The Times has reported that “it has emerged” that ministers have demanded a regulatory impact assessment of the EHRC’s draft Code of Practice before it can be laid before parliament and brought into force.
If this is right (the Times story is light on detail of how, exactly, it has emerged), it is extraordinary.
Regulatory impact assessments are normally carried out in order to assess the effects of a proposed change in the law. The government should not need to be told that an EHRC Code of Practice does not change the law. Neither should it need to be told that a Supreme Court judgment on the meaning of a 15-year-old act of parliament does not change the law. In For Women Scotland v Scottish Ministers, the Supreme Court has authoritatively interpreted the Equality Act 2010; that means it has told us what the Act meant ever since 2010.
The EHRC has power under section 14 of the Equality Act 2006 to issue codes of practice “to ensure or facilitate compliance with the Equality Act 2010 or an enactment made under that Act” or “to promote equality of opportunity”.
That’s a power, not a duty. The EHRC doesn’t have to issue a code of practice, but it may do so. A code of practice is admissible in evidence in criminal or civil proceedings and must be taken into account by a court or tribunal “in any case in which it appears to the court or tribunal to be relevant,” but it does not itself have the force of law. If the court or tribunal considers that a code of practice gives misleading or erroneous guidance, it must decide the case in accordance with the law, not in accordance with the code of practice.
A code of practice that is demonstrably erroneous (as the EHRC’s 2011 Code, which the current draft is intended to replace) is worse than useless: it’s still admissible in legal proceedings, and courts and tribunals have a duty to take it into account so far as relevant, but they are bound by the Supreme Court judgment. So the defunct Code of Practice will continue to rattle around confusing people — or in some cases providing them with the excuse they want to continue to act in defiance of the law. But every time a claim actually comes to court, the judge will still have to follow the law as set out by the Supreme Court.
Various conclusions follow:
- There’s no point in a regulatory impact assessment of the draft Code currently with the Minister, because the job of the code of practice is not to change, but simply to explain the law.
- It would be helpful for businesses and institutions if the equalities regulator were permitted to publish a code of practice to help them understand their duties under the law, but it’s not essential. The law is already as stated by the Supreme Court, and the judgment is written in clear language.
- “We’re waiting for the new code of practice” will never be an effective excuse for failing to comply with the law.
- The government should revoke the 2011 Code of Practice on Services, Public Functions and Associations at once. Only the government can do this. It is irresponsible and irrational not to do it.
None of this is difficult or arcane. The Government has access to teams of lawyers who understand it all perfectly well. And commentators are already starting to wonder how to hold government accountable, eyeing provisions like s.112 of the EqA 2010 on “aiding contraventions” and speculating about judicial review of the failure to lay the new code before parliament and/or the failure to revoke the old code.
So what are they playing at?
The proposed regulatory impact assessment looks remarkably like an act of simple cowardice. The government knows that a code of practice doesn’t make or change the law, but only explains it. It knows that this is not what regulatory impact assessment is for. It knows that many employers and institutions are currently delaying complying with the law until the new code is issued. It knows that many thousands of individuals are suffering ongoing legal wrongs because of the ongoing delay. It knows that a proportion of those will continue to bring claims, and the courts and tribunals will clog up with cases, and public authorities and private employers will continue to pour legal fees into defending them.
But it also knows that the new code of practice will be unpopular with many of its supporters. It is seizing on the idea of a regulatory impact assessment to delay the inevitable; and to redirect the fury of its activists to the courts and tribunals, and to the brave individuals who will have to go to court at great personal cost, often one by one, sometimes in groups like the Darlington nurses, to enforce their rights. It’s a craven exercise in blame-shifting.
This is not what leadership looks like.