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

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

Amendment No. 43, in

schedule 4, page 26, line 34, at end insert—

'(3) A registrar of births, marriages and deaths is not obliged to solemnise the marriage of a person if the registrar reasonably believes that the person's gender has become the acquired gender under the Gender Recognition Act 2004.'.

Amendment No. 45, in

clause 22, page 9, line 37, at end insert—

'( ) the disclosure is made within the context of a recognised religious body for the purpose of maintaining its procedures, practices, ethos and beliefs.'.

New clause 5—Religious bodies—

'Nothing in this Act shall prejudice the rights of individual recognised religious bodies to regulate their procedures and practices in accordance with their ethos and beliefs.'.

Mr Tim Boswell (Daventry, Conservative)

To date, the Committee has been characterised by a degree of temperance in its discussion of these difficult issues and also by a degree of sensitivity to the individuals involved. I do not think that anybody has paraded partisanship of either a party or a denominational nature. As far as I am concerned, long may that continue.

In relation to the Christian faith in particular, it is clear that there are sincerely held views on both sides of the argument about whether the Bill is acceptable in principle. There is also a good deal of concern about the practicalities of its operation. My hon. Friend the Member for South-West Bedfordshire (Andrew Selous) has performed a service to the Committee in bringing forward his concerns frankly with this group of amendments.

It is particularly germane to the clause to declare my personal interest: I am a practising Anglican. My wife and I were married under the rites of the Church in

Wales, because she comes from Wales. My mother-in-law, who is still with us, successively married two clergymen of the Welsh Church. After the death of my wife's father, her stepfather, who, sadly, is no longer with us, solemnised our marriage in Wales. I am sorry that the hon. Member for Ogmore (Huw Irranca-Davies) is not here this morning, as he was taught by my mother-in-law at school in her spare time from those other involvements. I am sure that both benefited from that. His contributions in Committee have been positive. I mention that because I have both an Anglican and, specifically, a Church in Wales interest in the matter.

Two general points lie across my hon. Friend's amendments. I have been reflecting on them over the weekend. The first is that there can be no absolute licence in the Bill for ministers of religion or anybody else. I do not wish to caricature my hon. Friend, because he is not asking for that. Indeed, the Minister will remember that, on Second Reading, I decided to trawl back to my extremely limited memory of Hardwicke's Marriage Act 1753, in which Parliament imposed severe penalties on the clergy over the regulation of marriage. Saying, ''I am a clergyman''—or a minister of any faith or denomination—''and I wish to do exactly as I think fit'' may be true under God, but it is not necessarily true under the law. I do not think that it would be reasonable for us to expect that.

That is, of course, subject to an important caveat. I think that it is a general principle of all members of the Committee that we should not restrain the exercise of people's sincerely held, faithful beliefs or the practice of their religion unless there is an absolute or overriding reason to do so. We should not put them in difficulty because of views that they hold or responsibilities that they assume under that religion. The Minister will know the European convention on human rights better than I, but I am sure that if we were to restrain religious practice, we would get into difficulty under another Act.

It is not unthinkable that Churches must be regulated under the law. Indeed, that point almost came up during the debate about the conduct of Churches, and the Minister will be familiar with it. There have been some problems with accountancy—which is not a matter of faith—in some of the charismatic Churches. Those have, quite properly, had to be dealt with under the law. Clearly we should allow people, particularly ministers of religion, doing their job in good faith and decently, as much opportunity as we reasonably can to carry that out.

My second point—again it is not intended to subvert my hon. Friend's argument, but to qualify it—is that it is quite difficult in law to stop people suing other people. As constituency Members of Parliament, we are familiar with somebody writing to us and assuming that we will immediately promote a case for them in the European Court of Human Rights about some aspect of their human rights. If that is unpacked, it is shorthand for saying, ''I've had a rough time and somebody ought to put it right for me. I think I know

my rights.'' One may or may not. Simply finding a public interest body that wants to promote such a case is quite difficult, expensive and fraught.

I am not asking the Minister to guarantee that under the Bill there will never be litigation against Churches, denominations or ministers of religion. It would be difficult to sustain that argument. However, we can quite properly ask him for assurances that ministers going about their work in good conscience and good faith, and in the interests of their parishioners, will not find themselves in unreasonable difficulty. That is why, particularly given the correspondence that I suspect all members of the Committee will have received from constituents and others, and the concerns that have been expressed by my hon. Friend, we need to look long and hard to determine whether a balance is struck and to check that people will not be unfairly penalised for doing their job or following their conscience. There must be a specific reason for them to be penalised.

