Clause 22 - Prohibition on disclosure of information
Gender Recognition Bill [Lords]
3:00 pm
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.
3.45 pm
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.