Mr Tim Boswell (Daventry, Conservative)

I beg to move amendment No. 3, in

clause 2, page 1, line 21, leave out 'or has had'.

This is a different sort of amendment. It deals not with administrative matters but, if anything, medical matters. It is designed as a probing amendment. As such, I realise that it could be subject to misinterpretation. It is not an attempt to alter the underlying concept of the Bill, let alone to intrude on the position of individuals. Its purpose is to get clarification from the Minister.

I suppose that much depends on how the Minister, the Committee and, ultimately, the courts interpret the condition of gender dysphoria. We need not unpick the aetiology of the condition. The hon. Member for Birmingham, Selly Oak circulated some interesting and rather convincing material on the subject, which is a matter of considerable complexity. The condition can develop in utero, or shortly afterwards, and can take a long time to resolve. The Bill implies—this is where the amendment raises a query—that the applicant either

''has or has had gender dysphoria''.

The evidence presented with the condition is fairly simple to assess. Assessing a past condition is a little more difficult.

Things could go one of two ways. I think that I know the way that the Minister has in mind, but I need to clarify that. It could be that the condition involved a feeling that the individual had that has gone away and is no longer relevant, in which case I suppose that it would be reasonable to say, ''But why are they then turning round and making an application to the

gender recognition panel?'' I understand that. I presume that there would be no legal merit—to use a legalistic term—in that sort of application. Equally, it would be a case in which the applicant ''has had'', or could be argued to have had, gender dysphoria.

The other situation seems much more plausible. This is what I want the Minister to clarify, in particular. The applicant could have had gender dysphoria at some time. They could have sought treatment for it and had a surgical change, and could be living in the acquired gender for all purposes. That is the sort of person who, as the Minister rightly said, may come forward under the fast-track procedure that we will discuss later. In a sense, they did have gender dysphoria, and that may have been resolved. Equally—this is where I pause, because I want the matter to be clarified—as it is the general, if not universal, practice that individuals in that situation are required medically, or advised medically, to support their change with hormone treatment more or less indefinitely, I am not clear whether they still have gender dysphoria or have had it. If everybody still has gender dysphoria because they still require some form of treatment, why is it necessary to prescribe circumstances in which applicants may have had it, but no longer do so? This is not a serious issue of substance, but it is important that the Minister explains and clarifies the various circumstances and why the Bill is drafted as it is.

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

Does the hon. Gentleman accept the following simple treatment of the matter? I am grateful to Press for Change for putting it to me. The treatment for gender dysphoria is gender reassignment. It is perfectly possible for people to have had gender dysphoria that has been treated and dealt with by reassignment. Legal recognition is a separate issue and follows on from that process.

Mr Tim Boswell (Daventry, Conservative)

The hon. Gentleman is probably right. It would be useful to have the Minister's reassurance. I seek only to ensure that we do not allow something through that we were not anticipating because the wording in the Bill is left unquestioned.

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

I endorse and confirm what has been helpfully said by the hon. Member for Oxford, West and Abingdon. I would add that the Government included the words ''or has had'' to cover the situation of a person who was diagnosed with gender dysphoria and has since continued through the process, as we expect people to do to live fully in their acquired gender. As the person is now living fully in the acquired gender, it may not be accurate to say that the person has gender dysphoria. The gender dysphoria has been dealt with. In order to ensure that such a person could apply for recognition, the words ''or has had'' were included.

We had a debate this morning about the groups of people who may seek to apply for a gender recognition certificate. The hon. Member for Daventry will understand that a group of people who choose to go through the fast-track procedure will have moved

beyond the gender dysphoria that they had to a new life in an acquired gender, which they have had for many years. People undergoing treatment will seek to make applications. The Bill is designed to address the different contexts in which the panel will need carefully to examine the evidence. On that basis, I hope that the hon. Gentleman is able to withdraw the amendment.

Mr Tim Boswell (Daventry, Conservative)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Tim Boswell (Daventry, Conservative)

I beg to move amendment No. 4, in

clause 2, page 2, line 8, at end insert—

'(c) that the applicant's blood relatives and other persons with a major interest in his welfare have been afforded the opportunity to make representations to the Panel if they so wish.'.

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

With this it will be convenient to discuss the following:

Amendment No. 38, in

clause 3, page 3, line 1, after 'applicant', insert

'or members of the applicant's family'.

Amendment No. 39, in

clause 8, page 4, line 37, at end insert—

'( ) Subsection (2) will not affect the right of the applicant's family to offer evidence in accordance with section 3(6).'.

Mr Tim Boswell (Daventry, Conservative)

This is the last of a number of amendments that are designed to draw out from the Minister the way in which the provisions will work in practice, although this amendment is of greater substance. It is also of notably less elegant and accurate—even competent—drafting. I say that to the Committee because the amendment has got tacked on to the overseas provisions. I hope that we can take that as read, and I apologise for it in advance to the Minister. He will not need to point it out to me.

The essential point of the amendment is to take up a debate from the other place, where the Minister, Lord Filkin, gave some helpful assurances about the ability of the gender recognition panel to consider representations from other members of the family. I need to make two qualifying points on that, and I am sure that my hon. Friend the Member for South-West Bedfordshire, whose amendment is technically rather better, will wish to make some comments as well.