Having reviewed my hon. Friend's amendments, I find my enthusiasm for them unequal. However, the points that he makes are all very serious and need handling. If the Minister cannot respond to them now, we may need to respond to them at a later stage—indeed, sadly, the last stage—to try to get this right. I accept the Minister's good faith. Clearly, he wants to get things right. As he knows, I support the general principle of the Bill, and I hope that he deals with this matter.

There is one other point that should inform everybody's consideration of the issue. It has been made strongly in my representations. People, including members of faith communities, strongly want to welcome transgendered individuals. They wish to extend Christian charity to them and to treat them properly.

Having made those general remarks, I turn specifically to my hon. Friend's amendments. Amendment No. 42 is about the clergy's obligations to marry people. I want to deal with two matters. There appears to be an asymmetry between the reliefs for the clergy in the Church in Wales, and those for the clergy in the Church of England, which remains the established Church. It appears that a clergyman in the Church of England is relieved of his obligation, which I understand is under public law—the Minister is nodding—to solemnise the marriage of a person if he

''reasonably believes that the person's gender has become the acquired gender under the Gender Recognition Act''.

However,

''A clerk . . . of the Church in Wales is not obliged to permit the marriage of a person to be solemnised in the church or chapel of which the clerk is a minister''.

That wording is clearly carefully considered and appears to have a slightly different effect.

My understanding is that English clergymen—I hope that I can use that shorthand, although there will be many clergymen who have come across the border; clergymen can transfer throughout the Anglican communion, as the Minister well knows—are relieved under the Bill of their obligations under public law to marry some people. The issue arises of the church, of

which one might be the incumbent or the priest in charge, where the marriage might take place. It seems that there is a possible advantage or greater flexibility for Welsh clergy in their practice over the border. An English clergyman would be able to say, ''I'm sorry. I cannot in conscience marry you.'' He may also say that to persons who have been divorced, but that is a separate issue. A Welsh clergyman might be able to say, ''I am not going to marry you, but I am also going to make sure that my church cannot be used for your marriage.'' I can envisage some difficulties of Church order in relation to that distinction. The Minister will be aware—I mean our Minister, the hon. Member for Tottenham (Mr. Lammy). I had better say that for the avoidance of any confusion.

Mr Andrew Selous (South West Bedfordshire, Conservative)

Give him a dog collar.

Mr Tim Boswell (Daventry, Conservative)

I know that the Minister used to be a choirboy in the cathedral in my constituency, so there are lots of connections in this debate. I shall now get back to the point. In England, someone may not permit a marriage that they would have to carry out, but may not be able to prevent a marriage from taking place in their church.

The Minister knows that in some parishes in England—one is near where I live—there are strong reservations on the quite separate issue of women priests. There is a particular view about Church order and practice—I am talking about the Anglican Church. Those parishes may not wish to have Church order disrupted behind the incumbent's back, as it were. It is important for the Minister to explain the basis for that apparent distinction. Why is the apparent advantage extended to the Welsh clergy not extended to the English clergy? Is there no material difference?

Mr Andrew Selous (South West Bedfordshire, Conservative)

I should like briefly to illustrate my hon. Friend's point. On Sunday, I was talking to a Church of England clergyman at a church in Fulham. His response was that he would generally welcome transsexual people into his church, and I was delighted to hear that. On telling him that he would not have the power to prevent the marriage in his church of two people that he and his congregation believed to be of the same sex, he became very distressed. He was very unhappy about that provision. There is a lack of understanding of what the Bill entails among the clergy of the Church of England. Once it is explained to them, there will be considerable concern for congregations.

Mr Tim Boswell (Daventry, Conservative)

My hon. Friend encapsulates the concerns of the debate. As I have made clear on previous occasions, including on Second Reading, for the Bill to succeed in its objective of helping transgendered people, it is important that the maximum degree of public acceptability and welcome is achieved, and that concerns are properly dispatched. I say to the Minister in all seriousness that there appears to be an unevenness in the provisions. I have

examined advice from ecclesiastical lawyers on the matter. They are concerned about the matter, too, and it needs clearing up.

There is the wider issue of the obligations of ministers and what they are allowed to do in the conduct of marriages. My hon. Friend has cited the remarks of the right hon. Member for Blackburn (Mr. Straw) while Home Secretary, which might have given rise to the suggestion that marriages performed by religious ministers were generally public duties, subject to public law. The Minister will no doubt remind the Committee that the legislation does not bite on goods and services, but it might do so if there were an overriding public obligation. Indeed, he has had to exempt Anglican clergy in England or Wales because there is a public obligation under public law.

Will the Minister confirm that it is the Government's view that all ministers of religion—non-conformist ministers, Roman Catholic priests and ministers of other faith communities—have no obligation to marry two persons, one of whom is transgendered, if they in conscience do not wish the marriage to take place? It is a private decision, with which I do not agree, but it is important that the individual should have that right. It is important because of what the then Home Secretary said and the general state of uncertainty in the law on the matter.

