Orders of the Day — Gender Recognition Bill [Lords]

House of Commons, 25 May 2004.

New Clause 1 — Religion

Edward Leigh (Conservative, Gainsborough)

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

Michael Martin (Speaker, Glasgow Springburn)

With this it will be convenient to discuss amendment No. 1, in page 9, line 37, at end insert—

'(ha) the disclosure is made between officials of a voluntary organisation which is also a religious organisation, in connection with its functions, and is necessary to,

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

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

Edward Leigh (Conservative, Gainsborough)

I rise to speak to these two proposals, which stand in my name. I am delighted to say that my hon. Friend the Member for Daventry (Mr. Boswell), who is the Conservative Front-Bench spokesman, has put his name to them, as have five Labour Members, including the right hon. Member for Swansea, East (Donald Anderson) and the hon. Member for Bootle (Mr. Benton), several of my Conservative colleagues, a Liberal Democrat Member—the hon. Member for South-East Cornwall (Mr. Breed)—and an Ulster Unionist Member, the hon. Member for Belfast, South (Rev. Martin Smyth).

That breadth of support shows that they are genuinely cross-party amendments because this is not a party political issue, but a question of religious freedom. Religion is not the preserve of any one party and it is appropriate that concern for freedom of religion should be shared by politicians from all parties.

The amendments tackle the two main issues that were raised in a legal opinion, dated 23 March, which James Dingemans QC prepared. Hon. Members may remember that he was counsel to the Hutton inquiry. First, he states that the Bill contains scope for "divisive and costly litigation" against churches. Churches are bodies of limited means and one can imagine that the prospect of any sort of litigation concerns them gravely.

The Bill creates scope for transsexual people to take legal action against a church that refuses to recognise them in their acquired gender. Clause 9 declares that a man who persuades a gender recognition panel to grant him legal status as a woman becomes a woman "for all purposes". If a church refuses to recognise that, he may sue that church.

Some ridiculous legal cases have already been brought against churches. We are not inventing a worry about something that does not exist. The most well-known case is probably that of a transsexual man called Bill Parry, who sued a Baptist church in south Wales because it would not let him attend the ladies' prayer meeting. In paragraph 30 of his opinion, Dingemans states:

"It appears from the reports of the debates that the Government view is that such challenges should fail. Although . . . it seems to me that that should be the result—

I emphasise the words "should be the result"—

"the cases are likely to occupy considerable time and divert the resources of the Churches into litigation."

The new clause seeks only to address the problem and to make matters crystal clear.

Secondly, Dingemans says that the criminal offence against disclosure in clause 22 breaches freedom of religion. Clause 22 makes it an offence for an officer of a voluntary organisation to disclose the birth sex of a person who has a gender recognition certificate. A place of worship constitutes a voluntary organisation. In paragraph 21 of his opinion, Dingemans refers to the example of a Roman Catholic priest who would break the law if he disclosed to his bishop that a male candidate for ordination was a female-to-male transsexual. Such information would obviously be of interest to the bishop.

Another example is that of a curate who discovers that a marriage candidate is a transsexual and knows that his vicar, who disagrees with transsexualism, is unaware of the matter and is about to perform the marriage. The curate would commit a criminal offence if he said anything to the vicar. A private conversation between the curate and the vicar or between the priest and his bishop could be a criminal offence under the Bill.

We have held such debates previously and the Government said, "Don't worry—the curate just has to ask permission." However, the transsexual lobby called for the offence. They and the Government say that privacy is paramount and one understands some of the reasons for that. What if the transsexual refuses to give consent? The Government put the clergy at the mercy of the transsexual person who may sue. The Government's assurance works only if they can guarantee that 100 per cent. of transsexuals will give consent. Even if 99 per cent. do consent, what about the 1 per cent. who may not? What is the curate to do in those circumstances? He could place himself in contempt of the Bill.

Dingemans says that, to protect religious rights, the Bill must

"permit disclosures necessary to allow the religious organisations to regulate themselves in accordance with their religious beliefs."

That is all that we seek to do. I am not trying to impose ideas on anybody outside the church groups. I simply want to allow the religious groups to regulate themselves. That is all that amendment No. 1 would achieve.

Chris Grayling (Conservative, Epsom and Ewell)

Does my hon. Friend agree that perhaps the most inalienable human right is the right to act according to one's conscience and not to be called to act against it? However far one might wish to go to protect the rights of individuals who face difficult and challenging circumstances, doing that at the expense of the conscience of others is unacceptable.

Edward Leigh (Conservative, Gainsborough)

That is all that we are trying to achieve. We are not attempting to impose any religious views on anybody else. Surely it is axiomatic in a free society that religious groups should be allowed to conduct their affairs in the way that they wish. People have fought and argued for that for generations. We may not agree with their views, and some people might hold those views in contempt or find them extreme, but those religious groups must have the right, in a free society, to conduct their own groups according to their own beliefs, albeit without imposing their views on anyone else.

David Kidney (Labour, Stafford)

I am genuinely concerned about this issue. Does the hon. Gentleman acknowledge the disagreement in the 12th report of the Joint Committee on Human Rights with the learned QC's general opinion, along with the success of the hon. Gentleman's argument on the narrower point about an exemption for people wishing to pass on information to the clergy, who can then have the benefit of the conscience clause in refusing to perform a marriage ceremony? Would the hon. Gentleman regard it as a satisfactory outcome if the Government were to grant that lesser exemption?

Edward Leigh (Conservative, Gainsborough)

The hon. Gentleman is quite right. I am glad that he has raised that point because I was about to come to the Joint Committee's report, which concludes that the only exemption necessary to protect religious rights is for Anglican clergy conducting marriages, and that it should be legal to tell them a person's birth sex so that they can exercise their right under the Bill to refuse to conduct the marriage. The hon. Gentleman has made a fair point and I hope that the Minister will also respond to the Joint Committee on Human Rights. I hope that he will tell us what he intends to do about this because it is very late in the day to be putting things into the Bill. The Joint Committee of the House of Commons and the House of Lords agrees with Dingemans in this respect.

I want to be entirely fair with the House, however, so I must point out that—as the hon. Gentleman mentioned—the Joint Committee disagreed with Dingemans's reasoning on other points, although it does not give a detailed consideration of its arguments. I have consulted Dingemans on this report, and I am afraid that we get into rather complicated legal arguments here. The very fact that those complex arguments exist proves that this might be fertile ground for litigation. We have to accept that lawyers disagree on this—as they do on many things—and that it is therefore possible that a church could be taken to court. The church could win the case in the end, but it might have to spend some of its limited resources in doing so.

Michael Fallon (Conservative, Sevenoaks)

If learned lawyers disagree on which article of which convention should prevail, surely the best thing to do would be to get the statute right in the first place. Does not that make the case for my hon. Friend's new clause?

Edward Leigh (Conservative, Gainsborough)

That is all that I am seeking to do. I will deal with Pepper v. Hart in a moment, and with the rights of Ministers, however distinguished, to make subsequent orders, but it is terribly important to get the Bill as clear as possible when we are legislating in these complex and difficult areas.

Dingemans says that the view of the Joint Committee rests on the assumption that the transsexual's article 8 right to privacy "trumps" the article 9 right to freedom of religion. The report says that

"in any balancing exercise against the practice of enforcing uniformity amongst the members of a religion, the Article 8 rights must prevail."

Mr. Dingemans points out that this approach is wrong within the terms of the European convention on human rights, because article 17 forbids an individual or a state from using a convention right to destroy or overly limit other convention rights. Article 8 cannot therefore be said to trump article 9 in the way implied in the Joint Committee report. I know that that might confuse some hon. Members and I have been struggling with it myself this morning, but it shows some of the problems that we face and illustrates why it is important to clear them up.

Tim Boswell (Conservative, Daventry)

Does my hon. Friend agree that the context in which these conflicting rights are to be exercised is also important? That is referred to in the contrary legal opinion. It is one thing to exercise a right to privacy at home, as it were, but it is another thing to participate in a public act such as attendance at a place of worship.

Edward Leigh (Conservative, Gainsborough)

Yes. The right to privacy, as Dingemans makes clear, is very strong. It is stronger the closer one is to one's own home environment. As one goes out into another environment—perhaps into a church group—so the article 8 right is eroded. But these are complex and quite new areas of law that are being developed all the time, as my hon. Friend well knows.

I shall deal with the detail of the amendments in a moment, but first let me anticipate, as we have had some of these debates before elsewhere, some of the objections that hon. Members might have. Let us be clear that the amendment is not about religious bigotry. I do not believe that an amendment that dealt with religious bigotry in any sense would be supported by experienced Members such as the right hon. Member for Swansea, East or the hon. Member for Bootle.

I often mention the Plymouth Brethren when I speak in the House about religious liberties. It is a fact, Mr. Speaker, that the Plymouth Brethren would not let you or me anywhere near one of their services—not unless we changed our religious beliefs. They certainly would not let us take communion, and they would not even let us near their Sunday school class. Most hon. Members, and perhaps all hon. Members, would be excluded from their group. That is their right. We may think their views are extreme, but they have that right in our free society. They are a religious community. We may not agree with their views, but we accept that they have the right to hold their views.

In moving the amendments, my concern is to protect religious freedom. The Bill touches on highly controversial ethical matters, about which there is considerable disagreement in society at large. Within religious communities the views—the disagreements—are even stronger. It is true that many very good Christians have no strong views about the matter. It is equally true that many other equally valid Christians do have strong views about whether a man can become a woman. That is not to say that they want to be nasty to transsexuals. They believe, although the House may not agree, that it is their duty to reform them. They want them to repent, just as they want me to repent. But if a transsexual walks through the door of a church, they would welcome them as they welcome all people. That is what they are there for: to welcome people and, they believe, to share the gospel with them. Very few churches in the country would turn away a transsexual from visiting the church.

What if the women in the church have a prayer group in which they may discuss intimate female issues? Why should they be carted off to the High Court for refusing to allow someone to attend that female prayer group whom they have known as a man for the past 30 years? Why should that happen to those ladies? Some disagree with the views of such ladies on the issue. They think those churches are wrong. That may be a perfectly valid point of view. Some—I will deal now with this point, which I think is a very unfair point—compare their views with racism.

I believe that comparing the views of those church groups with racism is wrong—indeed, scandalous. The law says, rightly, that one cannot refuse a person attendance at a prayer meeting for being black. That law was never opposed by any churches. I have never heard of any church group in the United Kingdom that would want to keep a black person out of any meeting whatever. Christianity is a cross-racial religion. There are more black practising members of Christianity than there are white members, and many churches in the UK are living examples of racial harmony.

The reason racism is wrong, and has always been wrong, is that one cannot choose one's race. There is no element of moral choice in the matter, so one's race says nothing about one's character. However, choosing to embark on an operation to change one's sex may or may not be right, but it may be in some people's view a controversial decision. It is certainly a moral issue. Because it is, in the view of some, a controversial and a moral issue, it is surely right that members of religious groups should be entitled to their views.

Lynne Jones (Labour, Birmingham, Selly Oak)

Until the hon. Gentleman began his latest point, I thought he moved his amendment very sympathetically and I agreed to a considerable extent with what he said. I hope that the Government take on board the issue of religious conscience. However, when the hon. Gentleman speaks about a women's group discussing intimate physical matters, I wonder what that has to do with religion. When he talks about people exercising choice, the point about transsexual men and women is that they do not feel that they have a choice. They feel that their correct gender is the gender to which they want to be reassigned.

Edward Leigh (Conservative, Gainsborough)

I accept that that is the view of transsexuals and that there is a debate about these matters. However, there are some people in Christian communities or in some churches who hold the views that I was presenting. They may or may not be right, but that is not the issue that the House must address today. The hon. Lady may hold the views of those people in contempt, if she wishes. I am not asking her to make any judgment of them. I fully accept that many transsexuals believe they are trapped in the wrong body and that for them it is not a moral or controversial case—it is simply righting some kind of physical wrong.

We can discuss all these issues later on Third Reading. I am dealing with the narrow point of how particular people should conduct their own affairs and their own meetings. Contrary to what the hon. Lady believes, many people in this country believe that there is a moral choice involved. Should we as the House of Commons impose our views? I accept that the Bill is supported by those on all the Front Benches and will become law in wider society. The only question we are considering in this narrow set of amendments is whether we should impose the general law on the particular circumstances of religious groups conducting their own private meetings. That is all we are talking about.

John Bercow (Conservative, Buckingham)

My hon. Friend will not be surprised to know that I am rather perturbed by the general thrust of his remarks. If the House, on what is undoubtedly a controversial issue, reaches a judgment on what it thinks is the appropriate human rights treatment of transsexuals, surely it is both wrong in itself, and a dangerous signal to send in relation to other potential legislation, that people, whatever their private views, should somehow be allowed to opt out of the legal and human rights judgment that the House has made.

Edward Leigh (Conservative, Gainsborough)

The answer is that people are not opting out. The Bill will become law. A man will be allowed to become a woman and his birth certificate will be changed. In all respects in society—getting a job and going about his or her daily business—if she was a man who is now a woman, she will be a woman. Is my hon. Friend really saying that when we are dealing with people who have particularly strong moral or religious views we should override those views not in society as a whole, but in their own private meetings and in their own church?

John Bercow (Conservative, Buckingham)

indicated assent.

Edward Leigh (Conservative, Gainsborough)

If my hon. Friend really believes that, it is a deeply illiberal point of view.

Martin Smyth (UUP, Belfast South)

Liberal or not, the harsh reality of life is that when the state has sought to interfere in the internal affairs of church bodies, there has been constant persecution. If the hon. Gentleman's new clause is not pressed through, it will lead to tension that the country should not have to face. Since 1647, the state has had no rule in the internal affairs of the Church of Scotland.

Edward Leigh (Conservative, Gainsborough)

We would all agree that the last thing we want to do is return to the controversies in the House in the 16th and 17th centuries. We want to keep out of all that. We want nothing to do with what people do in their own churches.

John Bercow (Conservative, Buckingham)

rose—

Edward Leigh (Conservative, Gainsborough)

I give way to my liberal Friend.

John Bercow (Conservative, Buckingham)

I thank my hon. Friend for giving way. Over the past five years I, in common with many other Members, have been accused of many things. I do not think I have been accused of illiberalism until now, but there is always a first time. May I put it to my hon. Friend that what he is arguing, in reasonable and measured terms, is that people should have a right, because of their convictions, to exclude from their private gathering a person or people of whose status they disapprove? That would provide a dictionary definition of intolerance, and intolerance should be inimical to anyone with a religious commitment.

Edward Leigh (Conservative, Gainsborough)

I have already said that I cannot think of any—or many—churches that would exclude a transsexual from their services. Being a Christian is about welcoming everybody, even people of whose past, morals or anything else one might thoroughly disapprove. But there may be a case that may not be entirely unreasonable. I have already mentioned the real case of the ladies in the Baptist church in south Wales—incidentally, the judge finally came down on their side, and they won the case. Were they being entirely unreasonable in saying, "We are a group of ladies, sitting in a private meeting, and discussing intimate female matters. We know that this chap has been man for the last 30 or 40 years, and we would prefer him not to attend our meeting"? It is ridiculous that they should be carted off to the High Court simply for saying that. They were not excluding this man from anything else. My hon. Friend's argument is too wide. Let us return to the narrow point that this House should not, under any circumstances, impose its views on private religious meetings.

The new clause borrows without modification the wording of section 13 of the Human Rights Act 1998, on which I hope all Members can now agree. Section 13 was introduced by this Government in response to religious liberties concerns about the effects of the Act. The wording draws attention to the scope for a clash between religious and other rights. Religious rights are often overlooked, so it reminds the court—that is all the amendment does; it is very narrowly drawn—to pay particular attention to those rights when resolving any dispute affecting a religious group. If some religious group were in certain circumstances acting completely unreasonably, I presume that it would fall as foul of my amendment as of the Bill as drafted. The wording could not be more modest: it simply places in the Bill an acknowledgement that applying this new law in a religious context could affect religious liberties. It seeks to ensure that rights are not ignored, which will help to deter vexatious litigation against churches under the Bill. It will give churches that are sued an extra legal argument that they can use.

I know that the Minister will say that there is no need for the amendment. Funnily enough, he will not use many of the arguments used by my hon. Friend the Member for Buckingham (Mr. Bercow). He will say that his lawyers have advised him that churches would win any cases brought against them under the Bill that try to change their doctrinal beliefs on transsexualism. He will say that the Bill does not add to anti-discrimination law, and that a transsexual will be no more likely to succeed in suing a church after the Bill's enactment than before it. I will happily give way now to the Minister if what I am saying is completely different from what he intends to say, but I assume that that will probably be his argument, and that he will not use the wider philosophical arguments that my hon. Friend the Member for Buckingham deploys with such skill. He will say that our concerns are sensible, but we should not worry because the Bill does not add to anti-discrimination law.

I say, I think my hon. Friends say, and I know Mr. Dingemans says, that this Bill changes the legal landscape. It says that a man can become a woman in law. How can the Minister be so sure that that fundamental change will not have an effect on the courts? In 1648, the Earl of Pembroke, when a Member of the other place, said that a Parliament can do anything but make a man a woman and a woman a man. Parliament is doing precisely that today. That is why this is an important legal landmark. If Parliament is making that decision, with which the amendment does not argue, it is wrong for the Minister to say that that important legal landmark will not change the legal landscape and open up the possibility of litigation.

