Good Law Project suing the EHRC and Bridget Phillipson - letter before action

[OhBuggerandArse]

Sorry if this has already been shared - here are the links to their letter and statement. Looking forward to the Mumsnet analysis :-)

https://goodlawproject.org/were-bringing-a-legal-challenge-to-the-ehrcs-interim-update

https://goodlawproject.org/wp-content/uploads/2025/05/Letter-to-the-Equality-and-Human-Rights-Commission-16-May-2025_Redacted.pdf

I read through the letter. It looks like performative lawyering, aka playing the gallery.

If you boil it down, it says "we think you're wrong, withdraw the interim advice etc. or else."

The "or else" is the important bit, and there isn't much of it. The letter mentions: "The Interim Update is thereby an unlawful statement of policy or guidance applying the principles in R (on the application of A) v Secretary of State for the Home Department) [2021] UKSC 37, [2021] 1 WLR 3931 and Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. The Claimants will seek a declaration to that effect. "

Both of those cases are easily distinguishable from this situation.

Other than that - the phrase "judicial review" is mentioned, but only on the first page. Unless I'm mistaken nowhere does it actually say GLP will ask for a judicial review.

In any case a judicial review is applicable to a government decision, which this "interim update" isn't. It's a claim that a decision (which this, again, isn't) hasn't been reached by the correct process. A judicial review isn't appropriate if someone thinks a decision is wrong. But in any case there's no decision here to review. I suspect that GLP knows that.

On the subject of codes of practice:

The EHRC is a creature of statute, created by the Equality Act 2006. Under that Act, the Commission can, or in some cases must, issue codes of practice (s.14).

A code of practice shall shall contain provision designed—
(a)to ensure or facilitate compliance with the Equality Act 2010 or an enactment made under that Act or, (b)to promote equality of opportunity.
...
"(6)Before issuing a code under this section the Commission shall—
(a)publish proposals, and (b)consult such persons as it thinks appropriate."

Note: the choice of whom to consult with is entirely at the discretion of the Commission.

Before issuing a code, the Commission has to submit a draft to the Home Secretary. If the Home Secretary approves the draft, they lay a copy before Parliament which has 40 days to pass a resolution disapproving the draft and if that doesn't happen the code goes into force.

Once that happens it has the imprimatur of Parliament. A court will not overturn something that was approved by Parliament.

<faints on the floor with admiration>

thanks Akua, Mike, or Ben or whoever you are

i had to read your post 5 times, i could barely get through the letter leave alone take it apart so magnificently.

You can get a judicial review of any body exercising a public function (broadly speaking). The EHRC would fall into that category. That GLP has at least got that right.

As to the rest, I suppose the claim could come under the head of illegality, on the basis that the EHRC has misinterpreted/misapplied the ruling in FWS in their guidance. They have to do it now because once it’s finalised and approved by Parliament the courts are very unlikely to touch it.

That said, I think their entire argument about the workplace toilet regs (sorry, can’t remember their actual name) not being covered by the FWS approach to the meaning of “sex” flounders on cl 27, sch 3 of the Equality Act which deals with the provision of single sex services (and the conditions for these being legal notwithstanding the prohibition on sex discrimination in the Act). The Equality Act can’t make direct provision for every single sex service so it must be taken to govern the understanding in other legislation. In addition, regulations are a subordinate form of legislation to Acts so it would make a nonsense of the system if the approach to the meaning of sex which governs the Equality Act could be sidestepped by a regulation.

I’d love to see the legal advice that’s behind this pre-action letter.

The legal advice behind the pre-action letter?

Assuming it isn’t written with crayon, it probably says something like Yes Jolyon, of course Jolyon, anything you say Jolyon.

Seems various people are reporting GLP and Jolyon for fraudulent behaviour and undermining the rule of law.

Simon Myerson KC 🎗️

You haven’t started legal proceedings. You’ve sent a letter BEFORE action.
You’re asking for money on a false basis.
You say you’ve published your letter “in the interests of transparency”, but you haven’t published your legal advice.
You’re lying about being transparent.

Barbara Rich

Jolyon Maugham KC, a man who has auctioned invitations to dinner with himself for charity, delegitimises the judgment of the UK Supreme Court with his “to please their dinner party friends” slur. In doing so he gives wings to outright conspiracy theories about judicial corruption

Any way we can add numbers to that pile of complaints?

Jolyon saw an early story on the Yougov poll showing the public agree with the sumpreme court that biology is real and gets over excited. As usual he goes crazy with it. Sex Matters calls him out.

Maybe we need to run a book on when JM completely melts down.

Sex Matters

Fact check: No, the media has not leaked a Sex Matters’ “press release” to Jolyon.

For one thing, there was no press release 🤷‍♀️

PA Media put their own copy out as a wire story under embargo yesterday morning, which would have been sent to every UK news outlet: from the national newspapers and broadcasters to the smallest village gazettes right across the country.

Looking at coverage today, you’ll see it published widely across these outlets once the embargo was lifted at midnight.

So Jolyon Maugham simply had early sight of an article written by PA Media.

@DrUptonsGardenGnome: I take your point that the interim update is amenable to judicial review.

When is guidance held to be unlawful? The Supreme Court held in R (on the application of A) (Appellant) v Secretary of State for the Home Department (Respondent) which GLP cites:

39 . The approach to be derived from Gillick is further supported by consideration of the role which policies are intended to play in the law. They constitute guidance issued as a matter of discretion by a public authority to assist in the performance of public duties. They are issued to promote practical objectives thought appropriate by the public authority. They come in many forms and may be more or less detailed and directive depending on what a public authority is seeking to achieve by issuing one. There is often no obligation in public law for an authority to promulgate any policy and there is no obligation, when it does promulgate a policy, for it to take the form of a detailed and comprehensive statement of the law in a particular area, equivalent to a textbook or the judgment of a court. Since there is no such obligation, there is no basis on which a court can strike down a policy which fails to meet that standard. The principled basis for intervention by a court is much narrower, as we have set out above.

