The strange case of Melanie Field: is an individual civil servant’s views on policy relevant in interpreting legislation

Today’s Guardian has an article entitled “Court ruling on ‘woman’ at odds with UK Equality Act aim, says ex-civil servant” https://www.theguardian.com/world/2025/apr/18/ruling-on-woman-definition-at-odds-with-uk-equality-acts-aim-says-ex-civil-servant In the article a former civil servant, senior within the policy side of the civil service, makes various comments about the intent underpinning the Equality Act 2010. The article is a curious one and wholly irrelevant in relation to the question of legislative interpretation which was at issue in For Women Scotland v Scottish Ministers [2025] UKSC 16. It is perhaps worth teasing out certain issues within the article and why they are irrelevant in law.

The article begins with a subheading that “‘Clear premise’ was to give trans and biological women same sex discrimination rights, says official who helped draft act”. The suggestion that an individual involved in drafting legislation has a particular insight into the meaning of legislation is one which is irrelevant for the process of legislative interpretation as it disregards what interpretation is about. The role of a court is determining the meaning of legislation, this involves determining the meaning of the words used given the purpose of the legislation and the context.

Context is easiest to begin with. It can involve the context of the words within a particular provision, be that a subparagraph, paragraph, subsection, or section. Or the context of the words within the context of the Act, taking account of how sections interact, the layout of provisions, line breaks and the like, and certain key presumptions that the Act has to be read as a whole, and that there is consistent use of language across the legislation. Or in the context against which the legislation was enacted — what was the background law, and how does the specific piece of legislation fit into the wider matrix of law both legislation and common law (in Scotland common law including case law and certain authoritative textbooks from the 17th to 19th centuries). Language is generally given its ordinary plain meaning (an expression that prompts questions as to what ordinary meaning is — where factors such as the intended audience of legislation becomes relevant). And in giving language ordinary meaning legislation being presumed to be prepared and written in accordance with grammatical principles. It is presumed punctuation is used properly, that different words have different meanings, the same word has a consistent meaning and the like. In doing so the primary source used by the court is the text of the legislation itself. In all of this the start point and the end point is the language of the legislation: what was enacted by parliament and given royal assent. It is the text of the legislation as passed by parliament and given royal assent which is the starting point for interpretation. What lies behind the text may be relevant in limited circumstances (partly in considering the wider approach to context mentioned above). This primarily arises when thinking about the element of purpose.

Determination of the purpose of legislation helps in establishing meaning. Purpose can be determined using internal aspects of a piece of legislation (the terms of the Act itself, the layout, the order with which provisions are put together within or between sections). In addition purpose can be established by considering external elements. It is possible to consider explanatory notes to legislation (material produced alongside legislation when being considered in parliament but not a part of the legislation itself), the background law, background consultation papers and reports (such as government green or white papers, royal commission reports, or law commission discussion papers or reports). In limited circumstances (where legislation is ambiguous) it is possible to consult statements made within the legislature — but only statements made by a parliamentarian who is promoting the particular legislative provision at issue. Accordingly, while various papers can be consulted not everything can be. Material produced subsequent to legislation being passed (such as guidance notes by civil servants) is not relevant for consideration. It can indicate a particular understanding of legislation, be indicative of certain tenable readings, but unlike the now rejected Chevron doctrine which existed in the United States none of the United Kingdom jurisdictions operate a system of deference to the views of the executive or administrators. So, post legislation position of civil servants is not an aid to interpretation. In addition in a case on the Agricultural Sector (Wales) Bill [2014] UKSC 43 where certain private correspondence had come to light involving the actual drafters of legislation the court took the view that if material was not intended to be made public before the legislation was passed (such as internal correspondence on legislation) thereby differentiating it from consultation papers, formal responses to consultation and the like, it could not be used as an aid to interpretation.

So to contextualise what is said in the article the views of any civil servant, even the drafter, in relation to interpretation are irrelevant unless expressed in publicly available material giving context to the legislation and its purpose.

The subheading though suggests that the civil servant “helped draft the Act”. Indeed it goes on to note that Melanie Field “played a key role in drafting the Equality Act” and “oversaw its drafting”. There is one problem with this though. Field was the report states “deputy director (discrimination law) at the Government Equalities Office — a unit inside the Cabinet Office — and the lead official for the 2010 act”. She was not in the office of parliamentary counsel and was not a legislative drafter. Consequently, she had no role in drafting the legislation. Drafting is a specialist role. A civil servant working in policy, even heading the policy part of a bill team, does not have a role in legislative drafting. Policy team works on the development of policy. And nor does the policy team prepare the instructions for drafting. The instructions are prepared by lawyers in the government legal service who review the policy, and research the law to identify what is required legally to implement the policy. Field may have overseen the bill team but in no sense oversaw drafting. Drafting is the sole domain of parliamentary counsel, who are charged with putting into legislative language the policy which has been developed. Overstating Field’s role to actually determining the legislative language is misleading, as well as being (for reasons given above) wholly irrelevant in determining meaning.