At this stage of discussing the Bill, I feel that the representations concern what one might call socio-medical factors rather than economic factors. It would be quite improper to imagine a circumstance in which the gender recognition panel would have to hear representations about how much money an individual thought they might or might not lose.

I noticed some slightly overstated reservations that were published about the possibility that wills might be subverted by an application for gender recognition. Whether or not there could be—and a later provision in the Bill deals with this—the provisions concern members of the family being able to make their own representations. I wanted to make the point firmly that we are not considering the financial matters at this stage. The panel may want to ask the applicant if he or

she has made such a provision, but fundamentally the process should be a medical determination that leads to a legal judgment on the issue of a certificate.

The substantive point that I want to make, on which I think all Committee members agree, is that members of the family would normally know about such decisions. Indeed, they would have been a part of the decision over a period of time. However the amendment is drafted, I would not seek to make the panel officiously examine every last possibility that there might be somebody with an interest who has not been canvassed on the matter. One can imagine being unable to get hold of a child of the marriage who had gone away and been resident in a foreign country for a number of years.

On the other hand, the drafting was designed to include somebody who might, for example, be a carer, conceivably even a business partner, though that is unlikely. The essential point is that, although it is about the applicant, this is not a decision for the applicant alone. It also has a close and intimate effect on their family and their relationships. The family may have a positive contribution to make in terms of their experience of the applicant living in a new gender. They may want to give supporting evidence. It would be unfortunate—I understand from the framework of assurances given in another place that this is not Ministers' intention—to exclude people close to the applicant who would be able to get the original birth certificate.

Mr Stephen Pound (Ealing North, Labour)

Out of respect for the Minister perhaps I should not say this, but I will. Like many people in the Committee Room, I do not want to see lawyers become even wealthier. It seems that given the drafting of the amendment, an application could be contested by virtually anybody on the face of the earth. It seems that by including

''other persons with a major interest in his welfare'',

the hon. Gentleman has drawn the amendment so extraordinarily broadly as to open the door wide to litigation. Would he not confine himself to the point that he made earlier about blood relatives?

Mr Tim Boswell (Daventry, Conservative)

The important point, and the Minister may want to speak to this, is that the panel must satisfy itself and opportunities must be afforded to members of it. I think that we all understand the importance of not seeking officiously to find the long-lost member of the family in Buenos Aires or wherever.

Mr Stephen Pound (Ealing North, Labour)

The Tichborne claimant.

Mr Tim Boswell (Daventry, Conservative)

Indeed. The hon. Gentleman has rightly muttered, ''The Tichborne claimant''. That is the last thing that we want, but we must not allow the fear of that situation to make it impossible for the gender recognition panel to make reasonable inquiries.

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

I want to come back to a more fundamental problem with the hon. Gentleman's argument. He stated that we must accept that the matter is not just for the applicant but for his family as

well. I cannot think—and I am trying to—of any personal right that one may seek to exercise under the Human Rights Act 1998 or the European convention on human rights that gives a right of veto, in the accessing of these rights, to a family member.

Clearly there are sensitivities, but fundamentally the issue is about the autonomy of the individual. Regardless of whether other people may be hostile or supportive, it is fundamentally a matter for them and them alone to seek their rights under the Human Rights Act.

Mr Tim Boswell (Daventry, Conservative)

In a sense, the hon. Gentleman has exposed the dilemma. What he says is absolutely accurate. There is one applicant and one potential occasion for the issuing of a gender recognition certificate. That is personal to the applicant. That must be uncontentious. Indeed, the hon. Gentleman goes on to make the point, with perhaps greater certainty than I would be able to, that there is one fundamental issue of human rights that is specific to the applicant.

What we seek to do is to make sure that no decisions are taken hastily or inappropriately and without some concern for the human rights of other family members to make representations. I am not proposing to say that they are necessarily overriding or could constitute a right of veto. However, I think that it is reasonable that people should be able to make representations. I sense that the hon. Member for Ogmore wishes to intervene.

Mr Huw Irranca-Davies (Ogmore, Labour)

I thank the hon. Gentleman for giving way, for the positive approach in which he has approached many of the amendments and for the probing way in which he has put them forward. Perhaps I address the issue from a slightly different angle. If the amendment were to be accepted, in what circumstances does the hon. Gentleman envisage a representation from, let us say, a family member having a material effect on the application? By the time that the application has been made and the individual has made an autonomous choice to go forward, I fail to see what purpose any additional representation by interested parties would have to the application.

Mr Tim Boswell (Daventry, Conservative)

There might be two possible concerns: first, if the individual's will to proceed with the application was uncertain or was in the view of another member of the family—a spouse or a close relative, including a child—deemed to be uncertain; secondly and more plausibly, in circumstances in which the behaviour of the applicant was not regarded as consistent with their application. Even that might be quite difficult to establish, but it might refer to whether they had really been living in the acquired gender over the requisite period.

Dr Lynne Jones (Birmingham, Selly Oak, Labour)

What exactly does the amendment mean by

''have been afforded the opportunity to''?

Mr Tim Boswell (Daventry, Conservative)

I would have thought that it almost spoke for itself. It would mean that the panel, having received an application from an individual for the issue

of a gender certificate, would ask, presumably in a standard format, ''Is there a spouse?'', which, as the Minister will tell the Committee, is a requirement. The panel would also ask, ''Are there children from the marriage, or previous children or other persons who might have an interest? Would you care to list them? Have they been told?''

