Come on—move quickly.

Photo of Iain Gray Iain Gray Labour

Will Mr Johnstone acknowledge that the party that he is talking about introduced the right to join a trade union and the right to trade union recognition where the workforce demands that?

Photo of Alex Johnstone Alex Johnstone Conservative

That is a perfect example of how Governments work with and facilitate changes in how trade unions operate. The UK Government is simply doing what it feels is appropriate to change the position of trade unions, as the preceding Government did in its own way.

Photo of Alex Johnstone Alex Johnstone Conservative

I am afraid that I must make some progress.

On that subject, we have to take it into account that we are talking about something that is being deliberately misinterpreted for political effect.

Photo of Alex Johnstone Alex Johnstone Conservative

No, thank you.

Nowhere is that more obvious than in an assertion that one or two members have made, including Patricia Ferguson, who offered the interpretation that the bill will confer on UK ministers powers over the implementation of restrictions on facility time and check-off. That case has not been made at all. There are opportunities to ensure that there is proper implementation and that we do not see a reversal taking place. We need to allow the bill to make progress and make up our minds on it at the end of that process, and we must not make the mistakes that we could make by not giving it time.

It is a fact that industrial relations in this country have progressed in different ways at different times. I remember forming opinions on trade unions as a young man that were based on the activities of the trade union movement in the early 1970s, during Edward Heath’s Government; in 1978, during a Labour Government; and in the 1980s, when a Conservative Government returned to office.

We have seen the dark days of such activities put behind us. We have seen changes in trade union regulation by successive UK Governments that have made it possible for us to have much more effective ways of working in the workplace and facilitating trade union activity. The changes under the bill are capable of having the same effect and of being positive in the longer term. Failure to deliver the bill would be a missed opportunity. Everyone who has participated in the debate must think long and hard about whether their interpretation of it is accurate.

Photo of Iain Gray Iain Gray Labour

I declare an interest: I am a member of Unite the union. We might have spent the debate largely reiterating arguments that we have made before, but I make no apology to Alex Johnstone for forcing his party to listen to them, because he is not hearing them. He must understand that we will keep returning to the bill again and again until it is finally discredited and defeated.

Let there be no doubt that, in the end, the bill will be defeated, because even if the UK Government—flying in the face of reason, argument and principles—forces the bill on to the statute book, it will be resisted as law and ultimately repealed. That is the sure and certain fate of legislation such as this, which is unnecessary, undemocratic, inflammatory, petty and vindictive.

The bill is unnecessary because this is a period of modern, partnership trade union organisation, as Mr Johnstone has acknowledged. This is not the winter of discontent. Thirty-five years ago, as many as 29 million working days were lost to strike action in a single year; the total is now barely a hundredth of that figure. The implication of the bill—that the trade union movement is one of mindless militancy—is absurd. The bill is not needed.

The bill is undemocratic because it seeks to impose outrageous thresholds on ballots for strike action, particularly in key public sectors. There are 6 million workers who are members of trade unions, which is more than the membership of any political party, yet one party—the Tories—seeks to manipulate the democratic rights of those 6 million in a way that it would not countenance applying to itself.

The bill is inflammatory because, as many members have said, the changes to ballots will reduce, not increase, the likelihood that disputes will avoid strike action. It will also allow agency staff to be used to replace striking workers. That is the industrial relations of the 19th century, not the 21st century.

The bill is petty because it attacks the simple good practice of check-off and facility time, and it is vindictive because it seeks to cut off a source of income to the Labour Party. That unilateral attack on one party’s funding by another in government has long been considered unacceptable, not least by the likes of Winston Churchill.

Photo of John Wilson John Wilson Independent

In my speech I said that the political funds of many trade unions fund not just the Labour Party but vital work on behalf of those unions’ members. Does Mr Gray accept that?

