Against some uncertainty about how Brexit will impact the human rights and equality regime in the UK, we sat down with Professor Suzanne Rab of Serle Court Chambers to hear her thoughts on the matter. Professor Rab discussed the potential implications of Brexit on the human rights landscape and how the UK’s record in pioneering progressive legislation around equality and diversity could now be in jeopardy. Professor Rab also shared with us perspectives from her own personal story against an emerging landscape of increasing anti-immigrant sentiment.
Professor Suzanne Rab has a wide experience of EU law, human rights and competition law matters (combining cartel regulation, commercial practices, IP exploitation, merger control, public procurement and State aid). Suzanne’s practice has a particular focus on the interface between EU law and economic regulation. She advises governments, regulators and businesses across the regulated sectors in the UK, EU and internationally including in the communications, energy, financial services, healthcare/ pharmaceuticals, TMT and water sectors.
How might Brexit affect Human Rights, Equality, Diversity and Inclusion?
The UK will remain largely bound by EU law until the end of 2020 (“Implementation Period”), unless extended. Following the completion of the EU withdrawal process, from 1 January 2021 the Westminster Parliament will no longer have to comply with human rights obligations in EU Treaties or new EU directives and regulations protecting fundamental rights that are not already enshrined in UK law. This is all however subject to any future trade agreement being concluded with the EU which might reflect enhanced commitments.
What are the implications of Brexit for Human Rights?
Withdrawal from the EU has a potentially significant impact on human rights in the UK. It is helpful to consider this from at least three dimensions.
First, there is the question of whether Brexit might lead to the repeal of the Human Rights Act 1998 (“HRA”). The HRA is the main piece of domestic legislation to uphold human rights in the UK. The HRA gives effect to the European Convention on Human Rights (“ECHR”) in UK law. The Conservative 2017 manifesto stated that the party would not replace or repeal the HRA while the process of Brexit was underway, but would consider “our human rights legal framework” once the UK had left the EU. The 2019 manifesto proposed to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.” The Labour, Liberal Democrat, and SNP manifestos committed to retaining the HRA.
Second, there is the issue of which individual rights currently protected under EU law are already protected in domestic law or capable of replication in the UK, whether under the ECHR (European Convention of Human Rights) or otherwise. The ECHR contains commitments to uphold certain fundamental rights, such as the right to life, the right to a fair trial, and the right to freedom of expression. Brexit will have no automatic direct impact on the UK’s obligations under the ECHR. Rights protected under the ECHR are not absolute and some interferences may be justified in certain circumstances where they would not be under current EU law (e.g. the Article 8 ECHR right to a private and family life). Although the Government has published a Rights by Rights analysis outlining where rights currently protected under EU law are safeguarded under domestic law and other UK international obligations, there is no exact replication.
Third, there is a question as to how human rights might be included in any future trade agreements with the EU to preserve and enhance these protections. This issue is put into sharp focus by reports that the UK is preparing to reject EU demands to guarantee that the UK will continue to be bound by European human rights laws. Whilst this stance is consistent with the hard line on negotiations that the UK has adopted to date, it is at odds with how the EU approaches this issue.
Please share your thoughts on the exclusion of the Charter of Fundamental Rights?
Unlike the ECHR, the Charter of Fundamental Rights (“Charter”) is part of EU law. The Charter consolidates the fundamental rights of EU citizens, including the rights protected by the ECHR and the rights contained in other international conventions to which the EU or its Member States are parties.
The EU (Withdrawal) Act 2018 states that the Charter is not part of domestic law on or after exit day. The Joint Committee on Human Rights and the Equality and Human Rights Commission have questioned whether there will be a reduction in human rights as a result. The Charter enables individuals to bring legal action to strike down domestic legislation that is incompatible with a fundamental right protected under it, which is not possible under the ECHR. Although the Charter reaffirmed rights which existed at the time it came into force, its application has led to the development of new rights, for example the ‘right to be forgotten’ which derived from existing rights to a private life and personal data.