If the answer were no, the situation provided for in the amendment would not arise; but if the answer were yes, the panel could either accept the assurance of the applicant that family members had been consulted, or make separate and suitably conditioned inquiries of the persons there specified to ensure that they had had a chance to make representations. It means no more than that, and that is how I envisage it working.

I fully understand the delicacies about the modalities, but I think that we are saying that there should not and, if the amendment were not passed, probably would not be a situation in which an applicant, acting in a solipsistic manner, simply makes an application that the panel considers almost unawares to other members of the family. As I have mentioned, the scenario is unlikely, but were it to happen it would be unfortunate and it would discredit the process in the minds of the public.

Mr Huw Irranca-Davies (Ogmore, Labour)

I do not want to prolong the point, but from an informed lay person's perspective I am trying to envisage making an application and the panel seeing a submission from a family member, no matter how close or distant, who said, ''We disagree; we think that he is being too hasty. He hasn't considered it.'' I am not sure what that would add materially to my application or to the panel's deliberations, short of my saying to it, ''I have fully considered it. For at least two years previous to this, I have been in this situation.'' How does that move the process forward?

Mr Tim Boswell (Daventry, Conservative)

In most cases, a proper discussion with the family will be the norm and the desirable pattern. The Committee should acknowledge that there will have been a good deal of agonising in many cases, and I am sure that a family discussion will have taken place.

If someone reading the Bill avails himself or herself of the right to apply for a gender recognition certificate, it is not unreasonable for the panel to want to have the widest possible corpus of evidence. It may be able to obtain that consensually, but there could be circumstances in which it would ask why there was no evidence from, for example, a son of the marriage. The applicant may say that they are not offering any evidence and the panel may ask why. It may then turn out that the son of the marriage would want to say, ''This is not really how it is at all.''

I realise that the hon. Gentleman is genuinely puzzled, but there would normally be consensus, although some cases may be contentious, and it will then be for the panel to consider whether the evidence has any weight or is not relevant. That may also be relevant to the appeals procedure that is set out in a

later clause, which applies only on points of law, but if the panel simply went ahead in disregard of any evidence put forward to it by a related but not the same party, it might be in doubt about that.

The amendment would address, if not a reality, at least a nagging doubt that people may have that an application could be received, considered and determined by the panel absolutely without the knowledge and, dare I say, consent of the family, that material evidence had not been brought forward that might have influenced the decision and that the decision may have been too hasty or inappropriate.

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

I shall address those points after the hon. Member for South-West Bedfordshire (Andrew Selous) has spoken, if I catch your eye, Mr. Taylor.

On the suggestion that in almost all cases the family will have been told, it seems to me that, sadly, in some families there will be estrangement—I know someone in that position—not just because of the dysphoria, but because of issues leading up to that or flowing from that. The estranged family may not know that the person concerned is changing gender. That may be so common that to go out and specifically publicise to an unknowing family what is going on may be a breach of privacy that we are seeking to prevent in other parts of the Bill.

Mr Tim Boswell (Daventry, Conservative)

I shall make two points to the hon. Gentleman, and he must make his own points in a moment. These are serious issues and my attitude to most of them is tentative because they need to be considered carefully.

First, in my judgment, the benefit of having family evidence will usually outweigh the possibility of malicious or untainted family evidence in a minority of cases. Secondly, the process will benefit from family involvement and it is not inherently unreasonable to extend the area of interest of the panel to family members. It is a difficult issue and I do not want the family to have a veto on decisions that should be taken for other reasons, but in all cases we should emphasise best practice, which is that the family should be involved or the panel should take an interest if the family has not been involved.

If the hon. Member for Oxford, West and Abingdon is right, the Government may have got into difficulty with their assurances in another place about the involvement of the family with the panel. I may be wrong about that, but it was referred to. I would be very grateful for the Minister's clarification in due course.

Mr Andrew Selous (South West Bedfordshire, Conservative)

My amendments cover the same territory as that covered by my hon. Friend the Member for Daventry, but they relate to clauses 3 and 8. They are about the provision of evidence by families and their ability to appeal. It is important to make it clear that the decision would still rest with the tribunal, so there would be no question of families being able to block a decision. Amendment No. 38 would allow families to offer information or evidence under clause 3, and amendment No. 39 would allow them to offer

evidence if there is an appeal under clause 8. The situation that the hon. Member for Oxford, West and Abingdon envisaged would not arise with my amendments, because families could take up a right. There would be no question of a bar.

The amendments touch on large philosophical issues about our nature as human beings. It is true that we have a great deal of personal autonomy; that is clearly the case with the matters that we are discussing today. It is also true that we exist in relationship to one another. We are not purely atomised individuals but social beings who have, as part of the essence of our being, relationships with one another and, for many people, particularly with families. Therefore, it is important that families should be afforded an opportunity to have their views heard through the provision of evidence and through an ability to appeal.

The views of family members may differ. They may be supportive, in which case no point is at issue. In other instances, they may oppose the wish of the person to change their gender. Whatever the situation is, we must remember that the family knows the person very well and loves them. Their ability to contribute evidence and to be involved in any appeal process would be helpful and important. If they are denied those opportunities and made to feel excluded, what could be a difficult situation could be made much worse for all concerned.

Dr Lynne Jones (Birmingham, Selly Oak, Labour)

Will the hon. Gentleman give at least one example of a way in which evidence provided by the family might contribute to the understanding of this medical condition? Essentially, the decision is based on a medical condition and on reports from medical practitioners.