Photo of Iain Gray Iain Gray Labour

The next sentence of my speech was to recognise that many trade unions that are not affiliated to any party will find their capacity to campaign, not least against such legislation, diminished by the bill’s measures.

Such views are overwhelmingly, if not unanimously, shared across the chamber. It is regrettable then that so many speakers have chosen to use the debate as an opportunity to return to debates about constitutional powers.

I differ from SNP members: I believe that standards of workplace rights should be protected across the United Kingdom. I oppose the bill being applied in Scotland, and I oppose it being applied in London, Manchester, Liverpool, Newcastle and Cardiff, too.

Photo of Iain Gray Iain Gray Labour


To do otherwise is to fail the very principle of solidarity, which underlies the trade union rights that we seek to defend. [Interruption.]

Photo of Iain Gray Iain Gray Labour

I can do no better than to quote the STUC, which said:

“arguing for the devolution of workplace protection is an insufficient response to the Trade Union Bill”, because we would still have to fight its imposition in the rest of the UK.

The Deputy Presiding Officer:

Ms White, I do not think that the member is giving way.

Photo of Iain Gray Iain Gray Labour

To use this struggle as a proxy for the constitutional debate is to betray the unity of opposition to the bill across party lines and national boundaries.

Photo of Iain Gray Iain Gray Labour

To make that the core of the argument—

The Deputy Presiding Officer:

Mr Stewart, please sit down. The member is not giving way.

Photo of Iain Gray Iain Gray Labour

For the SNP to make that the core of its argument, for party purposes, is to betray the interests of 6 million trade unionists.

It is far better to focus on where we agree. Back in December, Labour members and the Government strongly agreed that this Parliament should debate a legislative consent motion on the bill. The argument was clear and as far as we are concerned it remains correct: the bill might not impinge on the Scottish Government’s legislative competence but it certainly impinges on the Scottish Government’s executive competence in health services, education, fire services and elements of transport.

We welcomed the submission of a legislative consent memorandum by the cabinet secretary and we regret the decision that was taken that it was not competent. We remain frustrated that the lack of an LCM leaves the recommendations of the Devolution (Further Powers) Committee and any decision that the Parliament takes tonight without force.

Photo of Iain Gray Iain Gray Labour


Our colleagues in Wales successfully brought a legislative consent motion to the National Assembly for Wales today. We are told that standing orders there are different from ours, which do not allow an LCM on the bill. Our view is clear: if that is the case, our standing orders are wrong and we should change them. That is the thrust of our amendment.

Photo of Iain Gray Iain Gray Labour

I assure Mr Stevenson that our intention is to ask the Standards, Procedures and Public Appointments Committee to find the best way to correct the situation in which we find ourselves and that we are not wedded to a particular amendment. I welcome the Government’s support and that of other members for that approach.

So far, so procedural. There is another, far more fundamental reason why we and the Scottish Government should not only oppose the Trade Union Bill but resist it. Christina McKelvie touched on the issue when she expressed concern about the breach of human rights that the bill constitutes. I agree with her. It is clear to us that the bill breaches article 11 of the European convention on human rights, which says that

“Everyone has the right ... to form and to join trade unions” and that no restrictions can be placed on the exercise of those rights except

“in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”

That test is not met by the bill.

Such rights are embedded in this Parliament in a way that they are not at Westminster, because under the Scotland Act 1998,

“A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights”.

We will continue to pursue legal advice on that point. If the cabinet secretary agrees with and has the political will and determination to found on that view, not only should she reject the bill on moral grounds but she should be obliged to reject it on legal grounds.

There is a long way to go in opposing the bill, whether Mr Johnstone and his colleagues like it or not. We intend to stay the course.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

That was a spirited end to the debate. Iain Gray came close to making me change my mind about the Labour amendment, given the nature of some of the comments in his closing speech. I do not think that they reflected the whole of the debate, however, because it has been valuable and has reinforced a couple of messages. Of course, members come at the issue from slightly different perspectives and it is unfortunate if some members do not respect and understand that.

