EQUALITY COMMISSION FOR NORTHERN IRELAND. Equality law and EU membership. April 2016

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1 Purpose EQUALITY COMMISSION FOR NORTHERN IRELAND Equality law and EU membership April 2016 This paper sets out the current position regarding the UK s membership of the EU for equality law in NI. Overview It was agreed at the March 2016 Commission meeting that the Commission would not adopt a position as regards the EU referendum on whether or not the UK should remain in the EU. It was also agreed that a short paper setting out the current position regarding UK s membership of the EU for equality law in NI would be developed, in order to form the basis for a response to any requests for information on this matter. A short briefing paper is attached and it is proposed that the points set out in the summary of the paper will form the basis for the Commission s response to any requests for information. Action required of Commissioners Commissioners comments are sought on the attached briefing paper that sets out the current position regarding the UK s membership of the EU for equality law in NI.

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3 EQUALITY COMMISSION FOR NORTHERN IRELAND Equality law and EU membership EC/16/04/4 1 Introduction April A referendum on whether or not the UK should remain in the European Union (EU) is to be held across the UK on Thursday 23 June Following consideration by Commissioners at the March 2016 Commission meeting of an expert paper highlighting the potential issues on how the UK referendum on the EU may impact on equality law in Northern Ireland (NI), it was agreed that: the Commission would not adopt a position as regards the referendum per se; a short paper setting out the current position regarding the UK s membership of the EU for equality law in NI would be developed, in order to form the basis for a response to any requests for information on this matter; the Commission would assess what further work was needed, if any, when the outcome of the referendum became clear. 1.3 Attached hereto (Appendix 1) is a short briefing paper that sets out the current position regarding UK s membership of the EU for equality law in NI. It is proposed that the points set out in the summary of the attached briefing paper will form the basis for the Commission s response to any requests for information on this matter. 1.4 Commissioners will note that whilst EU law has led to changes to NI equality law, NI and other parts of the UK have introduced significant and substantial pieces of equality legislation which have not been as a direct result of the UK s membership of the EU. 1.5 For example, equality legislation in certain areas was in force in NI before the UK joined the EU. In addition, after the UK joined 1

4 the EU, equality legislation was introduced in NI before the EU had legislated in those areas. 1.6 Examples of such legislation include Section 75 of the Northern Ireland Act 1998, the Fair Employment & Treatment (NI) Order 1998, the Sex Discrimination (NI) Order 1976, the Race Relations (NI) Order 1997, the Disability Discrimination Act 1995, and the Equality Act (Sexual Orientation) Regulations (NI) Commissioners will also note that the UK has obligations under a number of international conventions relating to equality law such as the UN Convention on the Rights of Persons with Disabilities (UNCRPD) 1 ; the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW); the Convention on the Elimination of all forms of Racial Discrimination (CERD); the Framework Convention for the Protection of National Minorities; and the UN Convention on the Rights of the Child (UNCRC). 1.8 Importantly these obligations will continue to apply to the UK Government and remain within the competence of the UK Government, even if the UK decides to leave the EU. 1.9 Commissioners will also note that the European Convention on Human Rights (ECHR), incorporated into domestic law throughout the UK by the Human Rights Act 1998, stems from the Council of Europe and not the EU. A vote to leave by the UK to leave the EU will not affect the UK s obligations under the ECHR as it does not originate from the EU. Outline of Briefing Paper 1.10 The attached briefing paper sets out in summary form the four main benefits that have derived from the UK s membership of the EU in terms of equality law in NI; as well as benefits to NI as a result of EU policy initiatives, and from the fact that NI and Great Britain has played a key role in shaping EU law and policy. The paper also sets out additional information on these summary points. 1 The UNCRPD differs from other UN treaties in that it has been ratified by the EU, which means that it will now be used as a standard in the development of EU legislation relating to disabled people. 2

5 Action required of Commissioners 1.11 Commissioners comments are sought on the attached briefing paper that sets out the current position regarding the UK s membership of the EU for equality law in NI. R Mallon, Senior Policy Officer Policy & Research Team 18 April

