Gender Recognition Bill [HL]

– in the House of Lords at 4:15 pm on 10th February 2004.

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Read a third time.

Clause 3 [Evidence]:

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, on Report, the noble Lord, Lord Goodhart, made a strong case for the power conferred on the Secretary of State in Clause 3(6) to be subject to a degree of formality. The power enables the Secretary of State to specify the further content of the application form. The noble Lord proposed that the power should be exercised only by order, but that such an order need not be subject to a parliamentary procedure. He brought into question the openness of the language of the clause as it stands.

As I signalled, I wanted to reflect on that, and I now propose an amendment to Clause 3(6) so that the content of the application form for gender recognition is now set by order. In that way, we will retain the flexibility which we believe is important, while introducing the formality and transparency of an order-making process. I beg to move.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, I am obviously most grateful to the Minister for having thought about and accepted the principle behind my argument on Report. I therefore greatly welcome the two amendments in the group.

Photo of Baroness Buscombe Baroness Buscombe Conservative

My Lords, we also welcome the amendments.

On Question, amendment agreed to.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 2:

Page 3, line 7, leave out "impose a requirement" and insert "make an order"

On Question, amendment agreed to.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

moved Amendment No. 3:

Before Clause 19, insert the following new clause—

"RELIGION

(1) A body which exists for the purposes of organised religion may, if subsection (2) is satisfied, prohibit or restrict the participation in its religious activities or ceremonies of persons whose gender has become the acquired gender under this Act.

(2) This subsection is satisfied if the prohibition is necessary to—

(a) comply with the doctrines of the religion, or

(b) avoid offending the religious susceptibilities of a significant number of the religion's followers.

(3) "Religion" means any religion, religious belief or similar philosophical belief.

(4) This section does not affect—

(a) section 19 of the Sex Discrimination Act 1975 (c. 65) (ministers of religion etc.), or

(b) Article 21 of the Sex Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042 (N.I. 15)) (corresponding provision for Northern Ireland)."

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, for those who have not followed the Gender Recognition Bill during the last five debates on it, I should explain that it allows a man to become a woman or a woman to become a man, even without gender reassignment surgery. It allows a new birth certificate to be issued in the new gender, and creates a criminal offence if the original birth sex is revealed by a person in an official capacity, such as a Church leader. It is a transsexual rights Bill.

My amendment addresses the fact that Churches and religious bodies will face litigation under the Bill. How can I be so sure? Because it has already started. Already the Bill is being used to argue that transsexuals have a legal right to teach in a Sunday school and take part in any form of Church ceremony, such as marriage and worship. Already it is being used to argue that transsexuals have a legal right to take holy communion, which contravenes the teachings of particular Churches now threatened with legal action. At least two Churches have already been threatened with legal action under the Bill, even before it reaches the statute book.

A number of other Churches have been threatened with litigation by transsexuals in recent years. There was even a court case where the pastor and the entire membership of a Baptist church in south Wales were sued because a man who had had a sex-change operation was told that he could not attend a ladies' prayer meeting. Under the current law, the church succeeded in having the case thrown out. There were legal costs even though it won, but the church was not compelled to give a male transsexual the right to attend a ladies' prayer meeting. This Bill changes the legal landscape, however. There is no guarantee that the church would win the case if it came up again. It would certainly be far more costly to defend.

I received a letter yesterday from the noble Lord, Lord Filkin, for which I am grateful, in which he admits that under the Bill Churches can be taken to court over their beliefs. He says that it is the Government's opinion that such litigation "probably" would not succeed on the grounds of sex discrimination. Such litigation puts Churches under huge pressure. Members of the Baptist church to which I referred earlier were advised by their lawyer that defending the action could cost them up to #100,000, all because they would not let a man come to a ladies' prayer meeting.

My amendment is very simple. It is directly based on and mirrors the Government's own amendment—now Clause 19—which gives broad exemptions for sports bodies. The Government are prepared to amend the Bill to protect "fair competition". Can we not do the same to protect, as I suggest in the amendment, the doctrines of religion? The new Clause 19 allows sports bodies to prohibit participation of a person with a gender recognition certificate. What reason could there be for not allowing the Church an equivalent right?

The amendment simply enshrines existing freedoms. The Government will no doubt say that those freedoms are not under threat. Ministers said the same thing to the sporting bodies, but then they changed their minds. In Grand Committee on 14 January, the noble Lord, Lord Filkin, said:

"We believe that maintaining competitive parity, or fair and safe competition, is fundamentally important, but we are not convinced that there is a problem".

Then he said:

"The Bill will not give transsexual people the general right to participate in sport in the acquired gender".—[Official Report, 14/1/04; col. GC 121-122.]

He changed his mind and we now have an amendment protecting sports bodies. It gives sports bodies reassurance and greater legal certainty. That is all my amendment seeks—reassurance and greater legal certainty. If sporting competition is "fundamentally important" are not the beliefs of religious bodies equally fundamentally important?

My amendment will deter hostile litigation against religious bodies which, as we all know, often survive on a shoestring. People do not put money into the collection plate to pay lawyers. All my amendment seeks to do is to allow people of faith to worship God and conduct their own religious activities according to their own faith. Their faith teaches them that one's sex is fixed at birth and cannot be changed. That perfectly reasonable belief is very common among religious people and, indeed, among the general public as evidenced by the hundreds of letters that have been written to support the thinking behind this amendment. There are thousands of people out there who are genuinely worried about this.

The question is, should you be sued in the secular courts merely because of your beliefs and the way you worship God?

It is important to emphasise that my amendment does not affect the principle of the Bill in any way. It does not even address the fact that Church ministers face a potential criminal record and a fine of #5,000 if they tell another clergyman in their own Church that the woman in the congregation is really a man. All the amendment does is give reassurance and protection for some of the existing freedoms of religious bodies.

Churches are private bodies; they make their own rules of membership. Any private body can exclude people for all sorts of reasons. The problem is that the new legal situation under this Bill has the capacity to open up the affairs of a Church to the scrutiny of the secular courts in a way which would not apply to other private associations or groups.

It is clear from the wording of my amendment that if no offence is caused, then there is no issue. The amendment is permissive; it does not compel a Church to do anything. As a matter of fact most Churches will welcome a transsexual visiting their services to hear the Gospel. It is only where there is offence that they should be entitled to protection.

It is also clear that non-religious activities are not covered. Purely secular activities of a religious body do not come into it. The amendment is concerned only with religious activities or ceremonies, such as marriage, Communion, baptism or teaching in a Sunday school.

I believe that Churches have similarities with political parties. Like a political party, they would be nothing without freedom of association. As I understand it, the Labour Party insists that all its employees are card-carrying members of the Labour Party, and quite right too. Like a political party, the Churches maintain internal discipline. Those who reject the fundamental tenets of the organisation through words or deeds can be asked to leave. That is already the case, but that is now put in jeopardy by the Bill. Churches are private bodies but their internal affairs can be opened up to hostile litigation by the particular combination of legal rights which will result from the Bill.

A person who assumes a new sex has new human rights, thanks to the Goodwin case. Section 6 of the Human Rights Act means that you can argue that a Church is subject to these rights as a public authority in its exercise of some public functions. The transsexual also has sex discrimination rights in his or her new gender. Finally, transsexuals have rights under this Bill. But the Church, on the receiving end of litigation over marriage or membership, only has one set of rights—human rights. That is three against one.

