This Act, mostly not yet in force, will alter the position of EU law in Britain. It creates uncertainty, and may well reduce Equality Act protection in certain areas, particularly from 1st January 2024. However regulations will preserve some areas of EU case law.
The Act
The Retained EU Law (Revocation and Reform) Act 2023 (legislation.gov.uk) (REUL Act) received royal assent at the end of June 2023. Its main provisions, discussed below, are not yet in force. It was sometimes informally known as the Brexit Freedoms Bill.
At present
At present – before the REUL Act takes effect – the UK courts should normally (though not always) continue to interpret the Equality Act in line with the relevant EU directive and EU Court decisions made before the end of 2020, to preserve legal certainty after Brexit. See Brexit: Effect of EU law when interpreting Equality Act from 2021.
The present law should probably continue to apply where the alleged discrimination happened before the date when the relevant provision of the REUL Act comes into force, for example before the start of 2024 (Retained EU law bill becomes law: what’s the practical impact on employers? (lewissilkin.com)). However British courts have not necessarily taken this approach with 2018 Brexit legislation: Brexit: Effect of EU law when interpreting Equality Act from 2021>No departure from pre-2021 EU court decision if claim arose before 2021?
Effect of REUL Act on disability discrimination rights under Equality Act (EqA)
In brief:
- Regulations are likely to preserve the effect of some EU case law, retaining a wider meaning of disability, and allowing indirect discrimination by association: below Draft Equality Act 2010 (Amendment) Regulations 2023.
- Apart from that, from the start of 2024 the REUL Act may reduce EqA protection in certain areas, in that UK courts might no longer be able to go against EqA wording where it breaches the EU directive. However the position is unclear. The REUL Act may also lead to broader uncertainty under the EqA, particularly on the common issue of what is “proportionate”. Below Reduction in EqA protection, and uncertainty, from 2024?
- When brought into force (perhaps even before the end of 2023), provisions in the REUL Act on when higher courts in the UK can depart from EU Court decisions may encourage higher courts to depart from EU case law more often, potentially reducing protection under the EqA, and creating greater uncertainty. There are also new mechanisms to refer these questions to higher courts, creating delays. Below Easier for UK higher courts to override EU cases from 2023?
- The REUL Act does not affect the fact that the EqA continues in force: below Equality Act continues.
I say something below about Northern Ireland, where the EqA does not apply.
Draft Equality Act 2010 (Amendment) Regulations 2023
Firstly, the draft Equality Act 2010 (Amendment) Regulations 2023 (legislation.gov.uk), expected to take effect from 1st January 2024, should mitigate the effect of the REUL Act.
These regulations expressly preserve the effect of some EU case law. As regards disability discrimination, the preserved case law is:
EU definition of disability.
In relation to employment discrimination, a person’s ability to carry out “normal day-to-day activities” is to be given a wider meaning, so as to include more generally their ability to participate fully and effectively in working life on an equal basis with other workers (draft regulation 6, inserting new EqA Sch1 para 5A). For example, a promotion exam, or applying for a job, could continue to be seen as “normal day-to-day activities” under the EqA.
This preserves the wider EU definition of disability, in Ring. See Disability: ‘Normal day-to-day activities’>EU law: ‘normal day-to-day activity’ is very wide in employment claims.
Indirect discrimination by association
A new s.19A EqA (inserted by draft regulation 3) would allow a person to claim indirect discrimination even though they do not have the protected characteristic, if the person is put at the same disadvantage as people who have the protected characteristic. This aims to implement the EU court decision in CHEZ.
This new s.19A – and also the potential to claim even before 1st January 2024 – are discussed at Indirect discrimination> S.19A: Indirect discrimination “by association”.
For example, potentially s.19A might permit a claim by someone who does not themself meet the EqA definition of disability (despite perhaps having a stammer, or other impairment) but who is put at substantively the same disadvantage as people who do have a disability within the EqA.
