Written submission from the Oxford Human Rights Hub (OEU0045)
1. We have been asked by the Women and Equalities Committee to suggest possible clauses which might be included in the proposed Great Repeal Bill to protect equality rights after Brexit. We begin by setting out the problems which such a clause would address, and show how these problems affect equality legislation. In the third section, we propose several possible clauses which could address the problems we have identified.
2. There are two problems which will arise in relation to the protection of equality rights after the UK leaves the UK:
3. Although the Equality Act 2010 is primary legislation, it derives much of its content from EU law and the Court of Justice of the EU has played a central role in the interpretation of its provisions. The two problems set out above might arise in the following ways:
4. The Committee has asked us to advise on how a clause might be drafted to protect equality rights in this context. We give some suggestions to address each of the problems identified above.
5. One possibility is to propose an amendment to limit the scope of the Henry VIII clause to amend equality rights. This could be formulated as follows:
‘Any clause in the Act which permits ministers to modify, amend or repeal primary legislation by order, does not include a power to amend, repeal or otherwise modify the right to equality.’
6. A second approach would not limit the scope of the Henry VIII clause as such, but restrict the power to make delegated legislation which arises under such a clause. This approach has been used in Section 8 of the Legislative and Regulatory Reform Act 2006, which specifically restricts a broad power to make delegated legislation, such as a Henry VIII clause. Following this model, such a clause might be formulated as follows:
‘No provision enacted under statutory power herein granted to repeal, amend or otherwise modify primary legislation by order, may make provision amending or repealing any provision of the Equality Act 2010.’
7. This would mean that the Equality Act 2010 can only be amended with full Parliamentary process and scrutiny. This would include first reading, scrutiny by the Parliamentary committees, second and third reading in both Houses.
8. A different approach would be to put preconditions on the enactment of the Henry VIII clause, following the model of Section 3 of the Legislative and Regulatory Reform Act 2006.
9. A suggested format could be as follows:
10. ‘Ministerial powers to amend, modify or repeal primary legislation can only be used if:
(i) the provision does not prevent any person from continuing to exercise any right or freedom which that person has by virtue of the Equality Act 2010 or other provisions previously derived from EU law which protect equality rights; or
(ii) the provision is not of constitutional significance.’
11. In order to protect equality rights from future incidental erosion by legislation and to preserve the interpretation given by the EU Court of Justice of the equality rights given expression in the Equality Act 2010, a clause could be inserted as follows:
‘Any enactment passed or to be passed shall be construed and have effect subject to equality rights [and other fundamental human rights].’
12. A weaker version would read:
‘So far as is it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with EU equality rights.’
February 2017
[1] Constitution Committee of the House of Lords, ‘Report on the Legislative and Regulatory Reform Bill’ Sixth Report of Session 2005-6. See also Delegated Powers and Regulatory Reform Committee of the House of Lords, ‘Special Report on Henry VIII Powers to Make Incidental, Consequential and Similar Provision, 3rd Report of Session 2002-2003, HL Paper 21.
[2] As noted by Lord Judge in his lecture, ‘Ceding Power to the Executive; the Resurrection of Henry VIII’ delivered at King’s College London, 12 April 2016; <https://www.kcl.ac.uk/law/newsevents/newsrecords/2015-16/Ceding-Power-to-the-Executive---Lord-Judge---130416.pdf>