Ensuring strong equalities legislation after the EU exit Contents

2Retaining the UK’s strong legal equalities protections after exiting the EU

The UK’s relationship with the EU and other international institutions in relation to equalities

19.Most current equality law in the UK comes from three sources of law:

a)domestic law: parliamentary legislation and case law from UK courts. The Equality Act 2010 is the most comprehensive UK-based law dealing with equality;

b)EU law: as legislation of the Council of the EU and the EU Parliament and case law of the Court of Justice of the EU (CJEU); and

c)agreements made between members of the Council of Europe, in particular case law from the European Court of Human Rights hearing individual claims based on the European Convention on Human Rights (ECHR).

The UK’s membership of the Council of Europe will not be affected by leaving the EU; this means that the rights enshrined in the ECHR, as incorporated in the Human Rights Act 1998, will continue to have effect in the UK. In this respect, nothing will change.

International treaties and agreements

20.The UK is a signatory to a number of international treaties and agreements that impact on equalities, including the Sustainable Development Goals, the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the Convention on the Rights of Persons with Disabilities (CRPD). The UK’s obligations under these will not change as a result of leaving the EU. These treaties are binding in international law, but do not take direct effect in domestic law in the same way as EU law. Professor Sandra Fredman of the Oxford Human Rights Hub outlined the limited effect of many international treaties:

International law differs from EU law in that the way it works in this country, and in lots of countries actually, is that the UK is bound at an international level by its international obligations but it does not become part of domestic law until Parliament passes a statute, which then makes it binding in domestic law [ … ]. That means that compliance with the Convention on the Elimination of all Forms of Discrimination against Women—CEDAW—or the race convention, disability convention and so on are really things that the state has to show other states that it has complied with. It is very difficult for individuals in the country itself to go to court or anywhere and say, “My right under this international convention has been breached.”14

21.Evidence to our inquiry suggested that, as the UK prepares to leave the EU and seeks to establish new relationships outside it, there will be a need to continue to look beyond the UK’s borders to international equality agreements which—despite their legal limitations—can help the UK hold itself to the highest standards.

The UK’s relationship with the EU on equality law

22.Domestic and EU equality law have had a symbiotic history since the UK became an EU member.15 In some cases, UK law preceded EU law and the UK was seen as leading the way for future EU legislation, whereas, in some cases, EU law has had to be incorporated into UK law in various ways.

23.Some EU law arrives into UK law through directly applicable legislation. This includes the EU Treaties that apply directly to the UK by virtue of the European Communities Act 1972 (ECA1972) and also the European Charter of Fundamental Rights, which is discussed in more detail below. Various regulations also apply directly to the UK, but few of these relate directly to equality and non-discrimination. Some of those that do are discussed below.

24.After leaving the EU, these laws will either need to be transposed into UK law through the Great Repeal Bill—or some other mechanism—or they will simply fall away and will no longer have any application in the UK.

25.A second way in which EU law becomes UK law is through directives. Directives do not automatically apply in the UK, but rather have to be implemented either through primary or secondary UK legislation. The Equality Act 2010 is primary legislation which gives effect in UK law to the provisions of a number of different EU directives. As an example, the Equality and Diversity Forum stated:

The UK introduced provisions to outlaw discrimination in employment on the grounds of age (above 18 years) as a direct result of the EU Employment Equality Directive 2000/78/EC. This has meant that rigid upper age limits for recruitment into the fire service, the police service or for airline pilots are not permissible unless they can be shown to be justifiable, however, checks on physical ability are permissible.16

26.It is more common for directives to be given effect in UK law through secondary legislation made by government in the form of UK regulations, such as the Maternity and Parental Leave Regulations 1999 and Working Time Regulations 1999. The mechanism that gives the government the power to create such regulations also stems from the European Communities Act 1972. The UK will need to consider what regard it gives to new EU directives after leaving the EU.

