Equality and the right to non-discrimination is a cornerstone principle within a democratic society. Unlike most democratic jurisdictions, the UK does not have a written constitution which safeguards equality. Although Britain has a history of implementing and developing anti-discrimination legislation which pre-dates its entry into the European Union, the EU has acted as both a driver and a guarantor of that right over the lifetime of our membership. When the UK leaves the European Union, we will no longer have the equivalent of any constitutional right to equality.
Equality is one of the general principles of EU law and has grown up from being a means of achieving market integration to becoming a social policy pursued as an end in itself—it is now entrenched, for example, as a standalone provision in Article 21 of the Charter of Fundamental Rights (which the government proposes to expunge with the EU Withdrawal Bill). For over 40 years, our domestic right to equality and non-discrimination has been developed and underpinned by this EU protection, shored up by the broad interpretation and influence of the Court of Justice (now the CJEU) in Luxembourg.
Once Britain leaves the EU, there is no domestic equivalent of that EU statutory floor below which our rights are not permitted to fall. There is no codified constitution which provides such a right: The Equality Act 2010, whilst a strong and largely self-sufficient piece of legislation (although notably one which also consolidates EU law), does not have constitutional status.
The 2010 Act brings together separate strands of equality legislation. Before the referendum, Leavers sought to calm nerves by arguing there would be no rollback on rights in a post-Brexit Britain because Britain had its own anti-discrimination framework, which predated the EU. At best, this was a serious misrepresentation. Even early on, some legislation was passed in the expectation of joining the then- European Community. Brexit supporters often cited the Equal Pay Act 1970 but they failed to mention that it was at least partly driven by what would then be the third attempt at entry into the (then) European Communities.
“One-off promises not to encroach on rights are not enough”Perhaps more importantly, this picture of a self-reliant Equal Britain missed out the significant influence that the EU has had on the development of discrimination law and equality protection in Britain, for example the expansion of the right to include equal pay for work of equal value and many rights relating to maternity and pregnancy. The Equality Act itself consolidates the many EU Equality Directives which have been transposed into our domestic law. It also enacts equality developments which have arisen because of the CJEU—for example, it codified certain rights for carers of disabled people not to be discriminated against directly derived from the case-law of the Luxembourg court.
The loss of the CJEU as a supranational court is another immeasurable loss in the equality stakes. It has been a substantial driver for progress of equality throughout the Union, including in the UK. In broad terms, it has been a progressive and purposive interpreter of the fundamental right to equality. Without the overarching protection for social rights which the CJEU has engendered, many workers in the UK would have been left without substantive and effective protection, for example on holiday pay. It is not yet clear how the jurisprudence of the CJEU will be treated post-Brexit.
Although the Equality Act will remain largely intact when we leave the EU, there is nothing to prevent it being undermined subsequently. Whilst it remains currently unlikely that there is political will to dismantle large-scale equality protections, one-off promises not to encroach on rights are not enough. This is particularly true when one considers that an express part of some Brexiters’ agenda has been deregulation. Capping discrimination compensation, currently barred by EU law, was recommended in the 2012 Beecroft report to government on avenues for employment law reform and there has been sufficient talk of dismantling regulation for small businesses, including on maternity rights, for this to be a credible threat.
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So how do we guarantee those protections remain? The idea that we should just trust in the word of the government is absurd. That is true with any government, but especially this one which is driving through this vast constitutional change without any sensible cooperative and consulting process, and at a time of such instability in Britain. Right there, in the explanatory notes to the Withdrawal Bill, is a blatant attempted power grab: the government wants to be able to remove the rights of EU citizens in the event of no deal, without a parliamentary vote. No wonder the Joint Committee on Human Rights, in an early report, expressed itself “surprised to be informed that the government saw the question of domestic protection for fundamental rights as a matter for negotiation with the other EU member states.”
Constitutional provisions on equality should be introduced and embedded in our domestic law. One way of doing this would be through the introduction of a clause which would operate in a similar way to the protections laid down for the Human Rights Act and enforceable in the same way. This would ensure that laws and state actions could be tested against our right to equality and non-discrimination, and also facilitate parliamentary scrutiny of new laws by requiring ministers to state whether or not any new Bill is compatible with the constitutional right to equality.
In tandem, the government must commit to a non-regression clause on equality and non-discrimination in the Withdrawal Bill. If this government is committed to advancing and protecting equality frameworks post-Brexit (and beyond the current prime minister), there is no good reason for it to refuse to insert written safeguards onto the face of the Bill itself. Moreover, it is crucial that the Bill be amended to ensure that Henry VIII powers, with which it has attempted to play fast and loose with on Brexit, cannot be used to amend, repeal or reinterpret equality law. The Charter of Fundamental Rights also must be retained in some form in domestic law.
Britain is at a turning point, and the final shape of the Withdrawal Bill will affect our society for many years ahead. It is critical parliament gets this right. Equality and socio-economic rights should not be plea-bargained in some nefarious “will of the people” argument. Equality laws have driven the shape of our still-imperfect society, bringing with them the promise of more fairness. It is up to all of us now, but especially our parliamentarians, to make sure equality is not pushed aside by the haze and haste of the Brexit whirlwind.
