An "Equal" Brexit?

Yesterday, the House of Commons Women and Equality Committee published the anticipated Report in their timely inquiry into the implications of Brexit for equality in the UK,Ensuring strong equalities legislation after the EU Exit.

Its recommendations are wide-ranging - from ensuring access of civil society and academia to grants and funding for equalities research and programming to the need for a cross-Governmental strategy on managing the equality impacts of Brexit.

However, for the lawyers reading the report there are two which may be most interesting. 

Firstly, the Committee recommends that alongside the Great Repeal Bill, the Equality Act 2010 should be amended to empower Parliament and the Courts to declare whether legislation is compatible with UK principles of equality - mirroring Section 4 of the Human Rights Act 1998 (paragraph 43).

Secondly, the Committee recommends that the Great Repeal Bill provides expressly that the UK will commit to the existing level of equality protection secured in the UK by virtue of the Equality Act 2010, through the protection of EU law and the jurisprudence of the CJEU (paragraph 59).  

The recommendations of the Committee have been rightly and roundly welcomed.  A strong message of non-regression on existing standards is welcome.  As is encouragement for Government to take its existing duties on equality - including as found in the Public Sector Equality Duty in s149 Equality Act 2010 - seriously during the Brexit negotiations and beyond. 

There has been little to suggest thus far that there has been any equality assessment made of the impact of Brexit within Government.  The White Paper was limited in its scope and contained no suggestion of how and whether Government had planned to assess any implications for individuals with protected characteristics of this major constitutional change.

Whether the addition of an HRA-modelled commitment would provide significant new legal protection will depend upon how the certification of legislation is to be tested and against what standard.  Will a Bill be incapable of certification if the Government has failed to discharge its PSED responsibilities, for example?  That duty is in some ways itself arguably a stronger guarantee than is offered by s6 HRA 1998 and it is a valuable tool for the promotion of equality and the prevention of discrimination (The JCHR historically recommended that the HRA public duty be supplemented to mirror the public sector equality duties (see The Human Rights of Older People in Healthcare, paragraphs 151 - 153)).

The protection against discrimination in domestic law predates the UK’s membership of the European Community.  The Equality Act 2010 provides freestanding protections and, for example, the positive duties in the PSED are creations very much owned by the Westminster Parliament.

However, today the protection for equality and diversity in the General Principles, the Treaty and the Charter means that EU law underpins the domestic architecture. 

Over the past four decades, the case law of the European Court of Justice and the Court of Justice of the European Union has helped drive forward the protection of equality by the law. 

Equality guarantees bind the UK in our wider international human rights obligations, including in Article 14 ECHR as protected by the HRA 1998. However, none of these standards currently offer the same degree of legal protection which a claim grounded in EU law would currently provide to some applicants. 

Despite historically - and relatively - progressive attitudes towards equality in the UK, there are concerns amongst equality practitioners that in the current political and economic climate, the removal of the floor of EU binding equality standards will leave the Government free to reduce safeguards against discrimination, creating a window for regressive reform.  Although the PSED is not dependent upon an EU legacy, it and other important aspects of our equality framework have already come under significant scrutiny from Government on numerous occasions (including in the Red Tape Challenge).  The potential for reforming zeal in the wake of the Great Repeal Bill should be cause for vigilance on the part of equality lawyers everywhere.

While a commitment to a non-regression clause would be a positive step, there remain many questions about how such a clause might be interpreted and enforced.  One person's progress is another's devastation.  Could we really see the Administrative Court acting to restrict Parliament's capacity to rewrite the law, bound only by the Great Repeal Bill?  Of course Parliamentary sovereignty means that any future Government with a stronger position in the legislature could yet be empowered to unpick our legislative commitments without the backstop of any binding EU minimum standards to get in the way.  The common law constitutional commitment to equality, while important, falls far short of the guarantees offered by the Equality Act 2010 and the ECHR as many, including Smith & Grady , have learned in our courts (see page 3, here).  

That the Government has now responded quickly and positively with a commitment from the Government Equalities Office that there will be "no going backwards" on equality is encouraging.  

For now, let's all work hard to help ensure that important promise is kept.