Mr Tim Boswell (Daventry, Conservative)

I beg to move amendment No. 21, in

clause 22, page 9, line 3, leave out 'in an official capacity'.

I am conscious that time is increasingly precious and I am anxious that the serious issues in the amendment should be debated. The Minister and other members of the Committee will have noticed that the amendments are essentially probing, but it is important for Ministers to reply to them.

Given the sensitivity expressed many times about the transsexual community and the release of information, the last thing that anyone in Committee wants is the wanton abuse or publication of information about the transsexual person's application or gender history that would cause them distress. Against that, there are the public duties, including crime prevention and child protection, which must be properly dispatched. It is that balance—to use the Minister's phrase—that we are analysing again.

If we were to agree to the amendment, it would formally preclude the release of any protected information by any person to any other person, regardless of whether it was acquired in an official capacity. There was a good deal of discussion in the debates in another place about Ministers not becoming over-officious and seeking to regulate gossip. If Ministers are taking that approach, it is a fairly healthy if not always characteristic one. Clearly, even if we privately felt that something was better not said, we would not necessarily wish to pass a law or to take the full weight of the law against someone who said something in a casual moment. It is regrettable when people gossip about personal matters, but we should not necessarily pass laws to stop it.

I would be grateful if Ministers would clarify whether they are taking that position. Perhaps they would also say whether any changes to the general laws or obligations in respect of confidentiality and privacy may come about that would bind us all as citizens rather than binding only those in a specific and official capacity. That is my first concern on the matter.

My second concern is with the definition in clause 22(3) of the official capacities in which persons may acquire protected information. The Minister may have had a chance to reflect on something that I mentioned in our earlier discussions on marriage, or he may want more time to reflect. For the purposes of the Bill, clergy, whether in the Church of England or the Church in Wales, are not seen to be acting in an official capacity because they perform not a public function but a private religious function. I am not absolutely clear whether they have duties of confidentiality and, if they do, exactly how such duties bind them or relate to other duties that apply to other ministers or leaders of religions or faith communities.

It is not always clear whether Members of Parliament act in an official capacity; we should never be obsessed by that in this place. We are not officials or holders of public office. Mr. Speaker may have a position as a public office holder but we do not. I do not suggest for a moment that we should abuse anything that comes our way. I am sure that we are all familiar with the general duties of confidentiality in our work as constituency Members, but it would be useful to clarify how they work.

The third point is rather different. It is about the release of information in subsection (2) that

''concerns the person's gender before it becomes the acquired gender.''

I hope that the hon. Member for Oxford, West and Abingdon will give me a brownie point for taking notice of one of his colleagues. The hon. Member for Winchester (Mr. Oaten) made an interesting and important point in his contribution on Second Reading when he said that it is possible to leak information in different ways. It is not necessary to be explicit and ask, ''Did you know that this person has had a gender change?'' in order to allow such information to reach the public domain; it could happen by accident. We are all aware that it is possible to breach confidences inadvertently and, to some extent, guard against it, but such a breach can occur because the policies of an organisation are not particularly sensitive to such issues.

I have not checked the record, but I believe that the example of the hon. Member for Winchester was about an academic certificate. That is a typical case. Let us say that Miss Freda Bloggs had undergone gender reassignment and received a certificate. She had been at a university 30 years before and had occasion to go back for an academic certificate. Not only would she no doubt have been registered in her previous name and gender—Mr. Fred Bloggs—but, if she held a public post, particular given the way that people use window envelopes, that would involve a public display of her gender history. That is something that no one, least of all academic authorities, would wish to encourage—indeed I am sure that they would wish to avoid it. Ministers should discuss with people who might have an interest in the issue, who are not necessarily defined as acting in ''an official capacity'' under the terms of the clause, whether something must be done.

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I am thinking whether it might be possible to agree with the main purveyors of this sort of historic information that there should be a code of practice to which they should adhere. Perhaps a transgender person who had received a certificate would be able to draw their attention to the provisions of the code of practice and encourage them to take the necessary steps to avoid personal details being disclosed. For example, in the case that I cited, a university could be persuaded to modify academic certificates to accommodate the change of name and gender so that that way of inadvertently disclosing someone's history would be closed.

These are tentative but important thoughts. None of us on the Committee would want anyone to abuse information that they obtain. Some information may come contingently in conversation, and I would hope that people would not abuse it anyway, although it would be useful if the Minister were to clarify whether there are duties or restraints on the use of that information. Some information may come formally in an official capacity, and it would be useful if the Minister could define that capacity and how far it goes. Some of it might fall into the public domain because of the insensitive use of past information, even when tendered in good faith. The Minister needs to consider whether reasonable understandings can be found, as have operated historically for public services such as driving licences, which could be applied and made available to people not strictly acting as public officials so that they could play their part in making the situation acceptable for all involved.

