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Impact of EU membership on equality and human rights

Below we consider what difference membership of the EU makes to equality and human rights in Britain. 

The Human Rights Act 1998 incorporates the rights set out in the European Convention on Human Rights into domestic British law. The European Convention on Human Rights originates from the Council of Europe, which is a completely different organisation from the European Union (EU). Leaving the EU would have no effect on the UK’s obligations under the European Convention of Human Rights, nor on the Human Rights Act, which is a piece of UK legislation.

Human rights principles form part of EU law. Respect for human dignity, equality and human rights are founding values of the EU.

There are three sources of these rights in the EU:

  • the Charter of Fundamental Rights of the European Union (the Charter)
  • the European Convention on Human Rights (ECHR)
  • the constitutional traditions which are common to EU member states.

The Charter has the same legal status as other EU treaty law.

The Treaty on European Union also plays an important role in ensuring respect for equality, as it says that the EU must ‘combat social exclusion and discrimination’, promote gender equality and protect children’s rights. Another treaty, the Treaty on the Functioning of the European Union (TFEU), also requires EU institutions and member states to combat discrimination and ensure equal treatment.

As well as safeguarding these rights in the treaties and the Charter, the EU also promotes other rights in secondary legislation (such as regulations and directives). Some examples are set out below.

While the UK remains a member of the EU, EU law applies in the UK either directly in some instances, or when it is ‘transposed’ into UK law, such as when an Act of Parliament is passed to implement an EU directive.

EU law has led to changes in UK law which protect equality and human rights. The following are some examples:

Data protection: the EU Data Protection Directive contains privacy rights which have been transposed into domestic law through the Data Protection Act 1998. These rights include: access for individuals to information held about them, a right to object to information being held, a right to correct inaccurate information or have it erased, and a right to claim compensation for breaches of these rights.

Human trafficking: Directive 2011/36 on preventing and combating trafficking in human beings, and protecting its victims, puts into place minimum rules around the definition of criminal offences and penalties for people trafficking. It also requires that victims of trafficking get help, support and protection. This has meant, for example, that civil legal aid is available for an individual who has been proven to be a victim of trafficking when applying for leave to enter or remain in the UK, or for a claim under employment law which is connected to the exploitation of someone who is a trafficking victim, which supports victims’ rights to access to justice. 

Rights of victims of crime: the Victims’ Rights Directive ensures that victims of crime and their family members have the right to information, support and protection. It also sets out procedural rights for victims in criminal proceedings, and requires that EU member states provide appropriate training on victims’ needs to professionals who are likely to come into contact with victims. In England and Wales this directive has been implemented by way of statutory guidance, which can be found in the Code of Practice for Victims of Crime. This places obligations on organisations that work within the criminal justice system in England and Wales, such as the Crown Prosecution Service and all police forces. It also provides victims of crime with other rights, for instance to make a Victim Personal Statement to explain how they were affected by the crime. In Scotland, the directive has been implemented by the Victims and Witnesses (Scotland) Act 2014 and the Standards of Service for Victims and Witnesses. These Standards of Service cover Police Scotland, the Crown Office and Procurator Fiscal Service, the Scottish Courts and Tribunals Service, the Scottish Prison Service and the Parole Board for Scotland, and are intended to inform victims and witnesses about what they can expect from their contact with these organisations.

Disability rights: a number of directives and regulations have led to improved protection for disabled people. These include ensuring that employment protection standards apply to all employers, not just larger employers, requiring assistance to be provided for disabled people when travelling (including by air, sea, and coach), and, a requirement that the packaging of medicinal products must include Braille labelling.

Protection from discrimination in employment on grounds of religion or belief, sexual orientation and age: the EU Equal Treatment Directive provided protection against discrimination in employment for people with equality characteristics, which had not previously been protected in domestic UK law, namely sexual orientation, religion or belief, and age.

Equal pay: the Equal Pay Act 1970 was enacted before the UK joined the European Economic Community as the UK wanted to put into practice Article 119 of the EEC Treaty (now Article 157 of the TFEU), which requires that men and women should receive equal pay for equal work.

European Convention on Human Rights (ECHR): the main body of human rights protection in the United Kingdom stems from the ECHR, which came from the Council of Europe - not the EU.

Non-discrimination in employment on grounds of sex, race and disability: these protections already existed in domestic law before the EU legislated on them (see the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995).

The public sector equality duty: this duty comes from domestic law in England, Wales and Scotland, and requires public authorities to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations. It applied first in respect of race. The duty was then applied in respect of disability and then sex, and now applies to all protected characteristics (except marriage and civil partnership).

