Departure will remove vitally important safeguardsby Schona Jolly / April 19, 2018 / Leave a comment
Published in May 2018 issue of Prospect Magazine
Equality and the right to non-discrimination is a cornerstone principle within a democratic society. Unlike most democratic jurisdictions, the UK does not have a written constitution which safeguards equality. Although Britain has a history of implementing and developing anti-discrimination legislation which pre-dates its entry into the European Union, the EU has acted as both a driver and a guarantor of that right over the lifetime of our membership. When the UK leaves the European Union, we will no longer have the equivalent of any constitutional right to equality.
Equality is one of the general principles of EU law and has grown up from being a means of achieving market integration to becoming a social policy pursued as an end in itself—it is now entrenched, for example, as a standalone provision in Article 21 of the Charter of Fundamental Rights (which the government proposes to expunge with the EU Withdrawal Bill). For over 40 years, our domestic right to equality and non-discrimination has been developed and underpinned by this EU protection, shored up by the broad interpretation and influence of the Court of Justice (now the CJEU) in Luxembourg.
Once Britain leaves the EU, there is no domestic equivalent of that EU statutory floor below which our rights are not permitted to fall. There is no codified constitution which provides such a right: The Equality Act 2010, whilst a strong and largely self-sufficient piece of legislation (although notably one which also consolidates EU law), does not have constitutional status.
The 2010 Act brings together separate strands of equality legislation. Before the referendum, Leavers sought to calm nerves by arguing there would be no rollback on rights in a post-Brexit Britain because Britain had its own anti-discrimination framework, which predated the EU. At best, this was a serious misrepresentation. Even early on, some legislation was passed in the expectation of joining the then- European Community. Brexit supporters often cited the Equal Pay Act 1970 but they failed to mention that it was at least partly driven by what would then be the third attempt at entry into the (then) European Communities.