Ensuring strong equalities legislation after the EU exit Contents

1The Government’s policy and our inquiry

1.Equality is a fundamental tenet of modern British values and identity. Accordingly, the UK has a strong track record in developing equality protections in law. During the UK’s membership of the EU, EU equality legislation has often come about through existing UK law and the UK leading the way. Professor Sandra Fredman of the Oxford Human Rights Hub told us that:

there is an excellent record from Parliament on equalities legislation.
[ … ] we should also say that much of the EU law that we have received and incorporated is also our law, because we have participated in the input to it.1

2.However, while the EU has been responsible for setting minimum standards in many areas of law, in equalities the UK has also gone beyond the required minimum in some areas. Dr Panos Kapotas and Dr James Hand of the University of Portsmouth gave some examples:

The 2003 expansion of protected characteristics to cover sexual orientation and religion or belief (and the extension to age three years later) was the result of European law. However, the extension to cover goods and services saw British law precede the EU (as was also the case with regard to disability protection and the wider definition of race).2

3.The UK’s strong record was reflected in the comments of the Minister for Women and Equalities in evidence to us in January 2017. Invited to speak about the issues being considered by the Government Equalities Office in relation to leaving the EU, the Minister told us that:

our existing legal basis for looking at and maintaining equality in the UK is strong. We should be proud of it, but we will play a role through those Brexit negotiations to make sure that that is absolutely maintained post the exit from the EU. [ … ] we already have our strong equalities legislation in place. Therefore, our leaving the European Union does not affect that per se.3

4.In October 2016, the Government announced plans to introduce a Great Repeal Bill, which will be the legislation required to repeal the European Communities Act 1972 and formally sever the ties between the EU and the UK. The second proposed function of the Bill is:

[to] preserve EU law where it stands at the moment before we leave the EU. Parliament (and, where appropriate, the devolved legislatures) will then be able to decide which elements of that law to keep, amend or repeal once we have left the EU. The UK courts will then apply those decisions of Parliament and the devolved legislatures.4

5.Few details about the Bill are currently available, but the Government has made it clear that it intends to maintain the status quo and ensure that as little as possible changes at the point of leaving the EU. The Government’s White Paper, The United Kingdom’s exit from and new relationship with the European Union, explains that:

wherever practical and appropriate, the same rules and laws will apply on the day after we leave the EU as they did before. This approach will preserve the rights and obligations that already exist in the UK under EU law and provide a secure basis for future changes to our domestic law. This [ … ] provides fairness to individuals whose rights and obligations will not be subject to sudden change.5

6.The Government has emphasised in particular its intention to ensure the continued protection of workers’ rights. The White Paper states:

The Great Repeal Bill will maintain the protections and standards that benefit workers. Moreover, this Government has committed not only to safeguard the rights of workers set out in European legislation, but to enhance them.6

The White Paper further states that the Government is committed to strengthening workers’ rights “when it is the right choice for UK workers and will continue to seek out opportunities to enhance protections.”7

7.Despite these clearly expressed intentions, however, evidence to our inquiry suggests that ensuring and developing equality and workers’ rights as ministers want is more complex than simply transposing law. The way legal and administrative structures within which UK equality protections currently operate and develop will change when the UK leaves the EU and this also needs to be tackled. Since the UK entered the European Economic Community (now the EU) in 1973, EU and UK equality law and policy development have become deeply interdependent. EU mechanisms have been influenced by UK law whilst also playing an important role in developing and strengthening equality protection in the UK.

8.The work of the Court of Justice of the EU (CJEU) has been particularly important in providing, in effect, an absolute backstop for equalities. It is the final court of appeal for EU-related cases. National courts are obliged to give effect to its judgments and to disapply any national laws that conflict with EU law as interpreted by the Court. The Government has emphasised that:

We are not leaving the European Union only to return to the jurisdiction of the European Court of Justice. [ … ] the Equality Act 2010 incorporates relevant existing CJEU judgments and Government will continue to monitor such judgments being made by the European Court for any implications these may have for the Act until the point when EU law ceases to apply.8

Leaving the jurisdiction of the Court of Justice of the EU (CJEU) makes it all the more important that the UK’s own domestic equality laws are as strong as they can possibly be. Final responsibility for interpreting these laws will be brought back to UK courts. This issue is discussed further in Chapter 2.