The Bill is a completely new departure in UK law. It declares that a man must be treated as a woman "for all purposes" in law. It is illegal to discriminate on the basis of sex in the provision of goods and services. This presents absolutely no problems for Churches at the moment, but it will after this Bill.

In the south Wales case, a husband and father of three used sex discrimination law to argue that he had the legal right to join the ladies' prayer meeting. What would be the outcome of that case now? One of the Churches currently being threatened under this Bill is being told it must provide Holy Communion to a transsexual. Again, sex discrimination law is cited in addition to human rights, but also mentioned in this letter from the solicitor is the fact that this Bill is being considered in Parliament and will become an Act, thereby reinforcing the point I made about three sets of rights. Surely these are matters that should be left to the Church and not to secular courts.

We all have—at least some of us have—disagreements with our Church. I dearly wish that I could have been married in Church but because I married a divorcee I was not allowed to do so. If I go to the Roman Catholic Church I do not take Communion; I take it in the Anglican Church because the Roman Catholic Church makes its own rules which I respect. The Government may claim that my amendment is unnecessary, but there can be no doubt that the law will develop. Laws have a habit of developing, as we well know. Churches will be threatened; this may cost them dearly in terms of time, stress and finance—even if they win. My amendment seeks to enshrine the long-standing right of the Church to order its own religious activities and ceremonies.

If a church, synagogue, mosque or temple does not want to conduct the marriage of a transsexual, it can refuse. If a Welsh chapel wants to insist that its ladies' prayer meeting is only for biological women, then it can do so without fear of litigation. Thirdly, a church can decide who can teach in a Sunday school or youth meetings without being sued. That is the effect of my amendment.

The Government believe that it is possible under this Bill for a transsexual to sue an Anglican minister over a refusal to conduct a marriage. That is why it has provided a conscience clause for Anglican clergy, but there is no conscience clause for other Churches or for the non-Christian faiths.

The Government now accept—according to the letter sent from the Minister to me—that other denominations can also be sued, but helpfully he suggests that such legal action could be resisted, using human rights arguments. In other words, they are left to their fate and the mercy of lawyers, not to mention the cost. I have also to point out that the Minister finds himself in conflict with the former Home Secretary Mr Jack Straw, who was unequivocal that Churches act as public authorities when they conduct a marriage. I refer to Hansard of 20 May 1998, col. 1017.

The Minister said that we can take a more optimistic view. Instead of leaving it to chance, surely it is our duty to give the Churches the reassurance they need on the face of the Bill.

When the European Convention on Human Rights was devised in 1952 it did not contain a section on transsexual marriage rights. The European Court confirmed that in 1998, but only four years later it reversed its position. In 2002, the Goodwin case said that transsexuals have a right to marry in their assumed gender. It would satisfy the Goodwin judgment if the Bill provided only civil marriages for transsexuals, but the Government have gone much further, in effect giving the right to religious marriages for transsexuals.

Some Churches may be content to take part in this and that is fine. But many—and I would suggest most—would not be content. Yet the ground is laid for litigation against them if they refuse. The UK courts may take a more interventionist view on these issues than the court at Strasbourg.

One government argument against protecting Churches is that there is no need to do so because the transsexuals would not want to force such issues. But that ignores the fact that there is hostility against religious groups, which is sometimes manifested in litigation.

The Government recently brought in new employment regulations to outlaw discrimination on the grounds of sexual orientation. Protections were provided for religious groups, yet even these limited protections are now being challenged in the courts. The Government are having to defend the rights of religious groups against hostile litigation. Surely, they must accept that this Bill creates scope for more of the same.

The Minister says in his letter to me that he cannot guarantee that religious bodies will not face litigation. That is exactly the point. He is admitting that the Churches can be hauled through the secular courts over these issues. It really is appalling—and I say that advisedly—that the Government, it seems, are not prepared to do anything about it.

My amendment provides reassurances and protection for Christian Churches and those of other faiths. I beg to move.

Photo of The Bishop of Worcester The Bishop of Worcester Bishop 4:30 pm, 10th February 2004

My Lords, I hesitate to contest an amendment moved with such evident religious conviction, but I found the noble Baroness's speech confusing at a number of points. I am not clear whether the Church, which I serve, is in her mind a private or a public authority. I am clear that it is a public authority not simply because it is, by law, established but because, to quote an example she gave, the right to exclude a person from the Holy Communion is governed by canon law, which in this country is the law of the land. So it is not clear to me that at least the Church that is served and represented by people who sit on these Benches could ever claim to be a private authority with the rights of private authorities.

Secondly, it is not at all clear to me what is meant by "a Church". Does it mean a vicar in a local parish? Does it mean a bishop in a diocese? That confines my attentions only to the Church of England. What will count as "a Church" which has these rights?

What is included in the expression "religious activities or ceremonies"? Let me offer a hypothetical situation. I decide that it would be good to celebrate the patronal festival of St James, the patronal festival of Hartlebury, with a pageant on the village green. There is present at this event, which includes the singing of hymns and the saying of prayers, someone who is known to be a transgender person and a group of people start a disturbance. As I happen to be a person who dislikes conflict—and I ask noble Lords to believe that—I conclude that it would be better to ask the transgender person to leave than to confront the people making the disturbance. It seems to me that when then challenged by the transgender person, I can say that the religious susceptibilities of the significant number of my religion's followers have been offended and it was on that basis that I acted, even though I myself would have acted purely out of timidity and not out of conviction.

Is that really the road down which we as a society wish to travel? Do we really wish to deny people the protection that we should be offering them from such behaviour and do we wish thereby, in fact and implicitly, to encourage such behaviour? I ask that those who are troubled by this matter recognise that there is a serious balancing consideration. We are talking about a relatively small group of people who have usually been on a personal journey of a nightmarish kind to the point at which they have decided to undertake the most radical life-change that any of us could imagine.

I believe that we, as a Parliament, should be protecting such people from the kind of behaviour to which I have referred. We should also be protecting them from the arbitrary exercise of judgments by people who may or may not be qualified, except in the fact that they have a strong religious conviction, from taking the action that they take. I believe that the inclusion of the amendment introduces huge confusions as to what is a religion, what is a ceremony, what is a private body, what is a public body and what it is that we really want to protect people from.

So far—and some of us have questions even about this—we have sought only to offer the limited protection of those people who would otherwise be in jeopardy of litigation in respect of the exercise of their public office at particular public moments. That, I think, introduces a wholesale opportunity to discriminate and expose people to extremely dangerous situations. I hope that the House will reject the noble Baroness's amendment.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, it is a privilege to speak after the right reverend Prelate the Bishop of Worcester. Your Lordships may wonder what on earth a lawyer can add to what one has just heard from the Bishop, but I want to make a couple of further points explaining why I am strongly opposed to the amendment.

I want first to clarify one matter. The only way in which the Gender Recognition Bill confers a legal entitlement on transsexuals not to be discriminated against is in the employment and related field. That is made quite clear in the Explanatory Notes, and in Schedule 6 one sees that the only parts of the Sex Discrimination Act which are modified in favour of transsexuals are the employment and related provisions. No one could bring a discrimination claim under the Bill against the Church or anyone else in the provision of services or facilities to the public. It is important to recognise that.

