Commons Sitting of 25 May 2004

Preamble
The House met at half-past Eleven o'clock
PRAYERS
[MR. SPEAKER in the Chair]
Oral Answers to Questions
  SCOTLAND
  The Secretary of State was asked—
  SCOTLAND

    Civil Service
    Mr. Brian H. Donohoe: What representations he has made to other Government Departments on securing the movement of public sector jobs to Scotland following the publication of the Lyons review. [174424]
    The Secretary of State for Scotland (Mr. Alistair Darling): I have made clear to other Departments the advantages that Scotland offers as a location for public sector employers and have encouraged them to consider Scotland when they review their relocation plans.
    Mr. Donohoe: I thank my right hon. Friend for that answer. He will know that on 2 December I asked the same question—and got the same answer, as it happens. [HON. MEMBERS: "Consistency"] Indeed. On the basis of the time scale between then and now, I have done some analysis of the current situation and I have found that there are almost 11,000 civil service jobs in Edinburgh, and almost 9,000 in Glasgow. In north Ayrshire as a whole, there are under 900—indeed, there are 805. To make the Lyons report achievable, bearing in mind unemployment in north Ayrshire as compared with unemployment in the rest of Scotland, will he give me two things: first, will he make representations to the Treasury; and secondly, will he meet me—
    Mr. Speaker: Order. The hon. Gentleman should try to secure an Adjournment debate.
    Mr. Darling: I was just settling down to listen to my hon. Friend's speech, Mr. Speaker. I am grateful to him for his first point—I like to think that my answers are consistent. Since he East asked his question, the Chancellor has announced the findings of the Lyons review, and my hon. Friend is right that we need to ensure that jobs are decentralised throughout Scotland. Historically, Edinburgh and Glasgow have had a high level of civil service jobs, but there is no reason why jobs cannot go elsewhere. For example, when I was Secretary of State for Work and Pensions, one of the new pension
    1422
    centres was set up in Motherwell—I know that it is not in Ayrshire—with the creation of 300 jobs. That is the sort of thing that I would like to encourage.
    Mr. Calum MacDonald: My right hon. Friend was involved in the relocation of 70 jobs in the Department for Work and Pensions to Stornoway. Does he agree that that is a good example of the kind of relocation that is possible? Does he also agree that it illustrates that even the remoter rural areas can benefit from the job relocation process, and that they can provide an outstanding service to those Departments that relocate there?
    Mr. Darling: My hon. Friend is right. Stornoway is an example of a place where an extremely efficient former social security office is now doing work for the whole United Kingdom. Some 15,000 employees of the Department for Work and Pensions are based in Scotland and many of them are doing work for the whole United Kingdom, which shows why Scotland's membership of the United Kingdom is so important—[Laughter.] Scottish National party Members laugh at that, but their whole reason for existence is to break up the United Kingdom. Were Scotland to separate from England, it would not just be the 15,000 people employed by the Department for Work and Pensions whose jobs would be at risk, but those of the 7,000 people working in the Ministry of Defence and of the 8,500 people working for the Inland Revenue.
    Tony Worthington: Over the next few years, the flagship project for Scotland, through Scottish Enterprise, must be the Clyde corridor project, of which Clydebank is an integral part. Great benefit could be brought to that area through the major stimulus that would come from a public sector employer investing there. I hope that the Secretary of State will sit down with the Chancellor and other important UK figures to ensure that that investment is made on a strategic basis, in which case there can be no other choice but Clydebank.
    Mr. Darling: I am aware of the plans, which are already well advanced, to develop the waterfront right along the Clyde. Once they are fulfilled, they will not only transform people's impression of Glasgow but generate real jobs. I also agree with my hon. Friend about both the public and private sectors working together. That is the sort of thing that both the Government and the Scottish Executive want to encourage. That development has the potential to transform Glasgow and confirm its position as one of Britain's premier cities.

    Postal Services
    Miss Anne Begg: What discussions he has had with the Royal Mail about post office branch closures in Scotland. [174425]
    The Parliamentary Under-Secretary of State for Scotland (Mrs. Anne McGuire): The Scotland Office is in regular contact with Royal Mail and other key stakeholders involved in the delivery of postal services in Scotland. Such contacts are at both official and ministerial levels.
    Miss Begg: I wonder whether the Minister is aware that in Aberdeen 14 post offices have been earmarked for closure—a quarter of the total number in the city. Some serious questions need to be asked about the accuracy of the information that has been presented to justify those closures. Will my hon. Friend take this opportunity to encourage Post Office Ltd. to reconsider when it is presented with evidence that shows that in some cases those branches are viable and someone is willing to take over their running?
    Mrs. McGuire: I know that my hon. Friend has welcomed Government support for both rural and urban post offices. Obviously there is a particular issue in Aberdeen, of which I am aware. I congratulate my hon. Friend and other Aberdeen Members who have alerted Post Office Ltd. to some of the difficulties that may be experienced in their communities. That is one of the reasons why the consultation period is so important: it allows communities, along with Postcomm and Postwatch, to examine ways of allowing the spread of post offices to continue after the end of the reinvention programme.
    John Thurso: Is the Minister aware that as a result of automated credit transfer, 47 per cent. of Scots no longer claim benefit through the post office? Last year 89 post offices closed, 305 per cent. more than during the previous year. It has been estimated that when the rural fund runs out in 2006, as many as 1,000 post offices will be at risk. Given that Government policy caused this calamity, what will the Government do to prevent that from happening?
    Mrs. McGuire: I am astonished that the hon. Gentleman should seek to impose on individuals the way in which they collect their benefit. What we have offered people is a choice, and in fact 42 per cent. of new benefit claimants are asking for their benefit to be paid through the new card system of direct payment. Moreover, there has been a massive investment in rural as well as urban post offices. We must ensure that following the investment programme, post offices offer people the services that they want. I can tell the hon. Gentleman that closing his eyes to the difficulty will not solve the problem.
    Dr. Gavin Strang: I accept that there should be a choice, but will my hon. Friend acknowledge that automated credit transfer is a major factor in the post office closures? That means that a disproportionate number of urban closures are likely in areas of social deprivation, where a large proportion of people receive benefit. Will my hon. Friend have a word with the Secretary of State for Trade and Industry, and suggest that rather more money should be spent on modernising and refurbishing the remaining post offices and rather less should be spent on the lump-sum payments that are encouraging some postmasters to give up?
    Mrs. McGuire: I understand some of my right hon. Friend's comments. The Scottish Executive have also worked with the Post Office to ensure that money is invested in post offices in disadvantaged areas, as part of
    1424
    the social inclusion policy. With respect to my right hon. Friend, however, let me say that we must also deal with the reality, which is that many people are choosing to have their benefits paid through a direct system. At the end of April this year, nearly 3 million people had made that choice.
    We are having to deal with the reality. We need to ensure that both urban and rural post offices are brighter and better, and deliver the services that people in communities want.
    Mr. Michael Weir: Constituents of mine who have written to the Post Office about closures have received a letter saying, among other waffle,

    "We are reviewing our network as a whole, so that we can move away from ad hoc closures which result in large gaps within our network and in turn implement an organised restructuring programme."

    Can the Minister tell us what strategic organisation there is in a system that appears to consist of the Post Office going to postmasters and saying "We have a tub of public money with which to close post offices. Which of you wants to go?"?
    Mrs. McGuire: What the Post Office is doing, with the support of Government investment and backing from the Scottish Executive, is maintaining a network of post offices throughout our urban and rural communities. I am very disappointed that Members are not willing to face the reality. We saw wholesale post office closures across the network under the last Government; what we have sought to do—[Interruption.]
    Mr. Speaker: Order. When a question has been asked, Members should not shout back at the Minister. I may well not call the hon. Member for Angus (Mr. Weir) for some time if he continues to do that.
    Mrs. McGuire: Thank you, Mr. Speaker.
    What we seek to do with that investment is ensure that we have good post offices in communities, and that they are well developed. Hon. Members should start looking at what is developing, rather than demonstrating shorttermism that smacks of political opportunism.

    Manufacturing
    Jim Sheridan: What steps he is taking to promote manufacturing in Scotland. [174427]
    The Secretary of State for Scotland (Mr. Alistair Darling): The Scotland Office will continue to work with the Scottish Executive and a wide range of manufacturing interests on initiatives such as the Scottish manufacturing steering group.
    Jim Sheridan: I thank my right hon. Friend for that response. Does he agree with me, and with the Scottish trade union movement, that if Scottish manufacturing is to stay ahead of the field we need further investment in not only research and development but employee training? Will he use his good offices to ensure that the

    1425
    private sector companies that come to Scotland are encouraged to use all the excellent teaching facilities that we have in Scotland?
    Mr. Darling: My hon. Friend is quite right. There are many parts of Scotland now where unemployment has fallen so much that there are concerns about getting the right number of skilled people to go and work. Yesterday I was in Dumfries and Galloway, and the Conservative spokesman for Scotland, the hon. Member for Galloway and Upper Nithsdale (Mr. Duncan), might like to know that unemployment has fallen by 50 per cent. in his constituency since the general election—although he was saying the other day that the Government have not made a difference. My hon. Friend the Member for West Renfrewshire (Jim Sheridan) is quite right, and there are good examples in his constituency of private sector companies working in close collaboration with higher education institutions. We want to encourage that, because it is absolutely essential.
    Mr. Peter Duncan: How content is the Secretary of State with the fact that manufacturing and other businesses in Scotland pay business rates some 7 per cent. higher than businesses in England and Wales? Speaking hypothetically, and saying that he was to be the next Chancellor of the Exchequer, what more does he think could be done to help businesses to grow by reducing business burdens?
    Mr. Darling: The policy for rates rests with the Scottish Executive, who have put in place a number of measures to reduce the rates burden that Scottish businesses face. The hon. Gentleman is quite right to say that we need to look all the time at whether we can improve the situation and reduce burdens. The Government are committed to that, but one of the best things that we have done for Scottish business is to create a strong, stable economy with low interest rates. The result is low unemployment and lower debts, and we do not have the problems that the previous Conservative Government encountered.
    We also need to ensure that we create the right sort of environment in which businesses can thrive. It is interesting that more and more of the recent studies that have been published—although it is true that they do not all paint the same picture—contain a sense of optimism that Scottish business has good prospects under this Government and under the Scottish Executive.
    Mr. Duncan: But the Secretary of State has missed one simple policy that could be delivered from right here at Westminster. Has he not heard the voices from across the manufacturing sector that point out the crippling effect that high fuel prices are having on competitiveness, and the resulting disincentive for operations in Scotland, where distances from the factory gate to the customer are often at their greatest? His right hon. Friend the Prime Minister entirely ducked that question last week. Will the Secretary of State now join the chorus of voices calling for the deferring of the fuel tax increase planned for September?
    Mr. Darling: No. As the Prime Minister said here last week, the primary reason why fuel prices are going up is
    1426
    that the economies in China and America are growing, and people are restocking. That is why prices have gone up. If the hon. Gentleman does not believe me, why does he not have a word with the shadow Chancellor, who said almost exactly the same thing only a few days earlier? While he is speaking to the shadow Chancellor, the hon. Gentleman might want to have a further word with him because, at the weekend, the shadow Chancellor was revealed to be calling for even more massive cuts in public expenditure. They would amount to nearly half the Scottish Executive budget, which would have a profound adverse effect on the Scottish economy.
    Mr. Duncan: One day, just for once, the Scotland Office will stand up for Scottish interests instead of letting us down. Two months ago, at this Question Time, the Secretary of State told me that he was

    "in the very happy position of always being in"—[Official Report, 16 March 2004; Vol. 419, c. 141.]

    favour of "whatever the Government" want to do. When will he make a stand on behalf of the Scottish manufacturing industry? Is it not time for him to meet the current Chancellor, in Loch Fyne or elsewhere, to demand that he reverse the fuel tax increase planned for September? When will he put Scotland's interests first, instead of the Labour party's?
    Mr. Darling: The hon. Gentleman is not very good, is he? I suggest that he reflect on this simple fact: since 1997, unemployment in his constituency has fallen by 50 per cent. Why is that? It is because the economy has been growing year on year. That is why more people are in work. This Government, during the past few years, have introduced a range of measures that are helping Scottish business. As I have said to the hon. Gentleman, our biggest single achievement has been to create an economy, and the right environment, in which small businesses can grow. All that would be wrecked if the Tory party got back in, because of the policies that it is advocating—not just because it would slash public expenditure but because of the instability that would be created by the policies that the shadow Chancellor is promoting.
    Rachel Squire: Does my right hon. Friend agree that naval and maritime work at Rosyth dockyard, the Clyde yards and elsewhere in Scotland represents a core part of Scotland's manufacturing skills? Does he also agree that work on the current naval fleet and on the future aircraft carriers is vital in securing a future for Rosyth and elsewhere? Will he use his full persuasive powers to ensure that Rosyth and Scotland get a major share of naval work, and that the core base of manufacturing skills are kept in that area?
    Mr. Darling: My hon. Friend is right: defence work is very important not just to the general public sector jobs in Scotland to which I referred, but to construction. She will know that the Ministry of Defence is currently examining the way in which the contracts to build the two new aircraft carriers will be dealt with. Those discussions continue, but my hon. Friend can rest

    1427
    assured that we are very aware of the importance of those contracts—and, indeed, of others—not just to Rosyth but to the Scottish economy generally.
    Mr. Alex Salmond: On the subject of manufacturing jobs on the Clyde, has the Secretary of State seen the allegations of Mr. Martin Sixsmith, supported by evidence from GEC, to the effect that the Govan yard was saved in 1999 as a result of a deal through which the Government suspended their competition policy in return for favourable publicity in an election campaign? Now that the future of Govan to some extent—and Scotstoun to a great extent—is once again uncertain, will the Secretary of State give details of exactly what he is doing to secure those vital jobs, without the incentive of an election campaign in Scotland to concentrate his mind? And will he specifically confirm or deny—
    Mr. Speaker: Order. That question is far too long.
    Mr. Darling: Listening to the hon. Gentleman, one would almost think that he is sorry that jobs on the Clyde were saved. He might want to reflect on the fact that, if he were returned to power, there would be no Royal Navy, no orders for ships and no jobs on the Clyde. That would be the price of the Scottish National party.

    BP
    Mr. Michael Connarty: What meetings he has attended to discuss the impact on Scotland of BP's decision to dispose of its olefins and derivatives business. [174428]
    The Parliamentary Under-Secretary of State for Scotland (Mrs. Anne McGuire): Scotland Office officials have kept in close contact with BP regarding the impact of their decision. My right hon. Friend and I have not taken part in any meetings.
    Mr. Connarty: I am very grateful to the Scotland Office for the interest that it has shown in the management of BP. However, a strategy group meets every Friday in the plant, consisting of full-time officials and workers' representatives from the Transport and General Workers Union, the engineering workers' union and the GMB. As my hon. Friend knows, that plant has suffered more than 1,000 job losses in the past couple of years. The strategy group believes that the productivity gains that were made and the synergies that were gained by losing those jobs are about to be thrown away, should the chemicals plant be split off from the rest of the complex. Will the Secretary of State meet the trade union representatives to hear their business case for keeping the olefins plant as part of the entire complex, and run by BP workers for the benefit of the Scottish economy? Indeed, that could even be to the benefit of the new company that might be floated off in future.
    Mrs. McGuire: My hon. Friend is a great advocate of the petrochemical industry not only in his own constituency but across the United Kingdom, and I welcome his comments. He will of course appreciate
    1428
    that ultimately, this is a commercial decision by the company, but either my right hon. Friend the Secretary of State or I would be delighted to meet him and a delegation of trade union leaders to hear their business case, which could be an alternative to the case made by BP.

    Scottish Parliament
    Pete Wishart: When he last met the First Minister to discuss extending the power of the Scottish Parliament. [174430]
    The Secretary of State for Scotland (Mr. Alistair Darling): I am in regular contact with the First Minister, but I have not discussed extending the powers of the Scottish Parliament with him.
    Pete Wishart: I thank the Secretary of State for that very illuminating answer. The First Minister has identified Scotland's population problems as perhaps the biggest issue facing Scotland in the short to medium term, yet we remain hampered by a UK immigration policy that actively discourages people from coming here—people whom we desperately require. The First Minister's response to the situation was the announcement of his student visa scheme, which he said was a Scottish solution to a Scottish problem, but far from being a trailblazing scheme, it is a regional pilot for a general UK-wide policy. When are the Secretary of State and the First Minister going to cut through this inept Edinburgh spin and get real with this issue, and does the Secretary of State really believe that Scotland's immigration issues are best served by the current UK immigration policy?
    Mr. Darling: What a load of nonsense. The First Minister has rightly identified the fact that the declining population in Scotland is a problem: it is a problem now, and it will be in the future. [HON. MEMBERS: "Why?"] "Why?" they say—simply because if we have an ageing population and a declining population, the costs increase. It is incredible that Opposition Members do not understand fundamental points like that. As I said, the First Minister has correctly identified the problem and the fresh talent initiative that he announced is designed to encourage people of talent to come to Scotland and to stay in Scotland. That should be supported and encouraged, and we certainly do so.

  ADVOCATE-GENERAL FOR SCOTLAND
  The Advocate-General was asked—
  ADVOCATE-GENERAL FOR SCOTLAND

    Devolution
    Miss Anne McIntosh: What devolution issues she has considered since 27 April. [174440]
    Annabelle Ewing: What devolution issues have been raised since 27 April. [174441]
    Mr. Alan Reid: What devolution issues have been raised with her since 27 April. [174442]
    The Advocate-General for Scotland (Dr. Lynda Clark): Since 27 April, there have been 37 devolution issues intimated to me. Twenty-four of those related to criminal matters, including pre-trial delay, self-incrimination under the Road Traffic Act 1988, regulatory fisheries offences and the use of sexual history evidence in trials. In the civil sphere, 13 devolution issues were intimated concerning sequestration, appeals to the parking appeals service and a planning decision, with the remainder relating to prison conditions.
    Miss McIntosh: I am most grateful for that reply. Has the Advocate-General been asked to give her opinion on devolved and reserved matters under the Energy Bill, particularly those matters to be decided jointly between the Secretary of State for Scotland and the Secretary of State for Trade and Industry? In those circumstances, who will have the last word, and will those decisions be justiciable?
    The Advocate-General: Obviously, I am not able to advise on what opinions I gave or what I advised. As to the general statutory structure, the hon. Lady is aware that both devolved and reserved matters are covered. Each decision will have to be determined on the basis of the particular circumstances, bearing in mind the specific statutory structures.
    Annabelle Ewing: As Scotland's senior Law Officer at Westminster, what representations does the Advocate-General plan to make to the UK Home Secretary further to the calls last week by the church and nation committee of the General Assembly of the Church of Scotland to close the family unit at Dungavel?
    The Advocate-General: As the hon. Lady recognises, what happens at Dungavel is a reserved matter and the policy issues are not for me to deal with, but for the responsible Ministers at the Home Office. Home Office Ministers are aware of the General Assembly's criticisms and will doubtless take them into account.
    Mr. Alan Reid: Because of the Financial Services Act 1986, post office staff are told that they must not advise pensioners whether or not to take up a Post Office card account. However, the Government's own customer conversion centres show no such restraint as they bully and badger pensioners into taking their custom away from the Post Office. Will the Advocate-General look into the script used by the customer conversion centres to check whether they are acting legally under the terms of that Act?
    The Advocate-General: I am more than happy to look into that specific issue. In general terms, however, the hon. Gentleman will be aware that it is not appropriate to give individual members of the public financial advice. That is not a matter for counter staff, but they can advise on how, procedurally, various accounts can be opened.
    Ann McKechin: My hon. and learned Friend will be aware that I raised concerns with her last month about the decision taken on the practice of slopping out in Scottish prisons. I understand that the particular case to which I referred is
    1430
    now the subject of an appeal. Can she confirm whether there are any other such cases pending in Scotland? Does she share my concern that, now that the practice has been abolished in prisons in England, all parties should work to eradicate this inhumane practice at the earliest opportunity in Scotland?
    The Advocate-General: My hon. Friend is correct in saying that those representing the Scottish Executive have appealed the Napier case. I can also confirm that a number of new cases have been intimated to me as devolution issues. So far, they are small in number and will be dealt with in the usual way. I have not intervened in any of the new cases to date. On the general issue, my hon. Friend rightly recognised that the practice was abolished in England and the Scottish Executive have indicated that they are working towards reform in Scotland.

  SCOTLAND
  The Secretary of State was asked—
  SCOTLAND

    Postal Services
    Mr. Alan Reid: What recent discussions he has held with Royal Mail regarding postal services in Scotland. [174434]
    The Parliamentary Under-Secretary of State for Scotland (Mrs. Anne McGuire): I refer the hon. Gentleman to my answer of earlier today to my hon. Friend Member for Aberdeen, South (Miss Begg).
    Mr. Reid: I believe in freedom of choice, and consider that pensioners should have a fair choice between taking up a Post Office card account or opting for a bank account. However, the script from the customer conversion centre of the Department for Work and Pensions is very biased. For example, the first thing that a pensioner who telephones the centre hears is, "I know that you have asked for a Post Office card account, but…" Staff at the centre then badger and bully pensioners into moving away from using the card account. Will the Minister look at the script and revise it to make its advice fair and unbiased?
    Mrs. McGuire: I am assured by colleagues in the Department for Work and Pensions that the advice is neutral and unbiased. However, given the hon. Gentleman's comments, I will have further discussions with those colleagues to see whether the script needs to be refined.

  CONSTITUTIONAL AFFAIRS
  The Parliamentary Under-Secretary of State was asked—
  Dr. Doug Naysmith: Question 16, Mr. Speaker.[Interruption.]
  Mr. Speaker: Order. Hon. Members should know better than to walk in front of an hon. Gentleman.

