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

I beg to move amendment No. 72, in

clause 21, page 8, line 19, leave out from '(1)' to 'a' in line 22.

Mrs Marion Roe (Broxbourne, Conservative)

With this it will be convenient to discuss amendment No. 73, in

clause 21, page 8, line 42, at end insert—

'(6) Subsections (1) to (5) shall not apply to persons who have had gender recognition under the law of an approved country or territory and who have entered into a foreign post-recognition marriage.'.

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

The amendments are partially intended to probe what the Government are trying to do with the clause. Amendment No. 72 would leave out subsection (1), which states:

''A person's gender is not to be regarded as having changed by reason only that it has changed under the law of a country or territory outside the United Kingdom.''

It would also remove the word ''accordingly'' in subsection (2) to make the rest of the provision sensible without subsection (1).

My concern is that subsection (1) closes down any option for mutual arrangements to be agreed between Britain and other countries. If the Government were to negotiate a mutual recognition arrangement, which I understand has not been ruled out, it would be necessary for the provision not to exist; otherwise, such arrangements would be rendered useless by inclusion of the subsection.

For example, let us say that we were happy with the rigour of the procedures in Belgium and were more than willing to recognise its transsexuals as people to whom we would give recognition in this country. There could be a mutual recognition arrangement with the Belgians whereby a Belgian who is staying here for some time and wants recognition would not have to follow the clause 1 approach and apply for a gender recognition certificate. It would be fine simply to accept the Belgian recognition in law.

Subsection (1) would preclude that, regardless of the marital status of the person concerned. I hope that the Minister will clarify, first, whether that is his understanding of the provision, and, secondly, whether he believes that to be a problem or whether he believes that there can never be any mutual recognition that would preclude someone from going through the formal stages set out in earlier clauses, which are onerous in respect of evidence, medical reports and so on but which make exception for approved countries. People from the list of approved countries are not required to provide the evidence in clause 3 but are required to make application. People moving around European countries that have satisfactory arrangements should not have to apply for recognition in every country in which they live.

There is a separate issue concerning marriage in relation to amendment No. 73. That amendment would add a new subsection (6), which states that subsections (1) to (5)—or (1) to (4), if the previous amendment is by some miracle accepted by the Government—shall not apply to persons who have gender recognition under the law of an approved country or territory and who have entered into a foreign post-recognition marriage. The term ''approved country'' or ''territory'' comes under the same definition that is provided in clause 2.

It is important to go through subsections (2) to (5) because they are not easy to grasp conceptually. Subsection (2) states that a person is

''not to be regarded as being married by reason of having entered into a foreign post-recognition marriage.''

That in itself, without the further provisions, would be rather disappointing to a transsexual coming from abroad who has entered into a foreign post-recognition marriage. Subsection (3) goes on to say:

''But if a full gender recognition certificate is issued to a person who has entered into a foreign post-recognition marriage, after the issue of the certificate the marriage is no longer to be regarded as void on the ground that (at the time it was entered into) the parties to it were not respectively male or female.''

It is a nice concession to make for people from other European countries that we shall deign to recognise their marriage when they get a full gender recognition certificate.

Subsection (4) states:

''However, subsection (3) does not apply to a foreign post-recognition marriage if a party to it has entered into a later (valid) marriage before the issue of the full gender recognition certificate.''

That is all a bit bizarre. Subsection (5) states:

''For the purposes of this section a person has entered into a foreign post-recognition marriage if (and only if)—

(a) the person has entered into a marriage in accordance with the law of a country or territory outside the United Kingdom,

(b) before the marriage was entered into the person had changed gender under the law of that or any other country or territory outside the United Kingdom,

(c) the other party to the marriage was not of the gender to which the person had changed under the law of that country or territory, and

(d) by virtue of subsection (1) the person's gender was not regarded as having changed under the law of any part of the United Kingdom.''

It is not entirely clear to me what those provisions are designed to do, but it seems that they should not apply to any country whose procedures we recognise. There should be nothing wrong with a foreign post-recognition marriage when we recognise the procedures of that country as valid.

I am not sure whether the Government are worried about having to recognise same-sex marriages from abroad when one of the people concerned is a transsexual. It does not seem that the provisions are needed to deal with that. The amendment is designed to probe why the Government have had to contort themselves, when there might be provision for a country or territory whose systems we approve of—as provided for in another clause—in which case the provisions would not be necessary.