It has been criticised by the Joint Select Committee on Human Rights, of which I am a member. We argued that the Bill, like the Sex Discrimination Act, should have covered not only employment but the provision of goods, services and facilities to the public. Had it done so, an amendment of this kind might, if carefully tailored and much narrower, have been appropriate. In terms of the claims of transsexuals to equal treatment without discrimination, as a matter of law it is entirely inappropriate and unnecessary. That is the first matter I want to deal with.

The second matter is that in subsection (2) the amendment, like the equality regulations on sexual orientation and religious discrimination that were the subject of much controversy in your Lordships' House, allows a prohibition where it is necessary not only to,

"comply with the doctrines of the religion", but, and alternatively, to,

"avoid offending the religious susceptibilities of a significant number of the religion's followers".

That is a surrender to mob prejudice and group prejudice of all kinds, as the right reverend Prelate the Bishop of Worcester explained when we debated a similar exception in the employment field. I can understand an argument that makes it appropriate to comply with the doctrines of a religion in terms of the need for religious freedom. If there really is a religion that is so bigoted that it wishes to exclude or discriminate against someone who has had their gender reassigned, then perhaps there is an argument for deferring to that in striking a fair balance. But how can it be right to strike a balance by not complying with the doctrines of a religion but by the avoidance of offending the religious susceptibilities of "a significant number", whatever that means, "of the religion's followers", whatever that means? If your Lordships approve the amendment it would send a signal that your Lordships' House was in favour of that kind of mob rule, which I am certain is not the case.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I feel in my heart that the noble Baroness, Lady O'Cathain, is right to envisage the problems which may arise from the legislation, and that perhaps, with every respect to the right reverend Prelate, there is just a touch of complacency in some of his comments.

It is a great pity that, neither in this debate or earlier debates, have we heard the voice of Islam in this House. My friends of that faith tell me that they have grave reservations about the legislation. It is also a great pity that so many of our proceedings were undertaken while the noble Lord, Lord Patel of Blackburn, was away on pilgrimage to Mecca. It would have been most welcome to have heard his views, speaking for his religion. That would either have persuaded me that my fears were wrong, or might have persuaded the House that my fears were well founded.

When the Minister replies, I hope he will give an undertaking that if the fears expressed my noble friend Lady O'Cathain are proved to be true, despite the comments of the legal experts—and we all know that in every case half of the lawyers are wrong—if they are well founded and there are successful legal actions, the Government will come forward with amending legislation to protect the Church, even against itself.

Photo of Lord Clarke of Hampstead Lord Clarke of Hampstead Labour

My Lords, I support the amendment tabled by the noble Baroness, Lady O'Cathain. Even at this stage, I sincerely hope that my noble friend the Minister will accept it. In my limited ability, I cannot deal with the legal niceties of learned Lords or the intellectual capacity of a Bishop such as the right reverend Prelate. I can speak in the House only as a person who tries to understand matters in the simplest way. The feelings of religious groups on the subject are well known to every Member of the House. They know that from conversations on not just the Christian faith, as has just been mentioned, but on other faiths. Their views on the proposals in the Bill and the amendment are widely accepted and respected.

For the life of me, a simple person, I cannot understand why my Government, the Government I support, are so determined to resist an amendment that clearly protects. The right reverend Prelate spoke about our duty to protect people. We also have a duty to protect religious groups and Churches. We have heard clear threats to Churches and their finances and we know of the misery that is often caused when people are dragged through the courts. The feelings of others should always be considered. Without the amendment the feelings of many people will be offended. If the noble Baroness, in the absence of the Government acting with common sense, has to test the opinion of the House, I shall willingly follow her into the Lobby. Even at such a late stage I hope that will not be necessary.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, I was looking at the front pages of today's Times and Daily Telegraph and now I understand why our dear, much-loved and so woolly Church of England is in such a muddle over the amendment. It has, after all, decided that the Three Wise Men are now neutered—have they been transgendered or not?

Photo of The Bishop of Winchester The Bishop of Winchester Bishop

My Lords, perhaps I may respond briefly to the noble Earl. He needs to be wary of what he reads in particular newspapers that I shall not name, or any newspaper, on that kind of matter. But that is not why I am speaking.

I shall approach the noble Baroness's amendment by expressing my warm appreciation for the courtesy, attention and patience of the Minister and his colleagues and of his officials—the latter over many months and in many meetings long before the Bill reached your Lordships' House. Paragraph 3 of schedule 4 is, I hope, not only warmly welcome to us, but something of a first. I am grateful for his explicit assurances that such meetings can continue and that we can persevere at working not only with the Church of England but with representatives of other Churches and—as the noble Lord, Lord Tebbit, notes—to see whether acceptable ways forward can be found around the issues of disclosure and discrimination in particular.

The Minister has received two sides of a letter from me that expresses both my appreciation and anticipation of such further work and our hope that we can start on it soon. That is because—and it is appropriate to the amendment—I noted and warmly welcomed the assurance by the noble Lord:

"Clearly, in part, much of these discussions has concerned trying, if possible, to provide the proper rights to transsexual people that we clearly believe should be provided in a civilised society, and to do so in a way that does not, at the same time, infringe their right to freedom of religion and to freedom of religious expression".

He then accurately ended that paragraph by saying:

"We are debating on that cusp".—[Official Report, 3/2/04; col. 644.]

That brings me directly back to the amendment tabled by the noble Baroness. As she and other Members of the House who worked on the issue in the past weeks know, I have much sympathy for where the noble Baroness and those people for whom she speaks are coming from. There are matters of real concern. For me, the fact that we have not achieved some safeguards for other Churches and faiths on the face of the Bill, specifically regarding the solemnisation of marriage, is a matter of real concern. I remain, but am not very, hopeful that that question will be approached in another place. Having said that, I hope that I am not immediately disappointing the noble Baroness, because she knows that for me the amendment is quite a few steps too far. The balance of the sort that is needed, and to which the Minister referred on 3 February, is not where I should want to see it. So, although I am with the noble Baroness to a significant extent, I cannot go with her to the extent of the amendment; but I hope that several of the issues that she had in mind may be approached in further discussion, which is necessary.

While I am on my feet, I listened carefully to the noble Lord, Lord Lester, who cited the amendment and traced it back to its origins in existing legislation. In particular, he made an observation about the real difficulties that that legislation contains—that it mentions avoiding offending the religious susceptibilities of a significant number of the religion's followers. But what is "a significant number"? The Church of England, other Churches and other faiths hope to continue to work closely with the Government to attempt on this and a range of other matters to determine what the provision may mean.

Few Churches or faiths in this country or anywhere else are entirely monolithic. For me and others in the Church of England—of course, we on this Bench do not always speak with one mind—those words will prove important and we shall have to work out what they mean. It is in such areas, among others, that the careful work that I am delighted that the Minister has offered to continue will be especially welcome.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour 5:00 pm, 10th February 2004

My Lords, I hope that my noble friend will not feel disposed to accept the amendment. I oppose it because it seems rather intolerant. I speak as someone who is not a believer—I happen to be vice-president of the British Humanist Association—but I have always believed passionately in people's right to practice their beliefs and participate in religious ceremonies.

We are discussing a relatively small group of people who have had pretty awful experiences and may themselves be rather damaged individuals. They are the very people who are most likely to need the consolations of their religious belief. To pass an amendment that would prohibit them from expressing that religion and attending religious ceremonies is simply unkind and would add to the difficulties that such people encounter.

