Legal action launched against EHRC over “unlawful” code of practice consultation
Civil liberties organisation Liberty has launched legal action against the Equality and Human Rights Commission (EHRC), arguing that the watchdog breached its statutory duties by trying to rush through “sweeping changes” to its Code of Practice, and not giving individuals and businesses a lawful amount of time to respond to a consultation.
Last month, the equalities watchdog extended its public consultation on updates to its statutory Code of Practice for services, public functions and associations 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.
The watchdog said the consultation would now close on 30 June 2025 and focus on sections of the Code of Practice that required updating following the Supreme Court’s judgment.
However, Liberty has said that any consultation period on the updated Code of practice should be a “minimum of 12 weeks”.
The EHRC had initially given people two weeks to respond to the consultation, before extending it to six. Liberty described this as “wholly insufficient”, due to the “significant impact” the guidance will have on trans individuals and organisations who require more support to respond.
The organisation claimed that many of the amendments in the Code require individuals and organisations to seek external legal support, such as on changes to an organisation’s practices or in interpreting complex areas of the law, which it said the current schedule for response “does not suitably allow for”.
In its legal challenge, Liberty also claimed the EHRC is in breach of the public sector equality duty (PSED).
The PSED places a duty on public bodies to have due regard to the need to eliminate harassment and discrimination of people with protected characteristics, such as gender reassignment, when running consultations.
Liberty said that in not taking into account the complex needs of trans people when setting the length of the consultation period, the EHRC has “failed to comply with its requirements under the PSED”, and that too renders the process unlawful.
The organisation has called for the Commission to “urgently” extend the consultation period to allow vulnerable and marginalised communities enough time to respond.
Akiko Hart, Liberty’s Director, said: “We have taken legal action because the consultation period set out by the EHRC is unlawful.
“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. Instead, they have tried to speed through sweeping changes to their guidance, initially giving just two weeks to people to respond to nearly 60 pages of amendments when printed out. Anything less than a minimum of 12 weeks on this issue is wholly insufficient and simply does not comply with the law.”
She added: “The EHRC’s guidance will have life-changing implications for how all of us access vital services, from jobs, schooling, social clubs we might join, all the way up to how the armed forces operate. In particular, it will fundamentally change the ways in which trans people are able to safely participate in society, as well as how businesses and service providers operate.
“It is a fundamental part of our democracy that we are all given a fair opportunity to make our voices heard about any decision that impacts us. We urge the EHRC to extend the consultation period to at least 12 weeks, just as its previous consultation on this Code of Practice was. There is no good reason why it should not be.”
A spokesperson for the Equality and Human Rights Commission said: "We are unable to comment on any legal action at this stage".
Lottie Winson