  CONSTITUTIONAL AFFAIRS

    Community Legal Service Partnerships
    Dr. Naysmith: If he will make a statement on the performance of community legal service partnerships. [175296]
    The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): Community legal service partnerships have greatly improved the delivery of advice and guidance by co-ordinating the work of providers in response to locally identified need. The recently completed independent review of the community legal service enables us to build on that significant achievement by making recommendations for the future development of the partnership.
    Dr. Naysmith: I thank my hon. Friend for that interesting reply. My constituency is unusual in that it spans two local authority areas. The partnerships work well in one area, but have been disbanded in the other. The voluntary sector was keen in both areas. Senior officers and the private sector in one local authority are committed to the scheme, which makes it possible to identify resources, and that has been very useful. In the other area, however, there was a lack of involvement by senior officers, and private firms were only marginally involved. Can the Minister suggest ways to encourage local authorities and the private sector to get involved? Will he perhaps make some funds available to start the process when need is identified?
    Mr. Lammy: I know that my hon. Friend does excellent work with the advice sector in his community, but I remind him that we spend £900 million on civil legal aid in this country. Also, I refer him to the Matrix review, the first review of the CLSPs, which makes a number of recommendations. It welcomes the establishment of the CLSPs, but it also calls for the appointment of an executive director to give them greater coherence. Other recommendations are the adoption of a three-year strategy and a programme board. I am considering those recommendations, and will be happy to discuss the matter further with my hon. Friend.
    Mr. David Kidney: Does my hon. Friend the Minister accept that the first stage of the CLSPs has been a success, in that a full geographic coverage has been established, but that we must now make the second stage of the process a success? That is, we need to tie in more firmly all those partners that must co-operate. They include voluntary sector agencies, private legal service providers and, crucially, local government. What is being done to tie in local government and secure its commitment to the success of the CLSPs?
    Mr. Lammy: We now have 99 per cent. coverage across the country, which is a tremendous improvement on the situation of three years ago. At that time, people did not know where the resources were, it was not possible to refer people for advice, and there was no quality benchmarking process for the advice that people received. However, further progress remains to be made. We must ensure that there is greater coherence and definition, and that involves working more closely with local government.

    House of Lords Reform
    Mr. Andrew Turner: If he will make a statement on the Government's policy on the powers of the upper House. [175297]
    The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie): The Government remain committed to reforming the second Chamber, but to proceed in the present climate of determined opposition in the Lords would crowd out the current legislative programme. Nevertheless, the Government will return to the issue in our manifesto, and I hope that we will gain a consensus on reforms that would maintain the supremacy of the House of Commons and ensure a proper revising role for the second Chamber.
    Mr. Turner: I thank the Minister for that reply. Just as the design of a car differs from that of an aeroplane, because they have different functions to perform, should not the design of the House of Lords depend on the functions that the Government have in mind for it to perform?
    Mr. Leslie: Most hon. Members would agree with the notion that the House of Commons should be supreme in the final decision-making process and, therefore, that the powers of the House of Lords should follow that overriding principle. The Lords has a revising function, but any change to increase the legitimacy of the second Chamber would need to maintain the balance that we already have.
    David Winnick: If, as my hon. Friend says, the House of Lords is a revising Chamber, why should it have any powers of delay? If it is to have such powers, they should be for a maximum of three months. The present delaying period is far too long and gives too much power to the unelected second Chamber.
    Mr. Leslie: My hon. Friend clearly believes that the House of Commons should be supreme, as do I. It is important that the second Chamber can exercise revising functions, including asking the Commons to reconsider. However, that has to be a reasonable power, exercised in a reasonable manner.
    Mr. Jonathan Djanogly: Was not the replacement of the hereditary principle with the hybrid hereditary and crony principle only ever meant to be a short-term answer? The total failure of the Government's policy of Lords reform has destroyed the legitimacy of any plans that they may now have to vary the powers of the other place.
    Mr. Leslie: I welcome the hon. Gentleman to his new role on the Front Bench and congratulate him on his appointment. He raises the issue of the hereditary peerage. The Government still believe that we should get rid of the hereditary peerage, but unfortunately we met considerable opposition in the second Chamber that could have jeopardised the whole legislative programme, especially if Conservative and Liberal Members ganged up and blocked all the other good measures that we want to introduce. We will rightly

    1433
    return to the issue and ensure that we introduce reform that squares the supremacy of the Commons with extra legitimacy for the second Chamber.
    David Taylor: Is not evidence mounting daily that the transitional arrangements are becoming too permanent? There is little incentive for Government to reform an upper House to make it more effective. Does my hon. Friend the Minister believe that there is sufficient political will to achieve that reform, and will he consider deleting the present powers of the House of Lords to veto secondary legislation and, at the same time, Incorporating a power for it to veto or substantially delay constitutional reform?
    Mr. Leslie: There is certainly the political will on the Labour Benches to reform the second Chamber. It is possible to find a solution and reach a consensus on the issue. We have encountered opposition from the Conservatives and Liberals in the other place. We hope that they will start to act in a more grown-up and mature manner so that we can find a consensus on the issue. I live in hope.
    Mr. Paul Tyler: The Minister has just heard another complaint about the House of Lords being unelected. Do the Government now accept that it would be folly to tinker with the powers of the other place unless and until it is prepared to face up to the need to make it more democratic and representative and to tackle the issue of its composition?
    Mr. Leslie: The hon. Gentleman has a point to the extent that composition should be dealt with at the same time as the roles of both Chambers. It is important to maintain Commons supremacy, but a change in the legitimacy of the second Chamber may have a de facto impact on its role and functions. We will need to bear that in mind when we reach the final stage of reform, as I am confident we will.
    Sir Patrick Cormack: Is not the best way of securing the supremacy of this House to ensure that the other House is never either wholly or partly elected?
    Mr. Leslie: That may be one option, but other people may feel that the second Chamber needs to be more connected with the public at large, although not as supreme and as much of a final decision maker as the House of Commons. The hon. Gentleman has his views and other hon. Members have theirs; I think that it is possible to find a solution to the issue.

    Supreme Court
    Mr. Andrew Robathan: If he will make a statement on the potential for political interference in the (a)funding of and (b)appointment to the proposed supreme court. [175298]
    The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie): The Government's proposals are specifically designed to
    1434
    minimise any possibility of political interference in either the funding of the supreme court or appointments to the supreme court.
    Mr. Robathan: Has the Minister seen the comments made by Lord Hope of Craighead in his written evidence to the Lords Select Committee? He was particularly interested in funding and pointed out that the Law Lords' running costs are currently met by the parliamentary vote, over which the Treasury has no control, and that that insulates the Law Lords almost entirely from interference by the Executive. He said:

    "At present, the executive cannot lay a finger on the work that the law lords do. In an uncertain world, this is a vital guarantee of judicial independence where it matters most which our history has bequeathed to us, and I do not think that it should be given up."

    Those are the comments of a very senior former judge. Will the Minister comment on them?
    Mr. Leslie: I have seen those comments. Indeed, the Select Committee in the other place has been looking into many issues relating to how we might fund a supreme court in a way that preserves its independence. Yes, we want as much independence as we can possibly give, but we are talking about taxpayers' money and the House of Commons has to vote that money from our electorate, so at some level there must be a degree of accountability for the spending of taxpayers' money. That is not to say that we cannot find a way of having independence in the system, and I am sure that a solution can be found as the debate continues.
    Keith Vaz: Does the Minister not agree that, although there should be no political interference, there has to be political involvement in the whole process? That is the only way that we can achieve accountability to Parliament. Will he confirm that, in the ongoing discussions about the new supreme court, the higher judiciary are being kept informed of the Government's proposals? Far too often over the past few weeks, very senior judges have criticised the proposals, yet we know that there is an ongoing dialogue between the Lord Chancellor, other Ministers and the judiciary. Will the Minister confirm that they are all being kept fully informed and that they consent to the changes that are taking place?
    Mr. Leslie: My hon. Friend is right. We need to ensure that we have that dialogue and partnership with the judiciary in the reforms that go ahead. Of course, there will be differences of opinion, and different ideas and solutions will be suggested, but at the end of the day I hope that we can gain consensus and see the Constitutional Reform Bill approved by the other place and brought to this House as soon as possible.
    Mr. A. J. Beith: Does the Minister recognise that not only the funding but the staffing of the Appellate Committee of the House of Lords are entirely protected from the Executive, because the Committee is part of the House of Lords, and that it will be necessary to write into the Bill a much clearer arrangement to protect the funding from the Executive and to give the court designated officers who are not themselves part of the Executive?
    Mr. Leslie: The right hon. Gentleman is the Chairman of the Select Committee whose report we shall debate in more detail in Westminster Hall on Thursday—I am just advertising that for other hon. Members. We shall be looking into how we can improve independence of funding, although I have to point out that the Department for Constitutional Affairs, as a UK Department, is capable of providing that level of ministerial accountability for taxpayers' money. That is an important principle because, ultimately, Parliament has to account to our electors for a resource that is procured from them.

    Democratic Processes
    Mr Adrian Bailey: What steps the Government are taking to ensure wider participation in the democratic process. [175299]
    The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie): The Government have taken several significant steps to encourage wider participation in the democratic process: for example, introducing citizen education in schools; combining this year's local and European elections on the same day; making voter registration easier; and piloting all-postal voting.
    Mr. Bailey: I thank the Minister for his reply, and I applaud the measures that have been taken. Does he agree that improving participation in the democratic process is a matter not merely of making voting easier but of engaging people and enthusing them from an early age? What steps is the Department taking, with other Departments, to engage people in the political process, especially young people?
    Mr. Leslie: The work of the Department for Education and Skills, with our Department, has proved particularly successful—not least because citizenship education has been part of the national curriculum for the past two years, as a compulsory subject for 11 to 14-year-olds, which is intended to improve political literacy and social responsibility, and awareness of wider community issues and how decisions are made locally and nationally. That is a major step forward, which over time will produce greater awareness and participation among all our citizens.
    Mr. Andrew Mackay: Does the Minister accept that, for the first time for a very long time, many of my constituents will be enfranchised to vote in the local elections on 10 June? Many of my constituents leave home before 8 o'clock and often do not get back until after 9 o'clock. Why on earth cannot polling stations in local elections always open at 7 am and close at 10 pm? If that is good enough for European elections and elections to the House, surely it is good enough for local elections. Would we not then have greater participation?
    Mr. Leslie: The right hon. Gentleman makes a very reasonable point. There is a strong case to standardise opening hours for polling stations—something that the
    1436
    Electoral Commission has recommended. We do not have a legislative vehicle at present for that, but I will certainly bear in mind the strong case that he makes.
    Mr. Gordon Prentice: I have not met many hon. Members who are in favour of compulsory voting, but has the Minister considered rewarding people who vote, perhaps by tweaking their tax code or by giving a modest increase in benefits if they are benefit recipients?
    Mr. Leslie: Perhaps the greatest reward that we can give to our electors is a Labour Government, providing quality services to a consistently high standard. I hope that that reward will continue long into the future.
    Mr. Alan Duncan: One of the merits of our traditional system was its simplicity—people would just put a cross on the ballot paper and the person with the most votes won. The trouble is that the system has become very complicated, which is probably turning people away. Let us just consider London on 10 June: people can vote for the London Mayor, under a supplementary vote system, where they express a first and second preference; they can vote for the London assembly, with an additional member system, by voting for a candidate in an additional, top-up party list and they can vote for the European Parliament with a closed party list. So they have five votes with three completely different systems—without the added complication of whether to vote in person or by post. Surely that growing complication, with a multiplicity of voting systems and methods, is causing a lot of disapproval and misunderstanding. Is it any wonder that people say, "Stuff the whole thing—we're not going to bother to participate at all."?
    Mr. Leslie: I was hoping that the hon. Gentleman would ask me about the d'Hondt mechanism for counting results, but he did not get round to that one. I recognise the likelihood that some areas will have several different ballot papers in June's elections, but I would caution his underestimating of the electorate's intelligence and their ability to cope with such things. Most people can manage to understand that they have a ballot paper, that they cast their vote and that they see the results when those ballots are counted. That is the nature of our democracy at present.
    Mrs. Ann Cryer: Does my right hon. Friend—sorry, hon. Friend; I have promoted him. [HON. MEMBERS: "In time."] Does he agree that we might achieve greater enthusiasm for the democratic process if the editors and owners of certain tabloids refrained from frequently commenting unfairly on hon. Members?
    Mr. Leslie: I have found that most newspapers tend to be very fair and reasonable with politicians, and I have great relations with many of them, but my hon. Friend has concerns about certain of the red-top tabloids. All I can say is that the House needs to keep a close eye on the truth in matters that relate to hon. Members.

    Lay Magistracy (East Anglia)
    Mr. Henry Bellingham: When he next expects to meet members of the lay magistracy in East Anglia to discuss the workings of the local justice system. [175300]
    The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie): Although I have no current plans to meet representatives of the lay magistracy in East Anglia, I am, of course, ready to do so if that would prove useful.
    Mr. Bellingham: It may well prove useful. Is the Minister aware that most of the lay magistrates whom I have met feel very let down by the Government? They feel undervalued, unwanted and unappreciated and they are concerned about the number of court closures. What would he say to lay magistrates today to boost their morale and improve their standing? In addition, will he confirm that there will be no more small court closures?
    Mr. Leslie: On the latter point, there have been no court closures this year, in contrast to the closure of 21 magistrates courts in the last year of the Conservative Administration. I believe that the best way to secure high morale among magistrates is to reiterate how much we, on both sides of the House, value them. They are volunteers who provide a good, solid and continuous service in the administration of justice, and I, for one, am very grateful for the work that magistrates do.

  The Leader of the House was asked—
  LEADER OF THE HOUSE

    Standing Committees
    Dr. Alan Whitehead: To ask the Leader of the House if he will submit plans to the Select Committee on the Modernisation of the House of Commons to simplify papers for standing committees. [175289]
    The Leader of the House of Commons (Mr. Peter Hain): I am aware that some Members find the form and number of Standing Committee papers unhelpful. The Modernisation Committee is considering the accessibility of the House's publications in its current inquiry on Parliament's engagement with the public, which includes the form of the papers provided for members of Standing Committees.
    Dr. Whitehead: Does my right hon. Friend accept that, in many ways, the present arrangements for Committee papers resemble the form-guide sketch from the Marx brothers' "A Day at the Races", in that one needs four documents—the Bill, the explanatory notes, the list of amendments tabled and the Chairman's selection of amendments—to understand what is going on? Does he have any proposals on methods whereby all those documents could be combined, for perusal by both the public and Committee members?
    Mr. Hain: The Procedure Committee is also considering the matter. I understand my hon. Friend's point. The Modernisation Committee has held a number of evidence sessions with members of the public in which that point has been repeated, especially by visitors who are attending a Standing Committee for the first time. We need to address the issue, but pulling the various papers—the Bill, the explanatory notes, the amendment paper, the selection list, the background papers, Library notes, and so on—into one document would be difficult and perhaps costly. None the less, simplifying the process should be a common objective.
    Mr. Oliver Heald: May I suggest one way of improving papers for Standing Committees—a sort of modernisation, perhaps even a tidying-up exercise? [HON. MEMBERS: "No!"] One or two of my hon. Friends say no, but should not the Opposition be allowed to publish explanatory notes with key amendments on the Committee amendment paper?
    Mr. Hain: That is taking modernisation very far indeed. Were the hon. Gentleman ever to find himself in government—which is unlikely, despite his being a nice fellow—he might take a rather different view.
    Mr. Peter Pike: Does my right hon. Friend agree that the evidence taken so far by the Modernisation Committee makes it clear that Standing Committees are the least understood part of our proceedings? It is evident to me as a member of the Chairmen's Panel that Members often do not understand how amendments are selected and how their amendments will be voted on if they choose to press them to a vote.
    Mr. Hain: Of course, selection of amendments is not a matter for the Leader of the House, but my hon. Friend underlines the point made by my hon. Friend the Member for Southampton, Test (Dr. Whitehead) that the procedure in Standing Committees is baffling to visitors. On the other hand, members of Standing Committees deal with highly complex aspects of Bills that will become law, and such matters have to be dealt with seriously and technically in order to conform to the legislative requirements. We have to get the balance right, but I am sure that it has to be struck in favour of greater clarity and openness and a more welcoming atmosphere for visitors to the House.
    Mr. Paul Tyler: Does the Leader of the House accept that the Modernisation Committee has evidence that not just Members and visitors but people with a direct interest in the legislation who may be affected by the outcome find the whole procedure unintelligible? Does he accept that we need to look seriously, for example, at the timing of advance notice of issues that are coming up in Standing Committee? We must, as the hon. Member for Burnley (Mr. Pike) said, look hard at the way in which Select Committees have improved their procedures and made themselves much more intelligible to everybody with an interest in those matters.
    Mr. Hain: Yes, indeed. Select Committees have done an admirable job in that respect. As for the serious issue of people knowing what is coming up, I assume that that is a vote for programming, which enables us to do that. For the interested groups to which, I assume, the hon. Gentleman was referring indirectly, and which may have a direct stake in legislation, knowing what day an issue will be discussed in Committee and at what time is a tremendous benefit of programming. The hon. Gentleman's wider argument, however, is generally very welcome.

  The honourable Member for Roxburgh and Berwickshire, representing the House of Commons Commission, was asked—
  HOUSE OF COMMONS COMMISSION

    Smoking
    Mr. Gordon Prentice: To ask the honourable Member for Roxburgh and Berwickshire, representing the House of Commons Commission, if the House of Commons Commission will ban smoking in the Members' Tea Room. [175290]
    Sir Archy Kirkwood: The Catering Committee makes recommendations on smoking in Refreshment Department outlets, including the Tea Room. I am sure that it would be happy to receive views from hon. Members, particularly the hon. Gentleman. As a good employer, the Commission discourages House staff from smoking, but it is also keen to protect them from the effects of passive smoking.
    Mr. Prentice: That is a good reply. I do not consider myself a health fascist in any sense, but the time has come to protect our staff and Members themselves from passive smoking. In addition, there is not a single sprinkler in the building, so this world heritage site could easily go up in flames. I hope the Catering Committee will turn its attention to this serious matter.
    Sir Archy Kirkwood: Most members of staff and most Members are non-smokers, but not all of them, so we must bear that in mind. Many smoking restrictions have been put in place, where practicable, on a case-by-case basis, but the hon. Gentleman's question is timely, and it may well be time for the Commission to look at the question of smoking in the Palace precincts in a fresh light. I am happy to consult colleagues and report progress to the House.
    Julie Morgan: Is the hon. Gentleman aware of the study published by Imperial college last week that showed that every week passive smoking kills about one person working in the hospitality industry? That obviously affects our staff in the Tea Room as well as Members, so does he not agree that now is the time to act?
    Sir Archy Kirkwood: Absolutely. We are conscious of that study presented at the Royal College of Physicians,
    1440
    and it is an important development. Passive smoking is emerging as a new health risk in the workplace more generally, so it is right that the House should recognise that and look at the issue again.

  The Leader of the House was asked—
  LEADER OF THE HOUSE

    Select Committees
    Mr. Elfyn Llwyd: To ask the Leader of the House, what proposals he has to ensure greater representation of minority parties on departmental Select Committees. [175291]
    The Deputy Leader of the House of Commons (Mr. Phil Woolas): My right hon. Friend the Leader of the House is aware of the concerns of minority parties about their representation on departmental Select Committees and on other Committees. Progress has been made in addressing their concerns in a number of ways: for example, by accommodating their interests in the nomination for recent Joint Committees for pre-legislative scrutiny, and for Standing Committees on Bills and on Delegated Legislation.
    Mr. Llwyd: I thank the Minister for his reply, but it did not address the question that I tabled on departmental Select Committees. At the moment, Labour is over-represented by three Members and the Liberal Democrats by two Members, but Plaid Cymru and the Scottish National party are under-represented by two Members, which is not right in any democratic set-up. What progress has been made on giving us a place on the Liaison Committee?
    Mr. Woolas: I thank the hon. Gentleman, and I accept that his concern is genuine. I could quibble over his arithmetic, but his general point is a valid one. I urge him to bear in mind the fact that Committees are established at the beginning of a Parliament, and the rules are set out in Standing Orders. I remind the House that the previous arrangement, whereby the minority parties were represented by the Liberal Democrat Chief Whip, was changed at their instigation, and that that is now done by the Government Chief Whip, who is involved in discussions on the matter.
    Ms Meg Munn: To ask the Leader of the House if he will submit proposals to the Select Committee on the Modernisation of the House of Commons to open the House to visitors on Saturdays. [175292]
    (Mr. Peter Hain): The Modernisation Committee has considered the accessibility of the House to visitors as part of its inquiry into connecting Parliament with the public. The question whether the House should be open to visitors on Saturdays is also a matter for the Administration Committee, in the first instance, and for the House of Commons Commission.
    Ms Munn: I thank my right hon. Friend for his answer. Although Sheffield is less than 200 miles from

    1441
    London, the travelling time ranges between three and five hours. Even when the House sits at 2.30 pm, many of my constituents find it difficult to arrive in time for a proper tour around the House. Constituents throughout the United Kingdom, many of whom live much further away than Sheffield, should have more opportunities to visit the House, with or without their MPs.
    Mr. Hain: I understand the force of my hon. Friend's argument, because my constituency is a similar distance from Parliament, and visitors travelling by coach have to set off at about 5 am. I am pleased by the way in which
    1442
    the new visitors' services manager has taken on that question—for example, we have agreed an earlier 9 am start for tours, and Member-guided tours starting at 8 am are being planned. He also ensures that, where possible, priority for tour slots later in the day is given to those travelling from constituencies furthest away from Westminster. Given the security implications, however, whether it would be cost-effective and sensible to open on Saturdays is an issue. Owing to the efforts of the Central Tours Office, numbers on Member-guided tours in the first three months of this year have increased by 9,500 over the equivalent period last year.

Regulation of Hormone Disrupting Chemicals
12.31 pm
Geraint Davies: I beg to move,

That leave be given to bring in a Bill to make provision about the regulation of hormone disrupting chemicals; and for connected purposes.