Lynne Jones (Labour, Birmingham, Selly Oak)

The hon. Gentleman is wrong when he says that Parliament is making a man a woman and vice versa. Parliament cannot do that—neither would it be right for it to do so. In this Bill, Parliament is rightly recognising the personal and human rights of people who, through no fault of their own, find themselves trapped in the wrong gender, and wish to have their correct gender recognised.

Edward Leigh (Conservative, Gainsborough)

That is entirely right. Parliament cannot do that, and from the hon. Lady's point of view, what it is doing is recognising a medical fact. But it is still an important decision, and to argue that it does not change the legal landscape and that it does not open up the possibility of litigation—especially given the opinions of different lawyers to which I have referred—is to be unduly optimistic. I say that to the Minister in advance of what will no doubt be a convincing speech.

James Dingemans QC says that the Bill will lead to costly and divisive litigation against churches. He agrees that the churches should win in the end, but points out that that will divert their resources into litigation. Furthermore, he says that leaving things that way breaches religious rights. Even if they win, churches may be unable to reclaim their costs against a claimant who is legally aided. Where are they expected to get £100,000 for a Court of Appeal case? It cannot be right to leave the Bill in this state.

Let me deal with Pepper v. Hart. In the other place, Ministers offered Pepper v. Hart statements to clarify that the Bill was not intended to restrict church rights. Pepper v. Hart was a legal ruling that ministerial statements could be used when there were drafting ambiguities in the law, and when the drafting of legislation left something to be desired. It was a retrospective solution to drafting inadequacies. Surely we cannot and must not come to the stage at which Ministers refer to Pepper v. Hart in advance of a Bill becoming an Act, saying, "Don't worry, the Bill does not need to be entirely clear. I am now giving a Pepper v. Hart statement. Lawyers in future can refer back to my remarks, so what I am saying should give reassurance to churches." Should we not try to make the legislation watertight before we reach that stage?

Michael Fallon (Conservative, Sevenoaks)

Surely the point about Pepper v. Hart is that, whereas it may influence the courts and the decision that they make in any litigation, it will not prevent that litigation. The fact that the Pepper v. Hart precedent has been set, and that these ministerial statements have been made, will not prevent the churches from incurring the expense.

Edward Leigh (Conservative, Gainsborough)

Precisely. Pepper v. Hart is an aid to litigation: it does not prevent it.

David Lammy (Labour, Tottenham)

Does the hon. Gentleman accept that this place can never stop litigation, but that it prescribes certain circumstances in which judges may stop litigation? We have regulations related to vexatious litigants, we have costs orders, and the Legal Services Commission has the power, under the sufficient benefit test, not to fund a particular case. In many circumstances, across the legislation that the House passes, judges and courts have the power to stop vexatious litigants or cases that have no merit.

Edward Leigh (Conservative, Gainsborough)

Why, then, did Mr. Bill Parry succeed in suing that church in south Wales, forcing it to incur costs by going to the local county court? Although the judge found in its favour, he said that it would have to pay half the costs—several hundred pounds. That may be nothing to a company, but to a small Baptist church in south Wales, it is quite a lot of money. Of course, the Minister is right, but given the views that we have had from various lawyers, it is not entirely clear to me that judges would in all circumstances stop such litigation. Whether such litigation is vexatious is a value judgment, and the view could be taken that it was not vexatious.

David Lammy (Labour, Tottenham)

I would simply say that this is a matter for the independence of the judges, and that the case that the hon. Gentleman mentions was conducted in the absence of the Bill, which has not received Royal Assent. Clearly, if a claimant were legally aided, one would expect the Legal Services Commission to make a judgment on the merits of future cases if a series of cases had been unsuccessful.

Edward Leigh (Conservative, Gainsborough)

That may or may not be true in the context of legal aid. We cannot say with any certainty that the commission would always reach that view, and the plaintiff might not be legally aided.

I do not see why such a moderate new clause, which simply quotes existing human rights legislation, cannot be incorporated in the Bill, to save the churches all this trouble. It would make things so much easier.

Chris Grayling (Conservative, Epsom and Ewell)

Probably relatively few church groups would feel able to go as far as the litigation process. Unless reassurance along the lines proposed by my hon. Friend is written into the Bill, it will constitute a huge risk. How many would take the chance? The financial downside of losing would be enormous.

Edward Leigh (Conservative, Gainsborough)

That is probably realistic. Most would have to cave in, although some would want to fight because they rightly or wrongly believe that this is an important issue for them.

Amendment No. 1 simply adds a further instance in which disclosure of a person's birth sex will not be a criminal offence. There are already exceptions for pension companies, and for other purposes. Currently, under clause 22, if one bishop tells another that a priest who has moved to his diocese changed sex, he will have committed a criminal offence. The amendment remedies that obvious anomaly.

In earlier discussions, some have rightly pointed out that the clergy are used to being discreet, and have claimed that such an exception is not necessary. But even the most discreet priest will have occasion to disclose personal matters about worshippers to his fellow clergy. That may be necessary to avoid problems in the church.

Let us use the Labour Whips Office as an example. The Whips are used to this distinction. We would all deplore it if the Whips gossiped about our private lives—of course they never do that—but what if a Labour Member is about to be promoted to a ministerial post, and one of the Whips is aware of some enormous crisis that is about to break in his personal life? Of perhaps that never happens either. It would surely be irresponsible of the Whip not to give some indication of that to those who are deciding whether to appoint him. The same might apply to the appointment of a new volunteer or member of staff in a church. If the church has strong beliefs about what it means to be male or female, it would cause enormous offence to appoint a new leader of women's ministries, only for it to emerge later that she used to be a he, and is the father of three children.

Others compare privacy over a sex change with privacy over abortion. Could a minister disclose the fact that a woman in the church had previously had an abortion? The answer is, under present law, yes—and in certain circumstances, some members of the clergy might consider it appropriate where someone might be asked to provide pregnancy crisis counselling, and that would not currently constitute a criminal offence. Why should talking about an abortion be legal and talking about a sex change be illegal? Do we really want this to be a criminal offence?

It is interesting to compare the Bill's treatment of religion with its treatment of sport. Sport is big business, of course. It is an industry with a huge amount of money and a huge amount of influence, political and otherwise. In popular culture, it is much more important than religion. When sporting bodies wanted an exemption from the Bill, they got their way. The Government originally said that they had nothing to worry about, using arguments similar to some that we may hear today; but when those bodies continued to press for an exemption, the Government gave way. The financial rewards for winning meant that the issue had to be addressed. What concerned the sports industry was that some man somewhere might consider dramatic surgery to enable him to become a winner in female events. The Government have allowed sports groups to discriminate against transsexuals when it is necessary to protect competitive sport.

We simply want churches to have an equal right to decide their affairs when they sincerely believe that it is necessary to protect their religious doctrine. There is a lot of concern about this in religious communities. Today's Report stage is our last opportunity to amend the Bill. I hope that the Government will look on the amendments sympathetically, and that they will allow their supporters a free vote so that we can reach a considered decision.

David Drew (Labour/Co-operative, Stroud)

It will not take me long to make my point.

I was with the hon. Member for Gainsborough (Mr. Leigh) for about half his speech, but the second half made it a bit more difficult for me to agree with him. If a group feels uneasy about being joined by someone on the basis of gender, I see that not as a religious issue but as an issue of people's feeling that their own inclination could be affected.

I thought that the hon. Gentleman was entirely right about conscientious objection. Some of my church leaders have approached me expressing their unease. If we are to produce statute, it would be helpful if we got it right at the outset rather than assuming that it will be improved in due course by custom and practice and further legal challenges.

As always, we have been provided with helpful notes. The hon. Gentleman was magnanimous enough to say that—bar the point that I am about to raise—the Joint Committee on Human Rights did not support his legal opinion, although it did support his view on protecting the clergy's rights in terms of conscientious objection in the event of advance disclosure of an issue that could arise in a particular church. The Joint Committee said that, in relation to marriage, that should not be an offence, but it could be covered by secondary legislation. Is that the Government's opinion? I understand that they are likely to clarify their general approach today, but I should like to know specifically why such a provision should be introduced in secondary legislation.

I would not pretend to have any legal knowledge—I am anything but a lawyer—but I feel that secondary legislation is by nature a weaker form of protection than primary legislation. If it is argued that this question can be covered suitably by secondary legislation, I shall want to know why. I shall also want to know when the secondary legislation will be introduced in what the hon. Gentleman described as the likely event that the Bill is passed today and goes on to become law. It is not unusual for secondary legislation to be somewhat delayed, which would give someone an opportunity to test the provision in the courts.

There are a few questions that need to be answered very quickly to put the minds of some of us at rest. We should like the problem over conscientious objection to be overcome, in the context of more general human rights issues to do with the wider community; but that must be done in this Bill and at this time, because otherwise we could leave too much to risk.

Richard Younger-Ross (Liberal Democrat, Teignbridge)

When I started to listen to the hon. Member for Gainsborough (Mr. Leigh), and looked at the wording of the new clause, I had some sympathy with what he was trying to achieve. Such questions were raised on several occasions during our deliberations in Committee, and the Minister made it very clear that this issue was not a problem. He put the case that nothing was required and that what was feared could not happen.

I think that all of us on the Committee, like the hon. Member for Stroud (Mr. Drew), received representations from members of our Churches and faith communities who had concerns, having seen the QC's interpretation of the legislation, and fears about how the Bill might be interpreted. I hope that the Minister will take account of those fears and concerns, recognise that they are genuine and perhaps consider whether there is any way in which some of the clauses could be tweaked slightly to allay them.

I hope that the Minister will explain why he will reject the new clause. I hope that he will reject it because it is a rather heavy-handed way of trying to deal with a perceived problem. It sets out to change primacy in legislation. There would be a great risk if we accepted an amendment to the Bill that said that religious freedom and the faith of a Church had primacy over everything else in the Bill—which is effectively what the new clause would do. I am not saying that that would necessarily affect other legislation, but my fear would be where we would stop. Would we then say that there should be similar clauses in other legislation?

Chris Grayling (Conservative, Epsom and Ewell)

Is the hon. Gentleman saying, then, that Parliament should not be minded to take religious views and principles into account? He appears to be saying that Parliament should not see itself as constrained by those issues.

Richard Younger-Ross (Liberal Democrat, Teignbridge)

I refer the hon. Gentleman to my opening comments, in which I said that the Minister should take account of those concerns in the legislation and how it is drawn up. However, in my view, we cannot make an amendment that would give primacy to a Church or set of beliefs over all other aspects of legislation. The new clause would set a precedent of giving the Church—or faiths—primacy over legislation, and human rights legislation in particular. Human rights legislation is designed to protect us all in matters other than just those covered by the Bill. If we accepted this new clause, it would be argued that such amendments should be made to other legislation, in other fields.

John Pugh (Liberal Democrat, Southport)

Does my hon. Friend accept that human rights legislation covers precisely those rights of freedom of thought, conscience and religion?

Richard Younger-Ross (Liberal Democrat, Teignbridge)

This new clause would put the freedoms, thoughts and rights of that faith over human rights legislation.

John Pugh (Liberal Democrat, Southport)

I can see no mention in the new clause of any specific faith. It simply mentions general rights, which as I understand it are general human rights.

Richard Younger-Ross (Liberal Democrat, Teignbridge)

I wonder whether we are getting on to how many angels can dance on the head of a pin. The purpose of the new clause is to change the legislation to give primacy to those Churches over the Bill's clauses. If that were not the case, there would be no purpose in the hon. Member for Gainsborough moving the amendment.

John Bercow (Conservative, Buckingham)

May I help the hon. Gentleman?

Richard Younger-Ross (Liberal Democrat, Teignbridge)

I should be grateful.

John Bercow (Conservative, Buckingham)

May I put it to the hon. Gentleman that the charge against the new clause moved by my hon. Friend the Member for Gainsborough (Mr. Leigh) is slightly less exacting and severe than that which the hon. Member for Teignbridge (Richard Younger-Ross) has levelled, but that it is nevertheless significant? The charge against new clause 1 is not that it would render the rest of the Bill null and void, but that it would deny to transsexuals the principle of equality of treatment that underlies the Bill, and which is its raison d'être. It is mightily difficult to envisage precisely what paragraph (b) of amendment 1 would mean in practice.

Richard Younger-Ross (Liberal Democrat, Teignbridge)

I take the point. I am not trying to make the charge against the hon. Member for Gainsborough that he is trying to undermine all human rights legislation. I would not say that, but to deny transgendered people those rights under this Bill undermines the very reason for the Bill itself, in the context of a particular group and society. There are exclusions in the Bill, which we have debated and accepted. The question is how far we go in accepting exclusions.

Chris Grayling (Conservative, Epsom and Ewell)

Will the hon. Gentleman give way?

Richard Younger-Ross (Liberal Democrat, Teignbridge)

I want to make some progress, but I shall give way one more time.

Chris Grayling (Conservative, Epsom and Ewell)

I am grateful. Will the hon. Gentleman encapsulate for the House at what point he believes that the legislature should or should not override the conscience of individuals in order to secure the human rights of others?

Richard Younger-Ross (Liberal Democrat, Teignbridge)

How long will we be staying here tonight? There are some general points in the Bill that I hope will clarify that, although I accept the point. It is very difficult to know where to draw the line, but we have done that in other cases.

John Bercow (Conservative, Buckingham)

Will the hon. Gentleman give way just once more?

Richard Younger-Ross (Liberal Democrat, Teignbridge)

I am too generous.

John Bercow (Conservative, Buckingham)

The hon. Gentleman's generosity of spirit invariably gets the better of him, and today is no exception. It was very good of him even to start to answer the tortuous essay question that my hon. Friend the Member for Epsom and Ewell (Chris Grayling) posed. I put it to the hon. Member for Teignbridge that the gravamen of the issue is this: respect for some people's rights should not extend so far as to allow them to practise their rights if that violates those of others. Granting the respect for rights that my hon. Friend the Member for Gainsborough has in mind would do damage to the rights of others. That is the unacceptability of the proposition.

Richard Younger-Ross (Liberal Democrat, Teignbridge)

The hon. Gentleman puts the matter extremely clearly and concisely, in his own impeccable way. I was going to put it differently, but he has encapsulated the point beautifully.

I want to continue in my way on the consequences of the new clause. The hon. Member for Gainsborough referred to Christians not excluding others. I wish that that were the case. It might be that in this country, the Christian Churches do not exclude others—because, in effect, of the legislation that we have brought in over the years to stop such discrimination. Not so long ago that was not the case, and we would not have to go very far to find other countries where some Christian Churches have excluded others for all sorts of reasons. There have been exclusions on mental health grounds, on grounds of colour and on grounds of gender. That has all happened in our lifetimes, and happens in other parts of the world today.

Andrew Selous (Conservative, South West Bedfordshire)

Will the hon. Gentleman give way very briefly?

Richard Younger-Ross (Liberal Democrat, Teignbridge)

Go on.

Andrew Selous (Conservative, South West Bedfordshire)

I am most grateful to the hon. Gentleman; he was generous in Committee and he is being generous again now. Is not the nub of his argument that, as far as religious organisations are concerned—let us not forget that they are what the clause is talking about—he is trying to say that secular, humanist, human rights-based law should have precedence over a concern for freedom of religion?

Richard Younger-Ross (Liberal Democrat, Teignbridge)

I have to tell the hon. Gentleman that that law does have precedence. Laws that we have passed already affect how churches can act. That does not affect religious thought or what people think, but it does affect their actions. There are a number of examples of that. However, we are diverging into other areas. Let me come to the nub of my point, and then the hon. Gentleman might catch Mr. Deputy Speaker's eye and be able to put his arguments. Perhaps he himself will be generous in allowing interventions on those points.

The essence of my argument is that the hon. Member for Gainsborough was wrong: there is discrimination within Christian Churches, and I make that point as a practising Roman Catholic. All is not always rosy in the religious garden. Much has been made of how my own faith treated unmarried mothers in Ireland, denying them basic human rights. Today, all of us—including even the Roman Catholic Church—would accept that that was an appalling way to behave. This legislation deals with other discrimination issues, and I hope that in passing it—as we doubtless will—we will protect people who have been discriminated against for centuries.

That brings me to my second argument with the hon. Member for Gainsborough. He used the word "choice"—as if one wanders downstairs in the morning, looks in the mirror and suddenly thinks, "I want to be a woman today." That is not how it happens. There was an excellent recent television series about intersexual people: those whose gender is determined by doctors at birth for hormonal or chromosomal reasons and who are thereby denied a choice at an early stage in their life, and who then decide that the doctors got it wrong, and that the gender that they wish to be is not the same as that to which they were assigned at birth.

My hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris)—he sends his apologies for not being here—is a doctor, and perish the thought that I should do a disservice to doctors by saying that they make mistakes, but the fact is that they do. [Interruption.] Apparently, my hon. Friend is here but has just left the Chamber; he was late arriving because his train was delayed. A number of mistakes were certainly made so far as intersexual children were concerned, as the television series to which I referred demonstrated perfectly well.

