Brexit: social and equality impacts

Policy Context

The Road to Brexit: a Timeline

On 23 June 2016, the UK Government held a referendum on whether the UK should remain a member of the EU or leave the EU.^[17] A majority of voters in the UK (51.9%) voted to Leave, whilst a majority of voters (62%) in Scotland voted to Remain.

The UK Government obtained the approval of the UK Parliament to trigger Article 50 of the Treaty of the European Union – which governs a member state's withdrawal from the EU – and the two-year countdown for negotiations on withdrawal began on 29 March 2017.^[18]

In July 2017, the UK Government introduced the EU (Withdrawal) Bill, which was designed to give legal effect to the UK's withdrawal from the EU in UK law.^[19] The Bill was approved by the UK Parliament (without the consent of the Scottish Parliament) in June 2018.

In November 2018, the UK and EU completed negotiations on the UK's withdrawal from the EU, and a Withdrawal Agreement (pertaining to citizens' rights, the financial settlement and the Irish border) and a Political Declaration (on the future UK-EU relationship) were agreed.^[20]

However, the UK Parliament rejected the Withdrawal Agreement (and Political Declaration) on three occasions in early 2019^[21], requiring the then Prime Minister Theresa May to request an extension to Article 50. Following an initial short-term extension, the EU agreed to extend to 31 October 2019.^[22]

After Theresa May's resignation, Boris Johnson became Prime Minister in July 2019.^[23] Boris Johnson negotiated a new Withdrawal Agreement and Political Declaration with the EU in October 2019, which broadly involved a close economic relationship between the EU and Northern Ireland to prevent a 'hard border' on the island of Ireland, and a looser relationship between the rest of the UK and EU. The revised deal also included the removal of level playing field commitments in six policy areas set out in the Protocol on Ireland / Northern Ireland in the Withdrawal Agreement, which were replaced by less specific and non-binding commitments to upholding these principles in a future UK-EU relationship.^[24]

The implementing EU (Withdrawal Agreement) Bill (EUWAB), passed its second reading in the House of Commons on 22 October. However, the UK Government's proposed timetable for the Bill was rejected by Parliament and the EUWAB fell on dissolution of Parliament in advance of the 12 December General Election as it had not completed its passage through the UK Parliament^[25],. The European Union (Withdrawal)(No. 2) Act 2019 (commonly referred to as the Benn Act) required the Prime Minister to receive parliamentary approval for either a negotiated withdrawal agreement or a no-deal Brexit. In the event of there being no parliamentary support for either option, the Prime Minister was required, by 19 October, to request an extension to the Article 50 period to 31 January 2020. That request was sent as required and the EU Council of Ministers agreed on 28 October to extend Article 50 negotiations to 31 January 2020. On 13 December, Boris Johnson was returned as Prime Minister with an overall Conservative majority in the general election of 12 December. The EUWAB was subsequently revised and brought back to parliament as a new bill on 19 December 2019, and it passed the committee stage in the House of Lords on 16 January 2020.

European Union (Withdrawal Agreement) Bill

The EU (Withdrawal Agreement) Bill (EUWAB) was introduced in the House of Commons in October 2019 to ratify and implement the UK-EU draft international treaty for the UK's withdrawal from the EU. On dissolution of Parliament for the 12 December general election, the October EUWAB fell. Upon winning a majority in the election, Boris Johnson's Conservative Government revised and reintroduced the EUWAB in the House of Commons on 19 December. The new, revised version of the EUWAB passed its second reading in the House of Commons on 20 December, and its third reading on 9 January 2020, before being passed to the House of Lords for scrutiny. At the time of writing it is expected to receive Parliamentary approval and be sent for Royal Assent.

