Equality law training in Scotland

Juliette Casey and Clare Collier, Equality and Human Rights Commission Brexit event, 13 March 2017

Juliette

Good morning everyone it is my very great privilege to welcome you all to this equality and human rights commission event designed to examine the implications for equality and human rights in Scotland after Brexit as Lindsay has mentioned my name is Juliette Casey and I’m a member of the faculty of advocates here in Edinburgh my task this morning is twofold, first of all to introduce the speakers and second to say a few words in very general terms about the implications of Brexit.

First the Speakers, Claire Collier is a Senior Managing Lawyer at the equality and human rights commission and she will discuss how we can protect, maintain and enhance the current level of protection of equality and human rights in the UK and so Clare will focus on reserved matters. Doctor Christopher McCorkindale is a lecturer in public law at the University of Strathclyde and he will discuss the impact of Brexit with a particular focus on Scotland and opportunities for constitutional reform.

What of Brexit itself, the Prime Minister has announced that she plans to trigger Article 50 by the end of this month at the latest, if the ensuing negotiations go according to plan then the UK will leave the EU we are told by the end of March 2019. Politicians tell us that negotiations will involve setting out to change Britain’s relationship with the EU or sever it entirely and within this context for Scotland parallel discussions as to whether Scotland are to stay within the UK or not. Whatever Britain’s and Scotland’s ultimate relationship with the EU will be, it is clear that we are witnessing a shifting of the tectonic plates and arguably on both sides of the Atlantic. While these developments present obstacles they present opportunities also. We can take this time to reflect and consider what values we want to put at the epicentre of our lives and how best to give effect to those values, so without any further ado I will now invite Clare to begin our discussion by first of all addressing the implications of Brexit for the UK.

Hello everyone, as Juliette said my name is Claire Collier, I would like to start by saying it is a very great pleasure to be here and to thank my colleagues from the EHRC Scotland office for inviting me, it’s lovely to see so many unfamiliar faces because in London of course this you know a gaggle of people who come to events like this who I’m quite familiar with and of course I know none of you at all so I hope you will all put up with me, and be a little bit interested in some of the things I've got to say at least. The timing for this event couldn’t be better in the sense that it is absolutely all happening at the moment, it is very likely that the bill to trigger article 50 will be approved in the Westminster parliament today which means that although as Juliette said the government’s commitment to trigger Article 50 by the end of the month it may in fact be as early as tomorrow. Also today the first minister in Scotland is making an important speech which of course we do not know what she is going to say just yet but obviously very important context for everything that is going to come out of Brexit for equality and human rights in the future of Britain and the future of Scotland so it is all happening as we speak. The things I am going to talk about are obviously not what we don’t know about what’s going to happen either in Westminster or here in Scotland today but things to do with what the role of the commission is going to be during the negotiation process for Brexit, what the commissions role is, if you like, in trying to ensure that human rights and equality are protected both during the negotiations and following on from Britain’s eventual exit from the EU. I will talk about what we think that looks like in terms of vision and what we think the government’s vision should be for human rights and equality following Brexit and our recommendations in that regard, what our strategy is particularly around influencing with government departments and with ministers and then some more substantive things around the loss of the charter in particular mitigating the impact of the rights that will be lost and similarly around losing the jurisdiction of the CJU, I’m going to go through all this in a bit more detail obviously as we go along I’m just trying to signpost a little bit some of the stuff that I’m going to talk about as we go along. I’ll talk for around 40 minutes and 45 minutes at the most and then there will be plenty of time for questions, comments and discussion after that before we then break. So I hope that’s OK for everybody.

So starting then with the Commissions role itself. Lindsay already told you what our statutory kind of remit is, what that means is that we have specific legal responsibilities under the 2006 Equality Act both as a national equality body and as a national human rights institution. So those are supra national types of body, so the national equality body as in EU kind of designation and applies to bodies that protect equality law across Europe, national human rights institution is a UN accreditation that means that we have an obligation to promote and protect human rights in the UK, well in Great Britain actually, sorry, so our role is to advise Government and Parliament on the equality and human rights implications of existing laws and of proposed laws and on the adequacy and efficacy of both the human rights act and the 2010 equality act. So obviously this role is really important in the wake of the constitutional legislative policy changes which will follow from Brexit. One of the things that we will be doing is carefully scrutinising and advising government and parliament on all of the proposals that come up over the next 2 years which might have implications for the protection or advancement of equality and human rights in the UK and obviously we will be seeking as many opportunities as possible both to protect existing rights or potentially to expand rights both in the UK and its constituent nations.