One can go further. Who knows how the brain works? We still do not fully understand how it works. Who understands what triggers a person's brain—often at the very young age of three, four or five—to decide that they are in a body of the wrong gender. [Interruption.] I welcome my hon. Friend the Member for Oxford, West and Abingdon back to the Chamber. We do not know at what stage such things happen. We do not know precisely what causes a person to decide that they are of the wrong gender, and that they wish to adopt the gender that they consider has always been theirs. Such people have the mind of a woman but happen to have the body of a man, or vice versa. Who is to determine what happened to them, and whether the cause was hormonal or chromosomal?

Andrew Selous (Conservative, South West Bedfordshire)

In the interest of informing the House, it would be remiss of the hon. Gentleman not to point out that some transsexual people—I understand that that is the correct term to use if we are not to cause offence—move from one sex to the other and back again. So it is not always the case that their sexuality is predetermined from birth.

Richard Younger-Ross (Liberal Democrat, Teignbridge)

The hon. Gentleman makes a fair point—

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

Order. This is not a general debate on these issues; we have a specific new clause before us, and the hon. Gentleman should address his remarks to it.

Richard Younger-Ross (Liberal Democrat, Teignbridge)

We shall doubtless return to the issue mentioned by the hon. Member for South-West Bedfordshire (Andrew Selous) at a later date, Mr. Deputy Speaker, but before I finish I should like to make two points. If the new clause is accepted, every member of a faith community will be able to know that a person is transgendered, yet it would be an offence for anyone outside that community to know that information. That is an impossible situation and it is not practical. In my view, it would be totally wrong to pass legislation that allows small sections of a community to be informed of a matter about which those outside it cannot be informed.

Reference has been made to the Bill's sports exemptions. Under the terms of that new clause, a transgendered person who wanted to take up a sport that relates specifically to their new gender would be unable to do so in certain circumstances. The new clause makes such provision because such a person would perhaps be consciously choosing to take up that sport in the knowledge that they enjoy the physical advantages of their formal birth gender. One of the Bill's purposes is to prevent others from knowing such things, and to enable such people to go through their lives without everyone knowing their history and pointing at them. To enable everyone in a church community to know that a person is transgendered is to deny that person access to that community. That is a profoundly un-Christian and ungodly thing to do.

Alan Hurst (Labour, Braintree)

I shall not detain the House for long as I simply want to discuss a fairly narrow issue that was raised by a curate in my division, the Rev. Malcolm Peters of St. Michael's church, Braintree. First, I understand that a concession has been made in the Bill, in that clergy of the Church of England and of the Church in Wales will no longer be obliged to perform a marriage if the applicants for marriage fit the necessary requirements. Secondly, if the curate came to know in his official capacity that he was dealing with a transsexual person and he declined to marry them, it would of course be open to the applicant to move on and to apply to the rector or vicar. As matters stand, the curate is prohibited from notifying his vicar or rector of the position.

The new clause and amendment of the hon. Member for Gainsborough (Mr. Leigh) seek to cure that problem and, indeed, to go wider. The difficulty is that they go too far. Under the terms of amendment No. 1, it would be necessary to

"comply with the doctrines of the religion",

but in certain Churches there are divided views as to the doctrine on this matter. The Church of England in particular would have a problem, given that a number of its bishops were in the forefront of promoting the Bill in the other place. The definition of "doctrines of the religion" would be very difficult to define.

Amendment No. 1 also refers to "religious susceptibilities". I am not certain what a religious susceptibility is, and again, no definition is provided. However, the greatest problem is caused by the amendment's reference to the religious susceptibilities

"of a significant number of the religion's followers."

Are followers communicants, members of the Church in question or those who attend a certain number of Sundays a year? The term "follower" needs to be defined before we can consider what constitutes "a significant number". Is a significant number half, three quarters or two thirds? The amendment is defective because it seeks to spread itself too widely.

The approach should be that of the fiduciary relationship. Does an official trusting relationship exist between, for example, the curate and his vicar, or between the vicar and his archdeacon and bishop? If it is possible to define the parameters of a trusting relationship between Church officials, an appropriate provision should be drawn up, so that such information can be passed on. If such a provision went much further and the church warden and the head of the Sunday school were notified, there would be no end to the process, and such information would become the tittle-tattle of communities, particularly small ones. That would completely undermine the whole purpose of the Bill, which is to allow those who move from one sex to another to do so with dignity and privacy.

I would support the new clause and amendment of the hon. Member for Gainsborough if they were more narrowly defined. I fully accept that we should deal with definitions now if we possibly can, and I shall be interested to hear the Minister's comments at the end of the debate. As has been said, the power already exists for the making of subsequent orders, in order to define further categories to which disclosure can be made. However, we should think hard and carefully about what those categories should be, so that we preserve both the spirit of the Church concerned, and the privacy and dignity of the person with whom it is dealing.

Chris Grayling (Conservative, Epsom and Ewell)

I want to say a few words in support of new clause 1. Given all the concerns about this section of the Bill—probably voiced to most hon. Members by local Church or religious groups—the approach that my hon. Friend the Member for Gainsborough (Mr. Leigh) has taken in the new clause is eminently sensible. It sends a clear signal of intent from this place to the courts to enable them to form the right judgments in the event of these matters coming before them. One hopes that such cases will be few and far between.

I read closely and with interest the work of Dingemans, which should be a totemic reference point for the House. It is a piece of work carried out by one of our leading QCs. It offers legal advice of which we should be mindful and it will undoubtedly have an influence if these matters are brought before the courts. One section of Dingemans' work— paragraph 17—jumped off the page at me. It states:

"Religious rights have a 'primordial place' in a democratic society and the 'pluralism indissociable' from a democratic society depends upon religious rights. It is not the function of the Courts (or the legislature) to judge the acceptability of the religious views (even if the Judge or the members of Parliament are members of the same religion) if the religious views have attained a sufficient level of cogency. Indeed, as the views become less accepted by modern society as a whole, the greater becomes the burden on the Courts and legislature to protect them."

That is a safe set of words, of which we should be mindful in considering these matters.

My hon. Friend the Member for Gainsborough is right about the risks that exist when a leading QC takes a view with which the Government may disagree. Those who have considered the Bill may disagree with it, but it is there, on paper, and it comes from a leading legal authority. My hon. Friend is right that it may give rise to debate after the Bill has been passed and it may form one part of the subsequent arguments in the courts. It is surely beholden on the House to ensure that we do all that we can to get it right and to send the right signals about our intent to those who will examine the provisions in the courts. We must not end up leaving it to the courts to interpret our motives in the House. If we do, individual Church and religious groups may incur huge expenses in going through the process.

John Bercow (Conservative, Buckingham)

Unlike my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth), I rarely become agitated, but I am bound to say to my hon. Friend the Member for Epsom and Ewell (Chris Grayling), who read out learned counsel's views as though it were a conclusive commentary affecting the result of the debate, that he should take great care not to conflate and confuse legal judgments with political judgments, the latter being our responsibility. There is a difference between people of a religious faith holding views and being allowed to take actions reflecting those views, which damage other people's rights. That is the gravamen of the argument here.

Chris Grayling (Conservative, Epsom and Ewell)

But we should all be mindful of the points that Mr. Dingemans makes. Both we and the courts have a duty to be mindful of the consciences, views, beliefs and rights of people in our society. It is important to protect the rights of all involved in the process—an important point sincerely put earlier—but that argument works both ways. Although we are duty bound to look after the rights of a small set of individuals in our society who face real problems—there is much in the Bill to be welcomed—we also have a duty to ensure that in protecting the rights of those individuals we do not trespass on the inalienable rights of others. It is a difficult balance to strike. I put my dissertation question to the hon. Member for Teignbridge (Richard Younger-Ross) and he is right to say that it is a difficult line to find, and it is not always easy for us to do so.

John Bercow (Conservative, Buckingham)

I am grateful to my hon. Friend for giving way again. He used the word "inalienable". Does he believe that it is the inalienable right of one person to kick another person out of a meeting because the person doing the kicking out disapproves of the change of gender of the other person? That seems a very curious definition of an inalienable right and I do not believe that the founding fathers would have fought for it.

Chris Grayling (Conservative, Epsom and Ewell)

Fundamentally, every individual in our society must have the right to hold sincere religious views. I do not believe that any individual should have the right to force someone else to abandon views that they hold sincerely according to their conscience. As I said, it is a difficult line to find, but it is dangerous to trespass across it.

David Lammy (Labour, Tottenham)

May I put on record the fact that it is certainly not the Government's intention for religious people to abandon their views? The opinion of James Dingemans was a good one, which I read with close interest, but the hon. Gentleman will appreciate that other eminent QCs, the Clerk to the Joint Committee on Human Rights, the eminent Lord Chancellor and many other lawyers are involved. The key question is not the balance—in the sense of the amount—of legal opinion, but the judgment call that has to be made. It is a balance not simply between having religious freedom or not having it, but between the important right to religious freedom, which is enshrined in our Human Rights Act 1998, and the fundamental and important right to privacy. That is the key point and it is the path that the Government must follow as we examine these important issues.

Chris Grayling (Conservative, Epsom and Ewell)

I would agree with most of what the Minister said: we are dealing with a difficult and sensitive area, and it is right to be mindful of the rights of all involved on the different sides of the debate. It would be wrong for the House to be unduly prescriptive either one way or the other in respect of the amendments to the Bill. What makes new clause 1 attractive to me is that it is not designed to prescribe exactly what the courts should decide. It simply sends a message from this place to the courts stating that we are concerned that the religious rights of individuals in our society might come under significant pressure as a result of the Bill's enactment. We want the courts to be mindful of that and to err on the side of the protection of religious freedoms if and when—one hopes that it is only if: ideally, it is not at all—these matters come before the courts. It is surely right for the House to send out the message that a small group of people in our society who have not been properly looked after by the law in the past should be looked after more effectively in the future. Nevertheless, in providing a solution to their problems, it is crucial to ensure that we do not force others to go against their own consciences and their own religious views.

David Lammy (Labour, Tottenham)

I discern a dichotomy in what the hon. Gentleman has said. He says that it is important that the Bill does not place religious communities under significant pressure. He acknowledges that the community of people concerned—perhaps one of the smallest minorities on behalf of whom the House has sought to assist by passing equality measures—is only about 5,000 in number. All hon. Members have transgendered people in their communities. This group of 5,000 people are vulnerable, and they have experienced significant prejudice. In my experience, their gender dysphoria makes them meek and timid about their appearance, and other things. The notion that they might take on our Churches in some significant way does not match everyday experience. I suggest to the hon. Gentleman that it is important that he keeps a sense of perspective in his remarks.

Chris Grayling (Conservative, Epsom and Ewell)

The Minister is right that we are talking about a small group of people, but we live in a litigious society. I am sure that every hon. Member would wish that these matters will never come before the courts but, if that happens, the House must give a signal to the courts. These are difficult issues and it is hard to separate the two sides in the debate. However, as we extend rights to one group of people, it is right for us to ask the courts to be mindful of the risks that that might present to the moral and religious views of other groups.

Andrew Selous (Conservative, South West Bedfordshire)

I agree with my hon. Friend. The Baptist church in south Wales was advised that it would have lost its case if the provisions of the Bill, as drafted—that is, unamended by new clause 1—had applied. My hon. Friend is describing the reality of what Churches will face from a very small litigious minority.

Chris Grayling (Conservative, Epsom and Ewell)

I think that my hon. Friend's contribution speaks for itself. He is right. We aim to provide an additional degree of protection: we do not want to be prescriptive, but we want to reassure those Church groups who may have to confront these matters. New clause 1 has been drafted carefully, and offers a sensible balance between the different dimensions of the question at issue. It would strengthen the Bill and send a message of reassurance to religious groups, but it would not change fundamentally what the Government are trying to achieve.

I commend the new clause to the House. I hope that the Minister can be persuaded to change his mind and accept it, as it would make the Bill better, fairer and more just.

Lynne Jones (Labour, Birmingham, Selly Oak)

I understand that, in the light of the Dingemans opinion and of the report of the Joint Committee on Human Rights, the Government may put forward proposals to give practical clout to the clause in the Bill that deals with conscientious objection, in respect of marriage and, I hope, ordination. I welcome that.

The hon. Member for Gainsborough (Mr. Leigh) made some valid points in the first part of his speech, and there is no doubt tension between the provisions in articles 8 and 9 of the convention on human rights. However, he also talked about the rights of women's discussion groups, and I do not see how that can have anything to do with religious freedom. It is on a par with discussions about who should use the ladies' toilet: it is irrelevant, and involves a complete misunderstanding of transsexualism.

I have circulated some briefing notes to hon. Members about transsexualism, and I emphasise that it is not a matter of choice. Transsexuals are people who feel compelled to have hormonal treatment or surgery so that their physical characteristics can be brought into congruence with the way that they feel about their gender identity.

There are other tensions between articles 8 and 9 of the convention. The Bill proposes that married transsexual people must dissolve their marriages if they want to exercise their human rights under article 8. There is a great bond between people whose marriages have subsisted through the upheavals and difficulties that arise when one spouse decides to change into what they see as their correct gender. The strength of that bond may in part be due to strong religious beliefs about the sacredness of the vows taken at marriage.

The Bill requires people to choose between how they exercise their rights under articles 8 and 9. I am very sad at that. We will discuss that in detail later, but it shows how difficult these matters are. Religious freedom has no overwhelming priority over the right to privacy and other freedoms provided for in human rights legislation. We must strike a balance between rights, and the Bill does that, by and large. Some elements could be tweaked: there are some changes that I should like to be made, and I shall appeal to the Government to amend the Bill accordingly.

Andrew Selous (Conservative, South West Bedfordshire)

I shall be brief, as most of the arguments have been well aired already. I wholeheartedly support new clause 1, to which I am a signatory. The idea that religious groups should be allowed to regulate their affairs should not cause the House any difficulty.

At the start of the Bill's progress through the House, I received a letter from a transsexual person in my constituency. The letter told me of the writer's hopes for the Bill and detailed some of the difficulties encountered in the writer's life. I am pleased to say that the Bill goes a long way towards addressing some of those difficulties.

However, hundreds of churchgoing people around the country, and ministers and pastors too, have written to me to express concern about the Bill's possible effects—on their communities, the finances of their Churches, and the pastoral oversight that their Churches exercise. I am not sure that the Government realise the extent of that anxiety. The Government want to provide genuine remedies to the real concerns of transsexual people, and they can do that without causing the offence and upset that will be caused if this Bill is enacted.

The Minister said that most transsexual people are mild mannered and that they do not want to cause offence. He is absolutely right: I was delighted to meet, for the first time, some transsexual people at the end of some sittings of the Standing Committee considering the Bill. I concur with the Minister's assessment, but any society has a small minority of people who are litigious, sometimes aggressively so. The case involving the Baptist Church in south Wales has been mentioned, and I repeat that the Church was told that it would have lost the case if the Bill, unamended by new clause 1, had been the prevailing legislation.

Churches are not rich organisations. The money that they have should be spent on promoting the gospels and on the other work that they do. It should not be used to fight lawsuits.

The nub of the issue is that it would not be right for the House to impose a secular, humanist provision based on human rights on religious organisations in respect of the conduct of their affairs. The Bill contains plenty of protections for transsexual people, and justifiably so, but the new clause is very mild and states merely that the courts should "have regard" to the sensibilities of religious organisations. I hope that the Government will accept the new clause.

Richard Younger-Ross (Liberal Democrat, Teignbridge)

Can the hon. Gentleman provide the philosophical argument that would explain why it would be right for a Church to allow someone into the church to practise their faith and to use the ladies' toilets, which is an example he has cited, but not to sit down with other women—because the person would legally be a woman—to debate religious matters.

Andrew Selous (Conservative, South West Bedfordshire)

The hon. Gentleman picks a specific example and it is not for us to speculate what would happen in an individual church—[Interruption.] No, I will address that point. It is, rightly, an established custom in many different Churches to have male prayer groups and female prayer groups. They are sensitive flowers, which grow up over a period of time and in which confidences are shared. People do not share intimate details of their life unless they have confidence that what they share will be respected, and there are some issues that men prefer to discuss with other men and women prefer to discuss with other women.

David Lammy (Labour, Tottenham)

Oh, please!

Andrew Selous (Conservative, South West Bedfordshire)

The Minister seems to have an objection to that. It may not be the custom in the Churches of which he has knowledge, but it is the custom in Churches up and down the country. All I am saying is that we need a degree of sensitivity to the situation, which is not too much to ask.

Glenda Jackson (Labour, Hampstead and Highgate)

Is the hon. Gentleman arguing that if a religious belief carries with it an acceptance of a practice—such as female circumcision, polygamy or stoning to death a woman taken in adultery—it should be outside civil law and this House should allow it to be part of the structure of this country or should not voice any criticism of other countries where such practices take place?

Andrew Selous (Conservative, South West Bedfordshire)

Of course it would be ridiculous to say that we could not have views about the strange practices of various faiths in different parts of the world. The hon. Gentleman—[Laughter.] I am sorry; I mean the hon. Lady. She is talking about religious views, but the new clause does not address the issue of theology, so that point is not germane to the argument.

I hope that the Government will come to realise the extent of the concern about this matter among good people, who do not seek to cause trouble. They just wish to ensure that they can run their Churches in a way that accords with their beliefs.