As noble Lords have already pointed out, new subsection (2)(b) provides for a kind of mob law to prevent those people from having the right to exercise their beliefs. I therefore hope that my noble friend will not feel disposed to accept the amendment. It is intolerant. Its wording is unclear: what does participation in religious activities mean? That could mean an employee engaged in selling religious artefacts in a cathedral shop, for example. That wording is far too wide and, in any event, to prohibit people from attending a religious service that may mean an enormous amount to them would be quite unkind. I hope that the amendment is not accepted.

Photo of The Earl of Erroll The Earl of Erroll Crossbench

My Lords, I have had more lobbying—more letters—on this issue than on either the Hunting Bill or the homosexuality clauses in other Bills. I thought that anti-discrimination legislation was to stop an individual imposing his views on others of a different nature. In general, for people of high moral principle, their religious belief is at the very core of their existence. They come together and congregate in churches. What worries me about the Bill is that it allows individuals aggressively to impose their view of the world and of their nature on such groups.

Even if the amendment is imperfect, it is necessary to include it in the Bill at this stage. I understand the reservations of the right reverend Prelate and others, but it is better to include the amendment now and then tidy it up. It should come down to congregational rather than whole Church level, because some congregations may accept the approach and some may not. We should allow that diversity in the Churches. We need the amendment included now to start the defence, because the provision can be amended in another place. The Bill should defend churches from transsexuals who would discriminate against church congregations' beliefs.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I shall be brief. I came to support the amendment but, having heard the speech of the right reverend Prelate the Bishop of Winchester, although I support the principle behind the amendment, I cannot support it. The principle behind it is the entitlement to have a derogation from the provisions of the Bill of generic application to all purposes recognised by law in favour of religion. That principle I adhere to. But, as the right reverend Prelate pointed out, the balance has gone wrong—especially in paragraph (b).

In our predominately Christian, multi-ethnic, multi-religious society, which is tolerant of all faiths—atheists, agnostics, Dissenters, or what have you—one ought to defer, if one can, to the authority of the established Church as an estate of the realm, which was confirmed as long ago as towards the end of the first millennium by exchange of oaths on the coronation of King Edgar.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I shall just say one or two things following from the observations of the noble Lord, Lord Lester of Herne Hill. He pointed out plainly that words similar to the amendment are already in the legislation of this country—no doubt subordinate legislation; but legislation nevertheless. He describes that as an illustration of mob rule, but it is mob rule, if he likes to call it that, that is recognised by our legislative authorities. Therefore, what he calls mob rule depends on his view that someone who objected to a transsexual taking part in a religious ceremony would necessarily be bigoted. We all understand that one difficulty about religious freedom is that what is freedom for one may appear to be bigoted to another.

It is important that this Bill already recognises in paragraph 3 of Schedule 4 the right of a clergyman not to solemnise the marriage of someone whom he reasonably believes has an acquired gender under this Act. That recognises plainly, in an important area, the religious view or attitude of a clergyman. The amendment proposed by my noble friend does not prohibit anyone from taking part in a religious service; it empowers a religious body, if that is required by the doctrines of that body, to make such a provision. It does not oblige any religious body to do so, it provides only for religious freedom.

The right reverend Prelate the Bishop of Winchester said that he would go a certain distance with this amendment, but not the whole way. The problem will be that if this amendment is rejected at this stage, it is highly likely that what he wants to happen will be somewhat difficult. I am interested to hear what the Minister will say about that and about the extent to which he is able to give undertakings about it. My understanding of the matter is that the Minister believes that religious freedom may require a religious body to have some sort of protection, but he believes—as his letter to my noble friend seems to suggest—that the secular courts will give that protection in a suitable case.

This amendment does something that requires serious consideration. If the wording needs to be improved, there is ample scope for that to be done in another place, but the principle of the amendment might well be recognised here. I support it.

Photo of Lord Monson Lord Monson Crossbench

My Lords, the noble Lord, Lord Tebbit, is right. We have not had a chance to hear the views of Muslims on this Bill. Apart from the last speech, we have not had a chance to hear much of the views of non-conformist Christians, either. Moreover, with all deference to the right reverend Prelate the Bishop of Worcester, I suggest that his views do not necessarily reflect the views of all Anglicans.

When the Minister winds up, can he say whether—in the unfortunate event of this amendment being rejected—a woman who becomes a man will be legally entitled to demand to be trained for the Roman Catholic priesthood, and if they pass all the necessary tests and exams, will they be legally entitled to be ordained as a Roman Catholic priest?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, those who have followed this Bill from Second Reading through its stages will be aware that, quite properly, we are not coming to these issues for the first time. They have been at the centre of our proper processes of exploration and testing from Second Reading through consideration in Committee and on Report. I say to my noble friend Lord Clarke of Hampstead that we have been giving these issues serious consideration before the Bill was drafted and throughout its passage.

As has been said, the concern, in short, is that the Bill will compromise the freedom of religious organisations. Clearly, in what we stand for as a society, irrespective of what the Human Rights Act 1998 says, we are trying to look at two issues at the same time: a belief in the importance of freedom of worship and a very strong belief in the importance of giving legal recognition to an oppressed and ignored minority that is at the centre of this Bill. We have been working and probing with the Churches, both before this Bill came into this House and throughout its passage, the tension between those two areas and how we strike a balance.

As has been signalled, these issues are not simple; they are not easy. The Churches themselves do not speak with one voice on these matters. Is there any expectation or reason why they necessarily should? I was grateful for the way in which the right reverend Prelate the Bishop of Worcester spoke on Report, in putting what seemed to be an important balance on to some of these issues. For some of us, that chimed with what we had expected to hear from faith communities, as well as hearing the sensitive issues about concerns on some of the sharper areas.

Let me also mark that we have, through the process of reflection, discussion and consultation with faith communities—that process has been both a duty and a privilege—we have sought to listen and to move where we thought it was appropriate. We put into the Bill at First Reading an explicit exemption around marriage for ministers of the Church of England and the Church in Wales. For good reason—when they perform a marriage ceremony, ministers of the Church of England and the Church in Wales are effecting a civil function as well as a religious one. The burdens on them are therefore explicitly strong. Without that exemption they would have been caught. We made that provision explicit so that clergymen were exempt in conscience, if they wished to be so, from any challenge to them if they did not wish to carry out a marriage.

Since the Bill was introduced, we have gone further and amended the provision to protect further those ministers otherwise obliged to solemnise marriages, extending the conscience clause to a situation where a clergyman reasonably believes that one of the parties to the marriage has been recognised in the acquired gender. We have listened to the arguments put to us and were open to the point that there might be circumstances where a clergyman had reasonable grounds for belief that the information had not been disclosed, and that they were protected in those circumstances if they said, "No, I am sorry, I do not wish to solemnise a marriage for you". In this case, we are talking about Anglican clergy. Therefore, we have been listening. I have been glad to meet the noble Baroness, Lady O'Cathain, and others, along with my officials to explore the issues.

The issues turn on two sets of arguments: moral and legal. I shall be cautious about what I say about the moral arguments, because perhaps government Ministers should confine themselves to the law on such issues. The question of whether religious organisations ought to exclude transsexual people from participation in religious activities is certainly at bottom a moral argument. However, I say from the government Front Bench that one hopes as a society, given the importance that we place on tolerance, that in most situations religious organisations would not wish to discriminate against transsexuals but would recognise the humanity in them and welcome them as part of their faith community. I shall say no more on that.