27.Finally, EU law has effect in the UK through case law of the Court of Justice of the European Union (CJEU). The CJEU is the court that has the final say over how EU law is interpreted. For instance, if an individual believed that they were being discriminated against because a section of the Equality Act 2010 did not truly reflect the Directive that was the source of that act, that person could take a claim against the UK Government on those grounds to the CJEU.

28.The decisions of the CJEU are binding upon the UK, meaning that the Court currently has the power to compel UK courts to set aside domestic legislation and case law. Some high-profile UK equality law has started as a judgment made by the CJEU, including the concept of discrimination by association,17 the inclusion of transgender people within sex discrimination18 and the removal of the upper limit for compensation for tribunal cases based on discrimination grounds.19 Due to such judgments, changes were made to UK law to comply with the decision made by the CJEU. Worth noting, however, is that, in general, UK courts must make a reference to the CJEU before the Court can get involved with a case. The EU Commission can also bring enforcement proceedings against a state for failing to implement EU law.

29.After the UK leaves the EU, the CJEU will no longer have jurisdiction to resolve matters of EU law as it relates to the UK. The final court of appeal for matters of equality will be the UK Supreme Court.

Gaps in equality protection that may arise as a result of leaving the EU

30.Many of our witnesses concurred with the Government that the UK has a strong record on equalities in policy and law. Many also noted that, once the UK has left the jurisdiction of the EU, there will inevitably be a divergence between EU law and UK law.20

31.At present, domestic legislation and EU legal structures together provide the UK’s strong equality protections. Stakeholders have expressed concern that the removal of the EU legal underpinning, including the court system, will lead to a weakening of equality protection in the future unless its full effects are understood. It is therefore important for the Government, during the process of leaving the EU, to ensure that robust equality protection is embedded at each milestone. The Government should ensure that equality protections—including but not limited to workers’ rights—remain to the fore as negotiations begin and throughout the leaving process. We intend to keep an active interest in these issues as the process moves forward.

32.Specific potential gaps in future equalities protection have been identified by the evidence we have received. The rest of this chapter will deal with these and with the suggested solutions to ensure that the Government achieves its objective of equalities protection in the UK remaining as strong after leaving the EU as before. The principal issues are:

The Charter of Fundamental Rights

33.The Charter of Fundamental Rights (the Charter) was introduced into EU law as a consolidation document to clarify what human rights are protected by law within the EU legal system. Its provisions draw on the European Convention on Human Rights, the case-law of the CJEU and a number of other relevant legal sources. The Charter lists a number of fundamental rights, which must be respected by the EU institutions as well as the member states when they are implementing EU law. Article 21 of the Charter, for instance, is the “anti-discrimination” article, which prohibits discrimination on a number of different grounds.

34.There are mixed views on the effectiveness of the Charter, even while the UK is still a member of the EU. Some have argued that it will “contribute significantly to the discovery of general principles”.21 A number of submissions were of the view that there were substantive rights conferred by the Charter that would be lost to UK residents after leaving the EU. Rape Crisis England and Wales referred to Article 21,22 and UNISON to articles relating to non-discrimination on the grounds of social origin, genetic feature, language and property, groups that are not currently covered in UK law.23

35.However, the European Scrutiny Committee reported in 2014 that the Charter does not include any new rights that cannot be traced back to other sources of EU law.24

36.The Charter only applies to EU law or national law that has its origin in EU law, which creates some difficulty in trying to apply it outside of an EU context. As Professor Juss noted in oral evidence:

[ … ] the obligation to apply the Charter only makes itself felt upon national parties and EU institutions when EU law is an issue and is being implemented. Once you take away EU law, the Charter falls.25

On the assumption that retaining the Charter wholesale in the UK would therefore not be a practicable option, Professor Sandra Fredman suggested that “there are aspects of the content of the Charter that would be useful for us to retain and domesticate as our own”.26

37.Professor Fredman argued that parts of the Charter do endow individuals with rights that are unavailable to them in UK law, due to the breadth of its scope. She gave the example of the protected characteristics contained within the Charter. In the Charter, the list of protected groups is open-ended and non-exhaustive,27 whereas UK law has a closed list of nine protected characteristics:

Under both the European Convention and the Charter, you can develop the grounds, or what we now call protected characteristics, to include new things [ … ] at the moment, if you want to include a new protected characteristic [in UK law], you have to get a parliamentary amendment, whereas if it is more open-ended it can go through the courts and it can be more responsive to social developments.28

38.We agree that it would be difficult to apply the Charter so that it would function in a domestic context alone. Care needs to be taken to ensure that the principle of parliamentary sovereignty is protected whilst ensuring that the Government’s objective of protecting equalities is met.