Colin Breed (Liberal Democrat, South East Cornwall)

We have had a good debate on the new clause. I was pleased to add my name to the new clause because it has provided the opportunity for a wide-ranging debate. I have great sympathy for people diagnosed with gender dysphoria. In fact, I have also been contacted by a constituent who has suffered considerably and will be assisted by many of the provisions in the Bill.

The new clause focuses narrowly on the issue of religious liberty. In the past hour, we have seen that a fine balance must be struck between protecting the rights of certain individuals and maintaining the religious liberties that have been enjoyed by many churches over a long time. The issue concerns many hon. Members with widely varying perspectives. Of those who added their names in support of the new clause, some supported the Bill on Second Reading, some voted against it and many abstained. That shows that one can support the Bill and the new clause, because it does not go against any of the central principles. Instead, the new clause would add to the Bill's list of qualifications.

The majority of transsexual people who will take advantage of the Bill's provisions will just get on with the rest of their life. Many of them will find that going to church will pose no particular problem. The issue centres on those few who may take advantage of some of the provisions to pursue a litigious or vexatious case against a particular church, minister or official. I hope, therefore, that we can strike a balance between protection of the individuals and protection of the rights of church members, who might be widely affected by a case against their church.

We often qualify rights and we are right to do so, because unqualified rights can be taken to extremes by some people. We are getting used to a certain amount of extremism in society. Some people utilise reasonable legislation that is meant to be used reasonably, to pursue extreme court cases that entail huge costs for those who have to defend them. That is why I support the new clause. It would not do the transsexuals' cause much good if vexatious cases were to be brought against various churches, because they would receive huge publicity and could undermine many of the good aspects of the Bill. It is regrettable that some people might take their rights to extreme lengths, not only under this Bill but under other legislation, because that undermines what might be called political correctness. That is unfortunate, but it is happening more and more frequently. People get their own back, as they see it, by pursuing matters to court, even if they do not necessarily have a great chance of success. However, they can significantly undermine—perhaps even bankrupt—individuals or organisations. I hope that the Minister can allay my fears on that point.

Yesterday, I met a group of ministers and they raised one specific fear that I wish to put to the Minister. It concerned the public disclosure aspect of baptismal records. They explained that baptismal records are public records and they wondered whether their disclosure would lead to any difficulties under the Bill.

John Pugh (Liberal Democrat, Southport)

I agree with the hon. Member for Buckingham (Mr. Bercow), who said earlier that this is an issue of the balance of rights—the rights of transsexuals and the rights of some churches that think they will be affected by the Bill. He is right to say that legislators frequently have to decide between rights with a view to the overall common good, and sometimes hard choices need to be made. However, in this instance a reasonable compromise may be available. We need to make a tough choice because both sides cannot have their own way.

I have been impressed by this debate—the sensitivity of the speakers, their passion and the way in which they have treated a profoundly moving and puzzling phenomenon. I am convinced that it is no part of the objectives of the Bill to discriminate against religion, to cause any religious furore, to trample on conscience or to make religious bodies feel that they will be treated worse than sporting bodies.

A compromise is possible, but I do not know whether new clause 1 will achieve it. I hope that it will. However, it would not—on this point I disagree with the hon. Gentleman—give an inalienable right to any religious body. It simply states that the Government should be mindful of freedom of conscience and religious belief. It asks only for mindfulness, not an inalienable right.

David Heath (Liberal Democrat, Somerton and Frome)

I have much sympathy with what my hon. Friend says, but I have a problem with the word "particular". It is difficult for the courts to interpret correctly. To elevate one right above another in statute in that way is unhelpful to the interpretation of the intention of the legislation.

John Pugh (Liberal Democrat, Southport)

I shall not take it on myself to comment on the perfection or otherwise of the wording of the new clause—

Edward Leigh (Conservative, Gainsborough)

It is simply taken from the Human Rights Act.

John Pugh (Liberal Democrat, Southport)

I thank the hon. Gentleman for that intervention, but I do not want to comment on how far-reaching the proposal may be or how troublesome it might be at a later date; nor can I comment on a QC's advice. However, the Minister needs to give us powerful, clear and unequivocal reassurance. That is important, first, to people of genuine and benign religious conviction and, secondly, to the people the legislation seeks to help.

John McDonnell (Labour, Hayes and Harlington)

I, too, have received reservations from local religious leaders about the disclosure of information aspects of the Bill. This is one of those Bills where never so many MPs met with never so many religious leaders; I hope that it has done us some good.

There are clearly anxieties about litigious individuals, especially as regards the disclosure of information—the particular point that has been raised with me. However, my understanding of the suggested amendments is that they could provoke more litigation than the existing provisions.

Can the Minister clarify my understanding of the provisions? Under subsection (5) of clause 22 the Government have provided for the Secretary of State to make specific orders to define what will or will not be an offence in relation to disclosure of information. They have also given assurances that they will look at the Dingemans advice and consider how it might be interpreted in the development of such orders, to avoid the risk of litigation that would bear heavily on individual religious institutions while preserving the balance of interest for the people the Bill would benefit. Subsection (5) thus gives us the opportunity to take a common-sense approach that would protect all interests, and would also enable us to introduce further orders to eradicate any problems that might arise in future. We should then be giving as much security as possible to all sides in the debate.

Tim Boswell (Conservative, Daventry)

This has been an excellent debate. The House is grateful to my hon. Friend the Member for Gainsborough (Mr. Leigh) for introducing it so comprehensively and for sparking off some other excellent contributions. I found very little to quibble about in my hon. Friend's own contribution. I merely point out that although I speak from the Front Bench I neither require nor encourage my colleagues to follow me in this matter. All votes from these Benches today will be free votes.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

All votes are free votes.

Tim Boswell (Conservative, Daventry)

Indeed, but the votes today are particularly free and we should welcome and celebrate the diversity that they may yet produce.

John Bercow (Conservative, Buckingham)

I am grateful to my hon. Friend for giving way and I am sure that we are all particularly grateful to my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) for pointing out that all votes are free votes, but does my hon. Friend the Member for Daventry (Mr. Boswell) think that that was the view expressed by our right hon. and learned Friend when for a brief period he was a Government Whip?

Tim Boswell (Conservative, Daventry)

Some things in this place are perhaps best left unsaid, especially among consenting friends, if I may put it like that.

I speak as a supporter of the Bill but also as someone who signed the new clause with enthusiasm and amendment No. 1 with a degree of tentativeness, and who has listened to the representations made to me. The Bill deals with some difficult issues, many of which we dealt with equably in Committee. Almost all the letters I received about the Bill were from faith interests, the majority from Christian interests. They reflected the opinions of a variety of churchmanship, from Catholic to Free Church. We should remember, too, that other faith communities, including Muslim communities, are exercised about the Bill to some degree or another.

I am a Christian, as I made clear in Committee, so I may be said to have an interest. In general, I support the Bill but I have reservations about these aspects. It has been right to debate them and we look forward to the Minister's response. Equally, however, I have reservations about the situation that might arise if we were to enact the new clause.

As a general rule, I do not like partial legislation; as several hon. Members on both sides of the House have pointed out, there should be no special deal for the Churches. They should not have carte blanche against the provisions of the law, as the hon. Member for Hampstead and Highgate (Glenda Jackson) said, to do exactly as they like when that is unacceptable to the House. We must defend that principle. Equally, however, we must respect their sensitivities and their broad underlying decencies wherever we possibly can.

I do not seek to patronise the many people who wrote to me personally—the number ran into three figures—because we know how things can be encouraged. People read about something and want to write to someone to express their concern. However, it is possible that not all my correspondents fully understood all the implications of the Bill and the safeguards that it already contains. Indeed, I am not absolutely sure that any of us do—it is a complex matter, with legal cruces to which I shall turn in a moment. It is also possible that some people, even those in faith communities, may be motivated by personal dislike of or distaste for transgendered people. I do not condone that and I do not follow them in it, but it is possible that some people may be using some of the practical difficulties as a shield behind which they can advance such views. I certainly do not want to encourage that. Nevertheless there is a body of interest and concern among decent and responsible opinion, mainly in the Christian Churches, that should be properly addressed.

The Minister will be able to make this point better and more clearly than I, but there are already several serious safeguards in the Bill and they should be embodied in good practice. We should, for example, try to embody them in Christian practice. A minister has the right to ask, and the respondent the right to decline to answer, the question: "Are you or are you not a transgendered person?" That is a reasonable and proper question—for example, in regard to marriage—especially if the rules of the Church preclude particular offices or practices to a person in that situation.

An individual, whether or not they are a minister of religion, has the right to pass on information, provided that it is done with the consent of the person concerned. That is obviously the best situation in practice. Nevertheless, despite those safeguards, the faith communities have concerns and have written eloquently to us about them.

First, faith communities have concern about practices that they would regard as normal and reasonable. Secondly, they are concerned about the discharge of their pastoral duties—for example, between one member of the clergy and another. Thirdly, and more widely, they are concerned about the threat of litigation that, even if they were to win it, might incur considerable hassle and cost to a relatively small community, unused to early recourse to legislation.

The Minister will rightly say that nobody can be precluded from taking up their rights under the law as a matter of principle—nor should they be; as he has already reminded the House, if that were contrary to public purposes there are already safeguards. However, to my regret, we are moving towards a society that is highly litigation-driven, where people will seek either to assert and secure their rights or to make a point about their putative rights at the expense of a third party.

Chris Grayling (Conservative, Epsom and Ewell)

On a point of order, Mr. Deputy Speaker. I apologise to my hon. Friend for interrupting him, but the Officers of the House might like to be aware that there is a pronounced smell of burning on the Opposition side of the House.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

I am well aware that there is a smell of burning on both sides of the House, and it is being investigated at the moment.

Tim Boswell (Conservative, Daventry)

I was doing my very best not to make an inflammatory speech and I am sorry that I have so conspicuously failed to do so, but let us heroically return to the point in the hope that the fires will not be in store for us all.

There has rightly been a great deal of discussion about the legal opinion of James Dingemans, QC in this matter. There then equally has been put against that opinion—as a layperson, I am enjoying this rather vicarious clash of the champions—the view of the Joint Committee on Human Rights, which says in its 12th progress report that it does not agree with it. Of course, as the Minister will be aware, the Joint Committee concedes that, in the spirit of the legislation, there should be a conscience clause for clergy, who would not be required under the Bill to marry transgendered persons, to be told that those persons are trangendered. That is an entirely reasonable provision, and perhaps the Minister will tell us how he intends to proceed on that.

Frankly, such a safeguard does not deal with a number of other conscience clause issues that might arise—for example, if a priest is transferring from one diocese to another, the pastoral duties of a bishop to advise the neighbouring bishop of the priest's status as a transsexual person, and in certain faiths where it is not acceptable for such people to proceed to ordination, the fact that they are so. Those are very difficult issues, but they undoubtedly come within the overall gamut of the Dingemans opinion.

David Drew (Labour/Co-operative, Stroud)

I am grateful to the hon. Gentleman for giving way and for battling on despite all before us. Those who have taken up this issue with me have particularly wanted to protect their own clergy. Although I support the case behind new clause 1 in outline, what worries me is that no distinction is drawn in it between the additional protection that clergy may need because of the vulnerable position that they may be put in, and the religious freedom that we as Christians would all wish to exercise but which we, through our conscience, would have to take a risk in exercising. Does he accept that there is a problem?

Tim Boswell (Conservative, Daventry)

I certainly accept that there is a problem, although with respect—I mean that—the right approach to the solution may not have been found, because some faith communities do not organise themselves separately into clergy and lay people, and a difficulty is obviously created if that is so. As the hon. Member for Braintree (Mr. Hurst) said, that may be something to do with the relationship of trust when someone is in a position of trust or management. That may need to be thought about. I am well conscious of the fact that if the new clause does not prevail in a few moments, the Minister may want to go away and think very much about what may be done under the order-making powers to try to safeguard people's positions. I am pleased to see that he is at least nodding concern, if not assent, about that point.

There is, however, a real worry, and my hon. Friend the Member for Gainsborough has been entirely right to bring this to the House's attention and there are more general applications for these concerns. Even with good will on the part of the Churches and the faith communities and with good will, as I am sure there will be, among the great majority of transgendered people themselves, who will not seek to make political or demonstrative points, the danger is that this will end up in a kind of legal Tom Tiddler's ground. I am a little surprised that no one has quoted the last paragraph of the Dingemans opinion, which bears quotation in full because it expresses very well the concerns in this matter. He says:

"The Bill contains provisions which would criminalise disclosures made for religious purposes which are likely to infringe the religious rights of individuals. Further the Bill, in its current form, gives scope for litigation against individual Churches seeking to act in accordance with their religious beliefs. Such litigation is likely to be divisive, costly and of benefit only to the lawyers."

That is my sensitivity on this matter.

I said, however, that I believe that some of those issues perhaps have a wider application than the Bill itself. I will say very briefly—I am conscious of the fact that I am speaking to a motion on Report, rather than raising a general issue—that my own experience and concerns arise as a co-sponsor of the Promotion of Volunteering Bill. Again, there is the problem. A large number of hon. Members on both sides of the House want to achieve common support for the voluntary sector, but we are conscious of the fact that, in a litigation-driven culture, people are moving towards recourse to law, suing on risks that may or may not have been inherent in the situation, with all the problems that brings for small, relatively unsophisticated bodies in fighting off that kind of litigation.

My hon. Friend the Member for Gainsborough referred in his most telling remark—he took the words from my lips, so I shall have to repeat them on his behalf—to the legal debate about whether one convention right should trump another. That is exactly the point. With respect, he and I cannot resolve that issue—it is not our job to do so—but the fact that there is such a debate creates the conditions for litigation, which is of benefit only to lawyers.

I happen to believe that, as we clear the path through blatant issues of discrimination and the abuse or denial of human rights that have characterised our society over the years—we need not make huge political points about them or claim to have been politically virtuous in dealing with them—and as we gradually put our society in the right way in respect of the treatment of women, minorities or whatever, we begin to find that we have done the easy part. We have dealt with things about which discrimination should never have been allowed to occur in the first place. However, we then come across clashes where one right overlays and diminishes another right, and we then have real problems on our hands.

We need to remember that all this came from the European Court of Human Rights judgment that the United Kingdom had infringed articles 8 and 12 of the European convention on human rights, but article 9 deals with practising religion. There is no provision in the European convention or the Human Rights Act 1998 for one measure to trump another. They must all be held in balance. It will be more difficult for the House to hold those things in balance than in the past, but our job today is to try to get them as best in balance as we can. That is a real-world issue.

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful to the hon. Gentleman for giving way because I want to correct what I said earlier. The hon. Member for Gainsborough (Mr. Leigh) is absolutely correct to say that such things are expressed in precisely those words in section 13 of the Human Rights Act 1998, which would have effect irrespective of whether the new clause were included in the Bill; it would still qualify the attitude of the courts in interpreting the workings of the Bill.

Tim Boswell (Conservative, Daventry)

I am grateful to the hon. Gentleman for that clarification. I, too, had noticed that happy coincidence. The Minister, if he is smart, will say, "But we don't need to do it because it is there already." That is an argument, but he needs to be encouraged to take seriously the kinds of concern that have been expressed.

I conclude—we have had enough debate on the issue, although we look forward to the Minister's response—by saying that new clause 1 enshrines the convention rights and is a proper declaratory statement of the rights in relation to religion. On amendment No. 1, I have somewhat greater qualifications because of the difficulty with partiality, but I would tell the Minister that we have collectively identified concerns and the elements of a possible problem. We need to take that seriously and, if possible, legislate now. We certainly also need to keep our minds open to making changes by order that would make those fears prove unfulfilled in practice.

David Lammy (Labour, Tottenham)

I am grateful to the House. We have had an excellent debate on this important issue. Clearly, important issues for religious organisations arise from the Bill and the right to freedom of religion is certainly extremely important. It is, rightly, enshrined in our law by virtue of section 13 of the Human Rights Act 1998, whose effects have just been described. The wording of the new clause is in large part borrowed from that section, but the existence of section 13 means that new clause 1 is unnecessary. We have already enhanced protection for the right of freedom of religion in our law.

We have not sought to rely solely on section 13. Throughout the preparation and the parliamentary passage of the Bill, we have engaged with the views of religious organisations and those who, as a matter of religious doctrine, do not accept that a person can change their gender or sex. As we might expect, disagreement remains on that principle, and we have heard that expressed today. However, in the course of several meetings with, among others, the Bishop of Winchester, officials of the Church of England, the Evangelical Alliance and the Christian Institute, we have begun to work through the practical issues that need to be resolved. Following those discussions, in the House of Lords we widened the conscience clause in relation to marriage. That change was widely welcomed. It is important to put on record our respect for religious freedoms and communities and our ability to produce a conscience clause that protects clergy.

Andrew Selous (Conservative, South West Bedfordshire)

I know that representatives of the Evangelical Alliance were grateful for the opportunity to meet the Minister's officials last week. I have learned from my discussions with them that they have serious concerns and want new clause 1 or a very similar provision to appear in the Bill.

David Lammy (Labour, Tottenham)

I have just explained the close relationship between the Bill and section 13 of the Human Rights Act, but perhaps the hon. Gentleman will be more pleased to hear later passages of my speech.

