Lords Sitting of 3 February 2004

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Southwell.

North Korea
Lord Alton of Liverpool: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare a non-financial interest as chairman of the All-Party British North Korea Parliamentary Group.
The Question was as follows:
To ask Her Majesty's Government what assessment they have made of the security and human rights situation in North Korea.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, Her Majesty's Government fully support the six party talks process, which began in August 2003. The agreed objective of those talks is to rid the Korean peninsula of nuclear weapons, peacefully and through dialogue.
On human rights, we are concerned about reports of continued, serious violations of human rights in North Korea. We raise these issues regularly in our dealings with the North Korean authorities in London and in Pyongyang.
Lord Alton of Liverpool: My Lords, I thank the Minister for that reply and welcome the strong approach that the Government have adopted. What assessment have they made of the BBC television documentary that was broadcast on Sunday evening, which documented examples of lethal chemical weapons tests against civilians? Does she agree that the best way forward in North Korea is to continue the process of engagement and dialogue, so that the dangerous nuclear stand-off and the serial human rights abuses can be consigned to the past?
Baroness Symons of Vernham Dean: My Lords, I wish that we were able to engage on these serious allegations of human rights abuses. I saw part of the programme to which the noble Lord, Lord Alton, referred and I—like, I suggest, many others who saw that programme—was completely appalled at the practices outlined in the documentary. I share the noble Lord's concerns about the cruel and inhuman treatment in those kinds of facilities.
Yesterday, we made representations to the embassy in London as a result of that programme. The embassy denied that any such activities take place in North Korea. It refuted all the allegations made. We have requested a meeting next week with the ambassador on
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wider issues of human rights. Although the North Koreans are finding it hard to engage with us, we shall persist.
Lord Avebury: My Lords, the Minister may be sceptical about the allegations of the development of chemical and biological weapons made in the programme, although less so when they come from the BBC than when they come from 10 Downing Street. The programme displayed an atmosphere of collective paranoia. Does she not agree that the people of North Korea seem to be convinced that they need these weapons of mass destruction to defend themselves against American aggression? Therefore, apart from the six nation talks at high level to try to remove nuclear weapons from the peninsula, does the Minister think that the western world should campaign to open up North Korea, so that the people can see for themselves that no one has aggressive intentions against them?
Baroness Symons of Vernham Dean: My Lords. I confess that I am slightly taken aback by what the noble Lord said. I am sure that he is not trying to play politics with questions of human rights. I do not know whether the noble Lord saw the programme. If half of what was alleged in the programme is true, I suggest to him that there can be no possible excuse for such experimentation involving whole families being herded into rooms and subjected to lethal conditions. It was disgusting and appalling to see.
As to the threat to North Korea, the issues of its security are being addressed through the six party discussions. We learnt this morning that it is proposed that the talks will be resumed on 25 February. I hope that that is something that your Lordships will be pleased to hear.
Baroness Cox: My Lords, does the Minister know the results of the recent visit by five American observers to Yongbyon nuclear facility in North Korea, with regard to the obvious security threat from its nuclear programme? Does she consider that it would be appropriate for a comparable British delegation to visit North Korea to discuss these serious human rights issues, which concern us all?
Baroness Symons of Vernham Dean: My Lords, I understand that the visit provided no conclusive evidence about the state of North Korea's nuclear programmes. Such evidence could be provided only by a comprehensive inspection by international monitors, which would require the full co-operation of the DPRK authorities. It is an area on which we must do more work.
As to the question of whether non-governmental groups could engage on human rights issues, the problem is that the Government of North Korea will not engage. I welcome interest taken by anybody who tries to get to the bottom of these issues. It is important that, despite the non-engagement, we do not let up on the dialogue.
Lord Archer of Sandwell: My Lords, can my noble friend confirm that the role of China in the human

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rights situation is wholly deplorable? It arrests refugees from North Korea, and imprisons them or returns them to face torture or, possibly, death. It even imprisons international humanitarian workers. Can it be made clear to China that if, as appears, it wants to earn the respect the international community, it must work at it?
Baroness Symons of Vernham Dean: My Lords, we expect all countries with whom we engage to respect human rights. Regrettable as some of the practices are in a number of different countries around the world, in respect of China at the moment we very much rely on its engagement in the six party talks. It is a very difficult situation. The fact is that until we can engage properly on a nuclear issue, we are very unlikely to make real progress on human rights issues. That, of necessity, is where we start with the nuclear issue but, as the noble Baroness, Lady Cox, and the noble Lord, Lord Alton, reminded us, we must not lose sight of the deplorable state of human rights in North Korea.
Lord Hannay of Chiswick: My Lords, will the Minister give some thought as to the possibility of using the mechanisms of the United Nations Commission on Human Rights, which has rapporteurs for dealing with these kinds of allegations, as a way of starting a dialogue with the North Koreans which might be a little more difficult to fend off than just bilateral approaches?
Baroness Symons of Vernham Dean: My Lords, we supported the 2003 UN Commission on Human Rights resolution that calls for access to the country by independent monitors and for engagement by North Korea with the UN human rights mechanisms. That is something that we very warmly support. We want to pursue a dialogue with North Korea on human rights as I have indicated, including with its national commission on human rights. However, I must re-emphasise to your Lordships that this is not for want of trying. The fact is that North Korea simply refuses to engage. We shall continue to raise all our concerns and we shall also raise those concerns when the Supreme People's Assembly delegation visits the United Kingdom between 15 and 18 March this year.
Lord Blaker: My Lords, does the noble Baroness recall saying last November that the Government's judgment is that North Korea has the fissile material with which to make one or two nuclear weapons, has the technical ability to make them and can also make missiles that will travel 10,000 miles? Am I alone in finding it rather surprising that in this situation the United States is taking rather a leisurely attitude towards the problem? If I am right, what is the explanation for that?
Baroness Symons of Vernham Dean: My Lords, I do not think that the United States is taking a leisurely attitude. The fact is that the North Koreans have so far publicly acknowledged one plutonium-based programme. They admitted in discussions with United
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States officials in October 2002 that they had also pursued a clandestine uranium enrichment programme. The international community is seeking to resolve this issue through the six party discussions. Those six parties include not only the United States and North Korea but also South Korea, Japan, China and Russia. The first round of talks that began in August last year sadly did not get very far but the second round of talks is due to begin towards the end of this month. This will be a very long process, but it is one in which the North Koreans are proposing to be engaged.

Rail Franchisingon
2.45
Baroness Scott of Needham Market Baroness Scott of Needham Market asked Her Majesty's Government:
Whether they will explain the role of the Office of Fair Trading in the rail franchising process.
Lord Davies of Oldham: My Lords, the award of a rail franchise constitutes an acquisition of control by virtue of Section 66(3) of the Railways Act 1993 as amended, for the purposes of the merger provisions of the Enterprise Act 2002. The Office of Fair Trading has a duty under the Enterprise Act to refer certain mergers to the Competition Commission if it believes that the arrangements in question have resulted, or may be expected to result, in a substantial lessening of competition.
Baroness Scott of Needham Market: My Lords, I am grateful to the noble Lord for that reply but, with regard to the rail franchise in Scotland, does he share my concern that the competition authorities left it until very late in the franchising process before deciding that there might in principle be a conflict regarding the same company operating the bus and the rail franchise? Does not the noble Lord agree that clarification in that area needs to be sought urgently to bring a little more stability into what is already a very difficult industry?
Lord Davies of Oldham: My Lords, I agree with the noble Baroness that we want to see movement on this decision as expeditiously as possible. However, she will recognise that it is not a matter for Ministers but for the properly constituted authorities which will note the point that she has made so volubly today.
Lord Bradshaw: My Lords, how does the Minister's last answer sit with the Government's intention to promote co-ordinated transport? If transport operators are not allowed to co-operate with each other on services, fares and co-ordination of bus and rail, what does their policy amount to?
Lord Davies of Oldham: My Lords, the noble Lord has highlighted an important principle of the Government's transport policy. We want to see greater integration of such activities. However, that does not mean that we necessarily want to see one company

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running all rail and bus services in an area as that would lead to obvious dangers so far as the fare-paying and travelling public are concerned.
Baroness Carnegy of Lour: My Lords, in relation to the supplementary question of the noble Baroness, Lady Scott, did I understand her to suggest that the people who run the railway line are in competition with the people who run the trains? The idea in Scotland is that they should work together. I do not see that there is any objection to that. Do the Government agree with me on that?
Lord Davies of Oldham: My Lords, I do not think that is the issue regarding competition. A potential situation has been identified in which a company with substantial bus interests would take over the Scot Rail franchise. That is the nub of the problem. The relationship between the companies that own the rolling stock and the trains and Network Rail, which owns the rail track, is a different matter altogether.
Earl Attlee: My Lords, how many organisations are involved in controlling and regulating the rail industry?
Lord Davies of Oldham: My Lords, there are several and the co-ordination is not all that we should like, which is why the Secretary of State has indicated that he wants a review carried out over the next five months. By June we should be in a position to produce a rationalised system of regulation and control for the railways.
The Earl of Mar and Kellie: My Lords, is not the most relevant form of competition that between public transport and the private motor car? Should not the OFT be focussing on that rather than the rail passenger franchising process?
Lord Davies of Oldham: My Lords, the OFT has a limited role which relates to competition between companies. I do not believe that the noble Lord is indicating that particular companies present problems relating to car traffic, however large they may be regarding hire cars and so on. So that issue is not quite four-square with this issue, which is about a bus company and a rail franchise.