EHRC reaction
The Equality and Human Rights Commission welcomes the protections, but says these are complex issues and it is desirable that Parliament and other stakeholders have sufficient opportunity to scrutinise any proposals to avoid unintended consequences.
Note on this preserved EU case law
Presumably British courts could, if so decided by higher courts, depart from pre-2021 EU case law as to how they apply this new wording in the regulations: Effect of REUL Act: Easier for UK higher courts to override EU cases from 2023. However this does not seem very likely, given that the intention of the regulations appears be that this EU case law should continue to have effect in Britain.
Effect of REUL Act: Reduction in EqA protection, and uncertainty, from 2024?
- From the start of 2024, the REUL Act may reduce EqA protection in some areas, in that UK courts may perhaps no longer be able to go against EqA wording where it breaches the EU directive: below End of Marleasing principle?
- From the start of 2024 the REUL Act may also lead to much broader uncertainty, particularly on the common issue of what is “proportionate”: below End of general principle of “proportionality”.
From 2024: End of Marleasing principle?
This does not affect EU case law preserved under regulations: see above Draft Equality Act 2010 (Amendment) Regulations 2023. However apart from those areas:
In summary, the stated intention seems to be that from 1st January 2024 the REUL Act 2023 will abolish the principle (the Marleasing principle) which allows UK courts to depart from the wording of the EqA to comply with the relevant EU directive. However it is unclear whether the REUL Act does this where pre-2021 cases have applied the principle to the EqA. (Technical detail below.)
If the REUL Act does indeed repeal this principle, then potentially – subject to how the courts apply the change – the Act could reduce EqA protection in certain ways as from the start of 2024. The areas affected should be reduced by the regulations, above. Remaining examples include:
- University students may often be left without a claim when discriminated against by their work placement provider: EU Framework Employment Directive>Work placements related to education courses.
- Police officers may often be unable to bring EqA employment tribunal claims for acts of misconduct panels: EU Framework Employment Directive>Claims by police officers in respect of disciplinary action.
- Not being allowed to bring a victimisation claim if one has not oneself done a protected act, but is victimised because of someone else’s act: Victimisation>Victimisation ‘by association?
More detail on Marleasing principle and the REUL Act
Before the end of 2023, s.5(2) EU (Withdrawal) Act 2018 says that the principle of the supremacy of EU law continues to apply to legislation passed before the end of 2020: Brexit: Effect of EU law when interpreting Equality Act from 2021>Supremacy of EU law until UK modifies its laws. S.3 REUL Act 2023 amends s.5 to say that from 1st January 2024 this supremacy principle is not part of domestic law, even for pre-2021 legislation. (Also s.2 REUL Act repeals EU rights, obligations and remedies etc currently preserved by s.4 EU (Withdrawal) Act 2018, from the start of 2024.)
Para 92 of the Explanatory Notes (legislation.gov.uk) for the REUL Act says that the amendment to s.5 “has the effect of removing the principle of consistent interpretation in relation to all domestic legislation, and the conflict rule requiring domestic legislation to give way to RDEUL [below] where a consistent interpretation is not possible”. The principle/duty of consistent interpretation is another name for the Marleasing principle.
Despite directives not being RDEUL, below, it seems likely that the government sees the REUL Act as repealing the Marleasing principle, under which UK legislation implementing an EU directive must be interpreted where possible to conform with the directive. However it will be for the courts to interpret the Act.
A route under which the Marleasing principle may potentially still apply in effect – including after the start of 2024 – is through UK courts following previous EU and UK court decisions under s.6 EU (Withdrawal) Act 2018 (below Easier for UK higher courts to override EU cases from 2023?). Even after amendments by s.6 and Sch 2 para 8 of the REUL Act, it seems that s.6 of the 2018 Act will still require courts to follow pre-2021 court decisions related to EU law, as “assimilated case law”, unless higher appeal courts have decided they should no longer do so.