The function of the Court of Justice of the EU

39.The Court of Justice of the EU (CJEU) is the final court of appeal in cases where there is perceived to be a breach of EU law or EU-derived law. The CJEU has been instrumental in interpreting EU equality law, and its judgments have sometimes extended the scope of equality protection in the UK. National courts are obliged to give effect to judgments of the CJEU and to disapply any national laws that conflict with the requirements of EU law. This means that the case-law of the CJEU has extended equality protections in UK law without having to be approved by the UK Parliament.

Box 1: How Court of Justice of the EU judgments can cause changes in UK legislation—transgender people covered under the Sex Discrimination Act 1975

The case of P v S and Cornwall County Council29, related to a situation in which a transgender woman was dismissed from her job because she was transitioning. The employment tribunal in the UK decided that it was unclear whether the Sex Discrimination Act, as originally drafted, was in breach of the EU’s Equal Treatment Directive30, by excluding gender reassignment as part of the Act. The tribunal in the UK made a reference to the CJEU to ask whether the Directive applied in the case of transgender people; if that was the case, the Sex Discrimination Act would need to be amended. The CJEU ruled that under the Equal Treatment Directive, trans women were protected. As a consequence, the UK was obliged to change the law through the Sex Discrimination (Gender Reassignment) Regulations 1999.

40.After leaving the EU, individuals will not be able to have their equality cases referred to the CJEU. The UK courts will no longer be able to disapply law found to be incompatible with EU equality law by the CJEU. However, the UK will also lose the CJEU’s function as an arbiter of incompatibility with the principles of equality. For the Government to achieve its objectives of fundamental protection for equality rights to preserve the present situation as closely as possible, it needs to take additional action.

41.Our witnesses suggested a way in which parliamentary sovereignty can be preserved while ensuring that equality principles can be upheld as robustly as possible by the UK courts. Karon Monaghan QC suggested:

You asked what we could do in terms of entrenching rights [ … ]. We do have a model for that in the Human Rights Act. The courts are able to say, “This piece of legislation is incompatible with certain fundamental rights.” It still preserves parliamentary sovereignty, because the courts cannot overturn it, but they can give a statement of incompatibility that is almost always complied with. They can also require Parliament to state, when it passes legislation, as with the Human Rights Act, that it is compliant with those fundamental rights. There is a model, even within a system of parliamentary sovereignty, where those safeguards can be introduced.31

Other witnesses also agreed that such a change would make a substantive contribution to the Government’s commitment to maintain current levels of equality protection.32

42.Leaving the EU provides an opportunity to return to Parliament its role to ensure that equalities are robustly protected. The Equality Act 2010 is the culmination of decades of development of domestic protection of equalities. An additional clause in that Act adding a function of a declaration of compatibility into the Equality Act would act as an entrenchment of these rights that were enacted by Parliament.

43.The Government should give strong consideration to bringing forward an amendment to the Equality Act 2010 to mirror provisions in the Human Rights Act 1998. The purpose of that amendment would be to set out that public authorities must not act in a way that contravenes the Equality Act unless required to do so by another Act of Parliament; that ministers, when presenting any Bill, must make a declaration of compatibility with the Act; that interpretation of legislation by the courts must take account of the Act and be read as far as possible to comply with its provisions; and that, if any legislation is incompatible with the Act, a declaration of incompatibility should be made by the court.