As you are probably all aware Brexit is not going to have any direct impact on domestic equality law the main difference is that in theory legislation could be repealed once the EU requirements to maintain it is gone. Our position is very clear that the state of the law as it stands should be an absolute floor if you like, for where we go from here, so all of the legal protections that we have at the moment which advance equality and human rights should not be diminished. Much of our domestic equality law predates the equivalent EU law which our own legislation has helped to shape. We believe that the current equality protections are accepted throughout Britain as a valued part of British culture and we also believe that they are not immediately at risk. The same cannot be said for all EU derived fundamental rights particularly those that arise under the Charter of fundamental rights of the EU and some of the EU oversight mechanisms over laws to protect rights in this country will disappear so just to set out my stall if you like from the start I’m going to just run through what our key recommendations are going to be during this process over the next 2 years of negotiation as we head towards Brexit and then I’ll come back to each of these as I go along in my talk today.

So the first of our recommendations is that we need a free standing, sorry they may not be in the same order on the slide so apologies if that’s the case. The first and the most important I think in the immediate future is that we need a free standing principle of equal treatment or an equality guarantee that is not dependent on the engagement of another right.

The second recommendation is that the UK government should implement those parts of the equality act that are not yet in force and indeed, though I think this is unlikely, those parts of the equality act that were previously enforced and have now been repealed. We believe that the UK should ratify protocol 12 of the ECHR and I’ll come back to what this is for those of you that are less familiar with it in a minute we believe that the significance and importance of the international human rights treaties will increase so those commitments which arise under the covenants and conventions that we've signed up to from the UN are going to increase in importance and we think that the government should consider enhancing the status in domestic law of much of the law that arises in those treaties. We also think that they should take the implementation of concluding observations by the treaty bodies very seriously and produce timely and a resourced action plans to do that.

The next recommendation is that legislative and policy changes that occur in the wake of Brexit and indeed in the run up to Brexit must be subject to equality and human rights impact assessments that is to ensure that there is no regression from the state of play and I’ll come onto that but I have been encouraged by indications from my colleagues in Westminster that they do plan to do that so that’s a promising start, and finally we think the UK should make an explicit commitment to remaining the best in the world in relation to the protection of equality and human rights and in order to do that it needs to make a commitment to analysing the future rights and enhancing law that emanate from the EU or from elsewhere with a view to considering similar measures are appropriate for implementation in the UK so as to ensure that we keep step with the progression that happens elsewhere in the world.

So our strategy how we are going to try and get those recommendations accepted by government and how we are going to go about that. Our Brexit strategy has 3 main limbs the first is to work to heal the divisions which we saw in the run up to and after the referendum you will all have seen the stories of the increase in hate crime and we want to do quite a lot of work understanding how to try not only how to give people information in how to respond to hate crime and things like that but also to understand the types of interventions which can work to influence peoples attitudes and values so that we can actually help contribute to bringing rates of hate crime down. The second limb of our strategy is to work to promote the involvement in politics of those who generally feel excluded from the political process and from political standards in public life it was very clear during the EU exit referendum campaign and from its outcome that there are large swathes of our society that do feel excluded from the political process and who don’t feel heard. So that’s the second limb of our strategy to increase the involvement in politics and the third limb is to work to safeguard the laws and structures that protect our equality and human rights it is that limb if you like that I think I have been asked to come here today to talk to you about so most of what I am going to focus upon is very much in that space and you will realise of course the recommendations that I've just set out also relate to that third limb if you like in our Brexit strategy.

So our immediate focus in relation to safeguarding equality and human rights law is on 2 issues the first to maintain current levels of protection and rights and the second is to try and call for a positive vision of what equality and human rights protections should be in the future in the context of a UK outside of the EU.

