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Brexit, EU law and disability discrimination under Equality Act 2010

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Last updated 1st January 2021.

From 1st January 2021 the British parliament is entitled to amend the Equality Act without regard to EU law, though subject to the UK-EU Trade Agreement. So far as the Equality Act is not amended, UK courts should normally (though not always) continue to interpret the Act in line with EU Court decisions made before the end of 2020. Until the end of 2020 the UK remained largely bound by EU law.

Summary

From 1st January 2021

The Equality Act 2010 continues after Brexit. From 1st January 2021, so far as the Equality Act is not amended by Parliament, UK courts should normally (though not always) continue to interpret the Act in line with the relevant EU directive and EU Court decisions made before the end of 2020. See Effect of EU law when interpreting Equality Act from 2021.

Also from 1st January 2021 the British parliament is entitled to amend the Equality Act without regard to EU law, though subject to the UK-EU Trade Agreement and other limited constraints. See Ability to amend Equality Act after Brexit.

Up to 31st December 2020 – EU law continued

UK membership of the EU ended at 11pm on 31st January 2020. However under the terms of the Withdrawal Agreement (below) the UK remained largely bound by EU law during the ‘implementation period’ which lasted until 31st December 2020.

Accordingly until the end of 2020 the UK remained bound by the EU Framework Employment Directive, including as regards disability discrimination. Also UK courts and tribunals remained bound by decisions of the EU Court of Justice, and had to continue to interpret the Equality Act in the light of the directive and EU Court decisions, as discussed on this website – and to a large extent they must still do so from 2021.

Below there is a Technical note: Legal basis for EU law continuing during the implementation period, ie up to the end of 2020.

Framework Employment Directive

This is currently the key European directive obliging member states to enact anti-discrimination legislation for disabled people. The directive covers employment and related areas. The UK had to amend its disability discrimination rules to comply with the directive.

The directive is also of ongoing importance in the effect it is having on how the courts interpret and apply the Equality Act 2010. This importance of the directive largely continues after 2020, so far as the Equality Act is not amended after 2020.

More Framework Employment Directive.

Brexit: UK-EU agreements, and UK legislation

UK-EU agreements and implementation period

UK membership of the European Union ended on 31st January 2020. The Withdrawal Agreement agreed between the UK and EU in late 2019 provided for an implementation period from 31st January 2020 until 11pm on 31st December 2020. During this implementation period the UK remained bound by almost all EU law.

Also during this implementation period, the EU and UK negotiated a Trade and Cooperation Agreement agreement on their long-term relationship, to take effect from the start of 2021.

As well as providing for the implementation period, the Withdrawal Agreement also covers financial settlement, citizens rights, and Northern Ireland which must continue to comply with EU discrimination directives, even after 2020. This last point is stipulated by the Withdrawal Agreement in its ‘Northern Ireland Protocol’.

Links:

UK legislation

The main UK legislation implementing the UK’s exit from the EU is the EU (Withdrawal) Act 2018 (legislation.gov.uk) which was amended by the EU (Withdrawal Agreement) Act 2020.

The EU (Future Relationship) Act 2020 was passed at the end of December. I discuss that briefly in the context of the UK-EU Trade Agreement>Effect on UK court decisions?

Under the Withdrawal Act 2018 as amended:

  • “IP completion day” is 11pm on 31st December 2020 (s.39(1)-(5) EU (Withdrawal Agreement) Act 2020, applied to the 2018 Act by s.1A(6)).
  • “exit day” was 11pm on 31st January 2020, when the UK ceased to be a member of the EU. “Exit day is defined by s.20(1) EU (Withdrawal) Act 2018, most recently amended by SI 2019/1423 after several agreed extensions of membership.

Technical note: Legal basis for EU law continuing during the implementation period

The Withdrawal Agreement (above) provides that the UK remained bound by nearly all EU law during the implementation period, ie until the end of 2020 (Article 127(1)). As from exit day, 31st January 2020, s.1 EU (Withdrawal) Act 2018 repealed the European Communities Act 1972, the main UK statute saying EU law applies in the UK. However, to give effect to the Withdrawal Agreement, s.1A says that despite s.1 the European Communities Act 1972 remains in effect with certain modifications until the end of the implementation period on 31st December 2020.

The reason why EU law has effect in the UK is because the British Parliament passed an Act of Parliament saying so, namely the European Communities Act 1972. The Westminster Parliament remains sovereign and can amend or repeal this Act, as it is doing through the EU (Withdrawal) Act 2018.

European Convention on Human Rights

The role of the European Convention on Human Rights in the UK is not affected by Brexit. The UK remains a party to the Convention, and the Human Rights Act 1988 remains in place.

Further links

On Brexit

As well as the links above:

On the EU and EU law

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