Non-discrimination in the provision of goods and services: EU law protects against discrimination in the provision of goods and services on grounds of race and sex but, at the time they came into force, domestic law in Britain already contained such protections. In EU law there is no equivalent protection for the protected characteristics of disability, sexual orientation, age and religion or belief, but domestic law does provide such protections for these groups.

What rights does the Charter contain?

The Charter reaffirms the rights, freedoms and principles already recognised in EU law. It is divided into sections: dignity, freedoms, equality, solidarity, citizens’ rights and justice. The Charter contains rights and freedoms beyond those protected by the ECHR.

For example:

  • Article 8 of the Charter provides a right to protection of personal data
  • Article 13 provides that the arts and scientific research shall be free of constraint, and that academic freedom shall be respected
  • Article 15 provides a right to engage in work and to pursue a freely chosen or accepted occupation
  • Article 16 sets out the freedom to conduct a business.

The Charter allows rights to be limited where it is necessary in order to meet ‘objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’ and where such limitation is proportionate.

Does the Charter extend the power of the EU?

The Charter does not extend the competence of the EU beyond what is contained in the treaties. Neither does it create any new powers for the EU, or change powers as defined in the treaties.

There are further limitations:

  • Some provisions of the Charter contain rights, and some contain only principles. The Charter explains that principles do not have the same status as rights.
  • EU institutions have to comply with the provisions of the Charter.
  • The Charter also applies to member states ‘only when they are implementing Union law’.

Doesn’t the UK have an ‘opt-out’ from the Charter?

The UK (and Poland and the Czech Republic) agreed a Protocol to the Charter, which explains that the Charter does not extend the ability of any UK courts or the EU Court of Justice (CJEU) to find UK law inconsistent with the Charter, and does not affect what cases courts in the UK can review.

Although this has sometimes been described as an ‘opt-out’, the UK government’s present position is that the protocol clarifies certain aspects of the application of the Charter, and explains how the Charter should apply to all member states. The protocol does not mean that the Charter does not apply in the UK.   

The second provision in the protocol says that the ‘solidarity’ section of the Charter, which contains provisions on collective bargaining, fair and just working conditions, healthcare, environmental protection and other issues, does not create justiciable rights in the UK unless they are already part of national law.  This provision has not been interpreted by the courts and there is legal uncertainty about its effect.

How has the Charter been applied in UK domestic courts?

It can be easier for claimants in UK courts to use the Charter to protect their rights, instead of relying on the Human Rights Act. First, domestic legislation that conflicts with a fundamental right protected by the Charter can be ‘disapplied’ by the domestic courts.  This principle also applies to conflicts between EU law and UK law outside the field of equality and human rights. Second, claiming for damages for a breach of EU rights can be easier than claiming compensation for a breach of the Human Rights Act. However, it should also be remembered that the Charter does not come into play at all unless the case arises in an area within the scope of EU law.

For example, in two cases in 2015 the Court of Appeal ruled that UK legislation had to be disapplied because it conflicted with the Charter.

In Benkharbouche v Embassy of the Republic of Sudan, the Court of Appeal held that the law on state immunity, which prevented the claimants from accessing the courts to enforce their employment rights, breached fair trial rights under the Charter. To ensure the claimants could enforce their employment rights, the court disapplied the relevant provisions in the State Immunity Act (but not in respect of those parts of the claim which fell outside the scope of EU law).

In Vidal-Hall v Google Inc, the Court of Appeal held that the Data Protection Act 1996 (which limited the circumstances in which damages could be awarded for distress suffered because of a breach of that Act) conflicted with privacy rights under Articles 7 and 8 of the Charter and must be disapplied.

However, in R (Chester) v Secretary of State for Justice, the Supreme Court did not agree that a ban on prisoners voting in the European Parliament elections breached the Charter. The Court stated that EU law did not include any right to vote similar to that recognised by the European Court of Human Rights in its case law.

The following cases provide examples:

Discrimination by association: in Coleman v Attridge Law (2008) the European Court of Justice held that the protection against discrimination ‘on grounds of disability’ must be interpreted to include discrimination the claimant faced because she was the principal carer of her disabled son, or ‘discrimination by association’. When the Equality Act 2010 was passed, direct discrimination was defined to cover discrimination by association.