Before the REUL Act takes effect at the end of 2024, the Marleasing principle apparently continues in effect after Brexit; I outline elsewhere the technical grounds for saying this.
Under the Marleasing principle, even if the wording of the EqA clearly does not comply with the EU Framework Employment Directive, UK courts can rewrite the EqA so it complies, subject to limitations.
(RDEUL means “retained direct EU legislation” as defined by s.20 with s.3(2) EU (Withdrawal) Act 2018. The most obvious examples are EU regulations applying directly in the UK. Since directives are within s.4 rather than s.3 of the 2018 Act, RDEUL does not include the Framework Employment Directive which is the main EU legislation on disability affecting the interpretation of the Equality Act.)
From 2024: End of general principle of “proportionality”
The REUL Act 2023 may create uncertainty in other ways. A large area of possible uncertainty from the start of 2024 is proportionality.
S.4 REUL Act abolishes “general principles of EU law” in the UK from the end of 2023. One of these general principles is proportionality. Proportionality lies at the heart of the objective justification defence and indirect discrimination in the EqA. British court decisions on what is “proportionate” under that EqA defence are very much based on EU case law. It has been suggested – as I understand it (Webinar, from 31mins in) – that s.4 creates uncertainty as to what approach UK courts should take here under the EqA.
It might be argued that UK courts’ reliance on EU cases here can be divorced from the EU “general principle” of proportionality as such: eg the issue under the EqA is not whether measures of the EU or a member state are proportionate (TEU Article 5(4)). However until this is resolved, it may create uncertainty on an issue which arises in very many EqA cases.
Apart from the s.4 abolition of EU general principles, there is in any event the question of whether UK courts considering the justification defence in EqA claims will continue to follow the EU cases on proportionality: under s.6 of the 2018 Act as amended by the REUL Act: below Easier for UK higher courts to override EU cases from 2023? Lower court cases may be delayed while the issue is referred to higher courts, which may be struggling to deal with a large number of such referrals on different pieces of legislation.
However, I would expect that ultimately – after any delays to have higher courts consider the issue – UK courts are likely to pretty much keep the existing interpretation of proportionality. Even on the thorny issue of how far cost is relevant to justification, I don’t see why they would want to depart from the approach they developed in the light of EU case law.
Effect of REUL Act: Easier for UK higher courts to override EU cases from 2023
Under the REUL Act, as at present, only the Supreme Court, Court of Appeal and equivalent “higher” courts will have power to depart from pre-2021 EU Court decisions. However:
- The REUL Act will alter the test for when the higher courts can depart from these EU decisions: below Test for higher courts to depart from EU cases.
- Lower courts who can’t themselves overrule pre-2021 EU case law – including employment tribunals and employment appeal tribunals – will be able to refer the issue to higher appeal courts who can. Government law officers such as the Attorney General will also be able to refer the issue. It will therefore be easier for cases to get to the level of higher courts who could (if the higher court decides it is appropriate) decide that lower courts should depart from pre-2021 EU case law in a particular context. This is all under provisions added by s.6(8) REUL Act.
The 2023 Act says that these changes take effect from a date to be specified by the government, which could be before the end of 2023.
Lower court cases may be delayed while the issue of whether to follow EU case law is referred to higher courts. These courts may be struggling to deal with a large number of such referrals on different pieces of legislation.
Test for higher courts to depart from EU cases
The current rule in s.6(5) EU (Withdrawal) Act 2018 and regulations is that in deciding whether to follow pre-2021 EU Court decisions, the Supreme Court and Court of Appeal must apply the same test as the Supreme Court would apply in deciding whether to depart from its own case law. This seems to mean that while treating EU Court decisions as “normally binding”, they can depart from the EU decision “when it appears right to do so”: more Brexit: Effect of EU law when interpreting Equality Act from 2021>What test is applied in deciding whether to depart from EU Court decisions?
