Liberty launches legal action against EHRC over ‘unlawful’ Code of practice consultation

• Liberty says EHRC’s consultation on interim guidance “simply does not comply with the law”
• EHRC had initially given the public just two weeks to respond to 58 pages of amendments to its Code of practice
• Liberty calls for at least 12 weeks of consultation

Human rights organisation Liberty has issued legal action against the Equality and Human Rights Commission (EHRC), arguing that the Commission has breached its statutory duties by “trying to speed through sweeping changes” to its Code of practice and not giving individuals and businesses a lawful amount of time to respond to a consultation.

The EHRC’s interim guidance follows a Supreme Court decision about the definition of the words ‘man’, ‘woman’ and ‘sex’ in the Equality Act 2010.

Liberty has said that any consultation period on the updated Code of practice should be a minimum of 12 weeks, as the previous consultation of this Code was, and has been established in law. The EHRC had initially given people just two weeks to respond to the consultation, before later extending this to six weeks. Liberty has said this is “wholly insufficient and simply does not comply with the law”.

Liberty believes that the consultation has “life-changing implications” for how trans people, as well as anyone who is perceived as not conforming to gender norms, access public services, education and social activities. It also has a wider impact on businesses and employers.

Liberty said that due to the significant impact the guidance will have on trans individuals and organisations who require more support to respond, the current consultation period is ‘so unfair as to be unlawful’.

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 Liberty said the current schedule for response does not suitably allow for.

UK courts have often ruled that consultation periods which impact vulnerable groups are unlawful when shorter than 12 weeks. In a recent case concerning disability benefits against the Department of Work and Pensions, the High Court ruled that an eight-week consultation was unlawful as affording vulnerable claimants “adequate time to consider, take advice upon and respond to the proposals was essential”.

In its legal challenge, Liberty also said the EHRC is in breach of the public sector equality duty (PSED). The PSED enforces 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 entire process unlawful.

Liberty has called for the EHRC to urgently extend the consultation period to allow vulnerable and marginalised communities enough time to respond.

A High Court judge will now decide how quickly the case should be dealt with and whether it will go ahead to a hearing.

Akiko Hart, Liberty’s Director said:

“We have taken legal action today 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.

“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.”