Equality rights in a post-Brexit United Kingdom

Equality is recognised across the political spectrum to be an important social value, even if considerable disagreement exists as to how this value should be given effect in law and policy. In her first public statement as Prime Minister, Theresa May MP pledged to govern for the entire nation and not just the ‘privileged few’, before committing herself to fight against the “burning injustice” suffered by groups such as the poor, women and ethnic minorities who are denied true equality of opportunity. As I write, a similar concern with equality of opportunity is reflected in the public comments of Jeremy Corbyn MP and Owen Smith MP standing for the leadership of the Labour Party, and also finds an echo in the rhetoric of all the other political parties throughout the UK.

There also exists widespread agreement that the law has an important role to play in fighting discrimination. UK anti-discrimination legislation is now mainly set out in the Equality Act 2010, which prohibits discrimination on the grounds of age, disability, gender reassignment, marriage or civil partnership, sex, sexual orientation and religion or belief. This is far from being a perfect piece of legislation: it contains various inconsistencies and gaps in protection and, as discussed below, has little to say about socio-economic forms of inequality. However, in general, the 2010 Act provides relatively comprehensive protection against particularly prevalent forms of unequal treatment. Its provisions have also been buttressed by other pieces of legislation, such as the Marriage (Same Sex Couples) Act 2013 and the framework of regulations that govern maternity and paternity leave, which have corrected for various specific glaring instances of inequality and/or conferred special protection on particular groups of employees.

Taken together, this legislative framework attracts broad support across the political spectrum. Individual politicians and media commentators have occasionally called for various elements of the legislation to be diluted or repealed – for example, Andrea Leadsom MP is reported as having suggested that the rules governing maternity pay in respect of small companies could be scrapped. The odd controversial case also generates calls for the law to be reformed, especially those relating to religious freedom claims such as Eweida v UK. (More on this below.)  Nevertheless, UK anti-discrimination legislation does not in general attract the same political controversy that surrounds the Human Rights Act 1998 (HRA). Indeed, it is striking that during the recent Brexit referendum, both sides of the debate pointed to UK equality law as an important achievement: for example, Boris Johnson MP referred to the rights now enjoyed by LGBT persons in the UK as a source of national pride.

However, if you dig down beneath this apparently harmonious surface, problems persist. The apparent rise in hate crimes directed against particular ethnic minorities which followed the outcome of the Brexit referendum shows that racism remains a serious social problem. Other forms of structural inequality appear also to be deeply embedded in society, as Theresa May MP acknowledged when becoming Prime Minister. Anti-discrimination legislation often struggles to provide a remedy against less obvious forms of discrimination: its scope is limited, and it is widely recognised to rely too much on particular individuals being brave enough to take enforcement action against employers and service providers. Furthermore, victims of discrimination face serious obstacles in accessing justice. The lack of legal aid before employment tribunals and cuts to the budget of the statutory enforcement body, the Equality and Human Rights Commission (EHRC), make it very difficult for individuals to bring discrimination cases.

Brexit also poses problems for the future application of UK anti-discrimination legislation. Much of this legislation was introduced to give effect to various pieces of EU legislation: for example, the prohibition on discrimination in employment on the basis of age, sexual orientation and religion or belief first became part of UK law because of the need to give effect to the 2000 EU Equal Treatment Framework Directive. (Successive Conservative and Labour governments had previously refused to introduce legislation in this area, preferring instead to encourage employers to take voluntary action in this regard.) In addition, UK anti-discrimination law has often been reinforced and strengthened by judgments of the Court of Justice of the EU (CJEU), whose case-law has repeatedly emphasised the need for member states to give effective protection to the right to equal treatment. (For an example, see the 2008 case of Coleman v Attridge Law.) It is no exaggeration to say that EU law has been the engine that has hauled the development of UK anti-discrimination law along in its wake: without its influence, British legal standards would be much weaker than they currently are. Post-Brexit, it remains to be seen how UK courts will interpret the provisions of the 2010 Act, and how they will apply previous precedents which have regularly been decided by reference to the requirements of EU law.

Another problem exists. Public bodies are bound by the provisions of the 2010 Act. This includes the positive equality duty imposed upon them by s. 149 of the Act, which requires them to take action to promote equality of opportunity. However, this duty is largely procedural in nature. Furthermore, it does not extend to socio-economic inequalities. S. 1 of the 2010 Act made provision for a diluted duty to be imposed upon public authorities to give due regard in making “decisions of a strategic nature” as to how to exercise their functions in a way that reduce socio-economic  inequalities. However, the Coalition Government chose not to bring this provision into force because of concerns about bureaucratic overload. (The Scottish Government has recently indicated that it intends to implement this duty in respect of devolved functions.) Finally, and perhaps most seriously, the requirements of the 2010 Act do not make anything unlawful which is authorised by other primary or secondary legislation. This means that UK anti-discrimination legislation does not place many obstacles in the way of Parliament or ministers choosing to enact discriminatory legislation. Nor does it require existing legislation to be interpreted in an equality-friendly manner.

This gap in legal protection is potentially concerning, especially as the common law has historically provided little or no protection against discrimination. However, the combined effect of EU law and human rights law has mainly filled this gap. In particular, the ECHR and by extension the HRA has played an important role in this regard. Article 14 of the ECHR only guarantees non-discrimination in the enjoyment of other Convention rights. (Protocol 12 ECHR, which the UK has neither signed nor ratified, provides for wider equality protection.) The European Court of Human Rights has nevertheless interpreted this provision in a way that provides useful protection against discriminatory state policies, while leaving states a very wide margin of discretion when it comes to designing their socio-economic policies. Judgments such as the East African Asians case of 1967 have prevented blatant discrimination in immigration policy, while cases like Dudgeon, Smith and Grady and Goodwin have substantially enhanced LGBT rights in Britain. The HRA has made it possible for UK courts to similarly protect individuals against unequal treatment, as shown by cases such as Ghaidan.

In other words, the ECHR and the HRA have played an important role in correcting for the limitations of national anti-discrimination law, and ensuring adequate legal protection for the right to equal treatment set out in Article 2 of the Universal Declaration of Human Rights and multiple other international human rights instruments. Along with EU equality law, they have come to play a significant part in UK equality law. Post-Brexit, EU law will drop out of the picture. As a result, it is important that any future reform of UK human rights law - whether it takes the form of a replacement of the HRA by a new ‘British Bill of Rights’ or not – reflects the lessons of the past and ensures that courts can continue to provide effective protection for equality rights.  

Colm O’Cinneide is Professor of Constitutional and Human Rights Law at UCL