Mr Andrew Selous (South West Bedfordshire, Conservative)

The evidence of members of the immediate family—parents, brothers or sisters—who have known the person since childhood might contribute. I would have thought that they would be in a strong position to provide a great deal of evidence about the behaviour, wishes and aspirations of the person throughout their childhood and up to the point at which they decided that they wished to change gender. I cannot think of anyone more suitable or qualified to talk about the whole person than immediate family members. That is not assuming that they will be either for or against what the person wishes to do. Those are important points.

The Minister was sympathetic in his speech on Second Reading to the wishes of the family to be able to contribute evidence and be involved in the appeals process. That was certainly my reading of his speech. I do not intend to continue on that point further because we covered that territory when debating the amendment of my hon. Friend the Member for Daventry. I would be grateful if the Minister would clarify the remarks that he made on Second Reading.

Mr Huw Irranca-Davies (Ogmore, Labour)

I want to tax the hon. Gentleman not on the principle behind the amendment, but on its practicalities. He is suggesting that we should solicit representations in some way, or approach family members to seek representations.

Andrew Selous indicated dissent.

Mr Huw Irranca-Davies (Ogmore, Labour)

I may be wrong. Nevertheless, how widely do we go within the family? Are we talking about immediate family, in-laws or bloodlines? I am not sure about the practicalities of what he suggests.

Mr Andrew Selous (South West Bedfordshire, Conservative)

It is not my intention that the amendment would lead to the panel soliciting representations because that would take us down the dangerous course mentioned by the hon. Member for Oxford, West and Abingdon. If there is estrangement and the family are not there, it would not be right for them to say later on, ''We were never involved.'' The first amendment would create an opportunity—something that may happen—and it gives families who are in contact the ability to offer evidence.

I would be happy in the first instance to restrict the provision to parents, spouses or partners, children and possibly grandchildren. I would be willing to take advice from the Minister's Department on whether the provisions should be more widely or narrowly drawn, but that would be a reasonable first involvement. It is an important point, to which I hope the Committee and the Minister feel sympathetic. If the process were a narrow one from which people who love, care for and are concerned for the people involved and have known them all their lives feel excluded, that would be unhelpful.

Mr Huw Irranca-Davies (Ogmore, Labour)

Does the hon. Gentleman accept that if immediate members of families are not to be solicited, it is for them to come forward? As he has just said, by necessity that means that they must be in contact with the individual. Under his amendment, there will be those in the family who may not be close, but may have a view. I am trying to examine a hole in the amendment. There may be people in the family who had something that they wanted to contribute, but because they are not being solicited—perhaps they are not in direct contact—they will not have the opportunity to put their views forward. Is that what the hon. Gentleman is seeking?

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

Order. That was a rather long intervention.

Mr Andrew Selous (South West Bedfordshire, Conservative)

I am sorry to hear that the hon. Gentleman disagrees in principle with the amendments because I think that they would be extremely helpful. On the matters he raises, a distant cousin, for example, who knew the person who wished to change gender particularly well, would not be included under the definition I gave. I hope that we could leave that to the discretion of the panel. Certain people could be stipulated by regulation and the panel could exercise its discretion if someone had been particularly close to a cousin, for example, who knew them extremely well. In that case, it would be sensible to include such a person.

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

I rise to request that the Minister clarify what he said on Second Reading regarding what his colleagues said in the House of Lords. I respect the point of view of the hon. Member for Daventry, who

says that we should be tentative on all of the issues. I am sometimes conscious of the fact that I am a little didactic. He is always very tentative, and rightly so.

This is an area about which I feel strongly because we have to consider the rights of families in respect of medical treatments and key decisions such as end-of-life decisions, for reasons that I will go on to explain.

There are two opportunities for a family to intervene. The first opportunity is at the time of the decision to treat and continue treatment—it is a process, not a single decision. Secondly, there is their right, as the hon. Members for Daventry and for South-West Bedfordshire would have it, to intervene at the point at which recognition is sought, when an application has been predicated on treatment.

I want to discuss both those points. It is difficult to have much sympathy with the principle or the practice of the amendments on either basis, and that is why I am concerned about what was said about the Minister having legislative sympathy. Of course, everyone recognises that people do not live in a vacuum and that they have connections with families, society, and the people for whom they love and care. I do not want my words to be taken to deny that. However, when we are considering the Bill we have to look at legalistic issues, rather than simply emotional ones.

I want to invoke a comparison with an issue that is perhaps even more important. I am talking about the right to refuse treatment, even if that results in loss of life. That is a decision for a patient with capacity, on their own. Doctors can act on the basis of a patient with capacity making that decision clear. They can take into account relatives' views on capacity—I will come to that, because clearly they have to make a judgment. However, if someone says, ''I don't want to have this operation'', relatives can say all that they like—they normally have good motives for what they say—but doctors cannot take that into account when making the decision because it is a question of the autonomy of the individual. With that sort of treatment, as with any other treatment, if someone is of sound mind—to put it legally—there is no role for relatives to veto treatment or force someone to undergo it. The same thing applies to the decision to treat for gender dysphoria.

