Equality Act 2010: Supreme Court Judgment

Lord Carlile of Berriew Excerpts

Thursday 27th November 2025 Lords Chamber

[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—

[Lord Carlile of Berriew (CB)]

My Lords—

[Baroness Smith of Malvern (Lab)]

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.

--- Later in debate ---

[Baroness Smith of Malvern (Lab)]

It will be at the point at which we have fulfilled the process that I have outlined to the House today. It will be at the point at which we can all be confident that what we provide in clarifying the application of the law will support providers in delivering for all those with protected characteristics, which is of course the role of the code. But the noble Baroness is right: I was clear in response to the noble Lord, Lord Pannick, about the clarity of the law and the requirement for all to be following it at this point. That is the position taken by the Prime Minister in the last week, and that is what everybody should be doing.

[Lord Carlile of Berriew (CB)]

Does the Minister agree that the current unclarity arises not from the judgment of the Supreme Court but from the rushed and muddled unclarity of the code provided by the EHRC? Does she agree that we must now make sure that we do not inadvertently create an undefined third category, who could be difficult for providers to deal with?

[Baroness Smith of Malvern (Lab)]

The theme of my responses today to the questions asked is precisely to try to follow the legal and correct process here, and to avoid legal uncertainty for providers in the application of the law and the use of the code in doing that. It serves nobody—it serves none of the people whom those in this House and more broadly understandably feel passionate about—if this Government are rushed by political considerations into publishing a code which will not do the job it needs to do for the most vulnerable people. That is at the heart of the process we are following, and at the heart of our commitment to serving those people.