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

The hon. Gentleman raised the example of a Member of Parliament and I will be interested to hear the Minister's response, but—I hope he will forgive me if I am repeating him—he also raised the question of a minister of religion or other person. The Government were partially relying on the view that for an action under the Human Rights Act to succeed against a minister of religion or his equivalent outside the established Church, it would have to be shown that the minister was a public authority or held a public office. We also debated the fact that that would be inappropriate and, I understood, prohibited under clause 22 for such a person to disclose that information. There seems to be a conflict or contradiction between those two positions and, since I do not know the answer, I would be grateful if the Minister could provide clarification and reassurance that the position that he and I want is provided for under clause 22.

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

The Bill contains protections for the privacy of transsexual people, and those protections prevent harm to the transsexual person or to their family and friends from the disclosure of information by those who have received it in an official capacity. As the information in question is sensitive personal information, disclosure without the consent of the person in question must be restricted. Otherwise, we

would fail to respect the person's right to respect for private life under article 8 of the European convention on human rights.

Clause 22 has an important limit, and the amendment addresses that limit. Not only does it enumerate a list of exceptions that allow disclosure when that is justified in terms of public policy, it extends only to information that is required in an official capacity. The amendment seeks to expand clause 22 to cover all information, even that acquired in a private capacity. There are numerous examples of legislative prohibitions that apply to official or public bodies and individuals acting in an official capacity, but not in the private sphere. Data protection legislation is one example. That does not mean that the conduct is right when it occurs in the private sphere and wrong in the official sphere. Rather, it confirms that the law has limits and that those limits are imposed in law due to considerations of liberty and practicality.

The state should not, for the most part, seek to interfere in the content of conversations that take place between friends and neighbours in coffee shops and living rooms. Clause 22 does not seek to intrude into the private sphere.

A prohibition that extended—

Sitting suspended for a Division in the House.

On resuming—

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

These limits are imposed in law due to considerations of liberty and practicality. The state should not, for the most part, seek to interfere in the content of conversations that take place between friends and neighbours in coffee shops and living rooms. Clause 22 does not seek to intrude into the private sphere, and that must be right.

A prohibition that extended into the private sphere would be almost impossible to police, as the hon. Member for Daventry suggested, and it would be difficult to gather enough evidence for a trial. It would not be proper for the state to start poking into the content of conversations between individuals acting in a personal capacity. That would require a type of law enforcement that, rightly, makes us anxious. It is only proper to acknowledge that the law has limits beyond which ethics alone must suffice.

What clause 22 does ensure, however, is that public officials and, more broadly, individuals who are required to protect information in an official capacity will be acting unlawfully if they share that information with others outside the exemptions in the clause. We cannot suddenly bring to a halt all rumour and gossip about transsexual people, but we can help to ensure that people who have acquired information officially do not take part in or initiate such rumour or gossip. With that, I hope that the hon. Gentleman will withdraw the amendment.

Mr Tim Boswell (Daventry, Conservative)

I appreciate that we are under a time constraint, but the Minister has not answered in full some of the points that I made about the possibility, for example, of information coming out as a result of the activities of third parties, even when acting in good faith. They may bear a little more thought; perhaps he could produce a scheme or even advice for interested parties in this area. However, I think it better not to press him at the moment but to invite him to reconsider and to read carefully the transcript of our debate. In that spirit, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Tim Boswell (Daventry, Conservative)

I beg to move amendment No. 22, in

clause 22, page 9, line 15, leave out

'or of a voluntary organisation'.

Again very briefly, the amendment would omit the reference to ''voluntary organisations'' as persons who obtain something in an official capacity. My immediate reason for raising the issue was that I was not quite clear what a voluntary organisation was in relation to the Bill. The issue is an organisational one. If the two Ministers and I decided to form a coalition on some matter, would we be a voluntary organisation? Conversely, could I form one with the hon. Members for Birmingham, Selly Oak and for Oxford, West and Abingdon or my hon. Friend the Member for South-West Bedfordshire? What is a voluntary organisation? It is an interesting and philosophical question that we shall not wish to debate at length, although, as the Under-Secretary may know, I have had a long association with the voluntary sector during my time here, and before. It is hugely important, and I do not wish to be derogatory to that sector.