Clearly, there are certain subjective judgments to be made by doctors. We are talking about judgments that are mainly objective, but in the end all objective judgments are affected by experience. A doctor may well take into account the views of the family in judging capacity, or, when the request for treatment is based on a history, they may take into account evidence of fact regarding that history, in case they were seeing someone who did not truly have the condition, but was seeking treatment factitiously—rare in these cases. There is also an important issue relating to evidence of compliance with treatment.

However, those are earlier-stage issues, and they are difficult at the best of times. It is not the job of a doctor, unless he or she has reason to suspect that there are issues about capacity, compliance or the facts relating

to the symptoms, to seek third-party opinions. Even the instances that I mentioned are questionable. Statute has not gone into the matter in great detail; if challenged, doctors have to defend decisions to treat and those made in relation to such issues under common law. That earlier stage is certainly where those issues might come in.

If there is a patient with capacity who has a medical report that takes into account the evidence and the doctor's view on compliance, it is hard to claim that someone should be able to argue at a later stage that there are reasons why the person who is being treated should not get recognition. If there are reasons why they should not get recognition, they should not really be undergoing treatment. That is the stage at which such issues might be brought to bear.

Mr Tim Boswell (Daventry, Conservative)

I am genuinely grateful to the hon. Gentleman for his useful clarification of the medical ethics, particularly in the circumstances leading up to treatment, which is not strictly in the purview of the Bill or the panel. At the same time, does he not agree that, in the deliberations of the panel, matters other than treatment are relevant? I am considering the rubrics at the beginning of the clause on the condition itself—whether it applied, and whether the tests of having lived in the acquired gender for two years and the intention to continue to live in that gender until death are met. In those circumstances, it would seem to me not unreasonable for the panel to have the benefit of the advice of the family and immediate concern.

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

I accept that that is a strong point and that the presence of those words opens up the issue to the sort of amendments that we have been tabled. That is why I am interested to hear how the Minister defends putting such a stipulation beyond that provided by the fact that there has been treatment and it is ongoing. Under best medical practice, that presumes that those issues have been dealt with.

Whether there is adequate compliance and—as far as one can tell—an agreement to comply with the treatment plan should be dealt with under the medical report on which the treatment is founded. We are talking about new applications; I do not think that there will be much doubt about people who are six years down the line of the fast-track procedure. The medical best practice guidelines need to ensure that people adequately comply and have the capacity to do so, and that there is a certainty, as far as there can be, about the symptoms that doctors may rely on. Those are always difficult areas, and the fact that there will later be recognition to meet the human rights needs of the individual does not change that. So, the arguments that we have had about the role of relatives in issues to do with treatment are not new but long-standing.

Mr Huw Irranca-Davies (Ogmore, Labour)

The hon. Gentleman's experience in the medical profession will be much greater than mine, which is negligible. Will he give us some idea of what happens when an individual makes their highly emotionally charged decisions? When are

questions on the far-reaching repercussions on their lifestyle and their family, for example, put to them? I assume that they are asked at that early stage because such a holistic decision needs to be made.

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

I do not want to extend the debate too much. I am not an expert in the area, but as I understand it, the decision to treat is based on the individual's full understanding of and insight into the decision's impact. Of course, many individuals present with that understanding, because they have been living with the condition for some time and see the treatment as a solution and not as potentially causing problems.

The point that I was making was that, where there is some information to suggest that the patient does not have adequate capacity or compliance or, indeed, that the symptoms are not as the patient describes, things are difficult. 'Twas ever thus in medical decisions that a relative says that something is not true and a patient says that it is. Sometimes one can try to seek independent evidence, but it is difficult to rely on third-party testimony, particularly that which may be biased because of emotional links, and particularly given the sensitivities and moral reasons that many people cite to judge that. So, it is a difficult area of medical treatment. However, once a person reaches the stage of a panel, it is rather late for relatives' views, which may be based on good or bad reasons, to be given centre stage, as the amendments propose.

Mr Andrew Selous (South West Bedfordshire, Conservative)

I want to be clear about what the hon. Gentleman is saying. Is he advocating that family members, howsoever defined, should provide evidence at the point when treatment is given? I wonder whether through him I could ask the Minister to respond to that point? Given the apparent concern about some of the fast-tracking, this is a very important area.

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

I am not suggesting that such evidence should be a normal part of the medical process. A patient sees a doctor, and where that patient has capacity and is not a child, there is no reason why a third party should be involved. Sometimes there are issues of judgment and professionals with experience may well have concerns about capacity for compliance and the facts of the symptoms. I believe that that will be rare, but it is a matter for professional judgment.

Decisions to treat must be defended on the basis of the contemporaneous medical record, investigations, full history-taking and examination, but I do not think that in this area of personal medical treatment or the other one that I used as an exemplar there is a role for families' direct right of access to the doctor-patient relationship. As I said, there will be occasional cases in which the doctor may seek consent of the patient, which is required, to obtain further information. If that consent is denied, the doctor can take that into account, because he cannot be forced by a patient to treat if he has such suspicions. However, those difficult areas are not for the Bill. We must therefore separate treatment issues from accessing human rights.

The Bill requires the panel to take a view on whether the person has lived in the acquired gender throughout the period, and I accept that that opens up the debate. I have not said that we should not debate the

amendments in the context of that requirement; nor do I seek to consider how we define the family. The hon. Members for Daventry and for South-West Bedfordshire have both conceded that those are complex areas and that we ought to debate the principle before considering the practice. I shall listen with interest to the Minister's description of the family's role in the judgment and, because I am more than happy to be tentative, I hope that he will accept that there is something in what I said about the autonomy of the person, both in seeking treatment and in the individual nature of their application for recognition of their human rights.

