Schedule 1 - Gender recognition panels
Gender Recognition Bill [Lords]

Mr David Taylor (North West Leicestershire, Labour/Co-operative)

I remind the Committee that with this we are discussing the following amdts:

No. 41, in

schedule 1, page 15, leave out line 7 and insert—

'(b) at least two medical members including—

(i) a registered medical practitoner recognised as currently practising in the field of gender dysphoria in the United Kingdom, and

(ii) a registered medical practitioner who has an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service.'.

No. 34, in

clause 3, page 2, leave out lines 16 to 21 and insert—

'(a) a report made by a registered medical practitioner recognised as currently practising in the field of gender dysphoria in the United Kingdom, and

(b) a report by a registered medical practitioner who has an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service.'.

No. 35, in

clause 3, page 2, leave out lines 24 to 27 and insert—

'(a) a registered medical practitioner recognised as currently practising in the field of gender dysphoria in the United Kingdom, and

(b) a registered medical practitioner who has an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service, includes details and justification of the diagnosis of the applicant's gender dysphoria.'.

No. 36, in

clause 27, page 12, leave out lines 15 to 17 and insert—

'(a) a report made by a registered medical practitioner recognised as currently practising in the field of gender dysphoria in the United Kingdom, and

(b) a report by a registered medical practitioner who has an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service.'.

No. 37, in

clause 27, page 12, line 20, leave out paragraph (a) and insert—

'(a) the reference in subsection (1) to a registered medical practitioner is to one recognised as currently practising in the field of gender dysphoria in the United Kingdom.'.

I remind hon. Members to turn off mobile phones and that the use of electronic equipment in Committees is prohibited.

Mr Andrew Selous (South West Bedfordshire, Conservative)

It is a pleasure to serve under your chairmanship, Mr. Taylor, as I am sure other members of the Committee will agree.

I wish to respond briefly to the hon. Member for Birmingham, Selly Oak (Lynne Jones), who said, if I remember correctly, that Dr. Reid was held in high regard in the transsexual community. I am well aware of that fact. Sadly, however, it appears that Dr. Reid may have been guilty of fast-tracking many transsexuals into gender reassignment surgery. Indeed, one individual who went to see him stated:

''Less than a month after I started living full-time as a woman, Dr. Reid recommended surgery.''

That balances the two sides of the matter and relates to my point about being absolutely sure that there is a proper process and proper medical advice. We may have to return to the matter on Report. However, in the light of what the Minister said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Tim Boswell (Daventry, Conservative)

I beg to move amendment No. 5, in

schedule 1, page 14, line 12, at end insert—

'(c) are lay persons with experience as magistrates or as members of a tribunal.'.

Mr David Taylor (North West Leicestershire, Labour/Co-operative)

With this it will be convenient to discuss the following amdts:

No. 6, in

schedule 1, page 15, line 7, at end insert—

'(c) not fewer than three persons in all.'.

No. 7, in

schedule 1, page 15, line 11, leave out from 'where' to 'either'.

No. 8, in

schedule 1, page 15, line 14, leave out from 'Panel' to 'may'.

Mr Tim Boswell (Daventry, Conservative)

I am delighted that you are presiding over our affairs this afternoon, Mr. Taylor; I am sure that the sitting will be business-like. Not wholly by calculation, I seem to be taking the lead for the next five groups of amdts. I hope that we can motor on and get the necessary understanding and assurances from the Minister as to what will happen on gender recognition panels. Without exception, all the amendments are probing amendments to find out how the system will work.

I ought to begin with a declaration of interest or, perhaps, of experience that does not appear in the conventional manner on my CV. For a short period, I was a member of the agricultural land tribunal. I was

appointed by the then Lord Chancellor; indeed, after the events of yesterday, I could still be appointed by a Lord Chancellor. Therefore, I had some two years' experience of tribunal work. It was interesting, not least because the tribunal typically involved a legal Chairman and two representatives, one for farmers and one for landowners. I could never remember which side had nominated me, but that never made any difference to our deliberations, which is how it should be.

