Incorporation of Employment Tribunal and Employment Appeal Tribunal into Scottish tribunal system: FOI release

Information requested

“All recorded information held which sets out the current position in respect of the project to incorporate the Employment Tribunal and Employment Appeal Tribunal into the Scottish tribunal system following the power to do so being granted in the Scotland Act 2016, to include correspondence with the SCTS, Scottish judiciary (including the Lord President’s Office and the President of the Scottish Tribunals), Ministry of Justice, HMCTS and the English and Welsh judiciary (including their office) and briefings provided to Scottish Ministers and Junior Scottish Ministers”.

Response

I attach a copy of some of the information you requested.

The current position is that the devolution of the employment tribunal and employment appeal tribunal to the Scottish Tribunals is under discussion between the Scottish Government and UK Government. Discussions are ongoing, including with members of the senior judiciary, to understand how the transfer will work. The last meeting of the Judicial Working Group was held in July 2021. The Judicial Working Group includes senior members of the reserved judiciary, the President of the Scottish Tribunals, representatives from Judicial Office, the Ministry of Justice and the Scottish Government and it’s role is to advise. A further meeting will be convened when an amended draft of the Order in Council is available for discussion.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections 29(1)(a) (formulation or development of government policy), 30(b)(i) (free and frank provision of advice), 30(b)(ii) (free and frank exchange of views for the purposes of deliberation), 30(c) (effective conduct of public affairs) and 38(1) (b) (personal information of a third party) apply to that information. The reasons why those exemptions apply are explained in the Annex to this letter.

ANNEX A
INFORMATION PROVIDED

Date
June 2021	Scottish Tribunals Forum – June 2021 Minute
21 July 2021	Email exchange between Scottish Government and Judicial Office
23 July 2021	Email from Judicial Office with agenda for meeting Agenda for meeting of Judicial Working Group 26 July 2021
26 July 2021	Internal Scottish Government email in relation to the meeting of the Judicial Working Group
10 August 2021	Minutes of the Employment Tribunal (Scotland) National User Group – these have not been released as they are publicly available at Employment Tribunals (Scotland) National User Group minutes 10 August 2021 - GOV.UK (www.gov.uk)
2 September 2021	Submission to Minister for Just Transition, Employment and Fair Work in relation to Employment Tribunals
17 September 2021	Emails from Scottish Government to Judicial Office dated 17 August and 17 September 2021
7 October 2021	Submission to Minister for Community Safety on the Devolution of Reserved Tribunals
Various dates	Email chain between Scottish Government and Ministry of Justice – emails dated 8 September 2021 28 September 2021 30 September 2021 21 October 2021 22 October 2021 24 November 2021
1 November 2021	Email from Ministry of Justice to Scottish Government
23 November 2021	Internal briefing for meeting with President of the Scottish Tribunals
November 2021	Policy Teams Update November 2021
2 December 2021	Scottish Tribunal Forum Update 2 December 2021

REASONS FOR NOT PROVIDING INFORMATION

Exemptions under sections 29(1)(a), 30(b)(i), 30(b)(ii) and 30(c) of FOISA apply to some of the information you have requested. This means that some of the information requested:

• Relates to the formulation or development of Scottish Government policy; or
• Would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation; or
• Would be likely to prejudice substantially the effective conduct of public affairs.

The policy in relation to the devolution of the employment tribunal and employment appeal tribunal is still being developed and discussions are ongoing between the Scottish and UK Governments to agree how the transfer should operate. Discussions are also taking place with the Judicial Working Group. The above exemptions are subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government. However, there is a greater public interest in allowing administrations, Ministers and officials a private space within which to communicate. Disclosure is likely to hinder the development of policy and undermine the full and frank discussion of issues, which will in turn undermine the decision making process, which would not be in the public interest. Further, it would be inappropriate to disclose information about the detail of this project in circumstances where the policy is still being formulated and is under discussion; officials are still in discussion with officials from the UK Government; this information has not yet been shared with the tribunals judiciary; some of the policy relates to terms and conditions of employment which are still being discussed between officials.

Additionally, an exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, i.e. names/contact details of individuals, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

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FOI - 202100261905 - Information Released - Annex B

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59 page PDF

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