A related matter concerns the questions that a minister is entitled to ask when preparing persons for marriage. When two persons present themselves for marriage, I take it that the minister is entitled, either on an impression that he has formed or on unprotected information that he has received, and obviously if the parties talk about it, at least to ask, ''Is either of you a transgendered person?'' We will come to the disclosure of protected information, but I understand that he is not entitled to disclose it to other people, but can say, ''Before I marry you or even consider marrying you, I need to know whether one of you is a transgendered person.'' It would be helpful if the Minister clarified that on the record.

I am probably anticipating the point that my hon. Friend will make, but the situation becomes more difficult if persons are dishonest or refuse to reveal information and the minister is not aware of it. No moral blame should be attached to clergy and they should not reproach themselves, but it is not a matter for law or for the Committee.

My hon. Friend's amendment No. 43 encapsulates a separate issue about the duties of registrars. The Minister is aware that registrars operate under civil law, and it would be impertinent and inappropriate of me to suggest that they do not have to have a conscience, but their job is to carry out the requirements of civil law whatever their personal faith may lead them to do. In carrying out those requirements, their personal faith may not always be coincident with their legal obligations as a registrar.

I can imagine a registrar having strong reservations about divorce; I can imagine no situation in which a registrar could carry out civil duties by refusing to conduct civil marriages for divorced persons.

However, the area under discussion is more specialised; it is one in which we must establish public acceptability to the full.

I have corresponded with the Society of Registration Officers over the concerns expressed by the right hon. Member for Swansea, East (Donald Anderson) on Second Reading about registrars who might find themselves in moral difficulty when conducting or being asked to conduct a marriage involving a transgendered person. I have not received a response from the society; I might before Report but the time scale has not made it possible to get a formal response yet. I hope that the Minister will assure the Committee that he will consider the matter and that, if there were a conscientious objection, arrangements could be made for an individual registrar to stand down without incurring disciplinary action. That would provide, dare I say it, a third way between my hon. Friend's amendment and what is implied in the Bill.

Amendment No. 45 is about the disclosure of information. I shall stand back at this stage—I am sure that the Committee will be relieved—and reserve whatever I may want to say for a later clause. I shall not engage on the matter now, except to say to my hon. Friend that the best of all situations would be one in which individuals were prepared to give consent for release of the information. That is the overriding position. Things would be much easier all around. I understand the sensitivities, but, even within private deliberations, there must be some consideration of the extent to which information may properly be released and an understanding of the basis on which consent is given.

I shall reflect on what the Minister says on new clause 5. As I said at the beginning of my remarks, there cannot be absolute absolution—if I may use that phrase—in civil law for the practices of faith communities. They certainly have obligations in respect of acts of discrimination and a moral duty to welcome individuals as individuals, whatever their status or legal gender.

Nevertheless, in anticipating the Minister's reply, I stress that he must show sensitivity to the issue, which has generated a great deal of correspondence and concern—and, perhaps, some misconceptions. We must satisfy and put at rest those concerns before concluding our deliberations. I hope that faith communities will be allies in the decent treatment of transgender people and that we can avoid the creation of hard cases, which would make such a process more difficult.

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

This is an interesting group of amendments, and we should welcome the fact that the hon. Member for South-West Bedfordshire raised the issues. It is only right that this House should debate them, even though they are controversial and raise people's hackles. The hon. Gentleman should be applauded for tabling the amendments and for the style in which he discussed them. I profoundly disagree with him, but I strongly support his right to fight his corner.

Amendment No. 43 would provide an opportunity to a registrar whose job it is to conduct civil marriages not to do their job. That cannot be allowed. It is their job to conduct civil marriages. On that basis, as the hon. Member for Daventry (Mr. Boswell) said, registrars could be allowed not to perform a civil marriage for people who although lawfully permitted to marry have been divorced or if he believes that they have had sex before marriage. It is not right for the hon. Member for South-West Bedfordshire to make a distinction between those conditions, as the principle is the same. Registrars must do their job. We are talking about civil marriage. If a registrar wants to marry people only after making judgments about their history, he should get involved in religious marriages—not civil marriages, which are part of the job of the state. My hon. Friend the Member for Teignbridge (Richard Younger-Ross) agrees with that and has provided me with information to help me make this point.

The hon. Member for South-West Bedfordshire drew an analogy between the opt-out that he proposes for registrars and that of doctors on abortions, but there is a difference. Basically, the only job of a registrar is to conduct civil marriages. If they refuse to do that, they refuse to do their job, whereas doctors who might be asked to perform abortions do other jobs for the NHS. Abortions are unlikely, almost by definition, to be a significant part of their job description. Therefore, the issues are different. I do not understand how the Government would be able to defend themselves against a claim of discrimination in respect of the right to civil marriage if people were put through hoops simply on the basis of their transgendered status. The case for amendment No. 43 has not been made at all.

