National Council for Civil Liberties v Equality and Human Rights Commission [2025] EWCA Civ 1868

[2025] EWCA Civ 1868Case No CA-2025-001381
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2025] EWHC 1504 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
MR JUSTICE SWIFT
Venue The Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 26 June 2025
Before
LADY JUSTICE NICOLA DAVIESLORD JUSTICE DINGEMANSLORD JUSTICE LEWIS
Between
NATIONAL COUNCIL FOR CIVIL LIBERTIESApplicantEQUALITY AND HUMAN RIGHTS COMMISSIONRespondentTranscript of Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400  Email: civil@epiqglobal.co.uk (Official Shorthand Writers to the Court)This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.Toby Fisher (instructed by National Council for Civil Liberties (Liberty)) for the AppellantJames Goudie KC and Stephen Kosmin (instructed by Burges Salmon) for RespondentHearing Hearing date: 26 June 2025Judgment
[1]This is the hearing of an application for permission to appeal which has been referred to an oral hearing by Andrews LJ. The application for permission to appeal is from the order and judgment of Swift J (the judge) dated 6 June 2025. The judge refused the National Council for Civil Liberties (Liberty) permission to apply for judicial review of the decision of the Equality and Human Rights Commission (the Commission) to conduct a public consultation exercise over a six week period. That six week period is due to end on 30 June 2025 which explains the urgency with which these applications have been heard and the need to give an extempore judgment. If permission to appeal and permission to apply for judicial review is granted, the parties have prepared draft orders to deal with consequential matters.[2]The proposed grounds of the claim for judicial review were:(1) the Commission had failed to comply with the “public sector equality duty” set out in section 149 of the Equality Act 2010 (the Equality Act); and(2) six weeks was not a fair and adequate period for the public consultation. In an oral judgment delivered after hearing submissions the judge found that there were no arguable grounds for the claim for judicial review and refused permission to apply for judicial review.[3]This court can grant permission to appeal where the court considers that the appeal would have a real prospect of success or there is some other compelling reason for the appeal to be heard. Liberty contend that both limbs are met, but the Commission submits that there is no real prospect of success or other compelling reason for the appeal to be heard. This court can grant permission to apply for judicial review, pursuant to CPR 52.8(5) instead of granting permission to appeal. Factual background[4]Liberty is a not for profit organisation that promotes the values of individual human dignity, equal treatment and fairness and campaigns to protect basic rights and freedoms. The Commission is a statutory body established under Part 1 of the Equality Act 2006. By section 3 of the Equality Act 2006 it is required to exercise its functions with a view to encouraging and supporting the development of a society in which there is, among other matters, respect for and protection of each individual’s human rights and respect for the dignity and worth of each individual. Section 8 provides that the Commission shall by exercising its powers, among other matters, promote understanding of equality and diversity. The Commission has the power to publish codes of practice under section 14 of the Equality Act 2006. A code should contain provisions designed “to ensure or facilitate compliance with the Equality Act …”.[5]The procedure for producing codes is set out in sections 14 and 15 of the Equality Act 2006. Before issuing a code, the Commission is required to: publish proposals, section 14(6)(a); consult such persons as it thinks appropriate, section 14(6)(b) of the Equality Act; and submit a draft to the Secretary of State, section 14(7). If the Secretary of State approves the code, then the Secretary of State must notify the Commission and lay a copy before Parliament (there are different procedures if the code is not approved). Once laid before Parliament, if neither House passes a resolution disapproving the draft within 40 days, the code shall come into force, section 14(8) of the Equality Act 2006. The calculation of the 40 days is set out in section 15 of the Equality Act 2006. Mr Fisher on behalf of Liberty identified that as the period did not run when Parliament was in recess, an extension of time for the consultation might make no difference. That does not take account of the time for the Minister to consider the draft code.[6]The Commission published a Services, public functions and association statutory code of practice (“the services and public functions code”) on 1 January 2011. The services and public functions code covers all nine protected characteristics set out in the Equality Act.[7]On 2 October 2024 the Commission commenced a consultation on revisions to the services and public functions code. That consultation ran for 13 weeks and 2 days, until 3 January 2025.[8]The Commission had in the services and public functions code and in the revisions proceeded on the basis that a person with a Gender Recognition Certificate (GRC) issued pursuant to the provisions of the Gender Recognition Act 2004 acquired a protected characteristic of sex which corresponded to the acquired gender under the GRC.[9]As is well known, on 26-27 November 2024 the Supreme Court heard argument in the appeal of For Women Scotland Ltd v Scottish Ministers. The judgment by Lord Hodge, Lady Rose and Lady Simler, with whom Lord Reed and Lord Lloyd-Jones agreed, was handed down on 16 April 2025 and is reported at [2025] UKSC 16; [2025] 2 WLR 879. The Supreme Court held that an examination of the language, context and purpose of the Equality Act 2010 demonstrated that the words sex, woman and man in sections 11 and 212(1) of the Equality Act meant (and were always intended to mean) biological sex, biological woman and biological man and did not include the sex that a person acquired pursuant to the issue of a gender recognition certificate under the 2004 Act. Mr Fisher referred in particular to paragraph 264 of the Supreme Court judgment.