The good news is that the governments has already made a commitment that all the protections equality legislation will continue to apply once the UK has left the EU, they said there will be no going backwards on this issue. So I've put a couple of quotes up on the slide there that demonstrate that this is still this governments intention. The intention as you can see from the quotes on the slide applies to equality law and it applies to workers rights, so employment law broadly speaking. There has been no such equivalent commitment to maintaining the levels of protection of rights outside of the equality and employment spheres and in this moment where obviously we are in a period of significant constitutional change throughout Britain and, of course, perhaps even more so in Scotland it’s not in our view enough. We think it is vital that the government sets out a better vision for rights across the board it is not clear at all from anything that the government has said so far that workers rights have been singled out they have a whole section in the white paper but none of the other rights that we all believe in and think should be protected are covered in the white paper in any detail at all. So we need to strengthen our homegrown legal protections for example by implementing the provisions of the equality act as I have already mentioned that would include for example the socio-economic duty in section 1 of the Equality Act 2010 and I’ll come back to that later on. The Equality Act 2010 was passed with cross party support so we believe that there is real potential to enable that that vehicle to be used to drive some consensus across different constituent groups in parliament and beyond. In particular, for example, the provisions to increase diversity in parliament could help to reengage those groups who feel excluded from decision making in our country. The commission has also advised the government to consider to introducing constitutional rights for equality against which any new laws or actions by the state can be tested. The Westminster women and equality committee has suggested one model for achieving this aim through time by bringing forward and amendment to the equality act 2010 in line with the human rights act our own draft clause that we may be able to circulate I think after this event would work on a similar basis to, so that the idea is that you would put a clause into the human rights act that would expand article 14 of the ECHR to these situations where you are not dependent on another right. We have also advised the government to reaffirm its commitment to international human rights standards by stating its commitment to remaining a party to the European convention on human rights. It should also consider ratifying protocol 12 as I've mentioned that will enhance the UK’s international accountability in respect to the right to non discrimination in the UK law, I’ll just mention also in relation to remaining a party to the European convention on human rights there seems to still be a considerable amount of debate in the Conservative party about whether or not they actually propose to withdraw from the convention in the long run there was a parliamentary question last week when David Davis stated unequivocally that it was not part of their plan to withdraw from the European convention whilst at the same time you've got people in the Conservative party working on the 2020 manifesto who are suggesting that there will certainly be a manifesto commitment to do something about this long running British bill of rights issue, the question is whether that proposal will include leaving the European convention or whether its rather more sort of tinkering at the edges type model which is what we were expecting to come out last year just before it most recently got shelved. So there is a whole lot of questions around that but we are talking both to this government and separately to the Conservative party itself about the importance of remaining in the European convention on human rights and in council of Europe that is clearly an important part of this strategy that rights are protected post Brexit, and finally we advised the government to demonstrate it takes its global commitment seriously by embedding the obligations its signed up to in the UN human rights treaties in the UK law and setting out how it will implement the UPR’s recommendations as well as the concluding recommendations of UN treaty bodies. This is particularly relevant obviously because UN Human Rights Council is reviewing the UK’s human rights record if you like at the universal periodic review in May so the UK government will be questioned by all the other members of the other UN human rights council about its focus and commitment, and successes and failures in upholding human rights in the UK and its very obvious I think already that Brexit is going to be a key part of that debate coming up.

So the immediate focus needs to be on what we can achieve in the great repeal bill for those of you that are interested the House of Lords select committee produced a report on the great repeal bill just last week which is worth checking out online if you haven’t seen it in and you’re interested in the use of delegated powers to amend legislation and so on. We have been encouraged by fairly positive discussions both with the government equalities office and with DECSEU we have been told by officials that the great repeal bill will not give ministers powers to amend or repeal equality and human rights laws so it appears that both the equality acts of 2006 and 2010 will be safe in that sense but its not clear exactly what the potential extent of Henry VIII powers in the great repeal bill will be so we do think that the government needs to more explicitly confirm its commitment to protecting its current legal protections and it would be helpful to do that rather than simply drafting the great repeal bill so that it makes it clear that Henry VIII clauses can only be used in certain circumstances but make it explicit that they can’t also be used for certain purposes so that certain types of laws if you like are excluded from that kind of law making process.