I need to stress two points. Whatever the Minister may have said about acting in the public capacity, faith bodies, which have concerned us a certain amount in the Committee, would seem to be voluntary organisations. There are difficulties—to return to the matter without debating it further—in relation to the material that it is appropriate for them to share. It is implicit in the clause, and in the Minister's response during the previous debate, that consent and discretion in the use of information, even where consent is given, is appropriate. We accept that, but such bodies would seem to be caught by it. The Minister may wish to confirm that.

My final point concerns proportionality. I know the civil service well. I have a daughter who is an active member of the civil service, and I served in that capacity, albeit briefly, when I was a special adviser. I respect the good staff procedures of the civil service and the efforts it makes to manage information appropriately. I am not going into the question of spin issues; I am simply talking about the fact that it has a tradition of proper discretion, classification and confidentiality. The Minister will be aware that voluntary organisations do not have that sort of back-up. They probably do not have such a clear doctrine, or the same resources. It has not been unknown—sadly this is also true in the civil service on occasion—

for a piece of paper to be stapled to another piece of paper and inadvertently released. We would not wish that to happen, and that is clearly not what the clause is designed to deal with.

My point of substance is that in any prosecutions that are brought as a result of clause 22 we must remember the relative scale of the organisation involved, its access to administrative resources and the effort that has been made to act within the spirit of the clause, as well as the liability for any offence concerned. Of course, it will be very serious for the individual if information is released, and I certainly would not wish to condone anyone doing that wantonly or for malicious purpose. I do not think that the Minister will want to caricature what I say as meaning that.

There are degrees of culpability in such matters. There is at least some understanding to be had of a voluntary organisation that is not heavily staffed or resourced, and may have never come across a case like this before. I hope that that will be borne in mind during any prosecutions or proceedings brought under the clause. The last thing we want is for information to be leaked inappropriately. The second last thing we want is for people to feel that they are being persecuted because they have acted in good faith but may have got it slightly wrong.

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

We would regard a voluntary organisation as being any organisation, other than a public or local authority, whose activities are carried out on a not-for-profit basis. A church, therefore, would be an example of that. We believe that it is incredibly important that voluntary organisations are covered by clause 22. A person who works on a helpline for a charity, for example, may acquire information about a person's gender history. Clearly, such a person should be subject to clause 22 in the same way as a civil servant or an employer, and should not be able to disclose the acquired information freely. Voluntary organisations often carry out sensitive functions and, therefore, will come across what the Bill defines as protected information. Such information may be acquired at a time when the person to whom it relates is in a vulnerable position—when calling a helpline, for example. We firmly believe that voluntary organisations should come under the remit of the clause.

The voluntary organisations that will most frequently come across such information will be those representing the transsexual community. They are already careful about the privacy of their members, and they will not view the clause as an undue burden.

Subsection (4) provides that no offence is committed if the disclosure is made with the consent of the individual to whom the information relates, or if it does not enable them to be identified. If a support group needed to present information about a member to someone else—for example, if it were discussing with a Department the problems faced by the

transsexual community—it could obtain that member's consent, or it could anonymise the information.

I hear what the hon. Member for Daventry says about the nature of voluntary organisations. It was helpful of him to put that on the Hansard record, and I endorse that. I am sure that it will be borne in mind, should a prosecution be made under this clause.

Mr Tim Boswell (Daventry, Conservative)

I am grateful to the Minister. I think that he and I agree on the scope and nature of voluntary organisations, and that they should behave in a professional and proper manner. I am sure that no one would wish to construe this useful and constructive debate as being otherwise. In the light of the Minister's response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dr Lynne Jones (Birmingham, Selly Oak, Labour)

I beg to move amendment No. 51, in

clause 22, page 9, line 31, at end insert

'where prior application for disclosure has been made to the court or tribunal, the court has ruled that such disclosure is relevant and reasonable.'.

Subsection (4) details the circumstances in which it would be permissible to disclose protected information. Paragraph (e) states that disclosure is permissible if it is

''for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal''.

Amendment No. 51 is a probing amendment, through which I seek reassurance from the Minister that disclosure would be permissible only if it were relevant and reasonable. For example, would it be permissible for a case against an individual to be posted as ''Jane Smith, formerly known as Peter Smith''? That may well be appropriate in some circumstances. I am sure that we can all envisage circumstances in which it would be appropriate to disclose the actions of an individual before gender recognition or a name change, but they must be relevant to the proceedings. Quite simply, that is the purpose of the amendment.

I appreciate that subsection (7) outlines the provision under subsection (5), but, as I am not legally trained, it is not clear to me whether that covers the concerns that are addressed in the amendment.