Every year, millions of tonnes of toxic chemicals, which do not break down, which build up in the bodies of people and animals and which disrupt hormone production, are released into the environment, increasing cancers and infertility and causing mental and physical problems in children and adults and contamination across the ecosystem. We may accept the growth in chemical production from 1 million tonnes in 1930 to 400 million tonnes in 2000—the chemicals are used in plastics, toys, computers, food packaging and manufactured products—but the continued use of dangerous or risky chemicals is unacceptable where safe substitutes exist.
The Bill calls for the phasing out of persistent chemicals that do not break down and for the substitution of safer alternatives. Such chemicals are bio-accumulative and build up in the body, and they are also endocrine disrupting and therefore cause hormone imbalance. The Bill precedes the REACH legislation on chemical regulation, which will be proposed in the European Union next year. In our year of EU presidency, I hope that the UK takes a leading role in sharpening up the protection of our environment and in adopting a precautionary approach based on the best scientific evidence in order to eliminate dangerous chemicals from manufacturing.
The scale of the problem is great—300 man-made chemicals are found in the human body. Babies are born with a toxic burden of chemicals inherited from their mother in the womb, and those chemicals affect hormone production in the ovaries, the testes and the thyroid gland, causing cancers and genital deformities and reducing the immune system. Such chemicals are present in polar bears in the Artic, in tree frogs in tropical rain forests and in seals off the coast of the United Kingdom. Unlike drugs, chemical manufacturers do not even have to show that such cocktails of toxic chemicals are safe before marketing them.
Hormone disrupting chemicals are endemic in toys, cabling, food packaging, feeding bottles, tins, cleaning products, food and water. I pay tribute to WWF and the Co-operative bank for bringing the issue up the political agenda, partly through their advertisements, which ask
1444
the simple question, "Why should chemicals usually found in the manufacture of carpets, curtains, sofas and cleaning products turn up in the bodies of polar bears?" The answer is, of course, that such chemicals go through the whole ecosystem and end up causing damage throughout the world.
In recent years, the incidence of testicular cancer has grown—in fact, it has doubled in the past 30 years—and breast cancer has increased by 50 per cent. Research now links hormone disrupting chemicals to some of those problems. Man-made chemicals have been linked to learning disabilities and hyperactivity. Polychlorinated biphenyls—PCBs—in mothers are transferred in pregnancy to babies, giving rise to lower birth weight, poorer reflexes, delayed movement, retarded mental development, and language, verbal and numeracy difficulties. They also give rise to learning and memory problems in adults.
Brominated flame retardants are found in human breast milk. In Britain, we have the sad record of our butter having a higher concentration of brominated flame retardants than any butter in the world. Yet those chemical products can be removed, as they are, in the manufacturing sector by the Swedish company IKEA.
We need to consider the additional cost that not having such a ban imposes on the health service in terms of treating allergies, cancers and skin disease. Professor David Pearce has estimated that that saving could be in the order of £50 billion over the next 17 years or so.
We need to establish which chemicals should be substituted, based on the level of evidence and proof, which will vary from chemical to chemical. In the first instance, we must take a unilateralist approach to listing the harmful chemicals and beginning to eliminate them. That is what has occurred in Denmark, Greece, Germany, France, Finland and Austria. Ultimately, we need to use European Union legislation to phase out completely all persistent and bio-accumulative hormone disrupting chemicals where safer alternatives exist. We owe it to ourselves, our children and our planet to respect the safety of our environment and of future generations.
Question put and agreed to.
Bill ordered to be brought in by Geraint Davies, Siobhan McDonagh, Laura Moffatt, Ms Dari Taylor, Mr. Alan Campbell, Andy Burnham, Julie Morgan, Mr. Alan Meale, Syd Rapson, Mrs. Betty Williams, Donald Anderson and Mr. Andrew Love.

Regulation of Hormone Disrupting Chemicals
  REGULATION OF HORMONE DISRUPTING CHEMICALS
  Geraint Davies accordingly presented a Bill to make provision about the regulation of hormone disrupting chemicals; and for connected purposes: And the same was read the First time; and ordered to be read a Second time on Friday 16 July, and to be printed [Bill 114].
Orders of the Day
  Gender Recognition Bill [Lords]
  As amended in the Standing Committee, considered. [Relevant documents: The Nineteenth Report from the Joint Committee on Human Rights of Session 2002–03 on the Draft Gender Recognition Bill, KC 1276–I and II, and the Fourth Report (HC 303) and Twelfth Report (HC 603) from the Committee of Session 2003–04, on its continuing scrutiny of bills.]
  Gender Recognition Bill [Lords]
    New Clause 1

      RELIGION
      If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.

      In this section "court" includes a tribunal.'.—[Mr. Leigh.]

      Brought up, and read the First time.
      12.38 pm
      Mr. Edward Leigh: I beg to move, That the clause be read a Second time.
      Mr. Speaker: 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,

      comply with the doctrines of the religion, or

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

      Mr. Leigh: 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
      1446
      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: 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.
      Mr. Leigh: 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.
      12.45 pm
      Mr. David Kidney: 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?
      Mr. Leigh: 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
      Mr. Michael Fallon: 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?
      Mr. Leigh: 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.
      Mr. Tim Boswell: 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.
      Mr. Leigh: 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.

      1449
      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: 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.
      Mr. Leigh: I accept that that is the view of transsexuals and that there is a debate about these
      1450
      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.
      Mr. John Bercow: 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.
      Mr. Leigh: 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?
      Mr. Bercow indicated assent.
      Mr. Leigh: If my hon. Friend really believes that, it is a deeply illiberal point of view.
      Rev. Martin Smyth: 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.
      Mr. Leigh: We would all agree that the last thing we want to do is return to the controversies in the House in

      1451
      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.
      Mr. Bercow rose—
      Mr. Leigh: I give way to my liberal Friend.
      Mr. Bercow: 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.
      1 pm
      Mr. Leigh: 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.
      1452
      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: 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.
      Mr. Leigh: 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

      1453
      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?
      Mr. Fallon: 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.
      Mr. Leigh: Precisely. Pepper v Hart is an aid to litigation: it does not prevent it.
      The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): 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.
      Mr. Leigh: 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.
      Mr. Lammy: 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.
      Mr. Leigh: 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: Probably relatively few church groups would feel able to go as far as the litigation
      1454
      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.
      Mr. Leigh: 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

      1455
      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.
      1.15 pm
      Mr. David Drew: 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
      1456
      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: 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: 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: 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.
      Dr. John Pugh: Does my hon. Friend accept that human rights legislation covers precisely those rights of freedom of thought, conscience and religion?
      Richard Younger-Ross: This new clause would put the freedoms, thoughts and rights of that faith over human rights legislation.
      Dr. Pugh: 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: 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 ease, there would be no purpose in the hon. Member for Gainsborough moving the amendment.
      Mr. Bercow: May I help the hon. Gentleman?
      Richard Younger-Ross: I should be grateful.
      Mr. Bercow: 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: 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: Will the hon. Gentleman give way?
      Richard Younger-Ross: I want to make some progress, but I shall give way one more time.
      Chris Grayling: 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: 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.
      Mr. Bercow: Will the hon. Gentleman give way just once more?
      Richard Younger-Ross: I am too generous.
      Mr. Bercow: 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
      1458
      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: 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: Will the hon. Gentleman give way very briefly?
      Richard Younger-Ross: Go on.
      Andrew Selous: 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: 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.
      1.30 pm
      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.

      1459
      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: 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: The hon. Gentleman makes a fair point—
      Mr. Deputy Speaker: 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: 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
      1460
      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.
      Mr. Alan Hurst: 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 it 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

      1461
      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 call, 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: 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
      1462
      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.
      Mr. Bercow: 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: 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.
      Mr. Bercow: 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: 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.
      1.45 pm
      Mr. Lammy: 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

      1463
      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: 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.
      Mr. Lammy: 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: 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: 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
      1464
      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: 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: 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: 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.
      2 pm
      Richard Younger-Ross: 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: 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
      1466
      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.
      Mr. Lammy: Oh, please!
      Andrew Selous: 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: 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: 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.
      Mr. Colin Breed: 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,

      1467
      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—even bankrupt—ndividuals 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.
      Dr. Pugh: 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.
      Mr. David Heath: I have much sympathy with what my hon. Friend says, but I have a problem with the word "particular". It is difficult
      1468
      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.
      Dr. Pugh: I shall not take it on myself to comment on the perfection or otherwise of the wording of the new clause—
      Mr. Leigh: It is simply taken from the Human Rights Act.
      Dr. Pugh: 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: 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.
      Mr. Boswell: 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.
      Mr. Douglas Hogg: All votes are free votes.
      Mr. Boswell: Indeed, but the votes today are particularly free and we should welcome and celebrate the diversity that they may yet produce.
      Mr. Bercow: 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?
      Mr. Boswell: 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.
      2.15 pm
      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
      1470
      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: 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.
      Mr. Deputy Speaker: 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.
      Mr. Boswell: 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

      1471
      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.
      Mr. Drew: 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?
      Mr. Boswell: 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
      1472
      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 than 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.
      Mr. Heath: 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.
      Mr. Boswell: I am grateful to the hon. Gentleman for that clarification. I, too, had noticed that happy

      1473
      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.
      2.30 pm
      Mr. Lammy: 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 Hunan 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 these 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: 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.
      Mr. Lammy: 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
      1474
      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: 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.
      Mr. Lammy: I am grateful to the hon. Gentleman for putting that on the record.
      Chris Grayling: 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?
      Mr. Lammy: 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

      1475
      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.
      Mr. Boswell: 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?
      Mr. Lammy: 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".

      Mr. Gerald Howarth rose—
      Mr. Lammy: 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.
      Mr. Patrick McLoughlin: Can the Minister assure us that that secondary legislation will be amendable?
      Mr. Lammy: The hon. Gentleman is well aware of the practices and procedures of the House. He was not here
      1476
      earlier, when another relevant issue was raised. We do not intend that time should be a gap between the coming into force of secondary legislation and the operation of the scheme for legal recognition.
      Mr. Eric Forth: 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?
      Mr. Deputy Speaker: I am anxious not to be drawn into the technicalities, and that is a point of debate for the Minister to answer.
      Mr. Lammy: 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)".

      Mr. Drew: 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.
      Mr. Lammy: 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.
      2.45 pm
      Mr. Leigh: 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.

      1477
      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 awn 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.
      Question put, That the clause be read a Second time:—
      The House divided: Ayes 104, Noes 276.

      Division No. 187]

      [2:47 pm

      AYES

      Ainsworth, Peter(E Surrey)

      Howarth, Gerald(Aldershot)

      Amess, David

      Jack, rh Michael

      Ancram, rh Michael

      Keetch, Paul

      Atkinson, Peter(Hexham)

      Key, Robert(Salisbury)

      Beith, rh A. J.

      Knight, rh Greg(E Yorkshire)

      Bellingham, Henry

      Laing, Mrs Eleanor

      Boswell, Tim

      Lamb, Norman

      Bottomley, Peter(Worthing W)

      Lansley Andrew

      Brake, Tom(Carshalton)

      Leigh, Edward

      Brazier, Julian

      Liddell-Grainger, Ian

      Breed, Colin

      Luff, Peter(M-Worcs)

      Brooke, Mrs Annette L.

      Mclntosh, Miss Anne

      Burns, Simon

      Mackay, rh Andrew

      Burstow, Paul

      Maclean, rh David

      Burt, Alistair

      McLouffilin, Patrick

      Cable, Dr. Vincent

      Mawhinney, rh Sir Brian

      Chapman, Sir Sydney(Chipping Barnet)

      Mitchell, Andrew(Sutton Coldfield)

      Clifton-Brown, Geoffrey

      Moonie, Dr. Lewis

      Collins, Tim

      Murrison, Dr. Andrew

      Conway, Derek

      Osborne, George(Tatton)

      Cormack, Sir Patrick

      Ottaway, Richard

      Davey, Edward(Kingston)

      Paterson, Owen

      Davies, rh Denzil(Llanelli)

      Pugh, Dr. John

      Davis, rh David(Haltemprice & Howden)

      Randall, John

      Redwood, rh John

      Djanogly, Jonathan

      Reid, Alan(Argyll & Bute)

      Doughty, Sue

      Robertson, Angus(Moray)

      Duncan, Alan(Rutland)

      Robertson, Laurence(Tewk'b'ry)

      Ewing, Annabelle

      Ruffley, David

      Fallon, Michael

      Russell Bob(Colchester)

      Field, Mark(Cities of London & Westminster)

      Sanders, Adrian

      Shepherd, Richard

      Flight, Howard

      Smith, Sir Robert(W Ab'cl'ns & Kincardine)

      Forth, rh Eric

      Gale, Roger(N Thanet)

      Smyth, Rev. Martin(Belfast S)

      George, Andrew(St. Ives)

      Spicer, Sir Michael

      Greenway, John

      Spink, Bob(Castle Point)

      Grieve, Dominic

      Stanley, rh Sir John

      Hancock, Mike

      Steen, Anthony

      Heald, Oliver

      Swayne, Desmond

      Heath, David

      Syms, Robert

      Heathcoat-Amory, rh David

      Taylor, John(Solihull)

      Hendry, Charles

      Taylor, Sir Teddy

      Hermon, Lady

      Thomas, Simon(Ceredigion)

      Hoban, Mark(Fareham)

      Thurso, John

      Hogg, rh Douglas

      Tredinnick, David

      Horam, John(Orpington)

      Trimble, rh David

      1478

      Turner, Andrew(Isle of Wight)

      Williams, Roger(Brecon)

      Viggers, Peter

      Willis, Phil

      Walter, Robert

      Wilshire, David

      Waterson, Nigel

      Winterton, Ann(Congleton)

      Webb, Steve(Northavon)

      Young, rh Sir George

      Weir, Michael

      Tellers for the Ayes:

      Wilkinson, John

      Andrew Selous and

      Williams, Hywel(Caernarfon)

      Chris Grayling

      NOES

      Abbott, Ms Diane

      Cotter, Brian

      Adams, Irene(Paisley N)

      Cousins, Jim

      Ainger, Nick

      Cranston, Ross

      Ainsworth, Bob(Cov'try NE)

      Cryer, Ann(Keighley)

      Allan, Richard

      Cryer, John(Hornchurch)

      Allen, Graham

      Cummings, John

      Armstrong, rh Ms Hilary

      Cunningham, rh Dr. Jack

      Atherton, Ms Candy

      (Copeland)

      Atkins, Charlotte

      Cunningham, Jim(Coventry S)

      Austin, John

      Cunningham, Tony(Workington)

      Baird, Vera

      Curtis-Thomas, Mrs Claire

      Baker, Norman

      Dalyell, Tam

      Barnes, Harry

      Darling, rh Alistair

      Barrett, John

      Davidson, Ian

      Barron, rh Kevin

      Davies, Geraint(Croydon C)

      Bayley, Hugh

      Dawson, Hilton

      Beard, Nigel

      Dean, Mrs Janet

      Begg, Miss Anne

      Denham, rh John

      Bennett, Andrew

      Dobson, rh Frank

      Bercow, John

      Donohoe, Brian H.

      Berry, Roger

      Duncan, Peter(Galloway)

      Best, Harold

      Eagle, Angela(Wallasey)

      Betts, Clive

      Eagle, Maria(L'pool Garston)

      Blackman, Liz

      Edwards, Huw

      Blears, Ms Hazel

      Efford, Clive

      Borrow, David

      Ellman, Mrs Louise

      Bradley, rh Keith(Withington)

      Ennis, Jeff(Barnsley E)

      Bradley, Peter(The Wrekin)

      Etherington, Bill

      Bradshaw, Ben

      Farrelly, Paul

      Brown, rh Nicholas(Newcastle E Wallsend)

      Fitzpatrick, Jim

      Fitzsimons, Mrs Lorna

      Brown, Russell(Dumfries)

      Flynn, Paul(Newport W)

      Browne, Desmond

      Follett, Barbara

      Bruce, Malcolm

      Foster, Don(Bath)

      Buck, Ms Karen

      Foster, Michael Jabez(Hastings & Rye)

      Burden, Richard

      Burgon, Colin

      Francis, Dr. Hywel

      Burnham, Andy

      George, rh Bruce(Walsall S)

      Cairns, David

      Gerrard, Neil

      Campbell, Alan(Tynemouth)

      Goggins, Paul

      Campbell, Mrs Anne(C'bridge)

      Griffiths, Jane(Reading E)

      Campbell, Ronnie(Blyth V)

      Griffiths, Nigel(Edinburgh S)

      Caplin, Ivor

      Griffiths, Win(Bridgend)

      Casale, Roger

      Grogan, John

      Caton, Martin

      Hain, rh Peter

      Cawsey, Ian(Brigg)

      Hall, Mike(Weaver Vale)

      Challen, Colin

      Hall, Patrick(Bedford)

      Chapman, Ben(Wirral S)

      Hamilton, David(Midlothian)

      Chidgey, David

      Hamilton, Fabian(Leeds NE)

      Clapham, Michael

      Hanson, David

      Clark, Paul(Gillingham)

      Harman, rh Ms Harriet

      Clarke, rh Tom(Coatbridge & Chryston)

      Harris, Dr. Evan(Oxford W & Abingdon)

      Clarke, Tony(Northampton S)

      Harris, Tom(Glasgow Cathcart)

      Clelland, David

      Havard, Dai(Merthyr Tydfil & Rhymney)

      Clwyd, Ann(Cynon V)

      Coaker, Vernon

      Healey, John

      Coffey, Ms Ann

      Henderson, Ivan(Harwich)

      Cohen, Harry

      Hendrick, Mark

      Coleman, lain

      Hepburn, Stephen

      Colman, Tony

      Heyes, David

      Connarty, Michael

      Hill, Keith(Streatham)

      Cook, Frank(Stockton N)

      Hodge, Margaret

      Cooper, Yvette

      Holmes, Paul

      Corbyn, Jeremy

      Hoon, rh Geoffrey

      1479

      Hope, Phil(Corby)

      Murphy, Denis(Wansbeck)

      Hopkins, Kelvin

      Murphy, Jim(Eastwood)

      Howarth, rh Alan(Newport E)

      Naysmith, Dr. Doug

      Howarth, George(Knowsley N & Sefton E)

      Oaten, Mark(Winchester)

      O'Brien, Bill(Normanton)

      Howells, Dr. Kim

      O'Hara, Edward

      Hughes, Beverley(Stretford & Urmston)

      Diner, Bill

      Öpik, Lembit

      Humble, Mrs Joan

      Organ, Diana

      Hurst, Alan(Braintree)

      Owen, Albert

      Iddon, Dr. Brian

      Page, Richard

      Illsley, Eric

      Palmer, Dr. Nick

      Ingram, rh Adam

      Perham, Linda

      Irranca-Davies, Huw

      Pickthall, Colin

      Jackson, Glenda(Hampstead & Highgate)

      Pike, Peter(Burnley)

      Plaskitt, James

      Jackson, Helen(Hillsborough)

      Pollard, Kerry

      Jenkins, Brian

      Pope, Greg(Hyndburn)

      Johnson, Miss Melanie(Welwyn Hatfield)

      Pound, Stephen

      Prentice, Ms Bridget(Lewisham E)

      Jones, Helen(Warrington N)

      Jones, Kevan(N Durham)

      Prentice, Gordon(Pendle)

      Jones, Lynne(Selly Oak)

      Prosser, Gwyn

      Jones, Martyn(Clwyd S)

      Purchase, Ken

      Joyce, Eric(Falkirk W)

      Purnell, James

      Keeble, Ms Sally

      Quin, rh Joyce

      Kelly, Ruth(Bolton W)

      Quinn, Lawrie

      Kemp, Fraser

      Rammell, Bill

      Kennedy, Jane(Wavertree)

      Rapson, Syd(Portsmouth N)

      Khabra, Piara S.

      Raynsford, rh Nick

      Kidney, David

      Reed, Andy(Loughborough)

      Kilfoyle, Peter

      Rendel, David

      King, Ms Oona(Bethnal Green & Bow)

      Robinson, Geoffrey(Coventry NW)

      Knight, Jim(S Dorset)

      Roche, Mrs Barbara

      Kumar, Dr. Ashok

      Rooney, Terry

      Lammy, David

      Ross, Ernie(Dundee W)

      Lawrence, Mrs Jackie

      Roy, Frank(Motherwell)

      Laxton, Bob(Derby N)

      Ruane, Chris

      Lepper, David

      Ruddock, Joan

      Leslie, Christopher

      Russell, Ms Christine(City of Chester)

      Levitt, Tom(High Peak)

      Lewis, Terry(Worsley)

      Ryan, Joan(Enfield N)

      Liddell, rh Mrs Helen

      Salter, Martin

      Linton, Martin

      Savidcle, Malcolm

      Love, Andrew

      Sawford, Phil

      Lucas, Ian(Wrexham)

      Sedgemore, Brian

      Lyons, John(Strathkelvin)

      Shaw, Jonathan

      McAvoy, rh Thomas

      Sheerman, Barry

      McCabe, Stephen

      Singh, Marsha

      McCafferty, Chris

      Skinner, Dennis

      McDonagh, Siobhain

      Smith, rh Chris(Islington S & Finsbury)

      MacDonald, Calum

      McDonnell, John

      Smith, Geraldine(Morecambe & Lunesdale)

      McFall, John

      Mclsaac, Shona

      Smith, John(Glamorgan)

      McKechin, Ann

      Smith, Llew(Blaenau Gwent)

      Mackinlay, Andrew

      Southworth, Helen

      McNulty, Tony

      Squire, Rachel

      Mactaggart, Fiona

      Steinberg, Gerry

      McWalter, Tony

      Stevenson, George

      McWilliam, John

      Stewart, David(Inverness E & Lochaber)

      Mahmood, Khalid

      Mahon, Mrs Alice

      Stewart, Ian(Eccles)

      Mallaber, Judy

      Stinchcombe, Paul

      Mandelson, rh Peter

      Stoate, Dr. Howard

      Marris, Rob(Wolverh'ton SW)

      Strang, rh Dr. Gavin

      Milburn, rh Alan

      Stringer, Graham

      Miliband, David

      Stuart, Ms Gisela

      Miller, Andrew

      Taylor, Dari(Stockton S)

      Moffatt, Laura

      Taylor, Dr. Richard(Wyre F)

      Mole, Chris

      Thomas, Gareth(Clwyd W)

      Moran, Margaret

      Thomas, Gareth(Harrow W)

      Morgan, Julie

      Timms, Stephen

      Morley, Elliot

      Tipping, Paddy

      Munn, Ms Meg

      Todd, Mark(S Derbyshire)

      1480

      Tonge, Dr. Jenny

      Williams, Betty(Conwy)

      Trickett, Jon

      Wills, Michael

      Turner, Dennis(Wolverh'ton SE)

      Winnick, David

      Turner, Dr. Desmond(Brighton Kemptown)

      Winterton, Ms Rosie(Doncaster C)

      Turner, Neil(Wigan)

      Wood, Mike(Batley)

      Twigg, Derek(Halton)

      Woodward, Shaun

      Tyler, Paul(N Cornwall)

      Woolas, Phil

      Tyrie, Andrew

      Worthington, Tony

      Vis, Dr. Rudi

      Wright, Anthony D.(Gt Yarmouth)

      Walley, Ms Joan

      Ward, Claire

      Wright, David(Telford)

      Wareing, Robert N.

      Wright, Tony(Cannock)

      Watson, Tom(W Bromwich E)

      Wyatt, Derek

      Watts, David

      Younger-Ross, Richard

      White, Brian

      Whitehead, Dr. Alan

      Tellers for the Noes:

      Wicks, Malcolm

      Gillian Merron and

      Williams, rh Alan(Swansea W)

      Mr. John Heppell

      Question accordingly negatived.

