By Joanne Lockwood (she/her) FIEDP FRSA FPSA — Written from lived experience, not from the sidelines.
We’ve reached the question every reader who runs anything has been waiting for. The appearance test is the regulator’s own. The “alternative provision” often doesn’t exist. So when a nurse, a charity manager, a leisure‑centre supervisor actually has to make a call — who can use this space, today, with this person in front of them — what does the regulator tell them to do?
The answer, more than any other on Tuesday, was: it depends. Be proportionate.
And that sounds wise. Lawyerly. Grown‑up. But sit with it for two hours, as the Committee did, and something else comes into view. A regulator whose one job is to make the law usable had reached the usable part — and stepped back.
The most important word in three hundred pages
“Proportionate” is the hinge the whole Code swings on. Whether you can ask someone to leave, exclude them, redirect them, challenge them — all of it turns on whether the action is a proportionate means of achieving a legitimate aim. That is real law. It is the right test.
But a Code of Practice exists to take that abstract test and show people how to apply it — with worked examples, structured questions, a framework. On the easy cases, the Code does. On the hard ones — the ones the whole country is arguing about — it returns the bare word and stops.
Alex Brewer asked for exactly the thing that was missing: would the Code be supplemented with “a clearer decision‑making framework to avoid inconsistent or discriminatory outcomes?” She did not get a yes.
Rachel Taylor pressed on whether a specific, real situation would be proportionate, and got so little that she said it for the record:
“You cannot say whether it is proportionate so I will move on.”
When even the Chair told the witnesses they had not answered a question, you are no longer watching evasion. You are watching the shape of the document itself.
Proportionate is the most important word in three hundred pages — and the one the regulator would not define.
I should be fair, because this is the rebuttal you’ll hear: proportionality is fact‑sensitive, and no document can script every situation. True. But there is a world of difference between “we cannot list every case” and “we will not give you a method.” Brewer asked for a method. A framework is not the same as a script — and providing it is precisely what a regulator is for. I made this point when the Code was still a draft: proportionality was always going to be the missing centre. On Tuesday, the centre was confirmed empty from the regulator’s own mouth.
Passing it on
So if the framework isn’t in the Code, where does the decision go? Watch it travel.
The EHRC defers upward: we don’t make the law, the Supreme Court did. The Code defers downward: as Dr Stephenson put it, “specific organisations in different areas will have to develop policy that works within their context.” The law, the Commission confirmed, “bears on the service provider” — but providers are told it would not be proportionate to police facilities, while also being warned they are “very vulnerable to a case being brought against them” if their policy is flouted. And the individual at the very end of the chain? There is “no criminal offence of using the wrong space” — but they can still be challenged, and asked to leave.
Follow that all the way down and you notice something: the responsibility never actually stops anywhere. It is handed from Parliament to the Court to the regulator to the organisation to the frontline worker — and at each handover, the person receiving it has less power to shape it than the person who passed it on.
Kevin McKenna, who spent a career in nursing before he was an MP, gave it the only name it needs. So much of this, he said, is “passing it on.”
“You can type this stuff, but you can’t say it”
McKenna also gave the session its most quoted line, and it deserves to be the most quoted, because it comes from someone who has stood at the bedside the Code is talking about. Paraphrasing an actor describing an unsayable film script, he said:
“You can type this stuff, but you can’t say it… You can type this stuff, but it cannot be delivered.”
And: “Things have been written down in this code that are not going to survive contact with reality.”
That is not an activist talking. That is a clinician telling a regulator that the words on the page cannot be turned into care on a ward. The Commission’s own chief executive came close to conceding the point — the Code, he allowed, “may or may not help them get through it.”
Guidance that cannot be delivered is not guidance. It is a liability passed downhill.
The people left holding it
Here is who is standing where the buck finally stops.
A nurse on an understaffed ward, deciding in real time, with no framework, whether moving a frightened patient is “proportionate” — and personally carrying the consequence if a tribunal later disagrees. A small charity with no legal team, told to “develop policy within its context.” A leisure‑centre supervisor on minimum wage, told both not to police the changing rooms and that the organisation is liable if they’re policed wrongly.
These are the people the Code’s “it depends” lands on. Not the Supreme Court, which set the meaning and moved on. Not the EHRC, which declined to draw the framework. The least powerful person in the chain, holding the heaviest decision, with the least help.
A regulator’s job is to make the law operable. On the questions that actually matter, this one looked at the hardest part of its own task — and handed it to a nurse.
And now what?
If you lead an organisation, do not mistake the Code’s silence for freedom. Silence is risk transferred to you. The work the regulator declined to do — the framework, the worked examples, the decision tree — is work you now have to do yourselves, before a complaint forces it.
So build the thing the Code didn’t. Write down your actual decision process. Train the people who’ll use it. Make “proportionate” mean something specific in your context, on paper, in advance — because the alternative is leaving your most junior staff to invent it, alone, in the moment, and wear it afterwards.
Do the regulator’s homework. Not because it’s fair that you should — but because the person otherwise left holding it is yours.
Tomorrow, the last piece — and the most uncomfortable fact of all: that the harm this Code does was never a surprise. The Government wrote it down, and laid the Code before Parliament anyway.
Hold the rope.
Joanne Lockwood (she/her)
The Inclusive Culture Expert
Website: seechangehappen.co.uk | Podcast: Inclusion Bites
Creator of The Trans Inclusion Toolkit and Diagnostic and Founder of The Inclusion Bites Academy.
#InclusionBites #PositivePeopleExperiences #SmileEngageEducate
Part four of The Dignity Gap. Quotations are from the 9 June Women and Equalities Committee session. Tomorrow — the finale, Part five: “Whose Harm Counts.”