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

[IwantToRetire]

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.

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.

Full statement https://www.libertyhumanrights.org.uk/issue/liberty-launches-legal-action-against-ehrc-over-unlawful-code-of-practice-consultation/

This was back in the early 80s(?) and I think they thought like many did that Women's Liberation were just an irrelevance.

However they were as others have said totally caught up in the then relatively new queer politics. Or maybe in reality, despite them thinking they were on the cutting edge of left politics, just another patriarchal institution.

I think it must be early 80s because it was in relation to Ken Livingstone starting what at that time was new, offering funding to voluntary groups. And some women's groups wanted to apply and advice from NCCL they wouldn't get money as they were being discriminatorty in their purpose. (NB this is NOT about trans, just a total what about the men). In fact the GLC did fund women only groups (I think in paternalistic way thinking they would then be loyal to Ken!)

Although it was not until Boris was Mayor that any money went to Rape Crisis services in London!

There's something about these sort of groups. Like Amnesty. They are so caught up in the virtue of the purpose of the group that those employed there seem to somehow think therefore they are blessed with the authoratative understanding of what is right and wrong.

I haven't checked but from memory that consultation is in 2 parts.

Those with a duty under the EA, and a different one for individuals.

When I worked in the public sector, we were always told that 12 weeks was an appropriate length of time for a consultation of this nature, but I am not aware of there being a legal limit on it. It is a RECOMMENDATION of the Equality Commission of Northern Ireland’s that s75 equality impact consultations take 12 weeks but they recognise there may be circumstances where that is not possible. https://www.equalityni.org/Employers-Service-Providers/Public-Authorities/Section75/Section-75/PublicConsultation/Consultation-principles

I can see the argument that an overly short consultation period is unhelpful, but equally when there is a clear and specific ruling by the SC (for which it is important there is guidance to help businesses comply) that ought to make a difference.

I agree that this challenge smacks of filibustering in the hope that Baroness Faulkner will be replaced by the autumn.

Edited to add: I know ECNI has no jurisdiction here and I know s75 is different. I was just using it as an example of where I have encountered “12 weeks” before and even then it is not mandatory.

Many of these places seem to be utterly blind to the reasons for, and the means of ensuring, safeguarding.

The NCCL were affiliated with the Paedophile Information Exchange.

Which at best, would indicate that they are hopelessly naive. Some may think that such affiliations, and campaigning against single six spaces for women, indicates more than naivety.

I am all for ensuring the consultation process is as robust as possible. It is in everyone’s interest that any objections that hold merit are addressed.

My understanding is that the guidance is being rushed through due to service providers demanding it asap. Many are stating that they can’t possible follow the law without finalised guidance and so are at risk of litigation every day between now and publication.

I think the best approach is to ensure that the consultation process is water tight. That, and an announcement that Baroness Faulkner has agreed to stay in post until the new guidance is complete (to prevent disruption and delay from hanging over).

I do understand the challenges service providers are facing. They have to balance competing and conflicting interests. They now have clarity about provision for women, but they don’t have clarity regarding those with the pc of gender reassignment. Lots of posters on this board deny that this challenge exists, but it does. This is what the guidance needs to address and ways forward need to be worked out with trans people. It really shouldn’t need to involve women, as the SC has confirmed our rights to single sex provision.

This exactly what I am thinking.

Liberty loses bid to bring legal action against equalities body

ha! Today is getting better and better

Liberty made a bid to bring a legal challenge over the length of the consultation, but in a decision on Friday afternoon Mr Justice Swift said it was not arguable.

In his ruling, Mr Justice Swift said: “There is no 12-week rule. The requirements of fairness are measured in specifics and context is important.”

“I am not satisfied that it is arguable that the six-week consultation period that the EHRC has chosen to use is unfair,” he added.

At the hearing on Friday, Sarah Hannett KC, for Liberty, said in written submissions that the Supreme Court’s decision “has altered the landscape radically and suddenly” and potentially changes the way trans people access single-sex spaces and services.

The barrister said this included some businesses preventing trans women from using female toilets and trans men from using male toilets, as well as British Transport Police updating its policy on strip searches, which have caused “understandable distress to trans people”.

Ms Hannett said a six-week consultation period would be unlawful because the EHRC has not given “sufficient time” for consultees to give “intelligent consideration and an intelligent response”.

She told the London court: “There is a desire amongst the bigger trans organisations to assist the smaller trans organisations in responding… That is something that is going to take some time.”

Later in her written submissions, the barrister described the trans community as “particularly vulnerable and currently subject to intense scrutiny and frequent harassment”.

Lawyers for the EHRC said the legal challenge should not go ahead and that six weeks was “adequate”.

James Goudie KC, for the commission, told the hearing there is “no magic at all in 12 weeks”.

He said in written submissions: “Guidance consistent with the Supreme Court’s decision has become urgently needed. The law as declared by the Supreme Court is not to come in at some future point.