With that experience in mind and also for the avoidance of any doubt in the Committee, even though I have declared that interest, I could not possibly be feathering my own nest because the House of Commons Disqualification Act 1975 would kick in if I were nominated as a member of a gender recognition panel, even by the Lord Chancellor. I just want to tease out from the Minister some comments on how the panels will work. I do not believe that the matter has been mentioned elsewhere. If it was, I did not completely take it on board. The Minister may have noticed that my amendment is contrary to the previous group, which was tabled by my hon. Friend the Member for South-West Bedfordshire (Andrew Selous). If the Minister were mischievous, he would comment on that. My hon. Friend sought expert representation on the panel, and I now seek lay representation.

What I am after is a better understanding of how the gender recognition panel will operate. At the back of my mind is the concern that surfaced when we discussed the previous group of amendments about creating not only sufficient transparency of the panel but sufficient independence among its members to ensure that proper decisions are taken. The process should not be simply a matter of taking the word of an expert, however distinguished or authoritative, and nodding the decision through. I am sure that neither the Minister nor the transsexual community would wish that to happen; they want proper consideration of the matter. With that in mind, the first and primary purpose of amendment No. 5 and the related amendments is to suggest that there should be a lay element on panels. That has not been strongly advocated, as far as I know, by any significant group, although I did note at one stage that Press for Change was arguing that the decisions of gender recognition panels should not be over-medicalised—I think that that was the phrase that it used. I have some sympathy on that point. The issue is about the whole person and their relationship with society, and that is a proper way of looking at it.

What I had in mind was that the lay person might act as an intelligent outsider, who could say to the expert members of a tribunal, ''Come on, I don't believe that,'' or, ''Have you got enough evidence for that? Are you really sure?'' They would do the kind of things that non-executive directors do on company boards, or that members of a tribunal can do even when they do not have specific expertise.

Amendment No. 6, and its counterparts, suggest that a gender recognition panel should not consist of fewer than three people. The implication of the provisions relating to procedure, and in particular the opening line of paragraph 6, is that there could be a panel of one member. The reference is to:

''Where a Panel consists of more than one member''.

The Minister owes it to the Committee to explain roughly what he normally expects to happen, roughly what the number of members on the panel should be, and how it will work in practice. I realise that this is not a tribunal; it is a panel that will quite explicitly and properly meet in private. Partly because of that, I am anxious that there is at least some transparency in the decision-making process. I do not mean a public rehearsal. I am talking about a responsible person coming in from outside at least to ask questions.

The purpose of my lead amendment is to suggest that somebody who has some experience as a magistrate—we will not debate lay magistrates this afternoon—or as a tribunal member should be included on a panel. The words in the amendment are purely a legal device for defining suitable lay people. We are talking about somebody who has a bit of common sense and a knowledge of the procedure, but is not tied to the legal or medical professions.

There should normally be a reasonable number of people on a panel, and they should be able to take evidence from outside—later amendments deal with the ability of family members to make representations. The Minister may want to comment on the status of that evidence, the record keeping involved, and what will be required, even if things do take place in private. The purpose of the amendments is to make the process slightly broader based and better considered.

I do not feel strongly about the particular formulation that I have produced. I am not absolutely certain that we do need a lay involvement. However, I need the Minister to give me some assurances about the way in which things will work in practice, and how he, the Secretary of State, or the president of the gender recognition panel, will ensure that decisions are not skewed and that they are taken in a fully representative and proper way in order to meet the objectives that we share.

Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)

There are several reasons why I take issue with some of what the hon. Gentleman said. The amendments are not necessary, and therefore should not be supported.

Lay membership is not excluded under the Bill. Sorry, I meant to say that the number of people on a panel is not restricted to two under the Bill. Therefore one could have a third view, if one felt that having two views might leave a decision open to doubt.

Mr Tim Boswell (Daventry, Conservative)

To correct what I think was a slip of the tongue, will the hon. Gentleman confirm my understanding that laypersons would be excluded by paragraph 1 of schedule 1? For the benefit of the Committee, I want to be absolutely clear about that.

Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)

Yes. Paragraph 1 of schedule 1 does mean that. The point that I was trying to make was that the number of medical practitioners is not restricted to two. The amendment tabled by the hon. Gentleman would require at least three, and that would increase the cost of the process. Since, as I understand it, the cost will be borne by the applicant, one has to have a good reason for forcing the minimum cost up by 50 per cent.—if one assumes that costs are proportionate to numbers—or perhaps somewhat less. I do not think that there is a good reason, because, as the hon. Gentleman himself says, gender recognition panels are not tribunals or panels of judgment. We understand his desire to include some aspect of the laity to provide a juror's view, but I do not necessarily think that it is appropriate. He suggests that panels should include people with experience as magistrates, but given the nature of the issue one should bear in mind concerns that the magistracy is not yet as representative of society as it might be, although I am sure that attempts are being made to make it so. That is a generalisation, but a fair generalisation if one considers the research into the attitudes and backgrounds of magistrates. I do not think that the amendment is a terrible proposal, but one must have a high threshold for increasing the cost and complexity of the panel.

One other point that is worth making—I try to resist the temptation to make this point generally because I am medically qualified—relates to the view of the hon. Member for Daventry (Mr. Boswell) that the process must not be overly medicalised and that the whole person must be considered. I agree with him, but it would be better to say that medical members must not be too old-fashioned and consider the issue narrowly. Although I am sure that there is still some way to go, I hope that medics will not do that. Modern medical training involves exposure to societal and ethical issues to a much greater extent than it used to; arguably not as much as it needs to, but progress has certainly been made. I tend to bristle a little when I hear people say that a medical view automatically excludes the role of a person in society and the wider, holistic issues. I do not want to go on about that at length.

For those reasons, I am prepared to support the Government in resisting the amendments.

Mrs Angela Watkinson (Upminster, Conservative)

My comments may not be entirely helpful to my hon. Friend the Member for Daventry, but they are in the interests of probing the amendments and their implications.

I commented earlier that medical professionals have an enormous responsibility when deciding whether a person is suitable for gender reassignment treatment. As we discussed earlier, there are occasions when the treatment must be reversed. As someone with no medical qualifications, I find it a bit perplexing that if someone has a body gender that is the opposite of their mind gender—that is the layman's way of putting it—the decision is made to go to enormous lengths, with major surgery on occasions and drug treatment, to bring the body in line with the mind, rather than the

other way around. That is a medical decision that is a mystery to me. I wonder whether a layperson would be able to contribute meaningfully to that decision.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

Mr. Taylor, I welcome you to the Chair this afternoon. It is a pleasure to serve as the Minister representing the Government under your chairmanship.

Taking the point raised by the hon. Member for Upminster (Angela Watkinson), I emphasise that gender dysphoria and its treatment is outside the Bill, which is concerned with establishing that the gender dysphoria and its permanence or durability is evidenced appropriately. We are confident that the panel will be able to test the hon. Lady's concerns. It is important to emphasise that the medical member of the panel will ensure that the medical evidence—for example, the requirements of clause 3—is properly understood by the panel. It is appropriate that suitably qualified legal and medical members are appointed to this important judicial function, as we discussed this morning. The legal member will ensure due legal diligence and the medical member will ensure that the meaning and import of the sometimes complex medical terminology and analysis that may be a feature of the medical evidence is properly understood, which is, I think, what the hon. Lady alluded to.

The hon. Member for Daventry raised the issue of evidence. As no express standard of proof is laid down, he will understand from his general experience of tribunals that the decision will be made on the balance of probabilities. Evidence will come primarily from the applicant and we will talk later about the evidence that might come from family members. The panel may request further evidence and, importantly, under paragraph 6(6) of schedule 1, will be able to give reasons for the decisions that it has come to. That is important.

Mr Tim Boswell (Daventry, Conservative)

Will the panel be able to require the taking of evidence on oath? I am not necessarily canvassing that, but there may be circumstances in which it will wish to do so.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I would want to probe the circumstances further. It is right that if the panel is not sure about standards of proof it is able to ask for more evidence and be sure that its decisions are based on all the available evidence. We drafted the provisions to give the panel that wide and flexible power.

