Equality and Human Rights Commission: Code of Practice
(Limited Text - Ministerial Extracts only)
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Baroness Ludford (LD)
My Lords, on behalf of my noble friend Lord Strasburger, and at his request, I beg leave to ask the Question standing in his name on the Order Paper.
The Minister of State, Office for Equality and Opportunity (Baroness Smith of Malvern) (Lab)
My Lords, the Code of Practice for Services, Public Functions and Associations provides guidance on all protected characteristics, not solely sex and gender reassignment. The Government are considering the draft updated code, and if the decision is made to approve it, the Secretary of State will lay it before Parliament. Parliament will then have 40 days to consider the draft code. It is important that the correct process for considering the code is followed to ensure that the Secretary of State can make an informed decision.
Baroness Ludford (LD)
My Lords, the Education Secretary—the Minister, supposedly, for Women—has run out of road, with her procrastination, excuses and flannelling the object of ridicule. Organisations are using the Government’s refusal to lay the guidance as a pretext to stick with the Stonewall law, which has been wrong for a decade. This means that women encounter situations which compromise their safety, privacy and dignity in changing rooms, toilets and leisure centres, because these are not guaranteed to be single-sex. Why are the Government continuing to fail women and defy the rule of law?
Baroness Smith of Malvern (Lab)
My Lords, the Secretary of State for Education and the current Minister for Women has a proud and lifelong record of representing women. She also understands that in order to be able to do that, we need a code of practice that is both clear and legally defensible. I would have thought that anybody with women’s best interests at heart would agree with that.
Baroness Thornton (Lab)
My Lords, proportionality, as I am sure the whole House recognises, is central to the Equality Act. But, of course, it will be difficult to apply. Can my noble friend the Minister assure the House that the Government promote a consistent and lawful understanding of proportionality across policy areas, particularly where rights appear to be in tension, while ensuring that decisions remain fair, evidence-based and respectful?
Baroness Smith of Malvern (Lab)
My Lords, that is an important principle in terms of the interpretation of law and the sometimes difficult ways in which law is applied. The For Women Scotland judgment on the definition of “sex” within the Equality Act was clear, but it is important that it is applied in a way that both has legal clarity and respects the rights and dignity of all those involved.
Baroness Hunt of Bethnal Green (CB)
My Lords, on a number of occasions in this House the Government have outlined how they are carefully considering the draft code and following proper process. Can the Minister clarify how the Government understand the balance between the independence of the EHRC and the Minister’s statutory role in approving a code and laying it before Parliament? I think that there is some confusion.
Baroness Smith of Malvern (Lab)
It is for the independent commission to consult on and put forward the code to the Minister, as it has done. The full code, following the most recent judgment, was received on 3 September by the department. It is important that it is then properly reviewed. As I have outlined previously, various elements must take place; for example, consultation with the devolved Administrations. Then it is the Minister’s responsibility, if satisfied with that code, to lay it before the House under the process set out in the Equality Act.
Baroness Cash (Con)
We have had a number of Questions now on this matter so it would be very helpful to the House if the Minister could finally provide a timetable to indicate when we might have this laid before Parliament.
Baroness Smith of Malvern (Lab)
I have been pretty clear every time that I have answered. People might not like the answer. But ensuring that what is laid before Parliament is legally defensible will enable those who need the protection of this code and of the Equality Act to receive it without us being bogged down in lengthy legal proceedings. I think that is a sensible thing for any Government to be spending a bit of time on getting right.
Lord Paddick (Non-Afl)
My Lords, I declare an interest. I am paid to advise the Metropolitan Police on culture and leadership. I joined the Metropolitan Police as a constable 50 years ago in 1976—I tell people I joined when I was seven. One of the things that undermine public confidence in laws and those who enforce them is when rules and regulations, however legally sound and well intentioned, are not enforceable in practice. How sure are the Government that the EHRC Code of Practice is actually workable?
Baroness Smith of Malvern (Lab)
Workability is one important criterion; so is a certainty that the code fulfils the legal requirements and the clarity that has now been brought into the law by the For Women Scotland judgment. But the noble Lord is right that what can be very clear in law may be more complex in terms of its application in every single circumstance. It is important that that is clear through the process of the code.
Baroness Chakrabarti (Lab)
My Lords, I am very grateful to my noble friend the Minister for her very clear answers so far. Does she agree with me that although the Supreme Court is definitive on the meaning of the Equality Act, it was silent as to other continuing obligations—for example, to trans people under the Human Rights Act—and that navigating coterminous legal obligations is one of the complex challenges of the guidance and that it has to be got right?
Baroness Smith of Malvern (Lab)
My noble friend is right that it is important, and it is the basis of the Equality Act, to recognise the rights of all those with protected characteristics within it. What was helpful in the Supreme Court’s judgment was the absolute clarification that trans people’s rights remain protected within the Equality Act 2010. We have been clear that the laws to protect trans people from discrimination and harassment will remain in place and that trans people will still be protected on the basis of gender reassignment, which is a protected characteristic written into the Equality Act.
Work is already under way to fulfil our commitment to advance the rights and protections afforded to LGBT+ people, and that includes delivering a full trans-inclusive ban on conversion practices, working with the Home Office to deliver our commitment to equalise all existing strands of hate crime, and working with the Department of Health and Social Care to improve services for trans people.
Baroness Fox of Buckley (Non-Afl)
My Lords, does the Minister have any advice for women such as Miranda Newsom, who, assuming that the Supreme Court had settled the matter, challenged a biological male in the female-only changing room at a council-run leisure centre in Southwark and received a torrent of abuse from the man, yet it was she who was punished and barred from the gym? Can the Minister assure the House that after the victory of the Darlington nurses the Government are urgently instructing NHS bodies to bring their policy fully into compliance with the law? If they do not, they are complicit with unlawful behaviour of service providers.
Baroness Smith of Malvern (Lab)
The Government have been clear that the judgment provides clarity around the definition of sex within the Equality Act. We have been clear that therefore all providers should be following that, taking specialist legal advice where necessary, and ensuring that, with respect for everybody’s rights and dignity, we can make progress on this in a way that respects the law but also ensures that everybody is able to have the rights and protections that the Equality Act so importantly laid down in 2010.
Baroness Stedman-Scott (Con)
My Lords, in the wake of the Sandie Peggie v Fife Health Board and the Darlington nurses v County Durham and Darlington NHS Trust decisions—the participants are in the Gallery—does the Minister accept that there is also an urgent need for all NHS trusts to update their policies in the light of the Supreme Court ruling? Have the Government sought this? As my noble friend Lady Cash set out so well, what timetable have the Government set up for compliance? How much longer do we have to wait? With all respect to the House, if my grandmother was saying this, she would say that Nelson will get his eye back before this happens.
Baroness Smith of Malvern (Lab)
As I have already been clear today and previously when responding to this, it is important that all bodies, public and private, consider the clarity of the For Women Scotland Supreme Court judgment and review their policies in line with that. That goes for the NHS, and it goes for other organisations as well. I just emphasise that the fact that some people have found it necessary to revert to legal cases to get their rights is precisely why we need to make sure that the interpretation of the most recent judgment is clear and not going to mean people having to take their rights through the courts to have them realised in future. It is in order to ensure that that is more likely to be the case that the Government are taking the time necessary to get this right.