We must protect the rights of transsexual people and we believe that it is essential that the Bill should provide protection for their privacy. The benefits of recognition in the acquired gender would be greatly compromised were there to be open access to the fact that a person is recognised in the acquired gender. The Government have to weave a path between the two rights: the right of religious freedom and the right of privacy. In that respect, amendment No. 1 is unsuitable: as my hon. Friends the Members for Stroud (Mr. Drew) and for Braintree (Mr. Hurst) said, it is extraordinarily broad and, given its use of words such as susceptibilities and doctrines, would not provide the exemption that religious organisations want.

We accept that religious organisations have some important concerns, but they relate to specific issues. We have heard about the disclosure that might need to take place during the course of considering a person for appointment as a religious minister, whether ordination or appointment to a congregation. Those responsible might want to know whether the person concerned has been recognised in the acquired gender. It has been suggested that similar issues arise when a transsexual person wishes to be considered for membership of a faith community. The hon. Member for South-West Bedfordshire (Andrew Selous) mentioned the rules and practices of some religious communities that would want to exclude people who have acquired gender—although I say for the record that that is not my Christian tradition within the Anglican communion.

A further issue is disclosure to a religious minister who is about to conduct a marriage ceremony. My hon. Friend the Member for Braintree described a case in which someone else—for example, the curate—knows that one of the parties is recognised in the acquired gender; in that case, the curate might feel obliged to tell the minister, yet clause 22 might prohibit disclosure of that important information.

There may be several solutions to such problems and it is right that we approach them in a common-sense fashion, asking what a curate or a faith community faced with such a problem would do in the circumstances,

Andrew Selous (Conservative, South West Bedfordshire)

The Minister uses emotive words such as exclude. The clergy and pastors with whom I have spoken are concerned simply to ensure appropriate and sensitive pastoral care. Exclusion is no part of their agenda.

David Lammy (Labour, Tottenham)

I am grateful to the hon. Gentleman for putting that on the record.

Chris Grayling (Conservative, Epsom and Ewell)

The Minister has set out a number of scenarios in which a problem could arise. Does he accept that the benefit of new clause 1 is that it addresses the unexpected, as well as the expected? Undoubtedly, situations will arise that Parliament has not anticipated and of which the Minister did not think when preparing his speech. Does he accept that a signpost in the Bill stating that Parliament wants the courts to be mindful of religious rights is therefore desirable?

David Lammy (Labour, Tottenham)

Let me make some progress and explain how we would deal with such situations.

We have always said that the primary solution must be to seek the consent of the transsexual person to disclosure. We are discussing sensitive personal information and it is reasonable that, for the most part, the consent of the individual should be required before disclosure can occur. As I said in Committee, my experience and, I am sure, that of most hon. Members suggests that if a member of the clergy or a member of a faith community were to receive such information, they would quietly and calmly seek the consent of the transgendered person to their passing on that information, should they wish to do so.

In another place we extended the conscience clause so that a religious minister is allowed to refuse to marry a person if the minister has a reasonable belief that the person is recognised in the acquired gender. We understand that baptismal certificates are often requested in cases involving marriage, membership or appointment. Unless a person was baptised after the age of 18, the baptismal certificate would be in the original gender and thus provide the information needed. The hon. Member for South-East Cornwall (Mr. Breed) asked whether disclosure of baptismal certificates would cause problems. I refer him to clause 22(4)(c), which allows an exemption for cases in which someone could not have known that the person was transgendered.

Tim Boswell (Conservative, Daventry)

Will the Minister advise the House, now or later in his speech, or perhaps in writing, whether an offence will have been committed by somebody who discloses historical information—for example, in a baptismal or academic certificate—in good faith, with no knowledge of any intervening change of gender? Secondly, if the release of the information is an oblique or indirect way of securing or passing information about a change of gender, but the disclosure arises simply from the release of historical material that is not an official document, will the person be guilty of an offence under clause 22?

David Lammy (Labour, Tottenham)

The wording of clause 22(4)(c) is clear. It states:

"the person . . . does not know or believe that a full gender recognition certificate has been issued".

Gerald Howarth (Conservative, Aldershot)

rose—

David Lammy (Labour, Tottenham)

We have only dealt with new clause 1 and I should like to make progress. It is important that we deal with as many groups of amendments as possible this afternoon.

As Members will see, clause 22 provides the Secretary of State with the power to prescribe further exemptions to the prohibition on disclosure in secondary legislation. Our intention is to use that power to provide for detailed exemptions wherever necessary. It is already clear that problems arise only in very specific circumstances. As I have said, we must respect both the rights of transsexual people and the right to freedom of religion and weave a path between them. By using secondary legislation and engaging in dialogue with religious organisations, we are seeking to deal with that problem.

Patrick McLoughlin (Conservative, West Derbyshire)

Can the Minister assure us that that secondary legislation will be amendable?

David Lammy (Labour, Tottenham)

The hon. Gentleman is well aware of the practices and procedures of the House. He was not here earlier, when another relevant issue was raised. We do not intend that there should be a gap between the coming into force of secondary legislation and the operation of the scheme for legal recognition.

Eric Forth (Conservative, Bromley and Chislehurst)

On a point of order, Mr. Deputy Speaker. To help the House, can you clarify that the procedure just referred to the Minister means that secondary legislation is not amendable when it comes back to the House for consideration?

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

I am anxious not to be drawn into the technicalities, and that is a point of debate for the Minister to answer.

David Lammy (Labour, Tottenham)

Many hon. Members have referred to the Joint Committee on Human Rights, whose members did not accept the James Dingemans opinion across the board. They were, however, concerned about the conscientious objection provision, but went on to say:

"such provision could also be made by the Secretary of State by order, in exercise of the power in clause 22(5)".

David Drew (Labour/Co-operative, Stroud)

My hon. Friend will recall that I asked him to commit himself to writing to hon. Members about the introduction of secondary legislation so that we have a clear timetable. We need to know that secondary legislation will be introduced as soon as he has communicated with the Churches so that we have provisions in law at the earliest opportunity.

David Lammy (Labour, Tottenham)

As I told the hon. Member for West Derbyshire (Mr. McLoughlin), there will be no gap between secondary legislation and the gender recognition scheme, but it is right that we are sensitive to the wishes of religious communities and continue to talk with them to establish specific exemptions. Simply seeking to impose section 13 of the Human Rights Act on the Bill will not create the targeted approach that we are seeking. We continue to work with religious organisations, but I cannot recommend that the House accept the new clause.

Edward Leigh (Conservative, Gainsborough)

It is my duty to conclude our excellent debate. First, the matters in amendment No. 1 are very sensitive indeed and concern conversations between clergymen about candidates for marriage and ordination. There is probably a broad consensus across the House that those conversations have to be protected and the Minister has given various undertakings on secondary legislation which, as was made clear in an intervention, may not be as satisfactory as including a provision in the Bill. None the less, I accept what he said in good faith and shall not press the amendment further.

I wish, however, to press new clause 1 to a vote. We have entered a moral maze and are dealing with difficult issues. People have spoken with great conviction, passion and sensitivity on both sides of the argument. There are broadly two cases against my new clause. One is absolutist—not made by the Minister, incidentally—and asserts that it is wrong for Church communities to remain outwith the general will of the House. They cannot insulate themselves, however strong their opinions.

Another view, expressed by the Minister, was that my new clause was not necessary because it simply replicates the words of section 13 of the Human Rights Act, so we can rely on that provision. However, to counter his argument, there is controversy among lawyers about whether we can rely on it. We have heard Dingemans's opinion, which is not, I accept, supported by the Joint Committee on Human Rights, so there is a dispute. That underlines my point that there is fertile ground for litigation.

In conclusion, I am not asking anybody in the House to accept what the Church communities say or agree with their views. In a free society, however, such communities should regulate their own affairs and have the right to conduct them according to their deeply held religious beliefs. The House should not impose its views on them, so we need the protection of new clause 1, which I shall press to a vote.

New Clause 2 — Application following issue of an interim gender recognition certificate

Hugh Bayley (Labour, City of York)

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

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will be convenient to discuss amendment No. 2, in page 16, line 14, schedule 2, at end insert—

'"( ) An annulment or dissolution of marriage under section 12(g) shall be subject to the provisions of section [Application following issue of an interim gender recognition certificate] of the Gender Recognition Act 2004.".'.

Hugh Bayley (Labour, City of York)

Hon. Members who attended Second Reading or served on the Standing Committee will know that I have been trying to protect the pension rights of transsexuals and of their wives and husbands.

When a married person is diagnosed with gender dysphoria and commences gender reassignment treatment, an enormous emotional strain is placed on the marriage, and in most cases the marriage comes to an end. In a few cases, however, the married couple wish to stay together. I have two constituents who are in that position. They have been married for many years and have grown-up children. The wife, as so many women did in the past, stayed at home to bring up the children and has no pension provision in her own right. In that sense, she is dependent on her husband, and will be so in retirement if she survives for longer than him.

In Committee, it was established that the decision by one partner in a marriage to live in the opposite gender, or the decision to go forward with gender reassignment treatment or to apply for an interim gender recognition certificate, would not affect in any way the state pension rights or the private pension entitlement of either party to the marriage. However, the situation changes when a married person applies for a full gender recognition certificate, because the Bill requires a married couple to divorce in order to get legal recognition in a new gender for a party to the marriage. Divorce law does not cope well with that, because it assumes that a couple who go to court seeking to divorce will separate. In all other circumstances, of course, divorce or the annulment of a marriage does lead to separation or follows separation, and the divorce court has the job of dividing and apportioning property and responsibilities between the two parties. In a case such as that of my constituents, where the couple are required to divorce so that one of them may obtain a full gender recognition certificate but they do not intend to separate, provision needs to be made for property, including pension rights, to be shared.

Amendment No. 2 would add a new provision to schedule 2 by amending the Matrimonial Causes Act 1973 to give the divorce court further powers to deal with the new reason for divorce that is introduced by the Bill—divorce on the grounds that a party to a marriage is applying for a full gender recognition certificate. New clause 2 sets out what those new powers would be: in short, that those seeking annulment or dissolution of a marriage under section 12(g) of the 1973 Act—

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I support the hon. Gentleman's argument, which has a great deal of force. Does he agree that trust law would assist him, in that where those who have been party to a marriage both contributed to the family assets, there will already be a resulting trust in favour of one or both parties? His amendment would give statutory expression to such trusts, and is to be supported on that basis alone.

Hugh Bayley (Labour, City of York)

I am grateful to the right hon. and learned Gentleman. As I understand it, the property rights of the couple can be retained in such a way as to give them shared rights, although that rarely happens in a divorce. Because of that, it may not be necessary for me to press my amendment to a vote. I will be grateful if the right hon. and learned Gentleman wishes to intervene later in my speech if he feels that I have missed a point in the argument. In relation to property rights other than pensions, I understand that in the special and unusual circumstances that we are considering, a divorce court would be able to retain property—for instance, a shared family home—in joint names if the couple continued to live together in that home following the divorce.

The new clause would allow those seeking a divorce on the grounds that one of the couple was seeking a full gender recognition certificate to apply for the pension rights and the property rights in the marriage to continue after annulment or dissolution, provided that the couple continued to live together. The new clause gives two alternative definitions of living together: one where the couple do not establish a civil partnership; the other where they establish a civil partnership under the Civil Partnership Bill, which is before the House.

The new clause would also protect the right of both parties to the marriage and of others with an interest, such as a pension provider, to go to court at a later date to vary the terms of the settlement if the circumstances changed—for instance, if the couple ceased to live together.

I tabled my amendments as a safeguard to enable the House to debate the issue further on Report and to allow the Minister, if she is so minded, to make a statement about how the Government believe that private pension providers should act in circumstances such as those that I am describing.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I have a great deal of sympathy with the hon. Gentleman's suggestion, and I think that he is right in principle, but I am troubled by one point. When the certificate of gender recognition has been granted and the party has married again, what is the position of the pension provider in relation to the second marriage partner?

Hugh Bayley (Labour, City of York)

The right hon. and learned Gentleman makes an important point. In those circumstances, most pension providers would try to vary the terms of the divorce settlement and the continuance of the pension rights of the spouse from the first marriage, because they could not offer the same rights to two spouses. I have therefore drafted the new clause in a way that would allow an interested party such as a pension provider to go back to court if circumstances changed and one party or the other decided that they would no longer live with their former wife or husband but marry some other person. In those circumstances, insurance companies or pension providers could go to the courts and argue that they should be released from the obligation to the former spouse in order to fulfil their obligation to a new spouse. It would be open to the court to determine the appropriate action in those circumstances.

Earlier, I said that I tabled the amendments as a safeguard to allow further debate; I hope that it will not be necessary to press them to a vote. I should like to explain the reason for that. After the debates in Committee, I contacted the National Association of Pension Funds and the Association of British Insurers to seek their advice about practical ways in which to safeguard the pension rights of spouses of transsexuals in circumstances similar to those of my constituents. I asked my hon. Friend the Under-Secretary to hold a round-table conference at the Department to devise a way forward. She agreed and we held the meeting on 29 March.

At the meeting, we concluded that, in the context of state pension provision, the Bill would leave couples such as my constituents no worse off. Indeed, in some circumstances, they could be better off. We also concluded that it would not be necessary to amend the Bill in relation to private pension provision so long as we could be sure that providers would grant the same survivors' rights to unmarried dependants who lived with their former husband or wife as that person enjoyed when they were the husband or wife.

We agreed that the National Association of Pension Funds, the Association of British Insurers and the Department for Work and Pensions should draft a guidance note for the industry—pension providers—and for married transsexuals and their spouses to spell out what would be regarded as good practice in providing pension benefits to the former spouses of transsexuals who had obtained a full gender recognition certificate.

The guidance note has been through several iterations and I want to put on record my thanks to Robin Ellison of the National Association of Pension Funds, Nicholas Hillman from the Association of British Insurers, John Lawson from Standard Life and Simon Boniwell, the official at the Department for Work and Pensions, for their work in preparing the draft guidance note. I believe that the draft covers all the necessary issues, although the subject is complicated and the wording needs to be made clearer for a lay audience. I know that my hon. Friend the Under-Secretary agrees, and I believe that the conversion of a technical document into plain English is in hand.

I want to ask my hon. Friend the Under-Secretary two questions. First, I emphasise that she has been generous with her time in allowing me to work with her officials and those in the private sector to prepare the advice. However, other hon. Members have similar concerns and I hope that she will allow a working copy of the draft to be shown to any other Members who have a special interest so that they could comment on it.

Secondly, when do the Government intend to make the draft public? It would be helpful for that to happen as soon as possible so that married couples in the circumstances that we are considering can obtain advice about the best action for them to take to protect the security of both partners in old age.

I should also like briefly to put on record my thanks to Mark Buckley of PricewaterhouseCoopers, which is the adviser to my constituents' pension scheme. The scheme asked Mr. Buckley to respond on its behalf to several questions that I raised on behalf of my constituents. He confirmed that the scheme's trustees agreed that there was no objection to paying the spouse's pension to the scheme member's former wife following the couple's divorce provided that the former wife was financially dependent on her former husband at the time of her former husband's death and that her former husband had not remarried. In other words, it was agreed that the divorce would make no difference to the entitlement of the transsexual's wife to a pension should she outlive her husband or former husband.

The scheme inserted the proviso that the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) mentioned a moment ago. If circumstances changed and the former husband remarried, the right to a survivor's pension for the former wife would not necessarily follow.

Mark Oaten (Liberal Democrat, Winchester)

Will the hon. Gentleman clarify that his discussions with the pensions sector related not only to private pensions but to public sector schemes?

Hugh Bayley (Labour, City of York)

Yes. I understand that the guidance would apply to public sector second pensions. The National Association of Pension Funds represents public sector pension providers such as local government pension schemes as well as private sector occupational pension schemes run by big companies.

The response of PricewaterhouseCoopers to the questions that I asked on behalf of my constituents is a model response for other pension providers. I have given a copy of the letter to the Department for Work and Pensions and asked the officials who are drafting the guidance note to ascertain whether they can replicate the language and the clarity of the statement that PricewaterhouseCoopers made about the pension rights of the wife.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The hon. Gentleman has been generous in giving way. I am slightly troubled that we would vary deeds of trust and rely on voluntary practice. Would not it be better to have a statutory intervention so that the trustees knew their statutory duties? If we adopt the approach that the hon. Gentleman explains, we rely on the good faith of the trustees and their willingness to act in accordance with the guidance.

Hugh Bayley (Labour, City of York)

The right hon. and learned Gentleman makes an important point. I shared that view when I first considered the problem. Perhaps it is because of my short experience as a Minister in the Department for Work and Pensions—or Social Security, as it was then—that I realise that it is important to the public for pensions legislation to be as simple and unencumbered as possible.

The number of people likely to find themselves in similar circumstances to my constituents—a married couple who, when one of them seeks recognition in a new gender, wish to remain together and live together as though they were married in terms of financial dependency on each other—will be very small. There might perhaps be 30, 40 or 50 such people. I took the view that to add another block of legislation to what already stretches to hundreds of pages on pension provision in order to deal with such a rare occurrence would be unnecessary, provided that there was clear guidance to trustees as to what was expected of them in such circumstances.