[10]That meant that the Commission had proceeded in the services and public functions code, and its revisions, on a wrong basis in relation to the effect of a GRC. Further revisions to the services and public functions code were necessary.[11]The Board of the Commission met on 24 April 2025, just over a week after the Supreme Court judgment, and decided that the Commission should focus on making revisions to the services and public functions code. Difficult issues to be confronted included guidance on justifications for separate and single space services. A two week consultation period was agreed.[12]On 25 April 2025 the Commission published an interim update on the implications of the Supreme Court judgment, and announced that a further two week consultation on revisions to the services and public functions code would be carried out. The Commission confirmed that in the meantime it would continue to regulate and enforce the Equality Act, ensuring protection for all protected characteristics including those of sex, gender reassignment and sexual orientation.[13]The Commission received correspondence from individuals and organisations that the two week consultation was too short. One of those requesting an extension was Liberty. Liberty wrote by letter dated 14 May 2025. The Board of the Commission had another meeting on 14 May 2025. The meeting lasted from 1300 to 1640 hours.[14]In its letter Liberty asserted that the consultation period should be at least 12 weeks. Liberty stated:
“The context … is one where trans people are facing the removal of the right to access particular services, facilities and spaces, free from discrimination and harassment. The trans community is particularly marginalised and oppressed and their ability to absorb and respond to the judgment and any related consultation exercise will necessarily be affected by this.”
[15]In the letter Liberty made express reference to the public sector equality duty under section 149 of the Equality Act. The letter stated:
“Thus, in deciding, for example, how long the consultation period should be, who should be consulted and how, you must have due regard to the need to eliminate discrimination and harassment, the need to advance equality of opportunity and the need to foster good relations between different groups.”
Express reference was made in the letter to section 149(6) of the Equality Act which provides that have due regard to the need to foster good relations involves having due regard to the need to tackle prejudice and promote understanding. Liberty’s letter was emailed at 1450 hours and acknowledged at 1625 hours. That acknowledgement was just before the end of the Board meeting of the Commission on 14 May 2025. The judge said that there was an issue about whether the letter arrived in time for consideration at the board meeting, but the letter was not material as it was apparent from the press release from the Commission that it had received and considered representations from other NGOs as to the appropriate length of the response period. Mr Goudie KC on behalf of the Commission confirmed that the Liberty letter had not been seen by the Board of the Commission before deciding on the six week consultation period, but that other representations had been before the Board.[16]At the meeting of the Board on 14 May 2025 it was recorded that the Board agreed to a two-week consultation period on 24 April, based on advice that only Parliamentary sitting days counted for the 40 day period. However, written clarification from the Clerk of the Parliament confirmed that calendar days apply unless there’s a break of four days or more, which meant that extending the consultation to six weeks would not significantly delay the overall timeline for laying the Code. The delay in starting the consultation was due to the need to coordinate legal advice, update and share the Code of Practice, and prepare communications. The Board raised concerns about the Commission’s slow response to the Supreme Court judgment.[17]A press release was issued. This confirmed that “in the light of the level of public interest, as well as representations from stakeholders in Parliament and civil society, the consultation period has been extended”. The press release confirmed that there would be Q&A sessions during the consultation period with stakeholders representing affected protected characteristic groups.[18]On 20 May 2025 the consultation was launched. The introduction showed that the consultation was supplementary to the earlier consultation carried out in 2024. The Chairwoman of the Commission was reported to have said that it was important that the code was an accurate interpretation of the law and clear to those who use it. The importance of the revised code was emphasised in the submissions this morning. Mr Fisher referred to 52 questions for individuals and legal professionals that were set out and noted that the law in this area is complex, and there were difficult issues. Reference was made to potential requests to see a birth certificate, and services provided on a single sex basis.[19]In support of the application for judicial review, there were witness statements filed by Liberty made on behalf of LGBT+ Consortium, Mermaids and another organisation. These showed the difficulties in responding within the six week period for others in the trans community. There was evidence to the effect that six weeks was insufficient to respond for some members of the trans community, some of whom had felt the need to withdraw from life and stay at home after the Supreme Court judgment. The larger trans organisations needed to get legal advice; then go to smaller trans organisations; so that the smaller organisations could go to individuals. There was also reference to the particular difficulties facing trans organisations, which needed to get legal guidance, whose resources were split between supporting their members, producing their own response, and encouraging their members to respond. The evidence referred to the particular difficulties of trans children and examination times.