All of the things that I've just said all of these recommendations that we have made to government we have also made publicly in evidence to the joint committee on human rights and to the women in equality committee also to the Welsh Assembly equality committee and I believe the Scottish government advisory group round tables. So I do think its evident if you look at the GCHR report and the WEC report that some of these things that we have been saying have been listened to of course we are not the only people saying some of these things and there are certainly parliamentarians who are aware of what some of these issues are. So the next phase of this work will be to work with NGO’s other parts of civil society with the other UK NHRI’s and the other NEB to ensure a joined up approach to influencing both now and as Brexit negotiations progress I think it would be really useful when we come to the Q&A after I finish speaking to hear from you about what you have planned we are aware that there are a lot of like-minded organisations who could rally behind these points that we are making particularly in respect of the use of delegated powers and what the great repeal bill looks like and so on and it would be interesting to hear what other peoples policy strategies are, certainly in England we are coordinating to a certain extent some parts of civil societies engagement and helping people to meet and discuss and so on but we are obviously keen not to duplicate or undermine the peoples efforts so its important to know what kind of things are in the pipeline. So, other opportunities coming up I've talked about the great repeal bill and the importance what that says in relation to the use of Henry VIII powers. Brexit will loom large in the UN human rights councils review in May there some opportunities specifically around that there’s evidence session on UPR that GCHR are holding in April which will I think potentially include stakeholders from Scotland as well as the minister, NHRI’s some of the UK based NGO’s as well. The examination itself is on 4th May and the UK will respond to the questions put to it on 9th May, so we are talking along with the other UK NHRIs with key embassy’s to act on the international stage who we believe may ask relevant questions or relevant recommendations in relation to the protection of equality and human rights in the context of Brexit. Obviously they can choose to make their recommendation about absolutely anything so there is a whole gamete of things that may come up during UPR and some of those are equally important there are lots of human rights issues that are very pressing in the UK but we do think it is important there is at least a core base of sensible questions and recommendations around protecting human rights and equality in the context of Brexit to ensure that it remains high on the governments agenda over the next two years. Brexit also featured in the concluding observations of the UN’s race treaty body in particular around the hate crime spike and we are actively following up on these recommendations, I would also like to feature the concluding observations from the CRPD committee and there are issues there not only around example disability and welfare and so on which are high issues on the agenda but specifically EU issues perhaps around the EU accessibility act or the impact of the future immigration deals on the availability of personal assistance to support disabled people living independently, which is anecdotally one of the most serious issues being talked about disabled people in the UK in the context of Brexit. The pre-sessional working group for CRPD is in March and the examination is later this summer so again opportunities there to make sure that Brexit remains high on the agenda. The all party parliamentary working group on equality is planning to hold a session in July on risks and opportunities in the Queens speech and since the Queens speech will include the great repeal bill, so we think, Brexit is likely to be key focus also of that. So I think that just about brings me to the end of the bit about strategy and influencing and I want to move on to talk about more specifically around some of our key substantive concerns about EU based rights law. I put up on the slide there a kind of list of the areas that EU law affects most strongly. I’m not going to try and cover every potential impact of Brexit within each of these areas, and there are in fact quite a lot of papers that are already been published academic papers, NGO papers and so on that covers some of those areas in a bit more detail and indeed some things published by us as well but I just want to pull out from there a few specific sort of highlights some that I think are particularly important or problematic areas that we are thinking about and of course mainly focusing on potential solutions I hope and perhaps some opportunities.

So in relation to equality law first of all as you all know the bulk of EU derived discrimination law is fully incorporated into domestic law that’s that’s not at risk, even in respect of those laws which are not currently incorporated into domestic law but which have direct effect in the UK, i.e. the whole of the EU law AKI with the body of UK law, the UK government has indicated that existing protections will be maintained post Brexit in the great repeal bill and that they will be reviewed on a case by case basis by parliament I think that commitment goes far enough to suggest that it won’t be possible for them to appeal primary certain legislation by the use of secondary legislation. Of course the primary difference though post Brexit is where at present certain protections that are contained in our domestic law are required by EU law after EU exit the guarantee will be removed and of course we won’t have this government forever and a future government might be less willing to provide the commitment that this government has made so far so they are potentially vulnerable to repeal in future. Human rights principles form a part of the treaty on the EU article 2 of the TU provides that respect for human rights is one of the rights on which the EU was founded, Article 6 of the TU recognises 3 main sources of fundamental rights, the Charter as I have already mentioned the European convention of protection of human rights as you will all know and the constitutional traditions common to member states. The constitutional traditions common to member states is actually quite a problematic category because as you can imagine the constitutional traditions common to member states, well they vary a lot across member states and trying to hold that everything in the charter is common to all member states is a slightly difficult position to hold but nevertheless those sources if you like are combined under now the charter because the charter includes within it things that are drawn from the constitutional traditions common to member states and the charter has the same value as treaties and is part of primary EU law. The TU of course also makes provisions specifically in respect of those in equality providing that EU law shall combat social exclusion and discrimination, promote equality between women and men and protect the rights the right of the child, so there is a lot of law even at the highest level in the EU that pushes us in a particular direction. There are also a lot of specific areas in EU law were domestic protection has really arisen in respect of a push from the EU in relation to fundamental rights. So the right to respect for privacy life is of course a right protected by international conventions including the ECHR but it is particularly strongly protected in the charter and under the EU data protection directive. The data protection act 1998 and its Scottish equivalent domestic legislations, which give effect to the EU law in this area so its another area where there is a risk if you like that once the underpinning EU law is gone everything is then up for grabs in terms of what a potential future government might do in terms of amending privacy rights. Trafficking is another area which has been, where the law has been driven a lot by the changing situation in the EU although trafficking is prohibited by the European convention on human rights and other international instruments. The EU’s directive is the one that establishes particular minimum rules concerning for example the definitions of criminal offences, sanctions and so on and also requires assistance support and protection to be given to make some sort of trafficking, so that’s just 2 areas, trafficking and privacy rights that I think are particularly important for us to keep an eye on going forward, in addition of course to equality.

