Litigation Essay Competition 2026 Winner: “Ignorance is not a Defence” – Traditional Principle and Modern Limits
This essay was awarded first place in our Litigation Essay Competition 2026.
Katherine O’Toole’s work stood out for its clarity, depth of research, and compelling legal reasoning.
“Ignorance is not a Defence”: Traditional Principle and Modern Limits
The Latin maxim ignorantia juris non excusat (“ignorance of the law is no excuse”) is a bedrock of English law. Every person is presumed to know the law, so they cannot escape liability by pleading ignorance. This promotes predictability and uniformity: if identical conduct could be lawful for one but punishable for another based on knowledge, the rule of law collapses. It also spares proving a defendant’s state of mind about obscure rules and encourages citizens to inform themselves of their duties. In short, a strict rule deters wilful non-compliance with basic social norms.
Yet this absolutist rationale faces challenges in a modern state awash with complex regulation. A recent case, R (Good Law Project Ltd & Ors) v Commission for Equality and Human Rights [2026] EWHC 279 (Admin)[1], shows how courts reconcile the old maxim with today’s realities. The Good Law Project and three individual claimants (an intersex person, a trans woman holding a Gender Recognition Certificate, and a trans man with a pending GRC application) brought judicial review proceedings against the Equality and Human Rights Commission (EHRC), arguing that the EHRC’s interim guidance on single-sex facilities (published 25 April 2025, after For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16[2]) misrepresented the law and thereby induced employers to restrict their access to facilities corresponding with their gender identity, in breach of the EHRC’s statutory duties under the Equality Act 2006 and the claimants’ Article 8 rights. The High Court (Swift J) refused the Good Law Project permission for lack of standing and dismissed the individual claimants’ substantive challenges on all three grounds, holding that the guidance accurately stated the law.
1. The Traditional Justification
The traditional justification is threefold: legal certainty (the law must bind uniformly), evidential practicality (proving a defendant knew a specific rule would be unworkable), and deterrence (motivating citizens to learn their obligations). In Good Law Project, Swift J accepted these premises. After For Women Scotland, in which the Supreme Court unanimously held that “woman”, “man”, and “sex” in the Equality Act (EA) 2010 refer to biological sex rather than “certificated sex” as modified by a GRC, it would be unlawful for an employer to continue a policy premised on the contrary assumption and then plead ignorance. The Court found that the EA 2010 constitutes provision within section 9(3) of the Gender Recognition Act 2004[3], displacing the general rule in section 9(1) that a GRC changes gender “for all purposes”[4]; trans persons retain protections through the separate protected characteristic of gender reassignment (EA 2010, s 7)[5].
2. The Problem of Legal Complexity
However, Good Law Project spotlights a tension: what if even specialists find the law bewildering? For Women Scotland clarified the definition of sex but left many details unsettled: the interplay between that biological definition and existing protections for gender reassignment, or the exceptions for single-sex services (Schedule 3, Part 7, paragraphs 26 to 28[6]), are far from self-evident. Meanwhile, the Workplace (Health, Safety and Welfare) Regulations 1992, Regulation 20(2)(c)[7], separately requires that “separate rooms containing conveniences are provided for men and women” in the employment context. These are distinct legislative regimes: the 1992 Regulations are health-and-safety provisions under the Health and Safety at Work etc. Act 1974, not implementations of the Equality Act’s exceptions. In other words, the law is so intricate that reasonable people must seek guidance to navigate it.
3. Official Guidance as a Qualified Safe Harbour
The court’s reasoning creates a qualified protection for those who follow official advice in good faith. Under section 13(1)(d) of the Equality Act 2006, the EHRC may give advice or guidance on the effect or operation of any enactment[8]. Swift J held that this power implies a duty to provide accurate statements of law. At paragraph 40, he observed that an employer who “in good faith adopted and applied a policy that the female lavatories were available only to biological women” would satisfy the requirements of Regulation 20[9].
However, Swift J immediately qualified this at paragraph 42: compliance with Regulation 20 does not exhaust the employer’s legal obligations[10]. The employer must also comply with Part 5 of the EA 2010, including the prohibition on direct and indirect discrimination by reason of gender reassignment[11]. The consequence of the judgment is not that trans persons must use lavatories corresponding to their biological sex. Rather, the employer faces two coexisting duties: a health and safety obligation to provide sex-separated facilities, and an anti-discrimination obligation under the EA 2010. How these duties are reconciled in practice remains unresolved.