The EUWAB is a significant piece of legislation that implements the Withdrawal Agreement, as agreed between the UK and the EU. The Withdrawal Agreement sets out the terms by which the UK leaves the European Union.^[26] The Withdrawal Agreement covers issues relating to (a) the preservation of citizens' rights; (b) a protocol on Northern Ireland to prevent a hard border with the Republic of Ireland; (c) the transition period; (d) other separation issues (e) the financial settlement; and (f) provisions on the governance of the Withdrawal Agreement, including dispute settlement. Alongside the Withdrawal Agreement, which the EUWAB will implement in UK domestic law, the UK Government negotiated a non-legally binding Political Declaration with the EU, which sets out a framework for the future relationship between the UK and EU after the transition period ends.

The revised Withdrawal Agreement, which the EUWAB will implement into domestic UK law, has a number of implications for equalities groups after Brexit. These include provisions on EU citizens' rights in the UK, the removal of (earlier) provisions relating to non-regression on workers' rights, and the removal of an obligation on UK ministers to negotiate with the EU to reach agreement on making provision for arrangements between the UK and the EU for unaccompanied children seeking asylum.

The following analysis focuses on the revised (December 2019) version of the EU (Withdrawal Agreement) Bill. Where relevant, references are made to any changes to the EUWAB since the earlier October 2019 version. In particular, key differences in the revised (December) EUWAB include: the removal of provisions relating to workers' rights; the removal of a requirement on UK Ministers to seek to negotiate with the EU to agree certain arrangements between the EU and UK on unaccompanied asylum-seeking children; provisions to enable UK Ministers to make regulations to provide that (specified) lower courts are able to depart from retained EU case law in certain situations; a provision to prohibit a UK Minister agreeing to any extension to the transition period; and the removal of provisions giving the UK Parliament a role in approving negotiating objectives in the next phase of UK-EU negotiations and approving the final UK-EU treaty.^[27]

Citizens' Rights

The Withdrawal Agreement sets out the rights of EU citizens living in the UK, and UK citizens living in the EU, to continue to live, work, study and access public services in broadly the same way they do now (the UK has made separate agreements with the EEA states and Switzerland, which mirror the offer in the WA). The EUWAB provides for all rights, powers, liabilities, obligations, restrictions, remedies and procedures created or provided for by the Withdrawal Agreement (other than by Part 4) to be directly recognised and enforced in domestic law. The EUWAB provisions on citizens' rights in the earlier (October) and revised (December) Bills are almost identical, and would broadly implement the agreements set out in Theresa May's 2018 Withdrawal Agreement.^[28] The main change to the revised (December) Bill is that the proposed Independent Monitoring Authority (IMA), which would be responsible for ensuring that citizens' rights are protected and implemented, would be able to delegate some of its functions to another public body.^[29]

At the time of publication of the EUWAB, there was also more clarity around the functioning of the EU Settlement Scheme^[30], which opened in March 2019 to enable EU nationals to apply for settled status (a type of indefinite leave to remain) or pre-settled (temporary) status. The UK Government's Security Minister confirmed that if EU nationals failed to apply for status through the Settlement Scheme by the end of the transition period (31 December 2020), "the immigration rules will apply."^[31] When asked if this meant the possibility of the deportation of EU nationals who failed to register, the Minister replied "theoretically, yes." However, following a resolution in the European Parliament in January 2020 expressing concerns about EU and UK citizens' rights, the UK Government said it will not 'automatically deport' EU nationals if they fail to apply for the Scheme on time.^[32]

The Home Affairs Select Committee has expressed concern that the EU Settlement Scheme risks a repeat of the Windrush scandal, whereby those EU nationals who may be unaware of the scheme or find it difficult to apply by the deadline, may risk losing their right to live in the UK.^[33] This may include, for instance, elderly people (especially those with cognitive impairments), disabled people (including mental ill-health), children (especially children in care whose guardians are unaware of the need to register), homeless people and gypsies/travellers (who may lack proof of residence), migrants (who may not have English literacy) and people on low incomes without the means to access the online form.^[34] In short, EU nationals who are most at risk of deportation include equalities groups.