    New Clause 2

      APPLICATION FOLLOWING ISSUE OF AN INTERIM GENDER RECOGNITION CERTIFICATE
      (1) The petitioner or respondent for annulment or dissolution of a marriage under section 12(g) of the Matrimonial Causes Act 1973 may apply to the court to order that—

      (a) all rights and benefits of any private pension scheme, or

      (b) all property rights, or

      (c)both

      should continue to subsist following the annulment or dissolution of marriage provided that the petitioner and respondent can satisfy the court that both parties to the existing marriage intend to live together as partners.
      (2) In this section—

      (a) a "private pension scheme" means—

      (i) an occupational pension scheme,

      (ii) a personal pension scheme, or

      (iii) a stakeholder pension scheme,

      of which either the petitioner or respondent was a member before the application for annulment or dissolution of the marriage.

      (b) "property rights" means the right in any property, whether real or personal, owned jointly by the parties.

      (c) "court" means the court hearing the petition for divorce.

      (3) For the purposes of this Act, a couple "live together as partners" if subsection (4, or (5) applies.
      (4) This subsection applies if—

      (a) none of the provisions of sections 1, 11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply;

      (b) the couple live together;

      (c) the couple retain their responsibilities in relation to any existing dependants; and

      (d) the couple maintain existing financial support for one another.

      (5) This subsection app lies if the couple have—

      (a) registered as a civil partnership, or

      (b) given notice of a proposed civil partnership to a registration authority,

      under the Civil Partnerships Act 2004.
      (6) Any order made by the court under subsection (1) shall be void if the circumstances set out in subsection (3) cease to apply.
      (7) An appeal against any order made by the court under subsection (1) shall be heard by the court.
      (8) An appeal under subsection (7) must show that the circumstances set out in subsection (3) cease to apply.
      (9) Any person may show cause why an order made by the court under subsection (1) should not be made by reason of material facts not having been brought before the court; and in such a case the court may—

      (a) notwithstanding anything in subsections (6) or (7) above, make the order;

      (b) rescind the order;

      (c) require further inquiry; or

      (d) otherwise deal with the case as it thinks fit. —[Hugh Bayley.]

      Brought up, and read the First time.
      3 pm
      Hugh Bayley: I beg to move, That the clause be read a Second time.
      Mr. Deputy Speaker: 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 I2(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: 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
      1482
      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—
      Mr. Hogg: 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: 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.
      Mr. Hogg: 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: The right hon. and learned Gentleman makes an important point. In those circumstances, most pension providers would try to vary the terms of the

      1483
      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
      1484
      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.
      3.15 pm
      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 hot 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.
      Mr. Mark Oaten: 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: 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.
      Mr. Hogg: 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: The right hon. and learned Gentleman makes an important point. I shared that view when I

      1485
      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: 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 wile 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: 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
      1486
      become a separation as well as a technical arrangement to allow one party to get the gender recognition certificate that they sought.
      Glenda Jackson: 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: 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: 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: 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.
      Several hon. Members rose—
      Hugh Bayley: I am trying to finish my speech, but I shall give way to the hon. Member for Portsmouth, South (Mr. Hancock).
      Mr. Mike Hancock: Like the hon. Gentleman, I have constituents in the scenario

      1487
      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: 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.
      Several hon. Members rose—
      Hugh Bayley: 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.
      3.30 pm
      Mr. Frank Field: 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,
      1488
      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.
      Mr. Boswell: 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 arid 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 rose—I do not want to go on at great length, as I know this is a difficult and complex subject rose—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 fetter ed 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 rose—I believe that there are about 600 public sector schemes rose—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

      1489
      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: 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 Daven try (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.
      Mr. Hogg: 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
      1490
      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.
      The Parliamentary Under-Secretary of State for Work and Pensions (Maria Eagle): 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 corners, 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.
      Mr. Hogg: 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.
      3.45 pm
      Maria Eagle: 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: May I just clarify one point? I think that my hon. Friend means that one cannot get a full

      1491
      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: 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.
      1492
      We believe that making exceptions to general principles would not he 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: 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: 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: Will the guidance and advice apply to all public sector pension schemes?
      Maria Eagle: I am about to deal with the various points that have been made arid 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

      1493
      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 w ill be able to respond
      1494
      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.
      Mr. Hogg: 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: 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.
      4 pm
      Hugh Bayley: 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.

      1495
      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
      'Unless and until the International Olympic Committee publishes a policy on participation by transgendered people, athletes resident within the United Kingdom and wishing to compete in the Olympic Games shall be required to inform their National Olympic Committee if a gender recognition certificate has been issued to them under the provisions of this Act.'.—[Mr. Boswell.]
      Brought up, and read the First time.
      Mr. Boswell: I beg to move, That the clause be read a Second time.
      Mr. Speaker: 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.'.

      Mr. Boswell: 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.
      Mr. Oaten: 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.
      Mr. Boswell: 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

      1497
      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.
      Mr. Oaten: 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?
      Mr. Boswell: 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 commit tee, 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: 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.
      Mr. Lammy: 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
      1498
      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: 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.
      4.15 pm
      Mr. Lammy: 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: 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: 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: 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

      1499
      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: 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: 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: 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: 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.
      Mr. Lammy: 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
      1500
      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: 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?
      Mr. Lammy: 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.
      Mr. Boswell: 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?
      Mr. Lammy: 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.

      1501
      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: 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.
      Mr. Lammy: 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: 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".
      Mr. Lammy: 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.
      4.30 pm
      Andrew Selous: 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
      1502
      gender. I am discussing a reserve power to cover serious difficulties, and we all accept that such circumstances are a remote possibility.
      Mr. Lammy: 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.
      Mr. Boswell: 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
      ?(1) This section shall have effect in connection with marriages between two persons both of whom have subsequently applied for and received an interim gender recognition certificate under section 4(3) of this Act.

      (2) Both parties to a marriage who have each received an interim gender recognition certificate under subsection (1) may jointly apply to a gender recognition panel for the issue of a full gender recognition certificate to each of them, and in such cases the Gender Recognition Panel may confirm the continuing validity of the marriage between them:—[Mr. Boswell.]

      Brought up, and read the First time.
      Mr. Boswell: I beg to move, That the clause be read a Second time.
      Mr. Deputy Speaker: 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.'.

      Mr. Boswell: 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

      1503
      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.
      1504
      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.
      Mr. Forth: 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—
      Mr. Andrew Mitchell: Are married.
      Mr. Forth: 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.
      Mr. Boswell: 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 arid perhaps wish their relationship to continue. Under the new clause, they would be

      1505
      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 he 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.
      Mr. Andrew Mitchell: 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 ghat 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.
      1506
      4.45 pm
      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.
      Mr. Lammy: 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.
      Mr. Mitchell: 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.
      Mr. Andrew Robathan: 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.

      1507
      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.
      Mr. Mitchell: 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.
      Mr. Lammy: 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.
      Mr. Mitchell: 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.
      Mr. Lammy: The hon. Gentleman makes an important point. Does he also acknowledge that the couple have a choice? The Government do not require them to proceed down the road of gender recognition. They have a choice. They can choose not to, and there will be some couples who choose not to.
      Mr. Mitchell: With respect to the Minister again, I covered that point in the earlier part of my speech where
      1508
      I dealt with the way in which rights were being traded against other rights. If he looks back at my earlier remarks in Hansard, he will see that I addressed that point precisely. Couples should not be put in that position. My constituents should not have to make that dreadful choice.
      A group of marriages that have not gone wrong, which are loving and based on years of commitment, will be prejudiced by the Bill. It would be wrong for the House to put asunder those whom God hath joined together. Over many years marriages survive many changes. Some marriages experience extraordinary changes in circumstances, in sickness and in health. A relationship that survives a gender change is by any definition extremely strong. I invite the Minister to improve the Bill, to stand up for the sanctity of marriage, far from undermining it, and to defend the rights and freedoms of a very small minority who will suffer as a result of the Bill as drafted and should not have to do so.
      Lynne Jones: I support both new clauses, although if new clause 7 were accepted, new clause 4 would be unnecessary. I thank the hon. Member for Daventry (Mr. Boswell) for moving new clause 4. An existing marriage of transsexual people should be permitted if they subsequently have their correct gender recognised through the process laid down in the Bill. I cannot for the life of me understand why the Government are not prepared to accept new clause 4.
      I have some understanding of the Government's reservations in relation to new clause 7, because they believe that it would set a precedent for same-sex marriages. I would argue that that is not the case. We are speaking of a very small number of people—unique people, who were married at a time when the transsexual person may have been trying not to come to terms with the fact that they suffered from gender dysphoria. That was quite common in the past but is much less common now, when that is a recognised condition for which medical treatment is available, and society is much more accepting of such people than it was.
      As the hon. Member for Sutton Coldfield (Mr. Mitchell) has said, denying such people the right to gender recognition and the right to continue with their marriage provides a choice, but it also requires them to deny themselves one set of rights in order to acquire another. Many trans-couples have written to the Minister and his colleague in the House of Lords setting out their concerns; for example, Janet and Sarah Wood, who demand the right to retain their marriage and to have Sarah's correct gender recognised. Clearly, the hon. Gentleman's new clause would allow for that.
      Even at this late stage, I ask the Government to consider whether that small number of cases should not be allowed to go through. It would be a time-expired phenomenon, as, rightly, the new clause requires that the marriage should have taken place before Royal Assent to the Act. It is therefore clear that, when the marriage took place, the persons involved were man and woman, and the person who subsequently had to accept that they are transgendered married in all good faith. That person was trying to take on board the implications of their birth gender before finally coming to the conclusion—which often seems like a matter of life and death—that they could no longer live in their

      1509
      birth gender, and had to accept that the only way for them to go forward in their life was to have gender reassignment.
      All those couples, as the hon. Gentleman pointed out, will have demonstrated their strong commitment to each other and many will have strong religious principles in relation to their marriage vows. They should be allowed to uphold those principles in a manner that does not affect anyone else and that causes no harm to any other person, and they should be allowed to enjoy the rights that will be given through this laudable legislation.
      Angela Watkinson: I apologise for not having been present to hear the earlier stages of this debate. Does the hon. Lady agree that there is a difference between undergoing gender reassignment treatment and acquiring a gender recognition certificate, and that when there are pre-existing marriages in which one partner undergoes gender reassignment, it is open to that person not to apply for the certificate if they wish their marriage to remain legal?
      Lynne Jones: Of course it is open to them not to apply for their human rights, but cases have gone to the European Court of Human Rights and such people have human rights. I believe that it is their right to apply for their correct gender to be recognised under the Bill and at the same time they should be able to maintain their commitment to the person to whom they are married, and in many cases, to the vows that they made when they married.
      Mr. David Bendel: Is it not the case that, if there is any point in passing this Bill at all, there must also be a point in passing this Bill for people who wish their marriages to remain? All the other things that the Bill will provide are just as important for them as for those who are happy to get divorced if, for example, they later want to go to a job interview.
      Lynne Jones: Sadly, most marriages fail when one spouse "transitions". We are talking about a very small number of very strong, binding marriages. The hon. Gentleman is right: why should a party to such a marriage forgo human rights granted in the European Court and now granted more widely in the Bill?
      5 pm
      Mr. Lammy: My hon. Friend has spoken throughout with the passion that we all expect of her. However, the right granted in article 12 of the European convention on human rights is the right to marry someone of the opposite sex. Strasbourg made it clear that it did not recognise same-sex marriage.[Interruption.]
      Lynne Jones: As the hon. Member for Sutton Coldfield says from a sedentary position, when the marriages took place the parties were of opposite sexes and believed that they were. The point is that the human right to obtain a gender recognition certificate is clearly not the right to marry, but the right to privacy under article 8, whereby a transgendered person should be able to acquire a birth certificate in his or her corrected gender.
      Dr. Evan Harris: A Statutory Instrument Committee considering the
      1510
      exciting subject of clinical trials directives prevented me from participating earlier. I am pleased to do so now. I feel that the excellent contribution of the hon. Member for Sutton Coldfield (Mr. Mitchell) exemplified what is best about the House when issues such as this are discussed. When there is a mixture of views within and across parties, thoughtful speeches are made and a coalition develops, in which Members whose perspectives may differ nevertheless seek the same changes in legislation.
      This subject was debated at length on Second Reading, on an occasion that both the hon. Member for Daventry (Mr. Boswell) and I remember well. It may be useful to recall some of the Government's arguments then, to see whether we can flush out some more detail.
      The hon. Member for Sutton Coldfield, my hon. Friend the Member for Winchester (Mr. Oaten) and I—all of whom have put our names to new clause 7—are not alone. We have the support of the Joint Committee on Human Rights, which has argued that it was perfectly possible for the Government not to insist that couples divorce in order to obtain their rights under the European convention. The Government have employed several arguments. The first is that people have a choice—that they are not being forced to end their marriages and can choose not to. As has been said, that is a terrible choice. It seems unreasonable to force people to choose between a human right recognised in case law and their marriages.
      In fact, the Government had a choice. Even while believing that they could not sanction the bringing together in marriage of people of the same gender, they could have taken the view that the marriage was between people of different genders at the time when the contract was made and that subsequent events should not mean that it should end without good reason. Instead of seeking to impose difficult choices on others, the Government should have recognised that they had a political choice to make.
      We have yet to hear from the right hon. Member for Bromley and Chislehurst (Mr. Forth), but I cannot imagine what terrible political consequences there might have been for the Government had they conceded that the small number of people who will have married before Royal Assent need not divorce to gain access to their full human rights. Indeed, they would have been supported by Liberal Democrats, some Conservatives and, I know, some Labour Members.
      Mr. Lammy: The hon. Gentleman in a sense makes the Government's point for us. He is right to say that the Government had a choice, and that choice centred around marriage for opposite-sex couples and civil partnerships for same-sex couples. The situation is difficult indeed for transsexual people in pre-existing marriages, but the Government have nevertheless made their choice.
      Dr. Harris: I accept that the Government have made their choice, and they have done so on the basis of further arguments that I shall briefly explore.
      Mr. Boswell: I am grateful to the hon. Gentleman for giving way and for the moderate way in which he is putting his case. Does he agree that, by the logic of his

      1511
      position, transsexual couples who wished to sever their relationship would not be able to do so by seeking annulment on the grounds of gender reassignment and the acquisition of a certificate? They would have to find other grounds for a divorce.
      Dr. Harris: I do not believe that that is the intention or consequence of the new clause. It is a relatively narrow clause that provides only for the relevant sections of the legislation not to apply in certain cases. I certainly believe that it is possible to frame legislation to meet my requirements.
      Another Government argument, and the only one that the Minister used in Committee, runs as follows,

      "We need to be clear that if existing marriages were not required to end, the Bill would pave the way for the creation of a small category of same-sex marriages. Those are not permitted under UK law and the Government do not intend to change that."—[Official Report. Standing Committee A, 9 March 2004; c. 66.]

      That is not a reason, but a statement of the Government's position. I sought in Committee to identify why the Government were not seeking to change that position, because it was tautological to state that they were not going to change the law because it was the law.
      In fairness, today the Minister has twice clarified in interventions his belief that marriage and the state of marriage, rather than entry into marriage, must be restricted to those of different genders. Again, that is a political judgment. The question that we must ask, for the small number of people for whom he is making a provision that will cause upset and distress, is why he is sticking by that narrow, specific interpretation. Those people would not be hurting anyone else. Were what we seek to be allowed, as it is in other parts of the world, the sky would not fall in and disaster would not occur. I do not even believe that there would be one of those moral panics that we have from time to time. The Minister must explain not only the basis for the decision, but the political reasons behind it. There does not seem to be clamour on all sides for the Government to take the view that they have taken.
      Finally, I turn to civil partnerships. As I said in Committee, my party welcomes civil partnerships as far as they go, but it does not appear that such partnerships will give rights equal to those that marriage provides. They are not with us yet, as we put this piece of legislation on to the statute book, and they are not the same as marriage for many people. Many people have chosen to get married because of the personal implications that that has for them. For those reasons, as the hon. Member for Sutton Coldfield said, although civil partnerships are welcome as far as they go, they do not let the Government fully off the hook on this issue. I applaud him for tabling new clause 7, and if he is not satisfied with the Minister's reply—which is for him to judge, but I suspect that he will not be—I hope that Liberal Democrat Members will join him in the Lobby in support of it.
      Mr. Forth: This debate shows all too well the convolutions into which the legislation is taking us. My hon. Friend the Member for Sutton Coldfield (Mr. Mitchell) illustrated that, unwittingly but all too
      1512
      well, by the way in which he had to try to justify his new clause 7. I can see the logic in the argument of my hon. Friend the Member for Daventry (Mr. Boswell), albeit that new clause 5 would affect an extremely small number of people, but it is new clause 7 on which I shall say a few words.
      Two issues have emerged from the debate. One, which always bothers me somewhat, is where we set out to alter the law and challenge long-standing conventions and social arrangements for the sake of very small groups of people in society. It is argued that it is self-evidently beneficial to identify ever-smaller groups of people and change the law to help them. Yet in some instances—this could be one—doing so endangers, challenges or undermines something of long standing that is very important to society. In this case, we are talking about marriage.
      Mr. Andrew Mitchell: If I might have the temerity to differ with my right hon. Friend, it is the Government who are seeking to challenge convention and to change the law. The very small group of people whom we have been talking about will be forced by this legislation to get divorced, and I am seeking to ensure that that change does not take place.
      Mr. Forth: As ever, my hon. Friend anticipates my next point, which concerns choice. Life is full of choices and we all have to make them from time to time. Some are very difficult and others less so, but to arrange the law simply so that people can avoid making very difficult choices is not a sound basis on which to work. However difficult it might be for the individuals, whom we are talking about, to change the law in the way proposed by my hon. Friend, so that they will not have to make a very difficult and painful choice, is not a good basis on which to argue for a change in the law, particularly if it would lead—as I fear his new clause would—to what would amount to the sanctification of same-sex marriage. That would be the inevitable result.
      This is exactly the issue that we must confront. However well intentioned, my hon. Friend's new clause would challenge marriage as we have understood it and as the Government continue to understand it, I am glad to hear; I hope that Conservative Front Benchers take the same view—and it would say to people that we are now in the business of trying to eliminate difficult choices from life and of easing their path, whatever the result might be.
      Richard Younger-Ross: On a doctrinal point, is it not true that many faiths and Churches would not in any case recognise a divorce under these circumstances, because we are talking about a sacrament that is taken, and which is there for life?
      Mr. Forth: That is an argument against the Bill itself, which I shall be voting against on Third Reading, as it happens. The more that we consider the Bill and its ramifications, the mole that it appears to be nonsense. I suspect that that was true in Committee and it has certainly been true this afternoon. One such nonsense the hon. Gentleman has just illustrated all too well. Whether or not one is a person of religion or faith—
      Richard Younger-Ross: I am sorry, but the right hon. Gentleman is being inconsistent. He says that he will

      1513
      vote against the new clause and against the Bill on Third Reading, but surely the consistent thing to do would be to vote for the new clause, which supports the doctrinal position.
      Mr. Forth: No, it would not. Sadly, I anticipate that this dreadful Bill will get on to the statute book, in which case my position is completely consistent. Although I will vote against the Bill, I have the slight feeling that I could be in a minority.[Interruption.] Oh yes, I have a feeling for these things. I have been in this place long enough to know when I am probably going to be outvoted. Today might be one of those occasions, in which case I shall carry the principle through to my hon. Friend's new clause.
      Mr. Andrew Mitchell: I am in a double embarrassment, for I fear that I might have to agree with the hon. Member for Teignbridge (Richard Younger-Ross). Is he not right in saying that it is perfectly possible to take the view of the Bill that my right hon. Friend takes while supporting my new clause? My right hon. Friend says that I am seeking to change the law, but it is the Government who are requiring the couples whom I described to make this dreadful choice between not receiving the certificate or getting divorced. That is the dilemma that they face.
      My right hon. Friend also say—shuddering as he does so—that my new clause could be a back-door way of supporting same-sex marriage, but I am not supporting same-sex marriage. All these people were married as man and woman, and that fact should be considered pertinent. Nothing should change it thereafter.
      Mr. Forth: Surely my hon. Friend recognises that, if a person is acknowledged to be of a new gender and if the marriage continues, the effect will be to have same-sex marriages. He cannot wriggle around by talking about the position before, during or after it happens: same-sex marriage will inevitably result.
      Mr. Mitchell rose—
      Mr. Bercow rose—
      Mr. Forth: I give way to my excitable hon. Friend.
      5.15 pm
      Mr. Bercow: The hon. Member for Teignbridge (Richard Younger-Ross) should understand one thing about my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth)—that his consistent view is that the world has been going progressively downhill since at least the 11th century and probably some hundreds of years before that. May I ask my right hon. Friend, in the best possible spirit, what a concession to a small group of people, whom many would judge deserving of it, can possibly do to undermine the great, valued and prized institution of marriage that he supports so much? Why does benefit to one group damage a great institution? Surely it is capable of sustaining itself, even in the event of the passage of new clause 4.
      Mr. Forth: I am grateful to my hon. Friend, but why he picked on the 11th century, I do not know. If pressed,
      1514
      I might well go much further back, but we will leave that debate for another day, Madam Deputy Speaker, because I know you disapprove of such digressions. We are here talking about slippery slopes and thin ends of wedges, with which my hon. Friend is as familiar as the rest of us. The sad truth is that every time we try to accommodate this or that group within society, we are in danger of undermining or challenging some of our long-standing and cherished traditions. For me, the new clause proposed by my hon. Friend the Member for Sutton Coldfield is, sad to say, an example of that, so I shall be unable to support it. On this occasion—I will not say these words very often, but they are appropriate now—I will be happy to support the Government.
      Richard Younger-Ross: We have heard how far back the right hon. Member for Bromley and Chislehurst (Mr. Forth) might like to go back. My first parliamentary foray was in the old parliamentary constituency of Chislehurst, so I well know that there are caves located there.
      The Government have challenged much religious thinking in introducing the Bill, but they may have become somewhat doctrinal in their position on new clause 7. When we could smell the smoke earlier, I wondered whether the fires of hell were opening up to consume those who were in favour of the Bill. On reflection, that is not the case, because much of the Bill is very Christian and religious. It recognises the genuine problems and the dilemma faced by transgender people.
      The new clause helps people who are in an invidious position. People who have been married in church, taken vows and made a sacrament or people of other faiths who have taken vows and committed themselves for life—"till death do us part"—will be faced with the dilemma of whether to change gender or not. If I changed my gender, I would have to get divorced and break the vow that I had made in church. As we discussed earlier, there are some inter-sex people and some whose gender may have been incorrectly prescribed at birth. Those people may not necessarily be committing a blasphemy, as some have claimed, because the marriage may not be between people of the same gender. The marriage may be between people of opposite genders, but it becomes a problem of legal necessity purely because of the gender on a birth certificate.
      Mr. Lammy: For the record, I must correct the hon. Gentleman. The inter-sex condition is clinically different from gender dysphoria and it is important that he is aware of that. Also, the Bill requires transsexual people to end their marriages in law, but the marriages could continue for religious purposes, as it were. Some religions do not recognise divorce for civil purposes.
      Richard Younger-Ross: I made the same point in an intervention on the right hon. Member for Bromley and Chislehurst. However, if religions can accept that marriages can carry on in those circumstances, why cannot the law do the same? Why are we creating an anomaly and putting a very small number of people in a totally invidious position? People who have felt trapped in the wrong body from an early age are under immense pressure. The Bill means that their inner man or woman

