Gender Recognition Bill [Lords]

Public Bill Committee, 16 March 2004.

Standing Committee A

Schedule 4 - Effect on marriage

David Taylor (Labour/Co-operative, North West Leicestershire)

I remind the Committee that with this we are discussing the following:

Amendment No. 43, in

schedule 4, page 26, line 34, at end insert—

'(3) A registrar of births, marriages and deaths is not obliged to solemnise the marriage of a person if the registrar reasonably believes that the person's gender has become the acquired gender under the Gender Recognition Act 2004.'.

Amendment No. 45, in

clause 22, page 9, line 37, at end insert—

'( ) the disclosure is made within the context of a recognised religious body for the purpose of maintaining its procedures, practices, ethos and beliefs.'.

New clause 5—Religious bodies—

'Nothing in this Act shall prejudice the rights of individual recognised religious bodies to regulate their procedures and practices in accordance with their ethos and beliefs.'.

Tim Boswell (Conservative, Daventry)

To date, the Committee has been characterised by a degree of temperance in its discussion of these difficult issues and also by a degree of sensitivity to the individuals involved. I do not think that anybody has paraded partisanship of either a party or a denominational nature. As far as I am concerned, long may that continue.

In relation to the Christian faith in particular, it is clear that there are sincerely held views on both sides of the argument about whether the Bill is acceptable in principle. There is also a good deal of concern about the practicalities of its operation. My hon. Friend the Member for South-West Bedfordshire (Andrew Selous) has performed a service to the Committee in bringing forward his concerns frankly with this group of amendments.

It is particularly germane to the clause to declare my personal interest: I am a practising Anglican. My wife and I were married under the rites of the Church in

Wales, because she comes from Wales. My mother-in-law, who is still with us, successively married two clergymen of the Welsh Church. After the death of my wife's father, her stepfather, who, sadly, is no longer with us, solemnised our marriage in Wales. I am sorry that the hon. Member for Ogmore (Huw Irranca-Davies) is not here this morning, as he was taught by my mother-in-law at school in her spare time from those other involvements. I am sure that both benefited from that. His contributions in Committee have been positive. I mention that because I have both an Anglican and, specifically, a Church in Wales interest in the matter.

Two general points lie across my hon. Friend's amendments. I have been reflecting on them over the weekend. The first is that there can be no absolute licence in the Bill for ministers of religion or anybody else. I do not wish to caricature my hon. Friend, because he is not asking for that. Indeed, the Minister will remember that, on Second Reading, I decided to trawl back to my extremely limited memory of Hardwicke's Marriage Act 1753, in which Parliament imposed severe penalties on the clergy over the regulation of marriage. Saying, ''I am a clergyman''—or a minister of any faith or denomination—''and I wish to do exactly as I think fit'' may be true under God, but it is not necessarily true under the law. I do not think that it would be reasonable for us to expect that.

That is, of course, subject to an important caveat. I think that it is a general principle of all members of the Committee that we should not restrain the exercise of people's sincerely held, faithful beliefs or the practice of their religion unless there is an absolute or overriding reason to do so. We should not put them in difficulty because of views that they hold or responsibilities that they assume under that religion. The Minister will know the European convention on human rights better than I, but I am sure that if we were to restrain religious practice, we would get into difficulty under another Act.

It is not unthinkable that Churches must be regulated under the law. Indeed, that point almost came up during the debate about the conduct of Churches, and the Minister will be familiar with it. There have been some problems with accountancy—which is not a matter of faith—in some of the charismatic Churches. Those have, quite properly, had to be dealt with under the law. Clearly we should allow people, particularly ministers of religion, doing their job in good faith and decently, as much opportunity as we reasonably can to carry that out.

My second point—again it is not intended to subvert my hon. Friend's argument, but to qualify it—is that it is quite difficult in law to stop people suing other people. As constituency Members of Parliament, we are familiar with somebody writing to us and assuming that we will immediately promote a case for them in the European Court of Human Rights about some aspect of their human rights. If that is unpacked, it is shorthand for saying, ''I've had a rough time and somebody ought to put it right for me. I think I know

my rights.'' One may or may not. Simply finding a public interest body that wants to promote such a case is quite difficult, expensive and fraught.

I am not asking the Minister to guarantee that under the Bill there will never be litigation against Churches, denominations or ministers of religion. It would be difficult to sustain that argument. However, we can quite properly ask him for assurances that ministers going about their work in good conscience and good faith, and in the interests of their parishioners, will not find themselves in unreasonable difficulty. That is why, particularly given the correspondence that I suspect all members of the Committee will have received from constituents and others, and the concerns that have been expressed by my hon. Friend, we need to look long and hard to determine whether a balance is struck and to check that people will not be unfairly penalised for doing their job or following their conscience. There must be a specific reason for them to be penalised.

Having reviewed my hon. Friend's amendments, I find my enthusiasm for them unequal. However, the points that he makes are all very serious and need handling. If the Minister cannot respond to them now, we may need to respond to them at a later stage—indeed, sadly, the last stage—to try to get this right. I accept the Minister's good faith. Clearly, he wants to get things right. As he knows, I support the general principle of the Bill, and I hope that he deals with this matter.

There is one other point that should inform everybody's consideration of the issue. It has been made strongly in my representations. People, including members of faith communities, strongly want to welcome transgendered individuals. They wish to extend Christian charity to them and to treat them properly.

Having made those general remarks, I turn specifically to my hon. Friend's amendments. Amendment No. 42 is about the clergy's obligations to marry people. I want to deal with two matters. There appears to be an asymmetry between the reliefs for the clergy in the Church in Wales, and those for the clergy in the Church of England, which remains the established Church. It appears that a clergyman in the Church of England is relieved of his obligation, which I understand is under public law—the Minister is nodding—to solemnise the marriage of a person if he

''reasonably believes that the person's gender has become the acquired gender under the Gender Recognition Act''.

However,

''A clerk . . . of the Church in Wales is not obliged to permit the marriage of a person to be solemnised in the church or chapel of which the clerk is a minister''.

That wording is clearly carefully considered and appears to have a slightly different effect.

My understanding is that English clergymen—I hope that I can use that shorthand, although there will be many clergymen who have come across the border; clergymen can transfer throughout the Anglican communion, as the Minister well knows—are relieved under the Bill of their obligations under public law to marry some people. The issue arises of the church, of

which one might be the incumbent or the priest in charge, where the marriage might take place. It seems that there is a possible advantage or greater flexibility for Welsh clergy in their practice over the border. An English clergyman would be able to say, ''I'm sorry. I cannot in conscience marry you.'' He may also say that to persons who have been divorced, but that is a separate issue. A Welsh clergyman might be able to say, ''I am not going to marry you, but I am also going to make sure that my church cannot be used for your marriage.'' I can envisage some difficulties of Church order in relation to that distinction. The Minister will be aware—I mean our Minister, the hon. Member for Tottenham (Mr. Lammy). I had better say that for the avoidance of any confusion.

Andrew Selous (Conservative, South West Bedfordshire)

Give him a dog collar.

Tim Boswell (Conservative, Daventry)

I know that the Minister used to be a choirboy in the cathedral in my constituency, so there are lots of connections in this debate. I shall now get back to the point. In England, someone may not permit a marriage that they would have to carry out, but may not be able to prevent a marriage from taking place in their church.

The Minister knows that in some parishes in England—one is near where I live—there are strong reservations on the quite separate issue of women priests. There is a particular view about Church order and practice—I am talking about the Anglican Church. Those parishes may not wish to have Church order disrupted behind the incumbent's back, as it were. It is important for the Minister to explain the basis for that apparent distinction. Why is the apparent advantage extended to the Welsh clergy not extended to the English clergy? Is there no material difference?

Andrew Selous (Conservative, South West Bedfordshire)

I should like briefly to illustrate my hon. Friend's point. On Sunday, I was talking to a Church of England clergyman at a church in Fulham. His response was that he would generally welcome transsexual people into his church, and I was delighted to hear that. On telling him that he would not have the power to prevent the marriage in his church of two people that he and his congregation believed to be of the same sex, he became very distressed. He was very unhappy about that provision. There is a lack of understanding of what the Bill entails among the clergy of the Church of England. Once it is explained to them, there will be considerable concern for congregations.

Tim Boswell (Conservative, Daventry)

My hon. Friend encapsulates the concerns of the debate. As I have made clear on previous occasions, including on Second Reading, for the Bill to succeed in its objective of helping transgendered people, it is important that the maximum degree of public acceptability and welcome is achieved, and that concerns are properly dispatched. I say to the Minister in all seriousness that there appears to be an unevenness in the provisions. I have

examined advice from ecclesiastical lawyers on the matter. They are concerned about the matter, too, and it needs clearing up.

There is the wider issue of the obligations of ministers and what they are allowed to do in the conduct of marriages. My hon. Friend has cited the remarks of the right hon. Member for Blackburn (Mr. Straw) while Home Secretary, which might have given rise to the suggestion that marriages performed by religious ministers were generally public duties, subject to public law. The Minister will no doubt remind the Committee that the legislation does not bite on goods and services, but it might do so if there were an overriding public obligation. Indeed, he has had to exempt Anglican clergy in England or Wales because there is a public obligation under public law.

Will the Minister confirm that it is the Government's view that all ministers of religion—non-conformist ministers, Roman Catholic priests and ministers of other faith communities—have no obligation to marry two persons, one of whom is transgendered, if they in conscience do not wish the marriage to take place? It is a private decision, with which I do not agree, but it is important that the individual should have that right. It is important because of what the then Home Secretary said and the general state of uncertainty in the law on the matter.

A related matter concerns the questions that a minister is entitled to ask when preparing persons for marriage. When two persons present themselves for marriage, I take it that the minister is entitled, either on an impression that he has formed or on unprotected information that he has received, and obviously if the parties talk about it, at least to ask, ''Is either of you a transgendered person?'' We will come to the disclosure of protected information, but I understand that he is not entitled to disclose it to other people, but can say, ''Before I marry you or even consider marrying you, I need to know whether one of you is a transgendered person.'' It would be helpful if the Minister clarified that on the record.

I am probably anticipating the point that my hon. Friend will make, but the situation becomes more difficult if persons are dishonest or refuse to reveal information and the minister is not aware of it. No moral blame should be attached to clergy and they should not reproach themselves, but it is not a matter for law or for the Committee.

My hon. Friend's amendment No. 43 encapsulates a separate issue about the duties of registrars. The Minister is aware that registrars operate under civil law, and it would be impertinent and inappropriate of me to suggest that they do not have to have a conscience, but their job is to carry out the requirements of civil law whatever their personal faith may lead them to do. In carrying out those requirements, their personal faith may not always be coincident with their legal obligations as a registrar.

I can imagine a registrar having strong reservations about divorce; I can imagine no situation in which a registrar could carry out civil duties by refusing to conduct civil marriages for divorced persons.

However, the area under discussion is more specialised; it is one in which we must establish public acceptability to the full.

I have corresponded with the Society of Registration Officers over the concerns expressed by the right hon. Member for Swansea, East (Donald Anderson) on Second Reading about registrars who might find themselves in moral difficulty when conducting or being asked to conduct a marriage involving a transgendered person. I have not received a response from the society; I might before Report but the time scale has not made it possible to get a formal response yet. I hope that the Minister will assure the Committee that he will consider the matter and that, if there were a conscientious objection, arrangements could be made for an individual registrar to stand down without incurring disciplinary action. That would provide, dare I say it, a third way between my hon. Friend's amendment and what is implied in the Bill.

Amendment No. 45 is about the disclosure of information. I shall stand back at this stage—I am sure that the Committee will be relieved—and reserve whatever I may want to say for a later clause. I shall not engage on the matter now, except to say to my hon. Friend that the best of all situations would be one in which individuals were prepared to give consent for release of the information. That is the overriding position. Things would be much easier all around. I understand the sensitivities, but, even within private deliberations, there must be some consideration of the extent to which information may properly be released and an understanding of the basis on which consent is given.

I shall reflect on what the Minister says on new clause 5. As I said at the beginning of my remarks, there cannot be absolute absolution—if I may use that phrase—in civil law for the practices of faith communities. They certainly have obligations in respect of acts of discrimination and a moral duty to welcome individuals as individuals, whatever their status or legal gender.

Nevertheless, in anticipating the Minister's reply, I stress that he must show sensitivity to the issue, which has generated a great deal of correspondence and concern—and, perhaps, some misconceptions. We must satisfy and put at rest those concerns before concluding our deliberations. I hope that faith communities will be allies in the decent treatment of transgender people and that we can avoid the creation of hard cases, which would make such a process more difficult.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

This is an interesting group of amendments, and we should welcome the fact that the hon. Member for South-West Bedfordshire raised the issues. It is only right that this House should debate them, even though they are controversial and raise people's hackles. The hon. Gentleman should be applauded for tabling the amendments and for the style in which he discussed them. I profoundly disagree with him, but I strongly support his right to fight his corner.

