What would ‘Brexit’ mean for equality and diversity law and practice in Britain’s universities?
As David Ruebain finds out, the answer may not be straightforward.
The EU referendum is just over a month away. Many leaders of UK higher education have come out firmly in favour of staying in. More widely, there are daily news releases which explain why remaining or leaving will be good or bad for business, security, the economy, migration and indeed every aspect of public life! But what would ‘Brexit’ mean for equality and diversity law and practice in Britain and our universities?
Britain first enacted substantive equality legislation over 50 years ago, through the Race Relations Act 1965. Since then there have been dozens of other primary and secondary legislation, expanding the scope and depth of prohibitions and obligations to now nine ‘protected characteristics’ or identities.
Pretty much all of this previous legislation was replaced, consolidated and harmonised in the Equality Act 2010. This now establishes Britain’s legal approach to advancing equality and diversity (arrangements in Northern Ireland are slightly different arising from its particular historic and political situation).
Meanwhile, since the founding Treaty of Rome in 1957 (and through the Lisbon Treaty of 2007), the European Union has enacted a range of equality directives and requirements for member states and indeed the 2010 Act was structured in part to ensure compliance with these obligations.
There are other international obligations which the UK would still be bound by. EU directives are distinct from initiatives from the Council of Europe, the intergovernmental European body that developed the European Convention on Human Rights. This is enacted in the UK through the Human Rights Act and to which the UK government is also a party.
However, UK equality law, whilst being heavily constructed by EU requirements, nonetheless developed its’s own flavor – most notably through the introduction of the first public sector equality duty: the race equality duty (vis the Race Relations (Amendment) Act 2000).
This initiative arose from the report of Lord McPherson’s enquiry into the police investigation of the murder of Steven Lawrence, a young black man murdered by white racists, which highlighted an understanding of ‘institutional racism’. It represented a significant departure from traditional equality law; requiring public bodies (including most universities) to proactively scrutinise their activities so as to identify areas of underrepresentation and disadvantage and to take steps to address these. The duty is now extended to all protected characteristics (save marriage and civil partnership) and remains unique in Europe. In many cases, our universities have responded well to this positive duty and now embrace opportunities to pro-actively advance equality and diversity. Although significant challenges remain which the government and the Office for Fair Access have stated that they want the sector to address – for example addressing the black and minority ethnic attainment gap.
So what would Brexit mean for all of this? Of course, EU equality requirements would no longer automatically apply and in theory, the British government could repeal or amend existing law at will. However, I don’t think it’s that straightforward! Indeed, depending on the outcome of negotiations between the EU and the UK government (which could take years) and the resulting trading and other agreements which the UK will seek to establish with the EU, existing law may remain a requirement. This is broadly the case for Switzerland which has bilateral agreements with the EU and countries in the European Economic Area like Norway and Iceland. In addition to any stipulations enshrined within trading agreements, so long as the UK remains a member of the separate Council of Europe, parallel obligations remain. Indeed, the UK’s ratification of a number of United Nations treaties (such as the Convention on the Rights of Persons with Disabilities) themselves give rise to equality law requirements.
Quite apart from requirements arising from trade or other international agreements, domestic politics will drive any changes to equality law. Britain’s experience as an ex-colonial power has shown us that initiatives to advance equality and diversity is required to prosper as a nation. Our law and practice has developed accordingly.
My guess then is that there is little appetite (at least amongst the major political parties) to prioritise legislative change to equality law. Should the referendum determine a Brexit, there will be other legislative priorities for years to come.