Committees

How can we ensure strong equalities legislation after EU Exit?

16 November 2016

The Women and Equalities Committee discusses possible outcomes for equality law during and after Brexit.

How to ensure strong equality legislation?

The inquiry considers how equality legislation will be affected by and can be enhanced after leaving the EU, and how to ensure ongoing strong equality legislation within an independent and internationally-focused UK.

It will also look at the Government's plans for equalities during the Brexit negotiations, the role of the EHRC, and how the UK can remain a world leader in equality through international treaties. It follows a one-off session held on this topic in September.

Witnesses

Wednesday 16 November 2016, Grimond Room, Portcullis House

At 9.30am

  • Professor Sandra Fredman QC, University of Oxford
  • Dr Panos Kapotas, University of Portsmouth
  • Karon Monaghan QC, Discrimination Law Association
  • Professor Satvinder Juss, King's College London

Purpose of the session

Today's session will focus on three main areas:

  1. The legal framework before and after Brexit: which parts of current equality law could be affected by leaving the EU, and how could these be replaced and strengthened?
  2. An Independent UK leading on equality law: what role might the UK have outside the EU in continuing to strengthen domestic rights and as a champion for international equality?
  3. International treaties and obligations: what international models might the UK choose to use for equalities, inside or outside Europe? What international standards, treaties or obligations of equality does the UK have to comply with?

Committee Chair Maria Miller said:

"The UK has been a leader in equality for the past 50 years, pushing boundaries both because of our membership of the EU and independently of it. Leaving the EU raises several questions to which the Committee is seeking clear answers. It is vitally important to identify the ways in which equality can be further strengthened for future generations."

Background: Equality law in the UK and Europe

The bulk of equality law as we know it in the UK comes from three sources of law: domestic law (i.e. through parliamentary legislation and case law from UK courts), EU law (as legislation of the Council of the EU, Parliament and case law of the Court of Justice of the EU) and through the Council of Europe hearing cases based on the European Convention on Human Rights (ECHR). The UK exiting the EU will have no effect on the UK's membership of the Council of Europe nor on its obligations under the ECHR.

Domestic and EU equality law have had a symbiotic history since the UK became an EU member. In some cases, UK law preceded EU law and the UK was seen as leading the way for future EU legislation, whereas, in some cases, EU law has had to be incorporated into UK law in various ways. 
These are:

  1. Through directly applicable legislation. These are the EU Treaties and EU regulations that apply directly to the UK by virtue of the European Communities Act 1972. These include the European Charter of Fundamental Rights. 
  2. Through directives. Directives do not automatically apply to the UK, but rather have to be implemented either through primary or secondary UK legislation. The Equality Act 2010 is an example where a number of EU directives have been bundled together into a parliamentary Act. However, many directives have been brought into UK law through secondary legislation made by government in the form of UK regulations, such as the Maternity and Parental Leave Regulations 1999 and Working Time Regulations 1999. The mechanism that gives the government the power to create such laws stems from the European Communities Act 1972.
  3. Through case law of the Court of Justice of the European Union, the court of final appeal for any law that has its origin in EU legislation.  The Court of Justice of the European Union decisions are binding, meaning that it currently has the power to overrule domestic legislation and case law. Some high-profile UK equality law has started as judgments made by the Court of Justice of the European Union, including the concept of discrimination by association, the inclusion of transgender people within sex discrimination and the removal of the upper limit for compensation for tribunal cases based on discrimination grounds. Due to such judgments, changes were made to UK law to comply with the decision made.

Further information

Image: iStockphoto