It is important to note that, as well as providing protections to people with 'protected characteristics', the Equality Act 2010 also places a duty on public-sector bodies (such as the government, parliament, local councils, and the NHS) to consider how their decisions and policies affect people with different protected characteristics.
However, the UK Government also points out that the Public Sector Equality Duty contained in the Equality Act 2010 does not apply to the introduction of Bills in Parliament, and in 2017 set out, "there is therefore no legal obligation on the Government to conduct and publish an equalities analysis of the [European Union Withdrawal] Bill under the Equality Act."
Overall this means that the UK Government has not undertaken a sector-by-sector impact assessment of how Brexit may impact on people with different protected characteristics. Instead, it produced a generic 'Equality Analysis' alongside the EU (Withdrawal) Bill in 2017, and it included two paragraphs on 'equalities' in the Impact Assessment accompanying the earlier version of the European Union (Withdrawal Agreement) Bill in October 2019.
The 14-page 2017 Equalities Analysis considers the effect of the EU (Withdrawal) Bill on five areas of legal rights with regard to equalities:
- the Charter of Fundamental Rights,
- the greater principles of EU law,
- the direct effect of EU directives,
- the ability to claim Francovich damages,
- and pre-exit case law from the European Court of Justice.
In each case, the UK Government anticipates limited or no adverse impact of Brexit on equalities, due to existing protections under UK law. For instance,
- with regard to the Charter, the Equalities Analysis (EA) states that "the removal of the Charter from UK law does not affect the retention in UK law of fundamental rights or principles…For this reason, we do not consider that there will be an impact on those with protected characteristics as defined by the Equality Act 2010"
- on principles of EU law, the EA states that while "it would not be open to the courts after exit day to disapply or quash legislation on the grounds that it breaches one or other of the general principles (for example the principle of equal treatment), the courts will continue to be required to interpret pre-exit legislation in a way which is consistent with relevant general principles… the Government considers that the provisions in the Bill dealing with changes to the operation of the general principles are likely to have a limited impact on individuals with protected characteristics."
- on EU directives, the EA states, "after exit, there could be a provision in a directive in the equalities sphere on which a person with a protected characteristic could have sought to rely directly on grounds that it had not been properly implemented (or had not been implemented at all). We recognise that the proposed provisions in the Bill could potentially impact on those with protected characteristics…[but] any such impacts would be limited."
- On Francovich damages (where states must compensate individuals for damage suffered as a result of the state's breach of EU law), the EA states that "where an impact on those with protected characteristics might arise as a consequence of the removal of the ability to claim Francovich damages, this will be limited."
- On CJEU case law, the EA states "It is not yet known what impact this will have on those with protected characteristics but we recognise that the proposed provision might create both beneficial and/or adverse impacts on those with protected characteristics where a court departs from retained CJEU case law."
While the 2017 Equalities Analysis acknowledges that there may be 'limited' impacts of Brexit on people with protected characteristics, it does not go into any detail about what these impacts may be, how widespread they are, and how it may impact different groups.
Furthermore, the EUWAB (October 2019) Impact Assessment does not acknowledge any potential for adverse impacts, stating that there will be "no undue effect" on equalities groups. The revised EUWAB (December 2019) – despite removing both provisions relating to protections for workers' rights and an obligation on UK Ministers to seek to negotiate an agreement with the EU to make provision for arrangements between the UK and the EU for unaccompanied children seeking asylum – was not accompanied by a new Impact Assessment.
The view that Brexit will have 'limited' or 'no undue' effects on social and equalities groups in the UK has been challenged by civil society organisations, think tanks and academics, as we will discuss below. These organisations have been examining the potential impacts of Brexit on specific equalities groups; and it is largely upon these data that this report relies, to determine the social impacts of Brexit on equalities groups to date, and further impacts after Brexit occurs.
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