Tax Evasion
2.50 p.m.
Lord Barnett Lord Barnett asked Her Majesty's Government:
What are their policies to combat tax evasion in relation to offshore financial centres and overseas territories.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, Her Majesty's Government believe that international co-operation to promote transparency and exchange of information is
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the most effective way of tackling cross-border tax evasion. We welcome the progress that our overseas territories and the Crown Dependencies have made in committing to international standards and we will continue to promote the adoption of the highest standards in all financial centres.
Lord Barnett: My Lords, I thank the Minister for that reply. However, is he aware that there are perfectly reputable accountants who set up tax avoidance schemes which are then abused by taxpayers and used for evasion purposes? The Minister mentioned the question of co-operation. Can he confirm that the OECD is trying to ensure that there is a rule drawn up for all countries where there are tax havens? Without such a ruling, no single country would agree to co-operate with the OECD. I understand that a number of countries are not co-operating. What exactly is the UK Government doing about that?
Lord McIntosh of Haringey: My Lords, regarding the first question of the noble Lord, Lord Barnett, I would have thought that one of the professional responsibilities of perfectly reputable accountants would be to see that their clients do not use their advice for tax evasion.
Regarding his second question, I agree that it is necessary for us to support the OECD's pursuit of all financial centres to ensure that they adopt the highest possible standards. Most recently we have succeeded in ensuring the highest possible standards in the Crown Dependencies. The issue of overseas territories is being pursued by the European Union with a good deal of success, but we need to continue to pursue many other financial centres. We totally support the OECD in doing that.
Baroness Noakes: My Lords, what estimate do the Government make of the tax loss each year from tax evasion through offshore financial centres? Will he say how much that has been reduced by government policies over the past seven years?
Lord McIntosh of Haringey: My Lords, that might be the classic unknowable statistic. Tax evasion is tax that is unpaid by breaking the law. If we had statistics on law breaking we could stop that. By definition, estimates of tax avoidance may exist, but that was not the question asked by the noble Baroness, Lady Noakes. Yes, we are making progress, but it is inevitably slow. First, it has been through the EU savings directive; and all but three countries in the EU now agree to exchange of information, which is our preferred method. Those countries—namely, Belgium, Luxembourg and Austria—which still maintain withholding taxes, will have to increase them. All of that puts pressure on the next group of countries, including, most importantly, Switzerland; and that, in turn, puts pressure on those outside countries which are also resisting. It is a long and difficult task, but as we make step-by-step progress it becomes more difficult to use offshore tax havens.
Lord Peston: My Lords, does the existence of tax havens mean that what the rest of us would regard as "tax evasion" is described as "tax avoidance"? I thought that was the point of my noble friend's Question. Is it not the case that whereas ordinary British people work extremely hard and end up paying the maximum rate of tax, other people earn infinitely more and end up paying lower rates of tax? Do not the Government—not just accountants—have a responsibility to act as vigorously as they can to deal with that?
Lord McIntosh of Haringey: My Lords, I thought that I answered a question like that in some detail a couple of weeks ago in the House. I agree that it is in all our interests that we should pursue tax avoidance and tax evasion. Lower rates of tax in themselves cannot be pursued. We are not looking for harmonisation of either corporation tax or income tax. But through the European Union and OECD we pursue the use of those lower tax rates by offshore financial centres to facilitate tax avoidance.
Lord Marsh: My Lords, why should the Minister seek to make a moral argument that says that the Inland Revenue can use all of its powers and legal advice to obtain the maximum amount of tax from the taxpayer, while the taxpayer is criticised for doing no more than seeking the best advice that he can afford to ensure that he pays the minimum amount within the law? That is spoiling a perfectly happy relationship between those people and the Inland Revenue.
Lord McIntosh of Haringey: My Lords, I have already made clear that we cannot pursue differential rates of taxation in different centres. It is when those rates are used to avoid taxes due to this country that we are obligated to pursue the matter—in that I agree with the noble Lord, Lord Peston. That is why we have supported the savings directive and, particularly, its disclosure provisions, which will help to ensure that people pay tax in the tax regime where they are supposed to pay it.
Lord Phillips of Sudbury: My Lords, perhaps the noble Lord, Lord Marsh, displays an untypical streak of naivety in his comments regarding tax evasion. The noble Lord, Lord Barnett—
Noble Lords: Avoidance!
Lord Phillips of Sudbury: My Lords, all right—"avoidance" or "evasion"; it is a very—
Noble Lords: Oh!
Lord Phillips of Sudbury: My Lords, those of us who have practised in the field, whether as accountants or solicitors, might be a little more sceptical.
Noble Lords: Question!
Lord Phillips of Sudbury: My Lords, my question relates to the report of the House of Commons Public Accounts Committee on tackling tax fraud, which was published three weeks' ago. It pointed out that the Inland Revenue would like to have the same power as the United States Internal Revenue Service to issue information notices to banks, asking them if a customer has an overseas account. Would the Government contemplate giving our Inland Revenue the same powers, because they would be effective?
Lord McIntosh of Haringey: My Lords, I shall not comment on the first point made by the noble Lord, Lord Phillips—called by the noble Lord, Lord Barnett, "the fine line" between tax evasion and tax avoidance. For me one is illegal and the other is legal and that is not a fine line at all.
Regarding the second point, I acknowledge the valuable report of the Public Accounts Committee. In turn, it recognised that in the 2003 Budget we introduced new compliance and enforcement initiatives to enable us to deal with offshore problems. The committee agreed that any further steps should await confirmation of the success or otherwise of the initiatives that were introduced last year. We are certainly prepared to go further if that proves necessary.
Lord Barnett: My Lords, I am delighted that my noble friend recognises the fine line between tax avoidance and tax evasion occasionally. However, in his earlier reply he appeared to place responsibility on perfectly reputable accountants who have devised perfectly legal tax avoidance schemes that are misused by taxpayers. That is what I was referring to and I hope that that was what he had in mind.
Lord McIntosh of Haringey: My Lords, the phrase "fine line" was used by the noble Lord, Lord Barnett. I see no fine line between illegality and legality. It is different under different legal jurisdictions, but it is there and it ought to be adhered to.
My point in relation to the first supplementary question was that professional advisers, be they lawyers or accountants, have a responsibility to ensure that clients who take their advice do not transgress the line between avoidance and evasion. If he is saying that others who have no professional relationship to a client are doing that, clearly professional advisers cannot intervene.

Avian Flu
3 p.m.
Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer asked Her Majesty's Government:
Whether consideration has been given to the likelihood of the avian flu being spread to Europe by wild caught birds imported for the cage-bird trade from south-east Asia, and whether this trade should be halted.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whirry): My Lords, in the light of the outbreak of avian flu, European law was introduced on 29 January addressing concerns about live birds. Accordingly, the UK Government took measures that same day to ban the importation of all live birds from Thailand, Cambodia, Indonesia, Japan, Laos, Pakistan, China, South Korea and Vietnam.
Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for that Answer. I am surprised that the Government, in choosing to ban a number of imported products on 23 January, did not ban the import of live birds until a week later. In the light of lessons learnt during the foot and mouth outbreak about transmission between live animals or birds being so much more dangerous, can the Minister explain that? Furthermore, is this not a good moment to call a halt to a trade which is a disguise for some of the illegal imports of wild birds into this country, decimating the populations in the countries from which they come?
Lord Whitty: My Lords, there are two different points. The EU decision to ban the import of live birds of all kinds from the nine south-east Asian countries was a precautionary move and further precautionary moves have been introduced. The risk of them having the strain of avian flu that exists among poultry is very low. The number of imports of live birds from those countries directly into the UK during the past few years has been very low indeed.
In so far as live exotic birds are imported from tropical climes, they tend to come from South Africa and not from south-east Asia. While there have been concerns about legitimacy and bird welfare involved in the trade, it is a legal trade under EU and international law, provided that animal welfare legislation is observed.
Baroness Trumpington: My Lords, are chicken droppings made into fertiliser and then exported from the Far East? If so, should not that trade be halted?
Lord Whitty: My Lords, fertiliser made in that way should not be imported from the Far East but, on a precautionary basis, the EU is banning imports of feathers and a number of products based on bird droppings from those countries. That therefore minimises any risk, however remote, of the particular strain of avian flu coming into Europe.
Lord Soulsby of Swaffham Prior: My Lords, we should be glad that the Government have banned the import of live birds. There is of course the major problem of poultry products coming from the Far East in massive amounts. This virus spreads rapidly and is lethal. What is the capability of this country and the European Union in the production of a vaccine against this avian flu and possibly the recombination of avian and human flu viruses? Are we set up to respond to the danger should it enter the EU?
Lord Whitty: My Lords, the ban is on fresh and frozen meat of all sorts dispatched from the countries
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involved after 1 January. Processed meat will have gone through a heat process that will have eliminated the virus. Indeed, the virus probably disappears from meat, although not necessarily from chilled and frozen meat.
As regards the vaccine, the World Health Organisation network is working on vaccines which meet particular strains of avian flu. The vaccine is not at this point available and it may take weeks or months before it would be available on a sufficiently usable scale in Europe. If there were a recombination of the kind the noble Lord refers to in humans, that would be a different strain again on which one would have to develop a vaccine. A base vaccine exists, but one would have to develop it in order to meet the particular strain.
Baroness Thomas of Walliswood: My Lords, do the Minister and the Government share the concerns I have heard expressed by some biologists that avian flu would be more likely to spread to pigs than humans and that if it did a new virus could be generated which would be far more infective between humans because the pig is much nearer to our construction than is the bird?
Lord Whitty: My Lords, it is true that pigs are susceptible to avian flu. In the same way as a reconstitution of the virus can occur in humans, in effect creating a new virus, it can do so in pigs for the very reason the noble Baroness outlined. Therefore, there is undoubtedly that danger, which is probably higher because frequently in south-east Asia—in China in particular—pigs and poultry are kept together. That form of husbandry may maximise the danger, which is why Europe and other importing areas of the world must be on their guard against importing any poultry or pig produce from the affected areas.
Baroness Byford: My Lords, will the Minister confirm whether or not wild birds are able to contract avian flu? When the question was first raised a few weeks ago, he said that it was not possible. Secondly, although the embargo was slapped on as soon as it was known, the outbreak occurred in October/November. Is there any tracking of cage-birds that have entered the country? If so, what results have been shown?
Lord Whitty: My Lords, extremely few cage-birds have entered this country from south-east Asia in recent years and therefore a tracking system could not effectively be pursued. In any event, the virus would have run out by October. As I said last week, there is a low level of avian flu in wild bird populations. It tends to be of low pathogenecity and in poultry the pathogenicity increases. Therefore, the transferability of avian flu in wild birds to humans is probably very limited indeed, if it exists at all. It must be transmitted via poultry before it becomes infective to humans. Nevertheless, that situation must be kept under control.
As for the outbreak in October, we had continuous reports until 23 January that the Thai outbreak was not avian flu. The position in relation to the other

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countries was that for other reasons poultry from all of them has been banned for some considerable time and the situation would not arise.
Lord Rotherwick: My Lords, have there been any seizures of chicken produce from Asia since the ban came into being? If so, have there been any prosecutions of the people who have brought in that produce?
Lord Whitty: My Lords, since the ban on imports from Thailand, which is the only new ban, there have been no seizures. There may well have been seizures prior to the avian flu of produce coming from China and other banned countries. If I can acquire such information, I will let the noble Lord know.

