Updated: Nov 17
Dr Suriyah Bi
23 June 2022
There is potential for the Equality Act 2010 to absorb the Human Rights Act. In order for this to take place, we need to expand the definition of equality, and to view it as a fundamental cause for and product of Human Rights.
The government’s announcement to abolish the Human Rights Act and replace it with the British Bill of Rights is the brainchild of Dominic Raab, the Justice Secretary. The British Bill of Rights goes one step further in underscoring the borders of Brexit Britain by severing its legal ties with the European Court of Human Rights (ECHR). The announcement comes just a week after the ECHR decided the deportation of asylum seekers to Rwanda was illegal, a contentious decision that could be rejected under the British Bill of Rights.
A number of serious changes are intended for the bill, including a more difficult test to claim the right to family life in order to avoid deportation, and a limit on cases where public bodies have an obligation to protect individuals’ rights. The bill would also extend gating processes of seeking justice, such as in the case of Hillsborough families. The remit of the bill would also enable courts to consider a claimant’s past when awarding damages for human rights breaches, bolstering defendants’ cases and reducing their monetary penalties. Needless to say, such a step would certainly make it more difficult for claimants to bring cases in court. In other words, in the fight of David and Goliath, the government is whipping up legal structures in support of Goliath. The argument that the government retains its commitment to the ECHR is therefore nothing more than an illusion.
While there have been calls for Parliament to be provided the opportunity to scrutinise the new bill, given the government’s track record in constructing and partaking in the hostile environment, pressing ahead with stop and search powers, and the publication of the nationality and borders bill, the likelihood of this are grim. We can expect for the government, as it has shown many a times in its twelve years in power, to march ahead with the abolishment. How can we, the people, fight for our fundamental human rights in the wake of Brexit Britain that extends beyond sovereignty of borders to sovereignty in law?
The answer lies in the Equality Act 2010, which at the Equality Act Review, we have argued to strengthen to better protect people’s rights. At present, there are nine protected characteristics, which are largely rooted in biology. However, as we have shown in our report published last year, socio-cultural markers of identity that can and do give rise to discrimination are not included in the Act. These include but are not limited to accent, weight, social class, hair (such as afro and braids), homelessness, and immigration. Further, the Act does not allow for intersectional discrimination cases to be brought forward, which is antithetical to fundamental human nature, as we do not exist in multiple silos pertaining to each identity marker. Put differently, if a disabled ethnic minority woman was to bring a case of discrimination, she would have to bring three different claims, one for disability, one based on ethnicity/race, and another based on sex. She would not be able to bring a single claim of discriminated based on all three identity markers.
The Equality Act 2010 currently protects UK citizens in employment and when receiving services by public sector bodies. There is potential for the legislation to absorb the Human Rights Act, however in order for this to take place, we need to expand two core elements. The first is to expand the definition of equality and to view it as fundamental cause for and product of Human Rights (as stipulated in Article 2 of the UDHR). The second is to expand the space in which the Equality Act, and by extension, equality, is to be practiced. We must see the equality extending beyond fixed nature of workplaces and businesses, to the new Brexit land that has been socially and politically engineered. We may be Brexit Britain (although the Ukraine conflict has called this into question on a number of axis), but we must ensure we are not Breaking Britain in every way possible, including breaking away from what it means to have a shared equality and humanity.
Dr Suriyah Bi is a University Lecturer and Founder of the Equality Act Review.
She tweets at @DrSuriyah