It is therefore open to a religious community to decide whether it wishes—I was surprised to hear it—to say that it will refuse to administer Holy Communion to a human being in those circumstances. At heart, however, that is not a matter for me, but for them. It is a matter for me only in my private life, when I have opportunities elsewhere to argue those points.

On the legal arguments, I shall address first the solemnisation of marriage. The issue at heart is that no minister of religion other than an Anglican clergyman—a Muslim or Baptist minister, for example—is obliged by law to solemnise a marriage. Nothing in the Bill changes that; they are at perfect liberty to continue to refuse to solemnise a marriage of anyone whom they know or believe to be a transsexual. There is no catch to them as regards the freedom of action that they already have. I know from our many discussions that the noble Baroness, Lady O'Cathain, understands that point. Without boring the House by discussing the public function issue in detail, the reason is that, apart from in the Church of England or the Church of Wales, when solemnising a marriage, a cleric would not be considered to be exercising a public function. They are not public authorities in that context; therefore, they are not subject to the obligations of the Human Rights Act 1998.

The second area of debate is access to facilities. The short answer, on which the noble Lord, Lord Lester of Herne Hill, was clear and crisp, is that the Bill does nothing to change discrimination legislation. It has been a source of criticism from some Benches that it does nothing to change the law. It is a matter of fact that it does nothing to change the law; therefore, discriminatory action that was legal before the enactment of the Bill is still legal afterwards. The current situation whereby a Church might be able to be taken to court by an aggrieved person because it has or has not done something will not change after the Bill has been enacted. I cannot believe that the noble Baroness, Lady O'Cathain, said that in some ways the Churches can never be taken to court as a result of any of their actions. That would be either to reinstate the Church courts or to create a theocracy. That cannot be the argumentation.

The central point is that the Bill does nothing to change discrimination law. We have explained on several occasions why that is. Essentially, it is about a narrow focus giving legal recognition to a very small group of people after they have gone through a proper process of testing to recognise their change of gender. We have indicated further that the European Union has signalled, under the terms of its draft sex discrimination directive, that it is looking at the issue of sex discrimination across Europe. For good reason, we have said that issues about where discrimination should or should not be allowed to take place should be examined as part of that process, to avoid taking two bites of the cherry. We should be having this debate in the future, not now, as we are not changing the law in this respect.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I am grateful to the Minister. Of course, the noble Lord correctly says that we are not changing the law on sex discrimination. But what he omits to say is that in the past there has never been any dispute as to the sex of persons. We now have a situation where there will be a group of persons who will claim a sex which a number of other people will say is not their sex. That is where the new problem arises without having changed the law on discrimination between male and female.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I thank the noble Lord, Lord Tebbit, for his intervention. I also mark the resolute way in which he has argued his corner throughout the Bill. The short answer is that the Bill does nothing to change the law about discrimination against people as transsexuals. We are talking about discrimination against them as transsexuals rather than discrimination against them on account of their sex. If the noble Lord is patient with me, I shall seek—

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I am grateful to the Minister for giving way. The Minister has said several times that this does not change the law on sex discrimination. But that is not quite right, is it? It changes it in the employment field. The point is that the amendment does not touch employment. It does that by embracing the employment provisions of the Sex Discrimination Act for transsexuals.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, at earlier stages, I signalled that employment was different and that it was a specific area. I acknowledge the point made by the noble Lord, Lord Lester, in that respect. In fact, if I had only waited: the present protection exists only in the realm of employment and vocational training. The moral of that is that it is always better to use one's speaking notes than to speak off the cuff.

It does not extend to participation in religious activities. In effect, it means that the freedom for religious organisations to discriminate against transsexuals sought by this amendment already exists. Many will say that it should not, but that is not what we are debating. In fact, the ability to discriminate is there in law already.

The Bill ensures that, as a consequence of recognition, a person is protected under sex discrimination law in the acquired gender. However, religious organisations, as in the many examples given, will not be discriminating against a person who has changed gender on grounds of his or her sex, but on the grounds that he or she is a transsexual person. We do not believe—we are strong in our view that sex discrimination law will restrict the freedom of religious organisations in this matter.

The noble Baroness suggested that differential treatment of transsexual people might be considered to be sex discrimination. This is on the basis that, for example, a female-to-male transsexual person with a gender recognition certificate would be allowed to use the ladies' toilet facilities, but a male-to-female transsexual person would not. I find it difficult to see that a church would wish the female-to-male transsexual person to use the ladies' toilet, but that is the noble Baroness's assumption. Even if that were the scenario, we do not think that the courts would accept that that was discrimination on the grounds of sex. The courts have demonstrated that they are not prepared to stretch provisions about sex discrimination in order to prohibit action, which is in fact discrimination on a ground other than sex. That would be the case here. What is described is clearly discrimination on the basis of the individual having changed gender.

Before I move on to the specifics of other issues that were raised, perhaps I may respond explicitly to the points made by the noble Lord, Lord Clarke of Hampstead, and the right reverend Prelate the Bishop of Winchester. Previously, I have given undertakings that as part of the Government's process of looking at the application of the shaping of EU legislation and its application into domestic law, we will continue with our close discussions. I repeat that.

We would be happy to talk with the Churches about the implementation of the legislation when it is passed. The Churches will understand that, as I have signalled previously, that is not to sign a blank cheque, but it is within the broad policy framework that we have signalled. I think that is understood, so I am pleased to give that reassurance.

I was asked about the sport exemption, which does not exclude transsexual people as a class. It refers only to those people who have a competitive advantage or where there would be a threat to the safety of others. Religious organisations, unlike sporting bodies in this context, are not public bodies and, hence, the Human Rights Act does not apply to them in this way. I could say more, but perhaps we have said it at previous stages.

In short, nothing in the Bill—with the exception of which the noble Lord, Lord Lester, has reminded me—changes the law on discrimination. It is possible that future law may address those issues, and we shall be pleased to work with the Churches and the faith communities to explore them. We have been pleased to make some significant movement on the Bill in order to address the areas in which we feel there is a just case for the Churches to be listened to. But at the heart of the Bill is the concept of giving legal recognition to a very small number of people who for much of their lives have felt a fundamental discontinuity in their lives. After a proper process of testing, we believe that it is right that the state should give them that legal recognition. I therefore ask the House to reject the amendment.

Photo of The Bishop of Winchester The Bishop of Winchester Bishop

My Lords, before the Minister sits down, will he respond to the question from the Cross Benches about the position of a postulant for the Roman Catholic priesthood?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I apologise for not having done so previously. If I recollect correctly, the noble Lord, Lord Monson, asked the question. The position is that in the circumstances to which the noble Lord referred, the Roman Catholic Church would be totally at liberty to refuse ordination and would not be open to an action.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I thank the noble Lords who have spoken on the Bill, particularly those who have supported me, and I thank the Minister for his reply.

I reiterate that my amendment in no way changes the principle of the Bill. It certainly does not attempt to be intolerant. I fear that those who suggest that it will lead to mob rule have not understood where I am coming from. Perhaps I have not made it clear enough. However, I was rather surprised by some of the reaction. I shall not deal with all the points that have been raised, but I should reply to some that were made by noble Lords who object to the Bill.