Amendment No. 43 would provide an opportunity to a registrar whose job it is to conduct civil marriages not to do their job. That cannot be allowed. It is their job to conduct civil marriages. On that basis, as the hon. Member for Daventry (Mr. Boswell) said, registrars could be allowed not to perform a civil marriage for people who although lawfully permitted to marry have been divorced or if he believes that they have had sex before marriage. It is not right for the hon. Member for South-West Bedfordshire to make a distinction between those conditions, as the principle is the same. Registrars must do their job. We are talking about civil marriage. If a registrar wants to marry people only after making judgments about their history, he should get involved in religious marriages—not civil marriages, which are part of the job of the state. My hon. Friend the Member for Teignbridge (Richard Younger-Ross) agrees with that and has provided me with information to help me make this point.

The hon. Member for South-West Bedfordshire drew an analogy between the opt-out that he proposes for registrars and that of doctors on abortions, but there is a difference. Basically, the only job of a registrar is to conduct civil marriages. If they refuse to do that, they refuse to do their job, whereas doctors who might be asked to perform abortions do other jobs for the NHS. Abortions are unlikely, almost by definition, to be a significant part of their job description. Therefore, the issues are different. I do not understand how the Government would be able to defend themselves against a claim of discrimination in respect of the right to civil marriage if people were put through hoops simply on the basis of their transgendered status. The case for amendment No. 43 has not been made at all.

Amendment No. 45 is about disclosure. Clearly, disclosure would be allowed if consent were given for it. That is the point that some of us were seeking to debate with the hon. Member for South-West Bedfordshire. Otherwise, it is absolutely right, as with my analogy about the abortion history of someone who was talking to their priest or minister, that people expect confidentiality in personal matters involving their medical history or, indeed, social history. If anything, the tradition of the confessional is that people expect greater confidentiality than in many other circumstances. It would be astonishing if the law provided for a breach of that confidentiality without consent in these of all circumstances.

Andrew Selous (Conservative, South West Bedfordshire)

I do not expect the hon. Gentleman to agree, but does he at least accept that if, in a wedding in a religious congregation, the minister was aware that one party to the marriage was a transgendered person but the other party was not so aware, the minister would have a strong moral obligation to reveal that? That may be far-fetched, but I refer to the case of Sam Kane. Hon. Members are familiar with it, so I shall not go into the details but they will realise that such circumstances could arise.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

No, I do not think that it is the job of a clergyman to do that, and I am not keen to go down that path. The hon. Gentleman is free to challenge the Minister on that.

There are many presumptions, but a doctor is allowed to breach confidentiality only when someone else's welfare is likely to be seriously damaged, as when people propose to drive when they are not fit to do so, or when there is a significant threat to the health of someone in the household—and even then the representation must be made to the person concerned rather than to a third party. The hon. Gentleman cannot found his case even on the specifics of the example that he gave, and I do not think that he could make a wider case for permission to disclose on the basis of that example, which is questionable in and of itself.

The drafting of new clause 5 gives it own answer. It states:

''Nothing in this Act shall prejudice the rights of individual recognised religious bodies to regulate their procedures and practices in accordance with their ethos and beliefs.''

Legislation always prejudices the rights of people to act as they wish. The Race Relations Act 1976 prevents people who might claim that their religion permits or requires them to discriminate on racial grounds from doing so. The principle is that plenty of Acts

prejudice the rights of individual recognised religious bodies to regulate their procedures and practices in accordance with their ethos and beliefs.''

I said earlier that a balance must be struck. I believe in laissez-faire; there must be good reason to interfere with an individual's religious practice. Protecting the rights of others and preventing them from being discriminated against in their own rights of association or access to religious belief or civil rights is one of those areas.

Andrew Selous (Conservative, South West Bedfordshire)

I am sure that the hon. Gentleman will accept that, as a member of the Conservative party, I am terribly discriminated against by not being able to apply for a job at the Liberal Democrat party headquarters. I am rightly and properly discriminated against in a way that I and all of us accept in the context of political parties. Why should there be favouritism elsewhere? I would have thought that the hon. Gentleman, of all people, believes that religion is a private matter. Is he not becoming heavy handed with the law in that respect?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Gentleman uses an example about employment. There are specific provisions concerning employment discrimination which allow for protection on grounds of genuine vocational qualifications. I do not know where political parties come into that, but in terms of religious bodies the new regulations are very clear. Religious bodies are entitled to discriminate on the grounds of religion only when there is a genuine vocational reason for someone to share religious beliefs to work in that area. It is a controversial area and I do not think that the

Government have got the balance right, but at least we are having the same debate. I do not think that the hon. Gentleman is having the same debate.

I hope that I have dealt with the point that there is a balance in every setting. We do not tolerate room for manoeuvre when it comes to racial discrimination, but we tolerate some room for manoeuvre when it is felt that there is a genuine vocational requirement for a specific set of beliefs. The statement that

''Nothing . . . shall prejudice the rights of individual recognised religious bodies to regulate their procedures and practices in accordance with the ethos and beliefs''

is wrong in the context of accessing civil rights and, indeed, the right of association. There should be a presumption, but there should also be specific grounds when it is wrong that they should be entitled to discriminate in so doing. A balance must be found, and I think that the Bill gets the balance about right, although I have some reservations about the terminology of the schedule.

Amendment No. 42 would give a Church of England minister the right to veto other ministers conducting a religious wedding. That would go beyond their own right to conscientiously object. It seems to me that that is wrong. If we accept that it is a personal matter for an individual, just because one clergyman does not want to conduct a wedding on the grounds of conscience, we should not give that clergyman the right in law to prevent another clergyman from carrying it out in accordance with their conscience in the same building.

The hon. Gentleman's concerns about the tainting of the building are not right—I apologise if those were not his words. In my constituency the Church owns a room that is available for hire to public bodies and the Church in question was happily hiring it out to a local lesbian and gay group working in support and training relating to HIV. At some point, a member of the congregation found out what was going on and complained to the elders or the council, which decided that that group would no longer be permitted to use the room. The group asked on what basis it was being discriminated against and the Church apparently said that the room would have been tainted by its use by that group of people the previous evening. The city council, rightly, decided to withdraw its block bookings of that room. We should not give permission in law for such discrimination to be permitted in the established Church. Disestablishment, which I and my party support, would deal with such problems in a different way, but we have an established Church. It has responsibilities and the law should not be changed to permit such block exemption.

I urge the Minister to reject the amendments.

David Lammy (Labour, Tottenham)

As the Committee knows, the conscience clause in the Bill frees ministers of the Church of England and the Church in Wales from their obligation to solemnise the marriages of parishioners. The conscience clause applies when a minister of religion knows or reasonably believes that one of the parties to the marriage is recognised in the acquired gender. The

hon. Member for Daventry asked whether that permitted the minister to ask, ''Are you a transgendered person?'' The minister is free to ask that question. Indeed, there may be an application form on which he can ask it. I understand that that is the practice among many Churches; it certainly is in my own. However, the minister cannot then disclose that information to whomever he or she wishes. I shall come to that point later.

Tim Boswell (Conservative, Daventry)

It would be helpful to the Committee—if not now, perhaps in correspondence before Report—if the Minister would further explain that matter. In clause 22(3), for example, it is not absolutely clear whether a clergyman, Anglican or otherwise, who asked that question would be performing a public office and therefore caught by the duty of confidentiality. I presume that the Minister wishes them to be.

David Lammy (Labour, Tottenham)

I shall go on to explain those points.

Clause 11 does not refer to ministers of other religious bodies, as they do not have a duty to solemnise marriages and the Government do not believe that the Human Rights Act 1998 creates such a duty.

Andrew Selous (Conservative, South West Bedfordshire)

We are going over old ground. The Minister knows that the Secretary of State for Foreign and Commonwealth Affairs disagrees with him. Lord Filkin and many lawyers advising Church organisations with whom I have been in touch say that there might be a duty. The Minister has an opportunity to get rid of real legal doubt this morning. I had hoped that he would think the matter non-controversial and would take this opportunity to clarify it.

David Lammy (Labour, Tottenham)

I shall make some progress. The simple point is that the Bill is about gender recognition. It does not extend the law either way. If someone who is transsexual seeks to bring a claim against a religious organisation, their position will be the same after the Bill is enacted as it is now. Because of the religious exception, to which there has been vague reference, under the European convention on human rights—or article 9 of the 1998 Act as it has been incorporated—the Government do not believe that such an action would be successful. I may come to that later.

We worked closely with Church of England officials and the noble prelate, the Bishop of Winchester, on the clause. It was amended in another place to accommodate the concerns of the Church of England, which has assured us that it is not necessary to give their ministers the right to refuse to solemnise such marriages in their churches, to answer the point made by the hon. Member for Daventry. The protection has been given to the Church in Wales, at its request, but the Church of England has said clearly that it does not want it.

Let me read a section of a letter from the Bishop of Winchester to Lord Filkin, who is a Minister in my Department. It states:

''That is particularly important because I had hoped to have the opportunity to pay tribute to the very constructive and helpful way in which you and your staff have worked with the Church of

England over this matter. I know the staff at Church House would wish to be associated with this and would wish me to convey their own thanks.

We have been able to improve the Bill, in particular in relation to the duty of clergy to solemnise marriages where they reasonably believe that one of the couple has undergone the gender recognition certificate process under the Bill. The issues in this area have clearly been causing concern among clergy and others; I am to answer a question about it at the meeting of the Synod this week''.

We have made progress on the matter.

Tim Boswell (Conservative, Daventry)

The Minister has confirmed my suspicion that there is a difference in operation of the terms for English and Welsh clergy. He has gone on helpfully to explain to the Committee that that is because they have made separate requests for protection. I would like to share with the Under-Secretary a legal opinion:

''Indeed it could be argued that by making a special concession to the consciences of Welsh clergy the Bill discriminates against English clergy and their congregations in terms of the Human Rights Act. There is no space to go into the issue in detail here, but again this anomaly in the Act seems to be sowing seeds for future dissent and unnecessary litigation.''

Would the Under-Secretary reflect further on the matter?

David Lammy (Labour, Tottenham)

As I said, we discussed the matter at length with the Church of England and the Church in Wales because they have duties to solemnise marriages. The Church of England took a slightly different position on the point to that of the Church in Wales. Our obligation was to work with those Churches because they have legal obligations.

Andrew Selous (Conservative, South West Bedfordshire)

I am now a member of a Baptist Church that is democratic, where power flows from the bottom up. The Church of England is not like that. It is hierarchical and very top-down in its structure. I wonder whether the Under-Secretary will reflect on the matter. The Church of England clergyman to whom I spoke on Sunday was very concerned. He was a good man, who wanted to welcome transsexual people into his congregation, but he was genuinely concerned on this point. I do not think that the Under-Secretary is reflecting on that. Why is he causing needless offence through the clause?

David Lammy (Labour, Tottenham)

We are not seeking to cause needless offence. We are merely setting out the arrangements for those Churches that have legal obligations. I say to Christian communities—this point was alluded to this morning—that it has been suggested that other religious organisations could be sued under the Human Rights Act if they refuse to marry transsexuals. Of course the Government cannot rule out the possibility of challenges. Individuals are free to make those, but the Government have a view as to whether those challenges would be successful. It is our view that they would not be successful because of the effect of the Human Rights Act. The Act makes it clear that religious organisations should be able to rely on their rights under article 9(1) of the European convention on human rights, which provides that:

''Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.''

The issue is one of competing rights. Article 9 of the convention is clear. Someone challenging that would have to overcome that right, which is fundamental to the Human Rights Act, and would have to establish the position of a religious body as a public authority. For those reasons, the Government are satisfied that protection exists. The Government have also undertaken in their obligations to the Church of England and the Church in Wales to work with those Churches to ensure that provisions reflect freedom of conscience for clergy members.

Andrew Selous (Conservative, South West Bedfordshire)

If one reflects on the Diane Parry case for one moment, legal opinion has it that the church in south Wales would not have won the case if the Bill had been law. At the very least, is the Under-Secretary not concerned that the limited funds of congregations throughout the country are going to be sucked away into lawyers' fees? They will not be doing the outreach work that they should be doing because of the legal minefield that is being opened up by the Bill.

David Lammy (Labour, Tottenham)

The hon. Gentleman is not listening to me. The law is patently clear in this area. There are practical reasons for that, as well. We are talking about a small number of people. All Members in this House—certainly many have approached me—have people in their community who are transsexual in nature. I would have thought that all Members would describe them generally, as a group, as private people who have undergone a lot of agony and pain because of discrimination and prejudice generally in society. These are not groups of people who are in the business of wanting to take on faith communities. If—it is a big ''if''—that were to happen, I have set out quite clearly why I think that the hon. Gentleman misunderstands the nature of the laws as they stand.

Richard Younger-Ross (Liberal Democrat, Teignbridge)

My understanding is that the right to marriage is a civil matter. Perhaps the Minister can confirm that. The right to religious marriage, however, is entirely different. There is a difficulty with the Bill because the Church is established and has a right to solemnise marriages. The clause is intended to help and we are being quite generous in saying that what this House deems to be the law we will allow a member of the clergy to disregard. Is that not a generous concession in that context?

David Lammy (Labour, Tottenham)

The hon. Gentleman puts the point extremely well. That is what we are attempting to do where the Church has an obligation to solemnise a marriage. Where the Church does not have an obligation—the hon. Member for South-West Bedfordshire is concerned with Churches that find themselves in that situation—it has the ability to discriminate on the grounds of religion and

membership of the Church. It is unlikely in the extreme that someone would present as part of a Church, but then not want to subscribe to the rules, behaviour and conduct of that Church.

