NAWO’s Brexit Update: Where are we now?

Barbara Cleary (Vice-Chair of NAWO) has been monitoring developments around implementation of the referendum decision last June and actively participating in a variety of forums analysing the risks to women’s equality agenda and human rights in the UK. We will be responding to Government proposals and the EU Withdrawal Bill in the coming weeks. If you want to have your say included, you can email admin@nawo.org.uk with your thoughts for Barbara.

Women have benefitted significantly by the UK’s membership of the EU. The purpose of our campaign is to ensure hard fought rights are maintained and the UK keeps pace with EU on women’s rights.  Given the complexities surrounding the Brexit process and the potentially significant implications for gender equality and women’s rights it is essential that women’s voices are represented at every level in the Brexit negotiations. 

Brexit Negotiating Team

The UK Negotiating Team biographies, as published by DexEU, include only one woman among its nine members.While women represent 51 percent of the population and 32 percent of the UK Parliament, women form only 11 percent of the UK’s negotiating team. It is difficult to understand how a deal that works for everyone can be achieved when the voices of half the UK’s population are not represented at the negotiating table. We are aware that representation of women on the Department Management Team is more equitable and that the Government is reaching out across government departments. However, in the absence of more detailed information we remain concerned that the rights of women are at risk of not being protected following UK withdrawal from the EU.  The UKJCW on which NAWO represents England (Barbara Cleary is our representative) will be writing to the RT Hon David Davis to express our concerns. Barbara will share the letter and response with you.

Repatriation of UK Laws

The repatriation process involves some 19,000 laws promulgated in Brussels over the past 42 years being imported and absorbed into UK law. Women’s rights that may be at risk include those inferred by the treaties, or by legislation under the treaties, or by European Courts of Justice rulings interpreting the treaties and legislation. There is a real risk that the lens on the women’s agenda will be lost, women’s voices not heard and women’s economic prosperity at risk because of a possible recession. As we know decisions can often be gender blind and the need for gender impact assessments and gender budgeting is needed more than ever and must become an integral part of the Governments work as we move towards leaving Europe. If there is a recession then measures must be put in place to ensure women are not hit the hardest.

As we are all aware the EU has been at the forefront of driving equality for women. Without the EU it is possible we would not have equal treatment for part-time workers; anti-discrimination legislation on employment, training and working conditions; the EU Pregnant Workers Directive which gave women the right to time off work to attend ante-natal appointments; protection from discrimination on grounds of gender reassignment; sex discrimination rules which place the burden of proof on the defendant; legislation to provide equal pay for work of equal value. Provisions which outlaw discrimination in employment on grounds of sexual orientation were as a direct result of the employment equality directive. The discrimination provisions on grounds of race, disability and age were also was extended by the Employment Equality Directive.  We know that women experience multiple disadvantages based on race, sexuality, disability, income vulnerability, migration status and other factors. The need to prioritise and address the specific needs of women facing multiple-discrimination must not be lost during the negotiations

Face Her Future

Early in the year Fawcett Society co-ordinated a meeting of women’s organisations to mount a joint campaign – Face Her Future Campaign – to ensure we use our ability to influence to maximum effect. NAWO is actively participating in this initiative. Barbara has been attending and contributing to the development of the campaign. We agreed that underpinning the campaign would be the desire to move forward in a progressive way whilst making sure that hard fought for rights are not lost and the women’s agenda does not slip backwards.

The aims of the campaign are to:

  • Guarantee women’s rights and promote a positive agenda for progress.
  • See women represented throughout the process and at every level.
  • Unite our communities and tackle racism, misogyny and all hate crime.
  • Ensure women are not hit hardest if there is an economic downturn.

The campaign is up and running if you want to join.

The more organisations that support the campaign the greater our chances of being able to influence outcomes and ensure our agenda for women is not diluted and is at the fore front of  Government and people’s priorities. 

Barbara has actively participated at two high level panel meetings (July and September) organised by Lesley Abdela, Senior Partner in Shevolution (an equality consultancy). The meetings were designed to bring together relevant stakeholders to look at how we can protect and preserve women and gender equality rights and what we can do as individuals and organisations to ensure women’s rights are not weakened or lost in the Brexit negotiations and repatriation of EU law into UK laws. Sarah Champion, Shadow Minister for Women and Equalities, attended the last meeting. The participants brought a lot of energy and passion to the discussions and shared information and ideas for the campaign to protect women’s rights and create opportunities to promote the women’s agenda. We agreed that for the moment it made sense for organisations and individuals to join the Fawcett’s Face Her Future campaign, to have maxim impact and defer another meeting of the group at the present time. 

NAWO is a member of the Equality and Diversity Forum. Barbara represents NAWO at EDF meetings and on the EDF Strategy Group which has been set up to respond to the Government’s proposals for implementing leaving the EU.  All diversity strands are represented in the group and Barbara has a particular focus on gender equality ensuring voices of women are represented in responses to the government. Members include  Liberty, Unlock Democracy Alliance, Fawcett, EHRC, Amnesty and many more.  The Group has undertaken a thorough and comprehensive analysis of all the Government’s plans, proposals and negotiations on the journey to leaving the EU thus far and is mounting a strong lobbying campaign to challenge in a positive way concerns of loss of equality and rights across the board whilst also ensuring a progressive equality agenda for the future. 

