Blackstone's guide to the Equality Act 2010

577 Pages·2016·15.317 MB·English

by  Robinson, Lynwall Anthony, Ruebain, David, Uppal, Susie, Wadham, John

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Blackstone’s Guide To
The Equality Act 2010
THIRD EDITION

iii
BLACKSTONE’S GUIDE TO
The Equality Act 2010
THIRD EDITION
Edited by
John Wadham, Anthony Robinson,
David Ruebain, and Susie Uppal
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Note to Reader: The Consequences of Brexit
for Equality Law
INTRODUCTION
As this book describes, our equality laws have been moulded by the development of equality
law as part of the European Union since it joined the European Community on the 1 January
1973. In some areas of law the UK laws have led developments in Europe. For instance
a plausible case can be made to argue that the Race Directive was modelled on our then
Race Relations Act 1976. In others it has followed as a result of the obligation to transpose
Directives, or to give full effect to directly applicable European laws, or as a result of rulings
of the European Court of Justice.
So the result of the referendum on the UK’s membership of the European Union held on
23 June 2016 poses questions about the future of UK Equality Law.
On the date that the UK is no longer a member of the EU it is likely that the European Communities
Act 1972 will also have been repealed or substantially amended and, in the absence of any substitute
treaty (and parallel national law), the EU’s equality treaties and the jurisdiction and jurisprudence of
the EU’s Court of Justice will no longer directly apply in the UK. However the likely timetable is such
that none of this will happen until at least 2019 and the substantive law in the UK( as set out in this
book) will only then change if the Equality Act itself is amended by the UK Parliament.
There has therefore been widespread anxiety about the effect of an ‘out’ vote in the
Referendum with a range of views expressed. The TUC for instance sought counsel’s opinion
as to all the possible effects on Employment and Trade Union law.1 Naturally some of this
comment has been speculative. On 17 June 2016 the Bar Council published a full, fact- based
analysis of the legal and constitutional implications of Britain either leaving the European
Union or staying within it under the New Settlement. This is entirely non- partisan and pro-
vides a very detailed assessment of the likely effects.2
EQUALITY LAWS BASED ON EUROPEAN LEGISLATION
The point of first importance to readers of this book is that no equality law obligations deriv-
ing from Europe have disappeared simply on the result of the Referendum being declared.
They continue to remain in force while the European Communities Act 1972 is on the stat-
ute book and until a new settlement is reached with the European Union.
1 See the Opinion of Michael Ford QC ‘WORKERS’ RIGHTS FROM EUROPE: THE IMPACT

