Professor Suzanne Rab and Human Rights, Diversity and Inclusion in the UK post-Brexit

In this guest blog post Professor Suzanne Rab reflects on human rights, diversity and inclusion in the UK in the wake of the UK’s departure from the EU on 31 January 2020.

OU Associate Lecturer Professor Suzanne Rab combines her role as an Associate Lecturer with the OU (on W102 and W330) with working full time as a barrister at Serle Court Chambers in London, being Professor of Commercial Law and Practice Chair at Brunel University and serving as a non-executive Board member of the Legal Aid Agency which dispenses civil and criminal legal aid.  She has advised the UK government on preparations for Brexit and been involved in drafting secondary legislation under the EU Withdrawal Act.

Undergraduates from the UK and overseas will be wondering about the implications of Brexit for human rights, equality and diversity law and practice in universities.

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.

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 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 not 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.

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)). A key issue will be the extent to which any agreement on a future relationship with the EU will provide for minimum equality and workers’ rights. 

The UK’s new points-based immigration system is expected to transform the way in which migrants come to the UK to work, study, visit or join their family.   It is beyond the scope of this blog to debate its minutiae which can be found in the Government’s Policy Statement issued on 19 February 2020.  The points system may be good for some university students in a system geared towards attracting talent from the so-called STEM (science, technology, engineering and mathematics) subjects.  However, concerns have been raised this may have a detrimental impact on women who have traditionally been underrepresented in these subjects.

Human rights, equality, diversity and inclusion are not negotiating tools nor handouts but they should be fundamental commitments and values in universities, the workplace and society.  Only by placing these values at the heart of the workplace, which spills over to the rest of society, can Brexit really work for everyone in the UK.

Event

On 19 March 2020 Suzanne will be speaking on ‘Creating and maintaining European pro bono and human rights partnerships in the dawn of Brexit’ at the Chambers Diversity & Inclusion ENGAGE 2020: European D&I and Pro Bono Summit.

 

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