Equality and Human Rights Commission: Draft Updated Code of Practice

Baroness Smith of Malvern Excerpts

Wednesday 5th November 2025 Lords Chamber

[Baroness Nicholson of Winterbourne]

To ask His Majesty’s Government whether they intend to accept the Equality and Human Rights Commission’s draft updated code of practice for services, public functions and associations.

[The Minister of State, Department for Education (Baroness Smith of Malvern) (Lab)]

My Lords, the Government are considering the draft updated code. If the decision is taken to approve it, the Secretary of State will lay it before Parliament. Parliament will then have a 40-day period to consider the code when it is laid. It is important that the correct process for laying the code is followed.

[Baroness Nicholson of Winterbourne (Con)]

I thank the Minister for that very helpful response. Given that there is no new legislation and no opportunity for the Minister to refuse or reject the EHRC code of practice, why, therefore, have the government invited the EHRC to make an absolute analysis of the outcome the code of practice would have? There is no new legislation and no other alterations. Is the Minister not thinking that perhaps the Government are out of step and should make the decision as soon as possible? The impact on patients, which I would wish to come and discuss with her, is extremely serious. On a renal transplant unit recently in a major NHS hospital, two trans people insisted on having beds, which the current faulty code allows, and two transplant patients were moved on to the general ward, as a result of which one patient lost his new kidney and nearly died. These are the impacts that failure to act by the Government are actually having on patients.

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[Baroness Smith of Malvern (Lab)]

On the noble Baroness’s last point, I do not believe there is anything in the previous code or in any future code that would prevent the NHS making decisions on the basis of clinical need, rather than any other reason.

On the point the noble Baroness raises about the impact assessment, let me be absolutely clear: the EHRC has not been asked to carry out a full regulatory impact assessment, but rather to provide a minimum proportionate cost assessment to evidence exclusion from a full regulatory impact assessment and enable us to take an informed decision. Understanding costs and impacts is not new; it would have been a consideration in the 2011 code. The guidance on impact assessments was introduced by the party opposite, so I am sure they are familiar with the processes the Government have to follow.

[Baroness Blower (Lab)]

My Lords, does my noble friend the Minister share my concern that details of aspects of the code are being conducted through public letters in the press rather than through proper parliamentary scrutiny? In the other place, the Secretary of State has suggested that the EHRC should focus on providing the required information to the Government, and, as she said, perhaps show

“a little less focus on public debate”.

Does my noble friend agree?

[Baroness Smith of Malvern (Lab)]

I always agree with what my right honourable friend the Secretary of State says, and I certainly do in this case. This just emphasises the point I made earlier: this code will have implications for service providers up and down the country, and, incidentally, it provides guidance across all protected characteristics, not solely sex and gender reassignment. It is therefore important for the Government to take the appropriate time to consider it, so that it can then be laid before Parliament for consideration.

[Baroness Burt of Solihull (LD)]

My Lords, given the significant public interest in this guidance and the wide-ranging impact across society, can the Minister confirm that both Houses will have the opportunity to scrutinise the code through debate once it is laid before Parliament?

[Baroness Smith of Malvern (Lab)]

The Government will follow the process set out in the Equality Act 2006 for laying the code. As per the process set out in Section 14 of that Act, the Minister for Women and Equalities, after considering the updated draft code, and if the decision is taken to approve it, will lay it before both Houses over a 40-day period.

[Lord Keen of Elie (Con)]

My Lords, at the beginning of the year, the Equality and Human Rights Commission sent the Secretary of State its revised guidance. In April, after the Supreme Court had confirmed that the reference to “women” in the Equality Act was a reference to biological sex, the commission sent a few further adjustments to the Secretary of State. The Government have to make a simple binary choice: either to accept the commission’s recommendations, or to reject them. Can the Minister explain why more than six months have passed before even an impact assessment has been considered in this context?

[Baroness Smith of Malvern (Lab)]

I think the noble and learned Lord knows that the full draft updated code was received by the Government from the EHRC on 4 September. Officials started work immediately after that. Having made clear to the EHRC that information about the impacts on businesses and public functions would be important, both in the previous iteration of the code and the one delivered on 4 September, the formal ask for that was made on 9 October.

I have already outlined in my previous answer why it is important and necessary for the conditions around impact assessments laid by, and presumably followed by, the previous Government to be carried out appropriately. Given the significance of this code, it is right that the Government take the time to get it right, rather than satisfy those who are calling for it to be laid in an untimely fashion.

[The Lord Bishop of Manchester]

Like many, I am grateful that the interim advice that was issued and caused such widespread alarm was withdrawn, albeit belatedly. As the Minister has just said, we need to get this right rather than done quick. With that in mind, can the Minister assure us that the forthcoming appointment of the new chair of the EHRC will be taken as an opportunity to reset an organisation that has, of late, lost the confidence of many?

[Baroness Smith of Malvern (Lab)]

The EHRC continues to do important work, but I take the point that the right reverend Prelate makes. The new chair of the EHRC, who will start in her role at the end of this month, has an important opportunity to build on that work and to ensure, as I know she will, that she builds trust among a wide range of stakeholders and supports the Government—and, in fact, all of us—in ensuring that the provisions of the Equality Act, in the breadth of their application, are implemented as effectively as possible, because we all benefit from that.

[Baroness Hunt of Bethnal Green (CB)]

My Lords, given that equality law operates across the United Kingdom, with devolved dimensions, can the Minister confirm whether the Governments of Scotland, Wales and Northern Ireland will have full access to His Majesty’s Government’s analysis of the draft code, so that their own Administrations can make informed and, crucially, consistent policy choices?

[Baroness Smith of Malvern (Lab)]

I can confirm that we are required to consult the devolved Governments on elements of the code, and that that work is ongoing. We will ensure that the proper process has been followed in relation to the devolved Governments, as the noble Baroness suggests.

[Lord Sandhurst (Con)]

My Lords, the existing code is out of date; we are all agreed on that. The EHRC has requested that it be taken down. Why not?

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[Baroness Smith of Malvern (Lab)]

As part of the parliamentary process for implementing the new code, the previous code will be revoked, but I understand that the EHRC has asked the Government to revoke the previous code at this point. We are considering the benefits and risks of doing that.

[Lord Cashman (Non-Afl)]

My Lords, “proportionality” is the key word. The debate around trans people, and trans women in particular, has depicted them as a threat, particularly a threat to others. I therefore ask the Government not to act in haste but to proceed with care and, dare I say, kindness and caution to balance the rights of all concerned.

[Baroness Smith of Malvern (Lab)]

I recognise that, as my noble friend says, trans people are concerned about the implications of the recent Supreme Court ruling. As I have said, we are considering both that ruling and its implications carefully. However, we are clear, as was that ruling, that the laws to protect trans people from discrimination and harassment will remain in place. Trans people will still be protected on the basis of gender reassignment, a protected characteristic written into Labour’s Equality Act.

[Baroness Fox of Buckley (Non-Afl)]

My Lords—

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[Lord Pannick (CB)]

Does the Minister agree that, today, it is the obligation of all persons, whether private or public, to comply with the judgment of the Supreme Court, whether they agree with it or not, and without waiting for guidance?

[Baroness Smith of Malvern (Lab)]

Yes, I do agree. That is what the Government, from the Prime Minister downwards, have been clear about since the judgment was made. Organisations should comply with that judgment; where they have concerns, they should take legal advice on how to do it.