The first message is that trade unions play an essential progressive role in our society in developing safe, productive and fair workplaces. That point was made eloquently by both Clare Adamson and Patricia Ferguson. The second message is that the bill is misplaced and ill thought out and it presents dangers in undermining those valuable contributions. The almost unanimous opposition to the bill is clear for all to see: it does not exist only in Scotland but is also happening in Wales and indeed in England, where the flaws in the bill, of which there are many, are continually being brought to light. I fear that, if the bill was passed, flaws would continue to be brought to light, perhaps including some that were unforeseen.

The bill is driven not by evidence or a commitment to creating better workplaces but by an out-of-date ideology and a dogmatic opposition to the fundamental principles of trade unions and workers’ rights, and no amount of dressing it up to the contrary is going to persuade anybody of anything different. The refusal to listen is clear in the UK Government's response to the findings of its consultations and in the lack of response to this Government’s representations to the UK Government. Despite its unwillingness to engage, we will continue to make those representations, working alongside all those who share our view.

Today’s debate has shown once again the wide range of ways in which the bill will have a negative impact if it is passed. I would like to reflect on a number of the issues that have been raised.

It is clear from the UK Government’s response to the findings of the consultations supporting the bill that it does not care about the views of the people that the bill will affect. Instead, it is bloody-mindedly determined to drive through the legislation regardless of impact. That scant regard for consultation is reflected in the Government’s response to the findings of the “Consultation on ballot thresholds in important public services”, which some members mentioned this afternoon. A majority of respondents disagreed with the categories that should be subject to the 40 per cent rule, but did the Government take any heed of that? Not a chance.

Kevin Stewart mentioned the BMA’s response to the bill. It describes the plans as “arbitrary” and “unnecessary” and says that they

“place punitive restrictions on workers employed in specified public services.”

It continues:

“Despite the Government’s claim that these measures are ‘not an attempt to ban industrial action’, the purpose of the ‘double threshold’ appears simply to be to make it more difficult for unions to organise industrial action.”

That is what the BMA had to say, but the UK Government chooses to ignore such evidence.

No doubt Alex Johnstone thinks that the BMA—and indeed his Tory Councillor Hendry—are politically motivated. Frankly, however, his analysis in his closing speech, which was interesting, cannot explain why Scotland’s record on industrial relations is so much better than that of the rest of the UK. If the legislation had been so wonderful, one might have expected to see the same kind of change in the rest of the UK, but Scotland stands ahead of all that.

Alex Johnstone might reflect on the measure of this Government’s commitment to working with the STUC and the trade unions that is evidenced in the memorandum of understanding, which sets out the parameters of that relationship. It was first signed in 2002 and has been refreshed a number of times since then, including as recently as May 2015. That is how sensible Governments do things. It is how we achieve what we have in Scotland, and it is the kind of thing that the UK Government should be looking at and considering—if it actually intended to do anything about industrial relations in a partnership way.

I note that, despite Alex Johnstone’s assurances and rhetoric, his speeches were singularly short on actual evidence. He might have taken the opportunity to lay that before us today, but its absence makes it clear once again that there is no such evidence. Bruce Crawford was unable to identify any such evidence, either. The clear lack of evidence, which has now been identified by so many organisations and individuals, must surely make even Alex Johnstone think again. We can conclude, therefore, that, however one might categorise the Conservative Government—many words spring to mind—it is clearly not in the business of evidence-led governing.

Christina McKelvie emphasised how detrimental the Tory Government’s approach is to trade union issues as well as to healthy businesses and productivity, and Lesley Brennan referred to that in respect of the NHS. They are absolutely correct, and that is the view that the Government takes on healthy industrial relations in the workplace leading to healthy and productive workplaces. That view is one of the foundations of both the working together review, which was carried out some years ago, and the fair work convention, which is currently looking at fair work practices. It comes out of the understanding that, without that essential partnership, we will not get the improvements nor the increases in productivity that we seek.