Andrew Selous (Conservative, South West Bedfordshire)

Will the Minister give way?

David Lammy (Labour, Tottenham)

I want to make some progress.

Andrew Selous (Conservative, South West Bedfordshire)

Very briefly?

David Lammy (Labour, Tottenham)

I want to make some progress, if the hon. Gentleman will forgive me, because I suspect that he will want to intervene later.

Amendment No. 45 proposes to permit disclosure when it is made

''within the context of a recognised religious body for the purpose of maintaining its procedures, practices, ethos and beliefs.''

Members of the Committee will appreciate that the terms in which the amendment has been drafted are incredibly broad. The amendment would therefore represent a huge erosion of the privacy of transsexual people and would make it possible for all sorts of people to argue in all sorts of situations that the disclosure that they made was

''for the purpose of maintaining its procedures, practices, ethos and beliefs''

of a religious body.

We also believe that the issues can be dealt with in other ways. I will take the example raised by the hon. Gentleman. Before a transsexual person is admitted to a Church, there may well be a discussion with the pastor. We would expect that, where a Church feels strongly about admitting persons who change gender, a person seeking to be part of that congregation would provide the pastor with that information. Indeed, the hon. Gentleman set out the circumstances in which he became part of the Baptist community in his constituency. If the pastor needs to pass that information on to other members of the pastoral team, he or she would surely seek the consent of the individual.

Disclosure of a person's gender history is not prohibited when it is made with the consent of the person to whom the information relates. The hon. Gentleman's example illustrates the point very well indeed: he met with the pastor and the information that he gave was passed on to elders in the community. Why? It is because he consented. I suspect that consent, understanding and dialogue are a fundamental part of the Christian experience. One would expect that in whatever denomination.

Tim Boswell (Conservative, Daventry)

Will the Minister confirm that the transgendered individual would be able to set some bounds to their consent and specify some conditions to it, including the degree to which information could be released to individuals who needed to know about it? Will he also confirm that any disclosures outwith that specific and confined consent would then and only then constitute a breach of confidentiality?

David Lammy (Labour, Tottenham)

That is absolutely the case. My belief is that in practice the situation will not occur. I suspect that the transgendered person would expect professionalism and discretion from the pastor, priest

or vicar to whom the information was disclosed and that the clergy would exercise the use of that confidential, private and important information in a discreet and sensible manner. So, in practice I do not think that the issue would arise, although consent is important.

I have absolutely no doubt—in fact I know it to be the case—that clergy come across confidential, very important, delicate information every day in their communities and exercise tremendous discretion when passing it on. That is my experience of people of faith—men and women who lead their communities across the country—and I have no reason to believe that there would be any difference in the circumstances under discussion.

Andrew Selous (Conservative, South West Bedfordshire)

I understand what the Minister is saying and I agree with most of it, but will he explain how the Bill relates to the rights of someone whom a transsexual person was to marry? Would a minister of religion or a clergyman be entitled to tell that person that they were aware that their intended spouse was of a different sex? It is relevant because in the case of Samantha Kane we read that she had five lovers and did not tell any of them that she used to be a man. I admit that it is a fairly unlikely situation, but it has happened. The Minister has spoken about the rights of the transsexual person, but we would all agree—

David Taylor (Labour/Co-operative, North West Leicestershire)

Order. Interventions are getting longer and longer.

David Lammy (Labour, Tottenham)

In the hon. Gentleman's example, the minister would not be able to disclose that information to the intended spouse. I see the hon. Gentleman smiling, as if the point has already been illustrated, but I will tell him what would happen because it is very important. The minister could speak to the transgendered person and refuse to conduct the marriage. The Bill affords the intended spouse some protection because paragraph 5 of the schedule provides for the annulment of the marriage if they enter into it without knowing that their spouse had changed gender. Fundamentally, we expect that one spouse would reveal such information, so, as the hon. Gentleman said, the situation is highly improbable.

Lynne Jones (Labour, Birmingham, Selly Oak)

Does my hon. Friend agree that disclosure of personal information is relevant if one is embarking on a lifetime's relationship? The likelihood of a relationship surviving if such fundamental information is not disclosed is remote. The Bill makes provision that, if somebody is not given that important information, and they marry, the marriage can be annulled. Disclosure in casual relationships is irrelevant.

David Lammy (Labour, Tottenham)

My hon. Friend puts the point extremely well and I entirely agree with her.

Richard Younger-Ross (Liberal Democrat, Teignbridge)

The question posed by the hon. Member for South-West Bedfordshire expresses tabloid fears and must be hit firmly on the head. I cannot imagine a minister, from any church, allowing such a situation to proceed. Ministers talk to people prior to marriage. They would say to them, ''You need

to speak to your partner. You need to explain your history. Until you do so, I will not allow the marriage to go forward.'' It is clear what the duties of the clergy would be. They would not have to break the law and could resolve the issue by other means.

David Lammy (Labour, Tottenham)

Absolutely. As I said to the Committee, it may be the case—it certainly is the case with some faith communities—that there is an application form that the couple presents in order to get married. Some Churches ask for a baptism certificate. There are many ways in which clergy can seek to ensure that the bond between the partners is a sound one and that the integrity of the process and the beliefs of that faith community are upheld.

The concern underlying new clause 5 is that the Bill will compromise the freedom of religious organisations. Our strongly held view is that it does not do so. Throughout the Bill we have tried to strike a balance between the legitimate concerns of Churches and the need to protect the rights of transsexual people. That is not an easy task. Churches do not speak with one voice on the issue. We must be clear and honest about that.

I say to the hon. Member for South-West Bedfordshire that the new clause seeks the right for religious bodies to regulate their procedures and practices according to their beliefs regarding the transsexual community. Clearly there are underlying concerns that the Bill will compromise the freedom of religious organisations to restrict the participation of transsexual people in religious activities or restrict their access to facilities. The question whether a religious organisation ought to exclude transsexual people from participation in religious activities must, at heart, be a moral one. I suspect that our views on it may differ. There might not be much scope for agreement. At the end of the day, that is a moral determination for the particular faith community.

However, the Government can say clearly that the Bill does not extend anti-discrimination protection for transsexual people. The hon. Member for Oxford, West and Abingdon (Dr. Harris) suggested that in his helpful comments and that is the case. I state it again, because I think that there is far too much doubt in this area. The Bill does not extend anti-discrimination protection for transsexual people. We believe that we would be better placed to consider the case for extending that protection once the system of recognition is in place.

Andrew Selous (Conservative, South West Bedfordshire)

I agree with the Minister that the vast majority of transsexual people will not want to cause problems. They will want to get on with the religious bodies that they join. We are talking about only a vexatious minority, as in the Diane Parry case. If what the Minister is saying is true—the legal advice that I have seen differs from that—will he give a guarantee that the Diane Parry case would still have been won by the Church in question if the Bill had been enacted?

David Lammy (Labour, Tottenham)

No. That is because I do not believe that any Minister would do so; I could not possibly do so. We have had much debate over the past few weeks about the relationship between Ministers and our judiciary, and it is not one into which I shall enter in Committee. I will not predetermine the outcome of a particular case. However, I stand by the fact that the Bill does not extend the law in that area. Indeed, when the Joint Committee considered the issue, it was keen that the Bill should extend discrimination a little further.

An hon. Member approached me in the Corridor and explained to me that in his constituency, a church had prescribed that a transsexual person could not enter the female toilets or attend women-only meetings. The church was concerned that the Bill might enable the transsexual person, who abides by the rules of her community, to take out an action against the church. I have made it clear to the hon. Member that that is not the case. There is currently special provision under English law for transsexuals in employment and vocational training. However, legislation does not currently go beyond that.

For these purposes, discrimination—not on the basis of the transsexual's identity as a woman but as a transsexual—is allowed, for the reasons that we have discussed. Many hon. Members—certainly Government and possibly Liberal Democrat Members—are concerned about that. It is being discussed and debated in Europe, so may well change in future years. However, that is the current position, and the Bill does not go beyond that.

Tim Boswell (Conservative, Daventry)

Is the Minister saying that under the Bill, to take one side of the equation, a man may become a woman for all legal purposes, go through the process and receive a gender recognition certificate, but would not then be able to avail herself of rights as a woman that she had not previously enjoyed as a man in relation to provision of goods, services or otherwise? The Minister has produced what I think is an artificial distinction—I hope it is not—between the rights of a transsexual person in relation to employment and vocational training, and their rights as a woman after receiving a gender recognition certificate. We must be clear about that.

David Lammy (Labour, Tottenham)

I am in agreement with the hon. Gentleman. I thought that that was the point that I was making, but if there were a slight distinction, I agree with him.

With the conscience clause relating to marriage, the Government have shown that we are committed to working with religious organisations on the issue. That is why I suggest that the amendment be withdrawn—it is unnecessary, given the existing law—and that the hon. Gentleman engages again with the issues in the context of any further discussion about extending anti-discrimination protection.

On amendment No. 43, once a transsexual person's change of gender has been legally recognised, marriages contracted between a male and a female will be valid. In such circumstances, registration officers would have no legal ground on which to refuse to

provide the service. It would be expected that the service would be provided to the same high standards as other services. That said, it is clearly a sign of a healthy, liberal society that people's views are tolerated. There are often practical solutions to these issues, and it is expected that marriage services for transsexual people will form a very small part of the overall service provided by the registrars-general. There would be sufficient registration officers available in a particular community to avoid an embarrassing situation for the transsexual person or a registration officer being placed in a position of personal difficulty. For those reasons I am unable to accept the amendment.

Andrew Selous (Conservative, South West Bedfordshire)

I shall be brief. We have debated these issues at some length this morning as well as on Thursday afternoon and so I shall not repeat the arguments. I am grateful to the Minister for his remarks about amendment No. 43 and registrars. As he says, the issue will arise in only a small minority of cases. The fact that he envisages other registrars being able to undertake duties where some registrars may have personal difficulties is welcome. A number of outstanding issues have not been fully resolved and we will return to them on Report and on Third Reading. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That this schedule be the Fourth schedule to the Bill.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I have one brief question. Sub-paragraph (8) of paragraph 2 states:

''(a) the reference in paragraph (b) of subsection (5) of this section to the relevant person's son's mother is to the relevant person's son's father if the relevant person is the son's mother; and

(b) the reference in paragraph (d) of that subsection to the relevant person's daughter's father is to the relevant person's daughter's mother if the relevant person is the daughter's father.''

Could the Minister clarify that? I know that the Minister is sufficiently well acquainted with the Marriage Act 1949 and sufficiently well briefed to do that at some point.

Secondly, apropos the previous debate, will he identify again for me the part of schedule 4 that provides for the annulment of a marriage on the basis of someone not being aware of the transgender status of their spouse? I thought that it was paragraph 5, although it does not specifically state that there is any non-disclosure to the spouse. Could he explain in context how that works?

David Lammy (Labour, Tottenham)

For these purposes it is probably best that I write to the hon. Gentleman on his question about paragraph 2 and the Marriage Act 1949. If I may, I will also write to him about his second point.

Question put and agreed to

Schedule 4 agreed to.

Clauses 12 and 13 ordered to stand part of the Bill.

Schedule 5Benefits and pensions

Benefits and pensions

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 27, in

schedule 5, page 28, line 15, at end insert 'provided that it shall be possible for any individual whether or not personally in receipt of a gender recognition certificate, but as a consequence of the issue of such a certificate to any person, to apply to the High Court or Court of Session for an order on the ground of detriment to his present or future income, and the court may, if it is satisfied that it is just to do so, make in relation to any person benefiting such arrangements for the reallocation of income between the interested parties as it may deem appropriate.'.

David Taylor (Labour/Co-operative, North West Leicestershire)

With this it will be convenient to discuss the following:

Amendment No. 20, in

schedule 5, page 32, line 11, at end insert—

'Continued payment of benefit

13A In any case where the Secretary of State judges that the ending of an entitlement to state benefit under this Schedule may give rise to hardship or to excessive administrative cost he may provide for the continuing payment of benefit as if the certificate had never been issued.'.

Tim Boswell (Conservative, Daventry)

This may be somewhat easier territory for the Committee. We have had a fairly full rehearsal of the possible implications on the benefits of third parties from changes in gender. I do not intend to repeat that, but I want to explain to the Under-Secretary of State for Work and Pensions, who I suspect will respond to this point, the intentions of the two amendments.

Amendment No. 27 would tack on a provision, which is meant to be a general rider to part 3 rather than part 2 of schedule 5, that any party, not necessarily a party to a marriage involving a transgendered person, should be able to take any problems with occupational pensions or benefits to a court if an individual has been granted a gender recognition certificate. I have not thought the amendment through fully and that is the reason for its general nature.

The amendment would apply to persons not necessarily involved in a marriage, but it would not reopen issues already discussed about persons who might lose their rights from a third party, typically the trustees of an occupational pensions scheme, because of the annulment of a marriage. We are talking about a situation in which the occupational pensions pot is fixed—typically that would be in payment, but it would provide for notional future payments—and an individual, whether a spouse or a dependant, feels that they may lose out under the provisions of the Bill.

