Plans for a raft of tribunals to be devolved to Scotland as part of the Smith Commission have been delayed for at least a further two years.
The Scottish Government was due to take over the operation of several reserved tribunals – including employment disputes - in 2020, but, as The Herald revealed last year, this was initially pushed back to 2022.
A recent report from the president of the Scottish Tribunals makes it clear that there will now be a further delay until 2024 “at the earliest” – some ten years after the Smith Commission was published.
The delay was revealed after the Scottish Government’s social justice secretary Shona Robison called for Holyrood’s opposition parties to back full devolution of employment policies, prompting criticism of ministers failure to implement powers already devolved.
The Scottish Government said it remains committed to the devolution of reserved tribunals, adding that it is dependent on the UK Government to progress the legislation.
However, trade unionists and legal professionals said they were “disappointed” by the further delay to the transfer of powers and called on the government to push for the changes as a matter of priority.
Dave Moxham, deputy general secretary of the Scottish Trades Union Congress (STUC), said: “2024 is a full decade since this was included in the Smith proposal and from our point of view, this is disappointing.
“The Scottish Government has said it is committed to doing everything it can in the field of fair employment, so we will now be looking for an immediate meeting to discuss this.”
He added that devolving the tribunals from Westminster would give Scottish ministers control over the quality of tribunals and the resources put into the service.
Pat Rafferty, Scottish secretary for trade union Unite, added that the delay was “shameful”.
He said: “The repeated delays and lack of prioritisation given to the devolution of employment tribunals by the Scottish Government is baffling.
“Trade unions have repeatedly raised this issue as a key area in which the Scottish Government should be accelerating every tool at their disposal to protect and safeguard workers.”
The transfer of tribunals was put in place as part of several measures designed to increase devolution following the 2014 Independence Referendum.
The Smith Agreement stated that “all powers over the management and operation” of reserved tribunals should be devolved to the Scottish Parliament.
The Scottish Tribunals report, by president Lady Smith, states that while a draft order in council – the means by which devolution will take place – has almost been completed, progress is moving at a “slow pace”.
It also raises a number of issues which need to be addressed, including no funding being in place “for either the transitional period or the operation of these tribunals thereafter” and no clear proposals on what terms and conditions tribunal judges will receive when they transfer over.
Employment solicitor David Martyn, a partner at Thompsons Solicitors, said the Scottish Government appears to have lost the impetus to press ahead with devolving tribunals after the UK Government was forced to scrap fees for raising employment proceedings.
The Scottish Government had committed to stopping the fees if proceedings were devolved, but a court ruling meant they were withdrawn before that happened.
Mr Martyn claimed that this meant devolving the hearings was “not as much of a political carrot”.
He added: “It’s disappointing because it wasn’t just about the fees, it was also an opportunity to make changes to the rules of procedure and improve access to justice.”
Read more: Judges hit out at plans for devolution of employment tribunals to Scotland
The Scottish Conservatives, who earlier this week criticised Ms Robison’s calls for further devolution, said: “The SNP talk a good game when it comes to devolved powers but they have completely broken their promises.
“Their failure to set up and control employment tribunals in Scotland is just the latest example.
“The SNP fancifully told us they could set up an independent Scotland in 18 months yet they will take a decade to even start using many significant powers they already have.
“Time and time again, SNP Ministers are letting down the people they claim to be standing up for. They owe them an apology and to start using their significant devolved responsibilities without any further hesitation.”
A Scottish Government spokesperson said: “The Scottish Government has made clear its commitment to completing the devolution of reserved tribunals, in line with the Smith recommendations, however we are dependent upon the UK Government to make progress with the necessary legislation.
“We continue to work with Ministry of Justice, reserved and devolved judiciary, and the Scottish Courts and Tribunal Service to develop proposals and will undertake widespread engagement and consultation on the details.”
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