So just thinking about the charter for a minute, I don’t know how many of you are familiar with the EU charter on fundamental rights, perhaps I can have a quick show of hands, all those who know about the EU charter, ok very few, that’s more or less what I expected but I didn’t want to tell you things that you already know. So the charter is the EU’s equivalent if you like to the European convention but it goes much broader than the EU’s convention on human rights it has rights, freedoms and principles within it including all of those that are recognised by EU law. And it is divided into 6 sections, 1 on dignity, freedom, 1 on equality, 1 on solidarity which is the most controversial one in the UK context, 1 about citizens rights and one about justice. At the moment the charter is legally binding in the UK due to the primacy of the EU law it has direct effect there are a lot specific arguments about exactly what that means, particularly in relation to those rights which are not rights but which are principles which is a bit beyond the scope of this talk but the point that I want you to grasp is at the moment there is a body of rights law that is directly applicable across the UK and which will be lost because it is absolutely certain that whatever happens in respect of what this government does in terms of agreeing a deal with the EU it is not going to include signing up to being bound by the charter in terms of just disability and individual rights that is one of the motivations for the Brexiteers wanting to leave the EU and so it is one of things that will certainly go I think, so it is inevitable that there will be rights that will be lost from the domestic legal order post Brexit due to the loss of the charter, and as I've said that is because the charter is much more broader than the European convention itself. So in relation specifically equality law the charter includes article 21 the charter of fundamental rights includes a provision of the discrimination on any ground, you can see how I am going to link back in here for the need for a constitutional rights for a policy in the UK because article 21 of the charter specifically prohibits discrimination on any ground and the list is sex, race, colour, ethnic or social origin, genetic features, language, religion or belief political or any other opinion not in the ECHR, membership of an association, property, birth, disability, age, sexual orientation, nationality and it’s a such as list so its not exhaustive. So it protects against discrimination on ground that are not protected characteristics under the equality act but only within cases arising within the scope of the EU law but that is not insignificant in terms of the areas where the EU has competence, so it gives broader protection than the equality act in the sense that it applies across a broader range of grounds and it gives broader protection than 14 of the ECHR in the sense that it’s a free standing right, so its not dependent on another right being engaged you’ll all be aware I’m sure that the way article 14 of the ECHR works is that it piggy backs on another right, so if you’re in the bandit or scope of another right, so in the right to a private life under article 8 of the ECHR for example you can then argue that a discrimination point on a limitless list of grounds under article 14. Article 21 of the charter doesn’t have that constraint you don’t need to be within the ambulant of another right so it is a free standing right. The ECHR does have an equivalent right to article 21 of the charter, the problem is that the UK hasn’t signed up to it, its protocol 12 of the European convention on human rights and its basically the same as article 14 except that it doesn’t require you piggy backing on another right. So ratification of protocol 12 is one of the changes we are going to be advocating to mitigate the loss of the charter fundamental right because that will replace if you like article 21 in fact it will go slightly further than replacing article 21 because it will apply across all spheres of life not just within EU competence, but obviously that is a good thing. So the protection provided by the charter in domestic law just to make sure that I have made this clear, is really powerful at the moment because legislation that conflicts with the fundamental right protected by the charter can be disapplied by the domestic law so that’s the same as the position in relation to all other EU law, EU law has primacy so where EU law and domestic law conflict, EU law wins, so because the charter is primary law you can dis-apply domestic legislation that conflicts with the fundamental right protected by the charter, and claiming for damages on EU rights is also a bit easier than claiming rights from the HRA. So it is a really important tool that has been sadly underused while we have had the opportunity to use it. Though increasingly over the last 2 to 5 years we have seen a lot more use of the charter across all UK courts. It will be going so we need to do what we can now to identify exactly what the benefits of having the charter are so that we can try and transpose some of those benefits into some kind of domestic equivalent as we go along. So that’s the charter.