“It applies now, and has been applying for some time.”

The barrister later said that misinformation had been spreading about the judgment, adding that it was “stoking what was already an often heated and divisive debate about gender in society”.

He continued: “The longer it takes for EHRC to issue final guidance in the form of the code, the greater the opportunity for misinformation and disinformation to take hold, to the detriment of persons with different protected characteristics.”

Mr Goudie also said that there was a previous 12-week consultation on the guidance at large starting in October 2024.

So Liberty were making up shit about twelve weeks being necessary...

Ms Hannett said a six-week consultation period would be unlawful because the EHRC has not given “sufficient time” for consultees to give “intelligent consideration and an intelligent response”.

😁

They could have enough time to get to the moon and back on a dandelion, and it still wouldn't be sufficient for that.

He continued: “The longer it takes for EHRC to issue final guidance in the form of the code, the greater the opportunity for misinformation and disinformation to take hold, to the detriment of persons with different protected characteristics.”

Ha! Sounds like they are starting to clock the way transactivism works.

Good.

Dammit where’s that laughing reaction when I need it?

From all evidence to date, it would be a long time before we see an intelligent and cogent response from small or large trans organisations. They’ve had a decade already FFS

That's a wee shame, Liberty. Off you fuck.

Well I'd hope so given the EHRC is there to deal with this type of bullshit.

What I am really finding reassuring, and not a little pleasurable, is how it's dawning on transactivists that the Supreme Court ruling is set in absolute concrete.

There's no amending it, changing it, being outraged enough so that Something Must Be Done.

Nope. Unisex or the gents.

The end.

“Sarah Hannett KC, for Liberty, said in written submissions that the Supreme Court’s decision “has altered the landscape radically and suddenly” and potentially changes the way trans people access single-sex spaces and services”

How, if most of them don’t have a GRC?

From the title of this thread I initially thought it was Liberty the London store that was being discussed 🤣🤣
Interestingly it was that very same store where I was confronted with a man in a lovely frock in the ladies lavs! He was dressed up to the nines and I might have been fooled but he was a 6 foot heavyweight with male pattern baldness which gave the game away!

There seems to be a misconception that the guidance is the law and that’s why some are dragging their feet on it - as if it’s an opportunity to roll back the SC judgment.

No. The SC judgment is the law. Primary law. Organisations should be abiding by it now if they don’t want to risk law suits. Guidance will not change the law.

If they don’t like the law or think it’s unfair, lobby to change it through our usual legislative chamber. Why do they waste so much time and money barking up the wrong tree?

Thanks for posting that. Strangely no mention is the media. (They rarely report TRAs being defeated.)

There is another reason for having a relatively short consultation period.

Which is that over the summer months, even if they aren't summerly, things just grind to a halt. All sorts of businesses, Government departments etc., recognise that. So having a consultation that extended into the summer months probably wouldn't change much.

Added to which of course, the situation isn't complex.

We just go back to what was, not that many years ago the accepted social practice in the UK (added to workplace laws) that toilets where based on sex.

The only people actually impacted are the less than 10,000 people with GRCs.

Demanding that toilets be regulated based on lifestyle choices is just another example on how Stonewall's non law law had made people think a "right" has been taken away.

Shameful that politicians etc., are muddying the issue, but just as bad that the media refuses to provide sane fact based reporting of the issue.

The law as declared by the Supreme Court is not to come in at some future point. It applies now, and has been applying for some time.
-James Goudie KC, for the commission

Mic drop statement there

I'd like to see it emblazoned all over the place. Projected onto Stonewall HQ.
Embroidered onto a dress somewhere - that's a lot of needlework, I admit.
Made into banners and flown from flagpoles everywhere. Put into bigly letters by the Illuminati who know how to do bigly letters in posts. Carved into stone. Etched into...um....etchable materials -
you get my drift

Yes. I also want every organisation who says "we are thinking carefully about how to implement this" to be challenged with "so your position is that until you can work out how to comply with the law without discomforting trans people, you will continue to knowingly break the law, accepting that this will discomfort female people? Or to put it succinctly, you feel trans people's discomfort is more important than women's rights?"

Sorry to raise a voice of doubt here, but that is just Liberty foolishly using Sarah Hannett KC from Matrix Chambers, the fifth highest rated chambers in the country with a long history of successful court cases.

Just wait till Jolyon and GLP gets going on this. Look at all the money they have raised. They have some killer legal ideas no-one has even dreamed of I am sure. They are going to launch their challenge any day now. I just think they need some MORE money first.

Better get that humble pie ready folks.

So the law is clear - but this definitely should result in guidance that doesn't apply that law? Is that it?

Wtaf.

Aku Reindorf's comment needs to go up on billboards everywhere. Other People Have Rights.

Was pleased to see this earlier.

I think they were hoping to run the clock down on Kishwer Falkner, so I doubt they really cared if everything ground to a halt.