Equality and Diversity Forum Briefing for the House of Lords EU (Withdrawal) Bill Second Reading
1. The Equality and Diversity Forum (EDF) is the national network of organisations committed to equal opportunities, social justice, good community relations, respect for human rights and an end to discrimination based on age, disability, gender and gender identity, race, religion or belief, and sexual orientation. Further information about our work is available at www.edf.org.uk. Our members can be found
2. This briefing considers the effect of the European Union (Withdrawal) Bill (the Bill) on equality and human rights legislation. We wish to protect our current equality and human rights provisions, and ensure there can be no process for them to be changed without appropriate Parliamentary scrutiny and the involvement of citizens and civil society.
The relationship between Parliament and the Executive
3.EDF believes that to preserve the sovereignty of Parliament on these important issues, equality and human rights should be exempted from the use of delegated powers. Any changes to UK human rights or equality law should only be made by Act of Parliament.
4. Acts of Parliament go through a careful and intensive process of scrutiny. By contrast, delegated powers using Statutory Instruments and regulations are proposed by Ministers and have very little scrutiny by Parliament by positive or negative resolution. So, it is important how large is the power given by primary legislation to Ministers to legislate in this way. When too extensive powers are given to make subordinate legislation power shifts from Parliament to the Executive.
5. The EDF considers that the Bill has extremely wide and extensive delegated powers in clauses 7 to 9. These powers can be used when the Minister considers it appropriate to ‘prevent, remedy or mitigate’ a broad range of issues. They are too wide to guarantee appropriate scrutiny.
6. We agree with the comments of the Constitution Committee that the changes relating to delegated powers currently proposed by the Withdrawal Bill ‘would fundamentally challenge the constitutional balance of powers between Parliament and Government and would represent a significant—and unacceptable—transfer of legal competence’.
7. We welcome the amendment to create a sifting committee to vet the appropriate procedure to be applied to these Statutory Instruments as a step in the right direction. However, this procedure will still not allow either House of Parliament any opportunity to suggest amendments to reflect concerns about the content of the SI or regulation.
8. As a result, both Houses of Parliament will be confronted with an unpalatable choice to accept a Statutory Instrument even if they believe it is fundamentally flawed, or reject it entirely even if some elements are acceptable. In practice, very few Statutory Instruments are ever rejected: the last time the House of Commons rejected a Statutory instrument was 1979, and the House of Lords in 2000.
9. We welcome the qualifications to this power which provide that these regulations cannot ‘amend, repeal or revoke’ the Human Rights Act (HRA) or be made more than two years after the EU exit day. However, we consider that the bill should explicitly rule out the use of delegated powers to make changes to equality and other human rights law. This would ensure that Parliament retains the right to scrutinise any changes to the UK’s equality and human rights laws by requiring that such changes be made by primary legislation rather than delegated powers.
10. We also welcome the new provision inserted into schedule 7, part 2, clause 21 which requires a Minister in respect of any such statutory instrument to make a statement as to whether it ‘amends, repeals or revokes any provision of equalities legislation’ and if it does to explain the effect of each such provision. This will undoubtedly draw attention to any proposed change to equalities legislation. However, it will not prevent such changes being made.
11. Exempting equality and human rights from the use of delegated powers is the simplest way of ensuring that this cannot happen. It is vital that Parliament retains the ability to fulfil its important constitutional role in fully scrutinising changes to the UK's equality and human rights laws. This means that any changes should be made by primary legislation rather than through the proposed delegated powers.
12. Additionally, we welcome the inclusion of a ‘sunset clause’ in the bill but this should make clear that the ‘exit day’ should be treated for this purpose as the day of commencement of any transition arrangements and not the end of them.
The Rule of Law and Legal Certainty
Domestic right to equality
13. The Bill should set out a clear principle that leaving the EU should not mean that equality and human rights law is diluted. This is necessary because currently most of our equality law is underpinned by EU law so that our domestic law cannot fall below the standard of EU law. This is an important guarantee of minimum standards for equality rights. It has, for example, been used to enable workers to claim equal pay for work of equal value. When we leave the EU we will lose this additional layer of protection of our rights and freedoms.
14. We note the Government’s commitment to continue to ‘protect all the protections covered in the Equality Act 2006, the Equality Act 2010 and equivalent legislation in Northern Ireland will continue to apply once the UK has left the EU’. This commitment is indeed welcome, but it does not provide any actual protection under the law.
15. EDF believes this is a once in a generation chance for Parliament to turn the loss of protection into an opportunity to cement our commitment to being a world leader on equality by creating a domestic right to equality on the face of the Bill.
The proposals for the interpretation of judgments made by the Court of Justice of the European Union post-exit
16. The EDF considers that the provisions in clause 6 on the interpretation of retained EU law are insufficiently clear. The UK courts and tribunals will continue to have to interpret EU law after we leave as the EU law has been incorporated into our UK law. Consequently, we consider that the UK courts and tribunals should ‘have regard to’ anything done by the Court of Justice of the European Union whenever it is relevant to do so. This phrase gives a measure of discretion to British Courts but also keeps our alignment and prevents a race to the bottom.
The Charter of Fundamental Rights
17. The Charter of Fundamental Rights provides important protections for rights that fall within the scope of EU law, it operates as an essential part of the body of EU law. The bill specifically excludes the Charter and the Government say that omitting the Charter will not affect 'the substantial rights of any UK citizens'. We do not agree with this assessment.
18. The Charter protects access to justice in cases where there are gaps in domestic provisions. For example, when a woman employed in a private capacity by a foreign government in their UK embassy was prevented from bringing a claim of discrimination and harassment because her former employer claimed state immunity the provisions of the Charter were used to ensure that she had a right to access to a Court to adjudicate on her claim.
19. Additionally, there will be no right of action in domestic law based on a failure to comply with any of the general principles of EU law, which include the fundamental rights set out in the Charter; and the courts will not be able to dis-apply or quash any law because it is incompatible with any of the general principles of EU law, including fundamental rights.
20. The Government have said that these shortcomings can be made up by the application of some of the relevant UN treaties that the UK has ratified. However, ratification of these treaties does not make them directly enforceable in the UK so they will not provide equivalent rights.
21. Explicitly incorporating the provisions of the Charter into UK law would mean that these rights will remain protected.
Briefing by the Equality and Diversity Forum- originally published here.