Wind Farms
3.9 p.m
Lord Dixon-Smith Lord Dixon-Smith asked Her Majesty's Government:
Whether they have ceased permitting the erection of onshore wind farms in the light of recent evidence of their effect on human health.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, we have no plans to change current procedures for giving consent to onshore wind farms. Currently planning authorities take into account the recommendations and methodologies for the measurement of noise in the case of wind farms as set out in the report ETSU-R-97: The Assessment & Rating of Noise from Wind Farms.
The methodologies applied during the planning application stage to satisfy authorities that noise emission levels will fall within accepted levels do not include the measurement of infrasound, as we are not aware of any scientifically validated evidence that infrasound emitted from wind turbines affects human health.
Lord Dixon-Smith: My Lords, the Minister will undoubtedly be aware that the Danes have ceased the erection of further on shore wind farms, in part as a consequence of health concerns. I hope he will also be aware that his colleagues in Defra have commissioned an investigation into the effects on health of infrasound; that is, low-frequency sound. Does that not suggest at the very least that the Government should consider a moratorium on further construction until the matter is properly cleared up?
Lord Sainsbury of Turville: My Lords, I have no reason to suppose that the Danes have started to build more offshore wind turbines because of health reasons. They have done so for the good reason that offshore wind turbines can be larger, which is more economical. Denmark already has a density of wind turbines 30 times greater than this country.
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Defra is carrying out a further study on the effect of low-frequency noise on health, but it is not related to wind farms. The study by Dr Harry, which suggested that low-frequency noise from wind farms could have an effect on human health, is contradicted by the study carried out in 1997, which showed that vibrations from wind farms have no impact on low-frequency vibration levels at the distances we are talking of.
Lord Watson of Richmond: My Lords, does the Minister agree that, in the light of well documented research on the damage that offshore and coastal wind farms have done to bird life in Spain, the greatest care will have to be taken on the location of wind farms? Will he assure that House that the matter is subject to active research by the Government?
Lord Sainsbury of Turville: My Lords, clearly this issue is of great importance and we are very aware of it.
Lord Tanlaw: My Lords, will the Minister say why the Ministry of Defence still objects to the erection of windmills in south-west Scotland on the basis that they interfere with radar? I understand that the only interference they make is similar to that of a heavy rainstorm or a clump of trees. I do not think that that justifies such objections
Lord Sainsbury of Turville: My Lords, this matter is being considered by the Ministry of Defence. As far as I know, no health issues are involved—which is what the Question is about—but if they have an impact, obviously we need to take it seriously.
The Earl of Liverpool: My Lords, given the controversial nature of wind farms, will the Minister consider that the time might be right to expend more effort and finance on tidal power, which is a guaranteed source of energy for 20 hours out of every 24,365 days of the year? If it was applied through tidal lagoons it would cause no problems to marine or avian life and could be as beneficial as wind power.
Lord Sainsbury of Turville: My Lords, tidal power is extremely expensive at this stage compared to wind turbines. Wind turbines are by far the most economical option. There is no kind of energy generation that does not have some downside. The question is therefore to balance the risks, the costs and the energy security objectives. The health downsides of wind turbines, as I hope I pointed out, are non-existent at this stage.
Lord Judd: My Lords, does my noble friend agree that the psychological health of the nation is deeply related to the quality of our countryside, which is becoming at a premium? Will he assure the House that in future policy towards wind farms—which have an

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indispensable contribution to make—great care will be taken to ensure that the quality of our countryside is not threatened?
Lord Sainsbury of Turville: My Lords, it is a major part of the planning process that the important consideration of the impact on the environment is taken care of.
Earl Attlee: My Lords, what does the Minister believe to be the safe separation between dwellings and wind turbines in terms of low-frequency considerations?
Lord Sainsbury of Turville: My Lords, the latest figure in the planning guidelines is 300 to 400 metres. Some bodies producing wind power such as National Wind Power use a more stringent guideline of 600 metres, which is probably desirable, but not necessary.

Horserace Betting and Olympic Lottery Bill
Brought from the Commons; read a first time, and ordered to be printed.

Weapons of Mass Destruction: Intelligence Review Committee
3.16 p.m.
Baroness Symons of Vernham Dean: My Lords, with the leave of the House I shall now repeat a Statement made in another place by my right honourable friend the Foreign Secretary. The Statement was as follows:
"Mr Speaker, with permission, I should like to make a Statement. The Prime Minister has decided to establish a committee to review intelligence on weapons of mass destruction. This committee will be composed of privy counsellors. It will have the following terms of reference: to investigate the intelligence coverage available on WMD programmes of countries of concern and on the global trade in WMD, taking into account what is now known about these programmes; as part of this work, to investigate the accuracy of the intelligence on Iraqi WMD up to March 2003, and to examine any discrepancies between the intelligence gathered, evaluated and used by the Government before the conflict, and between that intelligence and what has been discovered by the Iraq Survey Group since the end of the conflict; and to make recommendations to the Prime Minister for the future on the gathering, evaluation and use of intelligence on WMD, in the light of the difficulties of operating in countries of concern.
"The Prime Minister has asked the committee to report before the Summer Recess. The committee will follow the precedent in terms of procedures of the Franks committee, will have access to all intelligence reports and assessments and other relevant government papers and will be able to call witnesses to give oral evidence in private.
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"The committee will work closely with the United States inquiry and the Iraq Survey Group. The committee will submit its final conclusions to the Prime Minister in a form for publication, along with any classified recommendations and material. The Government will, of course, co-operate fully with the committee.
"The members of the committee will be the Lord Butler of Brockwell, the chairman, Sir John Chilcot, Field Marshal Lord Inge and two senior Members of this House, the right honourable Member for Dewsbury and the honourable Member for East Hampshire, who will be made a privy counsellor.
"In setting the terms of the inquiry and its membership there have of course been discussions with the leaders of the two main opposition parties. I regret, however, that the leader of the Liberal Democrat Party has declined to support the inquiry; that, and that alone, explains the absence of a senior member of the Liberal Democrats on it.
"As the House will be well aware, there have already been three inquiries into aspects of the Iraq war. The first, established in early May last year, was by the Intelligence and Security Committee. This considered in some detail the intelligence received in London, its assessment, and use, including in the dossier. It reported to Parliament on 9 September.
"The second, by the Foreign Affairs Committee, was established on 3 June last year against the background of the controversy surrounding the Andrew Gilligan report on the "Today" programme on 29 May. It reported on 7 July.
"The third, the judicial inquiry by Lord Hutton, was established following the death of Dr David Kelly, and it of course reported last Wednesday.
"Although the terms of reference of the three inquiries varied, a central theme of each of them was whether the Government had acted improperly or dishonestly in using the intelligence available to them. Echoing the conclusions of the earlier reports, and in categorical terms, Lord Hutton made emphatic last week that such allegations were unfounded. This new inquiry will obviously not be revisiting the issues so comprehensively covered by Lord Hutton.
"Whilst these inquiries were under way, three proposals were put before the House in June, July and late October on opposition Motions calling for wider inquiries into aspects of the Government's handling of events in the run-up to the Iraq war. The Government resisted these calls, including on the grounds that the inquiries already under way should be allowed to complete their work. Later, both the Prime Minister and I referred also to the continuing activity of the Iraq Survey Group.
"Over the past week, we have seen the publication of the Hutton report and the evidence of Dr David Kay, former head of the Iraq Survey Group, to a US congressional committee. It has also emerged that the ISG may take longer to report than we had originally