Moving on to equality rights I expect that you are all familiar with the race directive the re class directive the framework directive, the EU equality directives which collectively provide protection against discrimination at work and you will know the limited list of grounds, racial or ethnic origin, sex, religion, or belief, age, disability or sexual orientation. In addition we have the race directive and the gender, goods and services directive which provide protection against discrimination on the grounds of race, sex and goods and services and the race directive is the widest of them all because that also extends to social protection to healthcare and social advantages in education. So all of those as you will be aware are given effect in domestic law in the UK under the equality Act 2010, the equality act obviously goes further because nearly everything it does in respect of all the protected groups. But beyond the equality directives there are a number of areas of EU law which are not specifically about prohibiting discrimination but provide rights for particular groups of people who share protective characteristic so such as disability, race or sex for example. Or that provide protections which are relied on disproportionately by particular groups so the EU for eg has been at the forefront of disability transport rights, accessible transport by air, bus, rail or ship has all vastly improved due to EU regulations and in fact accessibility generally for disabled people has greatly improved and is strong in EU law, preferential treatment for blue badge parking customers, braille labelling on medicines, particular provisions that have been helpful for particular groups of disabled people. There is also the pregnant workers directive which provides important health and safety and employment laws which provides protection for pregnant women and the working time directive all of which are particularly helpful for some types of groups, a typical workers generally are more likely to be women are more likely to be people from ethnic minority groups and particularly benefit from part time workers directive, fixed term directive, temporary workers directive and so on. So obviously one of our tasks collectively is going to be to try and ensure that those rights are not removed or diluted by a future government, as I've said, in terms of workers rights, this government has said they are not at risk but clearly some of these areas if they are perceived by business to be burdensome by business in the future and once the initial flurry of Brexit has started to die down and when the governments main policy proposals have gone and underpinning EU law has gone then obviously some of these things are potentially at risk in the future.

In terms of opportunities there are a few, we shouldn’t ignore them there are one or two areas where the EU has decided that particular things that might protect individuals or advanced rights are not allowed under EU law and obviously the removal of the constraints of EU law potentially then provides an opportunity for us to go beyond what would be permitted in EU terms, there are a couple of examples of that one is the rules that regulate public procurement mean that at present you cant provide one kind of person over another and it might be that in the absence of that EU constraint it might be possible to devise for example acceptable procurement systems that allow for particular kinds of contract to be provided on bases that promote positive action will generally is quite restricted in terms of what is permitted under EU law what you have got under section 151 and 159 the equality act 2010 is as far as you can go in EU law but the CJU has put the limits on that quite tightly on what is permissible in terms of positive action measures, so again that scenario where we do think in the absence of the EU constraints there is a possibility that there could be potential development in that area and it is certainly something that we should advocate for in circumstances where positive action measures would make a real difference in particular industries or particular areas of life.