Mrs Angela Watkinson (Upminster, Conservative)

I have listened carefully to the hon. Gentleman. I do not know how often it happens, but it occurs to me that some who wish to undergo the treatment may be married or may be women who have children. The lives of spouses and children would be affected profoundly by the course of treatment. When the person embarks on the treatment, their spouse may decide that, because they have been together for a long time, they can cope with such great change in their lives. Then, as the treatment progresses and time passes, they reach a point at which they decide that the situation is intolerable after all. Does the hon. Gentleman accept that there is a profound effect on the lives of family members whose spouse or parent is changing gender?

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

Order. That was a long intervention.

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

The hon. Lady makes an important point, but the question is already difficult because there is no right for relatives to have access to such discussions unless they are directly affected themselves by other issues on which we are not touching—for example, if their lives are in danger because of a contagious disease. Clearly, if there is a family, the best practice for doctors is to ask whether relatives have been involved. If the patient says, ''No, I am doing this on my own and they are not to know anything about it'', that will be taken into account by the treating physician, but there is no right under the terms of confidentiality, except in prescribed circumstances, for doctors to go beyond that. However, they can refuse treatment if they feel that there is something wrong or the thing may not be sustainable. That is the way to deal with the matter. It is not appropriate to give some automatic right to third parties—not even to those with a strong emotional tie—to override medical confidentiality or the autonomy of the individual.

Mr Tim Boswell (Daventry, Conservative)

I am grateful to the hon. Gentleman for the way in which he framed his argument. It is absolutely clear to all members of the Committee that the best practice is the full involvement of members of the family, with the consent of the applicant. The hon. Gentleman has been making a case, based on his own experience, about treatment. Would he care to reflect on the fact that if one takes the logic of his position, which is that decisions around treatment are confidential to the individual and the doctor, it is at least questionable whether it is necessary to have the

whole medico-legal procedure of the gender recognition panel thereafter? The cardinal decision appears to have been the one to treat in the first place.

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

I think that I am heading that way, and that is why I will be interested to hear how the Minister wants to deal with the issue of ongoing treatment on the basis of presumed compliance with living in the gender and people wanting the application opened up to third parties. Third parties may have the best of intentions, but sometimes because of baggage, which we all have, they seek—I do not want to use the term too judgmentally—to sabotage the process. Where does the panel go? It will be interesting to hear what the Minister says, and at the risk of any further interventions, I will sit down.

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

Let me start by saying that one would expect the interests of family members to be taken into account by the transsexual person during the transition process. I also want to put matters into context. There are relatively few transsexual people in a family relationship and even fewer with children, but it is important that their interests are heard when such a fundamental change has such a significant effect on family life. That was where the hon. Members for Upminster and for South-West Bedfordshire were coming from.

Mr Tim Boswell (Daventry, Conservative)

I am sorry to interrupt at an early stage but I would like to unpack the phrase ''We would expect''. Is the difficulty with the amendment not about whether ''expect'' means the expectation of a course of events that will normally happen because the applicant will wish to involve their family, or is it expectation in the legal sense, in which there will be a presumption that involvement has taken place? Is that not the real difficulty with which the Minister and all of us are wrestling?

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

Well, let me explain how the provision will take shape. Often the impact is managed successfully and family members are at ease with the transition, however difficult it is. It is also important to emphasise that the standards of care used by medical professionals in the field reiterate the importance of family involvement in the process—to which the hon. Member for Oxford, West and Abingdon alluded, although he was firm about treatment. Section 9 of the Harry Benjamin standard of care during real-life experiences advises that professionals should discuss all the consequences of the change in gender for their family and work colleagues.

The panel will wish to see evidence from family members to ensure that the criteria in the Bill are satisfied. I alluded to that on Second Reading as did the Minister in another place.

Mr Andrew Selous (South West Bedfordshire, Conservative)

Will the Minister give way?

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

I wish to make some progress to extend that point. Clause 2(1)(b) requires that a person may not be issued with a gender recognition certificate unless the panel is satisfied that he or she has lived in

the acquired gender for two years. If they have lived in that way, it will of course be known to family members and talked through with them. Therefore, one would expect that one of the most persuasive pieces of evidence of living in the acquired gender for two years that a person could submit is evidence from a family member.

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

The Minister uses the term ''family'', and I question whether that is appropriate. In cases where, not surprisingly, there is estrangement, the family may know nothing about the transition. I understand that the panel needs to be satisfied and to obtain evidence from someone who knows the applicant, but, as in the case that I have mentioned, such evidence is likely to come from someone much better placed than the family, regardless of how they feel. I wonder why the word ''family'' is being used instead of the term ''a person with the ability to give evidence on that issue.''

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

In many cases, if the person concerned has had a spouse and children, it will be a family member who can provide the evidence. I also acknowledge that, as the hon. Gentleman suggested, there will be transsexual people who are estranged from their families, and the family may not be able to give the evidence. It is right for the panel to know of that estrangement and to inquire into how it arose. It is relevant to the gender dysphoria to know how long the applicant has lived in the acquired gender and the degree of permanence. It is also important that those circumstances are acknowledged and that people are open and honest about their relationships and how long they have been in that situation.