Amendment No. 45 is about disclosure. Clearly, disclosure would be allowed if consent were given for it. That is the point that some of us were seeking to debate with the hon. Member for South-West Bedfordshire. Otherwise, it is absolutely right, as with my analogy about the abortion history of someone who was talking to their priest or minister, that people expect confidentiality in personal matters involving their medical history or, indeed, social history. If anything, the tradition of the confessional is that people expect greater confidentiality than in many other circumstances. It would be astonishing if the law provided for a breach of that confidentiality without consent in these of all circumstances.

Mr Andrew Selous (South West Bedfordshire, Conservative)

I do not expect the hon. Gentleman to agree, but does he at least accept that if, in a wedding in a religious congregation, the minister was aware that one party to the marriage was a transgendered person but the other party was not so aware, the minister would have a strong moral obligation to reveal that? That may be far-fetched, but I refer to the case of Sam Kane. Hon. Members are familiar with it, so I shall not go into the details but they will realise that such circumstances could arise.

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

No, I do not think that it is the job of a clergyman to do that, and I am not keen to go down that path. The hon. Gentleman is free to challenge the Minister on that.

There are many presumptions, but a doctor is allowed to breach confidentiality only when someone else's welfare is likely to be seriously damaged, as when people propose to drive when they are not fit to do so, or when there is a significant threat to the health of someone in the household—and even then the representation must be made to the person concerned rather than to a third party. The hon. Gentleman cannot found his case even on the specifics of the example that he gave, and I do not think that he could make a wider case for permission to disclose on the basis of that example, which is questionable in and of itself.

The drafting of new clause 5 gives it own answer. It states:

''Nothing in this Act shall prejudice the rights of individual recognised religious bodies to regulate their procedures and practices in accordance with their ethos and beliefs.''

Legislation always prejudices the rights of people to act as they wish. The Race Relations Act 1976 prevents people who might claim that their religion permits or requires them to discriminate on racial grounds from doing so. The principle is that plenty of Acts

prejudice the rights of individual recognised religious bodies to regulate their procedures and practices in accordance with their ethos and beliefs.''

I said earlier that a balance must be struck. I believe in laissez-faire; there must be good reason to interfere with an individual's religious practice. Protecting the rights of others and preventing them from being discriminated against in their own rights of association or access to religious belief or civil rights is one of those areas.

Mr Andrew Selous (South West Bedfordshire, Conservative)

I am sure that the hon. Gentleman will accept that, as a member of the Conservative party, I am terribly discriminated against by not being able to apply for a job at the Liberal Democrat party headquarters. I am rightly and properly discriminated against in a way that I and all of us accept in the context of political parties. Why should there be favouritism elsewhere? I would have thought that the hon. Gentleman, of all people, believes that religion is a private matter. Is he not becoming heavy handed with the law in that respect?

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

The hon. Gentleman uses an example about employment. There are specific provisions concerning employment discrimination which allow for protection on grounds of genuine vocational qualifications. I do not know where political parties come into that, but in terms of religious bodies the new regulations are very clear. Religious bodies are entitled to discriminate on the grounds of religion only when there is a genuine vocational reason for someone to share religious beliefs to work in that area. It is a controversial area and I do not think that the

Government have got the balance right, but at least we are having the same debate. I do not think that the hon. Gentleman is having the same debate.

I hope that I have dealt with the point that there is a balance in every setting. We do not tolerate room for manoeuvre when it comes to racial discrimination, but we tolerate some room for manoeuvre when it is felt that there is a genuine vocational requirement for a specific set of beliefs. The statement that

''Nothing . . . shall prejudice the rights of individual recognised religious bodies to regulate their procedures and practices in accordance with the ethos and beliefs''

is wrong in the context of accessing civil rights and, indeed, the right of association. There should be a presumption, but there should also be specific grounds when it is wrong that they should be entitled to discriminate in so doing. A balance must be found, and I think that the Bill gets the balance about right, although I have some reservations about the terminology of the schedule.

Amendment No. 42 would give a Church of England minister the right to veto other ministers conducting a religious wedding. That would go beyond their own right to conscientiously object. It seems to me that that is wrong. If we accept that it is a personal matter for an individual, just because one clergyman does not want to conduct a wedding on the grounds of conscience, we should not give that clergyman the right in law to prevent another clergyman from carrying it out in accordance with their conscience in the same building.

