Guidance

Explanatory memorandum

Published 21 May 2026

1. Introduction

1.1 This Explanatory Memorandum has been prepared by the Cabinet Office and is laid before Parliament by Command of His Majesty.

1.2 This memorandum contains information for the Secondary Legislation Scrutiny Committee.

2. Declaration 

2.1 The Rt Hon Bridget Phillipson MP, the Secretary for State for Education at the Department for Education and the Minister for Women and Equalities confirms that this Explanatory Memorandum meets the required standard.

2.2 Marcus Bell, Director of the Office for Equality and Opportunity at the Cabinet Office, confirms that this Explanatory Memorandum meets the required standard.

3. Contact

3.1 Laura Bruce at the Cabinet Office can be contacted by email at the following address with any queries regarding the instrument: eftsponsorship@cabinetoffice.gov.uk. 

Part One: Explanation, and context, of the Instrument

4. Overview of the Instrument

What does the legislation do? 

4.1 The Equality Act 2010 Code of Practice for Services, Public Functions and Associations (“the Code”) is statutory guidance issued by the Equality and Human Rights Commission (“the EHRC”) which provides clarity and practical guidance to those providing services, those exercising public functions, and those running associations. The Code is designed to help them to understand and comply with the Equality Act 2010  (“the 2010 Act”) and enactments made under that Act, and to promote equality of opportunity (section 14(2) of the Equality Act 2006), thus increasing compliance and reducing the need to seek specialist legal advice.

4.2 This Code will supersede The Equality Act 2010 Code of Practice on Services, Public Functions and Associations enacted in 2011. Once commenced, the Code would be admissible as evidence in criminal or civil legal proceedings. Courts and tribunals must take into account any part of the Code that appears relevant to any questions arising in such proceedings.

Where does the legislation extend to, and apply? 

4.3 The extent of this Code is England and Wales, and Scotland. 

4.4 The application of the Code is in England and Wales, and Scotland. 

5. Policy Context

What is being done and why?

5.1 The EHRC has developed a revised Code of Practice for Services, Public Functions and Associations (“the Code”). This Code provides guidance for duty bearers on how to comply with the 2010 Act.  

5.2 As an independent Non-Departmental Public Body, the EHRC is responsible for providing guidance on the 2010 Act and issuing codes of practice. In line with section 14(1) of the Equality Act 2006 (“the 2006 Act”), the EHRC may issue a code of practice in connection with any matter addressed by the 2010 Act.

5.3 The purpose of the Code is (as set out in section 14(2) of the 2006 Act): 

• to ensure or facilitate compliance with the 2010 Act or an enactment made under that Act, or 
• to promote equality of opportunity. 

5.4 The revised Code covers discrimination, harassment and victimisation in services and public functions as set out in Part 3 of the 2010 Act. It also covers discrimination, harassment and victimisation by associations, as set out in Part 7 of the Act.

5.5 Part 3 of the 2010 Act is based on the principle that people with the protected characteristics set out in the 2010 Act (and which are relevant for the purposes of Part 3) should not be discriminated against, harassed or victimised when using any service provided to the public or a section of the public, whether for payment or not. The provision of a service includes, for this purpose, the provision of goods or facilities.

5.6 There is also a prohibition on discrimination, harassment and victimisation in the exercise of public functions which do not constitute the provision of a service. Part 7 of the 2010 Act prohibits discrimination, harassment and victimisation by associations, on the basis of the protected characteristics which are relevant to that Part.  

5.7 Section 14(7) of the 2006 Act states that before issuing a code under this section the EHRC shall submit a draft to the Secretary of State, who has the authority to either approve the Code, notify the EHRC and lay a copy before Parliament, or provide written reasons to the EHRC why the draft is not approved. 

5.8 Under section 14(7) and (8), if the Code is approved by the Secretary of State, she is responsible for laying it before Parliament. Whilst not a statutory instrument in itself, the new draft follows a similar procedure to a draft negative statutory instrument. The Code will be laid as an Act paper. 

5.9 The Secretary of State approved the draft Code on 5 May and it was laid before Parliament on 21 May.  Following the laying, there is a 40-day period that allows for Parliamentary scrutiny of the new draft Code. 

5.10 If there is no resolution within 40 days by either House moving a fatal prayer motion against the draft Code, the EHRC may “issue” the Code under section 14(8). However, the new Code will not be in force until it is commenced by order. 

5.11 If the new Code is approved, there will be a further two statutory instruments to complete the process: 

• a revocation order made under section 15(3) of the 2006 Act (“the revocation order”): the 2011 Code must be revoked under section 15(3) by means of a negative procedure statutory instrument; and
• a commencement order made under section 14(8) (“the commencement order”): this statutory instrument commences the new Code. It doesn’t require parliamentary procedure and requires only to be signed by the Minister.

What was the previous policy, how is this different?

5.12 The updates to the Code are primarily where there have been legislative changes, new case law, a change or clarification of terminology, or new guidance issued since the original Code was published in 2011. 

5.13 The revised Code more accurately reflects the position on all protected characteristics, following developments since the 2011 Code was published. 

5.14 It updates the current position on discrimination and  provides a more detailed explanation of positive action and its context within the law, with specific references to sections of the Act. It also provides detailed examples and clearly outlining actions that can remedy disadvantage, meet different needs, or encourage participation.

5.15 It also reflects legislative changes in relation to same-sex marriage (the Marriage (Same Sex Couples) Act 2013 in England and Wales, and the Marriage and Civil Partnership (Scotland) Act 2014 in Scotland) and civil partnerships (the Civil Partnership (Opposite-sex Couples) Regulations 2019 in England and Wales, and the Civil Partnership (Scotland) Act 2020 in Scotland). It has also been updated to incorporate a number of age-specific exceptions contained in EHRC’s technical guidance on age discrimination. 