6 Appendix 1 Impact of the UK s membership of the EU for equality law in Northern Ireland 1.1 There have been substantial benefits, in terms of NI equality law, arising out of the UK s membership of the EU. These benefits are summarised below. The principles of non-discrimination and equality are fundamental principles of EU law. The EU is founded on values that include respect for equality and human rights. These principles and shared values across Member States have underpinned the actions of the EU institutions, including as regards the development of EU laws, and helped in the creation of more equal societies across the EU, including in NI. As a result of the implementation of EU law in NI, including Equality Directives, people in NI have acquired additional protection against discrimination and harassment on the grounds of sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation. Beyond equality law, EU law has also resulted in stronger employment rights in NI, including for pregnant workers, agency workers and part-time workers and in employment areas such as parental leave and working time, and strengthened rights on the free movement of workers. Further, a body of case law from the Court of Justice of the EU (CJEU), including cases from NI 2, has helped to promote greater equality across the EU, including in NI. EU law has also resulted in greater harmonisation of equality rights in certain areas, both within the UK and between Member States. This means that people from Northern Ireland who live in, or travel to, other parts of the EU can enjoy broadly the same levels of protection against discrimination in the areas covered by European equality law as they do in NI. 2 NI cases include cases such as Johnston v RUC Case -222/84 [1986] and Gillespie & Others v NI HSSB & Others Case C-342/93 [1996]. 4

7 1.2 In addition, policy initiatives taken forward by the European institutions, including through the funding of programmes, have helped to promote equality of opportunity and social inclusion in NI, as well as in other parts of the UK and across Member States. Further, through its membership of the EU, NI and Great Britain has played a key role in shaping EU law and policy. Further information 1.3 There have been substantial benefits, in terms of NI equality law, arising out of the UK s membership of the EU. These benefits are set out in more detail below. EU Equality principles and values 1.4 The principles of non-discrimination and equality are fundamental principles of EU law. The EU is founded on values that include respect for equality and human rights. These principles and shared values across Member States have underpinned the actions of the EU institutions, including as regards the development of EU laws, and helped in the creation of more equal societies across the EU, including in NI. 1.5 Further, the EU s Charter of Fundamental Rights 3, which has the same legal status as other EU Treaty law and which contains rights and freedoms that go beyond the European Convention on Human Rights 4, sets out the key human rights of EU citizens, including in relation to equality 5. Importantly, this Charter applies to all EU institutions, legislation and policies as well as to the UK and other EU Member States when implementing EU law. Strengthening of equality protection 1.6 In addition, EU law has benefited a number of equality groups in NI as it has led progressively to the strengthening of protection against discrimination and harassment in NI, as well as in Great Britain and in other EU Member States. For example, it has led to improved protection against discrimination for disabled people, LGB people, women, younger and older people, as well as minority ethnic individuals in NI. 3 Charter of Fundamental Rights of the EU. 4 European Convention on Human Rights 5 For example, the Charter sets out that [e]quality between women and men must be ensured in all areas, including employment, work and pay (Article 23). Further Art 20 contains the basic principle of Community law, namely, equality before the law, and the principle of non-discrimination across a range of equality grounds is also embodied in Art 21 of the Charter. 5