I have no difficulty with clause 18, which covers the ability to go to court in relation to a will for an order where expectations have been defeated, and to say to the court, ''This is not fair to me and it wasn't envisaged at the time the will was produced.'' I have tried to adapt that thinking to a situation in which issues arising from an occupational pensions scheme might also affect a third party. The intention is not to put an additional obligation on the trustees of the pension fund, but to provide that if such a sum is available, it might be re-ordered between the parties to take account of the circumstances.

Amendment No. 20 refers to state benefits and includes some of the underlying thinking of the modest but entirely acceptable amendment No. 53 tabled by the hon. Members for Birmingham, Selly Oak (Lynne Jones) and for Oxford, West and Abingdon, which will be discussed separately. Under the general approach of the Bill, which is that if persons change gender, their rights and obligations under the benefits system change commensurably, there may be difficulties at particular points in the process. I have singled out two such difficulties and will deal first with the simpler issue of administrative costs.

If a long-awaited gender recognition certificate were granted to an individual, who was a woman in law, three weeks before her 65th birthday, she would have received a pension as a woman, would be disqualified when she became a man, and would lose her benefit. The period of time might be longer, but switching from one system of payment to another would be expensive. The Minister will probably remind the Committee that there are provisions under the Social Security Act 1998 for not bearing down on people or recovering sums that are disproportionate to the amount lost by the benefits system for paying benefits for another three weeks rather than changing the system because the individual had become a man and would be entitled to a pension in their own right. I would be grateful if the Minister could clarify that situation.

The second difficulty relates to the repayment of accrued benefit. It is evident from the Committee's sittings that most transgendered people are well aware of their situation and will have made inquiries before taking what is a radical step in their lives. However, there could be a situation of inadvertence in which the drafting of the Act might not be familiar to them, and they might not have realised that they stood to lose a significant amount of benefit. For example, they might not have notified the national insurance system and they might continue to receive the benefit, but when this measure becomes law, somebody might say, ''Well, we've now found out that you've become a man.'' One can imagine that one part of the benefit system might not catch up with the gender recognition side of it. It might not be clear on the form that one needs to declare it as a material change of circumstance. Somebody might be overpaid and that could give rise to considerable difficulties. I hope that the Minister will address that in the spirit in which it is offered.

There is another relevant point, regarding hardship. In another place, Ministers made it clear that the provisions on state benefits in schedule 5 were substantially about the difference between ''the pension'' for persons over 60, and that they reflect the historic anomaly in the system, which will be ironed out. The pension system will eventually be proximate for men and women over 60, but as we are not yet at that position, men over 60 are not entitled to their pensions. However, as Ministers said in another place, they are they are entitled to a minimum income

guarantee, so that there should be no hardship. Under the proposals, when someone changes gender, their obligations and rights in relation to the benefit system will change to those of their new gender. Within the clarity and coherence of those proposals, there could be hard cases, and our intention, with this amendment, is to enable Ministers to use an administrative solution to meet them in the least complicated way possible.

It would be helpful if Ministers could tell us that there will be no such problem because it will be picked up by the minimum income guarantee, or that it will be possible, on the administrative side, not to plough on if there is only a week or two to pay, or if there are some overpayments or arrears that there should not be. Will the Minister also respond to the point on occupational pensions?

Maria Eagle (Labour, Liverpool, Garston)

It is refreshing to hear the hon. Member for Daventry say that the range of pensions and social security benefits in schedule 5 are simpler than those involved in the previous group of amendments. That says more about the previous group of amendments than it does about the social security system. None the less, I was encouraged to hear that he is sufficiently au fait with every possible permutation in the benefit system to have the confidence to say that.

Tim Boswell (Conservative, Daventry)

Far be it from me to accuse the Minister of implying that I was being arrogant. I was trying to say that I am confident that she—as admirably briefed by her excellent Department, as I am sure that she is—will come up with the answers. My intention in using a somewhat broad-brush, layman's approach, and with my past amendments, was to introduce this issue, and to point out that there might be some problems. I look forward to her full and sufficient explanation of any problems, and their resolution.

Maria Eagle (Labour, Liverpool, Garston)

I hope that I can oblige. I was in fact complimenting the hon. Gentleman on his erudition. Obviously, he is feeling a bit touchy today.

First, I will set out my understanding of what his amendments would do. Amendment No. 27 would put in place a safeguard to prevent people from suffering any financial loss as a result of the gender recognition process. In his introduction, the hon. Gentleman made it clear that he is talking mainly about private pensions, although one would not necessarily work that out from the place in which the amendment would be placed, as it would appear to cover the whole of schedule 5. However, I think that the hon. Gentleman will accept that that is a minor point, as these are probing amendments.

The amendment would also allow the High Court or Court of Session to redistribute money from a person who gains as a result of a gender recognition process to a person who loses as a result of that process. The effect would, in practice, be to treat individuals differently from those of their acquired gender. The amendment would also involve the courts in a social security arena

that they normally avoid and in a manner that could cause me a worry or two, as a Minister with responsibility for some social security issues.

Amendment No. 20 would prevent those who obtain a gender recognition certificate from facing hardship as a result of being in receipt of that certificate. It also seeks to prevent excessive administrative costs resulting from the issue of the certificate. Again, that would treat some with a gender recognition certificate according to their birth gender instead of their acquired gender. The amendment would also treat some individuals with a gender recognition certificate differently from other individuals with a certificate, by making special provision.

The aim of the Bill is to give transsexual persons the right to live legally in their acquired gender, with proper recognition. Once individuals are recognised in a gender, the Bill treats them for all purposes according to the acquired gender, not the birth gender. That is the Bill's fundamental principle. The purpose of the schedule is to put that principle into effect and to ensure that transsexuals are given the same rights to social security, benefits and pensions to which others of their acquired gender are entitled. The schedule also provides that those who obtain a gender recognition certificate be treated according to that certificate.

Given that men and women have different rights to pensions and benefits, some individuals may gain financially as a result of legally changing gender, while others may lose. That is part of the gender recognition process. It is right that people realise that their decision to gain legal recognition in their acquired gender may have such consequences. I am sure that most such individuals have thought about those issues extensively. We do not want to rewrite a person's life history. We seek to give a transsexual person who has changed their gender the same status as other members of the acquired gender from the time of legal recognition.

If the Government created special provisions for those who legally acquire a new gender, those individuals would be set apart and treated differently from those who are born into that gender. Treating individuals according to their birth gender for some purposes and their acquired gender for others could also lead to inconsistency and confusion. There are problems with amendment No. 20 for that fundamental reason. I hope that the hon. Gentleman can understand that the very purpose of the Bill is to try to avoid such problems.

We intend to provide comprehensive information. The hon. Gentleman may understand the pension and benefit system well, but he has had to deal with it in his duties in the House of Commons. One cannot expect people outside the House to take the same level of interest. It is important that comprehensive information about how an individual might be affected should be available. It is important also that people should be able to make a fully informed choice about whether they wish to apply for a gender recognition

certificate and, if so, when it would be best to do so. For example, it might be advantageous to wait for a year or two. The situation will vary from case to case.

Concerns were expressed on Second Reading about the situation of former spouses of individuals who apply for a gender recognition certificate. The amendment seeks to provide financial safeguards for them as well, as the hon. Gentleman said. As I believe we said then, however, appropriate mechanisms are already in place to deal with the benefit and pension situations in which people might find themselves, such as pension sharing on divorce. The amendment seeks to elevate the principle of eliminating all financial detriment over the Bill's inherent principle of always treating an individual according to their acquired gender after legal recognition.

There is more flexibility in the system than some perhaps realise. It is possible for a spouse, for example, to substitute their national insurance contributions record for that of their former spouse where that might benefit them. Unless they remarry, that person will be able to claim a category A pension on the basis of the spouse's record and any additional contributions that they make when they reach a pensionable age. That is likely to be more generous than if had they stayed married and claimed a category B pension based upon their spouse's contribution record. That is because the substitution provisions assume that people will live in separate households following divorce. The small category of people whom we are discussing—those who divorce because they need to do so to get the gender recognition certificate—will want to stay together. That is the point of the amendments proposed by my hon. Friend the Member for City of York (Hugh Bayley) earlier in our consideration of the Bill.

If the former spouse of a person who has gained a gender recognition certificate is not of pensionable age, they will be able to seek state benefits such as jobseeker's allowance providing that they are eligible to do so. They will be treated in the same way as anybody else following a divorce. They will get no special treatment. We do not believe that, under the provisions of the Bill, that is appropriate.

Courts do not get become involved in determining the allocation of resources in the social security context as amendment No. 27 suggests that they should. One would be hard pressed to find any social security Minister who would do anything other than recoil in horror at the thought that they might. That is a role for the Government and Parliament and not for the courts. On that basis, I would be reluctant to accept the amendment.

Although it is true that some transsexual people who have gained recognition in their acquired gender may be divested of certain benefits, it is likely that they will gain entitlement to other benefits in their place. The fiscal impact is, therefore, likely to be minimal. I do not believe that there will be individuals who face severe hardship, because other parts of the social security system will be able to provide assistance. We should

therefore ensure that the principle of equal rights and recognition in the acquired gender is adhered to for all purposes.

Tim Boswell (Conservative, Daventry)

Over and above the example I cited to her—the minimum income guarantee—can the Minister give any specific examples in which one benefit can substitute for another in a helpful way?

Maria Eagle (Labour, Liverpool, Garston)

I can. There are a number of different sets of circumstances. If somebody wants to put some to me, I am happy to try to explain what benefits would be available. The social security system has a safety net and it is there to make sure that people do not suffer severe financial hardship. We do not believe that they would.

The hon. Gentleman made some points about overpayments and what would happen if, by inadvertence, somebody did not report a change in circumstances. There is a general duty in the social security system to report changes in circumstances that may lead to a change in benefit entitlement. That is something that every recipient knows. It is stated on every order book, leaflet and piece of information.

As I have already said to the hon. Gentleman, we will be providing extensive guidance and information about financial and benefit implications to those contemplating gender recognition certificates. We hope to be able to make it clear at that time that the circumstances need to be reported in respect of any benefit entitlement. Where there is inadvertence, and no clear attempt to deceive, the Department takes a sensible view of whether to pursue overpayments. However, we have a general duty to the public purse to pursue overpayments where appropriate. The Department has a system to evaluate each case on its merits and to decide whether overpayment should be pursued.

The hon. Gentleman referred to one part of the Department not knowing what another part does. That has been known to happen every now and then. The Department takes the view that, where that has happened, and where there has been some fault on our part that has resulted in an overpayment, it would not be appropriate to pursue it. Each case is considered on its merits. That does not take away the fact that each recipient of social security benefits has a duty to ensure that they report changes of circumstance that might affect their benefit entitlement. I hope that the hon. Member for Daventry will be satisfied with that explanation.

Tim Boswell (Conservative, Daventry)

Broadly, that is the case. I am grateful to the Minister for explaining the situation. Sometimes in moving amendments, I gain not by writing measures out of the Bill, but by the type of reply that the Minister gives. On cue, she has done exactly what I hoped that the amendments would trigger, which is to explain the arguments, particularly those about discrimination between categories of persons in their acquired gender compared with persons who were born in that gender.

I understand her concerns about that and about the integrity and operation of the social security system. I am not dogmatic; they have been useful probing amendments to which we have received a more than adequate response.

I am particularly grateful that the Minister has said that there will be full information for persons who are contemplating gender reassignation and application for a certificate. It is important that the general information sent to all benefit holders or people who are, for example, about to receive their pension entitlement, makes clear that the issuing of a gender recognition certificate is a material change in circumstances.

I am sure that the Minister will want to produce a package for this specific area, and for the integrity of the system it is important that information is provided, as it is for entry to hospital and in other circumstances of general notification, so that people—or, perhaps more typically, the partner—may pick it up and make the necessary inquiries. I am satisfied with the Minister's response and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lynne Jones (Labour, Birmingham, Selly Oak)

I beg to move amendment No. 53, in

schedule 5, page 29, line 37, at end insert—

'(2A) But sub-paragraphs (1) and (2) do not apply to a person who was aged not less than 59 years on the date of Royal Assent of this Act and who was a woman immediately before the certificate is issued, and the rights of that person to a Category A retirement pension are to be decided as if the certificate had not been issued.'.

The amendment is designed to deal with the plight of a very small number of female to male transsexual people who are either currently retired and in receipt of category A pensions or will retire before the Bill is enacted. As the hon. Member for Daventry has pointed out, many of the situations in the schedule arise because of the differential age of retirement between men and women. In moving towards a common retirement age of 65, transitional arrangements allow people affected to plan for their future. I will be one of the first cohorts of women affected by it; my retirement age will be 61 rather than the age of 60 for women who are older.

The amendment asks for similar transitional arrangements for a very small group of people who would otherwise suffer undue hardship. We are talking about a handful of people. Stephen Whittle, vice-president of Press for Change, founded the FTM network in 1989. It has 800 members who are female to male transsexual people. Of those 800, only 13 are aged 60 to 65; three will be 60 in 2004; and a further three will reach 60 in 2005. It is therefore estimated that no more than 30 men will be affected by the amendment.

