Why the Presiding Officer is wrong on the anti-Union Bill and what Parliament should do about it

At last night’s STUC event in Glasgow, a packed Concert hall heard just why Scotland overwhelmingly opposes the Anti-Union Bill. It showcased all that is great about our movement. From the community justice campaigns highlighted by Aamer Anwar, to the work of young trade unionists in the Better than Zero campaign - tackling the bad bosses who exploit young workers.

It also showed the breadth of political opposition, with Chris Stephens MP and Nicola Sturgeon setting out the SNP’s opposition to the Bill at Westminster and Holyrood. Followed by Jenny Marra MSP for Scottish Labour and, of course, the finale with Jeremy Corbyn. This was classic Corbyn. Reminding us of us of the movement’s history, while raising our eyes to what a different future could look like – Jez We Certainly Can!

Sadly, in the cold light of a dreich day we have the Scottish Parliament’s Presiding officer, raining on the campaign with her letter ruling that a Legislative Consent Motion (LCM) opposing the Bill is not a competent motion.

The LCM is an important part of the campaign in Scotland because it puts the Scottish Parliament into the legislative process. Amendments at Westminster are fine, as are proposals to devolve employment law. However, the timing and the parliamentary arithmetic are against us. With that strategy we are pleading with the Tories – with an LCM we are negotiating with the full political backing of Scotland’s parliament. It is also a more effective contribution to the UK wide campaign against the Bill because it could force the UK Government to amend its provisions.

Another Presiding Officer might have recognised the mood of parliament and used some imagination. George Reid come back, all is forgiven! The clerks have churned out typically conservative advice. They have been blinded by the Bill’s amendment of TULRCA, an Act that is specifically reserved to Westminster in the Scotland Act 1998. This was a deliberate Tory strategy, in part to obviate the need for an LCM they knew they would never get. The Trade Union Bill’s provisions create whole new clauses that didn’t have to go into TULRCA.

Just because that is where they chose to put it doesn’t make it a reserved matter. If the Tories placed new duties on NHS Scotland in a defence bill, it wouldn’t make it a reserved matter. The weakest part of the Presiding Officer’s letter is the claim that the Bill doesn’t impact on Scottish Ministers executive competence. As UK ministers have admitted, this Bill provides for ministers running English departments, like health and local government, to be able to direct the work of Scottish councils and health boards. There can be no clearer example of why at least parts of the Trade Union Bill are clearly devolved.

So, what should Parliament do next? If the Scottish Parliament’s Standing orders are the problem – they should be amended.

One option is to amend Rule 3.1 to give Parliament, say on a two-thirds

majority, the power to challenge a ruling of the Presiding Officer on a motion. There is nothing in s19 or s22 or Schedule 3 of the Scotland Act 1998 that debars this. This is the normal approach in most standing orders and the Scottish Parliament is only following the Westminster procedure in this instant.

  

In the alternative, parliament could amend the Standing Orders to allow Scottish Ministers (or an MSP) to table an LCM in circumstances where they believed one of the tests of a relevant bill has been met. It would then be for parliament, not the Presiding Officer, to agree or otherwise that the tests for an LCM have been met.

There are wider reasons for doing this than simply the Trade Union Bill. The current Standing Orders were drafted in the expectation that the UK government would abide by the spirit and the letter of the Sewell convention - in cases like this that they would initiate an LCM.

This is the first majority Tory government since devolution and they are not playing by the unwritten rules of a parliamentary convention. The Devolution Practice Note says that the UK government should consult where legislation has implications, not just actual legislative competence, and they didn’t. This demonstrates their bad faith. In these circumstances the Scottish Parliament has to have a mechanism for challenging the UK government’s bad behaviour.

Another concern for Parliament should be a conflict of laws. The Trade Union Bill places the Scottish Government and public bodies across Scotland in a potential breach of the Human Rights Act because the Scotland Act requires devolved compliance with that Act’s provisions. Parliament needs a mechanism to raise these matters with Westminster.

As last night’s event demonstrated, there is a great broad based campaign against the Anti-Union Bill in Scotland - in the same way that we opposed the Poll Tax and other measures that challenge our sense of fairness. We must not allow a quirk of parliamentary procedure to stop our Parliament from challenging the legislative competence of the Bill where it impinges on devolved matters.

Jez and others reminded us last night of our history – the scribbling of clerks would not have stopped the giants of our movement. We don’t want another debate – we want our MSPs to take decisive action. Don’t let us down!