The status of existing and future case law of the Court of Justice of the EU

44.The White Paper states that the UK will no longer be bound by judgments from the CJEU, but continues:

In general the Government also believes that the preserved law should continue to be interpreted in the same way as it is at the moment. This approach is in order to ensure a coherent approach which provides continuity. It will be open to Parliament in the future to keep or change these laws.33

45.Concerns were expressed in some of the evidence we received about the status of future CJEU judgments that may be relevant to UK legislation. After leaving the EU, UK and EU law will begin to diverge if judges in the UK interpret legal concepts differently from their EU counterparts. Karon Monaghan QC, a barrister practising in discrimination law, suggested that it was, nevertheless, likely that judgments of the CJEU would still be relevant in the future:

When we do cases here, we typically ask the court to consider cases from Canada or South Africa—countries whose legal systems, social norms or broad political commitments are fairly similar—because we learn from them. It is likely that there would be some drawing on the Court of Justice case law, even if we were not formally bound by it, but of course it would not have directly effective impact; it would not require our courts to comply with any judgments, but it is likely to inform them.34

46.Some of the evidence pointed towards a potential issue that may arise when existing equality principles enshrined in both EU and UK law become the subject of legal disputes after the UK leaves the EU. Dr Panos Kapotas of the University of Portsmouth, explained what might occur in the future:

The key concepts in equality and discrimination law are not static. The European Court of Justice, the CJEU, has recently delivered a judgment, Nikolova v CEZ Electricity, where it re-clarifies the concept of direct and indirect discrimination that we thought for quite some time were quite settled. I am not necessarily suggesting that we should continue to automatically bring such an interpretative development into the domestic legal order, but I am suggesting that taking account of that development surely cannot be a bad thing, or something that will restrain judicial authority—or parliamentary authority, for that matter.35

47.While many of the equality-related CJEU judgments of the past have now been incorporated into the Equality Act 2010, it is still important that the UK courts are enabled to arbitrate equality disputes as effectively in the future as the EU courts have done in the past. This is one of three issues which we consider could usefully be clarified in the Great Repeal Bill, as discussed from paragraph 57, below.

EU legislation that has not yet been incorporated into UK law

48.A number of submissions concerned the status of proposed EU legislative proposals which have not yet become law. Some legislation has been passed in the EU that has not yet been transposed into UK law. Other measures are making their way through the EU legislative process; these may or may not be law at EU level by the time the UK leaves the EU. The Government will need to decide how to deal with proposed EU legislation that may come into force after the triggering of Article 50 but before the day the UK leaves the EU.

49.Some submissions to our inquiry suggested that a possible solution to this problem could be that the Great Repeal Bill should make explicit that all EU legal requirements that are in force on the day that the UK leaves will be transposed into domestic law. Examples of important legislation include the draft Accessibility Act. RNIB stated:

RNIB believes that the UK Government should continue to engage with EU member states on the draft legislation, and ensure that requirements set out by the Act are incorporated into domestic legislation after Brexit.36

50.Maternity Action gave a further example with regard to parental leave:

In November 2015 the European Commission launched a consultation on improving work life balance and removing the barriers to women’s participation in the workplace. The EU is looking to strengthen leave for fathers and partners, carers, flexible work arrangements and equal treatment. It is also looking at strengthening women’s protection against pregnancy and maternity-related dismissal and rights to breastfeeding breaks on return to work.37

We consider below how these matters could be dealt with through the Great Repeal Bill.

The EU’s free-standing commitments to equality and non-discrimination

51.The importance and value placed on equalities can be seen throughout the EU Treaties. There is a series of articles containing free-standing commitments to equality protection and non-discrimination.38 The UK has no vehicle for such a broad declaration, in part due to its lack of a codified constitution. Professor Fredman, in oral evidence, explained:

We know that equality is a fundamental principle of EU law and that has, as it were, imbued the way in which a lot of the equality provisions are interpreted at EU level, which has been to further the principle that equality is a value. The UK is unusual in not having a constitutional protection for the right to equality, which many other countries do. In some ways, the EU has performed that function.39

