Very little scope for tribunal devolution

The Scotland Bill doesn’t offer much, says Euan Bruce
Members of the Scottish Parliament at Holyrood. Picture: Andrew CowanMembers of the Scottish Parliament at Holyrood. Picture: Andrew Cowan
Members of the Scottish Parliament at Holyrood. Picture: Andrew Cowan

The devolution of employment tribunals to the Scottish government has been on the political agenda for a number of years. At present, there is a distinct Scottish Employment Tribunal service. However, this sits as part of the UK Employment Tribunal and the system is governed by a single set of rules. Those rules are currently a reserved matter for the UK government at Westminster.

The former UK coalition was responsible for the introduction of a raft of procedural measures, which were intended to result in a fairer employment tribunal system. Chief amongst these measures was the introduction of fees to issue claims for the first time. These fees were intended to act as a safeguard against vexatious claims being brought against employers but have increasingly been viewed as also amounting to a barrier preventing access to justice for many.

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The Scottish Government has been vocal in its criticism of the approach taken by Westminster in relation to employee rights. With the post-referendum promise of greater devolution and the publication of the Smith Commission Report there is a real possibility that such changes could be on the horizon.

The Smith Commission

The Scottish Government’s ability to implement real change in this area will be dependent upon the extent to which the recommendations of the Smith Commission are implemented through the Scotland Bill.

The recommendation of the Smith Commission in relation to tribunals is that “all powers over the management and operation of reserved tribunals (which includes administrative, judicial and legislative powers) will be devolved.”

Following this recommendation, the UK government would retain control of employment legislation. However, the Scottish Government would gain the ability to alter the procedural rules governing access to the employment tribunal system and to change the way in which the tribunals operate.

As demonstrated by the drop in tribunal claims over the past two years, these changes to the underlying policy position can have a significant effect for users of the system. If the Scottish Government were to remove fees or even reduce their level, then this alone would immediately make the Scottish employment tribunal much more accessible to claimants. Beyond that there would be scope for any number of changes to the way in which tribunals operate, which could result in a very different tribunal system to the one currently seen across the UK.

The Scotland Bill

However, the prospect of the Scottish Government having the freedom to make a dramatic change to the tribunal process is, at present, limited. The reason for this is because the Scotland Bill, in its current form, does not go as far as the Smith Commission proposes.

Under the wording of the draft Bill, the devolution of the employment tribunals would be subject to significant caveats. These would mean that the UK government would retain the power to modify the function and composition of a Scottish Tribunal, together with the rules of procedure and anything to do with staff or accommodation. These caveats are intended to promote consistency across tribunals in the UK. However, for the Scottish Government they serve as a significant restriction on the potential to implement real change and the opportunity to address the concerns above.

So what does the future look like?

The Bill will be debated at length before it is finalised. However, if it proceeds in its current form there is little real clarity of what the future holds. The debate on the Bill itself would likely be followed by constant uncertainty over what changes might be introduced (whether by the Scottish or UK government) and whether they could be subsequently overruled or amended.

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In its current form, the Scotland Bill achieves only a partial devolution of the employment tribunals. Given the UK government’s stance to date, there seems little scope for this changing. The current proposals would certainly give some more freedom to the Scottish government. However, it would fall far short of granting devolution in full and massively limit the potential impact as a result.

• Euan Bruce is an associate in the employment team at DLA Piper in Scotland