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.

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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.

Mr Tim Boswell (Daventry, Conservative)

I have not previously sought to speak in this debate, but stimulated by comments made by the hon. Members for Oxford, West and Abingdon and for Birmingham, Selly Oak, I have found a potential pitfall. In fairness to the Minister, these are issues to take away and think about.

In addition to endorsing the need for the Minister to provide understanding in response to the probing amendments and the comments made on legal opinion, I ask him to consider subsection (3), which relates to the odd concept of not recognising a foreign post-recognition marriage—or regarding it is as void—but regarding it as valid on the issuing of a certificate. The Government could be caught between two stools. It would be difficult, as the hon. Lady said, for them not to accept certificates at all because of common law. However, if they said, ''You have to have a gender recognition certificate and you also have to have a British marriage certificate that brings you up to date in consequence of the issue of your gender recognition certificate'', that would be a coherent position.

From my understanding, the clause means that we will not accept the validity of a foreign post-recognition marriage unless and until a British gender recognition certificate has been issued, which may be available on the strength of a foreign gender recognition certificate. My problem is in construing the proposal in subsection (3) with the general

provision in clause 9(2), in which it says that the general rule about a person's gender becoming the acquired gender,

''does not affect things done, or events occurring, before the certificate is issued''.

A person may have been married post-recognition in a foreign jurisdiction. That may not have been accepted as a valid marriage in Britain until the certificate was issued, but anything done after that would presumably be regarded as valid. The difficulty for the Minister, which follows the hon. Lady's point, is over rights under British law that might attach to the marriage, albeit carried out in a foreign country—EU or otherwise—which the Government sought not to recognise. For example, under social security or equal treatment law, the Government might be constrained to treat a marriage concluded abroad as valid, but in effect they are saying, in a slightly shaky way, ''Well, we didn't think it was valid to start with, but now we have got the certificate we are prepared to accept it.''

There is the potential for a loss of rights to the parties to the marriage due to non-recognition during that interim period. I do not know whether that is a material difficulty; I am not absolutely sure whether it is exactly the same point that the hon. Lady obtained from learned advice; however, the comments have exposed the difficulties in that area, and Ministers may need to reflect a little more before reaching a final conclusion.

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

I offer an alternative form of words to the amendment, which summarises what the hon. Gentleman and the hon. Member for Birmingham, Selly Oak said. If the Minister could respond to it in the same debate I would be very grateful. An alternative subsection (6) would state:

''This section does not apply to a marriage that would have been recognised as valid by any rule of law before the coming into force of this Act.''

I have seen that form of words in legislation before. It would deal with the points about European law and fairness raised respectively by the hon. Members for Birmingham, Selly Oak and for Daventry.

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

We have already had detailed discussion of the issues in the context of clause 1, as has been mentioned. In reality, gender recognition is not an area in which there are standardised criteria across the world. Different countries apply different standards of recognition—hence we have sought to create a process that takes account of those variances and allows the UK to deal differently with applicants from those countries that have criteria that are at least as rigorous as our own.

I understand the view that a person who has recognition from an approved country should not have to apply for recognition in the UK, but have it by virtue of recognition overseas. Before I set out why we require the person to make an application before recognition, I should clarify that the application is straightforward. All that the person is required to provide is evidence of their recognition overseas. We are talking about people who probably wish to live and work in the UK, and the application can be completed well before the person gets to this country.

In discussing the issue, it is important that we consider the practicalities of subsection (6). Recognition may be an amended birth certificate, as in Austria, Belgium or France; or a new civil status certificate, as in Germany or Italy. The person does not have to produce new medical evidence, so there are no new hoops to jump through. If the country is on the approved list, we will be satisfied that the criteria are at least as rigorous as our own. There is nothing to prevent a person who is travelling to, or coming to live and work in the UK, from applying for recognition in the UK before he or she arrives. So, for the Government and the integrity of the legislation, the solution in the Bill provides a high level of certainty. It provides for the issue of a UK gender recognition certificate and hence a precise point at which the person has recognition in the UK.

Although gender recognition certificates will not be used as an identity document by most transsexual people, as by its very nature it reveals a very private fact, we understand that some people will choose to use it in that way—especially if the alternative is to use a foreign birth certificate, which may be alien to any person to whom they show the documents.

