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National Council for Civil Liberties v Equality and Human Rights Commission
Anonymized Summary of Court of Appeal Opinion
Factual and Procedural Background
The appeal concerns an application for permission to appeal from an order of Judge Swift refusing Company A permission to apply for judicial review of Company B's decision to run a public consultation over a six-week period ending 30 June 2025. Company A sought judicial review on two proposed grounds: (1) alleged failure by Company B to comply with the public sector equality duty in section 149 of the Equality Act 2010; and (2) that a six-week consultation period was unfair and inadequate. The application for permission to appeal was heard orally on an expedited basis. The Court of Appeal (Judge Davies, Judge Dingemans and Judge Lewis) delivered reasons refusing permission to appeal.
Legal Issues Presented
- Whether Company B's decision to set a six-week consultation period involved an arguable breach of the public sector equality duty in section 149 of the Equality Act 2010.
- Whether a six-week consultation period was so unfair as to be unlawful (i.e. inadequate time for meaningful consultation).
Arguments of the Parties
Appellant's Arguments
- Attorney Fisher argued there was no evidence in the board minutes or press materials that Company B had considered the public sector equality duty; thus the judge's inference of compliance was unjustified.
- Attorney Fisher submitted six weeks was insufficient given the particular impact of the underlying Supreme Court judgment on the trans community and that at least 12 weeks was required for meaningful engagement.
- It was further submitted there was a compelling reason to hear the appeal because of the importance of the public sector equality duty and Company B's alleged failure to record compliance.
Respondent's Arguments
- Attorney Goudie and Attorney Kosmin submitted that, in context, Company B had complied with the public sector equality duty: the consultation was part of discharging statutory duties, representations had been received and considered, and the press release and Board material permitted an inference of regard to equality considerations.
- They argued six weeks was sufficient because the consultation was supplementary and discrete (focused on matters arising from a single Supreme Court ruling) and there was an administrative need to issue timely guidance.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16; [2025] 2 WLR 879 | Statutory interpretation of "sex" in the Equality Act 2010 (held to mean biological sex, not acquired sex via a GRC). | Court treated the Supreme Court judgment as changing the factual and legal context, requiring Company B to revise its code. |
| R(Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345; [2014] Eq LR 60 | Principles on discharge of the public sector equality duty, including importance of recording steps taken and that the duty must be exercised with substance and rigour. | Court applied Bracking to assess evidential weight of absence of recorded equality analysis but held that, on the facts, an inference of compliance was open. |
| ZK v London Borough of Redbridge [2020] EWCA Civ 1587; [2021] ELR 238 | Approach to public sector equality duty in the context of authorities already attending to equality-relevant matters. | Cited for comparison; Court noted the Commission's general engagement with equality but distinguished the limited decision under challenge (consultation timescale). |
| R(McDonald) v Kensington and Chelsea [2011] UKSC 33; [2011] 4 All ER 881 | Consideration of context where decision-maker is already required by statute to have regard to particular needs (disability in McDonald). | Used to acknowledge that statutory context can inform whether equality duty has been discharged; court considered whether similar reasoning applied to Company B. |
| R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168 | Consultation requires "adequate time ... for consideration and response". | Cited as the foundational test for consultation fairness; court applied later authority refining that unlawfulness requires the period be "so unfair as to be unlawful" or that something went "clearly and radically wrong". |
| R(Moseley) v Haringey London Borough Council [2014] UKSC 56; [2014] 1 WLR 3497 | Approval of Gunning and statement that to succeed one must show clear unfairness. | Court applied the standard from Moseley in assessing whether six weeks was unlawful and concluded it was not. |
Court's Reasoning and Analysis
The Court treated the matters in context: Company B had to revise its services and public functions code following the Supreme Court's statutory interpretation in For Women Scotland. The Court accepted Bracking's principle that recording steps is an important evidential element for discharging the public sector equality duty, and accepted the Appellant's point that Company B produced no formal equality impact assessment when setting the consultation length. However, the Court concluded that, on the particular facts, an inference of compliance was open because the Board minutes and press materials showed (a) an urgent need to produce revised guidance, (b) awareness of representations about consultation length, and (c) steps (such as stakeholder Q&A) intended to facilitate participation. The Court held that it was therefore not arguable that Company B had failed to discharge the public sector equality duty.
On the consultation-period issue, the Court applied the Gunning/Moseley line of authority: a consultation period is unlawful only if it is "so unfair as to be unlawful" or if something went "clearly and radically wrong." The Court acknowledged evidence showing particular difficulties faced by some members of the trans community and organisations (including need for legal advice, distress following the Supreme Court judgment, and practical constraints). It balanced that against evidence of a need for timely guidance, the discrete scope of the supplementary consultation, and the availability of Q&A sessions and other measures. The Court concluded six weeks was not so unfair as to be unlawful.
Finally, having found no arguable grounds on either limb, the Court found no other compelling reason to grant permission to appeal.
Holding and Implications
PERMISSION TO APPEAL REFUSED
Direct effect: Company A's application for permission to apply for judicial review was refused and the decision of the lower court is upheld. The Court found no arguable breach of the public sector equality duty and no unlawfully short consultation period. The opinion indicates no new legal precedent was established; the decision applies the existing principles from cited authorities to the facts of this case.
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