Margaret McDougall mentioned the likely adverse impact of the use of agency workers. She may recall that, in the debate in November, I made it clear that the Scottish Government will absolutely not use agency workers to cover a valid withdrawal of labour. The First Minister reiterated that assurance at the trade union rally on 10 December.

Gordon MacDonald raised the issue of clause 3, which is on emergency workers, who will now need to reach a 40 per cent threshold for their ballot, abstentions being counted as no votes. I wonder why that leaves a bad taste in people’s mouths.

A number of members referred to the LCM process in this Parliament. I understand why members, including Neil Findlay, Margaret McDougall and Patricia Ferguson, want to focus on the issue of parliamentary process. However, I fear that they misunderstand the likely impact of any LCM in the circumstances that we are in with the bill. The assumption appears to be that Westminster will or must abide by a vote of this Parliament on an LCM; the difficulty is that there is uncertainty about that. The LCMs—formerly known as Sewel motions—are a convention that is not mentioned anywhere in the Scotland Act 1998, and, unfortunately, the Scotland Bill that is currently being debated at Westminster does not do anything to strengthen the position and role of LCMs. Leaving aside, for the moment, the issue of the devolution of all relevant employment powers, it might have helped had more attention been paid at the time of the Smith commission to the role of LCMs in the Parliament.

Photo of Neil Findlay Neil Findlay Labour

The cabinet secretary makes a number of fair comments. However, devolution is a developing process—[Interruption.]

Photo of Tricia Marwick Tricia Marwick None

Order. Let us hear the member.

Photo of Neil Findlay Neil Findlay Labour

Well, it is—we all know that. The situation is developing and, if we do not deal with this, it will arise again. It is better that we deal with it now on a cross-party basis to establish the principle.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

The point that I am making is that we must be a little cautious not to overstate the likely potential of LCMs. Reference was made to the Welsh Assembly, which is discussing an LCM this afternoon. However, the difference in the Welsh devolution settlement means that, in practice, there is a different constitutional interpretation from that in the Scottish Parliament when it comes to issues of competence. Sadly, the history of LCMs in Wales suggests that Westminster ignoring the outcomes is an all-too-real experience for our colleagues in Wales. I understand the motivation behind the suggestion, but I want us to be a little cautious about what the process might end up with.

Ultimately, today’s debate will make clear the Scottish Parliament’s opposition to the very idea of consent to the legislation. I sincerely hope that such a clear expression of the will of this Parliament and the voice of the Welsh Assembly will see the UK Government reconsider its position on the bill. To do otherwise would demonstrate little regard for the devolved Parliaments or the impact that the bill will have on industrial relations in the devolved nations.

I understand the challenges to the Parliament’s procedures and recognise the need to consider a mechanism that can allow the Parliament to formally express its view on a reserved matter that impacts on devolved areas. I am happy to engage in any constructive dialogue around that. However, that must be done properly, through the Parliament’s Standards, Procedures and Public Appointments Committee. We must all respect the role of that committee in this as in other matters. Such considerations will, of course, take time. Therefore, for now, our efforts must continue to focus on where we can make the biggest impact. That is why the Scottish Government will continue to make the case directly with the UK Government against the bill extending to Scotland, including through representations from the First Minister directly to the Prime Minister.

Once again, I thank the Devolution (Further Powers) Committee and its convener for the report, which gets right to the heart of the issues, the first of which is a response to the legislation. Let me make it clear that the Scottish Parliament fully endorses the committee’s recommendations and will continue to make the case to the UK Government that the bill has no place in Scotland. If we cannot be fully removed from it, at the very least we should be able to set the regulations that will apply to devolved responsibilities in Scotland. If the UK Government truly respects the will of the Scottish Parliament and the spirit of devolution, it should work with us to reach such a position.