Stephen Whittle managed to contact seven of the 13 individuals who are retired. Of those, six are working full or part-time, but five are earning less than £9,000 a year gross, and one is earning less than £4,000 a year. One man has recently been able to carry out work for the first time in many years as a result of society's attitudinal changes, the protection of the law following

P v. S and Cornwall county council and the fact that he continues to receive his category A pension, which has permitted him to take on low-paid work in the voluntary sector.

If those people must choose between continued receipt of their pension and benefiting from their human rights as provided for under the Bill, they will be placed in difficult financial circumstances. One of them said that it would be the difference between a frugal life and a life of penury. Of course, pension credit would not help them, because to benefit from that means-tested benefit they would have to give up their jobs.

The Under-Secretary of State for Constitutional Affairs said in the first sitting:

''transsexual people do not choose their gender identity. It is a long, difficult and painful experience for them to acquire a new gender, and one which may result in the loss of friends, family and even employment.''—[Official Report, Standing Committee A, 9 March 2004; c. 17.]

The Minister clearly understands the plight of transsexual people. He understands that many people will have lost employment opportunities as a result of the discrimination that they suffered. For example, people will have failed to apply for jobs or will have withdrawn their applications when demands to see their birth certificate were made.

That small group consists of people who have suffered all their lives. Some underwent their transition more than 30 years ago, but have not had full civil rights in that time, and have suffered discrimination that has affected them into their retirement. Now they could be asked to lose their small state pension.

I am asking for something that will affect only a very small number of people. What I propose is, in effect, similar to the transition in respect of the equalisation of the age of retirement; it would allow for phased implementation and set no new precedent, because it would be time-expired and would not apply to future cohorts. The amendment would affect those who have been disadvantaged by the accident of belonging to an age group that did not allow them to plan for their retirement. Many have been forced against their will to retire at 60—six of the seven people in the example that I gave were in that position.

The amendment has very small financial implications and would allow the small number of people in question to avoid a predicament in which benefits that they now receive would be likely to be withdrawn. It is a long-standing principle of the social security system that people currently in receipt of benefits should not have them withdrawn.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I strongly support the hon. Lady's comments and have signed her amendment. Does she agree that the key point is that it cannot be right for a small number of people in the situation that has been outlined to have to choose whether to gain access to the rights granted to them by the European Court of Human Rights, given that it appears that they may be forced into a much more difficult financial situation—perhaps even penury, relative to what they would have had if they had kept their original gender?

Lynne Jones (Labour, Birmingham, Selly Oak)

That is precisely the point of the amendment. I wanted to draw attention to the principle of transitional arrangements and of not withdrawing benefit entitlement from someone currently in receipt of such a benefit. I hope that the Government will accept that the amendment is a reasonable and compassionate provision for a small number of people.

Maria Eagle (Labour, Liverpool, Garston)

I begin by congratulating my hon. Friend the Member for Birmingham, Selly Oak on the assiduous care with which she has followed legislation in general and this Bill in particular to ensure that this small group of people is properly treated. However, there are difficulties with the amendment, which I shall set out.

My hon. Friend made it characteristically clear that the amendment deals with the state pension entitlement of the small number of female to male transsexual people who are over the age of 59, and would enable them to retain their category A retirement pensions. As she said, the purpose is to ensure that they are entitled to that pension at the appropriate age and rate for women instead of the appropriate age and rate for their acquired gender. As she helpfully told us, we are talking about a small group of people, and I have no reason to doubt her figures, which I am sure are as accurate as any that could be produced.

Under the amendment, however, certain female to male transsexual people would undoubtedly be treated differently from other people of their acquired gender, because they would be able to claim their category A retirement pension at the same age as women rather than men once they were recognised in their new gender. I make no comment on why my hon. Friend has tabled the amendment, but if we accepted it we would end up treating a very small group of men differently from all other men.

My hon. Friend is very knowledgeable about the social security system, but I often think that it is easy for outsiders who do not have to deal with it to say, ''Make an exception for this small group of people. It would be beneficial to them.'' I accept that, but it is harder to make exceptions for small groups than for large ones in the social security system, because that leads to administrative complexities.

My hon. Friend and the hon. Member for Daventry referred to the precedent of the transition to an equal age of entitlement to state retirement pensions. As hon. Members will know, that process will begin in 2010 and be completed in 2020, by which happy date Social Security Ministers will no longer have to deal with the difficulties thrown up by gender differences in entitlement. I assure hon. Members who have not had to deal with such problems—the one or two who have done so, including my hon. Friend the Member for City of York, who is not present, will know this—that they are among the most difficult that a Social Security Minister must face. Although we all look forward to the happy day when equalisation occurs, the transition

to an equal age for general state retirement entitlement is provided for in law by a derogation from the directive, and we cannot use that derogation in the way that my hon. Friend suggests to ensure that the small group of individuals that we are discussing does not lose out.

The Bill does not treat such individuals differently from anyone else of their acquired gender, but that would be the effect of the amendment. The creation of such a special category raises the question of whether those affected would seek to be treated as a woman for some purposes and as a man for others. After all, the Bill is about equality and legal recognition in the acquired gender. In deciding when and whether to seek legal recognition, the person concerned will have to take all the implications into account. In that regard, I hope that the comprehensive information that we shall make available will ensure that they at least have proper information about those implications. There will be guidance.

Sadly, those who are most likely to lose out as a result of the processes are female to male transsexual people who have gained recognition and therefore might be divested of their retirement pension or might not be able to claim their retirement pension as soon as they otherwise would have done. However, they will be entitled to other benefits, such as jobseeker's allowance or pension credit, and we believe that the fiscal impact is likely to be minimal.

My hon. Friend talked about means-tested benefits. Pension credit entitlement gives single people at least £102.10 a week, and couples at least £155.80. That is without the savings credit, which of course comes in only after reaching the age of 65. However, we are talking about the guaranteed credit element of the pension credit. That would certainly provide proper recompense for many people.

It is likely that a female to male transsexual person aged between 60 to 64 on a low income would already be eligible for pension credit and could already be receiving it on top of the state pension. For example, a female pensioner aged 62 whose only income was the basic state pension of £77.45 a week would be eligible for £24.65 a week pension credit, to bring her weekly income up to the guaranteed minimum of £102.10 a week. If that person were to change gender at the age of 62, he would lose entitlement to the state pension, but assuming no other changes in circumstances, he would be entitled to £102.10 a week in pension credit. There would be no financial loss. A person over the age of 60 is guaranteed a minimum income, regardless of whether that is paid by way of a combination of state pension and pension credit or by pension credit alone.

My hon. Friend has characteristically identified an even smaller group of people who could be adversely affected. That is female to male transsexual people in low-income jobs who would not be able to claim pension credit, although they can currently get their

state pension. Although those people might become financially disadvantaged on gaining recognition in their acquired gender, their situation would not be any different to that of other men in an equivalent situation. They may also qualify for working tax credit if they meet the conditions for entitlement. It would depend on individual circumstances.

Lynne Jones (Labour, Birmingham, Selly Oak)

My hon. Friend says that such individuals would be no worse off than other men. However, the point that I was trying to make with the amendment is that those individuals have suffered extensive discrimination throughout their lifetimes, which has prevented them from making the most of their employment or earning opportunities. Now that they have some chance of recognition and respect in their acquired gender, they have to choose between that and losing out financially. Other men have not had to face that difficult lifetime.

Maria Eagle (Labour, Liverpool, Garston)

I understand what my hon. Friend is saying, and I accept that for a small number of people that problem is thrown up by seeking a gender recognition certificate at that particular age. However, the principles of the Bill are such that it is not easy—and I would argue that it is not desirable—to make exceptions, even in difficult cases, for such a small group of people, despite the fact that there has been a difficult history of employment.

There is no doubt that the losses would be minimal. Most people would be able to get pension credit. If their employment history were such that they were quite poor, they would be entitled to pension credit and the possibility of a higher pension at age 65. The social security system provides for people who are likely to face severe financial hardship not to do so and helps to alleviate that. Those who are working, perhaps in low-paid jobs, would not be entitled to pension credit, but the working tax credit is available if there is an entitlement.

We do not believe that there would be extensive examples, or even a small number of examples, of people losing out financially in a way that would make it sensible for us to amend the Bill. I know that my hon. Friend feels very strongly about the matter and may not agree with that analysis. None the less, it is the Government's analysis, and I hope that she will understand—even if she does not accept—our reasons for believing that the amendment should not be accepted.

Lynne Jones (Labour, Birmingham, Selly Oak)

I appreciate what my hon. Friend the Minister has said. She will understand that her remarks are not entirely unexpected, and that I will raise the issue again later in our consideration of the Bill. For the moment, however, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 5 agreed to.

Clause 14 ordered to stand part of the Bill.

Schedule 6Sex discrimination

Sex discrimination

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I raise an issue that was debated briefly in the House of Lords. I, too, hope to be brief. The Joint Committee on Human Rights also discussed the issue in relation to discrimination law and the Bill's related provisions.

The Government's approach is extremely minimalist, and we should not allow the Bill to go through Committee without getting the Government to justify it. We should also ensure for the record that the Minister expresses his confidence, which I am sure he will be willing to do, that the Government will be able to see off any challenge under the Human Rights Act 1998, particularly in the light of the eight claims made under article 14, article 8, and article 2 of protocol 1 on the right to education.

I will briefly outline as best I can at this time of the morning the issues relating to discrimination. I will also talk about the Government's approach and why it is so unsatisfactory. There are two separate issues. The first is whether the transsexual person would be protected against discrimination on the ground of

their new sex or gender. The second is whether they would be protected from discrimination on the ground that they were transsexual. The Joint Committee report dealt with those issues very well. I pay tribute to the hon. Member for St. Helens, South (Mr. Woodward) who has also worked hard on these issues.

We have discussed clause 9 and the provision that makes it clear that we mean ''sex'' where the Bill says ''gender''. It is therefore quite clear that under the Sex Discrimination Act 1975 in which the term ''sex'' is used, transsexual people are protected from discrimination against their new gender or sex. What is more difficult is the question of discrimination on the ground that a person is transsexual.

Before we adjourn, it is worth considering the equal treatment directive and the impact that the case of P v. S and Cornwall county council had on our domestic law. The Sex Discrimination Act protects people from sex discrimination in employment, vocational training, education, housing and the supply of goods and services. Thanks to the Liberal Democrats, the equal treatment directive is one of the few areas of British law—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half past Two o'clock.

Standing Committee A

Schedule 6 - Sex Discrimination

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I had got as far as the letter ''l'' in ''law''. I was saying that the Sex Discrimination Act 1975, uniquely in British discrimination law history, went further than European comparators—directives—in protecting rights against discrimination. It was the product of the last liberal Home Secretary that we have had, from any party: the late Roy Jenkins. The 1975 Act provided for a bar to discrimination on the grounds of sex or gender in relation not only to employment and vocational training, but to education, housing and the supply of goods and services. The sky has not fallen in on this country because of those protections.

As the Minister has acknowledged, many of us feel—certainly everyone in the Liberal Democrat party feels this, because it is our party policy, and many people in the Labour party feel it, too—that those sorts of protection should be available to other groups of people, and not only to people who would otherwise be discriminated against on the ground of gender. I will quote from paragraph 98 of the initial report of the Joint Committee on Human Rights on the draft Bill, although sadly nothing has changed since the draft Bill in this respect. The report states:

''It seemed to us that it would be strange to make such discrimination unlawful in one field covered by the 1975 Act but to continue to permit it in other fields covered by the same Act. This prompted us to consider whether discrimination against people on the ground that they have undergone, are undergoing or plan to undergo sex reassignment therapy would constitute unlawful discrimination on the ground of sex in the fields of education, housing and the supply of goods and services.''

It is not clear whether British courts would take the same view as the European Court of Justice did in the case of P v. S and Cornwall county council, when it judged that it was hard to separate one's status as a transsexual pre or post-surgery—in the process of transitioning—from sex itself.

After consideration, the Joint Committee stated, in paragraph 99, that it did not feel ''sufficiently confident'' that it could rely on that achieving the desired result, so it asked the Government for their view on

''the desirability of extending the legal protection against such discrimination under the 1975 Act from employment and vocational training to education, housing and the supply of goods and services.''

It explained that the Government said that it was not a high priority and that the most pressing need was

''to amend the law in relation to employment and vocational training in order to comply with Community law.''

That is like saying, ''The only thing that we will consider to be a top priority is what we are forced to do'', rather than considering the merits of tackling the problems of discrimination.

We have already heard from the Minister that there is discrimination against people in this area. I believe that to be unacceptable, and I would have hoped that a Government that thought that it was unacceptable would legislate to prevent it, particularly considering that the issue is so closely related to sex and gender, an area in which the Government, and the Labour party, for the past 28 years, have felt that discrimination is inappropriate.

Paragraph 100 states that the Government told the Joint Committee that they

''did not consider that there was any evidence of a pressing need to protect transsexual people against discrimination in other fields.''

I find that astonishing because it is clear that there is a problem. The Committee did not accept the Government's approach. It states:

''The evidence provided by our correspondents shows that there is a significant amount of discrimination against transsexual people in the supply of goods and services, particularly pubs and clubs, and in housing, where homeless people may be left without access to a hostel because the people in charge of hostels for men and women respectively refuse to take in people on account of their status as transsexuals. This is borne out by other anecdotal evidence.''

