Judge refuses Liberty permission to challenge length of consultation by equalities watchdog on updates to code of practice
A High Court judge has refused civil liberties organisation Liberty permission for a legal challenge against the Equality and Human Rights Commission (EHRC) over the lawfulness of its consultation on an updated Code of Practice for services, public functions and associations.
However, Liberty has confirmed that it will appeal Mr Justice Swift’s decision.
The EHRC is consulting on an update in light of the recent Supreme Court ruling in For Women Scotland v Scottish Ministers concerning the definition of the words ‘man’, ‘woman’ and ‘sex’ in the Equality Act 2010.
Liberty argues that the equalities watchdog has failed to give individuals and businesses a lawful amount of time to respond to the consultation, which runs until 30 June.
This is said to be a breach of the third Gunning principle that there should be adequate time for consideration and response.
Liberty believes that any consultation period on the updated code of practice should be a “minimum of 12 weeks”.
According to James Goudie KC, Tom Cross KC and Ben Mitchell of 11KBW, who acted for the EHRC, Mr Justice Swift “accepted the EHRC’s submission that it was not arguable that the time period was unlawful, ruling that it was sufficient for individuals and organisations to provide responses, even if some of them may wish for more time. He also accepted that there was some merit in the EHRC’s desire to complete the consultation promptly so as to enable the updated Code to be published as soon as practicable, because of the need for guidance on the law to be given. Mr Justice Swift cautioned, however, that while the need for speed is a relevant factor, it cannot be allowed to trump fairness; rather, and at most, it may help to inform what fairness requires in the circumstances.
“Mr Justice Swift also provided helpful analysis of the common 12 week consultation response period; despite being widely used, he affirmed that there is no default expectation that a consultation response period should be 12 weeks long. This is an important reminder that, while there may be safety in setting a 12 week period, it may well be lawful for a public authority to adopt a shorter period. As is often the way, it all depends on the facts.”
Commenting on Mr Justice Swift’s ruling, Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, said: "We are pleased with the court's decision to refuse permission for this judicial review. We believe our approach has been fair and appropriate throughout. The EHRC has a clear statutory duty to provide authoritative guidance on the law following the Supreme Court's decision in the For Women Scotland case, and we're grateful that the judge has allowed us to proceed with doing so promptly.
"Our six-week consultation period represents a balance between gathering comprehensive stakeholder input and addressing the urgent need for clarity. We're particularly encouraged by the thousands of consultation responses already received and look forward to further meaningful engagement through the rest of the process.
"The current climate of legal uncertainty and widespread misinformation serves nobody - particularly those with protected characteristics who rightly expect clarity about their rights. A swift resolution to this uncertainty will benefit everyone, including trans people.”
She added: "The EHRC now looks forward to delivering the code of practice efficiently, fulfilling our statutory role in providing clear guidance that protects everyone's rights under the Equality Act 2010. There's still time to contribute to the consultation - we strongly encourage those who haven't already responded to share their views before the 30 June deadline. After this, we will thoroughly analyse all submissions to ensure the code accurately reflects the law as clarified by the Supreme Court."
Liberty said it disagreed with the ruling and has filed an appeal.
Akiko Hart, Liberty’s Director, said: “We are disappointed by the decision and we are appealing against it. The EHRC’s guidance will have life-changing implications for how all of us access vital services – and will particularly impact trans people and countless hundreds of thousands of service providers and venues in the UK.
“As a public body, the EHRC has a legal duty to conduct a fair and lawful consultation process that allows everyone affected by a decision enough time to respond to it. Previous cases clearly demonstrate that on such an important and consequential issue, where every respondent needs time to carefully prepare a considered response, less than 12 weeks is insufficient.”
11KBW’s James Goudie KC, Tom Cross KC and Ben Mitchell were instructed by Ian Tucker and Trilby James of Burges Salmon.
