When “Due Regard” Can Be Inferred: PSED Compliance and the Lawfulness of a Six‑Week Consultation on an Equality Act Statutory Code

1. Introduction

National Council for Civil Liberties (Liberty) v Equality and Human Rights Commission [2025] EWCA Civ 1868 is a Court of Appeal decision (permission stage) concerning a challenge to the Equality and Human Rights Commission’s (“the Commission”) decision to run a six-week public consultation on supplementary revisions to its Services, public functions and association statutory code of practice.

The urgency arose because the consultation was due to close on 30 June 2025. Liberty sought permission to apply for judicial review, arguing that the Commission (i) failed to comply with the public sector equality duty (“PSED”) under section 149 of the Equality Act 2010, and (ii) set a consultation period that was unfair and therefore unlawful. The High Court (Swift J) refused permission; Liberty sought permission to appeal (or permission for judicial review directly under CPR 52.8(5)).

The background driver was the Supreme Court’s ruling in For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16; [2025] 2 WLR 879, which required the Commission to revise aspects of its code that had proceeded on an understanding of the effect of a Gender Recognition Certificate inconsistent with the Supreme Court’s interpretation of “sex” in the Equality Act 2010.

The key legal issues were therefore:

  • PSED issue: Could the Commission lawfully be found to have had “due regard” under section 149 when there was no recorded reference to the duty in the board minutes and no equality impact assessment?
  • Consultation issue: Was a six-week period “so unfair as to be unlawful” for a consultation of this kind, in context?

2. Summary of the Judgment

Lord Justice Dingemans (with whom Lord Justice Lewis and Lady Justice Nicola Davies agreed) refused permission to appeal. The court held that:

  • PSED: Although there was no record of PSED consideration and the court rejected any assumption that the Commission complies merely because it is the equality regulator, the judge below was entitled to conclude that, on these facts, it was an inevitable inference that the Commission did comply with section 149 when it extended the consultation from two weeks to six.
  • Consultation length: A six-week period was not so unfair as to be unlawful, given the defined scope of the supplementary consultation, the Commission’s steps to facilitate engagement (including Q&A sessions), and the countervailing public interest in timely guidance.
  • No compelling reason: Despite the importance of the subject matter, the absence of arguable grounds meant there was no other compelling reason to hear the appeal.

3. Analysis

3.1 Precedents Cited

(a) The PSED framework: R(Bracking) v Secretary of State for Work and Pensions

The court treated paragraph 26 of R(Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345; [2014] Eq LR 60 as the principal summary of PSED principles (noting it has been approved in later authorities). It emphasises that:

  • Equality duties are “integral” to anti-discrimination mechanisms.
  • Decision-makers must exercise the duty “in substance, with rigour and with an open mind”.
  • “General regard” is not enough; there must be a conscious approach to the statutory criteria.
  • Recording steps is an important evidential element; and public authorities carry a “heavy burden” in discharging the PSED (paragraph 60).
  • The court in Bracking warned against “too much reliance on inference” to show compliance.

Liberty relied on Bracking to argue that the absence of any recorded consideration of section 149 should be fatal at the arguability stage. The Court of Appeal accepted the force of the “recording” point but distinguished the present case on its particular context and the nature of the decision.

(b) When inference is permissible: ZK v London Borough of Redbridge and R(McDonald) v Kensington and Chelsea

The court referred to ZK v London Borough of Redbridge [2020] EWCA Civ 1587; [2021] ELR 238, where Lady Justice Simler adopted Lord Brown’s approach in R(McDonald) v Kensington and Chelsea [2011] UKSC 33; [2011] 4 All ER 881: inference of PSED compliance may be easier where the decision is taken within a statutory scheme that directs attention to the relevant protected group(s).

Liberty sought to distinguish that line of reasoning: the Commission here was said to be deciding only the timescale of a consultation, not a substantive allocation of services. The Commission argued the decision was tightly linked to its statutory function of producing Equality Act-compliance guidance (a code intended “to ensure or facilitate compliance”). The Court of Appeal accepted that the consultation’s purpose and context were highly material to whether inference was permissible.

(c) Consultation lawfulness: R v Brent London Borough Council ex parte Gunning and R(Moseley) v Haringey London Borough Council

On consultation fairness, the court applied the well-known “Gunning principles”, specifically the requirement from R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168 that “adequate time must be given for consideration and response”, endorsed by the Supreme Court in R(Moseley) v Haringey London Borough Council [2014] UKSC 56; [2014] 1 WLR 3497.

Critically, the court framed the judicial review threshold as requiring more than a preference for longer consultation: a claimant must show clear unfairness, described in later authority (as summarised in the judgment) as a period that is “so unfair as to be unlawful” or that something has “clearly and radically wrong”.

3.2 Legal Reasoning

(a) The PSED ground: no record, no presumption—yet inference was “inevitable”

The Court of Appeal’s reasoning on section 149 proceeds in distinct steps:

  1. Applicability conceded: The parties agreed the PSED applied to setting the consultation length.
  2. Evidential deficit accepted: There was no equality impact assessment and no recorded reference to section 149 in the board minutes. The court reaffirmed (by reference to Bracking) that recording is important evidentially.
  3. No institutional presumption: The court agreed it was wrong to assume compliance merely because the decision-maker is the Commission or because it has general equality functions under the Equality Act 2006.
  4. Contextual inference nevertheless permissible: The court held that, in the particular circumstances, it was an “inevitable inference” that the Commission had in substance been addressing the section 149 aims when it extended the consultation period.