      1515
      can now be recognised, but at the very high cost of divorce. That leaves them between a rock and a hard place.
      Mr. Lammy: The hon. Gentleman makes a good point and it is true that such people are in a difficult position. However, let us take the example of a woman with gender dysphoria who meets the Bill's criteria, satisfies the panel and subsequently becomes a man. To all intents and purposes, that person then is a man and must accept what goes with that status. Therefore, if that person is in a pre-existing relationship, the civil partnership route may represent the best option. A marriage may be so important that a person may decide not to apply for the full gender recognition certificate. I accept that such judgments are difficult to make, but the Government are not forcing people down any route.
      Richard Younger-Ross: I do not accept that the Government are not forcing people down any route. People will be told what they can do, but then the door will be slammed in their faces. We must remember that the people involved are under great pressure. They may have felt since the age of five that they were in the wrong body, and gone through life with that feeling. If they are in their 50s, they may have had an operation 20 years ago, and lived as man and man, or woman and woman, for many years. All of a sudden, however, the Bill will mean that their relationship, and the fact that they live with each other, cannot be recognised as marriage any longer.
      That is cruel, and un-Christian, and I think it is wrong in doctrinal terms.
      Mr. Bercow: I endorse the hon. Gentleman's argument, but does he agree that the slippery slope or thin end of the wedge argument is discredited in respect of new clause 4, as a result of the publication of the Civil Partnership Bill that is going through another place at present? The Government have made it clear that their commitment is to civil partnerships for same-sex couples, but not to same-sex marriage. Indeed, they specifically and unequivocally oppose the creation of same-sex marriages, so the canard that the hon. Gentleman raises will not run.
      Richard Younger-Ross: The hon. Gentleman makes his point well, as he did earlier. However, there is no thin end of the wedge in this case, because the number of people involved is so limited. Moreover, new clause 7 is time-limited and applies only to marriages entered into before the legislation is granted Royal Assent. I hope that hon. Members who oppose the Bill will accept that new clause 7 would be a proper amendment to make to the Bill. People who might have opposing views on the Bill could unite to defeat the Government, who have taken an incorrect doctrinal and legal standpoint.
      Mr. Lammy: Never did I think that I would be on the same side as the right hon. Member for Bromley and Chislehurst (Mr. Forth), but on this occasion I am. The issue of existing marriages is a difficult one and we discussed it at length on Second Reading and in
      1516
      Committee. I have made the Government's view clear again today, and little would be gained from repeating all the arguments.
      The new clause is similar to the one moved by the hon. Member for Oxford, West and Abingdon (Dr. Harris) in Committee and it would allow for the marriages of those couples who were married before the date of Royal Assent to continue. I accept the argument that was made in Committee that such an amendment would naturally limit the number of couples whose marriages would subsist. However, we cannot escape the fact that those marriages would be same-sex marriages, and they are not permitted under UK law. It is as simple as that.
      The decision has been difficult to make. As Lord Filkin said in the other place, it is hard to look someone in the eye and say no. The hon. Member for Buckingham (Mr. Bercow) made the point squarely, however, when he said that this is a matter of principle for the Government. I look forward to the debates, in which I shall take part, on the Civil Partnership Bill, but marriage as an institution is for opposite-sex couples.
      We do not deny that the Bill will have an impact on the couples in question. However, in deciding whether to seek legal recognition of their acquired gender, people will have to take all the implications of the change into account, including the effect on an existing marriage. That may be difficult, but we are talking about adults—the Bill will only affect those over the age of 18—and they will have to think the issues through. As I said in Committee, the Bill will have an emotional impact on those couples who have to end their marriages, but that will not be unexpected. Couples will have had a long time to prepare for it. Indeed, many couples in that situation have already made their decisions.
      We have also considered the practical impact of the Bill on finances, arrangements for children and mutual rights and responsibilities. As I said earlier, the courts will be able to decide on some of the issues that arise, especially in cases of contention between the two parties.
      The Government seek to safeguard the nature of marriage as an institution for opposite-sex couples. We do not believe that it is acceptable to create even a small category of same-sex marriages. At the same time, we are working hard to ensure a smooth transition into civil partnership for couples who want to stay together. Indeed, schedule 3 of the Civil Partnership Bill is devoted to providing couples who have to end their marriage with the means to form a civil partnership on the same day as the dissolution of their marriage.
      5.30 pm
      New clause 4 raises an issue that we also discussed in Committee. I said then that the Government had not provided for the situation of two transsexual people who are married to one another, as the circumstances were extremely remote. I have to tell the hon. Member for Daventry (Mr. Boswell) that that remains our position.
      For the new clause to have effect, there would have to be a situation in which two transsexual people were married to one another, and both were able to satisfy the criteria for recognition in the acquired gender at the same time. We must also bear in mind the fact that the

      1517
      total number of transsexual people in the UK is only about 5,000, and that only between 100 and 200 of them are in existing marriages.
      There are only two ways in which the situation to be addressed by the proposal could arise. The first is that two people who married each other in their birth gender, without any feelings of gender dysphoria, were subsequently both diagnosed with gender dysphoria and began to live in the other gender. Given the low incidence of that, it is incredible to suppose that two people who were married to each other would both be diagnosed with gender dysphoria.
      The second possibility, however, is that two people who were both already living in an acquired gender would marry one another. They would thus be an opposite-sex couple, but would need to marry in the gender in which they were no longer living. The person living as a man would have to present as a woman, as that would remain his gender in law, and the person living as a woman would present as a man. We do not expect that transsexual people will do that. Hence, again, we find that the possibility raised by the new clause is incredibly remote.
      Nevertheless, if that possibility were to arise, and both spouses wanted to change gender at about the same time, we think that that would be such a major change in the nature of their marriage—with the identities of the man and wife in the couple swapping over—that it is not unreasonable to require the marriage to end, and for a new marriage to be contracted afterwards.
      Mr. Boswell: I am following the Minister's argument with interest and will comment on it in a moment, but can he tell the House whether the seamless procedure envisaged for what would become, under the Bill, a same-sex couple to move front marriage to civil partnership would be available in the annulment of a marriage between persons of different genders who had both received gender recognition certificates, so that they could remarry almost immediately in their acquired gender?
      Mr. Lammy: We would expect registrars to look sympathetically on applications for a reduced notice period. It would thus be possible for the couple to remarry on the very next day. There could be a gap of 24 hours during which the relationship had no legal status, but given that the existence of such marriages is an incredibly remote possibility, the Government do not believe that such a 24-hour period would be too problematic.
      Based on a fundamental principle, the Government stand by the requirement that marriage is for opposite-sex couples. I realise that the hon. Gentleman's proposal is well intentioned towards transgendered people who are together, but the Government's position is that such a possibility is remote, and in those circumstances, we believe that ending such a marriage and beginning afresh would not be unreasonable. On that basis, I am unable to accept the new clause.
      Mr. Boswell: I am somewhat disappointed in the Minister's response. His essential argument was that this is a such a small and unlikely set of circumstances that we should not even contemplate legislating,
      1518
      although he sought to dress that up later by saying that it amounted to a radical change in the marriage. I understand that there is at least some significance in that view, but the point is that there is no change of gender.
      Lynne Jones: I disagree with the hon. Gentleman, because the most likely scenario when two trans-people are in a legal marriage is that they will have known each other in their transgender identity, so they will have known when they contracted the marriage that, for legal purposes, the trans-woman was married as a man and that, for the same reasons, the trans-man was married as a woman.
      Mr. Boswell: I am sensitive to that point. That is quite possible. Indeed, in seeking to minimise the intellectual problem that the Minister had, he sought to minimise the numbers involved. They are more than zero already and, clearly, they will be in the future. At least we heard some assurances about the ability to put such things right within 24 hours—not an ideal arrangement, but it has at least arisen during the passage of the Bill through the House.
      Mr. Andrew Mitchell: Following what my hon. Friend has said, I have listened very carefully to what the Minister said about new clause 7. There is a difference of principle between him and those hon. Members from all three main parties who have spoken to new clause 7. There is a great difference between getting married and the rules on same-sex marriages, on which he and I agree, and what happens during a happy marriage. On those grounds, if I am able to, I shall seek to divide the House on new clause 7.
      Mr. Boswell: Before I sit down to allow the House to reach a conclusion on the matter, I wish to say that I do not propose press new clause 4 to a Division, in the light of what my hon. Friend has said, although he will equally understand that, because of the reservations that have been expressed not just by Labour Members but by my right hon. and hon. Friends, I may not be able to follow him into the Lobby. In the light of those exchanges, for the avoidance of doubt and to facilitate my hon. Friend if he wishes to persist in pressing new clause 7 to a Division, I beg to ask leave to withdraw the motion.
      Motion and clause, by leave, withdrawn.

    New Clause 5

      DISCLOSURE OF PURPOSES OF CRIMINAL RECORDS BUREAU CHECKS
      `It shall be a defence against any charge of the disclosure of protected information under section 22 that the information was disclosed by an individual in connection with Criminal Records Bureau checks; and it is an offence for any person who has obtained a gender recognition certificate to fail to disclose in any such application that he or she has obtained a gender recognition certificate:.—[Mr. Boswell.]
      Brought up, and read the First time.
      Mr. Boswell: I beg to move, That the clause be read a Second time.
      I will motor on with this new clause because I am conscious of the fact that the House wishes to make a decision on the other matter. New clause 5 is designed to

      1519
      pick up a somewhat fragmented and rushed discussion in Committee and relates to Criminal Records Bureau checks. In the light of recent events, there is absolutely no disagreement among hon. Members about the fact that that is an important subject; we are anxious that relevant information is conveyed as it should be and that effective checks are made.
      My interest in the issue was to some extent stimulated by the Evangelical Alliance, but its concerns go much more widely. The purpose of my new clause is, first, to make it absolutely clear that, under the somewhat restrictive clause 22, there would be no restriction on the conveyance of information in relation to Criminal Records Bureau checks. People would not be up before the beak because they had furnished information about those checks that could be of value. Secondly, my new clause would deal with the individual who received a gender recognition certificate who might not choose to disclose that information for the assistance of the bureau.
      Let me briefly summarise my understanding of the position, which is derived from some of the correspondence that I have seen between the Home Office and outside parties; I am not absolutely clear of its status, so I shall not draw on it formally or in terms. Following the Goodwin judgment, the CRB put in place a regime that was described as a compromise—a perfectly proper one—between the rights of the transgendered person to live in their own identity and the rights of the CRB to secure the necessary safeguards. That regime has applied ever since. I think that it probably works—I seek the Minister's confirmation of that—and that it therefore deals with the first part of the new clause.
      Outside interests rightly asked what would happen if the transgendered person made no reference to their change of legal status and, as a result, some of their previous identities were not picked up. I understand that the CRB, the Home Office and the Department for Constitutional Affairs are discussing that question. I assure the Minister that my aim is not to make trouble —the matter is far too serious for that—nor do I suggest that anyone would seek gender reassignment or to acquire a gender recognition certificate in order to carry out nefarious activities. However, it is most important that the process set out in the Bill does not become a means by which people can slip through the net.
      Mr. Lammy indicated assent.
      Mr. Boswell: The Minister is nodding. I hope that he will share with the House his thoughts on how the discussion is going, and that he can assure the House that the arrangements are as watertight as possible; that the bureau will know what it needs to know even if a gender recognition certificate has been issued; that no one can escape the reasonable checks that are imposed on us all in certain circumstances—I hold a disclosure certificate myself, as it happens—and that people must act in good faith and draw the bureau's attention to any certificate that is relevant or that might conceal a previous identity. If the Minister can give those assurances, we shall all feel a lot happier.
      Mr. Lammy: I am grateful to the hon. Member for Daventry (Mr. Boswell) for tabling the new clause. The
      1520
      Criminal Records Bureau exists to help employers in the private, public and voluntary sectors correctly to identify candidates who may be unsuitable for certain work, particularly work involving regular contact with children or with vulnerable or disabled adults, by running background checks against records held by the police, the Department of Health and the Department for Education and Skills. The employer will ask the candidate or applicant for such a sensitive position to complete a disclosure application form, in which he or she is asked to give consent to checks on details against data sources. That consent will enable verification of identity and enable the application for CRB checks to be processed.
      Given that the applicant will have consented to the checking process and that clause 22(4)(b) provides an exemption that enables protected information to be disclosed where the person has agreed to it, we do not believe that it is necessary to provide any further protection for those who provide information in response to CRB inquiries. An additional safeguard, which I mentioned in Standing Committee, is that subsection (4)(f) provides that disclosure is permissible if it is for the purposes of preventing or investigating crime. The hon. Gentleman will understand that that wide provision is designed to pick up the possibilities that he envisages.
      The second half of the new clause proposes that it be made an offence for an applicant who has a full gender recognition certificate to fail to disclose that fact. The disclosure application form contains questions that must be answered and others that require an answer if they are applicable to the person concerned. The latter category would include details from which a gender change might be inferred such as details of previous names. Failure to provide the information needed to carry out background checks or knowingly to make a false statement is a criminal offence and may result in prosecution.
      5.45 pm
      The Criminal Records Bureau, in response to the Goodwin and "I" rulings of the European Court of Human Rights, which the hon. Member for Daventry brought to the attention of the House, has decided that a transsexual applicant facing the dilemma of revealing their gender history to an employer or voluntary body can exercise their right to privacy by omitting previous identity details on the disclosure application form itself. Instead, transsexual people are required to send a separate notification of previous identity details directly to the Criminal Records Bureau, which has systems in place enabling the inquiry from the employer or voluntary body and the separate notification to be linked and matched. The usual checks will then be triggered.
      I assure the House and the hon. Gentleman that the guidance accompanying application forms for the gender recognition panels will make it very clear that failure to provide additional information in support of the disclosure application could result in prosecution. That guidance will be similar to the guidance attached to a passport application. We therefore believe that the process operated by the CRB properly balances the

      1521
      privacy interest of the transsexual person with the wider interest of checking criminal records, so the safeguards sought by the new clause already exist.
      The House will also be aware that the Bichard inquiry is looking into wider issues, and should recommendations be made I am sure that we will have an opportunity to discuss what more can be done.
      Mr. Boswell: I am grateful to the Minister, who has sought in good faith to respond in detail and with precision to concerns expressed both by outside interests and by myself. I will study his answer carefully, but prima facie he has made a convincing case that the matter has been considered and decisions made that again seek to achieve a proper balance between, on the one hand, the interests of the transsexual person and their right to privacy and, on the other, the interests of the wider community and the right to security enforced through the work of the CRB. As he rightly said, a major inquiry is under way, and he has demonstrated openness about accepting lessons that it may draw. In the light of his implication that if anything further needs to be done after the inquiry or for any other reason, he will pursue that with his colleagues, I beg to ask leave to withdraw the motion.
      Motion and clause, by leave, withdrawn.

    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 be fore the date of Royal Assent of this Act.'.—[Mr. Andrew Mitchell.]

      Brought up, and read the First time.
      Question put, That the clause be read a Second time:—
      The House divided: Ayes 94, Noes 303.

      Division No. 188]

      [5:48 pm

      AYES

      Allan, Richard

      Donaldson, Jeffrey M.

      Amess, David

      Doughty, Sue

      Ancram, rh Michael

      Duncan, Peter(Galloway)

      Baker, Norman

      Ewing, Annabelle

      Barrett, John

      Fabricant Michael

      Beggs, Roy(E Antrim)

      Fallon, Michael

      Bellingham, Henry

      Flook, Adrian

      Bercow, John

      Foster, Don(Bath)

      Bottomley, Peter(Worthing W)

      George, Andrew(St. Ives)

      Brake, Tom(Carshalton)

      Gidley, Sandra

      Brooke, Mrs Annette L.

      Green, Damian(Ashford)

      Bruce, Malcolm

      Hancock Mike

      Burstow, Paul

      Harris, Dr. Evan(Oxford W & Abingdon)

      Burt, Alistair

      Cable, Dr. Vincent

      Harvey, Nick

      Chidgey, David

      Hayes, John(S Holland)

      Collins, Tim

      Hendry, Charles

      Corbyn, Jeremy

      Hermon, Lady

      Davis, rh David(Haltemprice & Howden)

      Holmes, Paul

      Howarth Gerald(Aldershot)

      Dodds, Nigel

      Jones, Lynne(Selly Oak)

      1522

      Keetch, Paul

      Russell, Bob(Colchester)

      Kennedy, rh Charles(Ross Skye & Inverness)

      Salmond, Alex

      Sanders, Adrian

      Kirkbride, Miss Julie

      Selous, Andrew

      Kirkwood, Sir Archy

      Smith, Sir Robert(W Ab'd'ns & Kincardine)

      Laing, Mrs Eleanor

      Lamb, Norman

      Smyth, Rev. Martin(Belfast S)

      Laws, David(Yeovil)

      Stinchcombe, Paul

      Leigh, Edward

      Swayne, Desmond

      Liddell-Grainger, Ian

      Syms, Robert

      Lidington, David

      Taylor, Matthew(Truro)

      Llwyd, Elfyn

      Taylor, Dr. Richard(Wyre F)

      McDonnell, John

      Thomas, Simon(Ceredigion)

      Mackay, rh Andrew

      Tonge, Dr. Jenny

      McLoughlin Patrick

      Turner, Andrew(Isle of Wight)

      Mitchell, Andrew(Sutton Coldfield)

      Tyler, Paul(N Cornwall)

      Tyrie, Andrew

      Moore, Michael

      Waterson, Nigel

      Moss, Malcolm

      Webb, Steve(Northavon)

      Murrison, Dr. Andrew

      Weir, Michael

      Oaten, Mark(Winchester)

      Whittingdale, John

      Öpik, Lembit

      Williams, Hywel(Caernarfon)

      Osborne, George(Tatton)

      Williams, Roger(Brecon)

      Ottaway, Richard

      Willis, Phil

      Price, Adam(E Carmarthen & Dinefwr)

      Winterton, Sir Nicholas(Macclesfield)

      Wishart, Pete

      Reid, Alan(Argyll & Bute)

      Young, rh Sir George

      Rendel, David

      Robathan, Andrew

      Tellers for the Ayes:

      Robertson, Angus(Moray)

      Richard Younger-Ross and

      Robinson, Peter(Belfast E)

      Mr. Paul Goodman

      NOES

      Abbott, Ms Diane

      Cawsey, Ian(Brigg)

      Adams, Irene(Paisley N)

      Challen, Colin

      Ainger, Nick

      Chapman, Ben(Wirral S)

      Ainsworth, Bob(Cov'try NE)

      Chaytor, David

      Allen, Graham

      Clapham, Michael

      Armstrong, rh Ms Hilary

      Clark, Paul(Gillingham)

      Atkins, Charlotte

      Clarke, rh Tom(Coatbridge & Chryston)

      Austin, John

      Baird, Vera

      Clarke, Tony(Northampton S)

      Banks, Tony

      Clelland, David

      Barnes, Harry

      Clwyd, Ann(Cynon V)

      Barron, rh Kevin

      Coaker, Vernon

      Battle, John

      Coffey, Ms Ann

      Bayley, Hugh

      Cohen, Harry

      Beard, Nigel

      Coleman, lain

      Begg, Miss Anne

      Colman, Tony

      Bell, Sir Stuart

      Connarty, Michael

      Bennett, Andrew

      Cook, Frank(Stockton N)

      Berry, Roger

      Cooper, Yvette

      Best, Harold

      Cousins, Jim

      Betts, Clive

      Cran, James(Beverley)

      Blackman, Liz

      Cranston, Ross

      Borrow, David

      Cryer, Ann(Keighley)

      Boswell, Tim

      Cryer, John(Hornchurch)

      Bradley, rh Keith(Withington)

      Cummings, John

      Bradley, Peter(The Wrekin)

      Cunningham, Jim(Coventry S)

      Brown, rh Nicholas(Newcastle E Wallsend)

      Cunningham, Tony(Workington)

      Dalyell, Tam

      Brown, Russell(Dumfries)

      Darling, rh Alistair

      Browne, Desmond

      Davidson, Ian

      Buck, Ms Karen

      Davies, rh Denzil(Llanelli)

      Burden, Richard

      Davies, Geraint(Croydon C)

      Burgon, Colin

      Dawson, Hilton

      Burnham, Andy

      Dean, Mrs Janet

      Byers, rh Stephen

      Denham, rh John

      Cairns, David

      Dhanda, Parmjit

      Campbell, Alan(Tynemouth)

      Dobson, rh Frank

      Campbell, Mrs Anne(C'bridge)

      Donohoe, Brian H.

      Campbell, Ronnie(Blyth V)

      Doran, Frank

      Caplin, Ivor

      Dowd, Jim(Lewisham W)

      Casale, Roger

      Drew, David(Stroud)

      Caton, Martin

      Dunwoody, Mrs Gwyneth

      1523

      Eagle, Angela(Wallasey)

      Keeble, Ms Sally

      Eagle, Maria(L'pool Garston)

      Keen, Alan(Feltham)

      Edwards, Huw

      Keen, Ann(Brentford)

      Ellman, Mrs Louise

      Kelly, Ruth(Bolton W)

      Ennis, Jeff(Barnsley E)

      Kennedy, Jane(Wavertree)

      Etherington, Bill

      Khabra, Piara S.