In a sense, the question that I put to PricewaterhouseCoopers—or rather, to my constituents' scheme provider, which asked PricewaterhouseCoopers to respond—convinced me that the industry would respond appropriately and decently in such circumstances. That response came fairly quickly, given that the advisers had to consider a situation that they had not encountered before and to examine the legislation. I was impressed by how diligently they did so, and I therefore took the view that it would not be necessary to add yet another page to a complicated area of legislation. The right hon. and learned Gentleman makes a good point, but my judgment is that the House has a terrible tendency to over-legislate, and this is one occasion on which leaving the matter to the good sense and judgment of pension fund trustees would be a fair and reasonable thing to do.

Glenda Jackson (Labour, Hampstead and Highgate)

I would be grateful if my hon. Friend clarified something that I clearly have not understood, even though he is presenting his argument with great cogency. I understand that the wife of a divorced couple who had been financially dependent on her former husband at the time of his death would retain her pension rights. The issue has now been raised of a possible marriage, however. What would happen to the woman in those circumstances? Would she lose all her rights to a pension that would presumably have been funded, in the main, by her former husband?

Hugh Bayley (Labour, City of York)

My hon. Friend raises an extremely important point. In such circumstances, the dependent partner in the marriage, who could, of course, be a woman or a man, would have the ability to go back to the divorce court to ask for the divorce settlement to be varied so that their property would no longer be shared—because they were no longer living together—and so that some alternative arrangement could be put in place. The most likely arrangement would be a division of the assets, which could well include pension splitting. Alternatively, it could result in what is known in the trade as offsetting, whereby the wife might get the family home, for example, and the husband—or former husband, in this case—might get the pension. The court would deal with their assets anew, recognising that their circumstances had changed and that the divorce had become a separation as well as a technical arrangement to allow one party to get the gender recognition certificate that they sought.

Glenda Jackson (Labour, Hampstead and Highgate)

I am grateful for that explanation, but would the court be bound to take into consideration the income of the new partner when dividing up the old partnership's assets?

Hugh Bayley (Labour, City of York)

I am not a divorce specialist—still less a divorce lawyer—and I am afraid that I cannot answer my hon. Friend's question. My understanding, from a legislator's point of view, is that the court would be able to come to whatever decision it saw fit. One would imagine that a wife—if I can use the shorthand—who, having agreed to live together with her former husband in a dependent relationship, found that that was no longer possible, would make representations to the court, or ask her lawyer to do so, with a view to getting a half share of the financial assets of the marriage. I would expect the court to agree to that in most circumstances. There could be circumstances when such an arrangement might be varied because one partner or the other had responsibility for dependants, for example, but I imagine that the court would treat the rights of the wife in the same way as they would in any other divorce hearing, in otherwise similar circumstances.

Lynne Jones (Labour, Birmingham, Selly Oak)

In subsection (4)(d) of my hon. Friend's new clause, the criterion is that

"the couple maintain existing financial support for one another."

As I read that, it would apply to either spouse, or former spouse. If each had their own pension and one died before the other, the surviving partner would be entitled to the appropriate share of the pension. I am a bit concerned, however, that my hon. Friend has been referring to "dependants", which might describe people who did not have a pension in their own right. Will he clarify that that is not what he means by "dependants"?

Hugh Bayley (Labour, City of York)

Yes, I can give that clarification. The lack of clarity might have arisen because I have been talking about both the general situation for couples who divorce in order for one of the partners to get a full gender recognition certificate, as well as the individual circumstances of my constituents. The advice from PricewaterhouseCoopers related to my constituents' individual circumstances, but the draft guidance note that officials at the Department for Work and Pensions have produced—together with the National Association of Pension Funds and the Association of British Insurers—covers the general situation in a way that I hope my hon. Friend would approve of. I know that she has followed this area of public policy for much longer and much more closely than I have, so I hope that she will have the opportunity to look at the draft, and if she feels that it does not do what ought to be done in advising the Department and the industry, I am sure that she will give us her comments.

Hugh Bayley (Labour, City of York)

I am trying to finish my speech, but I shall give way to the hon. Member for Portsmouth, South (Mr. Hancock).

Mike Hancock (Liberal Democrat, Portsmouth South)

Like the hon. Gentleman, I have constituents in the scenario that he first described, where one partner is solely dependent on the pension that has been accumulated by the other partner. Where both partners have pension rights solely to themselves, they stay together and one or other of them dies, and one of them has gone through the gender change and the certification process, does the guidance that the hon. Gentleman has worked through with the Minister's office state that those pension rights stay with that person when the partner dies, even though they have pension rights of their own?

Hugh Bayley (Labour, City of York)

It is impossible to give individual advice to hon. Members in the Chamber; each pension scheme is different. In the case of the hon. Gentleman's constituents, one would have to establish whether the pension scheme provided a spouse's right to a pension following the scheme member's death, and one would then have to clarify with the pension provider whether it would continue the spouse's right following the dissolution of the marriage. That can be done only on a case-by-case, scheme-by-scheme basis.

The guidance note seeks to tell people such as the hon. Gentleman's constituents the issues on which they should seek clarification and how they should go about it. The guidance note also gives a strong steer to the industry that it should not use circumstances such as these as an excuse for denying people security in old age as a result of pension rights that they had established, simply and solely because the partner who was the source of that security in old age changes their gender or seeks legal recognition of a changed gender.

Hugh Bayley (Labour, City of York)

I must make progress. I am sure that hon. Members who wish to intervene will be able to make their own speeches. I thank my hon. Friend the Minister for her helpful response to my proposal that a guidance note be prepared. I shall listen carefully to her statement about the role that that guidance note will play.

Frank Field (Labour, Birkenhead)

My hon. Friend the Member for City of York (Hugh Bayley) has been so comprehensive and so excellent in his delivery that I can be mercifully brief.

On Second Reading, I intervened on the very point that we are discussing. Although the Bill seeks to meet an injustice that a number of our constituents feel, I was anxious that we should not create another injustice for another group of people in place of the original injustice. I spoke in theory; my hon. Friend spoke from practice. That shows the value of single-Member seats, where the buck stops with each of us for our individual constituencies, and as a result we cannot pass on our responsibilities or pretend that someone else is attending to them.

My hon. Friend the Member for City of York said he hoped that our hon. Friend the Minister would read into the record the spirit in which he hoped the guidance would operate, and say whether and at what point the guidance would be made public to hon. Members and, perhaps equally important, to our constituents. I ask my hon. Friend the Minister for one clarification. My hon. Friend the Member for City of York rightly said that we are dealing, fortunately, with a small number of people who feel the grievance, but if one person feels the grievance, it is 100 per cent. It is not mitigated by the fact that there may be only 39 or 49 other people in a similar position. That is why it is important for my hon. Friend the Minister to deal with the issue.

Suppose that the private providers do not all come up to the standard that my hon. Friend the Member for City of York hopes and believes they will, given their track record so far. We only need a couple of providers to fail to live up to that expectation for some of our constituents to feel that, while meeting what is a legitimate grievance for some of our constituents, we have created an equally horrible grievance for them.

Tim Boswell (Conservative, Daventry)

Those who participated in or subsequently read the reports of the Standing Committee will know that it was characterised by large measures of cross-party agreement on a number of important issues. This is one of them. I pay tribute to the hon. Member for City of York (Hugh Bayley) for bringing to the matter his personal expertise from his constituency case. As has been said, a small number of people are affected, but that is no reason to perpetuate an injustice if it can be dealt with.

I look forward to the Minister's response, as she, too, has been sensitive in this area. The only question at issue is what the best response is and whether it will leave some people feeling that they have not received the justice to which they feel entitled. I take the point made by the right hon. Member for Birkenhead (Mr. Field). If we deal with most of the problem but leave one or two people dissatisfied, that aggravates things for them.

From the exchange between the hon. Member for City of York and my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), I think there is a convincing case for dealing with the matter by guidance note. That will cover most cases, including, I hope, those where the provider is a member of the National Association of Pension Funds.

My only reservation—I do not want to go on at great length, as I know this is a difficult and complex subject—relates to the question of public sector schemes. It is absolutely true, as the hon. Gentleman has said, that a large number of those are and should be members of the NAPF in relation to their private sector or second pension provision, which is fine. Typically, of course, entitlements can be transferred between public and private sector easily in that regard. When considering statutory pension schemes, the difficulty is that they are often prescribed in statute, and are very complex. I hope that the Minister can at least reflect, and perhaps comment this afternoon or subsequently, on cases in which trustees of public sector schemes may find that their discretion is fettered in ways in which some of the private schemes would not be, and are unable to produce the deal that would otherwise be available to persons in the private sector. That is not an easy matter—I believe that there are about 600 public sector schemes—but I hope that it will be considered.

The broad outline is uncontentious. The hon. Gentleman has worked hard with the Minister, and I have been anxious not to clutter things and get in the way, but he has had the courtesy to keep us in touch. He needs to share that, and it would be sensible for the Minister to put the guidance note in the Library for all to see. We are on the verge of resolving this issue, without a Division and in conformity with the decent spirit that the Committee showed previously.

Lynne Jones (Labour, Birmingham, Selly Oak)

I, too, thank my hon. Friend the Member for City of York (Hugh Bayley) for his work on the issue of pensions justice for transsexual people and their spouses, prompted by the injustice that they will be forced to dissolve their marriage if the transgendered person is to be able to realise their human rights in that status.

I am not entirely convinced by the argument that a statutory requirement, as in new clause 2, would impose significant complexity on the pensions industry. The Government's record on simplification of pensions policy is not entirely good in that regard. Having said that, I also want to thank the Minister for the co-operation that she and her Department have given my hon. Friend. I hope that the guidance note will provide sufficient incentive to all pension providers to ensure that people in the unique position of being forced to dissolve their marriage are protected and retain their pension rights. Because of the small numbers involved, this is not particularly financially demanding of pension schemes, although it is possible that some might be in very small pension schemes and the trustees might be pleased to save themselves what they might consider a considerable burden of paying out a pension in the event of the decease of a spouse in a former marriage involving a transgendered person.

As the hon. Member for Daventry (Mr. Boswell) has said, the guidance note proposal goes a considerable way towards alleviating some of the anxiety, but I am not entirely convinced that it would not have been better either for the proposals laid down in new clause 2 to be accepted or for the Government to consider whether it is necessary to require couples to dissolve their marriage before a transperson can have a gender recognition certificate.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I have three questions, but before I come to those, I want to congratulate the hon. Member for City of York (Hugh Bayley), who has been addressing a serious problem, for which the House is grateful.

First, the hon. Gentleman is relying on guidance—practice directions. When trustees come to construe a trust, however, they have legal obligations. I am far from certain that guidance, or practice direction, would relieve them of their obligations under the trust if the trust were fairly clear in its interpretation. I suspect that statutory intervention might be required.

My second point relates to public sector pension schemes. I may be wrong, but my understanding is that many of those schemes are statutory in origin, relying on statutory instruments. In that case, the duties of a trustee are constrained by the language of the statutory instrument in question, and statutory intervention rather than guidance would be needed to alter the obligations of a trustee in respect of a public-sector trust.

My third point is rather different. I have been looking again at schedule 4, and asking myself what would be the effect on a marriage of the acquisition of a new gender. I note that the original marriage is voidable, not void: unless the parties go to court to have it annulled, the original marriage remains valid. I assume that, as a consequence, if a party whose spouse has acquired a different gender does not want the marriage annulled—it being voidable rather than void—the original marriage will remain subsisting, and the parties' rights will be defined with reference to the original pension scheme. I realise that that is a technical point, and I am sorry if I have not made it clear to the Minister. She is stirring in her seat, and I shall be happy to give way to her if I have not.

Maria Eagle (Labour, Liverpool, Garston)

We have had a short, sharp but erudite debate, for which we should thank my hon. Friend the Member for City of York (Hugh Bayley). As I listened to him answering questions from all comers, it was as if he was still a social security Minister, and I felt that I might be redundant. His ability to answer so many questions—I shall return to some of those that remain—shows how deeply he has thought about an issue which, although it arose from a constituency case, is replicated around the country, albeit in only a small number of instances. The speed and depth of his responses demonstrate that he has examined the matter closely, and his amendments tabled in Committee and on Report make it clear that he is not a bad parliamentary draftsman either. We have seen worse, sometimes from parliamentary counsel—although I shall probably suffer as a result of that comment.

The amendments are similar to those tabled by my hon. Friend in Committee. They are narrower, in that they relate simply to a married couple who must divorce for one member to obtain a gender recognition certificate, but intend to stay together. They are, however, broader in that they refer to all property rights rather than just private pension rights.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I realise that I am coming to the argument rather late and may have misunderstood the position—in which case I apologise—but my understanding of schedule 4, which I think governs the effect of an acquired gender on a subsisting marriage, is that it is voidable, not void. In other words, no party is driven to take a divorce by reason of the acquisition of the gender; it is merely that the party is entitled to go for an annulment.

Maria Eagle (Labour, Liverpool, Garston)

Although the right hon. and learned Gentleman's definition of voidable, as opposed to void, is certainly right, the person who is acquiring the new gender cannot get the interim certificate that enables him or her to get legal recognition until there is a divorce. It is in that sense that my hon. Friend the Member for City of York and others have said here and in Committee that the law requires a divorce. I hope that that clarifies the way in which the legislation will work. It does not turn on whether the marriage is voidable or void; one will not get the interim certificate without having a divorce.

Lynne Jones (Labour, Birmingham, Selly Oak)

May I just clarify one point? I think that my hon. Friend means that one cannot get a full recognition certificate without a divorce. The interim certificate is granted before the divorce, purely in recognition that that person has transgendered. My understanding is that that interim certificate gives either party to the marriage the right to annul that marriage.

Maria Eagle (Labour, Liverpool, Garston)

I thought that that was what I said; if I did not, my hon. Friend has done me a favour by clarifying the point. I hope that that satisfies the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) on that specific point. I shall return to some of his other points.

I am trying to emphasise the fact—as did my hon. Friend the Member for City of York—that the new clause and amendment are about the very small group of people, even within the transgendered community, who are married and wish to stay together once there is final recognition in the acquired gender. That will be a small number of people—we have heard such figures as 40 or 50 bandied around. However, as my right hon. Friend the Member for Birkenhead (Mr. Field) and the hon. Member for Daventry (Mr. Boswell) made clear, that does not take away the fact that the issue is still pretty important to that small number of people, whom we are in effect requiring to divorce if one party to their marriage wishes to have their legal right to be recognised in their acquired gender. I recognise that the issue is important, as did my hon. Friend the Member for City of York.

The Government's position on these issues has not changed. It is a fundamental principle of the Bill that once a legal change in gender is secured, the person must be treated for all purposes as being of the acquired gender. It cannot be right in a Bill that intends to give legal recognition to a person's change in gender then to start treating that person in the old gender for some purposes and in the new gender for others. That is what leads to some of the issues that have been raised here about financial disadvantage that might arise because someone simply acquires a human right, which the Bill exists to enable them to do. That is the nub of all the problems and issues that are before us. However, the Government still believe that it would be wrong to start to make exceptions to the Bill's general principle that once the acquired gender has been legally acquired, that person is to be treated in all circumstances and cases as being in the acquired gender, not the old one.

My hon. Friend the Member for City of York referred to the useful meetings that we had. Although they were held under the auspices of the Department, I pay tribute to him for playing a dynamic part in ensuring that they happened. There was a meeting of the National Association of Pension Funds, the Association of British Insurers and others with my hon. Friend on 29 March. Short though our debate on this issue was, we discussed such a myriad of different potential circumstances—different pension schemes, different ages at which this might become an issue, different amounts of pension already accrued and so on—that it seemed fairly evident to me from that debate that it would be difficult to try to legislate to deal with the problem in every single way in which it might show its face.

We believe that making exceptions to general principles would not be helpful in this instance, and could have unintended consequences. The representative of the National Association of Pension Funds certainly made it clear that he did not believe that the trustees of pension schemes should be asked to fetter their discretion in the way that the amendments propose. Different pension schemes have different rules, are of differing sizes and have differing levels of discretion. Some already provide survivor benefits for unmarried partners as of right, or at the trustees' discretion.

We continue to believe that the best way of dealing with the situation is for individuals to ask their pension scheme trustees for advice about the provision that the scheme makes for unmarried partners and the conditions that apply, and to consider their options in the light of that information. They can then decide whether and when to ask for gender recognition, in view of all the financial circumstances that apply to them at that time.

Glenda Jackson (Labour, Hampstead and Highgate)

Is help not already available for the industry, and would it not be possible for the small number of people who will be affected in this way—those who intend to live together post-transgender for the rest of their lives—simply to be incorporated through the legislation? Indeed, such legislation has benefited same-sex couples in this regard.

Maria Eagle (Labour, Liverpool, Garston)

That would not be at all as easy as it sounds. Such people may well have every intention of continuing to live together after a divorce and a gender reassignment, but nobody can predict what will actually happen. At a time when we are trying to simplify private pension provision rules, and in dealing with what is a very small number of people, it would be difficult and complicated to produce rules and requirements for schemes without intruding on the rights and duties of schemes and trustees.

We certainly want to proceed by way of guidance and to see whether that will work. Such guidance has proved useful in the case that motivated my hon. Friend the Member for City of York. He met with a very positive response when pursuing the pension rights of his constituents, and we hope that the same will be true of the small number of people affected by the provision. That it is certainly our preferred solution.