Field says that the “premise” underlying the bill was that someone with a gender recognition certificate providing for the acquired gender should be treated as having that sex for the purposes of the Equality Act, and goes on to say that the approach adopted by the Supreme Court whereby sex is treated as meaning biological sex and that a gender recognition certificate does not change sex for the purposes of the Equality Act is a “very significant change of interpretation from the basis on which the legislation was drafted and considered by parliament”. She makes further comments that “[the court’s] role is interpreting parliament’s intention and, in so far as they’ve sought to interpret parliament’s intention, I’m pointing out what I know about what parliament’s intention was, which was not the conclusions they have come to. … It’s not for me to say that the supreme court has got it wrong, but what I’m saying is that the basis on which the act was drafted was not to give sex the meaning that they have concluded it has.”

One problem with this statement is a conflation of the idea of legislative intention with the subjective intention of those behind the bill in the policy team.

There are multiple problems with this.

First the notion of the intention of parliament is one used regularly in discussion about the interpretation of legislation. It is said, trotted out like a judicial mantra, that the role of the court in interpreting a statute is attempting to discern the intention of the legislature. However, when intention is used generally in law while it may suggest an idea of attempting to get inside the head of an individual — an idea that intention has a subjective basis — legal use of intention typically operates in an objective way. Intention is not determined based on what people think it is based on what they say and what they do and what they write. For a legislature the way in which this intention is evidenced is the text which the legislature endorses. The legislation itself is the only text which shows what the legislature intended (insofar as a legislature can have an intention). Professor Richard Ekins in his work on legislative intent suggests that this intention is a group intention whereby the legislature acting in accordance with its procedural rules on voting passes legislation which represents that collective intent. It is then the text of the legislation which matters not the thinking of those behind it. What the users — all of those who are affected by legislation — and advisers — those who construe the terms of legislation to assist in determining how it is applied day to day — and judges — those who have the formal role of interpreting legislation — primarily rely on is the text of the legislation itself. What individual parliamentarians think they are doing when they vote on legislation is irrelevant. The notion of legislative intention is not about trying to work out what was in the heads of over 600 MPs, hundreds of members of the House of Lords, and one monarch, and somehow synthesising that into a collective subjective intent. All you know is that the final piece of legislation was passed in accordance with the parliamentary procedures. That is your evidence of intention — embodying what was said and what was done.

Second, what matters is the intention of the legislature, meaning it is the collective intention of the legislators — those who are involved in making the decisions in parliament. Thinking about the intention of those behind the legislation — every member of a policy team or legal team or individual drafter — is irrelevant. I have been on a bill team at the Scottish Law Commission, been an adviser to the Scottish government on legislation on debt enforcement, and an adviser to a committee of the Scottish parliament on conditions affecting ownership of land and the notion that anything I, or any of my colleagues, thought or think about the legislation ultimately being passed was determinative of meaning is bizarre.

Third, the job of those in the bill team is to develop the policy, instruct, and draft the legislation, and to make sure that the terms of the legislation drafted accord with the policy you want. This is done through linguistic and structural choices, as part of the iterative process of drafting and policy development. Policy is developed, instructions prepared, a draft produced, the draft reviewed, the policy developed further in relation to questions arising from that draft, instructions prepared in response to that, a new draft produced, and so on. As Beckett said “Ever tried. Ever failed. No matter. Try again. Fail again. Fail better.” If the end result for a civil servant is discovering twenty years later that judicial interpretation of the text ultimately produced does not reflect the policy you intended this suggests that the language and structure did not implement that policy, because a different policy is reflected in the text. This is your failure. Those using and advising on and interpreting legislation rely on the text of the legislation, not on those background iterative processes.

Collectively, this demonstrates the fallacious thinking behind one civil servant, one part of a bill team (albeit a policy head), asserting I know what was intended, and it was not that.

In any event the language of intention is largely useless as an expression in carrying out the actuality of statutory construction or interpretation as judges around the world from Justice Scalia in the US to Justice Kirby in Australia, and Lord Burrows in the UK — reflecting different mindsets and approaches generally to the interpretative process -have acknowledged. Accepting the best case for legislative intention (the argument from Professor Ekins) what you have is a notion of intention at such a level of abstraction that it offers little meaningful guidance as to how to construe legislation (the point is well made by the late Sir John Laws in his book The Constitutional Balance). At its most useful the intention of the legislature is a metaphor to reflect the distinct roles of legislature and judiciary within the legislative and interpretative process.

So, accepting the comments at face value they are irrelevant in relation to interpretation as private matters that would not be an external aid to interpretation, overstate the role of the bill team in the process where it is the legislature that passes legislation, conflate subjective intent of policy advisers and the objective intent of the legislature (insofar as that matters). The comments may be interesting but are legally irrelevant. For some barristers to latch on to them as indicative of an error by the Supreme Court demonstrates a profoundly unserious approach to legal argument.

But of course Field’s comments did not end there. The passage in the article is as follows;

“Field claims those clauses were changed on the instruction of ministers for political reasons to emphasise womanhood, despite the risks that could undermine the rights of a trans man who became pregnant. That “undermines the coherence of the drafting and I fear that this anomaly played a significant role in the approach taken by the court””

The policy Field had and which forms the basis of her comments was rejected by ministers (the decision makers lest we forget) in relation to the legislation and maternity provisions. The language used there reflected a distinct policy. And given that the broad presumption in relation to legislative interpretation, a point so fundamental it is central to initial lectures on legislative interpretation for new law students, that language is presumed to be used consistently and coherently across legislation this is indicative of the bill clearly not implementing the policy Field wanted but a distinct policy that ministers determined the legislation should have.