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envisaged. All this has led the Government now to judge that it is appropriate to establish this new inquiry of Privy Counsellors.
"Lord Hutton has, as I have said, dealt conclusively with the very grave charge against the Government that we had in some way acted improperly or dishonestly in the preparation of intelligence put before the House and the public.
"But the Government recognise that there are wider and entirely legitimate concerns about the reliability of the original intelligence, which have been heightened by Dr Kay's evidence. Dr Kay, repeatedly in that evidence, emphasised his continued support for the decision to take military action and that Iraq was in clear and material violation of UNSCR 1441. But he also said to Congress on 28 January:
'Prior to the war, my view was that the best evidence that I had seen was that Iraq, indeed, had weapons of mass destruction. I would also point out that many governments that chose not to support this war—certainly the French President Chirac … referred to Iraq's possession of WMD. The German intelligence certainly believed that there was WMD'.
Dr Kay added:
'It turns out that we were all wrong, probably in my judgement, and that is most disturbing'.
"In the intervening period since the Iraq war began, there have, however, been events elsewhere which have greatly increased anxieties about the proliferation of WMD and of the need for reliable intelligence and effective international action. According to reports over the weekend, an individual has sold nuclear secrets to Pakistan. Iran, for a long time, did not report all that it should have reported to the International Atomic Energy Agency under its Safeguards Agreement. Libya was in breach of its obligations under the non-proliferation treaty and both countries are now the subject of considerable activity by the International Atomic Energy Agency. There are other concerns, too. So we have judged it prudent for this inquiry to consider these wider issues as set out in its terms of reference. But, of course, a great focus of the committee's work will be on Iraq, and rightly so.
"It is, however, important to remind ourselves both about the significance and the limits of the use of intelligence in relation to Iraq. The September dossier made a powerful case for the world to take notice of Iraq; it did not make a case for military action. And, as the record shows, the case for military action was fundamentally based upon Iraq's breach of UNSCR 1441.
"Saddam Hussein had used WMD against his own people and against his neighbour, Iran. He had invaded two of Iraq's neighbours, leading to the deaths of a million people. For 12 years after the Iraqi army was expelled from Kuwait, Saddam Hussein defied repeated United Nations resolutions calling for him to co-operate with UN weapons inspectors to dismantle his WMD programmes. Resolution 1441 unanimously found Iraq in material breach of previous resolutions and offered
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it a 'final opportunity' to comply fully and immediately with UN inspectors or face 'serious consequences'. The head of the UN inspectors, Hans Blix, published on 7 March 2003 a 173-page document listing the unresolved issues in respect of Iraq's WMD programmes—a document which I placed before the House in a command paper some days later.
"All this painted a compelling picture. As the Prime Minister and I have said repeatedly, it would have been gravely irresponsible not to have acted against this. We took the right decision in agreeing military action against Iraq, and it is still the right decision today.
"For the sake of completeness, it may be helpful to give a more rounded picture of Dr Kay's evidence to Congress last week. These are some of the things that he said:
'I think, when we have a complete record, you are going to discover that after 1998 Iraq became a regime that was totally corrupt. Individuals were out for their own protection and, in a world where we know others are seeking WMD, the likelihood at some point in the future of a seller and a buyer meeting up would have made that a far more dangerous country than even we anticipated with what may turn out to be a not fully accurate estimate.
'All I can say is if you read the total body of intelligence in the last 12 to 15 years that flowed on Iraq, I quite frankly think it would be hard to come to a conclusion other than Iraq was a gathering, serious threat to the world with regard to WMD.
'I think you will have, when you get the final ISG report, pretty compelling evidence that Saddam had the intention of continuing the pursuit of WMD when the opportunity arose'.
I shall place in the Library of the House a full copy of Dr Kay's evidence.
"Let me take this opportunity to pay tribute to the outstanding work of Britain's intelligence agencies around the world, often in hostile conditions. This inquiry is emphatically not an attack on that vital work, nor on the dedication and the professionalism of the people who work in those agencies. But what it should do is help the Government better to evaluate and assess the information they provide.
"The decision which this House took 10 months ago to go to war was justified, given the defiance of a regime which uniquely had used WMD and had refused to comply with obligations unanimously imposed upon it by the United Nations Security Council.
"That is a decision for which we, as elected representatives, took responsibility and will continue to take responsibility. We cannot sub-contract that to any inquiry, however distinguished. But I believe that Lord Butler and his colleagues will be able to perform a most valuable service to this House and the country, and I express my appreciation to them".
My Lords, that concludes the Statement.
3.28 p.m.
Lord Howell of Guildford: My Lords, I am sure that we are all extremely grateful to the Minister for repeating this Statement from the Foreign and Commonwealth Secretary. Obviously, we welcome the

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decision to hold this inquiry and, in particular, we welcome the appointment of the noble Lord, Lord Butler of Brockwell, as its chairman and the noble and gallant Lord, Lord Inge, as a member of the inquiry team.
It is very much in the interests not only of the Government but also of the Opposition—indeed, of all those who seek to participate responsibly in public affairs and the democratic process—that trust and confidence in government institutions should be restored, including in our intelligence services.
In this terrorist age, when failure to anticipate attacks can be fatal and when the alternative to intelligent and well informed pre-emption of threats is defeat and possible mass murder, the quality and integrity of intelligence becomes even more crucial—indeed, fundamental. So it is all the more vital to establish beyond doubt in people's minds what were the real reasons and justifications for removing Saddam Hussein and his hideous regime. As the Prime Minister emphasised and this Statement confirms, the inquiry now proposed will not go over the narrow ground covered by the Hutton inquiry. Personally, I have never doubted that the Prime Minister is entirely honourable. I am very glad that he escapes all criticism and that Downing Street is cleared of "underhand or duplicitous strategy", to quote the Hutton report, in the tragedy. Anyway, we shall debate that tomorrow.
But our concern has all along been something wider. While we thought, and still think on these Benches, that there were good grounds for getting rid swiftly of the monstrous Saddam regime, which incidentally, Dr Kay himself concluded did pose a serious and imminent threat despite no weapons of mass destruction being uncovered, we did repeatedly question at the time the main reasons being given by Ministers for going to war as part of the coalition. That is why we have been calling for a deeper inquiry for many months past; in fact, since last June.
I have some brief questions for the Minister. First, how is it that, despite our pleas over many months past, the Government have only now changed their mind and that very suddenly indeed? Only last Sunday the noble and learned Lord the Lord Chancellor, on whose guidance we so often in this House respectfully rely, was saying:
"Little would be achieved by continually looking and re-looking at what the intelligence shows at a particular time".
Yet by Monday evening it seems that a lot would be achieved. This is a sudden and rapid U-turn without any signals, even by the erratic driving standards of the present administration.
Secondly, the terms of reference, to which I attach great importance, refer to the "evaluation" of intelligence gathered. Does that mean evaluation by intelligence officials themselves of the material they receive or does it mean evaluation by government of what they have received? The text appears to support the latter and surely it is bound to be the latter. In that case the role of government officials in handling and presenting intelligence will properly come in for scrutiny in this inquiry. I am not too clear why our
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Liberal Democrat friends are so convinced it will not and why they have refused, rather regrettably in my view, to take part. But we shall doubtless learn about that in a moment.
Thirdly, while the terms of reference focus on WMDs, or rather the lack of them, how far will the investigation look at other areas of poor planning arising from poor intelligence? Obviously, that seems relevant to the overall performance of the intelligence services. For instance, it was widely predicted, presumably based on intelligence, that after the invasion of Iraq there would be massive refugee problems there, mass starvation and vast spread of disease. In fact, none of this happened. But as a result of those predictions based on intelligence, resources were deployed in the wrong form, at the wrong time and in the wrong direction, with very severe consequences from which the coalition efforts are only now recovering.
Fourthly, will this inquiry look closely at the role of the Joint Intelligence Committee and its relationship with Downing Street officials, which many people felt, and still feel, was too matey.
Fifthly, could we know more on timing and procedure? I understand that it will be a private inquiry, but that, as with Franks, all the evidence that is not highly classified will be fully published in due course. Is that correct? Will it be completed in 18 months like the American inquiry which, by an amazing coincidence, was also announced over the weekend, indeed yesterday?
However, the main thing is that an inquiry which was deemed previously "not useful" by the Government is now held to be useful and necessary after all. So we on this side should be thankful that the Government have now changed their mind and agree with us, and thankful for this Damascene conversion on the road to clarity and public reassurance.
3.35 p.m.
Baroness Williams of Crosby: My Lords, I thank the Minister for repeating the Statement made in another place and make the comment that, paraphrasing a former Prime Minister, a day appears to be a very long time in politics. I echo what the noble Lord, Lord Howell of Guildford, has said. Only as long ago as yesterday the Government, in the shape of the noble and learned Lord, were repeating the lack of necessity for an inquiry.
So the first question I ask the Government is this: exactly what happened between Sunday and Tuesday that changed the Government's mind? It was clearly not Dr Kay's evidence, which was given as long ago as last Wednesday and was not followed by any similar statement by the Government.
Secondly, on what basis did the Government take us to war? In that context I quote the answer given by the Prime Minister to a question asked by my right honourable friend in another place, Alan Beith, as long ago as the last meeting of the Liaison Committee on 8 July 2003. In answer to Mr Alan Beith's question