First, I believe that the scenario suggested by the right reverend Prelate the Bishop of Worcester about the patronal festival of St James is unlikely to be covered by this amendment. I feel that the right reverend Prelate should not distract from the purpose of the amendment, which is to provide reassurance and greater legal certainty for the Church. We should concern ourselves with the rights of all religions, both Christian denominations and others, and should protect their freedom to decide what they do in their own churches.

I turn to the comments made by the noble Lord, Lord Lester. His points could be covered by my statement that the Bill is all about balancing rights. I believe that this amendment is necessary to balance the rights of Churches against those of transsexuals. That is not to say that I have anything against transsexuals. I am extremely supportive of the compassionate feeling for them. It is always difficult to be the odd one out. I have known about being the odd one out, though not to such an extent. We can all feel isolated in certain circumstances. Transsexuals can feel isolated, and it is right that we should give them every support. However, it is right that those people who have strong beliefs should also be given support.

The Bill provides some protection for religious people who believe that your true sex is the sex that you were born with. On issue, a male transsexual is always a man and a female transsexual is always a woman. But the Minister's point that in terms of marriage any church minister or Muslim minister can be protected is not covered by the Bill—only ministers of the Church of England and the Church of Wales are covered.

The Government did not deny that church ministers could be sued if they refused to conduct such marriages, and that is why they seek the inclusion of a conscience clause. I want to strike a balance here. If provision is made for ministers of the Churches of England and Wales, why not for Roman Catholics, Baptists, for other non-conformist Christian denominations, for those of the Jewish and Muslim faiths and all others? The Government now admit that other religious groups could be sued, a point I made earlier. I take the view that other Churches and non-Christian faiths need the protections given to the Churches of England and Wales.

A recent Law Lords ruling found that a church marriage performs a governmental function. When people get married in church, the Church is acting in place of the state and is therefore open to challenge under human rights legislation. What we are considering today is no academic debate. Instead of a legal argument in your Lordships' House, under the Bill there will be costly legal arguments in the courts. A vote for my amendment is a vote to defend our existing religious freedoms from hostile and expensive litigation.

Before the Bill was even printed, several Churches had been threatened. I referred to one court case when moving my amendment. A man sued a Church citing sex discrimination legislation. I ask: is access to a ladies' prayer meeting to be defined as "goods and services" under the terms of the sex discrimination Acts? Let us not forget that some of the people who will receive, as they want, gender recognition certificates, rendering their original birth certificates null and void except in the case of the police and criminal prosecution bodies—they have the right to use the original documents—need not have had gender reassignment surgery. It is rather feeble to say that if a male transsexual becomes a woman, he may use the ladies' lavatory and not cause distress. I put it at its simplest.

The Bill is being used as a means to threaten legal action against Churches. The fundamental question is: are Churches to be protected? The Minister has said no. The Government are prepared to protect sporting bodies, but not Churches. I welcome the Minister's reiteration that there will be ongoing discussion and debate about the Bill, but the Bill will leave this House tonight. What influence will we have? We are not actually "Top of the Pops" for the people down the corridor.

This Bill enables a battery of legal rights to be deployed against a Church. A secular court will be able to adjudicate on the most precious belief; that of religious belief. The Government say that the Bill is necessary to protect the rights of 5,000 transsexual people. I say again that we all understand their difficulties and we want to see them treated with the utmost compassion. But what about compassion for the millions of people who do not want their most precious religious beliefs trampled upon by the courts?

To those who say that they speak for society by supporting the Bill as originally published, I say, look at the postbags of many Members of your Lordships' House. They show the real concern felt among the general public about the issue of religious liberty. To those who approve of the Bill, I say that my amendment does not affect the principle here, it merely gives to Churches the same freedoms which the Government have already given to sporting bodies. I urge noble Lords to vote to protect religious freedoms and I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 144; Not-Contents, 149.

Division number 3 Private Parking: Ports and Trading Estates — Gender Recognition Bill [HL]

Aye: 142 Members of the House of Lords

No: 147 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Clause 22 [Prohibition on disclosure of information]:

Photo of Lord Marlesford Lord Marlesford Conservative

My Lords, I am relieved that my amendment is less intellectually complicated and certainly less philosophically challenging than the discussions that we have had. Therefore, I hope that I can speak reasonably briefly to it. The amendment seeks to remove Clause 22 from the Bill. To do so would have no effect on the general purpose of the Bill, which is to give official recognition to those who have changed gender. Indeed, I, like other noble Lords, have great sympathy for those who suffer from the medical condition known as gender dysphoria.

Clause 22 makes it a criminal offence for certain categories of people to reveal that a person has changed gender. I believe that Parliament should be wary of creating additional criminal offences; there are quite enough already. Each additional offence, before it is passed, should be subjected to certain, rather obvious, tests. First, is it necessary? Secondly, would it achieve the purpose stated? Thirdly, is it enforceable? Fourthly, do the law enforcement agencies have sufficient resources to enforce it?

I do not believe that Clause 22 is necessary. Those people who come across information on gender change in their official capacities, whether, for example, they be medical people or civil servants, are already bound by ethical conventions, professional rules and laws of confidentiality. No doctor or nurse gossips about his or her patients. Civil servants are bound by the Official Secrets Acts 1911 and 1989. Last week, when we had a brief discussion on this amendment, which I did not then move, the Minister, the noble Baroness, Lady Hollis of Heigham, said:

"Respect for a person's private life means that we must alleviate some of the dangers of humiliation, embarrassment and harassment . . . being reminded of the original gender, being confronted by it regularly, having others knowing that you suffer from the medical condition and knowing that they might be talking about it is [not] conducive to feeling secure".—[Official Report, 3/2/04; col. 665.]

That is absolutely true. Indeed, it applies to many medical conditions, especially sexual or psychological conditions.

Clause 22 does not deal with that. The Minister, the noble Lord, Lord Filkin, very kindly wrote to me yesterday to explain:

"Clause 22 only applies when information is acquired in 'an official capacity'. No doubt this does mean that gossip and rumour about a person's gender history can continue and is not unlawful when it is conducted by people who have acquired the information in a private capacity . . . 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. Any such prohibition would also be almost impossible to police and it would be very difficult to gather enough evidence for the purposes of a trial".

Quite so. The clause does not cover malicious gossip, but it does cover a wide range of people, other than civil servants, who might have totally legitimate reasons for needing to know. It covers anyone involved as an employer, or prospective employer, in the slightly quaint words, anybody involved in "the conduct of business".

If we were talking about employment law on the grounds of gender, as we have heard from the noble Lord, Lord Lester, and from other noble Lords, we already have legislation to protect from discrimination. In his letter the noble Lord, Lord Filkin, tells me that this clause is required by Article 8 of the European Convention on Human Rights.

Article 8 merely states:

"Everyone has the right to respect for his private and family life, his home and his correspondence", and then goes on to list exemptions from that right. If we were to legislate to enact the very general provisions of Article 8, almost every Bill would need a Clause 22. Clause 22 does not provide privacy protection where it could be needed, but offers it where it is already provided for. In cases in which anyone might wish to enforce the provision, it would difficult to prove the case, and would use considerable resources that are scarce and needed for the protection of people from real crimes. Such resources would probably be used for little purpose.