The hon. Gentleman's concerns about the tainting of the building are not right—I apologise if those were not his words. In my constituency the Church owns a room that is available for hire to public bodies and the Church in question was happily hiring it out to a local lesbian and gay group working in support and training relating to HIV. At some point, a member of the congregation found out what was going on and complained to the elders or the council, which decided that that group would no longer be permitted to use the room. The group asked on what basis it was being discriminated against and the Church apparently said that the room would have been tainted by its use by that group of people the previous evening. The city council, rightly, decided to withdraw its block bookings of that room. We should not give permission in law for such discrimination to be permitted in the established Church. Disestablishment, which I and my party support, would deal with such problems in a different way, but we have an established Church. It has responsibilities and the law should not be changed to permit such block exemption.

I urge the Minister to reject the amendments.

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

As the Committee knows, the conscience clause in the Bill frees ministers of the Church of England and the Church in Wales from their obligation to solemnise the marriages of parishioners. The conscience clause applies when a minister of religion knows or reasonably believes that one of the parties to the marriage is recognised in the acquired gender. The

hon. Member for Daventry asked whether that permitted the minister to ask, ''Are you a transgendered person?'' The minister is free to ask that question. Indeed, there may be an application form on which he can ask it. I understand that that is the practice among many Churches; it certainly is in my own. However, the minister cannot then disclose that information to whomever he or she wishes. I shall come to that point later.

Mr Tim Boswell (Daventry, Conservative)

It would be helpful to the Committee—if not now, perhaps in correspondence before Report—if the Minister would further explain that matter. In clause 22(3), for example, it is not absolutely clear whether a clergyman, Anglican or otherwise, who asked that question would be performing a public office and therefore caught by the duty of confidentiality. I presume that the Minister wishes them to be.

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

I shall go on to explain those points.

Clause 11 does not refer to ministers of other religious bodies, as they do not have a duty to solemnise marriages and the Government do not believe that the Human Rights Act 1998 creates such a duty.

Mr Andrew Selous (South West Bedfordshire, Conservative)

We are going over old ground. The Minister knows that the Secretary of State for Foreign and Commonwealth Affairs disagrees with him. Lord Filkin and many lawyers advising Church organisations with whom I have been in touch say that there might be a duty. The Minister has an opportunity to get rid of real legal doubt this morning. I had hoped that he would think the matter non-controversial and would take this opportunity to clarify it.

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

I shall make some progress. The simple point is that the Bill is about gender recognition. It does not extend the law either way. If someone who is transsexual seeks to bring a claim against a religious organisation, their position will be the same after the Bill is enacted as it is now. Because of the religious exception, to which there has been vague reference, under the European convention on human rights—or article 9 of the 1998 Act as it has been incorporated—the Government do not believe that such an action would be successful. I may come to that later.

We worked closely with Church of England officials and the noble prelate, the Bishop of Winchester, on the clause. It was amended in another place to accommodate the concerns of the Church of England, which has assured us that it is not necessary to give their ministers the right to refuse to solemnise such marriages in their churches, to answer the point made by the hon. Member for Daventry. The protection has been given to the Church in Wales, at its request, but the Church of England has said clearly that it does not want it.

Let me read a section of a letter from the Bishop of Winchester to Lord Filkin, who is a Minister in my Department. It states:

''That is particularly important because I had hoped to have the opportunity to pay tribute to the very constructive and helpful way in which you and your staff have worked with the Church of

England over this matter. I know the staff at Church House would wish to be associated with this and would wish me to convey their own thanks.

We have been able to improve the Bill, in particular in relation to the duty of clergy to solemnise marriages where they reasonably believe that one of the couple has undergone the gender recognition certificate process under the Bill. The issues in this area have clearly been causing concern among clergy and others; I am to answer a question about it at the meeting of the Synod this week''.

We have made progress on the matter.

Mr Tim Boswell (Daventry, Conservative)

The Minister has confirmed my suspicion that there is a difference in operation of the terms for English and Welsh clergy. He has gone on helpfully to explain to the Committee that that is because they have made separate requests for protection. I would like to share with the Under-Secretary a legal opinion:

''Indeed it could be argued that by making a special concession to the consciences of Welsh clergy the Bill discriminates against English clergy and their congregations in terms of the Human Rights Act. There is no space to go into the issue in detail here, but again this anomaly in the Act seems to be sowing seeds for future dissent and unnecessary litigation.''

Would the Under-Secretary reflect further on the matter?

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

As I said, we discussed the matter at length with the Church of England and the Church in Wales because they have duties to solemnise marriages. The Church of England took a slightly different position on the point to that of the Church in Wales. Our obligation was to work with those Churches because they have legal obligations.

