To ask His Majesty’s Government which departments have been involved in considering the Equality and Human Rights Commission’s code of practice on implementing the Supreme Court judgment on the meaning of “sex” in the Equality Act 2010.
My Lords, the Services, Public Functions and Associations: Code of Practice provides guidance on all protected characteristics, not solely sex and gender reassignment. As the sponsoring body, the Office for Equality and Opportunity is responsible for providing advice to Ministers on the code. Other government departments have been consulted as required on specific elements of the code.
I thank the Minister for that Answer; it was a fairly simple Question. But does my noble friend understand that the delay and constant difficulty in giving straight answers to questions about the guidance gives the strong impression that the Government are being held to ransom by a tightly knit group of politically motivated Peers and MPs who do not accept the Supreme Court judgment, as stated by the rule of law? One is entitled to ask: where has the rule of law gone?
No, I do not recognise that because it is not true. Any suggestion that the Government are delaying the code is both totally inaccurate and unhelpful. This is a long and complex document, and we are carefully considering it. Frankly, it would be catastrophic for single-sex services, which have always been supported by this Government and this party, to implement guidance that was not legally sound, which would then place them in legal jeopardy again. That is why it is vital that we get this right. We have always been clear that the proper process needs to be followed, which includes understanding the potential impact on businesses, public functions and services. Understanding impacts is a routine and regular aspect of decision-making; it is not a delaying tactic.
Yes, I am very happy to confirm that, as has been the Prime Minister. To be clear, the Supreme Court ruling in relation to the For Women Scotland case is clear; both inside and outside government, we expect it to be followed and, where necessary, people to seek specialist legal advice to enable them to do that.
My Lords, on costs, what assessment has been made of the potential cost implications for employers and public bodies? How are the Government ensuring that the code does not inadvertently require expensive or disproportionate changes to facilities or service delivery?
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.
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.
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—
I have not finished yet. In concluding, I take the opportunity to thank the noble Baroness, Lady Falkner, for her work in leading the EHRC. I suspect that this will not be the last time she asks questions about this issue in this House, and nor should it be.
As the Whip for the Equality Act 2010, can my noble friend the Minister clarify the next steps in the statutory process and how the Government will ensure that, when the code returns to Parliament, it will be legally sound, proportionate and practical for those who will implement it?