`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. 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.
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.