OF BREXIT’ given on 10 March 2016, see https:// www.tuc.org.uk/ sites/ default/ files/ Brexit%20Legal%20
Opinion.pdf.
2 See http:// www.barcouncil.org.uk/ media- centre/ news- and- press- releases/ 2016/ june/ barristers- publish- non-
partisan,- fact- based- report- on- european- union- membership/ The Executive summary is at http:// www.barcoun-
cil.org.uk/ media/ 472103/ exec_ summary_ bar_ council_ eu_ referendum_ final.pdf.
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Note to Reader: The Consequences of Brexit for Equality Law
This point was emphasized soon after the result was declared by a decision of the Supreme
Court made on 10 August 2016 to refer a question to the CJEU in a case concerning the
application of Council Directive 79/ 7 EEC on the Progressive Implementation of the
Principle of Equal Treatment for Men and Women in Matters of Social Security to persons
who had changed their gender.3 The question asked whether the Directive –
Precludes the imposition in national law of a requirement that, in addition to satisfying the physi-
cal, social and psychological criteria for recognising a change of gender, a person who has changed
gender must also be unmarried in order to qualify for a state retirement pension?
THE PROCESS OF EXIT
It must be assumed that the Brexit process will be taken forward. However the next question
is: How?
The process for leaving the European Union is controversial although the text which must
be applied is clear. It is set out in Article 50 of the Treaty on European Union, which says –
1. Any Member State may decide to withdraw from the Union in accordance with its own
constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention.
In the light of the guidelines provided by the European Council, the Union shall negotiate
and conclude an agreement with that State, setting out the arrangements for its withdrawal,
taking account of the framework for its future relationship with the Union. That agreement
shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the
European Union. It shall be concluded on behalf of the Union by the Council, acting by a
qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force
of the withdrawal agreement or, failing that, two years after the notification referred to
in paragraph 2, unless the European Council, in agreement with the Member State con-
cerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the
Council representing the withdrawing Member State shall not participate in the discus-
sions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on
the Functioning of the European Union.
While it is clear that Article 50 will have to be invoked before Brexit can become a real-
ity, it is very controversial how this must and should be done. What are the ‘constitutional
requirements’ of the UK? Is it within the prerogative power of the Prime Minister to invoke
Article 50 or is this a decision that can only be taken by Parliament?
The High Court is expected to consider this issue in the autumn of 20174 and it seems
likely that any result will go on appeal thereafter. So the answer to these questions may
3 See MB v Secretary of State for Work and Pensions [2016] UKSC 53, see https:// www.supremecourt.uk/
cases/ docs/ uksc- 2014- 0220- judgment.pdf.
4 See http:// www.bbc.co.uk/ news/ uk- politics- 36834743.
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Note to Reader: The Consequences of Brexit for Equality Law
not be known for some time yet. Of course Parliament could itself pass a law clarifying
who has the power to invoke the provision. Likewise the Prime Minister could clarify that
she has no intention to seek to invoke Article 50 without a Parliamentary debate and per-
haps until there has been primary legislation. For the moment it is clear that no step will
be taken by the executive arm of government to invoke Article 50 in the course of 2017.
Some delay in invoking Article 50 also seems likely to be seen as politically expedient
because of the need to address the geographical division highlighted by the different results
across the UK. While overall the result was 51.9% in favour of leaving, a geographical analy-
sis showed that 55.8% of voters in Northern Ireland and 62% in Scotland wished to remain.5
Both Scotland and Northern Ireland have their own strong reasons for not wanting to see
equality laws watered down. They will both wish to see as close a future relationship with the
European Union as possible.
OPT- OUTS PENDING EXIT
What will be the position of the UK with respect to new European laws made after the
Referendum vote? It is possible that the UK might demand that future European legislation
has an opt-out for the UK. This could seem politically expedient just as the UK’s decision
not to take up the European Presidency previously scheduled for the second six months
of 2017 has. It is also a route that has been taken before in relation to legislation made
after the Maastricht Treaty. It took some time for the UK to catch up after the incom-
ing Labour Government took a different stance towards legislation from Europe concerning
social protection.6
THE NEW RELATIONSHIP
There are many possible models of a new relationship between the UK and the European
Union. It is obviously outside the scope of this book to speculate on what they will be.
However what can be said is that much of the progress made by European legislation in the
field of Equality Law has been driven by social factors common to both the UK and other
member states. Those are unlikely to diverge a great deal.
The growing awareness of issues such as gender identity and sexuality is not likely to stop.
The need to make work a more secure and economically positive experience for women as it
is for men will remain. Demographic change will force a greater focus on age equality issues,
both in terms of inter- generational fairness and in terms of the need to prohibit discrimina-
tion in the workplace and in the provision of goods, facilities, and services. Race equality is
essential to ensure that immigrants and asylum seekers can become part of a secure and safe
country. Indeed this is essential for an ethnically diverse UK. Similar points can be made
about all the protected characteristics.
5 See http:// www.bbc.co.uk/ news/ politics/ eu_ referendum/ results.
6 For instance both the Part-T ime Workers Directive and the Burden of Proof Directive did not originally
apply to the United Kingdom.
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Note to Reader: The Consequences of Brexit for Equality Law
The UK and European states have a common heritage of international human rights
instruments which underpin their approach to these issues. There is no apparent present
intention that the UK should seek to disengage from these.
The key question therefore is: to what extent will the European Union require the UK to
meet its standards of social protection as the price of future trade agreements? Member states
of the European Free Trade Association have largely been required to do so to prevent them
securing a trade advantage from lowering standards. The EFTA court which determines the
interpretation of the EFTA Treaty has long taken a human rights approach and maintained a
careful eye on developments in the European Court of Justice.7
It seems likely that something similar will be required of the UK in due course. If so, it is
to be welcomed.
7 See for instance Case E- 8/ 97 TV 1000 Sverige v Norway [1998] EFTA Ct. Rep. 68, at paragraph 26; Case
E- 2/ 02 Technologien Bau- und Wirtschaftsberatung and Bellona v EFTA Surveillance Authority [2003] EFTA Ct.
Rep. 52 at paragraph 37.
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Foreword
The Equality Bill is one of the most significant human rights measures introduced into Parliament
in recent years. It harmonises and simplifies discrimination law and also introduces a number of
new measures, including a single equality duty on the public sector, extended protection from
discrimination in a number of areas, and a new duty on certain public authorities to consider
socio- economic disadvantage in their strategic decision making.1
The Equality Act swept away over 100 separate Acts of Parliament and statutory instruments,
and more than 2,500 pages of codes of practice and guidance. Prior to the Act the law was
difficult to understand, confusing, and wrought with inconsistencies between how the law
worked in each of the equality strands. But the most significant failure of discrimination law
was its failure to deal with the most intractable challenges that still face society today. The
fundamental challenge remains the inequalities that persist and that those inequalities are in
many cases very different from those that were experienced in the 1960s and 1970s. When
the model for our anti- discrimination laws were first developed, a sign saying ‘no Irish, no
blacks, no dogs’ in the window of a bed & breakfast, or a job advert saying ‘women need not
apply’ were commonplace around the country. As a young barrister I experienced chambers
saying ‘we do not take women’. Similarly, offensive descriptions and hostile attitudes towards
disabled people were also commonplace. In many respects society has moved on and these
types of behaviours are now rejected by the majority of ordinary, decent people.
Now, although institutional discrimination, prejudice, and hate crime still blight the lives
of far too many people, attitudes in society as a whole have changed significantly for the better.
The world where those offensive signs would have been not just common but viewed as unre-
markable has thankfully largely disappeared. However, there is still a great deal to be done.
Key findings from the latest report of the Equality and Human Rights Commission include:
GYPSIES, ROMA, AND TRAVELLERS
Gypsies, Roma, or Travellers are considerably over-r epresented in prison—4 % of the prison
population identified as Gypsy, Roma, or Traveller, whereas only 0.1% of the population
identified as such in the 2011 census.
A significantly lower percentage of Gypsy and Roma children (13.8%) and Traveller chil-
dren (17.5%) achieved the GCSE threshold in 2012/ 13 compared with other White children
(60.3%).
Gypsy, Roma, and Traveller children are still four to five times more likely to be excluded
from school than the national average, even despite a significant fall in numbers. There were
35.8 exclusions of children from these communities per 1,000 pupils in England—a decrease
of 13.9 cases per 1,000 compared with previous years.
1 Joint Human Rights Committee, 27 October 2009.