8 1.7 Whilst much of NI equality law has not been introduced as a direct result of EU law, EU law has resulted in some significant changes to NI equality law, including requiring the introduction of new forms of protection against discrimination and the strengthening of existing equality legislation in NI across a number of equality grounds. 1.8 In particular, as a result of the implementation in Northern Ireland of EU law and case law, including Equality Directives such as the Race Directive 6, Gender Directives 7 and Equal Treatment (Framework) Directive 8, as well as Directives concerned with the equal treatment of men and women 9, people in NI have acquired additional protection against discrimination and harassment on the grounds of sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation. 1.9 For example, in NI, EU law and case law has directly resulted in: new protection against discrimination and harassment on the grounds of age and sexual orientation in employment and vocational training 10. This has resulted in, for example, stronger protection against discrimination for older and younger workers, as well as for LGB employees, in the workplace; stronger protection against sex discrimination and equal pay 11, including against discrimination on the grounds of gender reassignment. 12 This has resulted in, for example, stronger protection against discrimination for women including in employment and vocational training, 13 as well as for 6 Directive 2000/43/EC This prohibits discrimination based on racial or ethnic origin and defines direct and indirect discrimination and harassment, covering the fields of employment, training, social protection, education and access to goods and services 7 The first Gender Directive prohibits discrimination in employment on the grounds of sex and defines direct and indirect discrimination, harassment and sexual harassment and the second Gender Directive prohibits discrimination in access to goods and services 8 Directive 2000/78/EC This prohibits discrimination on the grounds of religion or belief, disability, age or sexual orientation in employment and defines direct and indirect discrimination and harassment 9 The Recast Directive of 2006 consolidates sex discrimination law, repealing Directives from before 2000 and also the Equal Treatment Directive of 2002, 10The Employment Equality (Age) Regulations (NI) 2006 and the Employment Equality (Sexual Orientation) Regulations (NI) 2003 were introduced in Northern Ireland in order to implement the Framework Directive It will be noted that the Equal Pay Act (NI) 1970 was enacted before the UK joined the EEC. It implements Art 119 of the EEC Treaty which requires equal pay for equal work. 12 For example, as a result of the Gender Directive 2004/113/EC, changes were made to NI sex equality law to extend protection against direct indiscrimination and harassment to transsexual people in the provision of goods, facilities and services. 13 For example, as a result of the implementation of the Gender Directive 2004/113/EC 6

9 transgender people when accessing goods, facilities and services; EC/16/04/4 increased protection against racial discrimination. Changes include, for example, improved protection against racial harassment and indirect racial discrimination 14 for minority ethnic communities Further, a body of case law from the Court of Justice of the EU (CJEU), including cases from NI 16, has helped to promote greater equality across the EU, including in NI. For example, the decision of the European Court of Justice (now CJEU) in the case of P v S and Cornwall County Council (1996) led to changes in domestic legislation to provide for protection against discrimination on the grounds of gender reassignment It is also of note that EU law, including case law, has made clear that the UK and other Member States must ensure that sanctions for breach of EU law, including EU equality law, must be effective, proportionate and dissuasive. Further, decisions of the European Court of Justice (now CJEU) have also made it clear that compensation in respect of damages for breach of discrimination and other rights protected under EU law cannot be subject to an upper limit Beyond equality law, EU law has also resulted in stronger employment rights in NI, including for pregnant workers, agency workers and part-time workers and in employment areas such as parental leave and working time In addition, it has strengthened rights across Member States in relation to the free movement of workers, which is one of the founding principles of the EU, including as regards associated rights, such as access to welfare benefits. This, for example, significantly benefits people from Northern Ireland who want to live and work in other Member States. 14 It will be noted that improved protection against racial harassment and indirect racial discrimination relates to the grounds of race, ethnic and national origin only. 15 For example, as a result of the implementation of the Race Directive in NI. 16 NI cases include cases such as Johnston v RUC and Gillespie & Others v NI HSSB & Others Case C-342/93 [1996]. 17 In the case of P v S and Cornwall County Council (1996) the ECJ concluded that the concept of sex in the Directives concerning sex equality was broad enough to include people who had undergone gender reassignment. 18 See for example, ECJ decision in Marshall (No.2) [1993] ICR 893 where the ECJ ruled in case against the UK that compensation for victims of sex discrimination at work could not be subject to an upper limit. 7

