Brexit: social and equality impacts

European Union (EU) Social Rights

The European Union (EU) has advanced social policies that affect the lives of every UK citizen. While much of the focus of European integration in the post-war decades was on economic integration – culminating in the creation of a Single Market – over the past few decades the EU has accelerated its work in guaranteeing the social rights of all EU citizens.^[61]

The EU's social protections include rights to:

• equality and protection against discrimination on the basis of sex, race, religion, age, disability and sexual orientation
• equal opportunities and access to the labour market (including equal treatment for men and women at work, pregnancy, maternity and parental leave)
• fair working conditions and health and safety standards in the workplace
• social protection and inclusion funding and provisions
• consumer protection
• free movement and equal treatment in social security systems
• reciprocal access to healthcare and transferable pension rights
• reciprocal access to higher education through Erasmus and Socrates schemes

In 2017, the European Union consolidated its commitment to social rights and social inclusion by creating a 'European Pillar of Social Rights'.^[62] This pillar is based on effective social rights for citizens based on key principles. According to President Juncker,

"Today we commit ourselves to a set of 20 principles and rights. From the right to fair wages to the right to health care; from lifelong learning, a better work-life balance and gender equality to minimum income: with the European Pillar of Social Rights, the EU stands up for the rights of its citizens in a fast-changing world."^[63]

The EU's social dimension involves the development of policies, actions, funding and laws pertaining to the sphere of social policy, including welfare, employment and equalities. Below are some examples of the EU's activities in guaranteeing social protections.

EU Primary Legislation

One of the most significant pieces of EU legislation, the European Charter of Fundamental Rights, brings together all the personal, civic, political, economic and social rights enjoyed by people within the EU.^[64] The Charter is a powerful 'living instrument' for protecting rights, which is regularly updated to create new rights that reflect social change, including a range of rights to equality.^[65] For example, the Charter of Fundamental Rights includes freestanding rights to non-discrimination, the right to human dignity, and the protection of a child's best interests (which do not have direct equivalents in UK human rights law).^[66] However, under the European Union (Withdrawal) Act 2018, the Charter of Fundamental Rights will not be retained in UK law after the UK leaves the European Union. The UK will also be entitled to amend the Equality Act (2010) without regard to EU law after Brexit.^[67]

EU Secondary Legislation

The EU has passed many directives and regulations (secondary legislation that derives from the principles of primary legislation set out in EU treaties) that protect the social and employment rights of EU citizens.^[68] These include: the Part-Time Worker's Directive, the Pregnant Workers' Directive, the Agency Worker's Directive, the Fixed-term Work Directive, the Working Time Directive and the Work-Life Balance Directive, which guarantee non-discrimination in the labour market and specific rights and protections. While the EU (Withdrawal) Act 2018 provides for the retention of most EU law, it would be open to UK Ministers to take forward primary legislation that could fall beneath the standards set by these directives. Under the EU (Withdrawal) Act 2018, as due to be amended by the EU (Withdrawal Agreement) Bill, UK Ministers may make regulations to provide that specified courts or tribunals (beyond the Supreme Court and High Court of Justiciary) may not be bound by retained EU case law in certain circumstances when interpreting retained EU law. The Scottish Government has concerns that this power could be used to facilitate a lowering of standards and protections, for example in relation to workers' rights.^[69] In addition, the UK Government will not retain the Francovich principle of state liability.^[70]

Court of Justice of the European Union (CJEU) case law

Rulings of the European Court of Justice have created additional rights and protections for EU citizens to non-discrimination and equal treatment. For instance, in Coleman v Attridge Law (2008) the ECJ created a new type of 'associative discrimination' based on the experience of Ms Coleman, who claimed that her employer discriminated against her because she was the primary carer for her disabled son (previously, the law only protected disabled people, not people who were associated with disabled people).^[71] This type of discrimination was included in the UK's Equality Act (2010). However, the EU (Withdrawal) Act 2018 states that courts in the UK will not be bound by any principles laid down or decisions made by of EU courts after exit day, though they can have 'regard' to decisions of the CJEU.^[72]

