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Equality measures post Brexit

Kiran Daurka and Yavnik Ganguly co author a blog on how the law protecting equality may be affected by Brexit

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Kiran Daurka (pictured) is a partner in the Employment team at Leigh Day where she is assisted by paralegal Yavnik Ganguly.
On the 14th of October 2016, the Women and Equalities Committee launched an inquiry into how law protecting equality may be affected by Britain exiting the EU. The report of the inquiry outlined some interesting points and ideas that I will summarize here.

As acknowledged in the report by the committee, the Government has expressed its intentions to maintain the current level of legal protection against discrimination. The aim of conducting the inquiry was to ensure the goal of preventing erosion of rights is attained.  Specifically, the inquiry investigated what potential ‘gaps’ in UK equality law may occur upon leaving the EU, and what actions the Government can take to prevent such gaps from occurring.

The report detailed gaps that may be left by the exiting process, the most significant gaps including:
  • The Charter of Fundamental Rights will become inapplicable in Britain, as it only applies to national law which has its origin in EU law.
  • The Court of Justice of the European Union (CJEU) will no longer have jurisdiction, meaning national courts will no longer have the ability to check parliamentary power by disapplying national laws that conflict with EU Law.
  • Because of the lack of a codified constitution in the UK, there will be no “absolute backstop for equalities” that is currently provided by EU law as legislation protecting against discrimination can be amended without the safety net of EU law.
Overall, Parliament may gain more control over equality laws, with national courts less equipped to curtail its powers.

The report suggested four main actions that could be taken during the Brexit process, to ensure that the current level of legal protection over equality is not eroded:
  1. The Government should amend the Equality Act 2010, inserting a declaration of incompatibility clause which mirrors Article 4 of the Human Rights Act 1998. This would entail national courts being given powers to interpret legislation as far as possible as complying with the Equality Act, and also the power to give declarations of incompatibility where this is not possible. The committee also proposes that this clause would oblige ministers to make declarations of compatibility when passing bills. 
  2. The Government should include a clause in the Great Repeal Bill that explicitly commits to maintaining the current standard of legal protection against discrimination. A ‘non-regression clause’ could help reduce the potential for sliding backwards on equality law. 
  3. The Government should develop a cross-government equality strategy, to ensure that departments across the government are engaged. Further, a platform should be provided so that government departments and officials can link with and draw expertise from civil society organisations. 
  4. Finally, the Government should identify equality research and other equality initiatives which receive EU funding, and replace and ring-fence these funds so that research on equality can continue without disruption. 
The Women and Equalities Committee have said that they will continue to monitor and contribute to the Brexit process.

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