It was of the view that there is a pressing need to protect transsexual people against discrimination in areas other than employment and vocational training.

Tim Boswell (Conservative, Daventry)

Perhaps my intervention will preclude the need for me to make a speech on the matter. Would the hon. Gentleman agree that in cases such as the hostel situation that he cites, if a person is transgendered and has assumed the gender of a woman for all purposes in law, discrimination against her would apply if no provision were made for her as a woman?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

No. If she were not allowed in a woman's hostel, it would not be because she is a woman. She cannot get the protection of the Sex Discrimination Act on the basis of her gender. She would have to argue that she is being discriminated against not as a woman—and the comparator would not be the rights that men get—but because she is a transsexual. British law does not cover that situation. The hon. Gentleman gave a useful example, which shows the distinction between the two forms of discrimination.

I share the view of the Joint Committee that

''there is a risk that the legislation in its present form might give rise to a violation of the right to be free of discrimination on the ground of status in the enjoyment of Convention rights, under ECHR Article 14. Gender reassignment affects a person's status, and the relationship with status will be still clearer when a person can obtain a gender recognition certificate with legal effects.''

That makes the point that after the passage of the Bill the Government are more liable to be subject to a successful action on that basis. The Joint Committee also says that

''the supply of goods and services, housing and education fall within the ambit of the rights under ECHR Article 8 and Article 2 of Protocol No. 1. Discrimination in those fields on the ground of gender reassignment may therefore engage the right to be free of discrimination under Article 14, taken together with those rights.''

That is a restatement of what I said earlier, and is the clear view of the Joint Committee.

It is not satisfactory that the Government, who have plenty of time to think about the issue, do not consider it a pressing need. Even though we do not have an amendment before us today, there will be a need to examine the matter at a later stage. I shall leave the Government to make their response, and I shall respond to that response—rather like the Joint Committee—when I speak at the end of the debate, but I would like the Under-Secretary to explain whether he feels that the Government will be able to resist claims made under articles 14, 8, and 2 of protocol 1. Is his confidence in that, and the legal advice that he has received, affected by the passage of this legislation, where the status is provided for formally by the Bill?

It is disappointing that the Government are proceeding so slowly on these matters. There have been moves supported by all parties for an embracing equality Act that would solve such problems once and for all. I would like to use this opportunity to lobby the Under-Secretary on that issue. He will not have to sit through proceedings such as these if he avails himself of the opportunity to take what he knows is the right step, which is to ensure once and for all that we provide protections, and the bodies required to police them, in a satisfactory way.

David Lammy (Labour, Tottenham)

Once a person has recognition of their acquired gender, he or she will be protected against discrimination on the basis of that acquired gender, in the same way as any other person of that gender is protected. The entirety of the Sex Discrimination Act 1975, as it applies to men and women, will apply. That protection on the basis of gender or sex extends to the provision of goods, facilities and services as well as employment. There is the separate issue of protection from discrimination on the basis of gender reassignment. Discrimination against a male-to-female transsexual person may occur either on the basis of being a woman, or on the basis of being a transsexual person.

Protection from the second variety of discrimination already exists in the realm of employment and vocational training. It flows from the equal treatment directive and the decision of the European Court of Justice in P v. S and Cornwall county council, to which the hon. Member for Oxford, West and Abingdon (Dr. Harris) referred. In that case, it was decided that, in European Union law, sex discrimination included discrimination on the basis of gender reassignment. Certain exceptions apply to the

existing protection, but schedule 6 removes most of them for individuals who have recognition in the acquired gender.

It is true that the Bill does not extend the existing anti-discrimination protection for transsexual people to goods, facilities and services. The Government were pressed on that point by the Joint Committee on Human Rights. We made it clear that we will continue the UK's approach to dealing with discrimination issues in conjunction with our EU partners. A new sex discrimination directive that extends to goods and services was published in November last year and negotiations on it are now under way. As a result of the European Court of Justice decision, the negotiations will consider effects on transsexual people. We want to ensure that the issues raised by the Joint Committee and others are properly considered and that there is consultation not only with the transsexual community but with businesses and other parts of the community, such as religious groups and the voluntary sector.

Lynne Jones (Labour, Birmingham, Selly Oak)

Representatives of the transsexual community were very much involved in the generation of the guidelines when employment regulations were introduced following P v. S and Cornwall county council. At that time, the supply of goods and services was raised. Can my hon. Friend the Minister confirm that nothing in European law prevents the Government from introducing anti-discrimination measures in the Bill?

David Lammy (Labour, Tottenham)

I know that my hon. Friend did a great deal of work on that piece of equality legislation, which deals with training and employment for transsexual people. She is right in saying that there is nothing to prevent the Government from acting. However, as I indicated, we are in discussion with our partners in Europe. We have a draft directive as of three months ago, and it appears that there will be legislation on the matter. The Government welcome that and believe that it is right to have that dialogue with our European partners, come to a conclusion and then take the matter forward.

Tim Boswell (Conservative, Daventry)

Would the Minister also agree that if the issue is discrimination against transsexual people, as opposed to those whose gender has been reassigned, it is important not to create classes of discrimination between persons who are transgender but have not applied for a gender recognition certificate and those who have? Both may have exactly the same medical conditions and, notionally, suffer the same kind of discrimination.

David Lammy (Labour, Tottenham)

That would rightly be a matter for discussion with our partners in Europe. There may be different views on the matter. Not everyone will apply for the gender recognition certificate. My party is committed to people having equality before the law.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Can the Minister give an undertaking that, if it is decided that there will not be such a directive because negotiations fail in Europe, the Government will introduce their own legislation to provide for that under the extension of the provision to the other parts of the 1975 Act?

Further to the point raised by the hon. Member for Daventry (Mr. Boswell), if our European neighbours require surgery as the basis for the equal treatment directive, will he assure us that that will not be the Government's approach and that the protections that we have in this country, when we eventually get them, will apply to post-surgical transsexuals who are in transition?

David Lammy (Labour, Tottenham)

The hon. Gentleman has much experience of this place. I cannot commit the Government to either of the points that he raises, but I can say that the Government are in discussion with their European partners. We stand square behind equality on such issues. We are pleased to bring forward this legislation, which improves the situation for transsexual people. Our position in discussing with our European partners extensions to the equality regime regarding goods and services is clear, but I cannot commit the Government to when and how that will come to pass. That would predetermine the outcome of these important discussions. However, should we reach that horizon, it is important to realise that transsexual people will have that equality throughout the European Community, and that must be a goal worth striving for.

When a recognition system is in place and we have seen the impact on the treatment of transsexual people in society and the benefit of the discrimination protection on the basis of the acquired sex, we shall be in a much better position to go through the process and to agree an informed and thorough approach with our partners in Europe.

When the Joint Committee commented again on the issue in its second progress report, which was published last month, it said that

''we accept that it might be reasonable to await the outcome of the negotiations for an EC Directive on sex discrimination in the field of goods and services.''

It continued:

''We hope and expect that the Government, when participating in those negotiations, will use its best endeavours to ensure that full account is taken of the need to respect the right of transsexual people to be free of discrimination''.

I can assure the Joint Committee and this Standing Committee that we shall do so.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I do not expect to say much more about that schedule, but the Minister did not complete the quote. I wonder whether that was because he read the only bit of the quotation that his officials gave him. It continued

''on the ground that they have undergone, are undergoing or plan to undergo gender reassignment therapy.''

Can the Minister clarify that his failure to read that out was not a sign of policy in that respect?

David Lammy (Labour, Tottenham)

I have volume 1 of the report in front of me, but I do not have volume 2 to hand, although I can obtain it. There was no attempt to mislead the Committee. I intended to acknowledge only that the

Government want to move in that direction with respect to our European partners, but we must await the outcome of those deliberations.

Question put and agreed to.

Schedule 6 agreed to.

Clause 15 ordered to stand part of the Bill.

Clause 16 - Peerages etc.

Richard Younger-Ross (Liberal Democrat, Teignbridge)

I promise that I shall be brief. I am concerned that one aspect of clause 16 has not been covered and that discrimination is being allowed to continue for a certain sector of society. I say that not because of any particular regard to protect the rights of the aristocracy, but from the belief that the aristocracy are considered, by some sections of society, as being above society, and that rules that apply to them are then applied below, although I do not accept that position of above and below. Clause 16 reads:

''The fact that a person's gender has become the acquired gender under this Act . . . does not affect the descent of any peerage or dignity or title of honour''.

Therefore, could the Minister confirm that if a male who was in line of succession for a title transgendered to a female, that person would still assume the title? Similarly, if the first-born was female and became male, would they still not assume the title? It strikes me that there is a subtle exemption that runs counter to the purposes of the Bill. If the Bill is intended to allow for no discrimination, should the Government not tackle that?

David Lammy (Labour, Tottenham)

I should perhaps begin by saying to the hon. Gentleman, well spotted. The matter was debated at length in another place and the answer to his question is yes. The clause mirrors the exception made in the Adoption and Children Act 2002. It recognises the unique nature of peerages, dignity and titles of honour in that they descend according to birth. The terms of descent cannot be changed and the expectations of the persons entitled by birth may be defeated if the acquired gender of a sibling were to count in the way that the hon. Gentleman outlined. He will understand that the community of people with peerages and dignities in this country is small, as is the transsexual community, so I do not expect that this exception, which he dislikes, will frequently occur.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Will the Minister clarify whether the fundamental problem is that of primogeniture? I do not want to go too far down that road but can he, as a Minister in the Department for Constitutional Affairs, clarify whether, among the range of matters considered by his Department, the proposal to scrap that rule will emanate at some point? That would solve the problem to which my hon. Friend the Member for Teignbridge (Richard Younger-Ross) drew attention.

David Lammy (Labour, Tottenham)

The hon. Gentleman will know that the consultation on House of Lords reform began a short while ago, and his party has no doubt made its views

known. I do not want to pre-empt the outcome of potential legislation. The matter is technical but is important in another place. Therefore, clause 16 stands as it does.

Question put and agreed to.

Clause 16 ordered to stand part of the Bill.

Clauses 17 and 18 ordered to stand part of the Bill.

Clause 19 - Sport

Lynne Jones (Labour, Birmingham, Selly Oak)

I want to query the necessity of this clause, which was not included in the draft Bill but was inserted at the insistence of certain peers who seem to be living in a fantasy world in relation to allegations of threats that the Bill could jeopardise the way in which sports are governed. For example, one newspaper article referred to the following suggestion:

''The Gender Recognition Bill . . . has put the entire future of competitive sport in jeopardy''.

The noble Lord who moved the amendment said that there would be plenty of sportspeople who would attempt to use such rules to get an edge.

The idea is that somebody could change their sex at will. A male could apply to become a female and gain an advantage over other women in competitive sport. That really is a fantasy, and I am disappointed that the Government have gone along with such a notion. The clause allows sports bodies to discriminate against transsexual people on the basis of a necessity to secure fair competition or the safety of competitors. Sports bodies already have the power to decide safety matters; if they thought that a boxer would cause himself harm by going into the ring, they could stop him from participating. So, I query the safety aspect of the clause.

There is the idea, based on science fiction, that people change from one to sex to the other at will. The Bill does not allow that. Somebody seeking recognition for the gender that they perceive themselves to have always been in must have lived in that role for two years and received some, if not all, medical treatment for the condition. So, the idea that a man could become a ladies' champion is an unrealistic and fictional concept because any man treated with feminising hormones is likely to be at a disadvantage to the very fit women that currently compete in sport at the highest level.

It is appropriate for the Minister to respond to the question of why it is necessary to include a clause that allows unnecessary discrimination against transsexual people.

Tim Boswell (Conservative, Daventry)

I counsel the Minister not to accept the arguments, however charmingly advanced, of the hon. Member for Birmingham, Selly Oak (Lynne Jones). She is right on the principle, which is that the Bill is of

general application to legal status, and we should test any derogation from that quite seriously. We recently discussed such a precise point in clause 16.

The hon. Lady has no doubt assiduously read the debates in another place on the matter. My hon. and noble Friends Baroness Buscombe and Lord Moynihan, who share the dubious pleasure of participating with me on our culture, media and sport team, were engaged with some practical problems not dissimilar to the concerns about the practice of religion voiced by my hon. Friend the Member for South-West Bedfordshire (Andrew Selous). I am glad that they persuaded the Minister to introduce an entirely measured and appropriate new clause.

Lynne Jones (Labour, Birmingham, Selly Oak)

Does the hon. Gentleman accept that neither the individual sports governing bodies nor the International Olympic Committee have requested the derogation?

Tim Boswell (Conservative, Daventry)

Perhaps not in such terms, but I am well aware from the work that my friends whom I have cited have done that there has been some concern, which they have pursued with the governing bodies to a satisfactory outcome. In parenthesis, the IOC, which was considering the issue parallel to them, has no further observations to make. The Minister may want to include that in his concluding remarks.