Mr Andrew Selous (South West Bedfordshire, Conservative)

I am now a member of a Baptist Church that is democratic, where power flows from the bottom up. The Church of England is not like that. It is hierarchical and very top-down in its structure. I wonder whether the Under-Secretary will reflect on the matter. The Church of England clergyman to whom I spoke on Sunday was very concerned. He was a good man, who wanted to welcome transsexual people into his congregation, but he was genuinely concerned on this point. I do not think that the Under-Secretary is reflecting on that. Why is he causing needless offence through the clause?

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

We are not seeking to cause needless offence. We are merely setting out the arrangements for those Churches that have legal obligations. I say to Christian communities—this point was alluded to this morning—that it has been suggested that other religious organisations could be sued under the Human Rights Act if they refuse to marry transsexuals. Of course the Government cannot rule out the possibility of challenges. Individuals are free to make those, but the Government have a view as to whether those challenges would be successful. It is our view that they would not be successful because of the effect of the Human Rights Act. The Act makes it clear that religious organisations should be able to rely on their rights under article 9(1) of the European convention on human rights, which provides that:

''Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.''

The issue is one of competing rights. Article 9 of the convention is clear. Someone challenging that would have to overcome that right, which is fundamental to the Human Rights Act, and would have to establish the position of a religious body as a public authority. For those reasons, the Government are satisfied that protection exists. The Government have also undertaken in their obligations to the Church of England and the Church in Wales to work with those Churches to ensure that provisions reflect freedom of conscience for clergy members.

Mr Andrew Selous (South West Bedfordshire, Conservative)

If one reflects on the Diane Parry case for one moment, legal opinion has it that the church in south Wales would not have won the case if the Bill had been law. At the very least, is the Under-Secretary not concerned that the limited funds of congregations throughout the country are going to be sucked away into lawyers' fees? They will not be doing the outreach work that they should be doing because of the legal minefield that is being opened up by the Bill.

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

The hon. Gentleman is not listening to me. The law is patently clear in this area. There are practical reasons for that, as well. We are talking about a small number of people. All Members in this House—certainly many have approached me—have people in their community who are transsexual in nature. I would have thought that all Members would describe them generally, as a group, as private people who have undergone a lot of agony and pain because of discrimination and prejudice generally in society. These are not groups of people who are in the business of wanting to take on faith communities. If—it is a big ''if''—that were to happen, I have set out quite clearly why I think that the hon. Gentleman misunderstands the nature of the laws as they stand.

Mr Richard Younger-Ross (Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions; Teignbridge, Liberal Democrat)

My understanding is that the right to marriage is a civil matter. Perhaps the Minister can confirm that. The right to religious marriage, however, is entirely different. There is a difficulty with the Bill because the Church is established and has a right to solemnise marriages. The clause is intended to help and we are being quite generous in saying that what this House deems to be the law we will allow a member of the clergy to disregard. Is that not a generous concession in that context?

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

The hon. Gentleman puts the point extremely well. That is what we are attempting to do where the Church has an obligation to solemnise a marriage. Where the Church does not have an obligation—the hon. Member for South-West Bedfordshire is concerned with Churches that find themselves in that situation—it has the ability to discriminate on the grounds of religion and

membership of the Church. It is unlikely in the extreme that someone would present as part of a Church, but then not want to subscribe to the rules, behaviour and conduct of that Church.

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 want to make some progress.

Mr Andrew Selous (South West Bedfordshire, Conservative)

Very briefly?

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

I want to make some progress, if the hon. Gentleman will forgive me, because I suspect that he will want to intervene later.

Amendment No. 45 proposes to permit disclosure when it is made

''within the context of a recognised religious body for the purpose of maintaining its procedures, practices, ethos and beliefs.''

Members of the Committee will appreciate that the terms in which the amendment has been drafted are incredibly broad. The amendment would therefore represent a huge erosion of the privacy of transsexual people and would make it possible for all sorts of people to argue in all sorts of situations that the disclosure that they made was

''for the purpose of maintaining its procedures, practices, ethos and beliefs''

of a religious body.

We also believe that the issues can be dealt with in other ways. I will take the example raised by the hon. Gentleman. Before a transsexual person is admitted to a Church, there may well be a discussion with the pastor. We would expect that, where a Church feels strongly about admitting persons who change gender, a person seeking to be part of that congregation would provide the pastor with that information. Indeed, the hon. Gentleman set out the circumstances in which he became part of the Baptist community in his constituency. If the pastor needs to pass that information on to other members of the pastoral team, he or she would surely seek the consent of the individual.

Disclosure of a person's gender history is not prohibited when it is made with the consent of the person to whom the information relates. The hon. Gentleman's example illustrates the point very well indeed: he met with the pastor and the information that he gave was passed on to elders in the community. Why? It is because he consented. I suspect that consent, understanding and dialogue are a fundamental part of the Christian experience. One would expect that in whatever denomination.