With the best intentions, the Government have got themselves into several muddles over this Bill. Indeed, I suspect that they wish that they had tackled the need, which I accept, for official recognition of gender change by a much simpler administrative action. By removing Clause 22, the Bill would fulfil its intention and be a much better one. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, it may be helpful if I draw to the attention of the House the fact that the Joint Select Committee on Human Rights dealt with this matter in our fourth report, when we considered a complaint by the Evangelical Alliance. Those who lead the sort of sad lives that involve reading such documents might be interested to know about the issue. Paragraph 4.38 states:

"the Evangelical Alliance argued that the provisions protecting the privacy of those who have acquired a new gender would violate the right of others under ECHR Article 10"— the free speech guarantee—

"to receive truthful information about a person's gender".

We unanimously—all-party and beyond party—concluded that that argument was unpersuasive.

We first dealt with why Article 10 was not really triggered. We then came to the view that free speech rights had to be balanced against the Article 10 rights of the transsexual person and decided that any court would probably conclude that the clause is,

"a proportionate response to a pressing social need . . . for the purpose of protecting the right of the transsexual person to respect for his or her private life under that paragraph, as determined in judgments of the European Court of Human Rights".

I listened very carefully to the noble Lord, Lord Marlesford, and respectfully say that I do not agree with him. This type of provision is particularly necessary in this Bill because we are concerned with respect for the private lives of this small category of vulnerable persons against the possibility of information being transmitted by persons in an official capacity or by employers in an unnecessary or disproportionate way. Clause 22 carefully balances the need to respect personal privacy against other rights and interests, because Clause 22(4) sets out a variety of circumstances in which it would not be an offence to disclose protected information relating to the individual.

I have carefully considered—as has the Joint Select Committee on Human Rights—the way in which the clause is drafted. We believe that the Bill as a whole is designed to promote rather than invade fundamental rights and freedoms. We conclude that the clause strikes a fair balance and is necessary in order to comply with Article 8 of the convention.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I rise briefly to support my noble friend Lord Marlesford. When the matter was discussed at an earlier stage, fears were aroused that reporters from the tabloid press would go fishing around trying to discover from registrars of births and deaths whether they knew of anyone who fell into the category of transgender persons who had been issued with new birth certificates falsely purporting that they had been born male when they were born female, or vice versa.

The Government have decided that they must ensure as best they can that no registrar or any other person in possession of such information in an official capacity should leak it. I do not know how many noble Lords know very much about the tabloid press. I confess that I have a nodding acquaintance with it—a closer one than the Secretary of State for Defence does, as recent events show. Most of the information that the tabloid press has is picked up in the pub from people who have picked it up somewhere else along the way.

Who will know and be legally empowered to pass on such information? They will be the workmates, friends or the family of such a person. That is the very area where the reporter or stringer from a tabloid paper picks up his information. Above all, Clause 22 will be ineffective in protecting the person. All it will do is punish an official, such as a registrar of births and deaths, for revealing the fact that somebody was born a girl although the birth certificate says that the person was born a boy.

That is it. It is a very heavy sledgehammer to attempt to crack a nut, particularly when the people most likely to discuss such matters and to talk about them to the press are not covered by the clause. The noble Lord is right that the clause is objectionable and needs to be thrown out.

Photo of Lord Selsdon Lord Selsdon Conservative

My Lords, I am a little worried because of the international requirements regarding birth certificates. For example, in the Middle East where I have been many times, one often has to produce one's birth certificate and that of one's parents. If someone changes his birth certificate, it has to be changed all the way back through the line.

I do not want to make a speech like that of the noble Earl, Lord Ferrers, on such issues, but it is complicated to know who you are these days. Around the continent of Europe there are only two names. The noble and learned Lord the Lord Chancellor, would be known as "Falconer, Charlie". His birth certificate would also be required—but he was probably not a Lord at that time—because a passport is not necessarily proof of identity. I have found that because the first part of my name is sometimes given as, "The right", I am known as "Monsieur Right The". The last bit of my title is "of Croydon", so I am called, "Croydon Of"—Of being a Norwegian Christian name.

We therefore need to think right the way through the history of the birth certificate. That applies inevitably to some hereditary Peers whose father at the time of their birth were not called "Lord this or that" because their grandfathers were alive. Once the chain is broken by a change in a birth certificate it could be deemed to be extremely fraudulent in certain countries.

I believe that such a clause should not be necessary because common decency should prevail. It is only when people follow indecent thoughts that decency does not prevail. I am therefore inclined to support my noble friend Lord Marlesford as the provision seems extraordinarily complicated. I wonder whether the Government have thought through the question of proof of identity and the requirement for the birth certificates of two or three generations.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, this is the first and only time that I shall speak in this debate. I do so simply to say that I believe that the Bill is entirely unnecessary, and has proved to be divisive. I wish that, in considering the interests of minorities, we might also consider the interests of majorities. Perhaps we ought to have a conglomerate Bill to protect the interests of majorities.

I was surprised when I received a Written Answer to a Question asking the Government to provide information on how many new criminal offences had been instituted and passed by Parliament since 1997, because that information was not kept centrally. In fact, we are going along willy-nilly, making more and more offences and increasing the penalties for offences, but the Government—and probably the previous government as well—simply do not know how many offences there are for people to commit and what offences have had their penalties increased. I find that impossible to believe, but it is unfortunately the truth.

I am concerned about the Bill and the unjoined-up government that brings forward such Bills. I am against the Bill; I have been against the Bill since it had its First Reading. However, I have kept relatively quiet about it because, if I objected to every Bill, I would be up 24 hours a day examining them and making speeches about them, either in Grand Committee or here. I shall concentrate my attention on the amendment, which I shall support for the reasons put forward by the noble Lord, Lord Marlesford, and others.

The only point that I want to make about the clause is about its subsection (5), which states:

"The Secretary of State may by order make provision prescribing circumstances in which the disclosure of protected information is not to constitute an offence under this section".

That sounds very reasonable—except that everything else that the Government have not thought to put in subsection (5) will be an offence. I would like an explanation from the Minister about what that subsection means. A court that looked at it and the list of offences that are excluded would be bound to conclude that every other possible offence was included. After what I have said, I hope that he will be able to help me on that small matter.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 6:00 pm, 10th February 2004

My Lords, those who have contributed to debates on the Bill in its earlier stages will be well aware why the clause matters. In itself, it goes to the heart of why the Bill matters, as it essentially deals with the importance of ensuring—albeit belatedly in the United Kingdom's case—that the gender change of people who have had or have gender dysphoria and have been in that condition for a period of time should, after a proper process of testing, be recognised by the state. We are one of only two members of the European Union that do not do that now, and it is about time that we rectified that.

The clause is an important part of the Bill because the Bill is essentially about trying to allow people who meet its tests to live their lives in peace, quiet and decency in future. There is a limit to what the state can do in that respect, as I signalled in the letter to the noble Lord, Lord Marlesford. However, what we can do, we should do, which is why the clause is in the Bill. Let me set out why it is necessary and why, as the noble Lord, Lord Lester, so clearly said, it is also proportionate to meeting our human rights obligations.