I say to the hon. Lady that of course the clause is not a blank cheque for discrimination. I would share her concerns if it were. It ties exclusion to two objective tests that ultimately could be heard by the courts. I think that we all wish that that sort of thing should not get to the courts. The tests are those of fair competition and the safety of competitors. If push came to shove, a governing body would have to justify itself. Basically the problems are, in certain cases, real and have been wrestled with by governing bodies in the past in relation to shot-putters, weightlifters and so on. They do not arise simply in relation to transsexual people, and I do not wish to pretend that they do. I do not think that the debate has been conducted in tabloid terms and I do not intend to change that.

There could be difficulties for some governing bodies in particular areas where there is a clear sex or gender advantage, especially in a minority sport where the governing body would not have huge resources to resist the challenges. The other aspect of the matter is that, where there has been settled practice for dealing with these difficult issues, it has generally worked fairly for all competitors. There is also a duty to competitors not in that position. So, while I understand the difficulties of the issue and where the hon. Lady is coming from, and look forward to the Minister's response, I do not seek to encourage him to accept the amendment.

David Lammy (Labour, Tottenham)

I accept the arguments made by my hon. Friend the Member for Birmingham, Selly Oak. Clearly, there will not be many transsexual people who play competitive sport. That is partly because there are not many people who play competitive sport at any

significant level. However, it is also because the transition process, and the treatment that transsexual people undergo, can affect their bodies substantially.

Clause 19 is not, however, premised on the idea that all transsexual people pose a threat to competitive sport. Indeed, it expressly does not apply to transsexual people as a class. It permits a sporting body to restrict the participation of a transsexual person only if it is necessary to ensure fair competition or the safety of other competitors. That means that wherever a transsexual person does not have a competitive advantage, by virtue of having previously been of another gender, a sporting body will not be entitled to exclude that person from competition. The Government do not wish for transsexual people to be unnecessarily excluded from sporting competitions and we do not think that clause 19 creates that scope.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Let us consider the example of golf. Many people play golf, including many transsexual people. A transsexual woman may become a member of a golf club and participate not only in her own private games but in competition. Those are generally either handicapped or split into genders, for sporting reasons. In golf clubs, I suspect that the split may also be for cultural reasons. No matter how good that woman is, she may well have a more distant drive, on the basis of greater strength, if that is retained from her previous gender. How does the Minister expect golf clubs, which will probably want to prevent them from participating, to include any transsexual women in such competitions?

David Lammy (Labour, Tottenham)

From the cuttings that I have read, I know that there is a golfer in that situation. That must be a matter for the sporting body. The hon. Gentleman knows that there is nothing to prevent a sporting body from asking the question and considering the matter in the context of their sport, and that the IOC will shortly publish guidelines to assist sporting bodies in making such determinations. The decision is properly for them. The clause seeks to set out the ambit of fair and safe competition, but any decision imposed to ensure either fair competition or the safety of competitors must be in accordance with the law and justified under article 8.2 of the convention.

Any piece of human rights legislation must balance the rights and interests of one set of people against those of others. Clause 19 does so in the context of sport and, therefore, should remain part of the Bill.

Question put and agreed to.

Clause 19 ordered to stand part of the Bill.

Clause 20 ordered to stand part of the Bill.

Clause 21 - Foreign gender change and marriage

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment No. 72, in

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

Marion Roe (Conservative, Broxbourne)

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.'.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

Lynne Jones (Labour, Birmingham, Selly Oak)

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.

Tim Boswell (Conservative, Daventry)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

David Lammy (Labour, Tottenham)

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.

Andrew Selous (Conservative, South West Bedfordshire)

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?

David Lammy (Labour, Tottenham)

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.

Lynne Jones (Labour, Birmingham, Selly Oak)

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?

David Lammy (Labour, Tottenham)

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.

Tim Boswell (Conservative, Daventry)

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?

David Lammy (Labour, Tottenham)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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?

Tim Boswell (Conservative, Daventry)

That is correct.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

David Lammy (Labour, Tottenham)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

David Lammy (Labour, Tottenham)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

Maria Eagle (Labour, Liverpool, Garston)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

Angela Watkinson (Conservative, Upminster)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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—

Maria Eagle (Labour, Liverpool, Garston)

Doctors use Latin all the time.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

Clause 22 - Prohibition on disclosure of information

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 21, in

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

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

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

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

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

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

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

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

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

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

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

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

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

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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

David Lammy (Labour, Tottenham)

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

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

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

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

A prohibition that extended—

Sitting suspended for a Division in the House.

On resuming—

David Lammy (Labour, Tottenham)

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

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

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

Tim Boswell (Conservative, Daventry)

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

Amendment, by leave, withdrawn.

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 22, in

clause 22, page 9, line 15, leave out

'or of a voluntary organisation'.

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

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

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

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

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

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

David Lammy (Labour, Tottenham)

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

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

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

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

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

Tim Boswell (Conservative, Daventry)

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

Amendment, by leave, withdrawn.

Lynne Jones (Labour, Birmingham, Selly Oak)

I beg to move amendment No. 51, in

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

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

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

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

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

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

David Lammy (Labour, Tottenham)

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

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

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

Lynne Jones (Labour, Birmingham, Selly Oak)

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

Amendment, by leave, withdrawn.

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 23, in

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

Marion Roe (Conservative, Broxbourne)

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

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

Tim Boswell (Conservative, Daventry)

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

David Lammy (Labour, Tottenham)

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

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

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

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

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

Tim Boswell (Conservative, Daventry)

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

Amendment, by leave, withdrawn.

Clause 22 ordered to stand part of the Bill.

Clause 23 - Power to modify statutory provisions

Tim Boswell (Conservative, Daventry)

When I see a clause headed ''Power to modify statutory provisions'', I feel a degree of sensitivity. That is not a power that we should give to any Government or Minister lightly, because we are here to decide what legislation we want, and not what kind of legislation Ministers might want or that we might have had if we had thought of it.

I understand the genesis of the clause. The helpful explanatory notes from the Department state:

''Legislation has made distinctions on the basis of gender for centuries, and the use of gender-specific terms, though it has reduced, nevertheless continues in some contexts.''

It goes on to spill the beans on why the clause has been included:

''Though a thorough analysis has been conducted of areas in which the facility to change gender may cause difficulties or complexities, this clause acknowledges the possibility that other instances may come to light in the future.''

In other words, it is designed to cover situations that might happen, but which the Department has not noticed yet.

I could nod to the general wish, but I want to make one point. Legislation now is non-gender specific, generally. That is welcome and I hope that that will not change. I agree that there may be some draftsperson in the future who nods and lets something through, perhaps because of the habits of a lifetime, but I hope that the clause is primarily targeted towards clearing up any difficulties in old legislation, rather than in new legislation.

The Minister may like to consider that that there may also be circumstances in which the use of gender-specific legislation bears on private law and the relationship between parties—issues that may not have been adequately covered under the saving clause, clause 18. In that case, he may wish to deploy the provision in relation to a private inequity.

Perhaps the Minister can briefly comment on the points that I have raised. We should not allow general enabling powers to pass without some mention.

David Lammy (Labour, Tottenham)

We had an interesting debate about the various uses of ''female'', ''male'', ''sex'' and ''gender'' in legislation in this country. I indicated that the use of the words ''sex'' and ''male'', in particular, was much higher than the use of the words ''female'' and ''gender''. That has much to do with current practice, which has developed since the '70s, since when people have tried to use less gender-specific terminology. I support the point that the hon. Gentleman has made. In that sense, this provision could be used to remedy a situation.

I should put it on the record that if the Bill is enacted, Parliament clearly will have agreed the basic principle that a person is to have all the rights and responsibilities appropriate to the acquired gender. The power to modify statutory provisions will be used only to ensure that that principle has full effect. That is an important qualification to make when discussing an enabling provision. I am grateful for the hon. Gentleman's observation in relation to clause 18 and I will study that carefully.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister for his explanation.

Question put and agreed to.

Clause 23 ordered to stand part of the Bill.

Clauses 24 and 25 ordered to stand part of the Bill.

Clause 26 - Commencement

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 25, in

clause 26, page 11, line 38, at end add

'; but the Secretary of State shall not make such an order until he is satisfied that legislation has been enacted to introduce civil partnerships for those persons whose marriage has been annulled by this Act and that such legislation is in force'.

This is the last non-formal amendment. I wish to record my appreciation for the responses that we have had. Even though they have not always satisfied us, at least they have been tendered.

The amendment can be read in one of two ways. The Minister will know in which way I wish it to be read. It is not a delaying tactic to defer application of the Bill, which I want to be passed as soon as possible, as do people in the transsexual community. It is meant to send the message that the Bill will work much better, and deal with some of the dilemmas that we have debated at length in Committee, if it is accompanied by a civil partnerships Bill. We, or at least I, wish both to proceed together. I realise that that is difficult. The Minister cannot produce two pieces of legislation at the same time, and I realise that the Government are consulting on civil partnerships. However, it would be extremely useful if we could have the two blades of the scissors operating together as soon as possible. It is in that spirit that I have tabled my amendment. I hope for clarification and perhaps some words of encouragement from the Minister.

David Lammy (Labour, Tottenham)

As I have said, the Government will shortly introduce legislation on same-sex civil partnership. Legislation on civil partnership will provide same-sex couples with an opportunity to gain legal recognition for their relationships. However, the amendment would halt implementation of the Gender Recognition Bill until the civil partnerships Bill has been implemented. I am grateful for the manner in which the hon. Member for Daventry moved the amendment, but the Government can see no good reason to delay access to recognition in the acquired gender, especially as the vast majority of transsexual people are unmarried—only about 2 to 4 per cent. of the transsexual community are married.

I also emphasise that, should the Gender Recognition Bill come into force before civil partnership legislation, it will be for the married transsexual person to decide whether to wait for the implementation of the civil partnership legislation, or to seek gender recognition as soon as the gender recognition panels are in place. One assumes that that decision would be made in discussion with the spouse, especially if the parties intend the relationship to continue. The application for gender recognition may be deferred until the option to form a civil partnership

can be considered. It is important to emphasise that they—the couple—are in control of the process. The Government have extended the fast-track process in clause 27 to two years, so married transsexual people will not lose out on using that process either.

With that explanation, I hope that the hon. Gentleman will withdraw his amendment.

Tim Boswell (Conservative, Daventry)

I take it that those are the words of encouragement that I sought. I think that all members of the Committee will unite in urging the Minister to get on with it. I am sure that he wants to do that. Most of us will not seek to frustrate his legislative purposes elsewhere. In light of his assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 ordered to stand part of the Bill.

Clauses 27 and 28 ordered to stand part of the Bill.

Clause 29 - Short title

David Lammy (Labour, Tottenham)

I beg to move amendment No. 70, in

clause 29, page 13, line 13, leave out subsection (2).

A privilege amendment is required where a Lords Bill contains provisions that deal with charges on the people or on public funds. Since 1972, this House has generally proceeded with a Lords Bill that would have as its main objective the alteration of or, as in this case, the imposition of a charge upon the people or public funds, provided it contained the standard formula that no such charge is imposed or altered and that a Minister of the Crown takes charge of it in the Commons. The standard formula is incorporated into the Bill before it leaves the Lords to avoid the formal infringement of the Commons' privileges. Hon. Members will see that the privilege amendment negates the financial consequences of the Bill and thereby demonstrates that the ability of another place to legislate on such matters is not absolute but is, quite properly, subject to the tolerance of this House. [Hon. Members: ''Hear, hear.''] I see all members of the Committee nodding in agreement.

The provision that, but for the privilege amendments, would have the effect of creating or altering a charge has now been authorised by the money resolution, which was agreed to immediately after Second Reading. Therefore the privilege amendment may safely be removed. As hon. Members will recognise, this is a purely technical and formal process, and I hope that the Committee will accept the amendment.

Amendment agreed to.

Clause 29, as amended, ordered to stand part of the Bill.

New Clause 1Marriage between transsexual persons

Marriage between transsexual persons

Tim Boswell (Conservative, Daventry)

I beg to move, That the clause be read a Second time.

The new clause provides for marriage between transsexual persons. I can be brief, because many of the arguments have been thoroughly rehearsed in Committee and because I deliberately tabled the new clause as early as I could so that Ministers would have time to consider it.

The new clause is designed to repair a specific unfairness in the Bill, which comes on the back of another and wider concern that has been expressed by Members. The Bill is characterised by huge swings between issues that affect people's personal lives and issues such as social security that are equally complex but of a different nature. The new clause returns us, perhaps appropriately as we near the end of Committee stage, to the identity of individuals. The greatest difficulty that we have encountered in that respect is the Bill's requirement that if a party to a marriage to whom a gender recognition certificate has been granted wishes to take up the full gender recognition certificate, they must have their marriage annulled. Therefore if the couple continue to live together, they cannot do so as man and wife.

That circumstance initially came to my mind as a theoretical possibility, and I corresponded with the Minister's colleague, Lord Filkin, six months ago when the Bill was in draft, suggesting that it might be possible to make an exception in the specific case of two transsexual persons who had both received a gender recognition certificate. The Minister's concern, which has been properly expressed here and which I share, is not to permit same-sex marriages. However, if both parties to a marriage changed gender, that objection falls, because the couple would still be a man and a woman who wished to be married to each other. No doubt, pursuing some of the prudential

consequences of the annulment of marriage, they would also wish to avoid the practical problems that might arise in respect their pensions and benefits, or any difficulty arising from the discontinuity of marriage.

