It’s a long time, seemingly interminable, since the UK referendum in 2016. But with the end of the transition period on 31 December 2020, the UK finally left the European Union (EU). What does it mean for our rights?
Even though we have left the EU, we are still signatories to conventions and treaties that protect rights, through membership of the Council of Europe and ratification of international agreements.
Many rights and protections are contained in the European Convention on Human Rights (ECHR), which still applies to the UK. Our own Human Rights Act allows individuals to use rights in the ECHR to bring cases to domestic courts.
The EU Charter of Fundamental Rights
Our biggest loss of rights from Brexit is undoubtedly the loss of the EU Charter of Fundamental Rights (the Charter). It was the only piece of current EU legislation which was not ‘cut and pasted’ into retained EU law in the UK following Brexit.
Unlike, say, the ECHR, the Charter reflects the indivisibility of civil, political, economic and social rights.
Losing the Charter effectively means there will be significant gaps in substantive rights that do not have direct equivalents in other UK human rights law. As well as the free-standing right to non-discrimination, the right to protection of a child’s best interests and the right to human dignity will also be lost.
EU case law
Also lost from 1 January 2021 is adherence to case law from the Court of Justice of the European Union. The EU (Withdrawal) Act 2018 did include an amendment that UK courts and tribunals could “have regard to” its case law, but that will no longer be on a statutory footing.
ECJ rulings/case law can now also be challenged in the UK courts and these can help unpick the existing laws on these rights and standards if the challenge is found favourable.
Other rights at risk
The EU (Withdrawal) Act 2018 could also mean changes to equality law. After significant lobbying, a government amendment was introduced which requires a minister to make explanatory statements, including in relation to equality issues. However, this only applies to secondary legislation and does not apply to all other Brexit-related primary legislation, and the Act could be used to reduce existing protections.
The UK/EU trade deal, the Trade and Cooperation Agreement (TCA) threatens the Belfast Good Friday Agreement, which underpins rights in Northern Ireland as well as the peace process. If the UK government reneges on the protocol in the agreement, the prospect of a return to violence is a real threat.
The TCA also seems to have resulted in the likelihood of UK labour rights coming under threat. It leaves workers’ rights (and environmental protections) at serious risk of erosion because the new mechanisms agreed for safeguarding a ‘level playing field’ sets too high a bar for evidence. Any alleged breach would necessitate a protracted period of investigation and in reality, would rarely be enacted or enforced.
So what now?
Now more than ever, when we’ve seen structural inequality grotesquely highlighted by Covid-19, the current government reviews of judicial review and the Human Rights Act should solely focus on improving rights and ordinary people’s access to them, not seeking any new restrictions.
Our rights and the UK shared prosperity fund
In 2018, we were promised a consultation on the UK shared prosperity fund (UKSPF), which would replace EU structural and investment funds post-Brexit. Three years on we are still waiting – with the new fund due to start in April 2022, and the details not yet published, the chances of a consultation now are practically non-existent.
What we know so far is that this ‘flagship policy’ of the levelling-up agenda will be:
- a UK-wide fund, centrally administered with funding decisions made by the UK government, who will need to approve local programmes;
- in two parts, (i) targeting places most in need, “ex-industrial areas, deprived towns and rural and coastal communities”, and
- (ii) bespoke employment and skills programmes for people facing barriers to the labour market.
In 2019 Equally Ours worked with civil society organisations across the UK to agree shared principles that should underpin the UKSPF. The points below reflect those principles.
The focus on people and places most in need is useful. But to deliver the promise of levelling up, explicit, strategic objectives for equality and social inclusion will need to be hardwired into the UKSPF at every level – national, regional and local. And they must be given at least the same priority and attention as economic objectives.
Economic development (including EU funds), has been the responsibility of the Scottish and Welsh governments and the Northern Ireland assembly. Each government already has its own economic strategy, developed in partnership with civil society and business. The UKSPF should build on this strong foundation.
Inequality in the UK is deeply entrenched and reflects decades of deindustrialisation. But different localities and regions face different issues and opportunities. There is a limit to what a centrally driven fund can achieve.
A more localised approach would enable local decision-makers to target interventions where need is greatest, building on local strengths and assets. It would also give local people and communities scope to lead change in their areas.
Civil society organisations have a unique contribution to make to the process of levelling up.
Equality organisations and others have a wealth of expertise in improving opportunities and outcomes for people with direct experience of discrimination and disadvantage. In some areas they are also significant employers. As such they are uniquely placed to understand people’s needs and ensure that the UKSPF reaches those who need it most.
It is therefore essential that they, and those they work with, are involved in the design as well as the delivery of UKSPF-funded programmes. This would require some local ring-fencing to ensure that capacity-building support and infrastructure support is available to enable them to do this.
The UKSPF is an opportunity to build a better fund and make a real difference to people’s lives and life chances. But the lack of engagement or consultation with civil society is a missed opportunity to get this right.
Liz Shannon and Belinda Pratten work at Equally Ours, a UK charity that brings together people and organisations working across equality, human rights and social justice to make a reality of these in everyone’s lives.