      Farrelly, Paul

      Kidney, David

      Field, rh Frank(Birkenhead)

      Kilfoyle, Peter

      Field, Mark(Cities of London & Westminster)

      King, Andy(Rugby)

      King, Ms Oona(Bethnal Green & Bow)

      Fisher, Mark

      Fitzpatrick, Jim

      Knight, Jim(S Dorset)

      Fitzsimons, Mrs Lorna

      Kumar, Dr. Ashok

      Flynn, Paul(Newport W)

      Lammy, David

      Follett, Barbara

      Lawrence, Mrs Jackie

      Forth, rh Eric

      Laxton, Bob(Derby N)

      Foster, rh Derek

      Lepper, David

      Foster, Michael Jabez(Hastings & Rye)

      Levitt, Tom(High Peak)

      Lewis, Terry(Worsley)

      Francis, Dr. Hywel

      Linton, Martin

      Gapes, Mike(Ilford S)

      Lloyd, Tony(Manchester C)

      George, rh Bruce(Walsall S)

      Love, Andrew

      Gerrard, Neil

      Lucas, Ian(Wrexham)

      Gibson, Dr. Ian

      Luff, Peter(M-Worcs)

      Griffiths, Jane(Reading E)

      Luke, lain(Dundee E)

      Griffiths, Nigel(Edinburgh S)

      Lyons, John(Strathkelvin)

      Griffiths, Win(Bridgend)

      McAvoy, rh Thomas

      Grogan, John

      McCabe, Stephen

      Hain, rh Peter

      McCafferty, Chris

      Hall, Mike(Weaver Vale)

      McDonagh, Siobhain

      Hall, Patrick(Bedford)

      MacDonald, Calum

      Hamilton, David(Midlothian)

      McFall, John

      Hamilton, Fabian(Leeds NE)

      McGuire, Mrs Anne

      Hanson, David

      Mclsaac, Shona

      Harman, rh Ms Harriet

      McKechin, Ann

      Harris, Tom(Glasgow Cathcart)

      Mackinlay, Andrew

      Havard, Dai(Merthyr Tydfil & Rhymney)

      McNulty, Tony

      Mactaggart, Fiona

      Healey, John

      McWalter, Tony

      Henderson, Ivan(Harwich)

      McWilliam, John

      Hendrick, Mark

      Mahon, Mrs Alice

      Hepburn, Stephen

      Mandelson, rh Peter

      Heppell, John

      Mann, John(Bassetlaw)

      Heyes, David

      Marris, Rob(Wolverh'ton SW)

      Hill, Keith(Streatham)

      Marsden, Gordon(Blackpool S)

      Hinchliffe, David

      Marshall-Andrews, Robert

      Hodge, Margaret

      Martlew, Eric

      Hoey, Kate(Vauxhall)

      Merron, Gillian

      Hoon, rh Geoffrey

      Miliband, David

      Hope, Phil(Corby)

      Miller, Andrew

      Hopkins, Kelvin

      Moffatt, Laura

      Howarth, rh Alan(Newport E)

      Mole, Chris

      Howarth, George(Knowsley N & Sefton E)

      Moonie, Dr. Lewis

      Moran, Margaret

      Howells, Dr. Kim

      Morgan, Julie

      Hughes, Kevin(Doncaster N)

      Morris, rh Estelle

      Humble, Mrs Joan

      Munn, Ms Meg

      Hurst, Alan(Braintree)

      Murphy, Denis(Wansbeck)

      Hutton, rh John

      Murphy, Jim(Eastwood)

      Iddon, Dr. Brian

      Naysmith, Dr. Doug

      Illsley, Eric

      O'Brien, Bill(Normanton)

      Ingram, rh Adam

      O'Hara. Edward

      Irranca-Davies, Huw

      Olner, Bill

      Jackson, Glenda(Hampstead & Highgate)

      Organ, Diana

      Owen, Albert

      Jackson, Helen(Hillsborough)

      Palmer, Dr. Nick

      Jenkins, Brian

      Perham, Linda

      Johnson, Miss Melanie(Welwyn Hatfield)

      Pickthall, Colin

      Pike, Peter(Burnley)

      Jones, Helen(Warrington N)

      Plaskitt, James

      Jones, Jon Owen(Cardiff C)

      Pollard, Kerry

      Jones, Kevan(N Durham)

      Pope, Greg(Hyndburn)

      Jones, Martyn(Clwyd S)

      Pound, Stephen

      Jowell, rh Tessa

      Prentice, Ms Bridget(Lewisham E)

      Joyce, Eric(Falkirk W)

      Kaufman, rh Gerald

      Prentice, Gordon(Pendle)

      1524

      Prosser, Gwyn

      Stringer, Graham

      Purchase, Ken

      Stuart, Ms Gisela

      Purnell, James

      Tami, Mark(Alyn)

      Quin, rh Joyce

      Taylor, rh Ann(Dewsbury)

      Quinn, Lawrie

      Taylor, Dari(Stockton S)

      Randall, John

      Taylor, Sir Teddy

      Rapson, Syd(Portsmouth N)

      Thomas, Gareth(Clwyd W)

      Raynsford, rh Nick

      Timms, Stephen

      Reed, Andy(Loughborough)

      Tipping, Paddy

      Robinson, Geoffrey(Coventry NW)

      Todd, Mark(S Derbyshire)

      Trickett, Jon

      Roche, Mrs Barbara

      Turner, Dennis(Wolverh'ton SE)

      Ross, Ernie(Dundee W)

      Turner, Dr. Desmond(Brighton Kemptown)

      Roy, Frank(Motherwell)

      Ruane, Chris

      Turner, Neil(Wigan)

      Ruddock, Joan

      Twigg, Derek(Halton)

      Russell, Ms Christine(City of Chester)

      Vaz, Keith(Leicester E)

      Vis, Dr. Rudi

      Salter, Martin

      Walley, Ms Joan

      Savidge, Malcolm

      Ward, Claire

      Sawford, Phil

      Wareing, Robert N.

      Sedgemore, Brian

      Watkinson, Angela

      Shaw, Jonathan

      Watson, Tom(W Bromwich E)

      Sheerman, Barry

      Watts, David

      Sheridan, Jim

      White, Brian

      Simpson, Alan(Nottingham S)

      Whitehead, Dr. Alan

      Singh, Marsha

      Wicks, Malcolm

      Skinner, Dennis

      Williams, Betty(Conwy)

      Smith, rh Chris(Islington S & Finsbury)

      Wills, Michael

      Winnick, David

      Smith, Geraldine(Morecambe & Lunesdale)

      Winterton, Ms Rosie(Doncaster C)

      Wood, Mike(Batley)

      Smith, John(Glamorgan)

      Woodward, Shaun

      Smith, Llew(Blaenau Gwent)

      Woolas, Phil

      Southworth, Helen

      Worthington, Tony

      Spicer, Sir Michael

      Wright, Anthony D.(Gt Yarmouth)

      Squire, Rachel

      Starkey, Dr. Phyllis

      Wright, David(Telford)

      Steinberg, Gerry

      Wright, Tony(Cannock)

      Stevenson, George

      Wyatt, Derek

      Stewart, David(Inverness E & Lochaber)

      Tellers for the Noes:

      Stewart, Ian(Eccles)

      Mr. Fraser Kemp and

      Strang, rh Dr. Gavin

      Joan Ryan

      Question accordingly negatived.
      MADAM DEPUTY SPEAKER then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour, pursuant to Order [23 February].
      Government amendments Nos. 3 and 4 agreed to.
      Order for Third Reading read.
      6.4 pm
      Mr. Lammy: I beg to move, That the Bill be now read the Third time.
      I am grateful for the co-operation and assistance of the Under-Secretary of State for Work and Pensions, my hon. Friend the Member for Liverpool, Garston (Maria Eagle). She has tackled important pensions issues that have concerned many hon. Members and I thank her for her detailed deliberations on those matters.
      This is a Bill with a simple rationale. It addresses the difficulties faced by a small, vulnerable minority who have been denied basic legal rights for too long, and seeks to provide transsexual people with legal recognition of an everyday reality: the gender to which they now belong. On meeting the criteria in the Bill, a person will become in law the gender in which he or she

      1525
      now lives. That means that he or she will be able to get a birth certificate that reflects the acquired gender, and be able to marry or claim a pension in that gender.
      Of course, a Bill of this kind raises issues about the rights of others. We have had an important debate today about the right to freedom of religion, and I hope that we have demonstrated that we are alive to those concerns and are engaging with religious communities and their representatives. Just as the Bill provides legal recognition of the identity of transsexual people, it also respects the conscience of others.
      Many hon. Members have made an invaluable contribution to scrutiny of the Bill. The hon. Member for Daventry (Mr. Boswell) has been remarkably thorough, and in Committee he tabled a series of probing amendments that allowed us further to discuss some of the key aspects of the Bill. The Government amendment on placing the panels under the supervision of the Council on Tribunals—which was agreed to today—was a consequence of one of those probes.
      The hon. Members for Oxford, West and Abingdon (Dr. Harris) and for Teignbridge (Richard Younger-Ross) welcomed the Bill, and although there were areas in which they would have preferred the Government to legislate otherwise, I hope that they agree with the view expressed by members of the transsexual community that the Bill meets 95 per cent. of the needs of transsexual people.
      On the Labour Benches, my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) merits particular credit. She has been a forceful advocate of the rights of transsexual people for many years in the House. She set up the parliamentary forum on transsexualism, and she has brought her expertise and experience to bear on our consideration of the Bill. She and the hon. Member for Oxford, West and Abingdon both caused us to reconsider the issue of foreign gender change and to table the amendment to clause 21 that was agreed to earlier today.
      Perhaps most importantly of all, hon. Members have discussed these issues with compassion and understanding, and I know that that has been appreciated beyond the Chamber. Many in the small community of transsexual people feel that they are excluded no more, that the House does not regard their concerns as trivial, and that the Bill is creating a robust and credible process whereby they can gain legal recognition of the gender in which they now live.
      The Bill is about equality, human rights, dignity and respect. We judge our civilised societies by how they treat their minority communities. I suspect that the House has never before had to consider equality and human rights legislation on behalf of such a small minority, and it is a credit to the House that this judgment has been made today and that the Bill should receive its Third Reading.
      6.8 pm
      Mr. Boswell: I should like to say at the start that I remain a supporter of the Bill, but that the Conservatives have decided to have a free vote on it. That will already have become apparent from the voting that took place earlier.
      The House is often criticised for spending its time on trivia when there are other, more important things to discuss, but is to be commended today for spending a
      1526
      day of its time on a matter of intense interest to a small number of affected persons. It is a very small number in comparative terms: perhaps 5,000 people. Whatever else one may say about the transsexual community, they probably have very little direct political influence. It is therefore important that we address their interests if there is something wrong.
      The Minister spoke strongly and eloquently about his commitment to human rights. That commitment is by no means confined to those on the Government Benches. I would say that if a human right is denied to one person for no good reason, that is a denial of one human right too many. How we implement that commitment and the interlocking with other commitments is the whole substance of our consideration.
      Bearing in mind the historic wrongs suffered by the transsexual community and the degree of misunderstanding that is still apparent, the tone of our debates has been extremely important. I have tried to bear that in mind, and I know the Minister has. Hon. Members with different positions on the issue have generally brought that kind of flavour to our deliberations. It does this place credit and shows respect for the people we have been discussing. That has gone on throughout our debates and I hope it will continue into the post-legislative resolution of some of the issues.
      In my own approach to the Bill, I have applied an overriding simple test: is there a wrong that needs to be remedied? Yes, I believe there has been. I ask myself two further questions: does the remedy create potentially difficult precedents and/or would it do more harm than good in practice? On the first question, we have just voted on a proposal, which, the House agreed, would have the effect of validating a very limited number of same-sex marriages. The Minister and I found ourselves in the same Lobby opposing that on principle, even if we have great sympathy for those people in practice. That is the type 1 danger. The type 2 danger is that although we may be legislating with good intentions, in practice our best intentions may be frustrated by difficulties. I cite as an example, as it was the last major debate that we had, the issue of Criminal Records Bureau checks. Anything in the Bill that made those more difficult to effect would be wrong. We must apply those tests.
      The debates today and in Committee and, if I may add to the Minister's general commendation of those who participated in these debates, also in another place, have been an example of Parliament working well together, and that includes the Minister's colleagues as well as himself. Throughout this proper period—the kind that we do not always spend on legislation—we have had some indication of particular problems. Some of those are hypothetical problems or ones that may arise in the future. They generally will not arise at the instigation of transsexual people, who will want to be able to enjoy their rights. I hope that nobody else will make a political demonstration about the issues or turn matters into a lawyers' paradise. There are better, less sensitive and more lucrative matters for lawyers to argue about.
      We have had in Committee and on Report ministerial assurances about matters that could be difficult and difficulties that we anticipated. We have been broadly satisfied with those assurances. That may be reflected in

      1527
      the way that some of us vote. We will probably keep our fingers crossed that those assurances work in practice. I recognise that some hon. Members will have no coincidence of view on the principle and will still be unable to reconcile themselves to the Bill, but on the practical side we may have made some progress.
      As regards my personal judgment of the Bill, let me put two points to the House for consideration. They may have slightly wider application than just to the Bill. First, as Ministers have constantly conceded, we need to find an appropriate balance between the human rights of individuals. Where those rights conflict, that conflict must be resolved. The Bill arose from European human rights legislation based on articles 8 and 12, and the UK's apparent breach of those provisions. A very powerful case today has today been deployed for the protection of religious rights, as the Minister has acknowledged. which are enshrined under article 9 of the European convention on human rights. As I suggested in my comments on that new clause, we may find that some of the issues in relation to conflict of rights, and different obligations to secure rights, become more common in the future. Perhaps all the easy work on human rights has been done, and the difficult work, and some of the tensions, will build up later.
      This is not just a matter for the lawyers. It is also about society's acceptance of these rights and the way in which it can be comfortable with them, at ease with itself and at ease with the new situation that has been created. As I said, I know that some hon. Members will feel uneasy about that. We should do nothing to inflame that situation, because were we to do so, we would prejudice the newly acquired rights of transgendered people.
      My second point is that however Members intend to vote in a few moments, while it is easy to spot problems and pick holes in the legislation, leaving matters as they are would also be extremely difficult and, in my view, less satisfactory. Let us consider an actual situation—many of us will be familiar with similar ones—of a couple who are constituents. They are legally a man and a woman, married and living together over a number of years, and in a firm and loving relationship. One of them has already undergone gender reassignment surgery. It is difficult, as they would have to sever their marriage if that person were to avail themselves of the procedure for a gender recognition certificate. In everything except the legal sense, however—we are legislating tonight, and our concern is the legal meaning—those persons are already a same-sex couple. Incidentally, that is one reason why it is extremely important that we have now got the Government to come forward with the civil partnerships legislation, at least to provide a way of resolving some of these issues.
      I say to some of my colleagues that just saying, "This is all a bit odd. We don't like how it sounds," is perhaps to condone other situations in which these rare but not insignificant cases have created dilemmas for us all. We should not run away from those. When the House confronts a dilemma, the answer is not to look for a simplistic solution or to consider how it plays in the tabloids, but to try to find the right approach.
      1528
      Were there a simple answer, we would either be making no changes tonight because we had got it right, or we would have male those changes long ago, because we would have needed to do so and it would have been easy. We would probably not be making them now were it not for the judgment of the European Court of Human Rights, but that has spurred Ministers into action, in my view, constructively.
      We are making those changes, and the Bill will pass shortly, if not without dissent. Even with its problems, on balance—to use the phrase for the last time—I welcome the Bill's righting of wrongs to a minority. I wish it well as it passes.
      6.18 pm
      Lynne Jones: Our society will become more civilised with the passage of this legislation. For decades, we have lagged behind more enlightened countries that have already granted civil rights to transsexual people. In this country, transsexual people have suffered from discrimination and fear of being exposed to ridicule because they suffer from a medical condition. That wrong is being put right, and I pay tribute to the Government, to the Under-Secretary of State for Constitutional Affairs, my hon. Friend the Member for Tottenham (Mr. Lammy), and to the Minister in the other place, Lord Filkin, for their work in bringing forward this legislation and taking it through both Houses. I also pay tribute to the hon. Member for Daventry (Mr. Boswell) for the way in which he has put forward his sensible, considered view and been generally supportive of the legislation, and to Liberal Democrat Members for their contribution.
      A remarkable transformation has taken place even in the 10 years since the setting up of the Parliamentary Forum on Transsexualism. At that time, transsexual people were regarded as sexual deviants who had had a choice, and had chosen to mutilate themselves in order to gain some strange gratification. Thanks in large part to the trans-community itself, that view has gradually changed. If tribute is to be paid tonight, it must be paid to those brave individuals who have been prepared to tell the world that they are transsexual people, and have thus been able to demonstrate that far from being florid, strange characters, they are normal human beings who just want to lead a normal life and get on with working. They do not want to suffer discrimination at work or in personal relationships. They do not want to live in fear that because of a lack of appropriate documentation—birth certificates are an obvious example—they risk being exposed as transsexual people and therefore discriminated against, laughed at and treated in an extremely unkind way by individuals, the media and some less-than-enlightened parts of our society.
      All that is changing. The fact that there has been all-party support for the Bill is very heartening, as is the fact that it has had a relatively smooth passage through both Houses. As the Minister has said, it gives the trans-community 95 per cent. of what it seeks. There are still causes for dissatisfaction, which have been discussed this afternoon—notably the requirement for married transsexual people, in order to gain their full civil, human rights, to dissolve their marriages. That is unfortunate. I am sorry that the Government were unable to accept that such people should be allowed to

      1529
      retain their marriages, and retain their human rights under both article 8 and article 12 of the European convention.
      I am also disappointed that I could not move my compromise amendments, which would have allowed the life of the interim certificate to be extended so that those whose marriages ended either through divorce in the normal way or through the death of their spouses could gain full recognition. That was particularly important to those taking advantage of clause 27, which allows a simpler method of application, requiring less documentation, to those who have lived in their reassigned gender for more than six—as opposed to two—years. I am sorry that the Government did not recognise the strong arguments for letting the interim certificate be used as a device to enable trans-people to benefit from a fast-track approach.
      It has been an eventful 10 years since the establishment of the parliamentary forum. Many brave people have exposed their personal lives to scrutiny and contributed to the Bill. They have demonstrated their patience and common sense, and have been very willing to present strong arguments to the Government and civil servants. Members of the trans-community, and Press for Change in particular, have made an important contribution by devoting so much time to convincing civil servants and Ministers that the Bill is necessary, and should take a form that will allow practical realisation of their human rights. I also commend those Ministers who have been prepared to listen and to engage in dialogue with the trans-community. As a result of that dialogue, the legislation is much better than it otherwise would have been. People have been willing to give their expertise and devote their time to ensure that the legislation is as good as the Government are prepared to make it.
      This is a great day for me personally. As a Member of Parliament, I have campaigned for more than 10 years for the legislation. It is a wonderful moment, in particular, for members of the transsexual community, as they see that, at long last, they will have almost full civil liberties and their human rights will be recognised. I thank all Members who have made positive contributions to achieving that aim.
      6.26 pm
      Dr. Harris: It is a privilege to follow the hon. Member for Birmingham, Selly Oak (Lynne Jones), who has worked and campaigned so hard on this issue as chairman of the parliamentary forum—an organisation that I, like the hon. Member for Daventry (Mr. Boswell), have been attending since long before the Bill was published. Through the hon. Lady we should pay tribute to organisations such as Press for Change, which have worked so hard in the way that she described. I shall later quote from the report of the Joint Committee on Human Rights. The hon. Member for St. Helens, South (Mr. Woodward), who has had a long interest in this field, has contributed greatly through that report—a report on which I relied during my contributions in Committee, as Ministers will know.
      1530
      I also thank my hon. Friend the Member for Teignbridge (Richard Younger-Ross). I do not always agree with him on religious matters, but we have found unanimity—
      Richard Younger-Ross: An unholy alliance.
      Dr. Harris: An unholy alliance, which is not always the case in our party on such issues. In that respect, it was interesting to note the sensitive contributions in Committee and on Report of the hon. Members for South-West Bedfordshire (Andrew Selous) and for Gainsborough (Mr. Leigh). Although there were people who strongly disagreed with the line that they took, it was important that those issues were raised in such a way and in such a tone by those hon. Members. I also welcomed the contribution of the hon. Member for Daventry, who is always regarded as one of the more reasonable—[Interruption.] And eminent. The hon. Gentleman is always regarded as one of the more reasonable and eminent Conservative Members in his contributions and scrutiny in Committee.
      It was a pleasure to serve in Committee with the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy), and the Under-Secretary of State for Work and Pensions. the hon. Member for Liverpool, Garston (Maria Eagle). Although we did not always agree on the detail of the Bill, there was much consensus in Committee, as there has been today, on the need for the legislation.
      We intend to support the Bill on Third Reading, as we did on Second Reading, not on a free vote, because it is our party policy to allow transsexual people to access their human rights. Although I welcome the support of the Conservative Front-Bench team, and particularly the effective way in which it has been delivered during the different stages, it is still a test for all parties in this House that there should be a Whip on these issues of fundamental human rights, as there is on other issues that are less fundamental and less related to human rights.
      As we debate such matters and put this recognition on the statue book at the end of May 2004, we must ask why that has taken so long. Yes, it was the case that we were not found to be outwith European human rights law until July 2002, when the courts ruled, in the cases of Goodwin v. UK and Iv. UK, that

      "the United Kingdom's continuing refusal to take steps to recognise the reassigned gender of a post-operative transsexual person was"

      no longer

      "necessary in a democratic society for any legitimate aim under
      ECHR Article 8/".
      Although it was only then that we were found to be outwith Strasbourg law, there were already clear signs that misery was being created for individuals in this country, and that sooner or later we would fall outwith that law. It is regrettable that it takes so long for us to respond to the challenges posed by the European convention on human rights, to which we signed up. I hope that we will manage to stay ahead of the game in other areas.
      There has been no reaction in general, or in the right-wing press in particular, to this measure, and it should stiffen the Government's backbone to know that they