Under the Government's proposals, such individuals, like any other party to a marriage to whom a gender recognition certificate had been issued, would be required to annul their marriage and, in the case I have set out, remarry themselves—they could not even conclude a civil partnership. It is an unnecessary procedure that is bound to be stressful and traumatic, and it should be avoided. If the Minister believes, as I am sure he does, in the importance of marriage as an institution but wishes to enter the reservation that marriage is to be between persons of opposite sexes, I cannot perceive what objection might be made to the new clause.

I subsequently found, although I have not taken steps to interest myself in the identity of the parties involved, that there may be a real case in which two partners, both transsexuals, wish to avail themselves of such a provision. The matter therefore becomes more urgent. The principle is important. Even if no one were currently included in the class of persons who might wish to do as the new clause would allow, it would be wrong to make such people to go through the hassle of an annulment before reconstituting themselves as the married partnership that they always believed themselves to be.

Lynne Jones (Labour, Birmingham, Selly Oak)

I am grateful to the hon. Member for Daventry for raising the issue. As he rightly says, the new clause relates to an extremely rare, but possible, case. Whether or not the Government are minded to accept new clause as worded, I urge them to take steps to ensure that such a married couple would not have to end their marriage and remarry simply to have their correct genders recognised.

David Lammy (Labour, Tottenham)

I am grateful to the Committee for raising the issue. The Bill will put couples in which both parties seek recognition in their acquired gender to the trouble of first having to end their marriage and then re-form it after gaining recognition. The practical implications are less serious than if one party seeks recognition in the acquired gender. If the couple remain an opposite-sex couple after recognition, they will be able to remarry and regain all their previous rights and responsibilities. We would not expect them—

Tim Boswell (Conservative, Daventry)

The Minister may be coming to this point, but is he telling the Committee that the discontinuity in their marriage, albeit for as little as 24 hours, would not constitute a disqualification for any benefit entitlements either in the public or private sector? If he is, that would meet at least part of the difficulty that the new clause identifies.

David Lammy (Labour, Tottenham)

That is indeed my understanding.

We would not expect such couples to seek orders for financial provision on the dissolution of the first marriage, as their financial responsibilities to each other would shortly be reinstated. We have considered the new clause carefully but, on reflection, we are not minded to make special provision for such couples. That is partly because of the numbers involved: our information suggests that there are only about four couples in that category.

Aligned to that is the fact that we would require the equivalent of schedule 3 to issue new marriage certificates. The new clause refers to the issue of a modified certificate of marriage, but we do not believe that it is appropriate to change that historical record. The Committee will note that the Bill does not modify the original birth certificate—it stands as an historical fact, and the new birth certificate sits alongside it. The original birth certificate remains in existence and a mechanism is created for a new birth certificate. The Committee will realise that that requires detailed provisions under schedule 3. Given the small number of couples involved, we believe that it would not be proportionate to replicate schedule 3 for marriage certificates, either in terms of the legislative provision or administrative arrangements. For those reasons, the Government oppose the new clause.

Tim Boswell (Conservative, Daventry)

I am bound to say that I am a little disappointed by what the Minister has said. The issue has fallen into the ''too difficult'' category, but if Ministers were prepared to get to grips with it, they could resolve that difficulty. Making provision might require alterations in the marriage certificate, or some other mechanism, but I am sure that it is not beyond the power of the draftspersons to produce a schedule—even one running to pages—that would enable that to happen.

The argument that only very few people are involved is not in itself compelling. However, I do not want to end what has been a positive Committee on an unnecessarily heated note, so, rather than press the matter now, I shall withdraw my new clause and reconsider it in the light of what the Minister said. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 4 - Criminal Records Bureau checks

Tim Boswell (Conservative, Daventry)

I beg to move, That the clause be read a Second time.

The Committee had a full and useful debate on clause 22 and disclosure of information. The new clause relates to a particular problem that may or may not arise in consideration of an individual and searches to be made by the Criminal Records Bureau. The overriding point was shown up by the recent case of Huntley, who changed his identity. Tragically, that change was not sequenced through and he was not identified as a person with a question mark or a history of complaints against him. That, sadly, led to the conclusion that it did. We need not go on about that; there may be other cases of equivalent or lesser importance. The principle is that it should be possible, despite a change of gender, to identify people with their history.

The issue raised by clause 22, as drafted, is who should handle that information and whether it should be in the hands of the people who carry out the checks or should go directly to the bureau from the registrar or person who issues the gender recognition certificate in the first place. We want to ensure that, whatever means are secured—perhaps the Minister can explain the mechanism he has in mind—someone who has changed gender, as well as someone who has changed identity, will be traceable through the system so that anyone who needs to know will know and anyone who needs to disclose that information to another person will be protected from any suit under clause 22.

The issue is important and it is essential that the Minister gives a clear assurance that the system will work, that no one will be put under unreasonable pressure and, in particular, that the voluntary bodies to which we referred earlier will be able to make use of the information if they need it, or pass it on to others.

David Lammy (Labour, Tottenham)

Clause 22 sets out the limited circumstances in which disclosure is permissible—for example, for the prevention or investigation of a crime. The suggestion in the new clause might be that there is potential for abuse of the gender recognition system in order to avoid detection by a number of official agencies. I begin by reiterating that acquiring a new gender under the criteria in the Bill is a long, difficult and painful experience that can often result in the loss of friends, family and even employment. The panels will require medical evidence of gender identity, disorder and a legal commitment to living permanently in the acquired gender. It is bizarre to suggest that a person who is not transsexual should put themselves through all that to avoid detection of some sort. I thank the hon. Gentleman for the way in which he spoke to the new clause, but it is important to put those matters on the record. Similarly, it is unfair to assume that transsexual people pose any more risk to children or the vulnerable than others. If the procedures for checking criminal records are suitable for other people, they are suitable for transsexual people.

I should clarify that before any person, not just a transsexual person, is cleared to work with children, the applicant is asked to complete a disclosure application form by the employer, voluntary organisation or registered body. The form asks for the surname at birth and for any other names used by the

applicant. The form is then forwarded to the Criminal Records Bureau, which triggers its usual background checks. I must stress that nothing in the Bill prevents the bureau from doing that.

In addition, information linking the previous identity and the new one will be held as a matter of course by both the Registrar General's offices and the gender recognition panel. That information will ordinarily be confidential, and will not be disclosed to anyone at all. As I said before, the Bill does not prohibit disclosure if it is for the purpose of preventing or investigating crime.

The Government do not, therefore, take the view that there is a need for a further clause in the Bill. Safeguards in existing provisions already provide the assurances sought by the hon. Member for Daventry. With that, I hope that he is able to withdraw the motion.

Mr. Boswell rose—

David Lammy (Labour, Tottenham)

I would just like to say, because we are now into the last few minutes of the sitting and I cannot be sure whether I shall have another opportunity, thank you, Mrs. Roe, for the manner in which you have conducted the Committee. I would also like to thank Mr. Taylor in his absence.

We have had an interesting debate. We have discussed some extremely difficult and complex issues, which are important to the constituents of us all throughout the country. We have had to balance the interests of faith communities and others who have taken an interest in what we are doing. As Minister, I have had to get to grips with some important pieces of legislation, and I am grateful for the work of my noble Friend Lord Filkin as the lead Minister in this policy area and as the Minister in another place. I am grateful for the opportunity to put that on the record.

Tim Boswell (Conservative, Daventry)

Mrs. Roe, I think that we are still formally speaking to my new clause, but I do not think that I need add anything of substance to that at the moment. Before I withdraw the motion—other Committee members may wish to make a brief contribution to the debate—I should like to respond to what the Minister has said by reiterating our thanks to you and Mr. Taylor for your chairmanship of the Committee. I also thank the Clerks, who are invaluable in their assistance of Opposition Members, and all the people who have taken our notes, written down our jokes, comments and our abstruse references, and generally regulated our affairs.

I would like to add my personal thanks to the Minister. We happen to be in an unusual position in interpersonally agreeing about the merits of the Bill. However, it has been right to test some of the provisions, and he has been able to satisfy us on some of the points. Metaphorically throwing down the gauntlet, there may be one or two other matters to re-examine on Report that are important. Through the Minister, I thank his officials.

I thank all Committee members. Our proceedings have been a considerable joint effort. My hon. Friends and Government Back Benchers have had differences

of emphasis—notably, if I may without invidiousness single them out, the hon. Member for Birmingham, Selly Oak, and on the Opposition Benches, the hon. Member for Oxford, West and Abingdon. We have had some good debates; I am sure that we all feel that we have learned something from them. We may not always share exactly the same perspectives, but we unite in our wish to do a good job and produce legislation that is workable. In that respect, I would like to add my thanks to all those who have briefed us in this place. They have had different perceptions, but they have done their best to express their ideas sensitively and to contribute to what in my view—one cannot always say this—has been a very constructive Committee.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I had not planned to speak to the hon. Gentleman's new clause, but to save time I identify myself with all that he has said. What a pleasure it has been to serve under you, Mrs. Roe, and Mr. Taylor, and to engage with both Ministers who have served on the Committee. Government Back Benchers have felt able to contribute to debate in a way that we do not always see. In fact, we very rarely see that.

I also thank those on the Opposition Benches for the way in which they have introduced their business. In particular, I thank my hon. Friend the Member for Teignbridge and the hon. Member for Daventry, who has exercised his duties in his usual polite and apposite way. I also thank other members of the Committee, including the hon. Member for South-West Bedfordshire, without whose contribution the Committee would not have been the same. I think that there is still more to come from him. I save other remarks for Third Reading.

David Lammy (Labour, Tottenham)

It would be remiss of me if I did not thank my hon. Friend the Under-Secretary of State for Work and Pensions. On Second Reading, some important questions were raised about pensions. Those issues did not arise in the other place. I am grateful for the way in which my hon. Friend dealt with them in her usual way to—I think—the satisfaction of the Committee.

I also put on record my thanks for the work of the Joint Committee on Human Rights, and particularly the work of my hon. Friends the Members for Birmingham, Selly Oak and for St. Helens, South (Mr. Woodward) and of the hon. Member for Oxford, West and Abingdon.

Tim Boswell (Conservative, Daventry)

I think that we are still in the middle of debating my new clause. As it would be ungracious if I did not do so, I also thank the Under-Secretary of State for Work and Pensions. She threw light on an area that most of us prefer not to know too much about, and even those who know a bit about it know what we do not know.

This has been a constructive Committee. We have exchanged pleasantries, but in this case—if not quite always—we have meant them. In the spirit of what has been said to date, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Bridget Prentice (Labour, Lewisham East)

On a point of order, Mrs. Roe. On the basis that everybody is congratulating and thanking everybody else, I wonder whether it would be appropriate at this time for me to thank my opposite number, the hon. Member for Upminster (Angela Watkinson), for the charming and co-operative way in which she has helped us through the Committee? When the Bill returns to the Floor of the House, she will not be dealing with it, as she has moved on to greater things. I hope that the Committee will be appreciative of the work that she has done here and wish her well in her new post.

Marion Roe (Conservative, Broxbourne)

That is not a point of order, but I am sure that the hon. Member for Upminster has heard what has been said.New Clause 6 Changing and washing facilities

New Clause 6 - Changing and washing facilities

Andrew Selous (Conservative, South West Bedfordshire)

I beg to move, That the clause be read a Second time.

We have only three minutes left and I will be brief, as I would like to get a response from the Minister. At the end of the clause stand part debate on clause 19, the Minister spoke about balancing the rights of different sections in our society. The clause is about sports changing facilities and showers where there are no cubicles and no physical separation, such as in the armed services. I wonder whether the Minister has had any conversations with the Ministry of Defence on that point.

I served in the Army for 12 years and my concern is that a small minority could cause needless offence. I stress immediately that the majority of transsexuals would not want to do that, but there was a recent example along those lines in Northamptonshire, of which the Minister will be aware. It is a relevant issue. My concern is to make sure that the rights of third parties are respected. If the Minister does not do that, we could have a backlash. It could cause resentment that would achieve the reverse of what he is trying to do under the Bill.

David Lammy (Labour, Tottenham)

The armed forces give detailed guidance for dealing with transsexual members. It will come as no surprise to the hon. Gentleman that the Government oppose the new clause. We discussed

many of the issues on Thursday. We believe that there is no reason to require transsexual people to use separate changing or washing facilities.

Andrew Selous (Conservative, South West Bedfordshire)

That is not the purpose of the new clause; the Minister is completely misrepresenting it. Transsexual people should use the facilities appropriate to their adopted gender. The new clause addresses only those circumstances in which deep offence may be caused to other people if there is no cubicle separation. Will he address that point, and not another one?

David Lammy (Labour, Tottenham)

I thought that I was addressing that point. As I said, we had extensive discussion—

It being Five o'clock, The Chairman proceeded, pursuant to Sessional Order D relating to programming [28 June 2001, as amended on 28 October 2001] and the Order of the Committee [9 March], to put forthwith the Question already proposed from the Chair.

Question put and negatived.

Bill, as amended, to be reported.

Committee rose at Five o'clock.