So, the big boy did it and ran away.
That does not mean that you do not pick up the dustpan and brush and sort out the mess left behind, does it?
We all know the Trade Union Bill is an utter abomination of a piece of legislation. I do not think any other Act of Parliament of recent years has so obviously or so unashamedly set out to attack the rights of individuals or do deliberate violence to lawfully formed and democratically operating groups within society. Sadly, that is what you get when you vote for a right wing Conservative Party at Westminster.
But that does not mean that we in Scotland, and most importantly, our political leaders at Holyrood should do nothing; mumping, moaning, playing the “if only” violin but doing nothing of any practical import to make things better.
The Scottish Government is on record saying the Trade Union Bill is a terrible thing. I, of course, agree with that. They are on record as saying they would immediately reverse it if employment law was devolved to the Scottish Parliament. Everyone in Scotland agrees with that. The Scottish Government is on record as saying the Smith Commission has not delivered enough and that trade union and collective employment rights should be immediately be devolved to the Scottish Parliament. I wholly endorse that view and would go as far as to say that all areas of employment law, health and safety and equalities should be immediately devolved to the Scottish Parliament. Talk is, however, not only cheap; in this context, it is woefully inadequate. The Trade Union Bill and the damage that it will do to working people and trades unions is now. Politically grandstanding about how different things would be in Scotland if only we had more powers could be viewed as a cynical ploy. A cynical person might suggest that the SNPs comments are more about driving the referendum debate than it is about actually making a difference.
On this, we must judge the Scottish Government not by their words but by their actions; and in my opinion there are clearly actions which can and must be taken.
The Scottish Government may not be able to wholly reverse the Bill but with political will, imagination and a steely determination to stand up to Westminster, there are things that can be done to significantly lessen the blow of the Trade Union Bill.
Firstly, the Scottish Government must ensure that there is a Legislative Consent Motion at the Scottish Parliament. It is clear that the impact of the Bill is such that it does require such a Motion. The Motion must reject the Trade Union Bill and the Scottish Government lawyers should be looking to see what avenues they have open to them by the constitutional crisis that would be thrown up by the Scottish Parliament rejecting the Bill at an LCM but Westminster carrying regardless. Scotland, the Scottish Government and lawyers would be in uncharted waters and they should be throwing all of their resources at the issue.
Secondly, the Scottish Government lawyers should be looking at other means of challenging the Bill, not under the Scotland Acts but instead under Human Rights legislation and perhaps also competition law. The law is clear that companies have human rights and so, it seems logical therefore, must the Scottish Government and our local authorities. The Trade Union Bill forces the Scottish Government, the NHS and their local authorities to abandon check-off. They do not, because they cannot, force private companies to do the same. Forcing the Scottish Government and local authorities to operate commercially in a different way to private companies must trigger a challenge.
Thirdly, the Scottish Government can take practical steps to ignore the Bill. A strike is only illegal if it is successfully challenged by an employer. The Scottish Government can choose not to challenge industrial action with certain parameters of voting turn out and outcome even if they could make a challenge under the new legislation. The Scottish Government could and should reduce such a commitment to a binding agreement with their employees’ trade unions. Through their concordat with local authorities, the Scottish Government should require, as part of the concordat, every local authority to do the same.
Similarly, the Scottish Government could and should make a binding statement of policy reduced to a similar agreement with trade unions that they will never use casual or similar labour to break strikes, irrespective of what the new law says.
Finally, and in a similar vein, the Bill cannot stop the Scottish Government using check-off. It simply provides that the Scottish Government and local authorities will be fined if they use check-off. The answer on that one then is abundantly clear: the Scottish Government should continue to use check-off and simply pay the fine. The fines will require to be proportionate and will therefore not be overly burdensome. Again, through the concordat, they should encourage local authorities to do the same. Indeed, there is an argument that the Scottish Government should simply find the funds to pay the local authorities for any fines they receive for continuing to use check-off by increasing the funding made available to local authorities each year.
So while every trade union member and activist in Scotland will have welcomed the Scottish Government’s words on the Trade Union Bill, none of them will forgive the Scottish Government if they fail to take some or all of the practical steps set out above. The Scottish Government must show real solidarity with the trade union movement by standing up to Westminster and, if it comes, sharing some of the pain of the Trade Union Bill by paying fines and making clear commitments about circumstances where they will not challenge industrial action.