Briefing on EU Withdrawal Bill

Date: 5th September 2017
Category: General measures of implementation

The Equality and Human Rights Commission has identified a number of implications and opportunities for equality and human rights protections in the context of Brexit.

The Equality and Human Rights Commissioner have stated that, as well as the need to secure that there is no regression in our existing equality and human rights protections, the Bill presents opportunities to ensure the UK continues to be a global leader on equality and human rights. Implications and opportunities are as follows:


Retaining existing equality and human rights protections

Commission's recommendation

The Government should ensure that all existing EU law protections for equality and human rights are incorporated into UK law following Brexit.

Commission's analysis

Above all, it is vital that we ensure all existing EU law protections for equality and human rights are incorporated into UK law when we leave the EU. The White Paper sets out the Government's general commitment that "wherever possible" existing EU law rights, will be incorporated into UK law.

The Government has indicated that the Bill will provide that CJEU case law in place at the time the UK exits the EU will be given the same binding, or precedent, status in our courts as decisions of our own Supreme Court. This would mean that, while treating the CJEU's former decisions as normally binding, the Supreme Court could depart from them "when it appears right to do so."

The Government is "also examining whether it might be desirable for any additional steps to be taken to give further clarity about the circumstances in which such a departure might occur."

It is essential that the Bill is carefully scrutinised to ensure that all current protections for equality and human rights, including those in unincorporated EU law, are incorporated into UK law. These include:

  • rights in EU treaties that can be relied on directly in domestic courts such as the right to equal pay in Article 157 of the Treaty on the Functioning of the European Union (TFEU)
  • directly applicable EU Regulations, for example governing rights of disabled people to access transport
  • rights in EU Directives which the Government have not incorporated in UK law, such as certain provisions of the EU Trafficking Directive
  • rights in CJEU case law, for example governing the calculation of holiday pay entitlements for workers.


Limiting the use of delegated powers

Commission's recommendation

The Bill should explicitly rule out the use of delegated powers, including Henry VIII powers, to make any significant policy changes to equality and human rights law.

Commission's analysis

The Bill will convert the body of EU law, as it stands when we leave the EU, into domestic law. However, a proportion of the converted law will not function effectively once we have left the EU unless changes are made to adapt it, for example, because it refers to an EU institution or reciprocity from EU Member States. The Bill will therefore provide a power to Ministers, in the UK and devolved governments, to "correct the statute book, where necessary, to rectify problems occurring as a consequence of leaving the EU" through secondary legislation.

The Government has acknowledged that the purpose for which delegated powers can be used should be limited.

To ensure the Bill safeguards current equality and human rights protections, it should include a clause that explicitly rules out the use of delegated powers by the UK and devolved governments to make any significant policy changes to equality and human rights laws, including:

  • core legislation such as the Equality Acts 2006 and 2010 and the Human Rights Act 1998
  • other primary legislation, such as the Employment Rights Act 1996 and the Modern Slavery Act 2015
  • all relevant secondary legislation, such as the Working Time Regulations 1998.

Where more mechanical changes are required to equality and human rights laws, they should only be made by procedures that allow for rigorous parliamentary scrutiny, such as the affirmative procedure.


A Constitutional Right to Equality

Commission's recommendation

Introduce a Constitutional Right to Equality, applicable across the UK, on the face of the Bill.

Commission's analysis

The Bill presents an opportunity to protect domestic equality rights on leaving the EU by introducing a Constitutional Right to Equality.

The right would enable us to test our own laws and state actions against our fundamental right to equality. This would ensure that equality has the same status in UK law as other fundamental rights, such as the right to a fair trial, and allow parliamentary committees to scrutinise legislation in relation to this fundamental right.


Ensure protections in the Charter are retained

Commission's recommendation

Rights contained in provisions of the EU Charter of Fundamental Rights (the Charter), which have equivalent UN treaty rights, should be brought into UK law.

Commission's analysis

The Government has stated that "the removal of the Charter from UK law will not affect the substantive rights from which individuals already benefit in the UK." However, some Charter rights, for example relating to children and older people, have no equivalent protection in UK law at a constitutional level, such as those protected in the Human Rights Act.

The White Paper notes that many of the rights protected in the Charter are also found in UN and other international treaties which the UK has ratified. However, the UK has not incorporated UN human rights treaties so they do not have direct effect in domestic law.

Substantive rights currently protected by the Charter should therefore be fully protected in domestic law, by incorporating equivalent UN treaty rights which the UK has ratified.

This could be achieved by giving such rights the same status as Convention rights in the Human Rights Act, whilst taking into account that some of these rights may fall within the competence of the devolved administrations.


Ensure the UK keeps pace with international case law

Commission's recommendation

The UK Government should consider how to ensure our courts keep up with future case law developments at the CJEU, and courts in other countries that share our values.

Commission's analysis

EU case law has had an important impact on equality rights in the UK. The CJEU's interpretation of the Equality Directives has extended protection domestically, including when relying on the Charter. For instance, it is no longer lawful to charge men and women different premiums for insurance because of the Test-Achats case.

Although the White Paper indicated existing CJEU case law would be preserved, it stressed that the Bill would not provide any role for the CJEU in the interpretation of new law, and our domestic courts would not be required to consider future CJEU jurisprudence.

In order to remain at the forefront of protection for equality and human rights, it is important that our courts should continue to be able to take account of developments in the law, both in the EU, and in other parts of the world where our values are shared. The Government should therefore ensure that the Bill does not prevent our courts from doing so.