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about what steps might be taken and what were the reasons for the Government's invasion of Iraq, Mr Blair replied:
"The truth is that to take action we had to have the proper legal basis and that was through the weapons of mass destruction issue and the non-compliance with the UN inspectors".
The Prime Minister could not have stated more clearly the basis, as he saw it, of the decision to make war on Iraq.
The question which arises in this context is why, when we were assured by Mr Hans Blix last March that he needed only a few months to complete his work on the disarming of Iraq, nevertheless the Government, together with their American ally, decided to make war on that country?
The third question concerns an issue raised by the noble Lord, Lord Howell of Guildford, and echoed by the Minister herself. That is the absolute importance of the credibility and reliability of intelligence. There is no doubt that in a world of terrorism, rogue states and pre-emptive policies intelligence must be as credible and reliable as it can be. Given the remit of the inquiry, there is a danger that the intelligence services may become the scapegoats. I quote the former head of the Joint Intelligence Committee, who said on "The World at One" on Sunday that the inquiry,
"could become a device for making scapegoats of the intelligence people and diverting the primary responsibility from politicians".
Both the Prime Minister and the Leader of the Opposition have an interest in that happening.
I come finally to respond to the question legitimately put by the noble Lord, Lord Howell of Guildford, which is why the Liberal Democrats feel unable to participate in this inquiry. It comes straight back to the remit—the terms of reference. In a letter to the Prime Minister dated yesterday, 2 February, the leader of my party in another place asked whether the subsequent presentation of intelligence could be taken within the remit of the inquiry and whether,
"the political judgments based on that intelligence which led us to go to war in Iraq",
could be included within that inquiry.
Both were refused. I am surprised that the leader of the Conservative Party did not throw his weight behind widening the remit of the inquiry in that way which I believe would have made it difficult for the Government to refuse. But it was refused and we believe that, by placing the remit where it is, by above all excluding the political judgments about going to war from the terms of that remit, the Government are once again risking a loss of public trust. Without public trust, which must include the question of the judgment of politicians, we believe that from the very beginning this inquiry is jeopardised and will not bring to an end the serious questions asked about the United Kingdom's involvement in the war against Iraq.
3.40 p.m.
Baroness Symons of Vernham Dean: My Lords, I thank both noble Lords for welcoming, if not the contents of the Statement, the fact that I repeated it.
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Like the noble Lord, Lord Howell of Guildford, I also welcome the fact that the noble Lord, Lord Butler, will be chairing this inquiry and that the noble and gallant Lord, Lord Inge, who is well known in this House, will be a member of it.
I agree with the noble Lord; it is now very much in our interest that any vestige of mistrust or lack of confidence in the intelligence and the way it was gathered, evaluated and used by the Government before the conflict, is now laid to rest. This inquiry is a means of attempting to do so.
I also agree with the noble Lord about the importance of confidence in the evaluation and gathering of our intelligence. It is not just a question about WMD, although this inquiry is about WMD. Questions are of course raised, as the noble Lord pointed out, in relation to terrorism, but he and other noble Lords will have noticed that this inquiry is about the gathering of intelligence in relation to WMD.
The inquiry will not go over the Hutton points any further. The Hutton points have been exhausted in one of the most public exposures of the workings of the intelligence agencies that I can recall, in terms of what was put in the public domain. I thank the noble Lord for what he said about my right honourable friend the Prime Minister and Downing Street. I am glad that he was pleased that they were exonerated in the way that they have been. Similar views have been expressed from many sides of this House—not just on my own Benches but from Benches right around your Lordships' House, and I welcome that.
The noble Lord said that the concerns went wider than the Hutton remit and that they repeatedly questioned, during the run-up to the war, the basis for going to war with Iraq; I believe that he referred to wanting to get rid of Saddam Hussein. On most occasions when we discussed this, if not every occasion, I reiterated to your Lordships that the basis for our going into a war was the flouting of the United Nations resolution over a very long period. I am sure your Lordships will recall the unanimous passing of UNSCR 1441—my right honourable friend referred to it in his Statement in another place—and the fact that that was passed unanimously. It gave Saddam Hussein's regime one last chance to conform with United Nations Security Council resolutions.
The noble Lord and the noble Baroness raised the question, "Why now?" and referred to my noble and learned friend's intervention in the media this week. I fully acknowledge that I stood at this Dispatch Box only last Thursday and said that the Government had no plans in this regard. I shall say it before any of your Lordships point it out to me—I did indeed do exactly that. Let me try to explain.
First, we had indeed got Hutton out of the way; that was an important point. In government, despite what the noble Baroness implies, there are not instant decisions based on "we have done this and now we turn to that". The Hutton issue is important and it was only got out of the way last Thursday.

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We also believed—I certainly implied as much, although I did not say so definitively when I spoke before your Lordships' House last week—that the ISG report would be ready at some point. I did not say "in the near future" but it was certainly in my mind that it would be in the near future and I understand from my right honourable friend that it is now likely to be somewhat delayed. Again, that is an important point, because, as the noble Lord made clear, questions about trust and confidence must be addressed; they cannot be allowed to run.
On my part and that of many of my right honourable friends, the evidence that Dr Kay gave last week was a very important factor. Some noble Lords may have heard my right honourable friend the Prime Minister speaking at the Liaison Select Committee this morning. I found the detailed reading of the evidence before the Armed Services Committee on 28 January important in relation to the decision-taking that has come to pass.
That is an honest explanation. Those three factors were involved and for me—I do not speak for my honourable and right honourable friends elsewhere—the Kay evidence is an important factor. My right honourable friend the Prime Minister said he would put the evidence in the Library of another place; I will ensure it is put in our Library too.
The noble Lord talked about the evaluation of intelligence. This is a point that I have also raised today in relation to these terms of reference. Evaluation of the intelligence is not undertaken by government Ministers. In this sense "undertaken by government" comprehends Ministers and Civil Service agencies. Ministers occasionally see raw intelligence but mostly, as the noble Lord will know, by the time intelligence reaches Ministers it has gone through some evaluation process; it has been assessed. A variety of different bodies—agencies, civil servants or the JIC—might do that. It is important that we understand that Ministers do not go through that evaluation process; I am sure that the noble Lord is as aware of that as I am.
The noble Lord went on to ask whether this implied that the WMD inquiry would go wider because of what he claimed was poor planning because of poor intelligence. Again, I refer your Lordships back to the terms of reference and suggest that the noble Lord, Lord Butler, will be able to look at the precise areas that he wants to investigate within the terms of reference. These questions were raised earlier in another place.
The noble Lord asked about relations with the JIC. That question was partly addressed by the Hutton inquiry, although that very much involved the allegation with which the Government had some dispute. Those matters can be looked at by the noble Lord's inquiry if he wants to consider specific areas. No doubt he will make his views clear.
On the question of timing, the Statement makes it clear that we hope that the report will appear before the Summer Recess. As I understand it, the privacy will be analogous to that afforded to the Franks committee. We will publish what we can but that has to be consistent with security considerations.
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The noble Lord said, somewhat tongue in cheek, that it was an amazing coincidence that this had happened this weekend. I do not think it is an amazing coincidence—I have tried to be as frank as I can. My right honourable friend in another place frequently said today that he had discussed the matter with the American Administration. Of course he had; that is right and proper. The Kay evidence has obviously played its part in terms of thinking on both sides of the Atlantic. I make no apologies for that. It is an entirely reasonable position for the Government to have articulated.
I turn to some of the questions raised by the noble Baroness and the basis on which the Government went to war. We discussed that very thoroughly both here and in another place. Indeed, there was a vote taken in another place before the military action began. I very much agree with the remark of my right honourable friend the Foreign Secretary that it is not for an inquiry, however distinguished, to sub-contract that decision from politicians. That is a very important point in a democracy. The fact is that there is an elected House and there is your Lordships' House, which also has oversight. It is for the Houses of Parliament, not the inquiry, to look at those decisions.
I turn to the statement that the noble Baroness quoted. My right honourable friend the Prime Minister stood by that statement this morning in the Liaison Select Committee.
My 20 minutes are up, but, if your Lordships will indulge me, I want to make a final point about, the question of political judgment. The noble Baroness said she was surprised that the Conservatives had agreed with the Government on that. I am bound to say to the noble Baroness that I find her surprise really quite astonishing. When one has been in government dealing with these very difficult issues, one knows that the responsibility must lie with government. The noble Baroness knows that from her own period in government. The responsibility and accountability lie with government. The Government are not flinching from that. My right honourable friend made that clear today in another place.
3.50 p.m.
Lord Archer of Sandwell: My Lords, I declare an interest as a member of the Intelligence and Security Committee, which has already reported on some of these issues. Is it not clear from the reactions to the Hutton report that any inquiry these days is liable to be rubbished by those who do not find its conclusions to their liking? Are we not in danger of running out of distinguished public figures who are prepared to give their time and energy to produce further reports simply to attract further ill conceived criticism?
Baroness Symons of Vernham Dean: My Lords, I have some sympathy with the comments of my noble and learned friend. I believe that the thanks we give to those who are willing to serve on this inquiry should be unstinted. Certainly, I do not envy them their task. My noble and learned friend is right. The problem with any report of this nature is that people commit themselves to a definitive view before the report is published and then find it difficult to depart from that view.