S.6(3) REUL Act will – when the government brings it into force – repeal that test of whether to follow pre-2021 EU Court decisions. S.6 EU (Withdrawal) Act 2018 will be amended so that it states certain factors to which a higher court – the Supreme Court, Court of Appeal and equivalent courts – must “(among other things)” have regard in deciding whether to follow those EU Court decisions —
- the fact that decisions of a foreign court are not (unless otherwise provided) binding [Note: Even now, before the REUL Act is in force, s.6(4) and regulations say that the Supreme Court and Court of Appeal are not bound by pre-2021 EU Court decisions.];
- any changes of circumstances which are relevant to the EU case law; and
- the extent to which the EU case law restricts the proper development of domestic law.
S.6(4) REUL Act will also amend s.6 of the 2018 Act to say that a higher court can depart from its own previous case law if it considers it right to do so, having regard (among other things) to factors 2 and 3 above plus a different factor in place of 1.
Effect of different test
Will this change make it more likely that higher courts in Britain will depart from pre-2021 EU Court decisions? Probably to some extent, but we don’t know much. The change is clearly intended to make it less likely that higher courts follow EU decisions, which creates greater uncertainty until the courts decide the issue. As well as the uncertainty, not following EU decisions will almost certainly reduce protection under the EqA. Under the REUL Act, the EU (Withdrawal) Act 2018 will no longer effectively state that those EU decisions should “normally” be followed. However, how far the UK courts do follow them will depend on what approach the higher courts take to the revised test.
Effect of REUL Act: Equality Act continues
The Equality Act (EqA) continues in force. The REUL Act does not revoke the Act.
Even the REUL Bill’s previous “sunset” provisions (now withdrawn) would not have revoked the EqA. Those provisions would have revoked, for example EU regulations, and British regulations implementing EU law, with effect from the end of 2023 – except so far as the government passed regulations to save them. However this did not apply to Acts of Parliament, so the EqA was unaffected by the “sunset” provisions.
The employment provisions of the Equality Act will apparently be “assimilated law” from the end of 2023 (s.5 REUL Act), since they are currently “retained EU law”.
Equality Act regulations continue
S.1 REUL Act will revoke the regulations listed in Schedule 1. However the Equality Act 2010 (Disability) Regulations 2010 (legislation.gov.uk) and the Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 (legislation.gov.uk) are not in the list of regulations being revoked.
See also the government’s Retained EU Law Dashboard (powerbi.com)., which s.17 of the REUL Act says must be updated every six months.
News and commentary
- Retained EU law bill becomes law: what’s the practical impact on employers? (lewissilkin.com), 29 June 2023
Northern Ireland
The main Northern Ireland equality legislation on disability seems unaffected by the revocation of listed EU-based regulations in the REUL Act, so this legislation will continue after 2023:
- The Disability Discrimination Act 1995 was never affected because it is an Act of Parliament.
- Also the Special Educational Needs and Disability (Northern Ireland) Order 2005, SR 2005/1117 (Education: disability discrimination in Northern Ireland) is not listed in Schedule 1 as one of the regulations revoked by the REUL Act. (Even under the original Bill, I don’t think it would have been affected by the sunset provisions.)
As to how far NI courts (or the Supreme Court) should continue to apply EU law and cases in relation to this legislation, the REUL Act does not repeal s.7A EU (Withdrawal) Act 2018 which gives the Northern Ireland Protocol effect in UK law (Brexit: disability discrimination in Northern Ireland>Rights etc under Protocol are part of UK law). As discussed at that link, the Protocol says NI law should continue to comply with the Framework Employment Directive, even after 2020. The fact that s.7A continues should at least make it more likely that NI (and higher) courts would continue to follow EU law on this NI legislation. However these issues, including whether NI courts should continue to apply the Marleasing principle (above), will be for the courts to decide (perhaps taking into account any steps taken under the “dedicated mechanism” in response to changes made by the REUL Act).
Link: What might the Brexit Freedoms Bill mean for employment law in Northern Ireland? (lewissilkin.com), 1 Nov 2022.