Mr Tim Boswell (Daventry, Conservative)

Will the Minister confirm that the transgendered individual would be able to set some bounds to their consent and specify some conditions to it, including the degree to which information could be released to individuals who needed to know about it? Will he also confirm that any disclosures outwith that specific and confined consent would then and only then constitute a breach of confidentiality?

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

That is absolutely the case. My belief is that in practice the situation will not occur. I suspect that the transgendered person would expect professionalism and discretion from the pastor, priest

or vicar to whom the information was disclosed and that the clergy would exercise the use of that confidential, private and important information in a discreet and sensible manner. So, in practice I do not think that the issue would arise, although consent is important.

I have absolutely no doubt—in fact I know it to be the case—that clergy come across confidential, very important, delicate information every day in their communities and exercise tremendous discretion when passing it on. That is my experience of people of faith—men and women who lead their communities across the country—and I have no reason to believe that there would be any difference in the circumstances under discussion.

Mr Andrew Selous (South West Bedfordshire, Conservative)

I understand what the Minister is saying and I agree with most of it, but will he explain how the Bill relates to the rights of someone whom a transsexual person was to marry? Would a minister of religion or a clergyman be entitled to tell that person that they were aware that their intended spouse was of a different sex? It is relevant because in the case of Samantha Kane we read that she had five lovers and did not tell any of them that she used to be a man. I admit that it is a fairly unlikely situation, but it has happened. The Minister has spoken about the rights of the transsexual person, but we would all agree—

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

Order. Interventions are getting longer and longer.

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

In the hon. Gentleman's example, the minister would not be able to disclose that information to the intended spouse. I see the hon. Gentleman smiling, as if the point has already been illustrated, but I will tell him what would happen because it is very important. The minister could speak to the transgendered person and refuse to conduct the marriage. The Bill affords the intended spouse some protection because paragraph 5 of the schedule provides for the annulment of the marriage if they enter into it without knowing that their spouse had changed gender. Fundamentally, we expect that one spouse would reveal such information, so, as the hon. Gentleman said, the situation is highly improbable.

Dr Lynne Jones (Birmingham, Selly Oak, Labour)

Does my hon. Friend agree that disclosure of personal information is relevant if one is embarking on a lifetime's relationship? The likelihood of a relationship surviving if such fundamental information is not disclosed is remote. The Bill makes provision that, if somebody is not given that important information, and they marry, the marriage can be annulled. Disclosure in casual relationships is irrelevant.

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

My hon. Friend puts the point extremely well and I entirely agree with her.

Mr Richard Younger-Ross (Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions; Teignbridge, Liberal Democrat)

The question posed by the hon. Member for South-West Bedfordshire expresses tabloid fears and must be hit firmly on the head. I cannot imagine a minister, from any church, allowing such a situation to proceed. Ministers talk to people prior to marriage. They would say to them, ''You need

to speak to your partner. You need to explain your history. Until you do so, I will not allow the marriage to go forward.'' It is clear what the duties of the clergy would be. They would not have to break the law and could resolve the issue by other means.

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

Absolutely. As I said to the Committee, it may be the case—it certainly is the case with some faith communities—that there is an application form that the couple presents in order to get married. Some Churches ask for a baptism certificate. There are many ways in which clergy can seek to ensure that the bond between the partners is a sound one and that the integrity of the process and the beliefs of that faith community are upheld.

The concern underlying new clause 5 is that the Bill will compromise the freedom of religious organisations. Our strongly held view is that it does not do so. Throughout the Bill we have tried to strike a balance between the legitimate concerns of Churches and the need to protect the rights of transsexual people. That is not an easy task. Churches do not speak with one voice on the issue. We must be clear and honest about that.

I say to the hon. Member for South-West Bedfordshire that the new clause seeks the right for religious bodies to regulate their procedures and practices according to their beliefs regarding the transsexual community. Clearly there are underlying concerns that the Bill will compromise the freedom of religious organisations to restrict the participation of transsexual people in religious activities or restrict their access to facilities. The question whether a religious organisation ought to exclude transsexual people from participation in religious activities must, at heart, be a moral one. I suspect that our views on it may differ. There might not be much scope for agreement. At the end of the day, that is a moral determination for the particular faith community.

However, the Government can say clearly that the Bill does not extend anti-discrimination protection for transsexual people. The hon. Member for Oxford, West and Abingdon (Dr. Harris) suggested that in his helpful comments and that is the case. I state it again, because I think that there is far too much doubt in this area. The Bill does not extend anti-discrimination protection for transsexual people. We believe that we would be better placed to consider the case for extending that protection once the system of recognition is in place.