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That is one of the penalties we pay for open government. The evidence is given in open session. Everyone assesses the evidence as it goes along, leaps to conclusions, writes them down, publishes them, talks about them and then finds it almost impossible to consider the matter in the round. Perhaps one of the benefits from conducting the inquiry in this way will be that that kind of running commentary may not feature quite so much.
Lord King of Bridgwater: My Lords, in inviting the noble and gallant Lord, Lord Inge, and his colleagues to undertake this extremely difficult task, is it not imperative that before they start there is no uncertainty about the meaning of the terms of reference? I have already identified that that uncertainty seems to exist at present.
Of course there is ministerial responsibility for taking a decision, but intelligence, and the decisions taken on it, is a seamless process. In that connection, the Statement says that this is to assist the Government better to evaluate and assess information that the inquiry will provide. This has nothing to do with Hutton and whether the intelligence was improperly or dishonestly used, but perhaps I may ask what was the quality of evaluation and assessment by Ministers. The Statement reads:
"to examine any discrepancies between the intelligence gathered, evaluated and used by the Government".
Are we to understand that the committee is entitled to consider how it was used by the Government?
Baroness Symons of Vernham Dean: My Lords, I hope that there will not be doubt about the terms of reference. If the noble Lord means that the committee has still to explore the terms of reference, he is entirely right. As I understand it, the noble Lord, Lord Butler, is not in the country at present. However, I am sure that he will want to look closely at the terms of reference with his colleagues on the committee. Of course, they have been acquainted with the terms of reference, but the noble Lord will know that very often in setting up a committee the chairman will explore the terms of reference with the committee members to decide the appropriate limits of the remit.
As regards the quality of intelligence, it is enormously important that we visit the points raised by the noble Lord, Lord Howell of Guildford, regarding confidence in the gathering, quality, and evaluation of intelligence and, indeed, as the terms of reference make clear, the use of intelligence by government before the conflict and how that compares with what has been discovered now on the ground.
I assure noble Lords—I did not have the opportunity to do so in answering the noble Baroness—that there is no question of scapegoating the intelligence services for shortcomings. We rely on our intelligence services. As the Minister responsible for counter-proliferation and counter terrorism, I have a great deal to do with them and have the utmost admiration for them.
The Lord Bishop of Oxford: My Lords, I very much welcome the setting up of this inquiry. The quality of
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our intelligence services is crucial to the long-haul struggle against terrorism that lies ahead. I speak as someone who was not able to support the military action because I did not believe that the threat was so imminent and serious. However, I did believe, for two reasons, that there were weapons of mass destruction, and my questions are related to that.
First, when the United Nations inspectors left in 1998, they reported that although Saddam Hussein's nuclear weapons had been destroyed, as had his means of delivery, his biological weapons were still there as were a great number of chemical weapons. Will the inquiry, as I very much hope, consider the reports of the United Nations inspectors as well as those of our own intelligence services?
Secondly, I believed that weapons of mass destruction were there because of some of the reports of the highly respected independent think tanks, such as the International Institute for Strategic Studies. Where did that organisation get its information, or did it rely simply on government sources? I very much hope that the inquiry will be as wide-ranging as possible and include those two issues.
Baroness Symons of Vernham Dean: My Lords, I thank the right reverend Prelate for his remarks. He made it very clear that he did not support the Government in the military action, as did many others in your Lordships' House, many in my own party. I respect that view, as I have made clear over and again. This was a genuine disagreement with many not only in your Lordships' House but elsewhere and throughout the country.
The right reverend Prelate is right to remind the House about the UN inspectors. My right honourable friend was right to remind us about what Mr Hans Blix said in the 173 pages of unanswered questions that he published before the military conflict. Not only were WMD thought to be there by our own intelligence services and the United States intelligence services but also by the intelligence services of those who did not agree with the military conflict, that is, France and Germany.
Lord Lloyd of Berwick: My Lords, if, as the Statement says and as the Minister has confirmed, the justification for the war was the breach of UN Resolution 1441 which called on Iraq to dismantle its weapons of mass destruction, and if by November 2002, the date of that resolution, Iraq had no weapons of mass destruction as now seems very likely, how could it dismantle what it did not have?
Baroness Symons of Vernham Dean: My Lords, as I am sure the noble and learned Lord is aware, Mr Hans Blix raised a number of questions, including the non-co-operation in establishing what was on the ground in Iraq. I am sure that the noble and learned Lord will recall that we had a very lengthy process with the Government of South Africa, in which we considered ways in which they were getting rid of their capabilities. We discussed that at the time. That is the way to engage: in an open and

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transparent way. Indeed, at present we are considering ways of engaging similarly with Libya on outstanding questions in relation to its weapons of mass destruction.
The point here is the lack of co-operation in dealing with these issues and the material breach of UN Resolution 1441, which was unanimously found to have occurred. That was not just the view of the United States and the United Kingdom. The whole of the United Nations Security Council found that Iraq was in material breach.
Lord Redesdale: My Lords, the Statement says that the Government will evaluate evidence that has been discovered by the Iraq Survey Group since the end of the conflict. The evidence given by Dr David Kay was that the two mobile weapon laboratories that we heard so much about—indeed, the President of the United States mentioned them in the State of the Union address as evidence of weapons of mass destruction—were no more than hydrogen producers either for hydrogen balloons or rocket fuel. Will the Minister immediately release the information about who produced the equipment that was on the back of these vehicles? They were Iraqi produced, although some of the equipment was British. Who produced this British equipment, and when did they do so? I have asked the Government this question a number of times. They have refused to answer it. I took the Government to the ombudsman, and we are waiting to receive that report. However, in the light of Dr Kay's evidence, the Government could report it. I hope that they will be able to give us that information now.
The fact that the Government could not release information to the British people about equipment that was produced in Britain, and that they used exemptions in the Freedom of Information Act 2000 to say that the Americans did not allow us to use that, gives the impression that there was collusion between the British Government and the American Administration to suppress the information that there was nothing untoward about these two vehicles in the case of weapons of mass destruction. I request that this issue be part of the report. If that is the case, the Government have a case to answer.
Baroness Symons of Vernham Dean: My Lords, I do not have details about these two vehicles with me at the Dispatch Box. The noble Lord is pushing his luck in thinking that I do. Let me be clear with him. I will release whatever information that I can that is consistent with security. The noble Lord is shaking his head, but he must understand the nature of releasing this sort of information. It is not just that you tell people how your security services work, you may also be exposing sources and putting people in jeopardy. This is not a game; we are not playing some elaborate game of how much I can withhold and how much the noble Lord can winkle from me.
This Government have put more information on intelligence into the public domain over the course of this year and the Hutton inquiry than any government that I can recall. I have been in and around Whitehall for some 25 years, and I have never seen openness of
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government the way this Government practise it. I will look at anything that can be released sensibly, but I will do nothing that I think, or that others advise me, is against the security interests of this country.
Lord Merlyn-Rees: My Lords, I am one of the few remaining members of the Franks committee, which investigated the origins of the Falklands War. Will this new committee have the power to call any body or any individual that it wishes to give evidence?
Baroness Symons of Vernham Dean: My Lords, I believe that that will be the case. The powers of the committee will be similar to those of the Franks committee. They are not exactly the same, because these are different circumstances, and it is a different conflict in different times. I hope that the committee will be able to make full use of those powers.
Lord Campbell of Croy: My Lords, I am glad that the Government have decided to set up an inquiry of Privy Counsellors. I was the Secretary of the first Privy Counsellors' conference on security, which looked into the disappearance and reappearance in Moscow of Burgess and Maclean. In that case, our report had two parts; one was open and the other was top secret. I remember delivering the top secret part to No. 10 Downing Street. Will the same procedure be carried out on this occasion, with an open part of the report and a secret part?
Baroness Symons of Vernham Dean: My Lords, as I understand it, that is the case. There will be an open report, and there will be parts of the report that cannot be put into the public domain, because of the nature of the evidence that will be taken. The noble Lord has reminded us of the enormous wealth of experience that there is on these issues in your Lordships' House.
Lord Goodhart: My Lords, the legal basis of the military action was UN Security Council Resolution 1441, which was based on the belief that Saddam Hussein had weapons of mass destruction that he was concealing. Should the committee consider whether we really had a legal case for military action, particularly in the absence of the second Security Council resolution, which we never managed to obtain? Will the committee be shown the Attorney-General's full opinion, which the Government have so far refused to disclose?
Baroness Symons of Vernham Dean: My Lords, on that last point, it is the convention that the Government do not expose the advice of the Attorney-General. we have been over this point many, many times before. Had the noble Lord's party been on the committee it could have argued vigorously on that point.
As far as UN Security Council Resolution 1441 is concerned, the legal advice was based—as I remember debating at some length in your Lordships' House, when the noble Lord, Lord Goodhart, was a robust interlocutor—on not just Resolution 1441, but Resolution 1441 in relation to Resolution 678 and Resolution 687. If the noble Lord is really suggesting

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that we revisit UN Security Council resolutions, our poor committee will not be reporting by this summer's Recess, but by many summer Recesses from now.
Lord Campbell-Savours: My Lords—
Lord Biffen: My Lords—
Baroness Crawley: My Lords, I think it is the turn of these Benches, and then the Conservative Benches.
Lord Campbell-Savours: My Lords, is my noble friend aware that this is not the first time, sadly, that the Liberal Democrats have refused to participate on a tri-party basis in examining issues of national security? Will my noble friend, even at this late stage, make a special plea to the Liberal Democrat Benches to reconsider their decision? They have excluded Mr Alan Beith MP from this committee. He is one of the members of the committee with the most experience, as he has been on the committee since its inception in 1993. He knows the security services through and through, and he has extensive knowledge of every aspect of their operations. He has a formidable brain, and he is exactly the kind of person required on that committee—to act like a ferret to find out where the truth lies. I appeal to them to reconsider.
Baroness Symons of Vernham Dean: My Lords, I have enormous sympathy with what my noble friend Lord Campbell-Savours said. I very much regret this. After all, as the noble Baroness has told us on a number of occasions, the Liberal Democrat Benches have a different view of the rights and wrongs of what happened in relation to Iraq. That has been a valuable contribution, which has kept us all up to the mark. The noble Baroness never has any nonsense about anything—not that she gets nonsense from this Dispatch Box—she is very clear in the way that she pursues these issues.
I am not as well acquainted with Mr Alan Beith MP as my noble friend, because he had experience in the other place. Nevertheless, I regret enormously that the Liberal Democrat Benches will not be making the sort of point that the noble Lord, Lord Goodhart, was able to make to us a moment ago. It is sad that they will shout from the sidelines and not in the heart of the debate. That is to be regretted.
Lord Biffen: My Lords, it would be churlish not to admit that the Minister has given a formidable exposition of the latest turn in the Government's policy, although with a little more contrition than she showed last Thursday.
The reality has already been indicated by my noble friend Lord King of Bridgwater. Plenty of arguments are going on before this inquiry has even begun about its terms of reference, and the like. It is not a shortage of discussion or a shortage of committees that we have in the prosecution of this war; it is a lack of confidence on the part of the British public.
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Absent spectres from this evening's miserable feast are Robin Cook and Kenneth Clarke, who, in their respective positions, have been able to give voice to the powerful feeling that there is throughout the country that we are fighting an American war, on American terms, in a sequence of events dictated by Americans. That is no position from which to summons national support, whether through further meetings or further committees, or by a more direct appeal on the part of the Prime Minister to the public at large. The truth is: we are in this position, and it is a miserable position in which to be.
Baroness Symons of Vernham Dean: My Lords, I am not sure what the noble Lord's question was. I did not detect one in the exposition that he just gave us. I am sorry if I appeared to be contrite today; I did not mean to be. I meant to offer your Lordships a clear explanation of the Government's position. I hope that I did that. I shall have to watch my step.
Was it an "American war"? No, it was not. It was not an American war, and my right honourable friend the Prime Minister fought for his point of view over and over again in another place and was the first Prime Minister to subject that point of view to a vote of the House of Commons. There was nothing "American" about that; it was very British. If I may say so, it was very much in tune with the way in which my right honourable friend conducts himself.