      1531
      can introduce such measures—they are the right thing to do—in sensitive areas sooner rather than later. It is sad to note that, as the report of the Joint Committee on Human Rights points out, while we were waiting for this legislation the Government had to advise marriage registrars to continue to apply section 11(c) of the Matrimonial Causes Act 1973 in the traditional way. As the Joint Committee states, the approach recommend by the Government was "clearly lawful" at that time. We need not have been in such a position if we had responded more quickly.
      This is a good Bill but it could have been better. A particular issue that we did not discuss today, but which was touched on in Committee, is the Bill's failure to extend freedom from discrimination to transsexuals in the provision of goods and services. I fear that campaigners for the rights of transsexuals will have to continue campaigning even after the legislation is on the statute book, in order to drive the Government to provide on the basis of gender reassignment the protection from discrimination that people already enjoy on the basis of gender. I suspect that we will see sad cases of marriages having to split up unnecessarily because of the decision that the House has just taken, but it was encouraging to see Members from all parts of the House voting in the same Lobby. Indeed, I voted in the same Lobby as the hon. Member for Gainsborough. He did ask me not to remind the House of that fact, so I shall seek to avoid doing the same thing on the final vote.
      We welcome the appearance of this legislation on the statute book, but we hope that the Government recognise that there is work still to do in this field.
      6.32 pm
      Sir Patrick Cormack: I am sorry to provide a slightly dissenting and jarring note. I do not for a moment criticise the integrity, sincerity or campaigning zeal of the hon. Members for Birmingham, Selly Oak (Lynne Jones) and for Oxford, West and Abingdon (Dr. Harris) and I have great admiration for my hon. Friend the Member for Daventry (Mr. Boswell). My hon. Friend is a decent and good man and I respect him greatly, but I believe him to be wrong on this issue.
      It is not just the road to hell that is paved with good intentions; so is the road to bad legislation. This is bad legislation, because legislation that calls upon people to tell lies is fundamentally flawed. My main objection to the Bill derives from those clauses that oblige registrars to issue birth certificates that are untrue. I do not object in any way to people seeking to show understanding and compassion to minority groups. I would hesitate to call transsexuals a "community"—I have never known a transsexual community—but there are individuals who no doubt feel deeply distressed, and who will be relieved when this legislation is on the statute book. But we are doing the wrong deed, however right and honourable some of the reasons might be.
      This is a case of people of a liberal disposition—people who are deeply anxious not to offend anybody and to please everybody—introducing legislation that is fundamentally flawed, and which will cause great
      1532
      heartache and real worry in certain religious communities. I know that those issues were discussed earlier today, and I am sorry that I was not present; I was attending a meting of the House of Commons Commission. I also know—I heard the Minister's winding-up speech—that they have not been satisfactorily addressed or answered. We will have to depend on secondary legislation, which will not be amendable, and we do not know when it will be introduced.
      At the end of the day, we are faced with a Bill that obliges people to say things that are not so. I do not want to go into great detail as others wish to speak and I want my contribution to be brief. We know that those who are persuaded that that they are of the wrong sex or gender do not necessarily have physical differences and do not necessarily have to undergo surgery of any sort, yet they are to be recognised and issued with a birth certificate that contradicts the natural facts of life. That cannot be right and I am profoundly disturbed and troubled that the House should be passing such legislation. I am very sad indeed that my hon. Friend the Member for Daventry, who speaks, from the Front Bench, and others among my hon. Friends feel that they have to agree, because of their natural compassion, to the enactment of such deeply flawed legislation.
      6.36 pm
      Rev. Ian Paisley: The Bill is amazing in many ways. It comes to the House from the European Court. Without that Court's findings, the Bill might not have been put before the House. More and more, the House will be directed to act by similar cases, even though the bodies deciding them are not answerable to the people of this country.
      I strongly hold the view that all people, however many, have rights and that those rights should be defended by all. I want to make that absolutely clear to the House tonight. However, if we give certain rights to people, we must be assured that it will not alter the ability of others to keep and practise their rights.
      The Government well know that there are deep religious feelings about this matter. I welcome what the Under-Secretary said when he affirmed that he would look again at this matter—or words to that effect—because I do not believe that we can afford to leave it as it stands. There are fears in many churches—especially among those whose views on marriage are of the historic Christian faith—that the Bill could have serious consequences.
      The Christian Institute issued a document in March entitled, "Christian beliefs on transsexualism". It referred to passages from the Bible and the works of Christian theologians to—support the proposition that

      "the body determines personhood, not just the mind",

      and that

      "Biblical Christians hold that 'sex change' surgery desecrates a body made in the image of God."

      The document also stated that

      "the Bible teaches that the State should validate what is right and not what is wrong".

      1533
      For those reasons, individual churches wish to be free to decide on many matters that they believe should be under their control. For example, who should join or lead a women's prayer meeting is a matter for the church; who should use the toilet facilities in a church is a matter for the church; who should be entitled to receive holy communion is a matter for the church.
      Religious freedom is primarily a matter of individual conscience, but it also implies freedom to manifest one's religion alone and in private or in community with others in public and within the circle of those whose faith one shares. We must remind ourselves that we have to abide by that. It would be a sad day if the Government were to invade the believer's right to freedom of religious expression and so destroy something that lies at the very heart of true peace and true faith in our land.
      These are serious matters, which must be pondered deeply and discussed in a serious way. Some religious rights—such as people's right to bear witness, and to act and enforce uniformity in the organisations that they join voluntarily—are held to be of particular importance. Any threatened interference with those rights by other people will engage the responsibility of the state, but no state interference with them at all can be justified.
      As we enter the final part of the debate on the Bill, we must remind ourselves that any attempt to infringe, or do away with, people's religious rights and purposes must be resisted. Some of those rights are now in the melting-pot, and we must face up to that.
      Marriage lies at the heart of society. Without it we would have no society. These day; we must defend and uphold marriage, and anything that weakens it is very dangerous. No member of my party was on the Standing Committee considering the Bill. so we had no opportunity to express ourselves on these matters. That is why I am expressing myself at Third Reading.
      However, some of what the Minister said offered a glimmer of hope. It is possible that the Government are having second thoughts; I hope so. Various religious bodies have spoken on this matter, and the Government cannot treat them with contempt or refuse to consider what they have said. Those bodies have influence: they are part of the warp and woof of our country, and give it stability and prosperity.
      6.42 pm
      Angela Watkinson: I rise to speak against the Bill because of the impact that it will have on the institution of marriage. In addition, I am concerned about the reaction among many people in our Church communities to marriages between people of the same gender—that is, same-sex marriages.
      Let us take the example of a pre-existing marriage in which one spouse supports the other getting gender reassignment treatment, and where both partners want the marriage to continue. It is perfectly possible for that to happen, if the person who gets the treatment does not apply for a certificate. It is the certificate that will render a marriage null and void: where no application for a certificate is made, the marriage can continue in its original form.
      1534
      However, a marriage in which one spouse does not support gender reassignment treatment for the other can be rendered null and void, against the will of both partners. The person who wants the treatment must protect their own rights but take into consideration the rights of the person with whom they are deeply involved and to whom there is a long-term commitment.
      It is possible for a person to acquire a gender certificate by living in the other gender for a period and then applying to a gender recognition panel. In that way, surgery or drug treatment can be avoided. That would enable that person to become the opposite gender in law and then marry in that gender. Many people would view that as same-sex marriage.
      I am also very concerned about the issue of disclosure of information by ministers. Two people might approach a minister in preparation for marriage and he might believe that one of those people was transgendered but that the other person was not aware of that. The minister is not free to disclose that information and that would be a serious dilemma.
      Mr. Lammy: The standard for receiving a gender recognition certificate from the panel is a rigorous and high one. It is not just the degree of permanence that is required: the person will have to have gender dysphoria. Some people will not be able to undergo the operation, as they would probably wish to do, for medical reasons that have nothing to do with their gender dysphoria. It will take a high standard of proof to convince the panel that one is gender dysphoric, and it is not right to suggest that those few applicants unable to undergo operations would be trying to slip through the net. It will be necessary to have lived in the state for two years and to have a diagnosis of gender dysphoria.
      Angela Watkinson: The issues are so controversial. People other than those who apply for the gender recognition certificate will be deeply affected, especially children of pre-existing marriages. If the biological father of children has a newly acquired gender, the children will have, to all intents and purposes and outward appearances, two mothers, but one of them will be their biological father. The effect on the children and spouses can be profound, and we need to balance the respective rights of all the people concerned. The institution of marriage is greater than its component parts and, for that reason, I shall vote against the Bill.
      6.47 pm
      Mr. Leigh: I shall vote against the Bill if for no other reason than because it will require public officials to rewrite history and tell an untruth. If I, Edward Leigh, were to choose after 53 years in this world to change into Esmeralda Leigh that would be my own affair. Those of us who oppose the Bill do not argue with such choices. We argue with the fact that I could then require a public official to change my birth certificate and deny that 53 years ago I was born Edward Leigh. For that reason alone, this is a deeply disturbing Bill.
      I shall vote against the Bill for a second reason. The hon. Member for Oxford, West and Abingdon (Dr. Harris) mentioned the anguished arguments about

      1535
      how those of us who opposed the Bill should vote on the amendment tabled by my lion. Friend the Member for Sutton Coldfield (Mr. Mitchell). It is not surprising that there were anguished arguments. In the end, many of us voted for the amendment because we thought that it would be absurd if, having obtained the certificate, my marriage were automatically dissolved. But the Government had put themselves in an impossible position. They had to oppose that amendment because otherwise they would have driven a coach and horses through their professed strong opposition to single-sex marriages. The situation was illogical and impossible, and there was no way round it.
      The third reason I shall vote against the Bill was adduced by the hon. Member for North Antrim (Rev. Ian Paisley). I am disappointed that my amendment was not passed. Many people will disagree with strongly held religious views, but such views exist out there. Many people believe, in the words of Psalm 139,

      "For it was you who formed my inward parts; you knit me together in my mother's womb.

      I praise you, for I am fearfully and wonderfully made. Wonderful are your works".

      Those are the beliefs of many people in this country and this Bill could put their civil liberties at risk. For those three reasons, I shall vote against it.
      6.50 pm
      Richard Younger-Ross: It has been said that the Bill was a long time waiting. I was particularly reminded of that when the hon. Member for South-West Bedfordshire (Andrew Selous) made a slip of the tongue and referred to the hon. Member for Hampstead and Highgate (Glenda Jackson) as the hon. Gentleman. That reminded me of the 1950s film, "Plan 9 from Outer Space", made by Ed Wood, who also made a movie called "Glen or Glenda?", about a transgendered person who wanted to change from one sex to the other.
      We think of transgender as a new issue, but that was in the 1950s. The issue is new only to the extent that science has allowed us to make physical changes to a person's outward appearance so that they can acquire the gender that their mind tells them is theirs. Historically, the issue goes back an extremely long way. A Roman emperor who was a boy of 17 when he became emperor was transgendered. A medieval monk, the Abbé de Choisy, was transgendered. It was said of him that he carried his habit in a feminine manner. There was a French—
      Mr. Stephen Pound: Spy?
      Richard Younger-Ross: The hon. Gentleman is ahead of me. There was a French spy who lived out his life, and died, in England as a woman, and, to keep the balance right, there was a pirate whose name I cannot recall who did the reverse. People have been transgendered not only over the past couple of decades, nor even over the past few centuries, but over a couple of millennia, so it is not true to say that the issue is new and a fabrication of modern society.
      1536
      The legislation will help to stop little boys running down the street taunting someone who has had a sex change. It will correct a wrong that we have allowed to continue in our society for too long. We have denied people the gender, not of their choice as has been said, but that their mind tells them is theirs. That is the fundamental point of the Bill.
      There are failings in the Bill. The loss of the amendment on marriage tests me hard, as a Roman Catholic, in my support of the Bill. However, on balance, I shall support the measure. I hope that some of the issues raised by religious groups will be dealt with directly in the secondary legislation to which the Minister alluded. It would be wrong for a Church group to be prosecuted because the deacon had told the vicar that someone applying to be married was transgendered. In Committee, I understood that that would not be the case, but that is no longer clear from what the Minister said today. He shakes his head as though I have got that wrong, but he clearly said that there could be such prosecution. If I misunderstood him, he has the chance to correct me.
      Mr. Lammy: There could not be a prosecution. However, we have discussed the fact that someone might engage in litigation. There is a distinction.
      Richard Younger-Ross: I thank the Minister for that clarification, which is important. If there were ways to reinforce through secondary legislation the other issues that were raised, it would be beneficial, even if we were only doing that to avoid litigation.
      I shall conclude my remarks to allow other Members time to speak. I shall vote for Third Reading.
      6.54 pm
      Mr. Robathan: As the hon. Member for Teignbridge (Richard Younger-Ross) reminded us, this is certainly not a new issue. Jan Morris wrote "Conundrum" well over 30 years ago. To avoid doubt and put this beyond peradventure, I should say that I have enormous sympathy for people who find themselves in this very difficult and complex transgender situation. No one should pretend that it is not complex. It is certainly not trivial. I happen to think that the House should spend its time—it often does—dealing with the issues of just one person, and this important issue affects many people.
      Of course this issue needs consideration, but I have listened to speeches on. Second and Third Reading and the dissenting voices among the Opposition made some good points that have not been answered. I do not always agree with the hon. Member for North Antrim (Rev. Ian Paisley), but I did today largely. I do not always agree with my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack), but I thought that he made in excellent speech.
      This is not good legislation. What is it for? It will certainly not satisfy all transsexuals, yet we are saying, "Oh well, it will satisfy most, so that's all right." Yet if we are standing up for the rights of one or two people, surely we should satisfy all if we possibly can.
      Lynne Jones: Will the hon. Gentleman give way?
      Mr. Robathan: I am sorry, but we have only a few moments left.
      Will the Bill improve human rights? Will it make us a more civilised society? Personally, do not think so. The families who will be appalled and split asunder by the Bill include those with a husband who has been depressed and prescribed hormone treatment. I do not believe that we are yet in a position to legislate for all those complicated issues, and nor should we. What happens to the people who under go operations, cross genders and then decide that they want to go back? What can we do about that? It is not easy. I pose those questions to the Minister, and I will certainly give way if he wishes to answer.
      Despite marvellous intentions, I am afraid that the Bill opens a can of worms, and we all know what happens when a can of worms is opened. New clause 7, which was proposed by my hon. Friend the Member for Sutton Coldfield (Mr. Mitchell), revealed the outcome: we will split asunder some people who are currently legally married if they wish to follow such a path. The Bill poses as many questions as it answers.[Interruption.] The hon. Member for Lewisham, East (Ms Prentice) tries to intervene, from a sedentary position. but she has not considered all the difficulties that will arise. It is bad legislation. Good intentions are not enough. As my hon. Friend said, the road to hell is paved with good intentions. For that reason, I shall vote against the Bill.
      Question put, That the Bill be now read the Third time:—
      The House divided: Ayes 355, Noes 46.

      Division No.189]

      [6.57 pm

      AYES

      Abbott, Ms Diane

      Brooke, Mrs Annette L.

      Adams, Irene(Paisley N)

      Brown rh Nicholas(Newcastle E Wallsend)

      Ainger, Nick

      Ainsworth, Bob(Cov'try NE)

      Brown, Fussell(Dumfries)

      Allan, Richard

      Browne, Desmond

      Allen, Graham

      Browning, Mrs Angela

      Atkins, Charlotte

      Bruce, Malcolm

      Austin, John

      Buck, Ms Karen

      Baird, Vera

      Burden, Richard

      Baker, Norman

      Burgon, Colin

      Banks, Tony

      Burstow, Paul

      Barnes, Harry

      Byers, rh Stephen

      Barrett, John

      Cairns, David

      Barron, rh Kevin

      Campbell, Alan(Tynemouth)

      Battle, John

      Campbell, Mrs Anne(C'bridge)

      Bayley, Hugh

      Campbell, Ronnie(Blyth V)

      Beard, Nigel

      Casale, Roger

      Beckett, rh Margaret

      Cawsrey, Ian(Brigg)

      Bell, Sir Stuart

      Challen, Colin

      Bennett, Andrew

      Chapman, Ben(Wirral S)

      Bercow, John

      Chaytor, David

      Berry, Roger

      Chidgey, David

      Best, Harold

      Clapham, Michael

      Betts, Clive

      Clark, Paul(Gillingham)

      Blackman, Liz

      Clarke rh Kenneth(Rushcliffe)

      Blears, Ms Hazel

      Clarke, Tony(Northampton S)

      Boateng, rh Paul

      Clelland, David

      Borrow, David

      Coaker, Vernon

      Boswell, Tim

      Coffey, Ms Ann

      Bottomley, Peter(Worthing W)

      Cohen, Harry

      Bradley, rh Keith(Withington)

      Coleman, lain

      Bradley, Peter(The Wrekin)

      Colman, Tony

      Bradshaw, Ben

      Cooper, Yvette

      Brake, Tom(Carshalton)

      Corbyn, Jeremy

      1538

      Cousins, Jim

      Hinchliffe, David

      Cranston, Ross

      Hodge, Margaret

      Cryer, Ann(Keighley)

      Hoey, Kate(Vauxhall)

      Cryer, John(Hornchurch)

      Hogg, rh Douglas

      Cummings, John

      Holmes, Paul

      Cunningham, Jim(Coventry S)

      Hoon, rh Geoffrey

      Cunningham, Tony(Workington)

      Hope, Phil(Corby)

      Curry, rh David

      Hopkins, Kelvin

      Curtis-Thomas, Mrs Claire

      Howarth, rh Alan(Newport E)

      Dalyell, Tarn

      Howarth, George(Knowsley N & Sefton E)

      Darling, rh Alistair

      Davey, Edward(Kingston)

      Hughes, Kevin(Doncaster N)

      Davidson, Ian

      Humble, Mrs Joan

      Davies, rh Denzil(Llanelli)

      Hurst, Alan(Braintree)

      Davies, Geraint(Croydon C)

      Hutton, rh John

      Dean, Mrs Janet

      Iddon, Dr. Brian

      Denham, rh John

      Illsley, Eric

      Dhanda, Parmjit

      Ingram, rh Adam

      Dobson, rh Frank

      Irranca-Davies, Huw

      Donohoe, Brian H.

      Jackson, Glenda(Hampstead & Highgate)

      Doughty, Sue

      Dowd, Jim(Lewisham W)

      Jackson, Helen(Hillsborough)

      Drew, David(Stroud)

      Jenkins, Brian

      Dunwoody, Mrs Gwyneth

      Johnson, Boris(Henley)

      Eagle, Angela(Wallasey)

      Johnson, Miss Melanie(Welwyn Hatfield)

      Eagle, Maria(L'pool Garston)

      Edwards, Huw

      Jones, Helen(Warrington N)

      Ellman, Mrs Louise

      Jones, Jon Owen(Cardiff C)

      Ennis, Jeff(Barnsley E)

      Jones, Kevan(N Durham)

      Etherington, Bill

      Jones, Lynne(Selly Oak)

      Ewing, Annabelle

      Jones, Martyn(Clwyd S)

      Fabricant, Michael

      Jowell, rh Tessa

      Farrelly, Paul

      Joyce, Eric(Falkirk W)

      Field, rh Frank(Birkenhead)

      Keeble, Ms Sally

      Fisher, Mark

      Keen, Alan(Feltham)

      Fitzpatrick, Jim

      Keen, Ann(Brentford)

      Fitzsimons, Mrs Lorna

      Keetch, Paul

      Flynn, Paul(Newport W)

      Kelly, Ruth(Bolton W)

      Follett, Barbara

      Kennedy, Jane(Wavertree)

      Foster, rh Derek

      Key, Robert(Salisbury)

      Foster, Don(Bath)

      Khabra, Piara S.

      Foster, Michael Jabez(Hastings & Rye)

      Kidney, David

      Kilfoyle, Peter

      Francis, Dr. Hywel

      King, Andy(Rugby)

      Gapes, Mike(llford S)

      King, Ms Oona(Bethnal Green & Bow)

      George, rh Bruce(Walsall S)

      Gerrard, Neil

      Kirkwood, Sir Archy

      Gibson, Dr. Ian

      Knight, Jim(S Dorset)

      Gidley, Sandra

      Kumar, Dr. Ashok

      Goggins, Paul

      Ladyman, Dr. Stephen

      Griffiths, Jane(Reading E)

      Laing, Mrs Eleanor

      Griffiths, Nigel(Edinburgh S)

      Lamb, Norman

      Griffiths, Win(Bridgend)

      Lammy, David

      Grogan, John

      Lansley, Andrew

      Hain, rh Peter

      Lawrence, Mrs Jackie

      Hall, Mike(Weaver Vale)

      Laws, David(Yeovil)

      Hall, Patrick(Bedford)

      Laxton, Bob(Derby N)

      Hamilton, David(Midlothian)

      Lepper, David

      Hamilton, Fabian(Leeds NE)

      Leslie, Christopher

      Hancock, Mike

      Levitt, Tom(High Peak)

      Hanson, David

      Lewis, Terry(Worsley)

      Harman, rh Ms Harriet

      Linton, Martin

      Harris, Dr. Evan(Oxford W & Abingdon)

      Lloyd, Tony(Manchester C)

      Llwyd, Elfyn

      Harris, Tom(Glasgow Cathcart)

      Love, Andrew

      Harvey, Nick

      Lucas, Ian(Wrexham)

      Havard, Dai(Merthyr Tydfil & Rhymney)

      Luke, lain(Dundee E)

      Lyons, John(Strathkelvin)

      Healey, John

      McAvoy, rh Thomas

      Henderson, Ivan(Harwich)

      McCabe, Stephen

      Hendrick, Mark

      McCafferty, Chris

      Hendry, Charles

      McDonagh, Siobhain

      Hepburn, Stephen

      McDonnell, John

      Heppell, John

      McFall, John

      Heyes, David

      McGuire, Mrs Anne

      Hill, Keith(Streatham)

      Mclsaac, Shona

      1539

      Mackinlay, Andrew

      Russell, Ms Christine(City of Chester)

      Maclean, rh David

      McNamara, Kevin

      Salmond, Alex

      McNulty, Tony

      Sanders, Adrian

      Mactaggart, Fiona

      Savidge, Malcolm

      McWalter, Tony

      Sawford, Phil

      McWilliam, John

      Sayeed, Jonathan

      Mahon, Mrs Alice

      Sedgemore, Brian

      Mallaber, Judy

      Shaw, Jonathan

      Mendelson, rh Peter

      Sheerman, Barry

      Mann, John(Bassetlaw)

      Short, rh clare

      Marris, Rob(Wolverh'ton SW)

      Simpson, Alan(Nottingham S)

      Marsden, Gordon(Blackpool S)

      Singh, Marsha

      Marshall-Andrews, Robert

      Skinner, Dennis

      Martlew, Eric

      Smith, rh Chris(Islington S & Finsbury)

      Merron, Gillian

      Michael, rh Alun

      Smith, John(Glamorgan)

      Miliband, David

      Smith, Llew(Blaenau Gwent)

      Miller, Andrew

      Smith, Sir Robert(W Ab'd'ns & Kincardine)

      Mitchell, Austin(Gt Grimsby)

      Mole, Chris

      Southworth, Helen

      Moonie, Dr. Lewis

      Squire, Rachel

      Moore, Michael

      Steen, Anthony

      Moran, Margaret

      Steinberg, Gerry

      Morgan, Julie

      Stevenson, George

      Morley, Elliot

      Stewart, David(Inverness E & Lochaber)

      Moss, Malcolm

      Munn, Ms Meg

      Stewart, Ian(Eccles)

      Murphy, Jim(Eastwood)

      Stinchcombe, Paul

      Murrison, Dr. Andrew

      Straw, rh Jack

      Naysmith, Dr. Doug

      Stringer, Graham

      Oaten, Mark(Winchester)

      Stuart, Ms Gisela

      O'Brien, Bill(Normanton)

      Tami, Mark(Alyn)

      O'Brien, Mike(N Warks)

      Taylor, rh Ann(Dewsbury)

      O'Hara, Edward

      Taylor, Dr. Richard(Wyre F)

      Olner, Bill

      Teather, Sarah

      Öpik, Lembit

      Thomas, Gareth(Clwyd W)

      Organ, Diana

      Thomas, Simon(Ceredigion)

      Ottaway, Richard

      Thurso, John

      Owen, Albert

      Timms, Stephen

      Page, Richard

      Tipping, Paddy

      Palmer, Dr. Nick

      Todd, Mark(S Derbyshire)

      Perham, Linda

      Tonge, Dr. Jenny

      Pickthall, Colin

      Trickett, Jon

      Pike, Peter(Burnley)

      Turner, Dennis(Wolverh'ton SE)

      Plaskitt, James

      Turner, Dr. Desmond(Brighton Kemptown)

      Pollard, Kerry

      Pope, Greg(Hyndburn)

      Turner, Neil(Wigan)

      Pound, Stephen

      Tyler, Paul(N Cornwall)

      Prentice, Ms Bridget(Lewisham E)

      Tyrie, Andrew

      Vaz, Keith(Leicester E)

      Prentice, Gordon(Pendle)

      Vis, Dr. Rudi

      Prescott, rh John

      Walley, Ms Joan

      Price, Adam(E Carmarthen & Dinefwr)

      Ward, Claire

      Wareing, Robert N.