Digital privacy: in Digital Rights Ireland (2014) the European Court of Justice (ECJ) annulled the Data Retention Directive, which required providers of electronic communication services to keep some types of customer data in the interests of public security. The ECJ held that keeping this personal data affected the Charter rights guaranteed in Article 7 (right to private life) and Article 8 (right to protection of personal data). The interference was wide-ranging and serious in that the data was kept and used without informing the customer. Although the directive had a legitimate aim in investigating crime, it was not proportionate.

Protection from discrimination for trans people: in P v S and Cornwall County Council (1996) the European Court of Justice (ECJ) concluded that the concept of ‘sex’ in the directives concerning sex equality was broad enough to include people who had undergone gender reassignment. The case led to amendments to the Sex Discrimination Act to provide protection from discrimination on grounds of gender reassignment in employment.

Sex discrimination and equal pay: ECJ case law has led to greater protection in domestic law in a number of areas. These include extending equal pay to include all forms of pay including pensions; giving women special protection against discrimination during pregnancy without the need for comparison with, for example, a sick man; and extending the protection against harassment.

Ensuring full compensation for discrimination: in 1993 in the case of Marshall v Southampton and South West Hampshire AHA the ECJ held that compensation for sex discrimination must be adequate and could not be capped as was the case in UK law at that time.

A distinction should be drawn between the effect of UK exiting the EU on existing human rights and equality protections, and the effect of exit on any future laws passed by the EU.

Exit would not affect the UK’s obligations under the ECHR, because the ECHR does not originate from the EU.

On repeal of the European Communities Act 1972 all of the treaties and the EU Charter of Fundamental Rights will no longer have effect in domestic law. Also, EU regulations, and any future or unimplemented EU legislation, could no longer be relied on in UK courts. Examples include the proposed Data Protection Regulation and the European Commission’s proposal for a European Accessibility Act to make products and services more accessible to disabled persons.

However, many of the protections under EU law have been implemented into UK domestic law by legislation (for example, the Data Protection Act 1998 and various provisions in the Equality Act 2010).

In the case of primary legislation, usually an Act of Parliament, until it is repealed, it remains part of domestic law (regardless of its origin).

The same is true of secondary legislation such as Statutory Instruments (i.e. it remains part of domestic law unless repealed), with one important exception. If section 2 of the European Communities Act 1972 is repealed, the secondary legislation made under section 2 would be automatically revoked. In the event of a proposed repeal of section 2, the government will need to consider carefully whether the secondary legislation should be retained, and if so, under what other legislation it could be given effect.

UK exit may (but not necessarily) mean that any future equality and human rights protections from the EU are not binding in UK law. This will depend upon the manner in which the UK continues to trade with the EU. It has been suggested that prior to leaving the EU, the UK will negotiate a trade agreement with the EU. The existing models for trade agreements with the EU require an EU trading partner to comply with EU law (at least in the areas covered by the trade agreement). Therefore, leaving the EU, and conducting trade through a new trading agreement, would not necessarily result in lower protections for human rights and equality in domestic law.

It is too early to be sure whether any particular groups of people might be affected. Political statements so far have suggested that there is a desire to limit free movement of workers, so UK exit may have implications for EU citizens living in the UK who do not otherwise have a right to reside. It may also have implications for UK citizens who reside in other EU Member States.

Exit may affect the family life of some children: at present, the non-EU citizen parents of an EU citizen child may be allowed to reside in the EU, if a refusal would mean the child had to leave the EU. Even after UK exit, however, such children will retain rights under Article 8 (the right to family life) of the ECHR.

There are two possible differences.

First, many of the EU protections are contained in domestic law (the UK Parliament having implemented EU secondary legislation). Under the Scotland Act 1998 the power to make secondary legislation under the European Communities Act 1972 in relation to devolved matters transferred to Scottish Ministers. The Scottish Ministers would need to decide whether they wish to retain any such secondary legislation in the event that the 1972 Act is repealed. It would therefore be possible, following UK exit, for uneven protection to exist in different parts of the United Kingdom.

Second, the consequence of the Charter not applying may be less profound in Wales, Scotland and in Northern Ireland than in England. One important effect of the Charter in law is to permit domestic legislation that is inconsistent with it to be disapplied (unlike the position under the Human Rights Act). By contrast, domestic courts have the power in any event to quash legislation from the Welsh Assembly, the Scottish Parliament or the Northern Ireland Assembly that conflicts with ECHR rights. The effect of the Charter in respect of Wales, Scotland and Northern Ireland may therefore be considered to be less radical.

Last updated: 05 Jul 2016