The clause is intended to ensure that the disclosure of personal information without the consent of the person in question must be restricted; if not, we would fail the person's right to respect for private life under Article 8. As the Bill is clearly structured, it signals that all human rights legislation has to strike a balance between one set of rights for one individual with rights and freedoms for others. Therefore the right and freedom in this respect are governed and limited by the prohibitions on disclosure in a number of important respects. The privacy protection does not hamper the detection or investigation of crime; it does not prevent the Criminal Records Bureau from carrying out its functions. The prohibition will not, therefore, assist a transsexual person who is also committed to a life of crime from being identified or detected. Similarly, disclosure is permitted where it is for the purpose of proceedings before a court or tribunal. It is also permitted where 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 other public bodies from carrying out their statutory functions.

Clause 22 makes quite clear that disclosure may be made with the consent of the person to whom the information relates. This means that a person may be asked as to his or her gender history and, with his or her agreement, the information may be passed on to others who may need it.

Clause 22 also has another important limit. Not only does it enumerate a list of exceptions that allow disclosure where it is justified in public policy, it also extends only to information that is acquired in an official capacity. Clause 22 does not, therefore, cause harm to the liberty of individuals acting in a private capacity. It does not intrude into the private sphere. It would not be proper for the state to start poking into the content of conversations, as I indicated in the letter that I wrote to the noble Lord, Lord Marlesford.

On the one hand, there is the right of transsexual people to respect for their private lives, their interest in personal security and some level of control over what is sensitive personal information. On the other hand, by including specific exemptions and by staying out of the private sphere, the rights and freedoms of others are protected. Clause 22 and its subordinate limits have been carefully balanced to meet both our obligations under the Human Rights Act and our obligations in terms of decency and the rights of others.

Why does it matter? I can do little better than to draw the House's attention to a tragic article in the Guardian on 12 May. With the leave of the House, I shall refer to it briefly. It is about prejudice against a transsexual who committed suicide as a result of 10 years of prejudice against her. I do not claim that the clause will stop gossip, malice, evil or ordinary human beings from behaving in thoughtless ways that do damage, but we have an obligation as a state to seek to ensure that public officials or people acting in a public role are not part of that process. In that small and limited way we should so act.

I will not weary the House, but it is a tragic example of a person who experienced 10 years of harassment, vilification, physical assault and abuse on her house, which eventually drove her to commit suicide. In our small way— this is what the clause does—we have an obligation to act. Therefore I hope that the noble Lord, Lord Marlesford, will respect why we believe that this is an important measure and that, therefore, we do not support his amendment.

Photo of Lord Marlesford Lord Marlesford Conservative

My Lords, I am grateful to the Minister for his comments. I felt, frankly, that he very largely made my case, because he emphasised again the areas that the clause does not cover and that will not be helped by it. He referred to a tragic case which would almost certainly—although I do not know further details—come into that category.

I am sure that the noble Lord, Lord Lester of Herne Hill, would like to have every Bill with a Clause 22. There can be few examples that he would not be able to give where almost every clause of the Human Rights Act ought to apply if it does not already. Frankly, I was not convinced by the Minister.

Parliament has been increasingly criticised for its failure to put the executive right. In fact, that is one of the arguments increasingly put forward for the growing power of the media. I believe that in this small example we have the opportunity of correcting a nonsense and removing what I see as an ineffective and profoundly illiberal clause. I therefore invite noble Lords from all parts of the House to join me in the Lobby in removing it.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 108; Not-Contents, 145.

Division number 4 Private Parking: Ports and Trading Estates — Gender Recognition Bill [HL]

Aye: 106 Members of the House of Lords

No: 143 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

An amendment (privilege) made.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I shall be brief. First, I express my thanks, especially to the noble Lord, Lord Filkin, and his colleagues on the Front Bench. The Bill is highly contentious and quite emotive, and I greatly appreciated the courtesy and good humour with which it was debated in the Chamber; and, occasionally, the even greater humour with which it was debated just outside the door, I must confess.

I hope that the noble Lord will not think that I am misquoting him, for I cite from memory rather than Hansard, when I say that at the end of Second Reading, he declined to argue with me because he saw my objections to the Bill as being objections of principle and therefore incapable of being moved. That is rather a pity; we should sometimes try to change people's minds over objections in principle. In many ways, we should try harder at that. The noble Lord rarely dealt with the arguments for the numerous amendments that I moved. It was not a discourse of the deaf: we heard and understood each other; but, all too often, we did not really engage in debate about the issues.

On secular grounds, I objected to a law that requires a public servant to certify as true that which is not true. That is not that a person may have changed sex. Whether that is possible is a matter of debate, but it is not open to debate that if a child is certified at birth as female and subsequently gives birth, the odds are heavily that she was born a girl. A subsequent sex change may or may not be real, but it cannot change the fact of her birth. The Bill purports that that fact can be changed and requires a public servant to certify that it has happened, when clearly it has not. The Bill is unchanged not only from Second Reading but from First Reading in that respect.

On grounds of common sense, I objected to the fact that the Bill would allow the marriage of two persons, each bearing the chromosomes, genitalia and gonads of the same sex, provided only that one of them believed—and persuaded a panel of experts to believe—that he or she had changed sex. My amendment on that matter was rejected.

On religious—or, perhaps I should say, Church—grounds, I found myself greatly in agreement with my noble friend Lady O'Cathain on a number of amendments that she moved, all of which were rejected. I find it disturbing that sport seems in Ministers' minds to need more protection than religion. It seems to me that it is bishops rather than footballers who are an endangered species these days.

Lastly, I say again how sorry I am that we have not heard the voice of Islam in our debates. I think that, with the sole exception of sport, the Bill is now as bad a Bill as it was when it was introduced to the House. I therefore object to it and will ask the House to reject it.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I shall be very brief. At Second Reading, I did not say that I would not engage with the noble Lord, Lord Tebbit—I and others, especially my noble friends Lord Winston and Lord Turnberg, engaged with him brilliantly on the central issue of the difference between sex and gender. Essentially, I was saying that there is a limit to how much time I will spend—his time or that of the House. I was not optimistic that a man of his firmness of opinion was likely to be swayed by my puny argumentation. We have done justice to his issues, particularly at Report around that central issue.

The central thrust of the case of the noble Lord, Lord Tebbit, was that one's chromosomes are the beginning and the end of the story. The Bill does not seek to rewrite history. It does not seek to say that what was recorded at birth is not a historical fact. That is a historical fact; it is kept and it is recorded. The Bill recognises that in very limited circumstances, for a very limited number of people—after a proper process of testing, through medical opinion, advice and process test—it is right for the state to give recognition of a change of gender. The Bill does no more than that, but it is right that it does that.

We have spoken a number of times about sport. For the reasons that I gave not five minutes ago, we have been persuaded that there was a need to strengthen the protection on sport. That is all that we sought to do, and I am glad that we have done it.

We have just had a debate on religion. There is no point in me repeating that debate at this point. I took some small comfort that, on an issue that was so central to the Church, of those Members sitting on the Bishops' Benches who were present in the Chamber, three of them voted with the Government on the amendment. The calumnies that have sometimes been put about that we have been riding roughshod over the sensitivities of organised religion are untrue.

I will say no more, because it is for the House to decide this issue, rather than my persuasion. I commend the Bill to the House.

On Question, Whether the Bill do now pass?

Their Lordships divided: Contents, 155; Not-Contents, 57.

Division number 5 Private Parking: Ports and Trading Estates — Gender Recognition Bill [HL]

Aye: 153 Members of the House of Lords

No: 55 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative and Motion agreed to accordingly.

Bill passed, and sent to the Commons.

House adjourned at twenty-three minutes before seven o'clock.