[20]On 6 June 2025 the interim update from the Commission was amended to reflect that the Commission hoped to get the draft amended code on services and public functions to the UK government by the summer for approval, before being laid before Parliament after the summer recess. The respective cases[21]Mr Fisher on behalf of Liberty submitted that:(1) there was no evidence from the board minutes or the press statement that the Commission had considered the public sector equality duty. There was nothing to justify the judge’s inference that the Commission had complied with the duty;(2) 6 weeks was too short a period of time to consider the consultation given the issues raised by the consultation and the difficulties that some trans organisations would have in engaging in that short period. Trans persons were particularly affected by the Supreme Court judgment and it was therefore particularly important that the consultation should permit adequate time for their response. At least 12 weeks was required. Mr Fisher also submitted that there was a compelling reason to hear the appeal because of the importance of the public sector equality duty and the Commission’s own failure to evidence its compliance with the duty.[22]Mr Goudie and Mr Kosmin on behalf of the Commission submitted that:(1) the context of the decision-making in this case showed that the Commission complied with the public sector equality duty. The Commission was engaged in carrying out a consultation to ensure that it discharged its duties under the Equality Act 2006 which was a particularly relevant consideration. The Commission had been sent correspondence complaining that the consultation period was too short, and it was appropriate to infer that those concerned about those with protected characteristics were making representations, the Commission had considered representations, as the press statement indicated, and granted an extension of time for the consultation. The Commission was trying to promote equality. There had been many responses already, and it was an inevitable inference that Commission had regard to the public sector equality duty.(2) six weeks was a sufficient period of time. The judge had made no errors. This was a narrow consultation by comparison to the 2024 consultation on the whole of the code. There was a single issue decided by the Supreme Court, and the consultation was wide-ranging but on discrete points. The Commission had to have regard to its duties to provide guidance at a time when there were concerns about the effect of that judgment.[23]I am very grateful to Mr Fisher, Mr Goudie and Mr Kosmin for their helpful written and oral submissions. The essential question for this Court is whether there are arguable grounds for the claim for judicial review. If there are such arguable grounds then there is a real prospect of showing that the judge was wrong to refuse to grant permission to apply for judicial review, and this court can grant permission to apply for judicial review. The court will also need to consider whether there is some other compelling reason to hear the appeal. Relevant statutory provisions and principles of law[24]There is no material dispute between the parties about the applicable principles of law.[25]Section 149 of the Equality Act provides: (1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.[26]Section 149(3) provides that having due regard to the need to advance equality of opportunity between persons sharing a protected characteristic and persons who do not share that characteristic, involves having due regard to removing disadvantages suffered by persons sharing that protected characteristic and encouraging persons sharing that protected characteristic to participate in public life.[27]The approach to be taken to the public sector equality duty was summarised in paragraph 26 of R(Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345; [2014] Eq LR 60, which summary has been approved in later cases. It was stated, among other matters, that: equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation; recording steps taken was an important evidential element in demonstrating discharge of the duty; the duty must be exercised in substance, with rigour and with an open mind; and having “general regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria”. There is a heavy burden on public authorities in discharging the public sector equality duty, as appears from paragraph 60 of Bracking. In Bracking the court found that there was too much reliance on inference to demonstrate that there had been compliance.[28]In ZK v London Borough of Redbridge [2020] EWCA Civ 1587; [2021] ELR 238 Lady Justice Simler had adopted the approach of Lord Brown in R(McDonald) v Kensington and Chelsea [2011] UKSC 33; [2011] 4 All ER 881 which was where the court had regard to the fact that the council was dealing with a person who was disabled and discharging functions under statutes which directed the council’s attention to the needs of disabled persons. Mr Fisher identified that although the Commission is engaged generally with issues of equality, at this time it was setting only the timescale for a consultation. Mr Goudie responded by noting that the consultation was so that the Commission could get on with discharging its duties by revising the services and public functions code.