40. There are further reasons which indicate that this is the appropriate standard. If the test were more demanding there would be a practical disincentive for public authorities to issue policy statements for fear that they might be drawn into litigation on the basis that they were not sufficiently detailed or comprehensive. This would be contrary to the public interest, since policies often serve useful functions in promoting good administration. Or public authorities might find themselves having to invest large sums on legal advice to produce textbook standard statements of the law which are not in fact required to achieve the practical objectives the authority might have in view. Also, if the test were of the nature for which Mr Southey contends, the courts would be drawn into reviewing and criticising the drafting of policies to an excessive degree. In effect they would have a revising role thrust upon them requiring them to produce elaborate statements of the law to deal with hypothetical cases which might arise within the scope of a policy. Such a role for the courts cannot be justified. Their resources ought not to be taken up on such an exercise and it would be contrary to the strong imperative that courts decide actual cases rather than address academic questions of law.

41. The test set out in Gillick is straightforward to apply. It calls for a comparison of what the relevant law requires and what a policy statement says regarding what a person should do. If the policy directs them to act in a way which contradicts the law it is unlawful. The courts are well placed to make a comparison of normative statements in the law and in the policy, as objectively construed. The test does not depend on a statistical analysis of the extent to which relevant actors might or might not fail to comply with their legal obligations: see also our judgment in BF (Eritrea).

So in respect of the interim guidance, the test the GLP has to meet is to show the guidance directs an employer to act in a way which is unlawful. The guidance doesn't need to be a complete or accurate statement of the law in order to stand.

The only part of the guidance about which controversy over the legality of compliance by an employer could exist is whether it's lawful to prevent trans-identifying people to use the toilet of their identified gender. This is all being hung on the hook of the meaning of men and women in the Workplace Regulations - GLP arguing those words must be filtered through the Gender Recognition Act. The Workplace Regulations stipulate that sanitary conveniences are not suitable unless (among other things) “separate rooms containing conveniences are provided for men and women". What is meant by 'provide'? Is it enough under the regulations to simply make sure two sets of toilets exist and are functional? Or is it necessary to impose at least a basic control over who uses which? GLP seems to argue that correct policing is required as part of provision, and wrong policing amounts to a crime of "failing to provide". Given that it is open for the court to follow the same line that it used in FWS, that to apply the GRA to the Workplace Regulations would render them "incoherent or unworkable" vis a vis the protections in the Equality Act 2010, and so reverse GLP's chosen meaning of correct vs. incorrect policing, that argument could backfire on them.

Regarding the request for a declaration of incompatibility on human rights grounds - as Forstater pointed out, article 8 rights are not unfettered, and any of the reasons listed in 8(2) can be cause to infringe on the human rights, including "the protection of the rights and freedoms of others."

Thoughts?

Translucent's take on the YouGov poll

'Unfortunately, the poll was conducted amid a wave of misinformation, particularly from our national human rights body (EHRC), politicians, and the media. This renders it irrelevant in the context of truth and justice.'

https://translucent.org.uk/sex-matters-survey-by-yougov/

Crikey

the most persecuted demographic in British society today.

who knew men had it so tough?

Gary Lineker, for one🙄
Lineker 'Trans people are some of the most persecuted people on the planet' | Mumsnet

THE MOST PERSECUTED

gotta love an absolute

'irrelevant in the context of truth and justice.' is also pretty funny, no doubt if the poll had said the opposite they'd be trumpeting it everywhere

So, the latest from India Willoughby. The GC movement had to "buy" the Supreme Court.

Well, I mean, who hasn't accidentally bought the Supreme Court when you're doing a big shop?

Some amusing replies:

https://x.com/anyabike/status/1924418356611821599

It’s probably lurking in the middle aisle, waiting to leap into you shopping basket along with the inflatable kayak.

India’s lame pun doesn’t work in my accent.

India 'Let's go down the Trump route and put barbed wire in the English Channel to keep the migrants out' Willoughby?

What a load of nonsense he spouts.

I just accidentally bought 2 blocks of extra mature cheddar this week (which added up to bleeding fortune). Heaven knows what my basket total would have been if I’d accidentally double clicked on the Supreme Court

This is what I meant to buy

Supreme Tiny Friends Harry Hamster Tasty Mix Food

But it was out of stock and I got subbed a Supreme Court. I've got their Lordships weeding and watering the garden at the moment but they're going back.

Hope the hamster is ok

I wonder did IW mean that the GC movement had bought the UK Supreme Court teddy bear?
Yes, the UKSC has an online shop, and it sells a UKSC teddy bear.
I want one, but they are £30 and my cheque hasn't come in from the American Far Right yet...

The totally fictional hamster is fine, fortunately i had some left from last week. Lady Black of Derwent is cleaning out the cage and Lord Briggs of Westbourne is taking turns on the wheel with Lord Leggatt. I hope the van picks them up soon, there's wigs and robes all over the place.

Online shopping can be a bit hit and miss though. Which of us has not tried to buy a block of cheshire cheese and a jar of blackcurrant jam, only for the delivery man to bring us a judicial review?

🥰

@MyAmpleSheep A joy to read your posts. On the road to nowhere, it seems.