A report by the think-tank British Future in January 2019 found that with just a 5% rejection rate for the Settlement Scheme, this would leave as many as 175,000 EU nationals living in the UK undocumented and at risk of deportation by 2021.^[35]

Employment rights

The revised (December 2019) EUWAB removes provisions for workers' rights that were contained in the earlier (October 2019) bill.^[36] These earlier provisions would have required a UK Minister in charge of a Bill related to workers' rights to make a statement as to whether that Bill reduces workers' rights as compared to what those rights were at the end of the implementation period. There were corresponding consultation and reporting requirements, and in situations where new EU legislation in relation to workers' rights was made following the implementation period, a minister would be required to make a statement before Parliament on whether or not equivalent workers' rights exist in domestic law. The October Bill listed the EU directives which are relevant for determining workers' retained EU rights for the purposes of the duty to make a statement under paragraph 1.

The new (December) EUWAB removes this provision to ensure transparency over any future changes or divergence in the UK from workers' rights provided by EU law.^[37] The UK Government has stated that workers' rights will be addressed in a separate bill.

Family reunion rights for asylum-seeking children

The revised (December 2019) EUWAB includes a new clause that removes an existing obligation set out in the EU (Withdrawal) Act 2018 for UK Ministers to seek to negotiate an agreement with the EU to make provision for arrangements between the UK and the EU for unaccompanied children seeking asylum. The agreement that was to be negotiated was that (i) in circumstances where such a child makes an application to a member State and it is in the child's best interests, the child may come to the UK to join a relative who is either lawfully resident in the UK or whose asylum request has not yet been decided, and (ii) in circumstances where such a child is in the UK and makes an application to go to a member State, that child may go to a member State in equivalent circumstances. Instead, the December EUWAB places UK Ministers under an obligation to make a statement of policy before Parliament about any future arrangements between the UK and the EU about unaccompanied children seeking asylum in the circumstances outlined above.

Lord Dubs, who amended the 2016 Immigration Act to offer unaccompanied refugee children from Europe safe passage to the UK amidst the European migrant crisis in 2016, has described the decision to remove the obligation to negotiate appropriate agreements with the EU on unifying families and supporting extremely vulnerable children as a 'retrograde step' that could leave hundreds of vulnerable children with family relations in the UK stranded alone in Europe.^[38]

Scottish Government analysis

The Scottish Government (SG) published an assessment of the (October 2019) Withdrawal Agreement, to determine its impact on Scotland.^[39] In the foreword, the Cabinet Secretary for Government Business and Constitutional Relations criticised the EUWAB for implying:

"a weakening of previous commitments on workers' rights and environmental standards, along with other level playing field policies. Not only will this undermine the interests of our citizens, it will greatly weaken the future trade and economic relationship to which our EU partners are likely to agree."^[40]

The SG analysis also offered a comparison of the revised Withdrawal Agreement with the Withdrawal Agreement negotiated by Theresa May in 2018, commenting that:

"The overall impact has changed little between this 'deal' and the one secured by the previous Prime Minister, but the changes that have been made confirm that the UK Government is seeking a much more distant, or looser, relationship with the EU than one which would be consistent with a "soft" Brexit, for example if the UK was to remain in the Single Market and Customs Union. Those changes reinforce and lay bare that Scotland, and the UK, are being faced with a hard Brexit deal that will hit jobs and living standards."^[41]

