Equality Act 2010: Supreme Court Judgment

Debate between Baroness Falkner of Margravine and Baroness Smith of Malvern

Thursday 27th November 2025 Lords Chamber

[Baroness Smith of Malvern (Lab)]

I do not believe that it will, but understanding costs is of course a routine and regular aspect of decision-making, as I suggested. This is a long and legally complex document that will have an impact on service providers up and down the country. Rightfully, we are carefully considering it and have asked the EHRC not to carry out a full regulatory impact assessment but, rather, to help by providing information on costs to ensure that a full impact assessment is not required, so that Ministers can take a fully informed decision.

[Baroness Falkner of Margravine (CB)]

My Lords, I declare for the final time an interest as chair of the Equality and Human Rights Commission. I am sure that the House will be delighted to hear that this is my final intervention on this matter, but I want to explain for the information of the House the important point made by both the noble Lord, Lord Rooker, and the Minister. It is simply that the code was provided to government on 8 April, before the Supreme Court ruling. Since the Supreme Court ruling, only 10% of the code has changed. It is coming up to eight months since 90% of the code was reviewed by the Government, and they responded with suggestions to those different protected characteristics and aspects. It is only that 10% which has been with the Government since 4 September.

Finally, the Minister makes an important point about the costs of the regulatory impact. The bottom line is that since this is the law of the land, the impact of costs will be far higher if we litigate through the courts case by case, public body by public body, and duty bearer by duty bearer.

[Baroness Smith of Malvern (Lab)]

I wholly agree with the noble Baroness on her last point, which is precisely why it is important that we consider the code appropriately, as laid out in law in the Equality Act 2006. She is right that, as I outlined, the code covers more than the protected characteristics of sex and gender reassignment. But it was on 4 September that the updated code, post the For Women Scotland case, was submitted to the Government. For the reasons I have outlined, I do not think it unreasonable for the Government to take the time to consider this appropriately and to consider, as they are expected to do by the burdens process put in place by the previous Government, the potential impact of that on providers, and for us to work to do so in a way that will safeguard providers in protecting all the protected characteristics that the code—

For Women Scotland v The Scottish Ministers: Interim Update

Debate between Baroness Falkner of Margravine and Baroness Smith of Malvern

Thursday 1st May 2025 Lords Chamber

[Baroness Smith of Malvern (Lab)]

The approach that my noble friend set out is precisely the one I outlined last week in responding to the statement. The Government have set out our expectation that service providers follow the clarity that the ruling provides. The EHRC’s interim update provides a perspective on how the judgment and Equality Act are practically applied in some areas; it is a snapshot reflection, rather than full guidance. The EHRC has announced that it will update its code of practice and has committed to seeking views from affected stakeholders; I am sure that it will consult widely on this. I add that the application of the Supreme Court ruling to different services and settings is complex. It requires careful work to ensure that we provide clarity for a wide range of varied service providers of different kinds and sizes so that they have confidence in how they apply the Equality Act on a day-to-day basis.

[Baroness Falkner of Margravine (CB)]

My Lords, I declare an interest as chair of the EHRC. I hope I might be able to illuminate to the House what happened. I appreciate the Minister’s response. Does she agree with section 2.2 of the framework document that we have with the Government that the ECHR does not

“perform its functions on behalf of Government, and it is to operate independently of the Government”?

Moreover, she has to ensure

“that the Commission is under as few constraints as reasonably possible in determining its activities, timetables, and priorities”.

Having listened to her response, I know that she will agree with me that our priority is to explain the law to the public, which we have done in the interim statement, and to undertake a consultation on the practical implications of the judgment. We will seek views from as many affected stakeholders as we possibly can. This is profoundly important for the trans community. It is right that we published a brief statement of the law, and we will consult extensively as we go forward.

[Baroness Smith of Malvern (Lab)]

The noble Baroness is right that the EHRC is the Government’s independent regulator of the Equality Act in this case. I welcome her commitment to both producing the statutory code of practice and the consultation to which she alluded.

Higher Education Regulatory Approach

Debate between Baroness Falkner of Margravine and Baroness Smith of Malvern

Tuesday 21st January 2025 Lords Chamber

[Baroness Smith of Malvern (Lab)]

I think I have made the position with respect to student unions pretty clear. In my discussions with vice-chancellors, they recognise their responsibility under the legislation to work with student unions to make sure that the type of intimidation that the noble Lord and others have talked about does not happen. Once again, we have found a pragmatic approach to ensuring progress on this issue, and I think the balance is right.

[Baroness Falkner of Margravine (CB)]

My Lords, first, the Minister indicated to the House that she would be publishing guidance or regulations fairly shortly, so will this be available before the newer deadline for judicial review, which I think is July 2025? Secondly, I think I understood her to say that the reason she did not engage with the Equality and Human Rights Commission was that we were an intervener in the JR. I would like to put on record for the House that the decision to intervene happened only around 10 December. There was a period between July, when the Act was paused, and 10 December or thereabouts, when we would have been delighted to engage with her on the profound points of the public sector equality duty, as well as that of Article 10 on the right to freedom of expression.

[Baroness Smith of Malvern (Lab)]

What I said was that we would bring forward a policy paper to outline how we were going to put in place the decisions that we have made on this. I am sorry if the noble Baroness thinks that there has not been sufficient engagement with her. All I can say is that there has been very widespread engagement with a whole range of stakeholders —probably a majority of whom supported the Act and quite a few of whom supported the totality of the Act, alongside those who actually would have preferred us to have completely repealed it. I hope and believe that what we have done is to appropriately listen and to find a responsible way through.