Equality rights in the UK have been intimately connected to the EU. The withdrawal of the UK from the EU raises serious legal issues for the protection of the right to equality. Unlike other jurisdictions, the right to equality in the UK is not protected by a constitutional bill of rights which would limit the extent to which equality could be eroded by Parliamentary legislation.
Thus far – and prior to Brexit – EU law has performed a similar function to a such constitutional guarantee, as EU equality law is binding on Parliament. In some cases it can be enforced directly in UK courts; it can also be used to disapply legislation which fails to meet the standards of EU law.
After Brexit, there will be no obstacle to Parliament repealing or undermining the fundamental right to equality, currently largely contained in the Equality Act 2010 (EA). Even more concerning are proposed powers to be given to the executive by the EU Withdrawal Bill to amend primary legislation without full Parliamentary scrutiny (so-called Henry VIII clauses). This could include the power to amend aspects of equality law without full Parliamentary safeguards.
The impact of Brexit on equality demands sophisticated and considered responses. Professor Sandra Fredman (University of Oxford), Professor Alison Young (University of Oxford), and Dr Meghan Campbell (University of Birmingham) hosted The Impact of Brexit on Equality Rights Workshop to bring together these different perspectives to consider legal and political strategies on the future of equality rights in the UK. This blog post canvasses the issues discussed at the workshop.
Protecting the EA
One way of protecting the EA might be to include a preamble, requiring courts to take a purposive approach to the right to equality. Directing the court to take a value-laden approach to the EA could send a clear signal of the central importance of ensuring a robust right to equality. However, a preamble could increase uncertainty as the clause itself could be unclear on the direction equality rights should go.
Leaving the EU should not be an opportunity to roll-back equality guarantees. The Withdrawal Bill worryingly gives power to ministers to make amendments to retained EU law that was incorporated into the UK via secondary or delegated legislation. To counteract this risk, measures such as requiring a ministerial statements saying proposed legislation does not reduce equality, or a provision prohibiting equality rights from being substantially altered by delegated powers, should be incorporated into the Bill.
Role of CJEU and EU Charter
The Withdrawal Bill incorporates past CJEU jurisprudence into domestic law as retained EU law. Going forward, the Withdrawal Bill provides that courts may consider CJEU case law when appropriate. When should UK courts look to the CJEU? What mechanisms need to be in place to foster good relations between these courts? One approach is to provide that the UK courts should ‘have regard’ to CJEU jurisprudence when there is doubt on a specific equality issue that the CJEU has previously considered. Furthermore, it is crucial that UK courts are aware of developments in Luxembourg. There needs to be a commitment to continue to teach EU law in law schools. This can ensure lawyers bring this comparative jurisprudence to the attention of UK courts.
The EU Charter of Fundamental Rights (EU Charter) is specifically excluded in the Withdrawal Bill. Given that the EU Charter is binding on the CJEU, it is possible that incorporating past and using future CJEU jurisprudence in UK courts would result in a de facto incorporation of the EU Charter into the UK. How will the UK courts confront this challenge? It was felt that these complexities had not been sufficiently considered by the government.
Equality and the HRA 1998
It is difficult to predict the role that the Human Rights Act 1998 might play in relation to the lacuna left by leaving the EU. It is constantly under political attack and although it has had significant traction in relation to some rights, such as those in right to family and private life (Article 8 of the ECHR), it does not apply in any straightforward way to employment as current EU law does. It is unwise to pin too much hope on the HRA 1998.
Brexit is not a chance to a return to the arguments that workers’ rights and rights to equality are too costly to protect. It is necessary to present counter-arguments that equality is good for business and is a fundamental, not optional, human right. There is a worry that without the binding force of EU law these rights can be retracted post-Brexit simply through executive action.
The workshop addressed crucial questions that need to be considered so that Brexit does not result in a diminution of the right to equality. Difficult challenges must be addressed openly and given careful consideration. Equality is a right, not a hand-out or a tool for political negotiations. It is a fundamental commitment and it is binding. Only by placing the value of equality at the core of the withdrawal process can Brexit work for all people in the UK.
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.