At all times, panels will be making determinations based on legal and medical tests and we do not see what contribution lay members could make. The inclusion of lay members on other tribunals is usually to add insight from other areas of life, such as knowledge of local conditions or of a community. We believe that the expertise of a medical or legal panel member is sufficient to establish the existence of gender dysphoria for the purposes of the Bill and we have had some dialogue about that in Committee. One member can deal with fast-track or overseas applications, but at least two members—one legal and one medical—

will deal with other applications. The president of the panel will be able to set up a bigger panel if he believes that the case merits and demands it.

I also want to emphasise the independence of the panels from the Secretary of State or anyone else. The panel members are the people who must adjudicate and judge the evidence; that is why the panels will have a legal chair. There will be no specialist medical member so that there will be no question of being asked to comment on one's own evidence or that of one's colleagues. We have set up the arrangements on that basis.

Mr Tim Boswell (Daventry, Conservative)

I am grateful to the Minister for that explanation. Something has come out explicitly that I was minded to ask him about implicitly. As I understand it, the provision in paragraph 6(1) that allows for a panel of one member will apply only to an overseas or fast-track application. Normally, the presumption is that there will be two members, and the president could ask for more than two.

I understand the point made by the hon. Member for Oxford, West and Abingdon (Dr. Harris) that modern medicine is broadly social and contextual as well as purely professional. Perhaps not much value would be added by a lay person. That is a matter that we should probably leave to the good sense of the president of the tribunal.

I am thinking of the contribution from my hon. Friend the Member for Upminster because we have to keep working on and thinking about all the related subjects. Of course, the decision on diagnosis must be a strictly medical decision. The evidence then has to be evaluated, but I am sure that the Minister would encourage me to say that a good lawyer ought to be able to keep in play the public interest in the matter. I am content with his assurances, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Tim Boswell (Daventry, Conservative)

I beg to move amendment No. 26, in

schedule 1, page 15, line 29, after 'of', insert 'reasonable'.

Mr David Taylor (North West Leicestershire, Labour/Co-operative)

With this it will be convenient to discuss the following:

Amendment No. 9, in

schedule 1, page 15, line 31, leave out paragraph (2).

Mr Tim Boswell (Daventry, Conservative)

The amendments are about money. Strangely enough, I suspect that I have retained a sense of grievance on this matter for 20 years. A tribunal on which I was empanelled did not pay. It paid expenses, but not remuneration. Bearing it in mind that the Minister has said that the members of the panel will be professional people who would have substantial opportunity costs if they were doing something other than engaging in the panel's work, the last thing that I want is for them not to be properly remunerated. We shall come to the issue about charges to the user of the panel—the applicant—at a later stage. It is a general presumption of administrative law that Ministers of the Crown are expected to act reasonably and

therefore not to pay unreasonable remuneration. It might be helpful if the Minister explained the benchmarks that he will use.

Amendment No. 9 is a classic probing amendment. It would be helpful if the Minister explained the sort of circumstances in which compensation could be paid. I imagine that it would be paid to someone who had done a great deal of work, or a person who had to drop out of a major case that would have been very remunerative in order to complete the work for the panel, if not pro bono in the finest sense of the word, perhaps as a loss leader, or for bare expenses or small remuneration. I do not know what the Minister has in mind, but it would be delightful to find out.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I cannot announce the salary package on offer to the panel members today but, as the hon. Member for Daventry would expect, those issues will be addressed in detail once the Bill has been enacted and the Department for Constitutional Affairs has begun appointing and establishing the gender recognition panels.

We have not yet set the fee structure, but fees will be consistent with those paid to members of comparable tribunals and public bodies. There is therefore no question of the rates being anything other than reasonable.

