On Friday night I had the strange experience – which many other Scots will share this evening – of addressing a pile of offal tied up in a sheep’s stomach, in front of a captive audience. Since then I’ve been wondering: will Scotland’s First Minister, Alex Salmond, be reciting Robert Burns’ ‘Address to a Haggis’ tonight? And if so, as he plunges a sharp knife into its ‘honest, sonsie face’, will he pause to reflect on the impact that Scottish independence may have on the system of employment law in the UK?
Unlikely, of course. The ramifications for our legal systems are a small consideration in the huge crucible of issues surrounding the Scottish Government’s planned 2014 referendum on negotiating independence from the UK – and Alex Salmond will have plenty of deeper concerns on his mind when he launches the Scottish Government’s proposals for an independence referendum at Holyrood this afternoon. Besides, at first glance, it doesn’t seem that big an issue. Scotland has had an autonomous legal jurisdiction for 300 years. The court system is separate from that of England and Wales: appeals from the Sheriff Courts and Scottish EAT are to the Court of Session in Edinburgh. Scots law is distinct. And (as an ill-informed fellow-student of mine at Edinburgh University learnt to her cost twenty years ago) studying law in Scotland doesn’t qualify you to practise in London.
But the prospect of an independent Scotland does raise implications for employment law. Take the court system. Currently, the Supreme Court in London is the final court of appeal in civil cases for the whole of the UK, including Scotland. If Scotland became independent, it wouldn’t continue to cede judicial decision-making to a court dominated by English Justices. But what would happen instead? Would appeals simply stop at the Inner House of the Court of Session, currently the highest court of appeal in Scotland? Would a ‘Scottish Chamber’ of the Supreme Court be created (as suggested in the White Paper on constitutional reform)? Or would Scotland acquire (no doubt at some expense) its own Supreme Court, like other Commonwealth countries? And if appeals were no longer pursued to the UK Supreme Court, would its current Deputy President, Lord Hope of Craighead (and any other Scottish Justices then ensconced there) be booted out? A disturbing prospect.
As for the employment tribunal system itself, Scottish independence would require an unprecedented scale of reform (tribunal chairmen may wish to look away at this point). HM Court and Tribunal Service in its current formation treats the employment tribunals in England, Wales and Scotland as part of a single network. Since 2004 the procedural rules across the two jurisdictions have been unified. And ‘Scottish EAT’ is something of a misnomer for the EAT (a single court) sitting in its Edinburgh venue. It wouldn’t be impossible to break up the current system in order to establish a self-contained Scottish tribunal service, but it would be something akin to root canal treatment.
Perhaps the biggest question is what would happen if an independent Scotland were not admitted to the European Union – a worst case scenario, but still a theoretical possibility. This would of course be disastrous for Scotland economically and politically, but the implications for Scottish jurisprudence would be tortuous to unravel. There are times, for many lawyers, when the prospect of freedom from the authority of the European Court of Justice causes the eye to gleam – but in reality, our legislation and judicial decision-making are so inextricably intertwined with EU law that the consequences of losing EU membership are almost unthinkable. (Discuss.)
The UK Parliament would no longer be able to legislate for an independent Scotland. However, assuming that both Parliaments continued to cede sovereignty over employment matters to the EU, and to give effect to human rights under the European Convention, one suspects that we wouldn’t actually notice a great deal of change to employment law in either jurisdiction. And – decisions of the Supreme Court aside – the system of legal precedent in Scotland is already pretty distinct from that of England and Wales. Decisions of the Court of Appeal are only persuasive, not binding, in Scotland, as are decisions of the Inner House of the Court of Session in England and Wales. Just last November, the then President of the EAT, Mr Justice Underhill, was bemoaning the fact that he was unable to adopt the Scottish practice of dealing with aggravated damages – Commissioner of Police of the Metropolis v Shaw.
In practice, tribunals in either jurisdiction will ordinarily adopt decisions of the higher appeal court in the other jurisdiction where the point confronting them is indistinguishable – but a similar approach is arguably already taken with respect to decisions from the higher courts of other Commonwealth states. In JGE v English Province of Our Lady of Charity and anor, for example, the High Court recently drew assistance from a decision of the Supreme Court of Canada in concluding that a Catholic diocese could be vicariously liable for a priest’s actions.
In fact, an entire separation of the two jurisdictions would arguably not be a bad thing, in that it would avoid the unsatisfactory dilemma, highlighted in Clarke v Frank Staddon Ltd and Caulfield and ors v Marshalls Clay Products Ltd, of how employment tribunals and the EAT should reconcile contradictory decisions of the Court of Appeal and the Court of Session.
Scotland may never become independent. If it does, it won’t be for many years. But before then, there are clearly a number of issues that need to be given some thought by those involved in the justice systems on both sides of the border.