A briefing paper on the legal issues surrounding a Scottish independence referendum
Current legal position
Employment law is currently a reserved matter in Scotland, under Schedule 5, Head H of the Scotland Act 1998, covering employment (employment and industrial relations, health and safety, non-devolved job search and support).
For more detail on the operation of reserved versus devolved matters in law, see the Library briefing on Reserved matters in the United Kingdom. As discussed in that briefing paper, there have been instances where the reservation of law under Head H has conflicted with a desire to legislate on the part of the Scottish Government:
Occasionally, Scottish Ministers have dropped planned legislation after concluding it would fall outside competence. In July 2006, the reservation of health and safety law under Head H led the then Scottish Executive to conclude that the introduction of a new criminal offence of corporate homicide would be a reserved matter.
Like in Scotland, employment law is also a reserved matter in Wales. However, employment and discrimination law was devolved to the Northern Ireland Assembly under the Northern Ireland Act 1998 following the Good Friday Agreement.
The Labour Relations Agency, responsible for providing guidance on employment law in Northern Ireland, provides a table outlining Key differences in employment law between NI and GB – April 2022.
Law firm Lewis Silkin provides a more comprehensive downloadable comparative table of GB and NI employment laws as of November 2021. As Lewis Silkin describes, there has been a growing divergence in employment law between Great Britain and Northern Ireland since about 2010:
As part of the Good Friday Agreement, NI employment and discrimination law were largely devolved to the new NI institutions. For the first few years this did not make any material difference to the employment laws being passed by the Assembly in NI, which continued to mirror those in GB. However, during the period from around 2010, the position has diverged considerably. Perhaps the word ‘diverge’ is not exactly appropriate because, in many ways what has happened is that, with a few exceptions, employment and discrimination law in NI has remained static, while there have been continuing significant changes in GB.
IWD: For gender equality, we must devolve employment law, The Herald, 8 March 2022
Labour attack on SNP backfires due to devolution confusion, The National, 3 January 2022
SNP calls on Westminster to improve or devolve employment law to tackle sexism, Independent, 30 December 2021
Fury after SNP demand full devolution of ‘employment powers’ to Holyrood, Daily Record, 6 June 2021
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