In the context of this small area, there will be people with families who are able to go through the transition, and the families will be able to provide the evidence in support of the criterion of having lived in the acquired gender for two years, or of the permanency test. That is when family and friends can have big influence on whether the person really intends to live permanently in that gender—we had a long debate this morning about reversion. That involvement is via the two years, and also the permanency test.

Mr Andrew Selous (South West Bedfordshire, Conservative)

The Minister said that the panel would wish to see evidence. In the context of my amendment No. 39, does he believe that the applicant's family should have the right to offer evidence?

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

In short, no. The panel will need to look at the medical condition of gender dysphoria; what the hon. Member for Oxford, West and Abingdon said was helpful in that regard. As for the permanency test and whether the transsexual person has lived in the acquired gender for two years and beyond, family, friends and people known to the transsexual person can play an important role. A transsexual person who is in a relationship would be expected to have disclosed that fact on the application, and the panel will, appropriately, listen to family members, but that cannot be a bar or a veto affecting

the gender recognition certificate. It is a piece of evidence that it is appropriate for the panel to consider, but it cannot be a bar or a veto.

Mr Tim Boswell (Daventry, Conservative)

If a gender recognition panel became aware of evidence from a family member, which may have been tendered unsolicited and even unknown to the applicant, would it be under an obligation to consider that evidence? I am referring not to the quality of the evidence or the weight to be given to it, but to whether the panel would be expected to take notice of what had been sent to it by someone who might arguably be said to have an interest in the outcome?

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

Fundamentally, the Bill is about the right of a transsexual person to apply to have their acquired gender recognised by the appropriate authorities in this country, and the evidence of family members and friends is helpful in that regard. I would not want to tie the panel's hands or encourage third parties to feel that they could proffer evidence to the panel, or have a bar or veto on that decision, but a transsexual person who is in a family relationship should expect the family to have a say. The form will have sections that ask someone whether they are married, which touches on other issues that I am sure we shall go on to discuss.

As regards the other two planks—of permanency and having lived in the acquired gender for two years and beyond—the panel, quite rightly, will examine what family members have to say. The concern about the rights of a spouse or children is appropriate and valid, and was raised substantially in another place. I say to concerned Members that there are other arms of the state that form a nexus in this case. It is not just a matter for the gender recognition panel, but for the relationship with family law, ancillary relief and other provisions that are available for family members and spouses if there are problems. Of course, we know that there are often no problems, and spouses and children accept the transition.

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

The medical report will deal with whether the person has told the family, and the effect on the family. The panel needs to satisfy itself that the applicant has lived in the acquired gender and intends to continue to do so. Would the Minister agree that the assessment of third-party evidence in such a case is based not on relationship by birth but on the quality of the evidence? In other words, it is a question not of who gives the evidence, but of how well they know it. Evidence may come from family members, but it does not have to. If the Minister can agree with that, I shall agree with him.

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

I agree with that. My point is that the evidence must be relevant. The weight that the panel attaches to that evidence must stand alongside all the other pieces of evidence available to the panel. I have no doubt that the panel will primarily want to be sure that the diagnosis of gender dysphoria has been correct, so that it can go on to establish that that is the permanent state by means of the other tests that I have outlined.

As I have made clear, the Bill provides scope for family members to provide evidence for individuals applying afresh for recognition in the UK. Obviously, that pertains to applicants making applications from abroad, which the hon. Member for Daventry alluded to in his opening remarks. It may be arguable that evidence from family members should be taken into account if the panel's task were to decide whether it was in the person's best interest to have the acquired gender recognised, but the panels are not involved in making quite so broad a judgment. They are not paternalists who are there to do what is best for an individual. They are there to consider whether applicants pass the tests for legal recognition in their acquired gender.

In any case, I find it hard to imagine how it might serve someone's best interests to be denied recognition in the UK when he or she already has recognition overseas. That recognition would have been granted according to criteria comparable to our own. I hope that I have explained the nature of the role of family members and their proximity to the process, and also made it clear that they can have no veto or bar on the process.

Mr Tim Boswell (Daventry, Conservative)

I thank the Minister for his response to a fascinating and difficult debate. I characterise my amendments and my attitude to that line of argument as tentative. The Minister's response was delicate, but I realise that it must be, and that he does not want to fetter the panels in making their decisions. The cardinal issues will be what can be heard in evidence, what is relevant, and the weight that can be given to it. It may be difficult for the Committee to decide that now. Alongside such legal issues is the need to involve the family, and the fact that it may wish to have some measure of ownership of a difficult process. That must be balanced. I shall reflect on what the Minister has told us and the other points that have been made in our debate. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Andrew Selous (South West Bedfordshire, Conservative)

I am concerned about the Minister's response. In particular, there seems to be confusion between the ability, or as I would prefer to put it, the right to give evidence, and a bar or veto—

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

Order. Is the hon. Member about to say that he wants to press his amendment to a Division?

Mr Andrew Selous (South West Bedfordshire, Conservative)

No.

Question proposed, That the clause stand part of the Bill.

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

I see the difficulty of the hon. Member for South-West Bedfordshire: he wanted to respond to the Minister's comments, but the hon. Member for Daventry led on that group of amendments and was in charge of whether to withdraw or press his amendment. It is a question of order, and of who can intervene, but the hon. Member for South-West Bedfordshire may be able to catch your eye on clause stand part, Mr. Taylor, and make further points then.