In its report, the SG criticised the Withdrawal Agreement for the potentially adverse impacts that leaving the EU Single Market and Customs Union will have on Scotland's economy, and for the adverse demographic impact that ending free movement will have on Scotland's population, which are also forecasted to negatively affect the labour market and key sectors employing EU nationals, such as social care. Furthermore, the SG criticised the Withdrawal Agreement for failing to include a binding commitment to comply with the European Convention on Human Rights (ECRH), instead only stating its commitment to 'respect' the EHRC.^[42] The SG interprets this lack of compliance as a potential weakening of human rights.^[43] In light of these impacts, and the lack of a democratic mandate in Scotland for withdrawal from the EU, the Scottish Government lodged a legislative consent memorandum with the Scottish Parliament recommending that the Parliament should not give its legislative consent to the Bill implementing the Withdrawal Agreement. On 8 January 2020 the Scottish Parliament resolved, by 92 votes to 29, to refuse to give its consent to the EUWAB. However, the Secretary of State for Scotland, Alister Jack MP, said that the Brexit legislation would proceed regardless.^[44]

The Scottish Government has also noted that, "Amidst the widespread discussion of process and parliamentary activity, there has been little focus on the substance of the implications of the agreement reached by the UK Government."^[45]

Brexit and Impact Assessments

Ordinarily, the UK Government publishes detailed impact assessments (IAs)^[46] for government policies, to assess the potential impact of any new legislation on – for instance – economic growth, public finances, public services and other areas of concern. The UK Government also publishes equality impact assessments (EIA) to assess any consequences of policies for particular social groups, in particular, equalities groups.

However, the UK Government's impact assessments of Brexit have been overwhelmingly economic in nature, and have lacked an in-depth sector-by-sector analysis of social impacts. For instance, with regard to the EU (Withdrawal) Act 2018 – which was introduced by Theresa May in July 2017 and passed by the UK Parliament in June 2018 – there was no detailed analysis of the different ways in which different groups of people who are protected by the Equality Act may be affected by the UK's withdrawal from the EU. Instead, the UK Government published a generic 'Equality Analysis'^[47] to accompany the then EU (Withdrawal) Bill, which refers more broadly to how equalities legislation will be preserved after Brexit. Furthermore, this analysis did not explore the socio-economic impact of Brexit on equality.

For instance, the Equality Analysis states that:

"there may potentially be impacts, both adverse and positive, on those with protected characteristics as defined by the Equality Act 2010 when the UK leaves the EU. We do not however consider that anything in the Bill will prevent the UK, on EU exit, from continuing to protect and advance equalities when we cease to be EU members."

However, the Equality Analysis does not include a detailed impact assessment on what these 'adverse and positive' impacts will be, and which groups of people may be affected.

Furthermore, the EU (Withdrawal Agreement) Bill introduced by the UK Government in October 2019 was not accompanied by a separate Equality Impact Assessment or 'Equality Analysis'. However, the Bill was accompanied by an Impact Assessment (IA) that contained two paragraphs on 'equalities'.^[48] The 2019 IA stated – in contrast to the previous Equalities Analysis (July 2017) which acknowledged the potential for adverse effects – that:

"These provisions have no undue effect on particular racial groups, income groups, gender groups, age groups, people with disabilities, or people with particular religious views. It is not envisaged that any equality issues will arise as a result of these provisions."^[49]

The impartial UK Regulatory Policy Committee (RPC) made the "exceptional decision" not to rate the Impact Assessment^[50] produced alongside the Withdrawal Agreement Bill introduced on 21 October 2019.^[51]

The RPC stated that impact assessments are not validated when:

"There are significant concerns over the quality of the evidence and analysis; calculations or data may be missing or not verifiable. There is insufficient analysis and/or the RPC believes that the EANDCB figure is inaccurate."^[52]

In relation to equalities, as part of that review, the RPC stated (p14) that:

"…the evidence in support of the Department's assessment is somewhat limited. This is particularly the case for the Equality Assessment, which could helpfully assess the impacts on citizens in more depth and for the Rural-proofing assessment, which is short of available detail given the rural nature of the area and the number of rural businesses affected by the new Protocol."^[53]

The UK Regulatory Policy Committee was also critical of the limited consideration given to the potential impacts of the October 2019 EUWAB on different groups on society. In its analysis of the EUWAB, the RPC stated that:

"The present IA presents a somewhat limited description of the impacts of the Bill on society as a whole, and does not discuss the impacts on those civil society organisations that might be expected to support citizens affected by the impacts of the Bill. Future impact assessments in support of secondary and subsequent legislation should provide clearer assessments on both points…"^[54]

Aside from not providing a detailed social or equalities impact of the EU (Withdrawal Agreement) Bill, the UK Government has also been criticised for failing to provide (or if it exists, make public) an economic impact assessment of the UK's future relationship with the EU in line with the proposed Political Declaration, which accompanied the (October 2019) Withdrawal Agreement^[55].