Andrew Selous (Conservative, South West Bedfordshire)

Will the guidance and advice apply to all public sector pension schemes?

Maria Eagle (Labour, Liverpool, Garston)

I am about to deal with the various points that have been made and I shall try to answer such questions before I sit down. To be fair, my hon. Friend the Member for City of York has already correctly answered most of the questions that were raised, which is why I feel slightly redundant. Having said that, Members are tempting me to speak for far longer than I probably should. To the extent that the NAPF covers public sector as well as private sector schemes, its guidance notes apply in equal measure to both.

My hon. Friend the Member for City of York asked when the guidance would be made available to the public. We intend that the application packs and the enclosed information be available to all those who apply to the gender recognition panel from January 2005 at the latest. My Department and I have no worries about making our guidance available, as soon as it is drafted and completed to our satisfaction. Of course, the guidance note produced by the NAPF and the industry is not mine to bandy around, and I shall have to ask them when they are willing to make it public. I am certainly happy to respond to those Members who have an interest in this issue, once I have consulted those who play a part in the preparation of the guidance note, but I should make it clear that there is no point in allowing a guidance note to be surrounded in secrecy.

My hon. Friend the Member for Hampstead and Highgate (Glenda Jackson) asked a question relating to general divorce law. I should point out that I am not a divorce lawyer—or indeed any sort of lawyer any more. I do not wish to get drawn into specific instances, but I can say that the court has the power to make pension-sharing orders on divorce. To the extent that couples are concerned that even though they intend to stick together after divorce, that may not actually happen, they can certainly have pension sharing on divorce. That would be the right thing for them to do.

My right hon. Friend the Member for Birkenhead asked a number of questions. One was what would happen if pension providers did not live up to the hopes that we have all expressed in the House today. May I tell him that our first example has been the constituents of my hon. Friend the Member for City of York? It seems that a good and positive outcome resulted in that instance. I am optimistic about people's responses to such problems. When the Bill becomes law, when the guidance note and the rules for trustee schemes have been published and when the members start to discuss the issues, I hope that we will not encounter any serious problems. At this stage, all I can say is that, if that proves not to be the case, we will have to examine the position again. I am sure that the House would not expect me to commit the Government any further than that at this stage, but we want to be as helpful as possible to ensure that people do not lose out.

Let me emphasise again that the primary purpose of the Bill is to enable legal recognition in the acquired gender and to give human rights to a group of people who have demanded them but who have been ignored in the past. That is the Bill's primary purpose, and no other purpose overrides it. To the extent that we have to make choices between that purpose and others, we have to choose the primary purpose, and I hope that no problems will result from that.

The guidance from the Department will advise individuals to approach their schemes for information about what would be likely to happen if a decision were taken to divorce as a result of one person wanting to gain a final gender recognition certificate. Couples can take a decision on the basis of what information comes back to them from their particular scheme about their particular circumstances.

The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), who is obviously a trust lawyer—he convinced me through his questions that he knows a lot about trusts and equity—asked what would happen if the construction of the trust fettered the good will of the trustees. Obviously, all I can say is that the trust deed comes first. Trustees will be able to respond positively to the extent that they have the discretion to do so. We hope that they will do so, but if the rules of the scheme and the trust deed are such that they do not have discretion, clearly the answer will be rather different. We wait to see what happens.

The right hon. and learned Gentleman also referred to public sector schemes and the wording of statutory instruments. I am not in a position today to tell him whether there would be problems with the construction of statutory instruments. No doubt that will become clear as we start to go through the process. Again, if there is a major problem, we will have to consider it when it emerges. I believe that I have dealt with the right hon. and learned Gentleman's other point.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The Minister is making a perfectly fair response. One could envisage circumstances in which some people lost out, but in which we found out that there was a problem with the statutory instrument only after they had lost out. The Minister might then have to consider the possibility of paying benefits retrospectively on the introduction of any statutory change.

Maria Eagle (Labour, Liverpool, Garston)

The right hon. and learned Gentleman, in talking about retrospection in relation to benefits, is tempting me into serious constitutional waters, but I hear what he says, and we would have to consider it if a problem emerged. I will have to take that point away with me, although we hope that there will not be any problems.

The hon. Member for Daventry spoke about scheme rules and discretion, and asked me whether the guidance notes could be placed in the Library. As I said, there is no point in keeping a guidance note secret. I, for one, would want to spread the guidance as far and wide as possible for the benefit of those for whom it might be of some use.

I end by paying tribute to the dedication and effort of my hon. Friend the Member for City of York. I hope that I can convince him not to press the new clause, and that the guidance note on which the Government and the industry are working hard will do the job that he wants done. Finally, I hope that he will not be too upset if I say again that he has done a very good job for his constituents.

Hugh Bayley (Labour, City of York)

I feel almost as if I have been praised to death. I should begin by thanking my right hon. Friend the Member for Birkenhead (Mr. Field) and my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones), who put their names to the proposal. As to whether guidance, as opposed to statutory provision, will be sufficient, there is a great temptation for Back Benchers to be fundamentalist and to press for legislation just in case it is needed, even though that may be a one in 10,000 chance. When I ceased to be a Minister, I decided that I should not set for my successors a sterner test in respect of the necessity for legislation—or anything else—than I would have set for myself.

My hon. Friend the Minister said kindly that she wondered whether she was redundant. She is not: she is a very good Minister, as her response to my concerns on this matter shows. It is I who feel redundant after her answers to all the difficult and penetrating questions asked by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg).

Of course, non-statutory guidance will not override trustees' responsibilities. However, when the trustees have discretion, how will they use it? I want them to use it in a way that protects the rights of the spouse of a transsexual who legally changes gender. The guidance will give advice to trustees about how to use discretion, and it will move them in the right direction.

The hon. Member for Daventry (Mr. Boswell) said that there had been good co-operation across the parties on this matter. I am grateful to him for his help and support in Standing Committee, and to the hon. Member for Winchester (Mr. Oaten), who also put his name to the amendment.

The Minister said that she hoped the guidance would provide the level of protection needed by the small number of people who find themselves in this situation. The implication was that we would have to make some legislative provision if the guidance failed in that respect. If my judgment that the guidance note will be sufficient proves to be wrong, I assure my hon. Friend the Member for Birmingham, Selly Oak that she can enlist me as a willing supporter in pressing for statutory provision. However, I do not think that that will be necessary, and I prefer to have a simple and unencumbered Bill.

The Minister said that she was willing to consult other Members who have expertise in this matter about the content of the guidance that is sent out. I am grateful to her for that. I accept that the final draft of the guidance needs to be signed off by the ABI and the National Association of Pension Funds as well as by her Department, so she cannot give the House a firm date, but I am pleased to hear that she hopes the guidance will be available before the Bill goes live, assuming that it receives Royal Assent.

In light of the clear assurances from the Minister, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 3 — Olympic athletes

Tim Boswell (Conservative, Daventry)

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

Michael Martin (Speaker, Glasgow Springburn)

With this it will be convenient to discuss new clause 6—Changing and washing facilities—

'Nothing in this Act shall prejudice the rights of the management of facilities where there are gender specific changing and washing areas, such as open showers and open sports changing areas, to regulate their procedures as they see fit, providing reasonable provision is made for transsexuals.'.

Tim Boswell (Conservative, Daventry)

It will indeed be convenient to consider new clause 3, which I tabled, with new clause 6, tabled by my hon. Friend the Member for South-West Bedfordshire (Andrew Selous), who was a member of the Committee. I hope that all the issues on the selection list will be discussed before the deadline, but the bracketing of these two new clauses under the heading "Sport" is a little bizarre, because they are very different. Given that new clause 3 relates to Olympic competition, I wondered whether we might call the new clauses the coxless pairs. I shall allow my hon. Friend to row his side of the boat in a minute, but I wish to concentrate on the Olympic issue.

We did not discuss the issue in Committee, but it has concerned my noble friend Lord Moynihan, who is active in debates on sport in the other place and in Olympic affairs. The Minister may know that as part of our all-singing, all-dancing home affairs team I am also a member of our culture, media and sport team, and take a certain vicarious interest in Olympic activities. We all want our activities to be successful and conducted to the highest possible standards.

New clause 3 would impose an immediate duty on British athletes who have received gender reassignation to advise the British Olympic Association of that. That is entirely consistent with clause 19, which concentrates on the need for fair competition and, in certain cases, safety. It would give sports administrators the chance to withdraw their sports from the provisions of the Bill.

Mark Oaten (Liberal Democrat, Winchester)

I come fresh to the issue, and I wonder whether the hon. Gentleman could explain why he has limited the clause to the Olympic committees. If the arguments are valid, surely they apply also to a range of other sports.

Tim Boswell (Conservative, Daventry)

Clause 19 provides that national sports administrators have responsibility for their own sports, which is how it has worked in the past. I imagine that the situation will be different for different sports—for example, the shot-put and boxing. We are happy with those general provisions, but the difficulty occurs when the various sports administrators seek to integrate in a national effort to produce a team for the Olympic games—as we shall do shortly. In that sense, the new clause sets out a clearance procedure that would require any transgendered person in receipt of a certificate to advise the British Olympic Association of that. The requirement is an important safeguard to secure consistency and good order.

The hon. Gentleman may have spotted that the implied suggestion in the new clause is that the International Olympic Committee should get on with the job of defining a satisfactory international policy. If time permits, we shall debate the Minister's welcome change of heart on European gender recognition certificates and the immediate rights that would attach under British law if the Government's amendments are adopted. I would like to see the integration of national policy on the issue, but it would be even better if it were overtaken by a proper decision by the IOC. We all understand that it is difficult to formulate policy—it is what we have been discussing all afternoon—but I hope that the IOC will get on with it so that we all know where we stand. I also hope that the IOC's policy will have a common basis with ours.

Mark Oaten (Liberal Democrat, Winchester)

I understand a little better now, but if the IOC produces a set of standards, would they then cover the Commonwealth games, the European championships and athletics at all levels in this country?

Tim Boswell (Conservative, Daventry)

I cannot give the hon. Gentleman a definitive answer. My immediate reaction is that it would be for the competent authorities in each case—the Commonwealth games committee, for example. Just as we want international standards on anti-doping, so, too, we want standards that are internationally agreed and applicable to all competitions, whether at Commonwealth, European or Olympic level. That is the aim of the new clause and I shall be interested in the Minister's response. I was not intending to press the matter to a vote but it is important that the Government focus on it.

I turn briefly to new clause 6, tabled by my hon. Friend the Member for South-West Bedfordshire. The Minister will be aware that we had to hurry our consideration of my hon. Friend's proposals in Committee, so the matter was not adequately dispatched. We all understand what good practice would be; we do not want people purposely to create embarrassing situations and I seek the Minister's assurance that that will not happen in practice. My hon. Friend's observations, at greater leisure than he was permitted in Committee, will help us to come to a conclusion.

Andrew Selous (Conservative, South West Bedfordshire)

I rise to speak briefly to new clause 6, which, as my hon. Friend the Member for Daventry (Mr. Boswell) said, had about three minutes' debate at the very end of the Standing Committee proceedings.

First, let me say what the new clause is not about. It is right and proper that transsexual people should use changing and washing facilities appropriate to their acquired gender. That is what should happen and I am confident that in a vast and overriding number of cases it will happen without difficulty. However, as the measure will give legal recognition, in all cases, to the acquired gender, I want the House to consider, and the Minister to explain, what would happen if someone had a gender recognition certificate but had not undergone sex reassignment surgery and wanted to cause difficulties to the management of the facilities.

David Lammy (Labour, Tottenham)

The hon. Gentleman will know that under the Bill a person would have to be diagnosed with gender dysphoria, to have lived with the condition for two years, to demonstrate that there was some permanence in the condition and to convince the panel that they merited a gender recognition certificate. He is right to suggest that that may not always mean that they had undergone an operation—there could be medical reasons for that—but those are substantial hurdles to overcome and that is the purpose of the Bill.

Andrew Selous (Conservative, South West Bedfordshire)

I am grateful to the Minister for that clarification but, to return briefly to a point raised in our debate on new clause 1, I do not know whether he is aware that in the Diane Parry case in south Wales, Diane Parry's physical appearance was very much that of a man. I am concerned about circumstances where someone is legally a man but physically a woman or vice versa, and where there are open changing areas. For example, in football or other sports, teams might change together and there are no cubicles, and in the armed services it is common to find open showers with no cubicle division.

I accept that the possibilities are remote but I want to know what would happen in such circumstances. It is relevant because, as the Minister may be aware, several pub landlords have experienced difficulties in this matter, although they relate to an issue that is separate from my new clause. I simply want to understand what will happen where there are open changing and showering facilities.

David Lammy (Labour, Tottenham)

I do not want to prejudice what I may have to say shortly, but surely the hon. Gentleman is not suggesting that we should legislate to allow a form of prejudice because it may exist in pubs throughout the country.

Andrew Selous (Conservative, South West Bedfordshire)

New clause 6 does not deal with pubs. It clearly deals with the specific circumstance of complete nudity in open changing areas. The Minister has a slight habit of setting up men-of-straw arguments that differ from the arguments made by those with whom he is debating. I ask him to restrict himself to the circumstances of new clause 6. I used the pub analogy only because that is happening now, so the scenario that I envisage is not wholly far fetched.

There is always a very small litigious minority. I accept that the vast majority of transsexual people will want to behave in a discreet and private manner; but, given the Diane Parry case in south Wales, if we are to pass a law of this nature, the Minister needs to explain clearly what will happen to a sports club if parents say, "Right. My children aren't going there anymore." The club could go out of business. He also needs to explain what could happen in the situation that I describe in respect of good order in the armed services, in which I served for 12 years, so I know a little about that. Those are the type of issues that the new clause raises.

Richard Younger-Ross (Liberal Democrat, Teignbridge)

We debated this issue briefly in Committee. Is the hon. Gentleman aware that most female changing rooms are already divided into cubicles? My background is in architecture, and I cannot think of an instance in all my time in architecture where we have ever built open changing rooms.

Andrew Selous (Conservative, South West Bedfordshire)

The hon. Gentleman is quite right. The public swimming pools that most of us use and where I go to with my family almost entirely have changing rooms with cubicles. That is not a problem. If he reads new clause 6 carefully, he will see the word "open" before the words "showers" and "sports changing areas." He will be aware that hotel sports areas often have open changing areas; football clubs and many other sports clubs have open changing areas; and open showers are very common in the armed services.

The difficulty arises purely in a case where someone is legally a man but has the body of a woman, or vice versa. It may be a small and far-fetched case, but we are entitled to know what would happen for the sake of good order and for another reason as well: the purpose of the Bill is to give transsexual people some rights that are overdue and should rightly be given to them. If the Minister does not deal with the issue that I am raising, there will be resentment and a public backlash that will undo the very work that he is trying to do. He has said time and again that we cannot legislate for other people's concerns on these matters. I am not entirely sure that that is right. It is the function of a Parliament that is considering such matters in the round to ensure that there are reserve powers—I emphasise the word "reserve"—so that public resentment does not build up and undermine the support for the very group that the Bill seeks to help.

Lynne Jones (Labour, Birmingham, Selly Oak)

Does the hon. Gentleman seriously think that a trans-man who has not undergone phalloplasty would go into a male changing room, for example, with a football team and expose himself? That is highly unlikely. I can confirm that there are open women's changing rooms. I went into one just over the road this morning. Quite frankly, the idea that a male-to-female trans-person would be granted a recognition certificate if they did not undergo a penectomy is, again, unthinkable.

Andrew Selous (Conservative, South West Bedfordshire)

If the hon. Lady is fair, she will acknowledge that I said that, hopefully, the circumstances to which my new clause relates would never arise. However, we would be negligent in our duty as legislators if we did not get some guidance from the Minister on what would happen if they did. Perhaps the hon. Lady is not aware that, in the south Wales case, Diane Parry had a full beard at the time when he wanted to join in the ladies' activities. Thus the scenario that I am describing is not wholly far-fetched.

Lynne Jones (Labour, Birmingham, Selly Oak)

To be candid, if the hon. Gentleman is suggesting that someone who sports a full beard would have their application for a gender recognition certificate granted, I wonder what world he is living in.

Andrew Selous (Conservative, South West Bedfordshire)

The hon. Lady attacks me for raising the issue, but on several occasions over the years the House has not foreseen potential developments. I fully accept that the vast majority of transsexual people will not want to go down that route, but there is always the litigious minority to deal with. I am keen to avoid public resentment and concern.

David Lammy (Labour, Tottenham)

The hon. Gentleman keeps talking about a litigious minority. I remind him that there are more than 60 million people in this country and only about 5,000 transsexuals, and the Bill contains a number of hurdles. For example, the person concerned must have had gender dysphoria, and as my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) explained, persons with that condition do not want to be exposed in public in that way. Surely, therefore, the hon. Gentleman's preoccupation with the minority becomes redundant. Has he not argued himself out of the position from which he started?

Andrew Selous (Conservative, South West Bedfordshire)

No, I do not think that I have. Who would have thought that the Churches would be dragged through the courts by people from a very small minority of 5,000 people in a country of 60 million? Yet that has already happened, and other legal cases are in the system. I want the Minister to take the matter seriously. What will happen to a sports club in the scenario that I have described? Is there any protection in the Bill?