I want to make a separate point on clause stand part, and ask the Minister to expand on subsection (4), which defines ''approved country or territory''. He was invited earlier to do so earlier, and it will be relevant to clause 21. Can he explain how he envisages the concept of the ''approved country or territory'' being developed, how quickly he thinks a list will be made, what consultation he expects to have with affected parties and, beyond the affirmative process—I understand that the affirmative process will apply—what bodies of expertise he expects to consult before producing that list? Why cannot that approved list be given more status, so that people who have had their change of gender recognised by a country whose arrangements we approve do not have to go through the process again?

At the moment, the bizarre position is that some people from European countries who have had their change of gender recognised are able to access certain rights; indeed, the Department for Work and Pensions often recognises that, for example, they are married in their new gender. It seems to me that unless the Minister can use that approved country or territory provision more widely than he currently envisages, there will be some backward movement for some nationals from certain European countries. I hope that I have now explained the position satisfactorily, because I do not wish to hold up the Committee.

Mr Tim Boswell (Daventry, Conservative)

I shall respond first to the point made by the hon. Member for Oxford, West and Abingdon. It is in the common interest to get on with producing a list, and by implication, to be ready to revise and expand it as soon as possible to other countries that have approved gender recognition.

I want to make one general point on the clause, to reinforce a point that I made during an intervention on the hon. Gentleman earlier. My belief is that it is wise to have a double lock on the system of gender recognition. The first lock—it is entirely proper that it should be so—is the medical judgment of the specialist concerned, who is prepared to accept a person for gender reassignment, possibly leading to surgery. That is clearly a medical judgment and should not be second-guessed by us, although it is appropriate that members of the family should be involved in that decision and able to tender evidence if it is relevant. I do not think that that is in contention.

Where I might be slightly at odds with the hon. Gentleman's point is that I sense that the Minister requires—I think that the logic of the Bill requires this; and I certainly require it—the additional assurance of the procedure involving the panel and a gender recognition certificate being awarded. That is not purely a medical matter; it is also a medico-legal matter. The Minister is nodding. It will involve, if not lay persons, as was debated earlier, at least lawyers, who will bring an ordered mind to the matter and will also in a sense stand in on behalf of the general public and ensure that doctors—I have no reason to argue

that doctors will not act in the best interests of all concerned and the truth—are given some check and balance. The Government have reached the right balance on an excruciatingly difficult matter.

I leave the Committee with the point that came up in extenso in our recent debate on the amendments and implicitly in relation to some other matters: the availability of the maximum possible relevant evidence and the way in which that is brought forward and assessed by the panel will be critical. Understandably but unusually, the hearings will be in private—if indeed there is a hearing and not merely written representations—and it is therefore incumbent on us to ensure that the decision is not rushed, that it is taken with the maximum possible information about the facts, and that anyone who has an appropriate contribution to make, which can be made confidentially, is able to make that as part of the deliberations.

I support the clause as it is, although the debates that we have had about the various amendments have been useful in clarifying it.

Mr Andrew Selous (South West Bedfordshire, Conservative)

I asked the Minister earlier whether he would indicate the extent to which he believes that the family should have the right to be involved at the point of treatment. Perhaps he could write to members of the Committee about that. I raised the question earlier and I do not think that he has had a chance to deal with it specifically.

The Minister seemed to imply that if the family were involved in giving evidence, there would automatically be a bar or veto on the process. That is not a fair representation of the points that I have made so far in the debate.

The route that the Minister has gone down will lead to more trauma and upset on the part of those closely involved—the family and close friends of those undergoing gender change—in that they will feel that they have been excluded and locked out from even giving their view on the process.

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

I say to the hon. Member for South-West Bedfordshire that when I talked about the standards of care that are generally used not only in this country but across much of the European and western world—the Harry Benjamin standards—I thought that I mentioned that they are about genuine engagement with the family, where there is one.

On the point raised by the hon. Member for Oxford, West and Abingdon, I cannot add much to what I said this morning. We have begun researching the recognition systems that other countries have in place. There is a lot of information to gather and get through. We are in correspondence with various embassies and consular offices throughout the world as we gather that evidence. Should the Bill be enacted, we expect shortly thereafter to lay before each House an order containing the list of approved countries. As I suggested this morning, we have to be sure that those countries on the initial list have standards as rigorous as our own. It may be fair to say that countries that require surgery and permanence—we talked about

why we do not require surgery—might be on that initial approved list, but we must consider all the circumstances.

Mr Tim Boswell (Daventry, Conservative)

There is a degree of reciprocity that may be difficult in the case of countries that require surgery in relation to our nationals who go to those countries. I appreciate that we are not legislating for that circumstance at the moment, but will the Minister reflect on whether any rights will be attached to those persons—this may surface in other debates—if they have a gender recognition certificate in this country and are resident in countries where surgery would have been a requirement for the nationals of that country?

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

I do not want to get into matters of private international law to which we alluded, and the clear fact is that we are not yet at a stage where we can talk about parity, even across the European Union. That is the great difficulty, but I suspect that our attempts, and those in the rest of Europe and the world, will mean that we reach parity in due course.

I hope that I have set out how the selection will take place. The Bill contains criteria for granting recognition in the acquired gender. To go on the list, a country will need criteria as rigorous as those in the Bill. We have had a good debate on clause 2 and I hope that we can make progress.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.