Brexit: social and equality impacts

Potential Impacts of a 'softer' Brexit

Our second scenario is based around what may happen under a managed 'softer' Brexit, based on the possibility that the UK Government will 'soften' its negotiating position during the course of negotiations with the EU on a future trade and security relationship, to allow for a closer relationship with the EU.^[129]

This scenario is based on there being a 'softening' in the UK's interpretation and application of the non-binding Political Declaration (that accompanied the Withdrawal Agreement)^[130] when negotiating a future UK-EU relationship. In particular, this scenario involves stronger commitments to maintaining a 'level playing field' or alignment with the EU in areas of environmental and labour standards, State Aid and competition policy after the transition period ends. A level playing-field commitment had originally been included in the Withdrawal Agreement proposed by Theresa May in January 2019. However, it was removed from the Withdrawal Agreement put forward by Boris Johnson in October 2019.^[131]

This 'softer' Brexit scenario may also include a binding UK commitment to honouring and updating legal protections arising from future primary and secondary EU legislation and case law from the European Court of Justice, in perpetuity.

However, as the revised (December 2019) EUWAB now removes the UK Parliament's approval role in relation to the UK's negotiating mandate for the next stage of negotiations with the EU (as contained in the earlier October Bill), which could have given Parliament a role in shaping the future relationship, any 'softening' of Brexit would now likely have to be a decision of the UK Government.

(1) Loss of rights

If the UK decides to enshrine most EU primary and secondary legislation, and CJEU case law, into UK law, and commits to abiding by all future EU legislation relating to employment, the environment and equalities rights, there would be less risk of a loss of rights in the UK. It would mean that current EU-derived rights would not be 'frozen in time' – as they would be continually updated to reflect EU advances in rights – and current rights derived from EU secondary legislation (such as the Part-Time Workers Directive) and CJEU rulings would be protected from being overturned by the Supreme Court or individual lower courts across the UK. However, even under a 'softer' Brexit that embodies a strong commitment to maintaining a level playing-field in workers' and social rights, individuals would still experience a loss of European citizenship, including the loss of free movement rights.^[132]

(2) Economy and Public Services

If the UK decides to commit to level playing-field provisions and to align with EU regulatory standards, this would make it easier to agree a post-Brexit UK-EU trade agreement (though potentially more difficult to agree to free trade agreements with the USA and other countries). However, as the UK would still be leaving the EU Single Market and Customs Union, a softer Brexit would still create additional barriers to trade, disrupting supply chains and potentially having an adverse effect on investment^[133] (with a recent example being the Tesla company decision not to build a factory in the UK due to Brexit uncertainty and disruption^[134]). A softer Brexit would therefore still be likely to have a negative impact on the UK economy, compared to membership of the EU.

(3) Continued impact on community relations

Any legislation providing for closer regulatory alignment with EU standards, and closer integration with EU legislation on workers' rights, is unlikely to make a significant change to patterns of hate crimes in the UK. The UK would still be leaving the EU, and police predictions and concerns that there will be a rise in hate crimes at the time of 'Brexit Day' in England and Wales are still likely to be valid, whatever type of Brexit is to occur.^[135] Although there has not been an equivalent increase in recorded hate crime in Scotland or a predicted spike at the time of 'exit day', evidence that there has been an increase in unreported incidences of racism against young Eastern European pupils in English and Scottish schools indicates that Brexit is nevertheless having an effect on community relations in Scotland.^[136] While it is difficult to predict what will happen over the next few months, concerns that Brexit may negatively impact society's attitudes toward race^[137] remain valid under a softer-type Brexit.

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(4) Immigration and labour market

Even if the UK Government softens its negotiating position to include stronger level playing-field commitments and agreements to abide by future EU legislation relating to human rights and equalities in a future UK-EU trade agreement, this is unlikely to change the UK Government's intention to create a new post-Brexit immigration system that ends EU freedom of movement and thereby creates restrictions on the rights of EU nationals to move to the UK in the future.^[138] The proposal to create mobility arrangements between the UK and EU as part of an association agreement^[139] – which would only apply to specific groups of people, such as intra-corporate transferees supplying services in an EU country on a temporary basis – would not mitigate the loss of EU free movement. UK nationals will still lose their European citizenship rights, including the right of free movement. Furthermore, a softer Brexit will still likely have an adverse impact on EU migration flows to the UK once free movement ends, with sectors of the economy reliant on EU migrants being hit hardest.

(5) Potential further dilution of rights and protections (under trade deals)

In this softer Brexit scenario, while a commitment to upholding EU rights and protections, and to level playing-field commitments, may mean that UK citizens will maintain many of the current equalities rights that they enjoy, it is still impossible to tell if the UK's trade agreements with other countries may have an impact on other rights, including human rights.^[140] For instance, a softer Brexit may not prevent the UK from deciding to open up pharmaceutical supplies to the NHS to foreign-owned companies, for instance in a UK-USA trade agreement.^[141] This means that, under a softer Brexit, there is still a risk of loss of current social rights, especially to healthcare, medicines and consumer protections.