So equality then is a fundamental human right, I hope that we all agree on that we are obliged under international human rights law but the EU law underpinning the equality act will disappear as we have talked about and it is the commissions view that further entrenchment to the right to treatment is essential this will help embed the principal of equality across all law making and policy making across other provisions so not talking about equality specifically, employment or whatever, just generally considering equality as one of the fundamental principals that needs to be taken into account and also prevent the development of law that might have a discriminatory impact there is no right to equality recognised at common law yet in the UK we are working on that as well but I think that will probably be another, well it depends what happens in the context of this potential legislative change and what happens to the bill of rights and what happens after Brexit and all the rest of it, but in the absence of all other factors I think it would have still taken another 10 years for the Supreme court to get a case in which it was willing to say yes we now conclusively and definitively agree that there is now a constitutional right to equality at common law. So I don’t think we can rely on that. The Equality Act only works within the spheres that it works in and it only deals with a limited range of grounds and article 14 as I've said requires another right. So we believe that the answer to that problem is to embed equality into the domestic legal framework is a twofold thing, we need to both ratify protocol 12 and create an act of freestanding constitutional right to equality, the reason why we need to have both is because protocol 12 would give individuals a remedy in Strasbourg in the same way that any other breach of the human rights does and the problem with relying solely on article 12 is that it is actually not as good as the proposals in terms of the Breck protection as the proposals that we have suggested and in fact the women in the equalities division are going with as well in terms of a free standing principal of equal treatment. The other advantage of course is that it would maintain the minimum level of protection across the UK but would of course still be open to Scottish parliament to go even further but it would in relation to devolved legislative obviously in that it would create a kind of floor that would then apply equally across the UK. So in addition to those 2 things we've called for certain parts of the UN human rights framework to be incorporated into domestic law. I did mention this at the beginning it is incredibly tricky, you can’t just say all UN human rights treaties should be incorporated into domestic law, there are bits of them that to do that would not make any sense legally so its quite a long complicated process to work out what we can do with each of these human rights, each bit of each treaty does a due regard model for e.g. make sense in relation to a particular bit of law or is it something that can be incorporated directly just incorporate a clause in a bill that basically says what it says in a particular bit of one of the international treaties, this is certainly something that we are working on and some particular proposals already and I hope that over the next 2 years we will be working out more and more proposals that kind of do this thing to further incorporate the UN international framework into domestic law. Of course the bill of rights if and when it happens may be an opportunity for us to start to talk about that. I think in the context of the loss of the charter and the fact that the bill of rights is and always is going to be a particularly messy topic that we shouldn’t necessarily wait for that and where relevant bills come up we will be putting forward amendments to perhaps do particular individual things. I think there was a bill going through the Westminster parliament last year where we put forward amendments to try and get the conventions of the rights of the child or certain aspects of it incorporated in to domestic law, those amendments didn’t succeed but at least it raised the idea of being able to do that, so that with parliamentarians it increases the profile of that possibility. Of course you are probably aware that the Scottish and Welsh governments have enhanced the convention of the rights of the child already in national law but by introducing a due regard type duty, so a duty on policy makers and legislators to consider whether the convention of the rights of the child is being adhered to, there is no such duty in England as yet. We do think that this has engendered a more systematic consideration of children’s rights and the development of policy and legislation in Scotland and Wales. So obviously its only a stepping stone following incorporation we do believe that that’s a really worthwhile thing to do and that it should happen in England as well. Another specific way in which we can do that or seek to enhance the value of international rights in the domestic context would be to enact section 1 of the equality act 2010 section 1 of the equality act is socio-economic duty a duty on public authorities to have due regard to the desirability of reducing socio-economic disadvantage when taking strategic decisions about how to exercise their functions. This section as you know obviously has never been brought into force we think it could go some way towards promoting compliance with the international covenant on economic, social and cultural rights in domestic law so bringing section 1 in to force would help increase protection for socio-economic rights that are currently protected in the charter and of course it would also be in line with the recommendations from the UN committee on economic, social and cultural rights, I think the committee’s recommendation was simply to bring that provision into force. There are other provisions in the equality act 2010 that have not been brought into force which should be implemented section 9, sub section 5 of equality act is about caste discrimination, again that is a complicated topic which I can talk about in the questions if anyone is interested, there is some case law that says that caste is protected under the race provisions but it is not fully so we again think the specific caste discrimination provision is a worthwhile extension of the equality law. Section 14 on dual discrimination which is of course the provision with the attempts to deal at least partially with intersectionality of disadvantage and discrimination. Both of those have been recommended by the UN committee on the illumination of racial discrimination of SERD committee.

