The latest on consultation duties: Court of Appeal rejects Liberty challenge to EHRC consultation

The Court of Appeal upheld a decision of the Administrative Court refusing permission to proceed with a judicial review concerning the length of the Equality and Human Rights Commission’s (the “EHRC”) consultation following the Supreme Court’s decision in For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16 (“FWS”) on the meaning of “sex” in the Equality Act 2010 (the “EA 2010”). Liberty, a prominent human rights organisation, challenged the consultation’s six-week duration, arguing that it was insufficient. The judgment was delivered as an ex-tempore decision by Lord Justice Dingemans, with whom Lord Justice Lewis and Lady Justice Nicola Davies agreed.

Background: the FWS decision and the EHRC Consultation 

The Supreme Court’s judgment in FWS prompted the EHRC to publish an interim update outlining the decision’s practical consequences for employers, public bodies with statutory duties under the EA 2010, and the wider public. The EHRC also announced plans to consult on changes to its code of practice covering services, public functions, and associations. The EHRC initially planned for the consultation to run for two weeks due to the need for timely guidance. However, following input from a range of stakeholders, the timeframe was extended. Despite this, Liberty still challenged the length of the consultation. At first instance in the Administrative Court, Liberty argued that the EHRC: 

1. breached the third requirement in R v Brent London Borough Council ex p Gunning 84 LGR 168 (“Gunning”) that “adequate time must be given for the consultation and response” (“Ground 1”); and
2. failed to have due regard to the requirements of its public sector equality duty in s 149 of the EA 2010 (“Ground 2”).

We now delve into how the Administrative Court dealt with these grounds and what the Court of Appeal had to say in response.

The Administrative Court’s Approach

Ground 1: the consultation period – fairness and inclusion considered

Liberty argued the EHRC did not allow enough time for adequate response, rendering the consultation itself unfair. In the Administrative Court, Mr Justice Swift did not agree. He held that while section 14 of the Equality Act 2006 (the “EA 2006”) allows the EHRC to “consult such persons as it thinks appropriate” it does not outline how long a consultation should take, or the amount of time stakeholders should be afforded to partake in a consultation.  Therefore, the Court did not consider the six-week period to impact the fairness of the consultation.

In coming to this decision, Mr Justice Swift noted that the relevant consultation materials were numerous but not unwieldly, with many narrative answers overlapping and all responding to the decision in FWS.

The Court was not persuaded by Liberty’s argument that those responding to the consultation have other day-to-day commitments rendering the six-weeks inadequate. Mr Justice Swift considered that this balance was a feature of all consultation exercises and did not make the process unfair.

Liberty also argued that the transgender community – a key respondent group – was particularly vulnerable. This, they argued, affected their ability to respond within the time allowed, especially given the difficult nature of the FWS ruling. This vulnerability, it argued, impacted the ability of the transgender community to respond to the consultation in the time provided. Liberty also contended that obtaining relevant legal advice to assist with consultation responses was not feasible within six weeks. While the Court acknowledged that some individuals would be deeply affected by the FWS decision, this alone did not render the six-week period unfair.

Separately, Liberty argued that the EHRC’s ability to act promptly was affected by the need to obtain parliamentary and ministerial approvals under sections 14 and 15 of the EA 2006. Given the upcoming summer recess for Parliament, Liberty argued that a longer period of consultation would be unlikely to delay the release of the code of practice. Mr Justice Swift dismissed this point, noting that the focus – as per the third Gunning principle (i.e., adequate time for consultation) – was fairness rather than convenience. Therefore, Mr Justice Swift, as outlined above, was comfortable with the fairness of the consultation. 

Ground 2: public sector equality duty – judicial scrutiny of the EHRC’s approach

Liberty argued that the EHRC could not have had due regard to the considerations in section 149 (i.e., the “public sector equality duty”), which requires public authorities to have regard to how the exercise of their functions may impact equality. This includes due regard to the need to eliminate discrimination, advance equality of opportunity, and foster good relations between people with protected characteristics and those without. Liberty argued that there was an absence of evidence that the EHRC considered section 149. Specifically, Liberty pointed to the fact that the minutes of the EHRC board meeting, at which they decided to proceed with the consultation, had no regard to the public sector equality duty.

Mr Justice Swift observed that during the board meeting, all suggested periods for responding to the consultation were longer than two weeks. The board’s recommendations varied in length but were all based on the intention of supporting compliance with section 149, aiming to create a stronger code of practice. It was held that when the EHRC ultimately decided on a six-week consultation period, they were mindful of the importance of giving trans individuals a genuine chance to participate. The Court was therefore satisfied that the EHRC had properly considered the requirements of section 149(1) on the evidence available.

Based on this reasoning, the Administrative Court refused permission for judicial review. Liberty appealed to the Court of Appeal but was not successful.

Court of Appeal: permission refused, no unfairness 

The Court of Appeal grappled with the same grounds of appeal as the Administrative Court, but in reverse order. Permission to appeal was refused on both grounds as they had no real prospect of success.

On the public sector equality duty, Liberty argued that Mr Justice Swift was incorrect to draw an inference or assume from the EHRC board meeting minutes that the duty was duly considered. This argument was grounded on the principles in the Court of Appeal's judgment in R (Bracking & Others) v Secretary of State for Work & Pensions [2013] EWCA Civ 1345, particularly: (i) the need for the duty to be exercised in substance, rigour and with an open mind; (ii)  the requirement to have specific, rather than general regard to the section 149 duties, and (iii) the section 149 burden weighing “heavy” on public authorities.

Lord Justice Dingemans agreed that there can be no assumption that the EHRC met the requirements of section 149; however, in these circumstances, Mr Justice Swift was correct in concluding that the EHRC had complied with its duty. In the EHRC press release following the board meeting, reference was made to comments of interested parties on the length of the consultation. Despite no specific reference being made to the duty itself, the contents of the board meeting minutes and the press release were sufficient to show that the duty was effectively discharged. 

Liberty, on the other ground, argued that Mr Justice Swift failed to consider the unfairness of the length of the consultation because of the cumulative effects of:

• the controversial impact of the proposals (impacting a vulnerable population);
• the competing commitments of the respondents to the consultation (which included trans children who would have exams in that same six-week period);
• the complexity of the issue; and
• the difficulty for organisations to obtain adequate legal advice.

The Court of Appeal recognised that the consultation particularly impacted trans people, especially given their vulnerability and sense of marginalisation following the Supreme Court’s ruling. However, this needed to be weighed against the interests of those who used single-sex spaces, as well as individuals who wanted the code of practice finalised promptly and those interested parties who were already prepared to respond. In this context, the Court found that the six-week consultation period was not unfair to the extent that it would be unlawful.

While the Supreme Court’s decision raised practical questions, the issues for consultation were clearly set out and consultees had sufficient guidance for their responses within the given period. Therefore, as with the other ground, permission to appeal was refused as the Court held there was no real prospect of success.

Key takeaways: judicial guidance on consultation fairness and the public sector equality duty

There has been an uptick in litigation concerning consultation duties in recent years, and judicial divergence as to when the duties are engaged. While this decision does not definitively resolve those issues, it serves as a reminder as to the fact-specific nature of the Gunning principles. The courts recognised that meaningful engagement had been enabled within a clear structure, balancing the interests of all those affected. This judgment highlights that effective consultations are judged not just by their duration, but by the substance of the engagement and the opportunity afforded for interested parties to be heard.