This will be a year of political and constitutional turbulence for equality law. What changes can we expect after the general election? In this three part blog-series, Professor Sir Bob Hepple QC examines some of the key issues and makes proposals for the priorities of an incoming government. The series begins by reflecting on the position of equality law and the protection of citizens in light of the increasingly precarious relationship between the UK and the European Court of Human Rights and the EU, as well as its devolved regions. The series is based on Sir Hepple’s article in the Equal Opportunities Review (Issue 255, Feb. 2015) and presentation at the TUC/EOR Discrimination Law 2015 conference on 23 January 2015.
So far, the political parties have said little specific about their intentions in regard to equality law. The Conservatives’ threat to withdraw from the European Convention on Human Rights (ECHR), and their undertaking to hold a referendum on future membership of the EU, could fundamentally affect the constitutional basis of our equality law. One of the main purposes of the Equality Act is to make our domestic law consistent with Britain’s international and European treaty obligations.
The courts interpret the Act so as to give effect to those obligations. David Cameron and his colleagues have announced the intention to “end the ability of the European Court of Human Rights to force the UK to change the law”, and to allow “only the most serious cases” to proceed (EOR 252). Dominic Grieve, the former Conservative Attorney-General, has said that this move would be “damaging for the UK and for human rights across Europe”, and warned that non-compliance with the European Convention on Human Rights would call into question the devolution settlements for Scotland, Wales and Northern Ireland, which all enshrined convention rights (Times, 4 December 2014).
The Human Rights Act already preserves the sovereignty of parliament to refuse to change the law, although if parliament does so the UK may be in breach of its international obligations. Unless the UK withdraws from the Council of Europe and the EU altogether, victims of discrimination and other breaches of convention rights will still be able to go to the Strasbourg Court, putting us back to the pre-2000 position. There have been several discrimination cases where the ECHR has “led to pioneering decisions” for example on the rights of gay people and transsexuals, the right to manifest religious belief and dismissal on grounds of political opinion (EOR 252). If implemented, the proposals will create confusion and uncertainty in an already complex area of law. If a British Bill of Rights replaces the ECHR it is unclear what it will say about the principle of equality as a fundamental human right.
There appears to be no likelihood of Cameron succeeding in negotiating any changes to the EU Treaty which would remove or modify the principle of non-discrimination against EU nationals. If he makes this amendment a condition for continued membership of the EU, precipitating a “Yes” vote for withdrawal, the UK will lose one of the major pillars of domestic equality law. Without the EU, British law would not have the principle of equal pay for men and women for work of equal value, nor laws against discrimination because of age, sexual orientation and religion, nor equal treatment of part-time, fixed-term and agency workers. The case law of the Court of Justice of the EU over the past 40 years has vastly expanded the scope of our domestic law. Withdrawal from the EU would be a major setback for the advancement of equal rights in Britain.
Another constitutional issue which will loom large, is the devolution of powers to Scotland. The report of the Smith Commission (published on 27 November 2014) envisages that the Equality Act will remain a “reserved matter” (for the UK Parliament), but goes on to say that “the powers of the Scottish Parliament will include, but not be limited to, the introduction of gender quotas in respect of public bodies” and that “the Scottish Parliament can legislate in relation to socioeconomic rights in devolved areas”. It appears from paras. 63 and 64 of the report that there will be devolved legislative powers over the operation of tribunals, such as in respect of rules and fees, even though substantive discrimination law remains reserved. Scottish and Welsh Regulations on the enforcement of the public sector equality duty (PSED) already go further than those applicable to English public authorities. We face the not unwelcome prospect of “regulatory competition”, which may encourage England to follow the more progressive practices in the other home countries. However, significant differences between these countries could be confusing and burdensome for UK-wide companies.