The ‘Great Repeal Bill’ and Learning Disability Rights: Some Preliminary Thoughts

Last week the British government published the White Paper on the ‘Great Repeal Bill’ which sets out the framework for the exit of the United Kingdom from the European Union. The ‘Great Repeal Bill’ broadly has three objectives: As its name suggests, it will repeal the European Communities Act 1972 which marked Britain’s entry to the EU giving effect to EU law in the UK; it will convert the body of EU law into domestic law; and it will confer delegated power to the government “to correct the statute book where necessary.”

The Bill will continue to provoke a great deal of discussion for its impact on the legal, political and economic landscape of both the UK and the EU in the forthcoming days. In this post, I would like to offer some preliminary thoughts on the potential impact of the Bill on the lives of people with learning disabilities. On my reading, the Bill raises important questions and does not provide a clear answer on how it will safeguard rights protections for disabled people (and their carers) which greatly evolved during UK’s EU membership. However, here I do not intend to provide any comprehensive account of the Bill but rather draw attention to an issue that stands out in close relation to disabled people and their rights: The UK’s withdrawal from the EU Charter of Fundamental Rights.

The Charter appears to be one of the few areas that the White Paper states clearly will not be converted into domestic law. The Charter is, according to the White Paper, “only one element of the UK’s human rights architecture” and “was not designed to create any new rights or alter the circumstances in which individuals could rely on fundamental rights to challenge the actions of the EU Institutions or member states in relation to EU Law.” The White Paper further states that “many of these underlying rights exist elsewhere” and the Charter’s removal “will not affect the substantive rights that individuals benefit in the UK.”

These words are, if not blatantly incorrect, an underestimation of the importance of the Charter for many groups of people, including those with learning disabilities. The Charter, which was agreed by the member states in 2000 and became binding after the entry into force of the Lisbon Treaty in 2009, guarantees protection and promotion of a broad catalogue of fundamental rights that includes not only civil and political but also social and economic rights. It is indeed the breadth of the Charter’s coverage which differentiates it as a crucial rights framework which provides for greater protection than other international treaties and conventions or domestic laws.

Despite what the White Paper suggests on the protection of current conditions in post-Brexit Britain, it jeopardises some crucial rights, most noticeably socio-economic rights backed up by the Charter which do not appear elsewhere in UK law. With regard to disability, besides Art. 21 on “Non-discrimination”, an explicit reference can be found in the Charter’s Art. 26 on “Integration of persons with disabilities” which “recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community”. The Charter protects, under various titles, other socio-economic rights such as “freedom to choose an occupation and right to engage in work” (Art. 15), “social security and social assistance” (Art. 34) and “health care” (Art. 35), all of which the White Paper seems to have preferred to turn a blind eye on.

Brexit will also end the UK’s recourse to the European Court of Justice whose judgements have direct effect on legislation inconsistent with the Charter and have helped ensure a more progressive approach to disability rights in the UK. To give an example, in Coleman v Attridge the Court ruled disability discrimination by association as unlawful in the workplace, leading to the expansion of the employment rights of those who have caring responsibilities under the UK legislation.

With these layers of rights protection watered down following the UK’s departure from the EU, the Great Repeal Bill would also mean that the leverage they offer to influence policy or challenge the UK legislation to comply with their standards will basically not be available anymore. Neither would disabled people in the UK be able to benefit directly from developments in the interpretation of the Charter or future case law of the Court.

Given the prevailing political and economic climate, the impact of the loss of these socio-economic rights would disproportionately fall on the people with learning disabilities. Just a few days after the publication of the White Paper, the Equality and Human Rights Commission released its ‘Being disabled in Britain’ report on disability inequality. The report, echoing many of the submissions to the CRPD Committee by disabled people’s organisations, lays bare the high rates of poverty and unemployment among people with learning disabilities; the barriers to their access to health care, education, transport and housing; the widening disability pay gap; and the disproportionate and cumulative effects of welfare reforms on their lives. While much of the rhetoric of the Great Repeal Bill revolves around ‘sovereignty’ and ‘taking back control’, there is reason to be concerned about that it will further diminish the control disabled people have over their lives and the support they may need to exercise autonomy and independence, unless urgent action is taken to safeguard and move forward their hard-won rights.

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