9.The two-way relationship between the UK and the EU has been evident in policy as well as law. Evidence to our inquiry acknowledged that the origins of equal pay, for instance, are largely attributable to UK campaigners, but the key concepts underpinning the law were broadened and developed in the EU and internationally.9 Professor Fredman commented:

Although we did have equal pay, the concept of equal work for equal value came in through EU law, which is also an international standard through the International Labour Organisation. Protection for part-time workers has come from EU law, but again it is something that the UK participated in strongly, because protection for part-time workers came out of what has been called social dialogue, which was an agreement between European trade unions and the European employers’ associations.10

10.The evidence we received throughout this inquiry reinforces the message that, as far as equalities law and policies are concerned, the UK has had a strong record, and often EU legislation has come about as a result of UK leadership. Because of its structures, the EU has become the source of absolute equality protection in the UK.

11.There are a number of examples of this interdependency. Pregnant women in the UK have benefitted in a range of ways from how partnership working has developed between the UK and EU on maternity and parental rights. It is as a result of EU law that pregnant women are entitled to paid time off work for ante-natal appointments and are protected from being dismissed as a result of pregnancy. Disabled people have also benefitted from the UK’s membership of the EU, for example, they must be given assistance at airports. It is protections such as these that the UK will want to continue to enhance and develop once the UK leaves the EU.

12.This blending of EU and UK protections has led our witnesses to recommend that the process of decoupling domestic legislation is complex and needs to be done carefully in order to ensure that there is no unintentional regression in rights, protections or policy development. We received and have reflected on many suggestions on how the Government can ensure that equality protections are maintained after leaving the EU.

13.It is clear that the Government’s policy intention is that there should be no erosion of the UK’s equalities protections at the point of leaving the European Union. Our aim in conducting this inquiry has been to ensure that the goal of no erosion of rights and protections is attained. Where potential pitfalls have been identified, we have sought to suggest remedies.

About our inquiry

14.We launched our inquiry on 14 October 2016. We had held a one-off evidence session in September 2016 where we heard from Professor Aileen McColgan and Professor Catherine Barnard, academics in the fields of equality and European law. That session highlighted the need for further evidence on the potential effects of leaving the EU on equalities policy and law in the UK.

15.We held two further oral evidence sessions. In the first session we heard from witnesses about the legal framework for equalities once the UK is outside the EU. In the second, we heard from witnesses about the role of civil society in policy development on equalities during the negotiations for leaving the EU and once the UK is outside the EU, as well as funding for and research on equalities. We also heard from the Equality and Human Rights Commission about its role in protecting equalities and its recommendations to Government in respect of this. We then questioned the Minister for Women and Equalities, Rt Hon Justine Greening MP, in the course of a general evidence session in January 2017. Finally, we have received 44 written submissions from individuals, grassroots organisations, charities, legal experts and universities.

16.The scope of the inquiry has been necessarily narrow to avoid duplication with the work of other Parliamentary bodies. The Joint Committee on Human Rights, for example, published a report in December 2016 looking at the human rights implications of leaving the EU.11 Our report focuses largely on legal protections, rather than equality policy more broadly, and also does not deal with issues of devolved administration, for example issues specific to Northern Ireland.

17.We would like to thank our specialist advisers, Professor Colm O’Cinneide12 and Sheila Rogers13 for their invaluable support and advice throughout the inquiry. We would also like to thank all those who gave oral and written evidence, and especially witnesses in the first oral evidence session, Karon Monaghan QC and Professor Sandra Fredman QC, who provided further assistance and ideas after giving evidence.

18.This report provides an initial consideration of some of the options and opportunities that may arise during the process of leaving the EU. We intend to continue to monitor and contribute to the process as it unfolds. The next chapter gives an overview of how the UK and EU systems of equalities protections interact, with a focus on law, other international mechanisms that shape the equalities landscape, where gaps might emerge as a result of leaving the EU, and some possible ways of responding to those gaps. Chapters 3 and 4 consider some of the implications for civil society, policy-making, research and funding.

1 Q2

2 Dr James Hand and Dr Panos Kapotas (OEU0010) para 5

3 Oral evidence taken on 18 January 2017, HC (2016–17) 933, Q10

8 UK Government (OEU0026)

9 See also Q40 [Professor Walby]

10 Q2

11 Joint Committee on Human Rights, Fifth Report of Session 2016–17, The rights implications of Brexit, HC 695/HL Paper 88

12 No relevant interests declared

13 No relevant interests declared

24 February 2017