EU Funding

The Treaty of Rome established a 'European Social Fund' (ESF) that aims to reduce social inequality, improve employment and education opportunities (especially for disadvantaged groups) and promote equality in the labour market.^[73] The European Regional Development Fund (ERDF) also seeks to combat regional and social disparities. ESF and ERDF funding has supported the work of thousands of civil society organisations across the EU in seeking to create more equal, healthier and inclusive societies. For instance, Scotland benefitted from €465 million from the ESF and €476 million from the ERDF from 2014-20.^[74] However, after Brexit, the UK will not be part of the European Social and Investment Funds, and will not pay into, or receive funding, from the ESF and ERDF (which is worth £2.1 billion per year to the UK).^[75] In addition, people living in remote and rural areas of Scotland benefit from the EU co-funded LEADER programme, which provides support to rural communities for community-led rural development.^[76] As a way of replacing the EU funding that the UK receives, the UK Government has pledged to create a 'Shared Prosperity Fund' to 'reduce inequalities between communities'.^[77] However, the UK Government is yet to publish details of how this proposed fund would operate and how much funding would be available. Finally, UK researchers have enjoyed access to the EU's Horizon 2020 research and innovation programme, which has helped strengthen the evidence base on equalities issues, in particular, gender equality.^[78] It is currently unclear whether the UK will have access to Horizon 2020 as a third country after Brexit.^[79]

European Citizenship

The European Union has developed the world's most advanced 'supranational' citizenship project. The EU first became involved in developing citizenship practices in 1957, though it was not until the Treaty of Maastricht (1992) that a citizenship of the European Union was formally established. The Treaty granted EU citizenship to all nationals of member states, which was conferred as a personal status in the Amsterdam Treaty.^[80] Legal rights include:

• the right to move freely around Europe to live, work, study and retire;
• the right to trade and transport goods, services and capital through EU borders;
• the right to vote and stand in local and European elections where they live;
• the right to petition the European Parliament;
• the right to complain to the European Ombudsman;
• the right to have consular protection from another EU member state whilst abroad;
• the right to enjoy legal protections of EU law, including the Charter of Fundamental Rights of the European Union (i.e. equal pay, protection from discrimination).

As it stands, citizens of EU member states have rights to come to the UK to live and work by virtue of their European citizenship rights, and citizens of the UK have reciprocal rights in EU law to live and work in any country in the EU^[81]. Following the UK's departure from the EU, UK citizens will lose their European citizenship rights.

Other EU social benefits

The EU has also developed other social benefits for EU citizens. These include the creation of a single area of health treatments,^[82] which allows citizens to travel to another Member State in the EU with the intention of receiving health treatments and be reimbursed by their own health insurance scheme, and a European Health Insurance Card (EHIC) that enables them to access free or reduced healthcare in other EU Member States. Disabled people benefit from the EU Blue Card Badge scheme for parking^[83]. Pensioners benefit from being able to transfer their pensions to another EU Member State.^[84] Students benefit from the right to equal treatment and the same conditions in other EU Member States in respect of accessing higher education, the fees they pay, and grants they are eligible for, while their qualifications are subject to mutual recognition.^[85] Following Brexit, it is likely that UK citizens will lose these social rights to equal treatment in other EU countries.

What does the EU do for me?

As we have seen above, UK citizens benefit from a range of EU social rights and provisions as a result of EU primary legislation, secondary legislation, CJEU case law, EU funding, European citizenship and other social rights and regulations.

These rights are summarised in the infographic below.

As explained above, many of these social rights and protections which UK citizens currently enjoy are potentially at risk when the UK leaves the European Union.

However, the extent to which UK citizens are at risk of losing their EU-derived social and equalities rights depends very much on what form Brexit and a future UK-EU relationship takes, and the extent to which the UK adheres to these rights. This is the subject of the next few chapters of this report.