Clause 21 - Foreign gender change and marriage
Gender Recognition Bill [Lords]
3:00 pm
Dr Lynne Jones (Birmingham, Selly Oak, Labour)
We had some debate on this matter when considering clause 1. I expressed the view that the Government ought to be seeking reciprocal arrangements with countries whose procedures on such matters were as rigorous as ours. I remain of that view. Amendment No. 73 is one way round that problem, and I hope that the Government might consider it. If it is not satisfactory, I hope that they will draft their own amendments on the issue.
3.15 pm
I would also like to raise the issue of how we treat such marriages at present.
I have a note from Nicholas Blake, QC, of Matrix chambers, who has expressed concerns about the effect of the legislation on custom and practice. I am told that the rules on recognition of foreign marriages, both in common law and by statute, refer to the validity in the law of the place of domicile or intended permanent residence of the party concerned. For example, foreign transsexual marriages have been recognised by the authorities in this country for such purposes as immigration and tax.
Clause 21 would be inconsistent with European Community law and is therefore futile. The example is given of a Dutch transsexual who is married to a Malay man in Holland, and who seeks to come to the UK for employment. That person would have the right to bring in the spouse as a family member under regulation 1612/68; the UK would have to defer to Dutch law as to whether the marriage was valid. Any non-recognition for the purpose of a visa, residence permit, tax or social security would be incompatible with European Community law on the grounds of, first, an obstacle to enjoyment of rights of free movement, and secondly, discrimination in the recognition of foreign marriages and subordinating all marriages to domestic law. I am told that in such a state of affairs it is clear from KB(ECJ) that UK law is void and must be disapplied by national courts.
I appreciate that the point that I have raised is a new one for the Minister, but I ask the Government to consider the issue.