David Lammy (Labour, Tottenham)

Let me begin with the remark made by the hon. Member for Daventry (Mr. Boswell). The International Olympic Committee announced on Monday last week its policy on the participation of transsexual sportspeople. The policy will apply in the forthcoming Olympic games in Athens. In brief, it allows transsexual sportspeople to compete in their acquired gender, but only if they have legal recognition in the acquired gender and have undergone surgical and hormonal treatment such as to minimise any gender-related advantage. The hon. Gentleman said that we have been waiting a little while for that announcement, but he will understand that, as a consequence of it, new clause 3 is not necessary—although I am grateful for the manner in which he proposed it, as if to move things along. Indeed, the new clause acknowledges that any policy announced by the IOC should supersede any suggestion that it contains.

The Government agree that it is for the IOC to decide the terms on which transsexual sportspeople may compete in the Olympic games. Clause 19 provides UK sporting bodies, including the British Olympic Association, with the scope to restrict the participation of transsexual sports people where that is necessary to maintain competitive parity or for the safety of other competitors. The IOC has been guided by similar considerations, and we believe that the clause provides UK sporting bodies with sufficient scope to use the IOC guidelines.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister for updating me. I cannot claim responsibility for single-handedly getting the IOC to get its act together, but could he or the Under-Secretary confirm whether there is any possibility, given that transgender people, in addition to the remedial medication to which he referred, typically have to continue with other medication indefinitely, will fall foul of anti-doping codes? Will medication that they are required to take, whether medically or legally, lead to such problems?

David Lammy (Labour, Tottenham)

The IOC prescribes a two-year period for hormonal treatment and so on. The hon. Gentleman has asked an important question to which I do not have an answer off the top of my head, but I shall be happy to deal with it later.

Although the IOC acknowledges that hormonal and other treatments used by transsexual people typically eliminate any competitive advantage that male-to-female transsexual people may have over other women, there may be cases where competitive parity or the safety of other competitors are valid concerns, and the IOC recognises that, as does clause 19. We shall issue guidance to sporting bodies in advance of the implementation of the Bill setting out the legal position and the scope that remains, quite properly, for sporting bodies to make decisions that reflect the needs of their particular sport.

Lynne Jones (Labour, Birmingham, Selly Oak)

I am interested that my hon. Friend said that safety grounds might prevent a trans-competitor from competing. Sports bodies already have the power to exclude someone if safety is a factor, and in Committee I queried the need for clause 19. I am pleased to learn that the IOC has made it clear in its ruling that claims, pursued in the House of Lords, that the Bill

"has put the entire future of competitive sport in jeopardy"

are entirely bogus. The IOC's sensible proposal negates the need for clause 19.

David Lammy (Labour, Tottenham)

I am grateful to my hon. Friend for putting her views on the record. There were arguments circulating in another place that were deeply unhelpful, but clause 19 makes the position clear. My hon. Friend will accept that there are many sports in which these issues simply do not arise, but there are other contact sports such as rugby and basketball where safety considerations might be pertinent. By definition, the individuals playing those sports come into contact with others, so although the parity test remains, the safety requirement needs to be taken into consideration as well.

In an intervention, I made clear the Government's position on new clause 6, which raises an issue that, even though we had only three minutes to deal with it in Committee, was, I believe, dealt with satisfactorily. Its implication is, unfortunately, that transsexual people are more likely to expose themselves or seek to cause offence than other people who use communal changing or washing facilities.

Richard Younger-Ross (Liberal Democrat, Teignbridge)

Is not the logic of the new clause on changing facilities that there should be separate changing cubicles in shops, not communal changing areas? Equally, changing rooms at swimming pools would have to have a door saying "Transgender person".

David Lammy (Labour, Tottenham)

I am grateful for that intervention from the hon. Gentleman, who has drawn the natural conclusion from the debate. Frankly, new clause 6 would warrant the exclusion of transsexual people from changing and washing facilities, and the creation of separate facilities for their use.

Andrew Selous (Conservative, South West Bedfordshire)

If the Minister is fair, he will acknowledge that at the start of my remarks about new clause 6, I said that I hope, expect and believe that the vast majority of transsexual people—if not all of them—will use the facilities appropriate to their acquired gender. I am discussing a reserve power to cover serious difficulties, and we all accept that such circumstances are a remote possibility.

David Lammy (Labour, Tottenham)

The hon. Gentleman may well approach the issue on the basis of separate-but-equal treatment, but the Government entirely reject the implication of the new clause that transsexuals might set out to cause offence to others. That is not the Government's experience, and we therefore reject the new clause.

The Government also believe that separate facilities for minority groups are objectionable, and we urge the House to reject the proposal. For obvious reasons, many hon. Members fought to ensure that separate signs for minorities became a thing of the past in South Africa, and we did not engage in that fight in order to set up such prejudice over here.

Tim Boswell (Conservative, Daventry)

In view of the Minister's assurances, particularly in relation to new clause 3, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 4 — Marriage between transgendered persons

Tim Boswell (Conservative, Daventry)

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

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss new clause 7—Successful applications: married couples—

'If an interim gender recognition certificate has been issued to a person under section 4(3) an application may be made to the Secretary of State to award a full gender recognition certificate without the provisions of Schedule 2 or section 5 having effect if—

(a) neither party to the marriage wish the marriage to be dissolved or annulled,

(b) both parties to the marriage can show they intend to continue living together, and

(c) the marriage took place before the date of Royal Assent of this Act.'.

Tim Boswell (Conservative, Daventry)

New clause 4 is tabled in my name and, I am pleased to say, that of the hon. Member for Birmingham, Selly Oak (Lynne Jones), who played a big part in the constructive discussions in Committee. I have remarked before—and I do so again—that the Bill brings together a remarkable range of issues. New clause 3 concerned the Olympics; new clause 4 concerns an entirely different and rather small problem. The problem has wider implications, however, and I shall discuss them and new clause 7, which my hon. Friend the Member for Sutton Coldfield (Mr. Mitchell) tabled, in a moment.

Hon. Members on both sides of the House share a strong wish to underpin the importance of marriage, and above all not to force persons lightly or wilfully to annul their marriages, unless it is strictly necessary. New clauses 4 and 7 have slightly different effects, but they are both designed to underline that principle.

New clause 4 would have a small numerical effect, but—this point was made in earlier debates—the principle is important for those concerned. New clause 4 relates to a limited number of real world cases, although it might apply in future. The Minister will be familiar with the arguments because, although we motored through the Bill in Committee, we discussed this point.

First and foremost, the matter concerns an issue of principle, which is to try to support marriage wherever it subsists and is seen to do so. We envisage a situation in which two persons marry as man and woman—whether they knew about these issues when they contemplated marriage is not my concern—and then both decide that they need gender reassignment, so they apply for gender recognition certificates. They both receive interim certificates, but are unable to convert them into full gender recognition certificates to give them legal effect unless and until they annul their marriage. Because they were married and wish to continue to be married—albeit with different genders—I cannot see any reason in principle why we cannot cater for that situation.

In Committee, I tweaked the Minister by saying that I thought that might be one of those issues that was invented here, or words to that effect. He made the valid point that concerns arose about mucking about—my phrase, not his—with the marriage certificate. I then tabled a new clause that made provision for rewriting the marriage certificate. The new procedure proposed in new clause 4 strikes down that objection by suggesting that both persons could apply to the gender recognition panel for full certificates at the same time as the issuing of a statement confirming the continuation of their marriage. That would be a more elegant and simple solution.

That deals with the technical argument, but the Minister will realise that there are wider concerns of a prudential nature in relation to inherited rights. In Committee he made the slightly surprising assertion, which I have checked again in the Official Report, that discontinuation of the marriage for 24 hours—its extinguishing and almost immediate reintroduction—would not invalidate any inherited rights. The only comparison that I can suggest is that of the late King Baudouin of Belgium, who stood down for 24 hours because of some legislation that he found objectionable and was then reinstated. I do not know whether that is treated as one reign or two in Belgian law, but that need not concern the House. In the context of British law, would the courts recognise the continuation of all the rights and duties in what is effectively a continuing relationship?

My new clause is based on the important point that persons should not be required to divorce or annul their marriage unless it is absolutely essential that they do so. That brings me to the new clause tabled by my hon. Friend the Member for Sutton Coldfield. He has been persuasive in arguing his case with me, but he needs to do so before the House, and I will consider what to do in the light of that.

Eric Forth (Conservative, Bromley and Chislehurst)

I wonder whether my hon. Friend the Member for Daventry (Mr. Boswell) can help me through this, as I was not a member of the Committee. Do I understand him to say that the effect of his new clause would be that two people who were of different genders, and would now again be of different genders albeit reversed, could continue to be married; but that the effect of new clause 7, tabled by my hon. Friend the Member for Sutton Coldfield (Mr. Mitchell), would be that two people of different genders who had been married—

Andrew Mitchell (Conservative, Sutton Coldfield)

Are married.

Eric Forth (Conservative, Bromley and Chislehurst)

I thank my hon. Friend for his correction. Would the effect be that two such people could now continue to be married when of the same gender? If so, the two new clauses would have quite different effects, because my hon. Friend the Member for Daventry wants to maintain different-sex marriage, whereas my hon. Friend the Member for Sutton Coldfield appears on the face of it to want to allow the sanctification of same-sex marriage.

Tim Boswell (Conservative, Daventry)

As I understand it, my right hon. Friend has it exactly and puts it very clearly to the House. My difficulty with my hon. Friend's new clause is that it would arguably validate same-sex marriages. We could have a debate about same-sex marriages, although the House is perhaps not ready to do so. The Minister and other hon. Members will know that that matter is highly controversial, even in the United States—in one state, in particular. We could not fruitfully discuss it now, not least because Ministers have consistently said that they are against same-sex marriages and seek to underpin different-sex marriages.

My hon. Friend's new clause would facilitate the continuation of marriage in several situations about which he feels strongly because they may involve the maintenance of pension entitlement and so forth. We rehearsed that at length in Committee and to some extent this afternoon. However, his proposal could in effect lead to marriage between persons of the same gender. I would warm towards it more if we had tried to confine it to validating—retrospectively, if we wish—grandfather rights or grandmother rights to persons who are already married, on the grounds that there is no reason to break up such relationships. Like other hon. Members, I know serious people of repute who are in a continuing relationship, which is currently marriage but will not be.

However, in trying to limit the effect of new clause 7, my hon. Friend the Member for Sutton Coldfield has weakened the validity of his argument. There will be persons unknown to the House who will marry in future in a specific gender, subsequently wish to undergo gender reassignment and perhaps wish their relationship to continue. Under the new clause, they would be precluded from doing so because they were not married before the Bill was passed. That is invidious and shows the weakness of principle behind my hon. Friend's point.

I readily concede to my hon. Friend and others who have put their names to new clause 7 the strong practical argument about the need to encourage continuing relationships and to protect the financial and other positions of vulnerable people if they choose to change the nature of their relationships. That is perfectly understandable and should not be sacrificed to a wider principle about preserving marriage between different genders.

However, I understand that the sensitivity of my hon. Friend's points, which are set out in the new clause and were mentioned in Committee, will be easier to bear because of the Civil Partnerships Bill. I outlined in Committee my impatience for that measure, which has now appeared. I also expressed my support for that measure in principle because we should persist with the doctrine that marriage should be between people of different and legally recognised genders but, if persons of the same gender wish to have a continuing, genuine relationship through civil partnership, we should also facilitate that. We say yes to relationships but no to marriage between persons of the same gender. In that spirit, I express advance reservations about new clause 7 but commend new clause 4 to the House.

Andrew Mitchell (Conservative, Sutton Coldfield)

I rise to support new clause 7. I am conscious that my hon. Friend the Member for Daventry (Mr. Boswell), speaking from the Front Bench, has hopped from foot to foot about the provision and I understand the reasons for that. Most of us who have considered the issue carefully will have been caught on the horns of the dilemma that he outlined so eloquently.

I did not serve on the Committee, although I have read the proceedings. Clearly, there was considerable support for the principles behind new clause 7. I bring no expertise to the issue of gender dysphoria—we are considering complex and deep matters—but, like several hon. Members, I have two constituents who are caught in the situation that new clause 7 tries to tackle. My experience of them rather than any expertise in the psychology or medicine of gender dysphoria has led me to table the new clause. I have their permission to discuss their circumstances in the House today.

My constituents, Joy and Christine Timbrell, have been married for some 30 years. They are devout Christians who have two grown-up children and many grandchildren. Under the Bill, either they will be obliged to divorce, which neither wishes to do, or Christine will remain wrongly gendered and unable to have the certificate to which the Bill refers and all that that implies. Against their will, their marriage will be "put asunder". That is wrong and an injustice to my constituents. I have therefore tabled new clause 7 in the hope that it can rectify a wrong. I greatly regret that the Government have decided to whip the Bill and this particular new clause. I believe that there would have been considerable support for my proposal across the House, and my decision whether to press it to a vote will depend in part on what the Minister says in his response and what the feeling in the House is at that point.

I took my two constituents to meet the Minister in the Lords with responsibility for the Bill, Lord Filkin. He was courteous and offered tea, biscuits and sympathy to my constituents. He was clear, however, in his total refusal to consider any change. I had gone along to listen to the arguments and to see what I thought, on behalf of my constituents, and it was clear that the Government were terrified by the opening of the door, as they see it, to same-sex marriages. The Minister's response, though courteous, was extraordinarily unimaginative, given that the Government have shown themselves willing to look at these issues. What I did not receive from the Minister was justice for my constituents.

David Lammy (Labour, Tottenham)

The hon. Gentleman has not said whether that meeting took place before or after the introduction of the Civil Partnership Bill, which many people consider to be very imaginative and timely legislation.

Andrew Mitchell (Conservative, Sutton Coldfield)

The Minister makes a fair point, but neither I nor my constituents believe that that Bill will make any difference in this case. Nor do I believe that it will make any difference to the force of the arguments in support of my new clause.

I wish to make five points. First, I sincerely believe that my new clause is not about same-sex marriage. Each marriage covered by the provision will have been contracted by two people of the opposite sex. The measure would not pave the way for a marriage to be solemnised between two people of the same gender. It would allow only for a marriage solemnised between a male and a female to continue if, at a later stage, a spouse sought to have a new gender recognised. People who enter into a valid marriage contract in good faith should not have to divorce in order to have their new gender recognised and endorsed.

Secondly, when a couple wish to separate that is a different matter, as my amendment recognises. When they do not, the innocent party—that might be someone who is deeply religious, as in the case of my constituents—is effectively being forced to separate by the Bill. The innocent party in the case that I have described has rights too, and the House should be sensible of them.

My third argument is that I have further limited my new clause to cover only those married at the time of Royal Assent. Some argue that it should go further, but I am seeking to define it very narrowly, so that only those who are caught in this position and who are married today would be affected. It is difficult to know how many people would be affected, because people often keep very quiet in such circumstances. Perhaps 30 couples would be affected, and I urge the House to bear that in mind when considering the new clause.

Andrew Robathan (Conservative, Blaby)

I thank my hon. Friend for giving way, and I apologise for not being here for the beginning of his speech, but I did watch it on the monitor. He is making some extremely good points. I was prompted to come down because I want to ask him whether he agrees that he is illustrating that the details of the Bill have just not been thought through.

Andrew Mitchell (Conservative, Sutton Coldfield)

If my hon. Friend will forgive me, I do not wish to be drawn on the wider issues. I wish to focus on my new clause, which I hope will commend itself to him.

My fourth argument is that the new clause could well save the Government from falling foul of human rights legislation. As my hon. Friend the Member for Daventry pointed out in Committee, couples forced to divorce may well have a case under the Human Rights Act 1998. The Joint Committee on Human Rights urged the Government to

"reconsider the requirement for a party to a subsisting marriage to end the marriage before obtaining a full gender recognition certificate".

The Bill places some people in the truly dreadful position of having to choose between their marriage—their relationship with their family, their children, and their grandchildren—and their right to have their new gender recognised. Different sets of rights are being traded off against each other. I urge the House to bear in mind the position of the wider family in the circumstances, for example, of my constituents, which I described earlier.

Fifthly, I return to the terms of the marriage contract. These couples married according to the laws of the United Kingdom as they then stood. There were certain grounds for annulment and certain grounds for divorce. The state could sanction divorce where love had broken down, or annul where there was no intention of lifelong commitment. Where those characteristics of marriage remain—that is, love and lifelong commitment—it is wrong for a law that is effectively retrospective to introduce new grounds upon which the marriage may be dissolved.

David Lammy (Labour, Tottenham)

The hon. Gentleman rightly cites love and commitment as fundamental to marriage, but does he recognise that many people watching and listening to the debate believe that marriage is also a union between a man and a woman? Should one partner who is gender dysphoric change gender, the marriage is in a different situation.

Andrew Mitchell (Conservative, Sutton Coldfield)

With the greatest respect, I sincerely believe the Minister is completely wrong. We are not talking about a new marriage contracted between people of the same sex; we are talking about a marriage originally contracted between a man and a woman, for better and for worse. The fact that the change has taken place does not annul or destroy the terms upon which the marriage was contracted.

The rest of the debate is in Hansard.