One other consideration has been that some countries allow same-sex marriages and that, therefore, a person could be recognised in the acquired gender and married to a person of the same gender. That person will still be of the original gender and, as far as the UK is concerned, their marriage will be an opposite-sex marriage. On recognition of the acquired gender in the UK, however, the marriage would become a same-sex marriage under UK law. If we recognised the acquired gender of those with recognition overseas without an additional application, we would be faced with the creation of a small category of same-sex marriages recognised by UK law. UK law does not recognise any same-sex marriages at present. The requirement for an application allows the UK to ensure that it does not begin to recognise same-sex marriages contracted overseas.

Mr Andrew Selous (South West Bedfordshire, Conservative)

I am interested in the Minister's words ''at present''. Is it the Government's intention to head towards same-sex marriages at some point?

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

We have had much debate on this. I do not know how many times I have used the term ''civil partnership''. The Government's position in this area is clear.

The complex problem of overseas marriages illustrates the difficulties raised by private international law in relation to the issues that we are discussing. We believe that the process that we have designed in the Bill minimises the difficulties through a straightforward application process, without placing any undue burden on transsexual people who already have recognition of their acquired gender overseas.

Dr Lynne Jones (Birmingham, Selly Oak, Labour)

Will the Minister clarify whether the passage of this legislation will affect the rights of a couple who are legally married in one of their countries of origin, and who are resident in this country, or living

here for a while? Would such a couple be required to have that relationship recognised for other purposes, such as tax and immigration? Would they have to apply for a gender recognition certificate?

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

The issue that my hon. Friend raises, and the quotation that she refers to from Nicholas Blake, QC, are things that I want the Department to consider fully. I will reply to her in a letter, if she can provide me with the full text of that summary. I acknowledge that the issue is serious, and I want to get to the bottom of it.

Mr Tim Boswell (Daventry, Conservative)

The Minister has just made a perfectly appropriate response to the hon. Lady. Will he also, for the purpose of the Bill, commit himself to reflect—I ask no more than that—on whether it may be possible to give some kind of retrospective validity to Acts made in relation to the foreign marriage when the marriage is recognised by the issuing of a British gender recognition certificate?

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

The issue that the hon. Gentleman raises is connected. In endeavouring to get to the bottom of the contribution made by my hon. Friend the Member for Birmingham, Selly Oak, that is certainly something that we will want to consider.

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

Subsection (3) has more in it than I had thought. When the Minister started talking about same-sex marriages, I began to wonder what subsection (3) is really trying to say. It states:

''if a . . . recognition certificate is issued to a person who has entered into a foreign post-recognition marriage, after the issue of the certificate the marriage is no longer to be regarded as . . . void on the ground that (at the time . . . it was entered into) the parties to it were not respectively male and female.''

Does that mean in the eyes of British law, because they were not in possession of a British certificate?

Mr Tim Boswell (Daventry, Conservative)

That is correct.

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

The hon. Gentleman says that he thinks that that is correct. Or, is it because it was a same-sex marriage and therefore the parties were not respectively male and female, even though that was allowed by that foreign country? Or, is subsection (3) just trying to extract the idea that non-same-sex marriages are okay after the full recognition certificate is issued? The wording is ambiguous in the context of the Minister talking about same-sex marriages and I would be grateful for clarification.

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

Subsection (3) states that foreign post-recognition marriages will be recognised if the person who already has legal recognition in the acquired gender in another country or territory gains recognition in the acquired gender in the UK. Such recognition will apply only where the parties to the marriage are then of an opposite sex. So, we have to deal with both points. We must make it clear—and qualifications continue throughout subsection (5)—that recognition must be under UK law and that it must be an opposite-sex marriage. That is why there is a need for qualifications.

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This is clearly a developing area. At present, there are no universally applied international standards for gender recognition. No doubt we will gradually move towards such shared standards. At that point, we will have to reconsider the provisions for people who received recognition overseas. Perhaps we will be able to set up robust reciprocal arrangements with, for example, other EU states. For now, we believe that the approach that I have outlined best tackles the complexities raised by overseas gender recognition. With that explanation, I hope that the hon. Gentleman will withdraw his amendments.

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

It has been an interesting debate. First it is appropriate to deal with the point raised by the hon. Member for Birmingham, Selly Oak. I am grateful to her not only for having read but for having found the briefing that we were both given by the QC from Matrix chambers. I endorse what she said.