Justice (Northern Ireland) Bill [H.L.]
4.10 p.m.
Report received.
Clause 1 [Transfer to Lord Chancellor of functions relating to Judicial Appointments Commission]:
Lord Maginnis of Drumglass Lord Maginnis of Drumglass moved Amendment No. 1:
Leave out Clause 1.
The noble Lord said: My Lords, I sometimes think that, now that the nation is in the mood for inquiries, it would be exciting to have an inquiry into what intelligence provoked the Government to bring a Bill of this kind to the House. It has been brought to us in its present form for the second time in two years.
In Committee, when I spoke on Clause 1, I hoped that somehow I would be enlightened about the Bill. Sadly, that was not the case. I accept that the Tory amendment relating to the Lord Chancellor was accepted, but, as the noble Lord, Lord Filkin, knew of and alluded to proposed changes in the role of the Lord Chancellor, I have to ask what was really achieved by that concession.
My party is opposed to the whole concept of devolving judicial appointments, especially, I emphasise, the appointment of our 17 High Court judges, as it does not go hand-in-hand with the devolution of responsibility for criminal justice. The Criminal Justice Review saw the devolution of judicial appointments happening only in the context of the devolution of criminal justice. They are

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two aspects of the same issue, so why separate them? One recalls that, at Second Reading, the noble and learned Lord, Lord Hutton, indicated that the review had shown that something like 77 per cent of the population had expressed confidence in the fairness of judges and magistrates. Why, then, the urgency?
I ask that in the light of the Government's promise that none of it would happen without broad support from the political parties in Northern Ireland. The noble Lord, Lord Filkin, has written to me, and I am grateful for his correspondence. However, I am unhappy that he has confirmed the reason why the Government broke that promise. Although the noble Lord does not spell it out, the reality is that, at Weston Park, where we went to meet the Prime Minister and the Secretary of State for Northern Ireland in good faith, a nasty little deal was done with Sinn Fein, leading ultimately to the Joint Declaration. I cannot say that political parties in Northern Ireland were not properly consulted—they were not consulted at all about some of the important points.
With no devolution of responsibility for criminal justice, we would be content for Northern Ireland to be part of whatever emerges with regard to a Judicial Appointments Commission for England and Wales. Does the noble Lord foresee the composition of the commission for England and Wales having the same balance as that for Northern Ireland? If not, why not?
I end, as I began, by questioning the intelligence behind what is happening with the Bill. The one thing that we see again and again in Northern Ireland legislation is an entrenchment—a re-entrenchment—of the things that derive from sectarianism. The overall interests of the community at large are ignored—sometimes one tradition in the community, sometimes another—and the overall effect is that the community as a whole in Northern Ireland suffers from the compulsory re-entrenchment of sectarianism that is built into every Bill that the Government bring forward on such issues. I beg to move.
4.15 p.m.
Lord Glentoran: My Lords, although I have a lot of sympathy with the point made by the noble Lord, Lord Maginnis of Drumglass, and a lot of sympathy with his aversion to the Bill as a whole, I do not share all of that aversion. Were the noble Lord to divide the House, I would not feel able to support him in the Lobbies. However, I have made the point several times that I disagree strongly with the timing of the Bill and many of the issues in it. We will come to those issues later.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, I am glad of the opportunity to respond to the two questions raised by the noble Lord, Lord Maginnis of Drumglass, on the clause. One is, "Why now?", and the other is, "What is the genesis of some of the measures?".
The Justice (Northern Ireland) Act 2002 provides for the Judicial Appointments Commission to be established after the devolution of responsibility for justice matters
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to the Assembly. The purpose of the Judicial Appointments Commission is to enhance the process for judicial appointments. I hope that the House will agree that bringing forward the establishment of the commission should, in principle, be welcomed as part of that process. I shall explain why I believe that it does.
Speaking personally, I am confident that the commission will make an important contribution to building greater public confidence in the Northern Ireland justice system, although I know that, as yet, the noble Lord, Lord Maginnis of Drumglass, is not persuaded of that. We seek to strengthen the independence of the judiciary, which is essential to any justice system, perhaps especially in Northern Ireland. Section 1 of the 2002 Act states:
"Those with responsibility for the administration of justice must uphold the continued independence of the judiciary".
I should like to spell out in a little more detail the slightly complicated issue of which aspects of the Bill are being brought in now and which are being brought in subsequently. That is, perhaps, the first time that we have done that, and it may assist, even if it does not set the noble Lord's mind totally at rest. Our position is that the commission will stand on its own merits. First, it will enhance judicial independence. For the first time in Northern Ireland, we will have a statutory mechanism separating the selection of persons for listed judicial offices from the Ministers who appoint or recommend for appointment. I am sure that noble Lords will agree that the separation of powers is a keystone of democracy and should be vigorously pursued.
Secondly, one of the tasks of the commission will be to encourage diversity in the judiciary in terms of gender balance and the representation of those from ethnic communities. We discussed those issues in Committee. It is an important objective, and there was strong support for it in our earlier discussions, subject to the overriding question of merit. There is sense, therefore, in getting on with it.
Thirdly, the establishment of the commission with responsibility for the appointment of the judiciary is in keeping with the broad thrust of government policy. There is already a commission in Scotland; one is proposed in England and Wales; and the 2002 Act provided a statutory one ahead of the pack in Northern Ireland. The Bill allows that part of its role to be brought into operation earlier than might otherwise be the case.
Finally, political interference in the appointments process of judges is to be guarded against, and the commission will have a strong safeguard. We shall talk more about that later. The Lord President and I have had useful discussions with the noble Lord, Lord Glentoran, on some of those issues, and I hope that the correspondence has clarified some of the measures in the Bill and when they will be implemented.
For the record, I shall now give a little more detail. The Bill provides for the establishment of the Judicial Appointments Commission before devolution by transferring to the Lord Chancellor functions in relation to the commission that the First Minister and the Deputy

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First Minister would have had, were devolution to have happened. We are not in a devolved state, so the Lord Chancellor takes over functions regarding the Judicial Appointments Commission. The Lord Chancellor will appoint commission members, and the commission will be required to select a person for appointment to a listed judicial office.
The Lord Chancellor will also have the power to require the commission to reconsider its decision as to the person to be selected, and to deal with the outcome of that reconsideration. There are also a range of consequential functions, such as receiving copies of the annual report, making grants to the commission, and so on.
Lord Molyneaux of Killead: My Lords, how on earth can we have what has been described as a more acceptable judiciary—if we get devolution—if we are to revert to the position stated in the Bill that the First Minister and the Deputy First Minister, working together, shall appoint Her Majesty's judges, and the same First Minister and Deputy First Minister shall dismiss Her Majesty's judges, if they feel so inclined? Is there any hope of a neutral and widely respected judiciary? Does that now depend on our not ever having devolution? When devolution is brought back, we shall bring back the divisive factor of the First Minister and Deputy First Minister appointing and dismissing judges.
Lord Filkin: My Lords, neither of those propositions is true. We shall come to those issues in subsequent parts of our consideration on Report, when I shall be pleased to set out in detail why they are not true. At this point, I shall address the amendment of the noble Lord, Lord Maginnis.
The Lord Chancellor, unlike the First Minister or Deputy First Minister, already has the power to recommend appointments to a listed judicial office. Therefore, all that needs to be done is to ensure that in making those recommendations and appointments, the Lord Chancellor acts on the recommendation of the commission. I am simply explaining how technically the Bill puts the Lord Chancellor in a pre-devolution position. The commission will have another role under the Justice (Northern Ireland) Act 2002 later on when devolution takes place, which is to advise the First Minister and Deputy First Minster on the procedure that they should adopt in formulating a recommendation to the Prime Minister. We shall come to those issues later today.
The appointments of Lord Chief Justice and Lord Justice of Appeal will continue before devolution to be made as they are now. Appointments to the office of High Court judge will also still be made by Her Majesty on the recommendation of the Lord Chancellor. I hope that it will be reasonably clear that the functions of the commission in selecting persons to office up to and including High Court judges will be activated prior to devolution of responsibility for judicial functions. The commission's other function, however, in providing advice in relation to the
578
formulation of recommendations for appointment to Lord Chief Justice or Lord Justice of Appeal will not be commenced at this stage. Why does that matter? The Judicial Appointments Commission fulfils two functions. First, it puts a transparent process in place for the appointment of judicial office holders, which we believe strengthens the independence of the judiciary. Secondly, it can begin work on a process of seeking over a period of time to work towards an appropriate process, subject to merit, to increase the diversity of the judiciary.
I also affirm that there has been no breach of promise. The 2002 Act was crafted in the context of hoping and expecting that devolution was about to happen. Unfortunately, devolution is suspended, but on this day we are seeing the start of discussions around the Belfast agreement, which we all hope will lead to the possibility of a recommencement of the Assembly and devolution, but no one knows that for certain. We are, therefore, in a strange limbo land at present. There is benefit, for the reasons I have given, in making progress.
It is also not true that the nine measures that came out from the Hillsborough agreement with relevance to the Bill being discussed today—specifically the issues around judicial appointments—were not the product of pressure from Sinn Fein. Other political parties were interested in those issues, not Sinn Fein. It is not the right way forward for Northern Ireland affairs to be made as part of the Judicial Appointments Commission for England and Wales. We want to move towards more self government in Northern Ireland, subject to a time and place process. I very much hope that the reverse of the entrenchment of sectarianism will be the product of such a process.
There was consultation with the parties. The Bill's contents were discussed in detail with the local political parties at Hillsborough, including the Ulster Unionist Party. I assure the noble Lord, Lord Maginnis, that the devolution of justice and judicial appointments should go hand in hand. The JAC will make its recommendations to the Lord Chancellor, and the provisions on senior judicial appointments and judicial removal will not be commenced before justice is devolved to Northern Ireland.
I hope that I have done better than last time in addressing the points raised by the noble Lord, Lord Maginnis.
Lord Maginnis of Drumglass: My Lords, I am grateful to the Minister for addressing the points that I raised. I note that I did not have much competition on this amendment.
Will the Minister clarify a point? When he talked about the Hillsborough round of talks, he seemed to say, "and" the Ulster Unionists, as though somehow there had been encouragement or pressure from the Ulster Unionists to devolve judicial powers. He and I both know that that was not the case. The Ulster Unionist Party was totally opposed, and will remain totally opposed to the devolution of criminal justice responsibilities until there is absolute certainty of

