For Women Scotland v The Scottish Ministers: Interim Update

Baroness Smith of Malvern Excerpts

Thursday 1st May 2025 Lords Chamber

[Baroness Levitt]

To ask His Majesty’s Government what assessment they have made of the Interim Update on the practical implications of the UK Supreme Court judgment in For Women Scotland v The Scottish Ministers, issued by the Equality and Human Rights Commission (EHRC) on 25 April; and whether the EHRC consulted the Government before issuing that Interim Update.

[The Minister of State, Office for Equality and Opportunity (Baroness Smith of Malvern) (Lab)]

My Lords, the Government did not receive advance sight or notice of this interim update from the EHRC. The Government had requested a meeting with the chair to discuss its approach to developing an updated statutory code of practice, which will reflect the implications of the ruling and support service providers. This meeting will take place soon. The EHRC will consult relevant parties on its revised code, and we expect it to do so widely and broadly, listening to diverse voices. We will then consider the EHRC’s updated draft code once it has submitted it.

[Baroness Levitt (Lab)]

My Lords, I thank the Minister for her Answer. I speak today primarily as a lawyer but also as the parent of a trans child, in the belief that these matters should and can be discussed in a non-partisan way, with respect and care for the rights of all involved. Does my noble friend agree that it would be wise of the EHRC to consult the Attorney-General about its intended revised legal guidance, given that the update issued last Friday evening contained legal inaccuracies that have caused consternation to real people living real lives?

[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.

[Lord Herbert of South Downs (Con)]

My Lords, the advance of equality for lesbian and gay people over the course of the last half century has largely become settled because it was achieved without diminishing the rights of others. But, in seeking protections for transgender people, there is often a perceived or actual clash with the rights of others—namely, women—and therein lie the difficulties we are discussing. In helping us to navigate these issues, would there be merit in an overall independent review of these matters, as I proposed three years ago? At the moment, we have piecemeal approach, with a Supreme Court decision, EHRC rulings, the Cass review, other governmental decisions and, in all this, a culture war being fought that is immensely damaging to the individuals concerned. Is it not time to look at these issues dispassionately and carefully, to detoxify the debate and put the interests of all those concerned on the right footing?

[Baroness Smith of Malvern (Lab)]

The Supreme Court did look at the issues dispassionately, but the point is that there is now the requirement to consider the implications of the judgment and to do so in a way that provides assurance to service providers and others. That is the role of the code of practice and the EHRC, in the way that I have just outlined. I agree with the noble Lord—let us be clear that the Supreme Court was clear about this as well—that this not about winners and losers; it is about ensuring that there is both clarity in the law and broad respect for the rights of all people in this country. As the Supreme Court made clear, there is nothing in the ruling that undermines the protections for trans people put into Labour’s Equality Act in 2010.

[Baroness Burt of Solihull (LD)]

My Lords, I accept the Supreme Court’s judgment, but the need for the interim statement illustrates to me the extent of the anxiety, confusion and disruption surrounding how the ruling will be interpreted. While the guidance is only interim, it shows that there are still a lot of unanswered questions about how this will work in practice. Will the Government please take a lead, calm the situation and begin to work cross-party to find a way forward that allows everyone to feel safe and protected by the Equality Act?

[Baroness Smith of Malvern (Lab)]

I hope that in the Government’s response we have been calm; we have been clear but calm. We are committed to ensuring that all groups feel supported by the actions we take as a Government. The responsibility for laying down the code of practice rests with the EHRC. I am sure that it will have heard the noble Baroness’s call and, as we have already heard, it is committed to making sure that that code is developed on the basis of wide consultation.

[Baroness Williams of Trafford (Con)]

My Lords, I endorse the comments of my noble friend. Before statutory guidance is issued, how will the Government meet their legal obligations across all public services, in compliance with the judgment?

[Baroness Smith of Malvern (Lab)]

In terms of the clarity of the judgment, as we discussed last week in response to the statement, work is already going on across the health service and other parts of government service. But, as with other judgments, the important clarity around some of the complexities in the application of this judgment will be provided through the statutory code that the EHRC is producing. I look forward to that.

[Baroness Thornton (Lab)]

My Lords, notwithstanding what the chair of the EHRC has just said to the House, it is quite clear from businesses, the hospitality industry and, today, the Football Association, that its interim guidance has created huge confusion, so I would like my noble friend the Minister to confirm for the House that the EHRC interim update is just an update: it is not legally binding. Can that please be made clear by the EHRC?

[Baroness Smith of Malvern (Lab)]

I think I have been clear to this House, both today and last week, that the statutory code of practice that the EHRC is responsible for producing will be the legal basis on which there will be interpretation of the judgment. I welcome the noble Baroness the chair of the EHRC’s commitment to ensuring that there will be wide consultation on that.

[Baroness Ludford (LD)]

My Lords, the EHRC has come under the most extraordinary and ill-informed abuse, as has its chair, personally. What more do the Government believe they can do to ensure that the independence and functions of the EHRC are properly understood?

[Baroness Smith of Malvern (Lab)]

I hope that I have demonstrated today that the Government does properly understand them. As I said last week, it is important that this whole debate is carried out in a spirit of understanding the complexities of the application of some of these provisions and recognition that all groups need to be able to access services, but with welcome clarity on the areas covered by the Supreme Court judgment.