      Purchase, Ken

      Watson, Tom(W Bromwich E)

      Purnell, James

      Watts, David

      Quin, rh Joyce

      Weir, Michael

      Quinn, Lawrie

      White, Brian

      Rapson, Syd(Portsmouth N)

      Whitehead, Dr. Alan

      Raynsford, rh Nick

      Wicks, Malcolm

      Reed, Andy(Loughborough)

      Williams, Betty(Conwy)

      Reid, Alan(Argyll & Bute)

      Williams, Hywel(Caernarfon)

      Rendel, David

      Williams, Roger(Brecon)

      Robertson, Angus(Moray)

      Willis, Phil

      Robinson, Geoffrey(Coventry NW)

      Wills, Michael

      Winnick, David

      Roche, Mrs Barbara

      Winterton, Ms Rosie(Doncaster C)

      Ross, Ernie(Dundee W)

      Roy, Frank(Motherwell)

      Wishart, Pete

      Ruane, Chris

      Wood, Mike(Batley)

      Ruddock, Joan

      Woodward, Shaun

      Russell, Bob(Colchester)

      Woolas, Phil

      1540

      Worthington, Tony

      Younger-Ross, Richard

      Wright, Anthony D.(Gt Yarmouth)

      Wright, David(Telford)

      Tellers for the Ayes:

      Wright, Tony(Cannock)

      Mr. Fraser Kemp and

      Wyatt, Derek

      Joan Ryan

      NOES

      Beggs, Roy(E Antrim)

      Mitchell, Andrew(Sutton Coldfield)

      Bellingham, Henry

      Brazier, Julian

      Murrison, Dr. Andrew

      Burt, Alistair

      Paisley, Rev. Ian

      Campbell, Gregory(E Lond'y)

      Paterson, Owen

      Chope, Christopher

      Randall, John

      Cormack, Sir Patrick

      Robathan, Andrew

      Dodds, Nigel

      Robertson, Laurence(Tewk'b'ry)

      Robinson, Peter(Belfast E)

      Donaldson, Jeffrey M.

      Ruffley, David

      Fallon, Michael

      Selous, Andrew

      Flook, Adrian

      Smyth, Rev. Martin(Belfast S)

      Francois, Mark

      Spicer, Sir Michael

      Gale, Roger(N Thanet)

      Streeter, Gary

      Goodman, Paul

      Swayne, Desmond

      Grieve, Dominic

      Syms, Robert

      Hawkins, Nick

      Taylor, John(Solihull)

      Hayes, John(S Holland)

      Taylor, Sir Teddy

      Hermon, Lady

      Turner, Andrew(Isle of Wight)

      Howarth, Gerald(Aldershot)

      Wilshire, David

      Leigh, Edward

      Winterton, Ann(Congleton)

      Lewis, Dr. Julian(New Forest E)

      Winterton, Sir Nicholas(Macclesfield)

      Liddell-Grainger, Ian

      Lidington, David

      Tellers for the Noes:

      McIntosh, Miss Anne

      Angela Watkinson and

      McLoughlin, Patrick

      Mr. Eric Forth

      Question accordingly agreed to.
      Bill read the Third time, and passed.

      NORTHERN IRELAND GRAND COMMITTEE
      Ordered,

      That—

      (1) the matter of the future direction of community relations policy in Northern Ireland be referred to the Northern Ireland Grand Committee;

      (2) the Committee shall meet at Westminster on Thursday 17th June at half-past Two o'clock; and

      (3) at that sitting—

      (a) the Committee shall take questions under Standing Order No. 110 (Northern Ireland Grand Committee (questions for oral answer)), and shall then consider the matter referred to it under paragraph (1) above;

      (b) the chairman shall interrupt proceedings not later than two and a half hours after the commencement of proceedings on the matter referred to the Committee; and

      (c) at the conclusion of those proceedings, a motion for the adjournment of the Committee may be made by a Minister of the Crown, pursuant to paragraph (5) of Standing Order No. 116 (Northern Ireland Grand Committee (sittings)).—[Margaret Moran.]

      BUSINESS OF THE HOUSE
      Ordered,

      That, at the sitting on Tuesday 8th June, proceedings on the Motion for the adjournment of the House relating to the Future of Air Transport White Paper may continue, though opposed, for three hours or until Seven o'clock, whichever is the later, and shall then lapse if not previously disposed of.—[Margaret Moran.]

  Air Passengers (US Immigration Requirements)
  Motion made, and Question proposed, That this House do now adjourn.—[Margaret Moran.]
  7.12 pm
  Mrs. Gwyneth Dunwoody: It is modish in this day and age to speak frequently of rights, which are bandied about in the Chamber of the House of Commons with a felicity and occasional fluency that must be defended. It is not new for the Chamber of the House of Commons to re-echo the call for extra rights to be granted to whichever group feels itself to be disadvantaged, and more frequently than ever before, rights are defined in exceedingly narrow and sometimes strangely unimaginative ways. It is therefore even more frightening when we appear almost without thought to abandon some of those rights—the right to privacy and the right to defend our interests—without so much as a backward glance.
  I rise tonight to raise an extraordinarily important question concerning a basic right, which we are in danger of treating with astonishing levity, as though it were not important. I refer to the right of one country, in pursuit of its own legitimate interests, to access detailed and important information about the lives of passengers from another country without so much as discussing the basis of that decision. I have been waiting for some months for the question of what is happening in our relationship with the United States as regards the exchange of information to be raised in this House.
  Let me begin by saying that no one can seriously underestimate the enormous trauma of what happened in New York and the great shock and agony that it inflicted on the American people. However, the reality is that we, too, have faced some appalling traumas in the past, and have had to strike a balance between the liberties and rights of a democratic people and the need to defend ourselves and our society from those who seek to undermine it. In relation to what is happening in America, somewhere along the line we have got things rather disastrously wrong. I want to ask the Government a series of questions that are in need of an urgent answer.
  Since September 11, travellers have accepted that a few more checks and questions are the price that they have to pay for safety. However, Michael Kerr of The Daily Telegraph questions whether that security is turning into surveillance. He points out that when one books to go to America on an airline these days, one is required by new laws introduced in the United States to give border control agencies access to passenger data. He says:

  "Among that information is your passenger name record, or PNR, which includes…the date and time of your flights, the flight numbers, the destination and any stopovers. Depending on how you booked…the PNR…can also include your date of birth, address, credit card numbers, emergency contacts and frequent-flier details."

  It can also include information about one's state of health and, indirectly, one's religion, which can be mentioned in relation to choice of menu.
  Airlines have been notified that from the end of this year they will be expected, either before take-off or immediately afterwards, to provide information about
  1542
  the passenger that includes not only the items I listed, but foreign registration numbers, if applicable; country of residence; address in the United States during the stay; contact telephone number; and, more importantly, any other data deemed necessary to identify the person travelling.
  Frankly, we in this House would be extremely leery of accepting legislation that was framed in those terms. What is more, what undertakings have we received from the United States Government about the use to which that enormous amount of information is to be put? For how long is it to be held? How many agencies are to have access to it? I would not gladly hand over my credit card details to any agency in this country without questioning the checks and balances to which it was subject. Why, then, am I required to do so to a foreign Government without a squeak from the United Kingdom Government?
  Much of that information is supposed to be safeguarded by data protection law, which means that having been collected for one purpose, it may not be used for another without the subject's approval. Yet it is clear from the statement that I have from the Association of British Travel Agents that in relation to much of the information that is handed over, we have very little idea of what is included and to what use it is to be put. When United Airlines was asked by The Daily Telegraph whether it provided US Customs with passenger data, it said:

  "In line with all carriers, we provide whatever information is required. We abide by the rules that govern the aviation industry."

  Correction. It abides by the rules that have been unilaterally imposed by one Government, who, although acting in the genuine interests of security, make no attempt to discuss with any of the people concerned the nature of their rights or protection.
  The deputy commissioner of US Bureau of Customs and Border Protection said that since 1995, more than 200 airlines, including EU carriers, had "voluntarily provided…data" to his agency. Was that made clear? Did the British Government know that? What attempt did they make to discuss with the American Government whether that was the right way in which to treat citizens of another country other than in circumstances of immediate and absolutely urgent needs?
  Cedric Laurant of the Washington-based Electronic Privacy Information Centre said that seeking such information was part of a much bigger intelligence-gathering operation that would entail "data mining" and profiling all passengers. Furthermore, there was nothing to prevent such data from being fed

  "into a huge…database for purposes…unrelated to the combat of terrorism or the protection of airline security".

  It is perfectly possible, as in the case of some other countries, that routine income tax investigations could be included in the data made available to the Americans. That could also apply to individuals, who had been suspected of, for example, paedophilia, on the basis of repeated travel to countries that have a flourishing sex trade.I am indebted to The Daily Telegraph for a quote from Benjamin Franklin:

  "They that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

  We ought to take that message to heart.

  1543
  When we examine statistics and the number of people who travel backwards and forwards, we begin to understand that we who have always been an island nation are happy and ready to cross the seas and visit not only for business purposes but for holidays. However, many British visitors will find themselves faced willy-nilly with many extraordinary extra barriers.
  People in my constituency who want to take their holidays in America will find that they must come to London to apply for a visa—a journey that not only costs them a great deal of extra money but entails displacement for them and their families. If they want access to visa information, they will discover that the American embassy visa information lines in London charge £1.30 and 60p a minute. They will not find it easy to get rapid responses.
  In a series of articles,The Daily Telegraph raised individual cases of people who had faced considerable hostility and inconvenience. In one case, an individual was apparently shackled. When I took the Select Committee on Transport across America a few months ago, I was struck by the fact that members of that Committee, who had been identified as Members of Parliament and carried information to which we had made privy the United States Government were asked to step out of the line for special searching every time we changed planes. I got quite good at removing various items of my clothing. Luckily, they happened mostly to be boots, but they could have been almost anything.
  Without being in the least offensive, I must say that the searching was carried out extraordinarily ineptly by people who had not been properly trained and obviously did not know what they were searching for, but who were happy to seek out those of non-American origin. Indeed, I heard that a seven-year-old boy who had the misfortune to be the right number in the line of people was called out and subjected to a full body search, despite his father's protestations that that was not the way in which to proceed.
  So I say to the American Government that we have to quite honest about this. There has been an enormous growth in traffic between the United States and Britain. Indeed, many thousands of Americans come into this country every day. Lord forbid that we should start to play silly persons and seek tit-for-tat arrangements, but we have to ask ourselves whether it is really in the interest of the British public that they should be treated automatically as though they are all felons seeking to enter the United States to pursue some nefarious activity! The director general of the International Air Transport Association, speaking at the annual aviation security—AVSEC—meeting, said:

  "Security is an issue that goes far beyond aviation. It is a government responsibility, just like war and peace, and the costs must be assumed by society at large, not just by one industry."

  We are talking about very large numbers of people. Tourists go across the Atlantic all the time to take part in the many brilliant activities that the United States offers to its visitors. But those people also have a few basic human rights, and it is about time we asked a few questions. If the only way for the aviation industry to proceed is by producing a great deal of security data, let the two nations agree a basic set of systems with which
  1544
  both of us have to comply. Let us not simply accept that the data on non-US citizens retained by the United States Government can be held for up to 50 years. Let us make it clear that the sheer volume of data being required by the Americans will not only slow up all the traffic in British airports but make it increasingly difficult for people to run commercial flights effectively and sensibly.
  Why should there be constant discrimination against non-US citizens without the agreement of the passengers that their data may be retained in a responsible manner by agencies that are subject to proper controls? We hear a great deal about American legislation, but where is the evidence that the agencies concerned think that individual privacy is important enough? That legislation includes the Enhanced Border Security and Visa Entry Reform Act of 2002, which obliges airlines arriving in and departing from the US to transmit certain personal data. It has been used in such a way that British planes have—unreasonably, in my view—been detained for many hours while the various agencies decided among themselves which was going to do what with which bit of information. Airlines that fail to comply with that legislation could be subject to a host of penalties, including fines or the loss of their landing rights in the United States. These are draconian penalties, yet where is the evidence that the British Government have said, "Hang on a minute. There's a limit to the way in which you can treat British citizens unless you want us to enter into similar arrangements at Heathrow and other major UK airports."?
  What is going to happen? Will there be any way of knowing what is being done by the various American agencies that are garnering all this information? Heaven forfend that we should suggest that computers are not the be all and end all so far as machinery is concerned, but it has been known for them to record information that is not 100 per cent. accurate. Indeed, it has been known for citizens dealing with Government agencies in this country to find it difficult to get information held on them corrected. How much worse will it be with a foreign Government that appears to have lost all sense of proportion?
  One suggestion is that if the Americans continue to demand a raft of information as extensive as is expected, we could have five-hour check-ins. What is the sense of that? I know that people who are under pressure have a tendency to lose all sense of proportion. In a democracy, those of us who are at risk must make the necessary assessment and decide whether our jobs require us to take some kind of risk. We must then put that into proper proportion and deal with it accordingly. The lesson that we in the House should learn is that we have certain duties to fulfil, and certain responsibilities to the general public.
  We should not stand idly by and allow the constant intrusion that I have described without asking why it is happening, how long it will go on and whether it can be justified. If it is not justified, let us ask for some change in the situation, or let us point out that we can all play undignified games. There is no evidence that what is asked for in any way improves the security or the protection of the US citizen.
  It is not easy to say these things and it makes one unpopular, because in these days it is almost a religion to believe that in our support for the Americans we

  1545
  should accept almost unquestioningly the things they do that under other circumstances we would not find acceptable. The House allows these changes to take place at its peril. What is happening is unacceptable. The travel industry is expected to add considerable delays. It is reported that in Miami passengers frequently queue for one and a half to two hours. From 26 October passengers must have individual machine-readable passports, and new passports must be biometric, even though, as far as I can see, they are not being issued by the states concerned and we will not be capable of doing that for some time.
  We should resist any attempt to insist that the home addresses and telephone numbers of all passengers should be given 72 hours in advance of departure. Let us work out what we are doing. Are we suggesting that passengers travelling to the US in increasing numbers every year, who want to enjoy the civilisation, the intelligence and the stimulus of American society, are little better than felons and are not entitled to have their interests protected?
  I have always admired the Americans and enjoyed my contacts with them. I work closely with the American Department of Transportation. I have been honoured by a visit from the Secretary of Transportation and I have been very impressed with the work that that Department does. But there comes a moment when it might be sensible to say, "Enough!" A very large, powerful and politically important state has a special responsibility to others not to use its muscle unreasonably to impose a set of conditions on those who are in no position to hit back—because that is what is happening.
  America, for whatever reason, seems to have lost its sense of balance. Perhaps occasionally, we should say to it, "Democratic states do take risks." Those who are focused on destruction, who are intolerant, who are savagely uninterested in the important institutions of a democratic state will always have an advantage over those of us who believe there should be free access for people and institutions. That is why we have a House of Commons, and why we defend the rights of the people of the United Kingdom. That is why, this year, I shall not be taking a holiday in the United States of America.
  There comes a time when small nations must say to large nations, "Co-operation and friendship are one thing. Subservience and intolerance are something else." Unless the Minister can assure me that the Government are pointing out in no uncertain terms to the United States Government that their behaviour has overstepped the bounds of reasonableness and is no longer accepted in a tolerant and balanced relationship, the House must individually and collectively pursue the rights of United Kingdom citizens to travel in a sensible but protected way, without the imposition of other people's suspicions when there is no defence and no interest.
  7.35 pm
  The Parliamentary Under-Secretary of State for Transport (Mr. Tony McNulty): I congratulate my hon. Friend on securing this timely and important debate.
  I simply cannot accept the phrases bandied around at the start of my hon. Friend's speech—that all this has been done almost without thought, with astonishing
  1546
  levity and without so much as a discussion or a squeak being raised. Much of the current position has been the result of a good deal of discussion and negotiation between the European Union and the USA. She will understand, too, that while I have responsibility for civil aviation in the UK, the provision of personal data to third parties is regulated in Europe by the data protection directive, which is implemented in the UK by the Data Protection Act 1998. Policy on that matter is the responsibility of my right hon. and learned Friend the Lord Chancellor. If there are matters that she feels that I have not covered, and that need to be pursued in that direction, I am therefore more than happy to follow them up.
  As my hon. Friend said, following the terrorist attacks on the US in September 2001, the US passed legislation that required airlines flying to or from its territory to provide the US Bureau of Customs and Border Protection, which is now part of the Department of Homeland Security, with information about the passengers whom they carry. This information is contained in the airline's reservations and departures database and is known as the passenger name record or PNR. Each passenger has their own PNR.
  The amount of PNR data collected about passengers varies from airline to airline but it can be up to 60 individual pieces of data. The data generally include the passenger's name and address and data such as method of payment, details of special requirements and details of the passenger's travel history—all the data used by the airline to provide a full service to the passenger.
  Following the 2001 terrorist attacks, the US authorities require airlines to provide these data to help them screen people planning to enter their country. The data are required for the purpose of combating terrorism and other serious international organised crime. PNR data enable the US authorities to identify and focus their resources on possible high-risk individuals and so facilitate and safeguard the passage of the bona fide traveller.
  Most of the data elements contained in PNR could in fact be obtained from passengers on arrival by examining travel documents and conducting interviews. Clearly, that would result in significant delays for passengers at US airports. In one real sense, it is for the US Administration to justify their legislation. The simple fact, however, is that the legislation is in place, and any airline wishing to operate to the US must abide by its national law—as it would operating in any other country—or risk facing sanctions. Those sanctions include stiff fines or could even result in the withdrawal of operating permits.
  My hon. Friend will appreciate that EU airlines were left in an impossible position following the introduction by the US of the PNR requirement. They were caught between a rock and a hard place—they faced US sanctions for non-compliance, or litigation in Europe under the data protection directive if they did provide the data.
  Rightly, my hon. Friend is particularly concerned about UK citizens travelling on British planes, but both are subject to the national laws of the country to which they travel. The absolute right of the US to determine within its own jurisdiction the measures that it believes

  1547
  that it needs to take to protect its borders and the people who live on its territory, including many people from the UK and other EU member states, cannot be questioned.
  The European Commission and US customs negotiated for much of 2003 to find ways of reconciling the US's legitimate need to collect such data to fight terrorism with the EU's equally legitimate concern to safeguard the information that passengers provide. My hon. Friend expressed those concerns eloquently to the House this evening. The negotiations resulted in the US authorities giving a number of undertakings about the way in which they will handle the data that they receive from EU airlines.
  The Commission takes the view—and the Government agree—that those undertakings provide good safeguards for the PNR data. The Commission has now made a formal decision, under the data protection directive, that US customs provides adequate protection for the PNR data transferred from the EU, and the Council of Ministers has adopted a bilateral agreement with the US providing the necessary legal underpinning.
  The US undertakings provide important data protection safeguards. For example, they set out the security arrangements that will apply to the data and restrict the number of people who may have access to it. They limit the time for which the US authorities may hold PNR data to three and a half years rather than the 50-year period that, as my hon. Friend pointed out, was originally required. They limit the amount of PNR data required to 34 specific elements; the US wanted far more. US customs has undertaken to filter out and
  1548
  delete the most sensitive data, such as that which might reveal racial or ethnic origin or particular opinions or beliefs. That includes the dietary requirements mentioned by my hon. Friend. Most important, the undertakings restrict the use of the data to use for the purpose for which it was originally sought by the US authorities. They also provide a complaints procedure for passengers who believe that that the data held by US customs might be wrong or might have been misused and establish a chief privacy officer in the Department of Homeland Security to expedite the handling of complaints.
  My hon. Friend particularly mentioned financial details. The payment information and billing address are two of the 34 elements that the US requires, but the US authorities have undertaken to use only lawful processes, such as subpoena or court order, if they believe that they need to see transaction information linked to a particular account number.
  The provisions of the agreement are acceptable to the Government. Indeed, I believe that they are essential to protect the interests of UK airlines. I need not remind my hon. Friend—she certainly reminded the House—of the importance of transatlantic traffic. Without the agreement. data transfers would be exposed to challenge at this end under the data protection directive.
  We believe that the undertakings provide a pragmatic solution and that the agreement is proportionate and practical. It provides the necessary legal—
  The motion having been made after Seven o'clock, and the debate having continued for half an hour, MR. DEPUTY SPEAKER adjourned the House without Question put, pursuant to the Standing Order.
  Adjourned at eighteen minutes to Eight o'clock.