52.Many countries have a codified equality clause as part of their written constitutions. As most constitutions are very difficult to amend, equality as a free-standing principle is deeply embedded and protected. Dr Kapotas outlined the potential gap in protection in the UK that could emerge as a result of leaving the EU:

There is an inherent weakness in not having a codified constitution and not having a general equality or non-discrimination clause. The weakness is that when we move into uncharted territory, national courts that will have to interpret the law in 2019 or 2020, post-Brexit, may find themselves in a position where the relatively easy tool of constitutionality control is not going to be available. So in countries with written, codified constitutions, which all include an equality clause, a national court, when in doubt when interpreting the law, might have resort to the fundamental constitutional principle.40

53.The Equality Act was enshrined in law in the context of the UK being a member of the EU, with its freestanding commitment to equality and non-discrimination. Witnesses have suggested to us a number of ways of achieving the Government’s objectives of protecting current equality rights by entrenching equalities in UK domestic law.

54.In order to address this, some submissions suggested ratifying Protocol 12 of the European Convention on Human Rights (ECHR)—the free-standing equality clause—or adding a preamble to the Equality Act. However, we have been advised that ratifying Protocol 12 would not add much in the way of protection from regression. Professor Fredman explained in oral evidence that the ECHR is limited in its scope:

The European Convention only applies to the state; it does not apply to private bodies. In the whole field of employment, which is about the relationship of employers to workers, the European Convention is quite limited unless you get further legislation that says that the right to equality applies in the employment field [ … ]. This means that, at least at this level, EU law and the Equality Act are far superior.41

55.Another suggestion has been that there could be a preamble added to the Equality Act to create a free-standing equality commitment in British law. This was put to us by the Oxford Human Rights Hub which suggested that

A preamble or purpose clause should be included in the [Equality Act 2010] stating the values which should guide interpretation to avoid overly narrow reading of the statute. An example of best practice would be the preamble to the Ontario Human Rights Code.42

However, such a preamble would not serve to create an enforceable right similar to that enjoyed by individuals under EU law.

56.The final suggestion made by witnesses was for there to be an explicit commitment to non-regression on equalities in the Great Repeal Bill. Karon Monaghan QC suggested:

What you could do very simply is include what we call a non-regression clause [into the Great Repeal Bill]. In other words, nothing that we already have slips through the net. You have a very simple clause in the Bill that says, “In relation to the areas of equality and non-discrimination, nothing set out in this Act will reduce the protection already provided by domestic law”. It could be something of that sort.43

The Great Repeal Bill

57.In our view there are a number of areas in which it would be desirable for an over-arching commitment to equality principles and clarification of specific points to be set out in UK law.

58.The Great Repeal Bill will be a significant opportunity for the Government to achieve its objective of maintaining existing equality protections at the point of leaving the EU, and to turn its policy intentions into legislative commitments.

59.The Government should include a clause in the Great Repeal Bill that explicitly commits to maintaining the current levels of equalities protection when EU law is transposed into UK law. A number of different ways of drafting such a clause have been suggested to us, which we invite the Government to consider and comment on. These can be found in the annex to this report.

60.The status in the UK of future EU case law is currently unclear. While the Government has been clear that existing case law will be transposed through the Great Repeal Bill, it has not provided such clarity for future case law. We therefore recommend that the proposed status of future Court of Justice of the EU case law be clarified and legislated for in the Great Repeal Bill.

61.The Government’s White Paper has stated that all existing legislation will be transposed into UK law as part of the Great Repeal Bill. The Government should be clear that this means all EU legal requirements that are in force on the day that the UK leaves the EU, not just those that are in force at the point of triggering Article 50.