I am grateful that the Minister has offered to consider whether some marriages that would now be recognised as valid—and, therefore, some rights retained in European law—might not be recognised as a consequence of the clause, or any part of the Bill, if it is not amended. If he intends to write to me on the subject, I would be grateful if he would do so well before Report, and if he would send that letter to all Committee members. They would find it useful.

On amendment No. 73, I think that I now understand the complex structure of the clause. I apologise to the Committee for not having understood it earlier, although I have been talked through it on a number of occasions by people who, I think, do understand it. It is a complex way of putting the point. It appears that clause 21(3) is qualified by subsection (5)(c). The former states that, where the

''full gender recognition certificate is issued to a person who has entered into a foreign post-recognition marriage, after the issue of the certificate the marriage is no longer to be regarded as being void''—

which it previously was by virtue of subsections (1) and (2)—

''on the ground that (at the time when it was entered into) the parties to it were not respectively male and female''.

That is qualified by subsection (5)(c), which says that

''the other party to the marriage was not of the gender to which the person had changed under the law of that country or territory''.

I think that that is clear.

We still have the difficulty, however, of whether the Minister is right to say that we cannot recognise even foreign same-sex marriages legally. I wonder whether the Minister can clarify that by an intervention. I have seen social security Bills that contain clauses dealing with polygamous marriages and marriages of people to a partner under the age of consent, which we would not regard as valid here. I do not want to open a debate about those marriages, but is he saying that same-sex marriages are a class apart even from those situations, in that they can never be recognised? He used the same language, which is that we would be creating a small set of marriages that we cannot tolerate creating. It seems that that goes a little further than we have gone

about those other practices that happen overseas but do not happen here. I hope that the Minister will be able to help.

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

The Government's position is that no same-sex marriages have been recognised here. There is no authority on the subject. The position under English private international law is unclear. If something were to come to our attention of which we were previously unaware, I would bring it to the hon. Gentleman's attention. However, our position is that foreign same-sex marriages are not recognised in the UK.

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

I am grateful to the Minister for clarifying that he does not know of any such marriages that are currently recognised, even though we recognise polygamous marriages and marriages to people under the age of consent that have happened lawfully abroad.

Ms Maria Eagle (Parliamentary Under-Secretary (Minister for Disabled People), Department for Work and Pensions; Liverpool, Garston, Labour)

In some social security legislation we recognise the impact of validly contracted polygamous marriages, in which people come from countries where polygamous marriages are allowed, for the purpose of applying social security rules about benefits for married people. However, we do not recognise the marriage—if the hon. Gentleman sees the distinction that I am trying to make.

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

I see the distinction and it might be dealt with by the amendment proposed by Nicholas Blake, QC, in respect of rights not being lost by virtue of the introduction of the legislation. It would provide for something similar to what the Under-Secretary has described—recognising what flows from the marriage, if not the marriage itself. I am grateful to her, as I looked in her direction when I mentioned social security. I note that she is not dealing—nor should I expect her—with the issue that I raised about marriages between people, one of who is, or both are, under the age of consent.

The Minister with responsibilities for constitution affairs says that he does not think that any same-sex marriages are recognised and that it is the intention of the clause, and in particular subsection (5)(c), to ensure that that remains the case.

Mrs Angela Watkinson (Upminster, Conservative)

Would the hon. Gentleman agree that, in effect, there would be a form of same-sex marriage in this country if one partner in an existing marriage were to undergo gender reassignment and acquire a new gender but not seek a gender recognition certificate? In those circumstances the marriage would remain legal and, to the eyes of the world, they would be two people of the same gender living together in marriage, but it would not be recognised in law.

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

That is right. I am not a lawyer and I am dubious about using Latin, so I do not know whether it is a de facto same-sex relationship—

Ms Maria Eagle (Parliamentary Under-Secretary (Minister for Disabled People), Department for Work and Pensions; Liverpool, Garston, Labour)

Doctors use Latin all the time.

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

This one did not; this one missed those parts of the course because of by-elections, which is probably why I am doing this and not practising.

The point is that the relationship is not recognised as a same-sex marriage because without the gender recognition certificate the transgender status is not recognised for the purpose of marriage and the marriage has to be dissolved.

The points that the hon. Lady raises are important because people's understanding of what happens is different from the law. I will not prolong the matter; it is important to wait for the Minister's promised response in writing, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 ordered to stand part of the Bill.