The EHRC’s interim update, revised on 24 June 2025 and withdrawn on 15 October 2025, was not retracted on substantive grounds: the EHRC maintained throughout the litigation that the guidance was legally accurate. It withdrew the document to pressure the Minister for Women and Equalities to approve the revised Services Code of Practice. Swift J described this process as “very unsatisfactory.” This engages the doctrine of legitimate expectation (R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213[12]), though its application requires qualification. In public law, the doctrine protects reliance on clear representations by public authorities. But it does not straightforwardly operate as a defence in private law proceedings: an employer sued for gender reassignment discrimination cannot simply plead “the EHRC told me to do it.” What reasonable reliance may do is inform the proportionality assessment in determining justification for indirect discrimination.
4. Proportionality and Contextual Enforcement
The Equality Act 2010 (Schedule 3, Part 7) allows single-sex services only if providing them is a “proportionate means of achieving a legitimate aim”[13]. Separately, Regulation 20 mandates sex-separated rooms as a health-and-safety requirement[14]. These are parallel obligations from different legislative families. Swift J emphasised that any exclusion of trans persons from a facility would be lawful only if objectively justified under the applicable standard. In practice, this means compliance is assessed on reasonableness. At paragraph 40, Swift J rejected any notion that businesses could be expected to “police” toilet usage on a “person by person and day by day” basis, calling such strict logic “divorced from reality and from any sensible model of human behaviour”[15]. The standard is good faith, not perfection.
5. Comparative Perspectives
England’s approach sits within a broader comparative trajectory, though the position of other systems is more nuanced than commonly assumed. Major civil law jurisdictions maintain ignorantia juris as the default rule but have adopted narrow statutory exceptions for unavoidable error: Germany’s section 17 of the Strafgesetzbuch recognises unavoidable mistake of law (Verbotsirrtum) as a complete defence[16], while France’s Article 122-3 of the Code pénal provides a defence of invincible error of law[17]. Under the ECHR, Article 7 incorporates qualitative requirements that laws be “accessible and foreseeable,” a principle originally developed under Article 10’s “prescribed by law” test (Sunday Times v United Kingdom (1979) 2 EHRR 245[18]) and imported into Article 7 by Kokkinakis v Greece (1993)[19] and the Grand Chamber in Del Río Prada v Spain (2013)[20]. Good Law Project aligns England within these broader trends.
Conclusion
Good Law Project shows that the maxim “ignorance of the law is no defence” remains intact, but its application has been qualified by a multi-layered framework. Today it is a starting point, not an absolute rule. The State is obligated to make the law accessible through guidance issued under specific statutory powers, and good-faith reliance on such guidance is a strong mitigating factor, at least in regulatory contexts. However, the judgment also reveals the limits of this softening: compliance with one statutory obligation does not exhaust an employer’s duties under anti-discrimination law. The modern framework generates not only safe harbours but potential collisions between coexisting legal regimes.
In short, English law still says you cannot plead ignorance, but it measures knowledge by a reasonable person standard. It punishes wilful blindness, not reasonable mistakes. The comparative picture confirms this trajectory: both continental codified exceptions for unavoidable error and the ECHR’s Article 7 foreseeability requirements reflect a shared recognition that the modern regulatory state cannot demand omniscience from its citizens. The maxim still holds, but tempered by reasonableness, proportionality, and the honest confrontation of competing obligations that remains unresolved.
[1] R (Good Law Project Ltd & Ors) v Commission for Equality and Human Rights [2026] EWHC 279 (Admin).
[2] For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16.
[3] Gender Recognition Act 2004, s 9(3).
[4] Gender Recognition Act 2004, s 9(1).
[5] Equality Act 2010, s 7.
[6] Equality Act 2010, sch 3 pt 7.
[7] Workplace (Health, Safety and Welfare) Regulations 1992, SI 1992/3004, reg 20(2)(c).
[8] Equality Act 2006, s 13(1)(d).
[9] Good Law Project (n 1) [40].
[10] Good Law Project (n 1) [42].
[11] Equality Act 2010, pt 5.
[12] R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213.
[13] Equality Act 2010, sch 3 pt 7.
[14] Workplace Regulations (n 7) reg 20(2)(c).
[15] Good Law Project (n 1) [40].
[16] Strafgesetzbuch (German Criminal Code) s 17.
[17] Code pénal (French Penal Code) art 122-3.
[18] Sunday Times v UK (1979) 2 EHRR 245.
[19] Kokkinakis v Greece (1993) 17 EHRR 397.
[20] Del Río Prada v Spain (2013) 58 EHRR 37.
Written by Katherine O’Toole’s
We would like to thank all participants for their submissions and congratulate this year’s winners.
This essay forms part of our Litigation Essay Competition 2026. Read more about the competition here:
https://www.cnsolicitors.com/litigation-essay-competition-2026/