Our ‘Brexit, regulation and society’ blog series continues with Rebecca Hilsenrath, Chief Executive of the Equality and Human Rights Commission. Her blog, based on her presentation to ManReg‘s recent Brexit event, focuses on how the UK can, and must, maintain its equality and human rights protections throughout the process of leaving the European Union.

• Equalities and human rights must be protected during Brexit process
• Exiting the European Union also offers new opportunities to build a global leadership role in rights and equalities
• The Equality and Human Rights Commission is pursuing a five-point plan for protection and promotion of rights

There is no doubt that the decision to leave the European Union raises significant uncertainty about the future of equality and human rights protections in the UK.

We know that Brexit is not going to be easy, and not all of the rights we enjoy are currently protected by domestic law. If we don’t stand tall, and these protections are in any way weakened, then it is the most marginalised groups in society who will pay the price.

But as well as banking the rights we have worked hard to build, Brexit provides us with an opportunity to strengthen our record, and to demonstrate our ambition that the UK is a global leader on equality and human rights.

As the country prepares to exit the EU, we must set out a positive vision for the kind of country we want to be. The Equality and Human Rights Commission is encouraging the Government and all political parties to pursue a five-point plan to protect and promote equality and human rights in the UK. This sets out concrete steps to build on the UK’s strong legal framework and bring the nation together behind shared values.

Point One: Protecting Parliamentary scrutiny

Our first priority is to protect Parliament’s role in scrutinising the UK’s equality and human rights legal framework.

The Repeal Bill should explicitly rule out the use of delegated powers, including Henry VIII powers, to make any significant policy changes to equality and human rights law. The Government has acknowledged that the purpose for which this power can be used should be limited, but we want to ensure that Ministers are required to certify that any new statutory instruments do not remove a protection, or make significant changes to equality and human rights law.

We are also calling for a constitutional right to equality to be included in the Bill – a recommendation that has been adopted by the Women and Equalities Committee. This would mean that our laws and state actions could be tested against our fundamental right to equality, and would ensure that equality has the same status in UK law as other fundamental rights.

The courts would also be able to declare legislation incompatible if it breaches the fundamental right to equality, and it would be unlawful for any public body to act in a way that is incompatible with this right. Moreover, parliamentary committees would be able to scrutinise legislation by reference to this fundamental right.

Point Two: Keeping our current protections

Our second priority is to retain the UK’s current equality and human rights legal framework as we leave the EU.

The recent commitment, from the Government and other political parties, to remain a signatory to the European Convention on Human Rights is welcome. But to ensure we keep our protections, equality and human rights laws that are currently underpinned by EU law, like the Equality Act 2010 and those on data protection and workers’ rights, must be retained.

The White Paper on the Repeal Bill provided some clarity about how the UK Government intends to protect equality and human rights in domestic law during Brexit. The Commission has prepared objectives in response to the Paper and the Conservative manifesto to ensure non-regression on our current protections, and build on those protections.

Point Three: Global leadership role

Our third point is to ensure the UK remains a global leader on equality and human rights. EU case law has had an important impact on equality in the UK. For instance, it is no longer lawful to charge men and women different premiums for insurance because of the Test-Achats case.

Although the Government’s White Paper indicates existing EU case law will be preserved, the Repeal Bill will not provide any role for the Court of Justice of the European Union in the interpretation of new law, and our domestic courts will not be required to consider future CJEU jurisprudence. The Government should, therefore, consider how to ensure UK courts keep up with future case law developments at the CJEU and courts in other countries that share our values.

Point Four: Safeguarding equality and human rights infrastructure

The fourth point in our plan is to protect our equality and human rights infrastructure.

The Commission is part of a global network of more than 105 National Human Rights Institutions (NHRIs) that plays an important role at both national and international levels. We must protect the Equality Act 2006 so that Britain retains an effective independent equality body and ‘A’ status NHRI.

There is a risk that the loss of EU funding could undermine the UK’s equality and human rights infrastructure. This includes academic research, for example on violence against women and how to police it, and voluntary sector services, such as those supporting older and disabled people in employment.

Point Five: Promoting a free and open Britain

And finally, we want to promote the UK as an open and fair place to live and do business.

It is important to ensure that future trade agreements contain human rights and democracy clauses that, at a minimum, meet current EU standards, and to guarantee that any new asylum arrangements with other countries comply with the Refugee Convention and European Convention on Human Rights.

The Government currently has a golden opportunity to create a fairer and more united Britain. Now is the time to begin the process of healing the divisions exposed during and since the referendum campaign to bring the nation together again.