[29]As to the timing of the consultation, in R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168 it was held that, to be lawful, a public consultation requires that “adequate time must be given for consideration and response”. This formulation has been approved by the Supreme Court in R(Moseley) v Haringey London Borough Council [2014] UKSC 56; [2014] 1 WLR 3497. In order to succeed it is necessary to show clear unfairness, and later authorities show that it is necessary to show that the period is “so unfair as to be unlawful”, or that something has gone “clearly and radically wrong”. Whether there is an arguable breach of the public sector equality duty[30]It is and was common ground that the public sector equality duty applied to the decision by the Board of the Commission to set the length of the consultation period. It is also common ground that there was no formal equality impact assessment produced by the Board when making its decision to extend the consultation period from 2 weeks to 6 weeks. It was further common ground that there was no statutory requirement to produce such an assessment, and that compliance with the public sector equality duty can, in certain circumstances, be inferred.[31]It is apparent that, as Mr Fisher has identified, the Commission did not make any record of its consideration of the public sector equality duty when deciding the length of the consultation. The minutes appear to concentrate on the calculation of the 40 day period for approval of the code in Parliament. It is clear from paragraph 26 of Bracking that recording steps taken was an important evidential element in demonstrating discharge of the duty, and there is no record here.[32]I also agree with Mr Fisher that the judge was right to reject the proposition that the Commission could be assumed to have complied with the public sector equality duty, simply because it was the Commission and because it had duties under the Equality Act 2006.[33]In my judgment, however, the judge was entitled, and right, to conclude in the particular circumstances of this case that the Commission had complied with the public sector equality duty. The Board minutes show that part of the context was misunderstanding, misdirection and misinformation before the judgment of the Supreme Court, and that there was a concern to produce the revised code, so that guidance could be given to those with protected characteristics. The press release refers to representations from interested parties, and it was apparent that there were representations about the need to grant an extension of time for the consultation, so that representations on the contents of the revised code could be made. In the particular circumstances of this case, it is an inevitable inference that the Commission must have been discharging its public sector equality duty when granting the extension. This is because it would have had to consider the need to advance equality of opportunity by and good relations between persons sharing protected characteristics (trans persons) and those who do not, when addressing both: the need for revision of the services and public functions code; and the need for persons to have a fair opportunity to take part in the consultation. This is therefore not an arguable basis of claim. Whether there is an arguable basis to show that six weeks for the consultation was unlawful[34]I accept that, as Mr Fisher submitted, this consultation will have a particular impact on members of the trans community and, as Mr Goudie reminded the court, of women in single sex spaces. The trans community was vulnerable and has an important role in the consultation exercise. There was evidence showing that six weeks (and even longer than 12 weeks) would be insufficient for some members of the trans community to take part in the consultation. There was evidence showing that legal advice would be required by some trans people, who were vulnerable and who may feel marginalised, disregarded, and who were distressed by the judgment of the Supreme Court. It was exam time of the year which was relevant for trans children.[35]This, however, needs to be balanced against the evidence showing that there were persons who wanted the revised code for services and public functions to be made available as soon as was permissible. There was also evidence showing that the Commission had been having question and answer sessions in relation to the consultation, and we were told that many had managed to respond to the consultation.[36]Mr Fisher was right that many consultations take place over a period of 12 weeks, and some consultations with shorter periods have been found to be unlawful. Everything will depend on the particular facts, and there is no statutory obligation to give a 12 week consultation.[37]I accept that some may think it would be desirable for some trans persons and trans organisations to have more time to respond to the consultation. I accept that some may think it would be desirable for some with other protected characteristics to have the revised code for services and public functions now. The issue of what is desirable is not before this court. This court is only addressing the legality of the decision-making of the Commission.[38]In my judgment the six week period of consultation was not so unfair as to be unlawful. This is because although the Supreme Court judgment raised a number of practical issues to be addressed, the issue was clearly defined and there were clearly stated matters on which the consultees could respond in such a period. No other compelling reason to hear the appeal[39]This leaves the question about whether there is some other compelling reason to hear the appeal.[40]No one can underestimate the importance of this consultation to trans people and other interested organisations, nor underestimate some of the difficulties to be confronted by the Commission in making amendments to the services and public functions code in circumstances where the Supreme Court, as a matter of statutory interpretation of the Equality Act, has concluded that sex in the Equality Act meant biological sex, and where gender reassignment is a protected characteristic under the Equality Act. However, in circumstances where I have concluded that none of the grounds of the claim for judicial review are arguable, I do not consider that there is any other compelling reason to grant permission to appeal. Conclusion[41]For the detailed reasons set out above I would refuse to grant permission to appeal. Lord Justice Lewis[42]I agree. Lady Justice Nicola Davies[43]I also agree. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: civil@epiqglobal.co.uk