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

We do not wish to allow people to get around the prohibition against disclosure simply by ensuring that it takes place in court. That is why the exception that we are discussing has been carefully drafted. It does not provide that disclosure made in the course of proceedings before a court or tribunal is lawful. It is narrower than that: disclosure must be ''for the purposes of'' such proceedings.

If a disclosure is made that is not relevant, even if it is done in the course of proceedings, it will not be covered by the existing exception, and would therefore be unlawful. Persons making the disclosure would be subject to prosecution and would face a maximum fine

of £5,000. They would not be able to use the exception in their defence. The exception was conceived to cover various situations, such as those involving people who have subsequently changed gender or who incurred a debt or committed a crime before they changed gender. In such circumstances, disclosure of the previous identity during court proceedings will be for the purposes of those proceedings only, and hence will come under the terms of the exception. The amendment is therefore unnecessary. We believe that clause 22 will effectively protect the privacy of transsexual people.

Dr Lynne Jones (Birmingham, Selly Oak, Labour)

I will give consideration the Minister's reply. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Tim Boswell (Daventry, Conservative)

I beg to move amendment No. 23, in

clause 22, page 9, line 37, at end insert 'or'.

Mrs Marion Roe (Broxbourne, Conservative)

With this it will be convenient to discuss amendment No. 24, in

clause 22, page 9, line 39, leave out from '(5)' to end of line 41.

Mr Tim Boswell (Daventry, Conservative)

The amendments would exclude subsection (4)(j). As they are probing amendments, it would be helpful if the Minister would explain why it is necessary to make such a provision. I may make similar comments on the next clause, but I always find myself a little uneasy when I come across such general catch-all provisions. It would be useful if the Minister could tell the Committee what he has in mind.

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

The Bill is designed primarily to secure the rights of transsexual people. However, all human rights legislation must seek to strike a balance between the rights of one set of individuals and the rights and freedoms of others. For that reason, the prohibition against disclosure in clause 22 is limited in important ways. Disclosure is permitted when it is made in accordance with, or by virtue of, a statutory provision. Clause 22 will therefore not prevent members of the civil service or of other public bodies from carrying out their statutory functions. It is a standard exemption, similar to one that appears in the Data Protection Act 1998. The amendments seek to remove that exception, but we believe that that would have a damaging impact on many areas of public policy. The most effective way for me to make the point is to offer some examples.

The tragic case of Victoria Climbie probably best illustrates why such a provision is appropriate. Section 81 of the Children Act 1989 empowers the Secretary of State to cause an inquiry to be held into any matter connected with the functions relating to children of, among others, of a local authority, an adoption agency or voluntary organisations. The person appointed to hold the inquiry may require any person to give evidence or produce documents in accordance with subsections (2) to (5) of section 250 of the Local

Government Act 1972. Those are powers in relation to local inquiries. The first Victoria Climbie inquiry was established under section 81 of the Children Act 1989. I know that hon. Members will understand why, under such circumstances, it may be important to inquire, and to allow that exception.

I turn to another example. The Adoption Agencies Regulations 1983 require an adoption agency to provide access to its case records and to disclose information in its possession to persons listed in regulation 15. That regulation also allows the agency to disclose such information as it thinks fit—first, for the purposes of carrying out its functions as an adoption agency; and, secondly, to someone authorised to carry out the search. Regulation 16 allows an adoption agency to transfer a copy of a case record to another adoption agency if it considers it to be in the interests of a child or prospective adopter to whom the record relates. Adoption case records could include protected information—for example, where a person who has changed gender had previously adopted a child in their birth gender.

I hope that those two examples show the sorts of disclosures that will be permitted by virtue of the exception that the amendments would remove. I hope that the hon. Gentleman will withdraw the amendment.

Mr Tim Boswell (Daventry, Conservative)

I am grateful to the Minister for that explanation. It is useful to have confirmed the Bill's congruence with the Data Protection Act 1998, which in that respect has not given rise to material difficulties. The two examples cited by the Minister were useful. As I understand it, the provision is a generic one to enable public officials and private agencies and other bodies operating in this delicate field to do their job. It is not a matter of specific authorisation for individual acts. We are talking about the ability, at law, to be able to show after the event that they have conducted themselves within the framework of their overall statutory duties and obligations. That is not inherently unreasonable. Indeed, speaking prospectively, it bears on a new clause that we may still have an opportunity to touch on before we conclude our proceedings. In the light of those assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 ordered to stand part of the Bill.