The revised EUWAB published on 19 December 2019 did not contain a new or revised Impact Assessment, despite the changes it makes in terms of removing provisions regarding workers' rights, parliamentary scrutiny and provisions connected to child refugees compared to the earlier (October) version of the bill. Instead, the IA issued for the previous October Bill was deemed to be sufficient.

A UK government spokesperson was reported as stating:

"The Government will not be publishing any additional assessment of this bill beyond the assessment published in October. We will keep parliament updated throughout the next stage of negotiations."^[56]

The RPC has issued a statement drawing attention to the fact that there had been no updated impact assessment for the revised Withdrawal Agreement Bill introduced on 19 December 2019, despite the fact that the Bill "has been amended and contains several new clauses."^[57] The RPC said that they would "review the existing IA, or any revised IA we receive from the Department, alongside the new Bill and publish a further opinion as early as possible in the new year".

A Gap in the Analysis

As a result of the UK Government's decision not to publish an impact assessment examining the potential impacts on society, in particular equalities groups, as a result of the UK's withdrawal from the EU, it is difficult to assess the full extent of the implications of Brexit for social groups in Scotland and the UK.

This point was made by the Women's Budget Group (WBG) following the publication of the EU (Withdrawal Agreement) Bill in October 2019, in which the short statement on equalities contained in the Bill was seen by the WBG to "not equate to a meaningful assessment of the impact of Brexit on women or any other equalities group.^[58] This point was also made by the charity Poverty Alliance, which criticised the UK Government for failing to disclose the impact of Brexit on poverty, inequality and people on low incomes in the UK.^[59] The Deputy Director of the Runnymede Trust has also criticised the UK Government for the lack of impact assessments "on what a No Deal will mean for different sectors of the economy and groups of people with protected characteristics."^[60]

The UK Government's decision not to produce a full equalities impact assessment of Brexit, including the potential legal and socioeconomic effects on different groups of people in the UK, leaves a significant gap in our understanding of the implications of Brexit.

The contribution of this report

This report seeks to begin to fill this gap, by drawing together research conducted by civil society organisations, think tanks, community organisations and academics, and identifying further general and specific impacts of Brexit; to paint a picture of how Brexit (in its different guises) is likely to affect the lives of people.

This report is by no means comprehensive and it does not claim to be definitive; instead it should be considered as a starting point for further research that explores how specific equalities groups will be affected by different types of Brexit, as well as policy analysis and recommendations for how to mitigate these impacts.

Furthermore, despite the political changes over the past few months – in terms of the composition of the UK Government and Parliament, and the revision of the EU (Withdrawal Agreement) Bill – this report seeks to take a broader view of social impacts of Brexit on individuals and communities in Scotland and the UK, viewed through the prism of three Brexit scenarios: a hard Brexit, a softer Brexit, and a no-trade deal Brexit.

Given that the Conservative Party has obtained a majority in the House of Commons, it is now more likely that Prime Minister Boris Johnson's preferred outcome – a hard Brexit, along the lines implemented by his government through the EUWAB – or a no-trade deal Brexit, where the UK leaves the EU at the end of the transition period without agreeing a future relationship with the EU – will come to fruition.

In order to conduct this analysis, the report examines the deal agreed by the UK government with the EU in October 2019, and the implications of the revised (December) EU (Withdrawal Agreement) Bill for social and equality groups.