The role of the Equality and Human Rights Commission in equalities after exiting the EU

62.The Equality and Human Rights Commission (EHRC) will remain a national equality body after the UK has left the EU, as its legislative status is underpinned by the Equality Act 2006. Some of those submitting evidence argued that the role of the EHRC would increase in importance after the UK leaves the EU. The Employment Lawyers’ Association explained:

In the wake of leaving the EU the role of the EHRC will remain undiminished, unless and until there are reductions in its statutory responsibilities. It is possible that the need for its services, particularly in supporting strategic litigation, may increase if the uncertainties about continued role CJEU equality case law give rise to the need for issues of national importance to be tested in the courts. It will remain important for the robustness of the framework of equality and human rights law within the UK that the EHRC or similar body retains its independence from Government, its regulatory role and its enforcement powers to the importance of its role. In order to do this it must be adequately resourced.44

63.Other submissions echoed these concerns about the reduction in capacity of the EHRC to monitor and enforce equality protections that has taken place since 2008.45 These submissions argued that this will have a negative effect on the EHRC’s ability to continue these roles after the UK leaves the EU.

64.EHRC officials told the inquiry that the Commission strongly believes that it has a role to play both during the negotiations and after leaving the EU. The EHRC’s written submission states:

The Commission must have a central role in advising on any changes to laws or policies related to EU exit which would impact upon equality or human rights. This will include securing continuing equality standards during negotiations and following EU exit, working with Government, civil society and others. We will advise on the equality and human rights impact of any proposals to change equality legislation or other laws that have a disproportionate impact on one or more groups, in line not only with our duties under the 2006 Act, but also the Paris Principles and the Belgrade Principles.46

65.In terms of how the EHRC intends to achieve its involvement in monitoring the process of leaving the EU, its Chief Executive, Rebecca Hilsenrath, explained:

We have been informed that the most appropriate channels for us to conduct these conversations through going forward will be the Government Equalities Office and the Ministry of Justice. That means that we will not have a direct conversation with the Department for Brexit. We think that means the internal arrangements within Government are going to be much more important. It is really important for Government to be taking a leading role. This is about ensuring that the GEO itself has a strong role in co-ordinating policy across Government and having a very strong dialogue and relationship with the Brexit Department.47

66.We note that the Equality and Human Rights Commission has said it does not expect to be in direct communication with the Department for Exiting the EU. In order to identify implications for equality protections as the process of leaving the EU continues, that Department will need to have a strong internal lead on equalities matters and a named Ministerial lead. That lead should work with the Government Equalities Office in order to draw on its expertise.

14 Q35

15 Brexit: Employment Law, Commons Briefing Paper CBP7732, House of Commons Library, November 2016 

16 Equality and Diversity Forum (OEU0035) Annex 1

17 Coleman v Attridge Law, 2008, C-303/06

18 P v. S and Cornwall County Council, 1996, C-13/94

19 Marshall v Southampton and South West Hampshire AHA, 1986, C-152/84

20 Employment Lawyers Association (OEU0018) para 25

21 Koen Lenaerts, Jose A. Gutiérrez-Fons, ‘The constitutional allocation of powers and general principles of EU law’ (2010) 47 Common Market Law Review, Issue 6, pp. 1629–1669

22 Rape Crisis England and Wales (OEU0031) para 10

23 UNISON (OEU0019) para 22

24 European Scrutiny Committee, Forty Third Report of Session 2013–14, The Application of the EU Charter of Fundamental Rights in the UK: a state of confusion, HC 979, para 150

25 Q8

26 Q10

27 Including characteristics such as class, caste and background

28 Q8

29 P v. S and Cornwall County Council, 1996, C-13/94

30 Council Directive 76/207/EEC

31 Q34

32 See for example, Q31 and Q36

34 Q11

35 Q27

36 Royal National Institute of Blind People (OEU0023) para 2.5

37 Maternity Action (OEU0011) para 30

38 For example, Article 2 of the Treaty of the European Union, and Article 19 and 157 of the Treaty on the Functioning of the European Union.

39 Q6

40 Q21

41 Q16

42 Oxford Human Rights Hub (OEU0008) para 18

43 Q28

44 Employment Lawyers Association (OEU0018) para 48

46 Equality and Human Rights Commission (OEU0040) para 40

47 Q69

24 February 2017