European Withdrawal Bill (The Bill)

Many charities, NGO’s and other organisations like ourselves in the women’s sector are deeply concerned about the European Withdrawal Bill (The Bill). This is a new piece of legislation that will ensure EU law no longer applies in the UK. As it is currently drafted it contains powers for Secretaries of State to remove European legislation deemed unnecessary. In a nutshell the Bill is designed to achieve three things:

  • Repeal the 1972 European Communities Act which provides the legal authority for EU law to have effect in UK law.
  • Transpose EU laws in to UK law – this will ensure UE law made while UK is a member will continue to apply after exit.
  • Grant ministers the power to change transposed EU-law using secondary legislation which is subject to less scrutiny by MPs and Parliament.

Understandably the Bill has attracted a lot of criticism and gives cause for concern. This will be the focus of the work of the EDF Strategy Group over the coming weeks. In the EDF Strategy Group we have all worked on an analysis of the Bill. The Bill has been examined by experts working with NGOs and NGOs themselves. Our primary concerns are:

  • The lack of a commitment expressed in the bill to retaining all the EU derived rights and protections in full. In particular the Charter of Fundamental Rights of the EU which forms the basis of how EU law should be applied ceases to apply after exit day.
  • The Bill grants ministers the power to change laws through secondary legislation. These powers can be exercised without scrutiny making it possible for regulations, powers and rights currently enjoyed to be signed away. This poses a genuine risk that rights and freedoms enjoyed by British citizens and women in particular will be lost. The Government’s stated intention to retain current protections is welcome. However this needs to be stated expressly in the Bill.
  • The Bill proposes, as we expected, to extinguish the role of the Court of Justice of the European Union (CJEU). It is not clear how the judgments of the CJEU prior to our leaving the EU will be used after we have left; and how, if at all, future CJEU judgements will be used. The Lord Chief Justice has asked for confirmation that mutual recognition of British and EU court judgements will continue after Brexit. Sharing best practice benefits us all and keeping pace with CJEU case law developments is in all our interests and particularly so in striving for gender equality. If leaving the EU means there is no longer recourse to the CJEU then an alternative mechanism needs to be in place to ensure the highest standards of equality and human rights in the UK in the future.
  • Currently the constitutional right to equality sits within Europe so our domestic law cannot fall below the standard of EU law. The Bill presents an opportunity for Parliament to replace EU law with the UK’s own guarantee to equal treatment. This can be achieved by including a free standing right to non-discrimination within the Bill. This would have the same constitutional status as rights protected under the Human Rights Act and would be enforceable in the same way.  Laws and state actions would be tested against the right to equality and non-discrimination and the requirement for new laws to be compatible with the constitutional right to equality also.

It is fundamentally important to all of us that democratic processes are respected; there are safeguards on the powers given to Ministers in the Bill; and robust scrutiny mechanisms are in place at all levels. The Brexit process must involve Parliament, the devolved nations and civil society. We have a long tradition of valuing diversity, upholding people’s rights, and challenging intolerance. Looking to the future what is important is for us all to have a clear vision of the country we want to live in after Brexit.

The key areas where clarification and amendments are needed:

  • Rule out the use of delegated powers to amend equality and human rights laws
  • Ensure that the use of delegated powers has proper and appropriate parliamentary scrutiny
  • Include a principle of non-dilution of equality and human rights law in the Bill
  • Retain the protections of the EU Charter of Fundamental Rights
  • Introduce a  constitutional and fundamental right to equality
  • Ensure the courts have regard to relevant EU case law where there is doubt in construing or applying law relating to equality and human rights consider.

Read the EHRC analysis of the Bill here. Read EDF Briefing here Read Fawcett Briefing on the Bill here

The analysis has the general support of a range of organisations that have come together to provide a collective voice on the Bill and its progress through the Committee stage (date to be announced officially).  It is not just about protecting what we have, it is also about addressing gaps and uncertainties in

 laws currently in place and ensuring women have access to the law.  Brexit must not result in a rollback of our rights and equalities standards. We still have the gender pay gap, inequality in pension provision, need for improved maternity and parental care provision and improved work life balance that recognises the need for equal sharing of caring responsibilities to name a few.      

We are working to ensure that our voices are heard and the government makes changes to the Bill in the coming weeks as it journeys through the Committee stage. Time allowed for this stage is very tight – 8 days have been timetabled in total. In the EDF Strategy Group we are drafting letters to Ministers and other parliamentarians as part of our collective lobbying campaign.  NAWO will be a signatory to these letters. We will also be running our own social media campaign and regular briefings and sending letters to parliamentarians on behalf of NAWO.

British Institute of Human Rights (BIHR) Alliance

NAWO is a member of the BIHR Alliance. Barbara represents NAWO at group meetings which have focused on the Human Rights Act and the possible risk of the Government following through its plans to replace the Act with domestic legislation. Members of the BIHR Alliance wrote to the government setting out in clear terms our deep concerns regarding the proposals to repeal the HR Act.  Read Theresa May’s letter.   The Government in its Manifesto has also committed to “we will not repeal or replace the Human Rights Act while the Brexit process is underway but we will consider our Human Rights legal framework when the process of leaving the EU concludes. We will remain signatories to the EU Convention on Human Rights for the duration of the next Parliament”. We have a window but now is not the time to be complacent. It is important that we continue the campaign and be ready to respond when the Government refocuses its attention to the Act.

In March BIHR ran a campaign celebrating human rights and the Human Rights Act – “MarchforFights”. Towns and cities were visited across the UK with pop up events as well as running a social media campaign. Read more. We are currently making future plans so stay in touch – more to come in 2018.  At BIHR Alliance we are also actively engaged with Brexit and supporting the campaign to ensure equality and human rights are not lost.

If you have a concern or something you would like shared please do not hesitate to contact me via admin@nawo.org.uk   

Barbara Cleary