Mr Andrew Selous (South West Bedfordshire, Conservative)

I agree with the Minister that the vast majority of transsexual people will not want to cause problems. They will want to get on with the religious bodies that they join. We are talking about only a vexatious minority, as in the Diane Parry case. If what the Minister is saying is true—the legal advice that I have seen differs from that—will he give a guarantee that the Diane Parry case would still have been won by the Church in question if the Bill had been enacted?

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

No. That is because I do not believe that any Minister would do so; I could not possibly do so. We have had much debate over the past few weeks about the relationship between Ministers and our judiciary, and it is not one into which I shall enter in Committee. I will not predetermine the outcome of a particular case. However, I stand by the fact that the Bill does not extend the law in that area. Indeed, when the Joint Committee considered the issue, it was keen that the Bill should extend discrimination a little further.

An hon. Member approached me in the Corridor and explained to me that in his constituency, a church had prescribed that a transsexual person could not enter the female toilets or attend women-only meetings. The church was concerned that the Bill might enable the transsexual person, who abides by the rules of her community, to take out an action against the church. I have made it clear to the hon. Member that that is not the case. There is currently special provision under English law for transsexuals in employment and vocational training. However, legislation does not currently go beyond that.

For these purposes, discrimination—not on the basis of the transsexual's identity as a woman but as a transsexual—is allowed, for the reasons that we have discussed. Many hon. Members—certainly Government and possibly Liberal Democrat Members—are concerned about that. It is being discussed and debated in Europe, so may well change in future years. However, that is the current position, and the Bill does not go beyond that.

Mr Tim Boswell (Daventry, Conservative)

Is the Minister saying that under the Bill, to take one side of the equation, a man may become a woman for all legal purposes, go through the process and receive a gender recognition certificate, but would not then be able to avail herself of rights as a woman that she had not previously enjoyed as a man in relation to provision of goods, services or otherwise? The Minister has produced what I think is an artificial distinction—I hope it is not—between the rights of a transsexual person in relation to employment and vocational training, and their rights as a woman after receiving a gender recognition certificate. We must be clear about that.

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

I am in agreement with the hon. Gentleman. I thought that that was the point that I was making, but if there were a slight distinction, I agree with him.

With the conscience clause relating to marriage, the Government have shown that we are committed to working with religious organisations on the issue. That is why I suggest that the amendment be withdrawn—it is unnecessary, given the existing law—and that the hon. Gentleman engages again with the issues in the context of any further discussion about extending anti-discrimination protection.

On amendment No. 43, once a transsexual person's change of gender has been legally recognised, marriages contracted between a male and a female will be valid. In such circumstances, registration officers would have no legal ground on which to refuse to

provide the service. It would be expected that the service would be provided to the same high standards as other services. That said, it is clearly a sign of a healthy, liberal society that people's views are tolerated. There are often practical solutions to these issues, and it is expected that marriage services for transsexual people will form a very small part of the overall service provided by the registrars-general. There would be sufficient registration officers available in a particular community to avoid an embarrassing situation for the transsexual person or a registration officer being placed in a position of personal difficulty. For those reasons I am unable to accept the amendment.

Mr Andrew Selous (South West Bedfordshire, Conservative)

I shall be brief. We have debated these issues at some length this morning as well as on Thursday afternoon and so I shall not repeat the arguments. I am grateful to the Minister for his remarks about amendment No. 43 and registrars. As he says, the issue will arise in only a small minority of cases. The fact that he envisages other registrars being able to undertake duties where some registrars may have personal difficulties is welcome. A number of outstanding issues have not been fully resolved and we will return to them on Report and on Third Reading. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That this schedule be the Fourth schedule to the Bill.

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

I have one brief question. Sub-paragraph (8) of paragraph 2 states:

''(a) the reference in paragraph (b) of subsection (5) of this section to the relevant person's son's mother is to the relevant person's son's father if the relevant person is the son's mother; and

(b) the reference in paragraph (d) of that subsection to the relevant person's daughter's father is to the relevant person's daughter's mother if the relevant person is the daughter's father.''

Could the Minister clarify that? I know that the Minister is sufficiently well acquainted with the Marriage Act 1949 and sufficiently well briefed to do that at some point.

Secondly, apropos the previous debate, will he identify again for me the part of schedule 4 that provides for the annulment of a marriage on the basis of someone not being aware of the transgender status of their spouse? I thought that it was paragraph 5, although it does not specifically state that there is any non-disclosure to the spouse. Could he explain in context how that works?

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

For these purposes it is probably best that I write to the hon. Gentleman on his question about paragraph 2 and the Marriage Act 1949. If I may, I will also write to him about his second point.

Question put and agreed to

Schedule 4 agreed to.

Clauses 12 and 13 ordered to stand part of the Bill.

Schedule 5Benefits and pensions