Britain’s equality law story certainly features some important chapters involving the European Union. It is clearly important to consider the implications of Brexit for equality and non-discrimination and to strive to mitigate any risks resulting from our departure. Yet in truth, Britain has on the whole gone far faster and much further on equality and non-discrimination law despite, not because of our membership of the European Union. This is as a result of highly effective civil society activism, pioneering Parliamentarians, shifting social attitudes and inspiration drawn not for the most part from Europe but from the USA.
Britain’s first race discrimination laws came onto the statute book in the 1960’s and were inspired by US civil rights law. The Americans with Disabilities Act 1990 provided the template for the Disability Discrimination Act 1995. Both in turn are widely held to have provided inspiration for the anti-discrimination Directives of the European Union, which only appeared in 2000.
Importantly, the Employment Equality Framework Directive 2000 did expand the range of protected characteristics to be covered by anti-discrimination law to include age, sexual orientation and religion. Further, the Coleman v Attridge law case in the CJEU saw those discriminated on grounds of their association with disabled people, such as carers, brought within the protection of the law. Yet in implementing the Directive Britain went further than required by protecting people from discrimination not only in employment but also in relation to goods and services. A draft EU Directive to extend protection from discrimination beyond the field of employment has made little progress for almost a decade. Britain did not wait for the EU: the Equality Act 2010 harmonised all of Britain’s anti-discrimination law, providing parity of protection in relation to race, gender, gender identity, disability, age, sexual orientation and religion and belief.
British equality law also goes way beyond the ‘formal equality’ demanded by the EU Directives. The intention of the Public Sector Equality Duty is to get at those causes of discrimination and inequality that are institutionally bound through a model of ‘enforced self regulation’ by public bodies, aimed at their taking steps to eliminate discrimination and advance equality. And we have gone further in other ways too, first with civil partnerships, then with Equal Marriage, for example.
Conversely, under the rubric of de-regulation, the 2010-15 coalition government rowed back on key features of employment protection in the Equality Act 2010, introduced employment tribunal fees and imposed huge cuts in the budget of the Equality and Human Rights Commission without once facing censure by the European Commission.
In sum, while Britain has had to comply with the EU law it has helped to create, equality and non discrimination policy and law has largely been a domestic matter.
I’ve no doubt legal and constitutional law experts (of which I am not one) will point out that it is loss of the ‘constitutional underpinnings’ of our membership of the EU that really matter and which require attention. Specifically, that the protection and promotion of equality will be weakened once our laws operate outside of EU principles, the Charter of Fundamental Rights and cease to be directly shaped by the jurisprudence of the Court of Justice of the European Union. One way to mitigate this has been proposed by the House of Commons’ Women and Equalities Committee:
‘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. (Paragraph 42)
4.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. (Paragraph 43)
The case for ‘constitutionalising’ equality in this way was made during debates about the Equality Act in 2010. Specifically it was proposed that the Act offered a vehicle for the UK to ratify Protocol 12 of the European Convention on Human Rights (establishing a freestanding right to equality). The proposal was rejected by the then Labour Government and enjoyed little if any support from the Conservative Party.
In making this proposal the drafters of the Women and Equalities Committee report have clearly tried to sing in harmony with the mood music by presenting the idea as restoring or reaffirming Parliamentary sovereignty. The wording ‘return to Parliament its role’ is curious. Return from where? Was Parliament robbed of its role, and if so, by whom – the European Commission? The Court of Justice of the EU?
This is ‘taking back control of equality’ and it has unsurprising echoes of ‘bringing rights home’ – the branding in 1998 of the Human Rights Act as bringing home the ECHR. But therein lies the problem. First, the positioning of this proposal as necessitated by Brexit and – in effect – involving further incorporation of the ECHR – suggests that it is in practice about constitutionalising not just equality, but ‘European’ equality. Second, it is ultimately about binding Parliament, not empowering it and will be seen as handing further power to the Courts at a moment where judges are being cast as ‘enemies of the people.’
In any case, with a government committed to repealing the Human Rights Act, a Prime Minister keen to take the UK out of the ECHR and the general antipathy towards ‘judicial activism’ this is a proposal that seems very likely to be ‘dead on arrival’. And while objectively I can see its merits, politically I fear it will be a disaster if equality activists invest their energies in pursuing it now.
I think the future of equality in post-Brexit Britain has to be won politically, not via binding legal measures as attractive as they may seem. We have much to build on. Britain has been able to go further and faster than the EU has demanded because in time a general political consensus has evolved which regards discrimination as an unacceptable and a socially and economically undesirable feature of modern British life.
Brexit is an inflection point, where we will be forced to ask ourselves who we are and what we stand for. Our challenge now is to set out a compelling story of equality, not as a hangover of our membership of the EU, but as a proud part of our national story and as central to a thriving future.
I’m advised that the measure proposed by the Women and Equality Committee could be achieved without ratifying Protocol 12 of the ECHR, for example by amending the Equality Act 2010 to insert provisions similar to those in the Human Rights Act regarding the obligations of Ministers and the respecting obligations and powers of the Courts and Parliament. That provides a way around the ECHR Protocol 12 obstacle, but it still begs the question: if our equality laws are home grown, why is Brexit the moment to do this?