A case illustrating the potential difference between the application of the Charter and the ECHR is Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs and Libya  EWCA Civ 33 where the State Immunity Act 1978 was found to breach both the Charter and the ECHR insofar as it blocked employment law claims by an embassy’s domestic staff. The Supreme Court disapplied the State Immunity Act 1978 concerning discrimination claims and claims under the Working Time Regulations because these derived from EU law and the Charter took precedence over UK law. However, claims based on non-EU law rights such as claims for unfair dismissal could not be heard. The Supreme Court could only declare the State Immunity Act 1978 to be incompatible with the ECHR. It appears that after the Implementation Period, even EU-derived claims would not succeed unless and until Parliament amends the State Immunity Act 1978.
What are the potential implications of Brexit in respect of Equality, Diversity and Inclusion?
The UK has historically been a leader in enacting substantive equality legislation, seen half a century ago through the Race Relations Act 1975. This was followed by numerous pieces of legislation expanding the scope of protection to what are now the protected characteristics and identities. (The Equality Act 2010 covers – age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity). Although these incremental protections have been supplemented by EU requirements the UK has introduced its own innovations such as the first public sector equality duty (Race Relations (Amendment) Act 2000)).
However, there are well-voiced concerns that the anti-immigration rhetoric that surrounded the Leave vote represents a turning point away from a legal and cultural environment that safeguards and promotes cherished values of equality, diversity and inclusion. A concern is that an increase in hate crimes since the referendum is symptomatic of a new agenda in our society which is characterised more by heightened Xenophobia than it is by respect for differences.
We can debate extensively whether this is true or not. I don’t think it matters whether you voted Leave or Remain to see that a large number of people have been left feeling at the very least unsettled about whether they are welcome in the UK regardless of the strict legal position.
I comment here as a lawyer, citizen and human being and with an emphasis on the latter. My friends, family and colleagues have often quipped that I could be a poster child for diversity, inclusion and social mobility. Practising at the English commercial Bar, as the daughter of immigrants from India and Ireland, educated in the state system and born and bred in the North of England, I can see why they might say this. I can also say first-hand that I have lost count of the times I have experienced at the very least a level of unconscious assumption about where I came from. Professionally this can manifest itself in subtle ways such as confusion as to my role on a case or being mistaken for the other brown woman on the job. But the fact remains that it was not until a few weeks after the Referendum that I can honestly say I experienced direct and motivated racism on a personal level. This was a personal assault in broad daylight where I was knocked to the ground by a stranger and told “get back to your own country”. I don’t believe my situation is unusual.
Quite apart from the requirements under existing and future international agreements, our domestic politics will shape any changes to legal protections in the areas of equality and diversity. And we all have a role in shaping this narrative by what we say and do.
What are the implications for future trade agreements that may be concluded between the UK and the EU?
The UK’s commitment to the ECHR and other European human rights protections may still have a role to play in determining the future relationship with the EU, for example as part of any trade agreements to be concluded with the EU.
The EU has committed to respecting and promoting human rights and democracy through its external action. The revised Political Declaration of October 2019 sets out “core values and rights”. This forms the basis for cooperation where the future relationship should incorporate the UK’s continued commitment to “respect the framework” of the ECHR.
The EU has included human rights provisions in its trade agreements for several years. In practice, human rights are likely to play a significant role in any future negotiations and agreement on security cooperation. Cooperation within the EU on criminal justice and security is based on the principle of ‘mutual recognition’ of decisions taken by Member States, underpinned by trust in the integrity of those decisions and the treatment of individuals.
It is hoped that human rights do not become a bargaining chip in future trade deal negotiations.
The potential impact of Brexit on Human Rights, equality, diversity and inclusion has been fiercely debated since the 2016 referendum. Although Brexit will not immediately result in a radical alteration of the legislative framework surrounding these areas, the danger of our rights being gradually watered down or no longer meeting the standards of the rest of Europe requires serious consideration.
In the second instalment of this interview, Professor Rab will discuss how employers should tackle equality and diversity post-Brexit as well as the ramifications of the new points based immigration system.
For more on what happens next in Brexit, read.
Disclaimer: The views presented in this blog are personal opinions and do not constitute legal advice or the views of Advocko.