In the High Court on Friday (6 June) Mr Justice Swift refused permission for Liberty to challenge the consultation process being run by the Equality and Human Rights Commission (EHRC) to its updated Code of Practice, in R (National Council for Civil Liberties) v EHRC. The EHRC is updating the Code in light of the Supreme Court’s decision in For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16; [2025] 2 WLR 879 (FWS). There, the Court held that “The meaning of the terms ‘sex’, ‘man’ and ‘woman’ in the [Equality Act 2010] is biological and not certificated sex” (para.265), such that a trans person with a gender recognition certificate (GRC) should be treated as being of their ‘birth sex’ for the purposes of the protected characteristic of sex under the Equality Act 2010 (EqA 2010).
While FWS did not technically change the law, it has changed many people’s understanding of what the EqA 2010 required. This included the EHRC, whose pre-existing Code of Practice stated that people with a GRC generally should be treated according to their acquired gender (rather than their birth sex). The FWS decision has drawn a lot of attention and some degree of controversy. Subsequently, there has been plenty of coverage in the press of the changes that organisations are making to their policies on how to support and accommodate trans people; in some cases, organisations have stated that they are awaiting guidance from the EHRC before acting.
In light of this, the EHRC decided to update its Code of Practice and is conducting a consultation in which it is inviting responses over a 6 week period as part of this.
Liberty sought judicial review of this decision on the basis that the 6 week period was a breach of the third Gunning requirement for a lawful consultation: “adequate time must be given” for a consultee to give “intelligent consideration and an intelligent response”.
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.
James Goudie KC, Tom Cross KC and Ben Mitchell, instructed by Ian Tucker and Trilby James of Burges Salmon LLP (Bristol), acted for the EHRC.