10 1.14 EU law has also directly resulted in additional rights for disabled people and those with reduced mobility in NI and in other Member States, when travelling by air or ferry 19 ; Greater harmonisation of equality rights/ enforceable rights 1.15 Significantly, EU law has also resulted in greater harmonisation of equality rights in certain areas both within the UK and between Member States As a result of this harmonisation of protection across Member States, people from Northern Ireland who live in, or travel to, other parts of the EU can broadly enjoy the same levels of protection against discrimination in the areas covered by European equality law as they do in Northern Ireland. This also means that in the areas covered by European equality law, people in NI enjoy the same levels of protection against discrimination as people in other parts of the UK Further, EU law requires the introduction of the minimum levels of protection against discrimination, which means that there can be no regression from these levels of protection by the UK or other Member States In addition, domestic courts, when determining domestic legal issues, can refer questions to the Court of Justice of the EU (CJEU) for interpretation of any relevant EU law. The CJEU has played a crucial role in the effective enforcement of equality standards in the Member States. EU policy initiatives help promote equality and good relations 1.19 In addition, policy initiatives taken forward by the European institutions have also helped to promote equality of opportunity and social inclusion in NI, as well as in other parts of the UK and across Member States These include, for example, key EU strategies such as the EU Strategy for equality between women and men , 19 In particular, as a result of the implementation of European Regulation (EU) No. 1177/2010 concerning the rights of disabled persons and persons with reduced mobility when travelling by ferry and European Regulation (EC) No 1107/2006 of 5 July 2006, concerning the rights of disabled persons and persons with reduced mobility when travelling by air. 20 Strategy for equality between women and men , European Commission 8

11 which is in the process of being updated 21, and the EU 2020 Strategy 22. EC/16/04/ Other examples include work taken forward by the EU and its bodies/agencies to promote equality and good relations through the funding of programmes by national governments and NGOs in Member States, as well as work to raise awareness and sharing good practice on equality 23. The European Commission also has an important task in ensuring compliance with EU equality law, including decisions of the CJEU Significantly, NI has benefited from extensive funding from the EU aimed at promoting equality and good relations. For example, it has received funding through the PEACE programme aimed at supporting peace and reconciliation and promoting economic and social progress in Northern Ireland and the Border Region of Ireland. 24 It has also received funding through the INTERREG VA programme. 25 NI has, in addition, benefited from other EU programmes designed to promote job opportunities, particularly for the unemployed, and upgrade skills levels EU funding has also enabled the community and voluntary sector in Northern Ireland to play an important role in addressing social and economic deprivation, training and employment, social enterprise, health and well-being, peace building and building cross-community and cross-border relationships EC has recently published a work plan and announced the follow up and prolongation of the strategy. See Strategic engagement for gender equality EU 2020 Strategy 23 For example, as regards combating gender based violence, the EU raises awareness, by co-funding campaigns run by national governments, and supports transnational projects run by non-governmental organisations combating violence against women, children and young people. 24 The peace process in Northern Ireland has been receiving financial support from the EU since 1989, through both EU regional policy and EU contributions to the International Fund for Ireland (IFI). Since 1995 there have been three PEACE programmes, with a financial contribution of EUR 1.3 billion. A new programme (PEACE IV) (2016) with the aims of reconciling communities and contributing to peace has a total value of EUR 270 million. The ERDF contribution to the Programme is approximately EUR 229 million (85%), and EUR 41 million (15%) will come from match-funding. 25 Northern Ireland including Belfast, the border counties of Ireland and parts of western Scotland and Western Scottish Island will benefit from a seven-year cross-border INTERREG VA programme. One of the priorities of the programme is promoting social inclusion, combating poverty and any discrimination. Funding for this programme for is EUR 240 million. 26 See Report of EC NI Task Force Report The annual income of the Northern Ireland community and voluntary sector is reported to be around million, of which approximately 70.1 million is estimated to derive from various EU funding programmes. See Lords Select Committee (EU Committee) 9th report- EU Referendum and EU Reform, 30 March

12 UK has shaped EU law and policy 1.24 In addition, NI and Great Britain have played a key role in shaping EU law and policy. UK equality law has profoundly impacted on EU law. For example, developments in equality law in the UK in the area of race and sex equality have significantly helped to shape EU law. Further, a significant number of cases from the UK referred to CJEU, including cases from NI 28, have significantly impacted on EU equality law and have had repercussions throughout the EU Finally, the UK Government, through its role in the Council of Ministers of the EU, also continues to influence the creation of EU law, including through its engagement on Equality Directives, the majority of which must be unanimously agreed by all Member States. In addition, representatives from the Northern Ireland s devolved institutions, government agencies and independent experts also contribute and influence EU policy through their participated in the EU s Thematic Working Groups, such as on education. Equality Commission April NI cases include cases such as Johnston v RUC, Case -222/84 [1986] and Gillespie & Others v NI HSSB & Others Case C-342/93 [1996]. 10