I think those are the key ones in Section 106 on diversity of political representation which I mentioned at the start which is particularly important in relation to the second layer, if you like, of our Brexit strategy the bit about increasing political participation of people who currently feel disenfranchised in the political process in the UK. So before I wrap up, I think I have done remarkably well on my time which I always guess wrongly but this time I seem to have done it right, so I’m heading to end right on time I hope. Before I wrap up I just wanted to say a few words about the court of justice at the EU. The future status of the case law of the CJU in relation to the domestic legal concepts which are derived from EU law is uncertain the government has set out in the white paper the suggestion that current interpretations should prevail for the time being, I’m not sure that that particularly reduces the uncertainty it is slightly better in that up to domestic case law that relies on CJU case law should not be necessarily re-litigated we don’t need to see settled principals going up in the air just because the future jurisdiction of the CJU is going to be ousted. But there are a number of issues that arise obviously when domestic courts now apply laws within the scope of the EU law they have to use the principals of interpretation that arise from EU law so you have to construe EU purposefully so as to give it meaning constant to EU law as far as possible, and of course the international courts have the power to make arrests or to make a referral to the CJU in cases where the meaning is not clear, and domestic legislation can be disapplied if it conflicts with the EU law so the combined impact of those principals on domestic law is very strong I think. There has been, particularly in relation to equality rights the CJU’s interpretation of the equality act directives has extended protection I think quite substantially, I’m including when relying on the charter not just on the directives themselves, so there is a whole range of examples some of which you’re probably familiar with of cases that have expanded the equality anti discrimination protection of UK the test stash hats in relation to insurance premiums; Mrs Coleman's case that led to protection for associated discrimination a whole load of other examples in the field of gender reassignment discrimination, special protection during pregnancy in relation to the comparator of the new forensic man, extending protection against harassment and so on. It’s also the case that the CJU has been in regard to other fundamental rights particularly in the context of date protection, privacy rights state surveillance, the key cases to look at if you’re interested in that area are Shrems, about personal data transfer; google Spain which you will all be familiar with as you all get that little message on your screen that says some search results may have been removed, that’s because of the google Spain case in which the court held that google had to remove certain results, remove links to web pages resulting in a search on someone's name; in the domestic courts the court of appeal has applied the EU charter to override a provision to the DTA which was held to be incompatible with EU law, and so there is a whole range of situations beyond equality law but within the field of our rights where the CJU has been really important, the loss of the principles and enforcement mechanisms which arise from being within that system will have quite a severe impact people won’t be able to seek an interpretation from the CJU that’s the mechanism by which many of these expansions have happened, so that will be an important limit, of course people won’t be able to rely directly on EU rights directly in the domestic courts inevitably future decisions of the CJU won’t be binding and given that history has shown that CJU has tended to go further than domestic courts in protecting rights once that link is broken you can say over the next 10 or 20 years the CJU might continue increasing rights in certain areas in domestic courts, being no longer bound to follow them will go off potentially in a different direction. So we will end up with different levels of rights even without changing the legislative framework we could end up with different levels of rights between the UK and the EU. I've mentioned the point about realisation of settled principles. As I say the government seem to be suggesting they don’t think that is what should happen. We will need to see if they produce some guidance which makes that good. But courts won’t continue to apply the EU rules of statutory interpretation so if issues arise in the future about this scope of rights they are very likely I think to be interpreted less restrictively, although of course it could go the other way, interpreted more broadly, sorry more restrictively, less broadly. So we don’t know what the impact of existing case law will be. We do know the Government’s intention is to preserve it all for the time being, and it is not really that clear how they are going to do it. I can’t imagine having to draft the clause myself but the intention in the Green Paper, in the White Paper, is clearly that all of the EU law as key will be transposed – that includes case law and includes things that aren’t actually written down in bits of domestic law anywhere, bits of EU written law, regulations and so on. So it includes decisions from the CJU and potentially other regulatory decisions from the EU. So that will all be in and then it will be up to all of us to ensure that it stays in. That’s pretty much most of what I've got to say. I hope I've given an overview, a flavour of some of the issues that we think are going to arise during and after Brexit. I've given a few suggestions about directions of travel, I think the key point is that the Government has a lot to do, both the Scottish Government and the UK Government have a lot do in negotiating Brexit and they will take the eye off any ball they are allowed to take their eye off. People focusing on different areas, clearly there are lots of important things out there, financial services industry, there are loads of important issues, universities funding, hundreds of things that lots of people will be focusing on and so it’s up to us – we have this, certainly in the Commission, we have this narrow focus on equality and human rights law but we hope a lot of partners from across civil society will try and make sure equality and human rights remain an important focus during the negotiations and afterwards and that we all have a role to play in doing that. Thank you very much.