The factors supporting that inference included:

  • The decision was made immediately after a Supreme Court ruling that necessitated rapid correction of guidance affecting multiple protected characteristics, including sex and gender reassignment.
  • The Commission was engaged in revising a statutory code whose purpose is to “ensure or facilitate” compliance with the Equality Act.
  • The press release expressly recorded that the consultation was extended “in the light of the level of public interest” and “representations” from Parliament and civil society.
  • The extension addressed the need for affected groups (including trans people) to have a fair opportunity to participate.

Notably, Liberty’s own letter (explicitly invoking section 149) was acknowledged shortly before the end of the relevant board meeting and was not seen by the board before it decided. The court treated that as immaterial because other stakeholder representations about consultation length had been considered, and the inference was drawn from the overall circumstances.

The result is a fact-sensitive proposition: even where the record is silent, PSED compliance may be inferred if the decision’s context makes it practically unavoidable that the statutory aims were being grappled with. But the court also signalled the continuing importance of proper recording by accepting the claimant’s criticism that there was no note of PSED consideration and by rejecting any blanket “regulator therefore compliant” approach.

(b) The consultation ground: “desirable” is not “unlawful”

On the adequacy of six weeks, the court accepted significant evidence of practical obstacles faced by parts of the trans community and organisations: distress and withdrawal after the Supreme Court decision, the need for legal advice, cascading consultation through smaller groups to individuals, limited resources, and timing pressures affecting trans children during exam periods.

However, the court balanced those points against countervailing considerations:

  • A strong public interest in timely, accurate guidance in a legally sensitive area after a major Supreme Court ruling.
  • The supplementary nature of the consultation (following a much longer 2024 consultation on broader revisions).
  • The defined nature of the topic (practical implications flowing from the Supreme Court’s interpretation).
  • Steps to facilitate engagement, including stakeholder Q&A sessions and evidence of many responses received.

The court emphasised that there is no general legal rule requiring a 12-week consultation, and that judicial review examines legality, not optimal policy design. Even if a longer period might be “desirable” for some stakeholders, the relevant test is whether six weeks was so unfair as to be unlawful. On the facts, it was not.

3.3 Impact

Although this is a permission decision and intensely fact-dependent, it carries practical significance in two areas.

(a) PSED compliance and evidential discipline

The judgment reinforces three connected points:

  • No special immunity for equality bodies: Courts will not presume PSED compliance just because an authority’s mission is equality-related.
  • Recording still matters: The court repeated Bracking’s emphasis that recording is an important evidential element; silence in the minutes is a litigation risk.
  • Inference remains available: Where the surrounding context makes it unavoidable that equality considerations were engaged, a court may infer compliance even without a formal assessment. This can be especially relevant for time-sensitive decisions linked to the authority’s core statutory equality functions.

For future challenges, this suggests that claimants arguing PSED breach at permission stage will often need more than “no written record”: they will need to show that the decision could realistically have been taken without conscious engagement with section 149 aims, or that the context points the other way.

(b) Consultation challenges: high threshold, context-sensitive

The decision underscores the modern consultation law approach: the question is not whether the period is ideal or typical, but whether it is so unfair as to be unlawful. Authorities can strengthen defensibility by:

  • Clearly defining the consultation’s scope (particularly where it is supplementary to earlier engagement).
  • Explaining urgency and statutory timetables.
  • Providing engagement mechanisms (e.g., Q&A sessions) to mitigate short timeframes.
  • Demonstrating responsiveness to stakeholder representations (as the Commission did by extending from two weeks to six).

For consultees, the case illustrates the difficulty of converting serious participation barriers into a successful public law challenge unless the unfairness is extreme or the decision-maker’s approach is structurally flawed.

4. Complex Concepts Simplified

Public Sector Equality Duty (PSED) – section 149 Equality Act 2010
A legal duty on public authorities, when performing their functions, to have “due regard” to three aims: eliminating discrimination, advancing equality of opportunity, and fostering good relations between groups with and without protected characteristics. It is a duty about how decisions are made (proper consideration), not a duty to achieve a particular outcome.
“Due regard”
Not a box-ticking exercise. The authority must consciously consider the statutory aims with rigour and an open mind. Evidence of that consideration (e.g., in minutes or an equality impact assessment) helps defend decisions.
Equality Impact Assessment (EIA)
A common document used to evidence PSED compliance. The court confirmed there is no universal legal requirement to produce an EIA, but absence of documentation may make compliance harder to prove.
“Inference” of PSED compliance
In some contexts a court may conclude, from the nature of the function, the statutory setting, and the surrounding evidence, that the authority must have considered the relevant equality factors even if the record is not explicit. Bracking warns against relying too heavily on inference; this case illustrates a situation where the court considered inference “inevitable”.
The “Gunning” consultation principle: “adequate time”
A lawful consultation must allow sufficient time for consultees to consider proposals and respond. The legal threshold for intervention is high: the timetable must be so unfair that it becomes unlawful, not merely shorter than usual.
Permission stage in judicial review / appeal
The court does not decide the full merits. It asks whether the claim is “arguable” (a realistic prospect of success). Here, both grounds were held not arguable, so the case did not proceed to a full judicial review hearing.

5. Conclusion

[2025] EWCA Civ 1868 confirms that:

  • A lack of written reference to section 149 is a serious evidential weakness, and equality bodies receive no automatic presumption of compliance; nonetheless, on particular facts, a court may infer PSED compliance where it is effectively unavoidable that the statutory aims were engaged.
  • Consultation challenges remain difficult: even strong evidence that some affected groups face participation barriers will not suffice unless the timetable is so unfair as to be unlawful, assessed in the full context (scope, urgency, facilitation measures, and prior consultation).

The decision is best read as a context-specific application of Bracking and Moseley rather than a relaxation of their standards: it highlights both the continuing importance of evidencing equality consideration and the judiciary’s reluctance to convert contested consultation design choices into findings of unlawfulness absent clear and radical unfairness.