Amendment No. 9 relates to paragraph 8(2), which contains a standard safeguard enabling judicial officers to receive compensation for loss of office. We believe that it would be wrong to remove it. The panels will be made up of legal and medical professionals, the majority of whom will sit as and when required while continuing to practise their various professions. However, it is possible that some will act in a salaried capacity, and it is a requirement of salaried officers and members of a tribunal to cease private practice on appointment and not to return to private practice on cessation of their judicial appointment. For those purposes, it is important that the Lord Chancellor has those powers.

It is also right to retain flexibility on numbers and workload. Owing to the absence of gender recognition in this country, the panel will initially have to deal with many applications, and we are making appropriate arrangements for that. For those reasons, I ask the hon. Gentleman to withdraw his amendments.

Mr Tim Boswell (Daventry, Conservative)

I am grateful to the Minister for his explanation. He may or may not know that one member of my family is a member of the Bar and in the Government legal service, so, although I am not canvassing for a job for her, the point arises about somebody's appointment as a salaried person. I realise from the Minister's slight eyebrow lifting that if she were a Government employee she could not possibly be on any panel while she so remained.

The Minister's reply was perfectly satisfactory; I would have expected nothing other, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Tim Boswell (Daventry, Conservative)

I beg to move amendment No. 10, in

schedule 1, page 15, line 33, at end insert—

'8A The President of Gender Recognition Panels shall make an annual report to Parliament, but this must not contain material likely to identify individual applicants or to prejudice the operation of section 22 of this Act.

The intention of the amendment is self-evident. We have already had a useful discussion about how the gender recognition panels will operate, and as they involve the most private considerations for the individual it is proper that they meet in private. That supports the argument for not making them too large; the more they can act with discretion and confidentiality in principle, the better.

On the other hand, public interest is recognised in part by the obligation in paragraph 6(6) that the panel give reasons for its decision—that it has to have some basis in principle. No doubt the president of the panel will be anxious to see consistency of judgment and that approvals by one panel translate into work, where applicable, in other cases. He might also wish to express concern even to professionally empanelled members if that were going wrong.

The amendment allows for the fact that such matters are very private with a safeguard about individual confidentiality. As part of the overall transparency of the process, however, I am anxious to ensure that the president of the panel can report adequately and publicly. He should explain what is happening, such as the number of cases, the types of decision that are being taken and any pattern that is developing. I am not looking for trouble, but we all need a degree of scepticism and humility. I do not expect it, but a process might develop where the practice of panels diverged from what had been anticipated by all members of the Committee, wherever they stand on the matter. At least then the president would be able to engage on it and there could be public debate. The last thing that we want is the hawking around of individual and private decisions. That is not the purpose of the amendment. On the other hand, it is important, not least because of some of the fears that have been expressed by faith communities and others, that there is some public transparency once the legislation takes effect.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I agree in principle with the purpose of the amendment. It is important that I put a few things on the record that have not been mentioned previously. First, the gender recognition panels' work load and performance will be reported on annually. The panels will eventually form part of the tribunal service announced last year by my Department as a result of the wide-ranging review undertaken by Sir Andrew Leggatt. The hon. Gentleman may know that the Government hope to come forward shortly with plans for that service.

Mr Tim Boswell (Daventry, Conservative)

That is a useful assurance. Would the tribunal service deal with administrative matters? I emphasise that I am not referring to decision making but, for example, the setting up of hearings. If hon. Members were to receive representations from constituents who felt that a decision on their case was

being held up, would they be able to make representations to the tribunal service that would, presumably, lead to some effect?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I am happy to give the hon. Gentleman that assurance and also to announce to the Committee that the Council on Tribunals has agreed to take a supervisory role in the administration of the panels. It will keep them under review and report annually to the Lord Chancellor, who shall lay the report before Parliament, and the Scottish Ministers, who shall lay the report before the Scottish Parliament, with such comments as they think fit. The council will also be able to investigate matters of concern referred to it by others. To achieve that role for it, I intend to table an amendment on Report that I hope will meet the favour of the House of Commons. I trust that my assurance that the performance of the panels will be reported on satisfies the hon. Gentleman.

Mr Tim Boswell (Daventry, Conservative)

Again, those are highly satisfactory and welcome assurances. We look forward to the Government amendment in due course. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.