5.16 The section on enforcement has been updated in line with legislative changes since the 2011 Code of Practice. This includes repealing some provisions relating to conciliation procedures and changes to terminology  applicable in Scotland, England and Wales. 

5.17 The EHRC’s 2014 Supplement to the Code and a clearer annex on the meaning of disabilities have been incorporated into the draft. References to EU law have been removed. 

5.18 The most substantial changes relate to the ruling by the Supreme Court in the case of For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 (“For Women Scotland”) handed down on the 16th April 2025. The implications primarily relate to the provision of sex-based services, when it is lawful to limit access to services and associations based on sex and gender reassignment, implications for competitive sport and asking about someone’s sex.

6. Legislative and Legal Context

How has the law changed? 

6.1 The Code does not change the law. It provides a detailed explanation of the Equality Act 2010 to assist courts when interpreting the law and help lawyers, advisers and others who need to apply the law and understand its technical detail.

Why was this approach taken to change the law? 

6.2 Issuing a new statutory Code and revoking the 2011 Code is the most appropriate approach to make the necessary changes.

6.3 It is the EHRC’s decision, as an organisation operationally independent of the Government, to update the Code as and when it considers it necessary. The EHRC has taken a decision to issue a new Code to reflect the changes to the law since 2011. 

6.4 The 40-day parliamentary period for laying the Code is the same regardless of whether the Code is updated or a new Code is issued.

7. Consultation 

Summary of consultation outcome and methodology

7.1 As set out in Equality Act 2006, the EHRC operates independently of the Government and is responsible for drafting the Code and consulting such persons as it thinks appropriate, under section 14(6). 

7.2 The EHRC began the process of updating the Code before the FWS judgment, and completed two consultations.  

7.3 It consulted on the draft Code from 2 October 2024 to 3 January 2025 and received around 500 responses. The Code was drafted before the Supreme Court ruling on 16 April 2025 and the EHRC therefore consulted again from 20 May to 30 June 2025 on updates to the draft Code following the ruling. This consultation received c. 50,000 responses. The EHRC will publish their consultation report once the Code is laid in Parliament.

7.4 The Secretary of State is required to consult with Scottish and Welsh Ministers when considering the Code: as required under section 14(9), consultation with Scottish and Welsh Ministers is required if, or in so far as, the code relates to a duty imposed by or under the Public Sector Equality Duty (PSED), as the duty applies in England and Wales and Scotland.

7.5 The Scottish and Welsh Ministers were consulted before the draft was approved. The Secretary of State wrote to the relevant Ministers and responses were received from both devolved governments. The Secretary of State took their feedback into account when making her decision on the Code. 

8. Applicable Guidance

8.1 The Code itself constitutes the guidance relating to the Equality Act 2010; accordingly, no supplementary guidance will be published. 

Part Two: Impact and the Better Regulation Framework 

9. Impact Assessment

9.1 The EHRC’s impact assessment focuses on the costs associated with service providers making changes to comply with those elements of the Code that provide updated statutory guidance to respond to the 2025 For Women Scotland Supreme Court ruling. While the Code has also been updated to reflect other changes, the EHRC judged that service providers were already complying with these changes, so would not incur new costs as a result of the Code. 

9.2 An Impact Assessment has been prepared for the draft Code. Regulatory Policy Committee (RPC) scrutiny of the Impact Assessment of the draft Code is not required because the scope is limited via a court judgment exemption under the Better Regulation Framework which restricts RPC scrutiny to regulatory provision which has EANDCB of over £100m.

9.3 Impact on businesses, charities and voluntary bodies

9.4 The impact on business, charities or voluntary bodies is that they are subject to the updated guidance in so far as they provide services, public functions or are associations. This Code does not relate to the employment practices of businesses, charities or voluntary bodies.  Changes to facilities, and their ongoing cleaning and maintenance, and local policy changes, are expected to be the greatest areas of cost, subject to local policy decisions and the flexibility of current estate. Other costs include familiarisation, communications, training and changes to data collection.  Impacts are further detailed in the impact assessment..

9.5 We do not expect there to be a disproportionate impact on small service providers (including small to medium-sized businesses) because the Code acknowledges that whilst all service providers must comply with their duties, large and small service providers might comply with those duties in different ways (paragraph clause 1.22). Impacts are further detailed in the impact assessment.

9.6 The impact on the public sector is that they are subject to the updated guidance in so far as they provide services, public functions or are associations. This Code does not relate to the employment practices of the public sector.  Changes to facilities, and their ongoing cleaning and maintenance, and local policy changes, are expected to be the greatest areas of cost, subject to local policy decisions and the flexibility of current estate. Other costs include familiarisation, communications, training and changes to data collection. Impacts are further detailed in the impact assessment.

9.7 Monitoring and review

What is the approach to monitoring and reviewing this legislation? 

9.8 The EHRC, as the body responsible for the Code, will keep the Code under continuous review to determine if any updates are necessary. 

9.9 As the Code is not legislation, there is no statutory review clause.

Part Three: Statements and Matters of Particular Interest to Parliament

10. Matters of special interest to Parliament 

10.1 None.

European Convention on Human Rights

10.2 No statement is required as the draft Code is not, and does not amend, legislation.

11. The Relevant European Union Acts

11.1 The Code is not made under the European Union (Withdrawal) Act 2018, the European Union (Future Relationship) Act 2020 or the Retained EU Law (Revocation and Reform) Act 2023 (“relevant European Union Acts”).