579
stability in Northern Ireland. I hope that the noble Lord will confirm that so that there is no confusion in anyone's mind that somehow my party is of a mind to have early devolution of criminal justice.
I have one or two other very brief points to make. I concur with my noble friend Lord Molyneaux, if not for the same reason, when he alludes to the separation of powers. It is nonsense to talk about the separation of the judicial process from the political process, and then to suggest that the First Minister and Deputy First Minister will be indulging in what can only be Buggins' turn. It will be nothing else. If that does not divide the judicial process along sectarian lines in Northern Ireland, I simply do not know what does.
Those are my reasons for opposing everything that I see in the Bill as being not only unhelpful but also dangerous. However, I am not one to waste the time of the House. I have listened to what the noble Lord, Lord Glentoran, has intimated—would the Minister like to respond?
4.30 p.m
Lord Filkin: My Lords, out of courtesy I shall respond to the specific point made by the noble Lord, Lord Maginnis, about the Ulster Unionist Party and Hillsborough. I responded to whether there had been consultation and involvement of political parties in the Hillsborough agreement and I commented on the fact that the Ulster Unionist Party had been involved in the Hillsborough discussions. I made no comment about its stance on the early devolution of justice. I hope we agree in part, if not in totality.
Lord Maginnis of Drumglass: My Lords, I accept what the noble Lord says. I did not want there to be any doubt. I may go into a public house, but I shall not be one of those who leaves drunk. Our position is much the same in regard to the Ulster Unionists; we may have been involved in the talks, but that does not indicate any concurrence with what has been brought forward against our wishes. However, as I was about to say before the Minister intervened, at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Membership of the Commission]:
Lord Glentoran Lord Glentoran moved Amendment No. 2:
Page 1, line 8, at end insert—
"( ) In section 3 of the 2002 Act (makeup of the Commission)—

(a) in subsection (5)(a), for "five" substitute "six", and

(b) in subsection (5)(c), for "five" substitute "four"."

The noble Lord said: My Lords, before speaking to Amendment No. 2, I thank the Lord President for a meeting that we had last week in her office, which was very helpful. I also thank her officials, some of whom are in the Box today, for the number of meetings that I have had with them and for the good will and help that they have given us while preparing amendments for today.
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We have discussed Amendment No. 2 for some considerable time. We discussed much of it when dealing with the previous Bill and we have been over it in Committee. For me, the Government's proposals in relation to this item may seem like only one small step, but it is a step in the wrong direction, towards more politicisation in the appointment of Northern Ireland judges. Noble Lords will find that all my amendments and all my arguments will focus on trying to prevent the Government increasing politicisation of the judicial system in Northern Ireland as opposed to decreasing it. That is what they declare they arc doing. but I do not believe that is what they are doing.
All the changes that are being made mount up, and cumulatively we are faced with a system which does not guarantee judicial independence and which threatens the until now unimpeachable record of those judges who have dispensed justice in Northern Ireland thus far. If appointment is to be on merit, what possible basis is there for having an equal number of judicial and lay members on the Judicial Appointments Commission? The Secretary of State claims that eight out of 13 of the members are judicial professionals. That is misinformation because he includes the solicitor and barrister under that umbrella of judicial professionalism. As I understand it, those people do not take the judicial oath and are not normally considered to be part of the judiciary.
The noble Lord, Lord Filkin, also tried to claim that the lay members would in some way be vital in trying,
"to widen the diversity of the judiciary"—[Official Report, 15/1/04; col. 690],
and would aid "public confidence" in the judiciary. We accept that there should be some representations from the lay community on the Judicial Appointments Commission, but while it hopefully plays a useful role in enhancing confidence in the judicial system, it also runs a real risk that political considerations will assume too great a prominence.
One matter that I believe has been missed by the Minister and his colleagues—particularly when I look at the make up of the suggested Judicial Appointments Commission for England and Wales—is that in Northern Ireland 95 per cent, or probably 100 per rent, of those who are likely to be appointed to the commission will be extremely politically sensitive, extremely politically active, and extremely politically aware. Without wishing to insult anyone in the kingdom, particularly in England and Wales, I suspect that a similar group of people from whom one could select members for the JAC for England and Wales, would probably contain fewer than 20 per cent and may be fewer than 10 per cent of people who would be politically sensitive to one party or another or to one issue or another in relation to appointments to the judiciary. A crucial plank in my argument is that it is quite wrong to overplay and to oversubscribe to the lay element on the Judicial Appointments Commission. I beg to move.
Lord Mayhew of Twysden: My Lords, I adopt the argument of my noble friend Lord Glentoran in supporting the amendment. Ministers insist that the overriding and dominant criterion for the

581
appointment of a judge shall be merit. Of course, that is right; that has to be so. The Bill stipulates that and it does so on ministerial instructions. It could hardly be otherwise if a non-politicised judiciary is the aim.
However, it is not enough for Ministers merely to proclaim that; they have to go further and in the language of Cranmer they have to "ensue it". That means identifying what constitutes merit and examining who is best fitted to discern it among the pool of likely candidates. I suggest that in that context merit includes displaying the judicial qualities of independence, integrity, impartiality, intellect, courage, courtesy and efficiency in the dispatch of business.
Therefore, the assessment of a candidate for those qualities surely has to be a specialised business. The reason is that those qualities, or the absence of them, will have been displayed when candidates have been seen at work—in action—whether as an advocate or as a judge. It is hard to see where a lay person can have as useful, or at least equally useful, a standpoint as a judicial person. The assessment by judges themselves must be the most reliable that is available. They will have reviewed the summings up, the sentences, the judgments and the transcripts of trials over which inferior judges will have presided; they will have seen how the candidates have performed. They will have observed the performance of advocates appearing before them, whether at first instance or on appeal.
It is true that the opinions of barristers and solicitors will go some way towards approaching the value of the experience of a judge in this context, provided that they are advocate solicitors or advocate barristers, which is not specified in the Bill. I respectfully suggest that a lay magistrate in Northern Ireland can have had very little experience that is relevant and I suggest that a lay person who is not a magistrate can rarely bring experience that is at all relevant. Lay people may ask themselves, "What can we bring?", and they will have to reply in the words of the well known hymn,
"Just as I am, I come".
That will be very nice, but what will it contribute, beyond what we misleadingly call transparency? In Northern Ireland there is some value in that, but there is also some danger. As my noble friend has said, I believe that it will bring the risk that certain attributes, quite extraneous to those judicial ones, that make for judicial merit, will be looked for by the public and disproportionately rewarded, most notably those of background and religion—where does the candidate come from?
I therefore endorse what my noble friend Lord Glentoran said in Committee. He said:
"The fact that the Lord Chief Justice and five judges could be outvoted on this commission can make no sense if one has the objective of maintaining that the judicial system be depoliticised and clear of political influences".—[Official Report, 15/1/04; col. 687.]
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I would add that if we are to ensure the true predominance of merit as the criterion, the only-reliable and safe way to do it is by putting the judicial members in the majority on the commission.
Lord Maginnis of Drumglass: My Lords, it might be helpful to the House, in so far as I fully support the amendment of the noble Lord, Lord Glentoran, if I address some of my remarks to the next group of amendments, because—
Baroness Farrington of Ribbleton: My Lords, is the noble Lord seeking to group and to debate all the amendments together or to debate this amendment and then move on? Members of the House may become confused about the point at which they should speak.
Lord Maginnis of Drumglass: My Lords, I would not wish other Members to be in the same state as me; namely, one of confusion. The next group of amendments is not entirely mine. If the noble Lord, Lord Glentoran, intends to push this amendment to a vote, I would be happy to accede to the noble Baroness's point and combine the next group of amendments with this group.
Lord Glentoran: My Lords, I do not wish to group the next group of amendments with this one. I am quite happy to stay where we are.
Baroness Farrington of Ribbleton: My Lords, in that case, we have clarified the position. At this stage, Members will speak to this amendment only.
4.45 p.m.
Lord Maginnis of Drumglass: Indeed, my Lords, I will do so. When we consider the next group, I shall be able to speak with much greater brevity.
The noble Lord, Lord Filkin, said in Committee:
"The further argument was made by the noble Lord, Lord Maginnis, and others that the lay members have no function at all, or they should have a function only if they are expert in some way in legal processes. I believe that that short changes the role of the commission".—[Official Report, 15/1/04; col. 690.]
I could not quite understand what the noble Lord, Lord Filkin, was intimating. I would have thought that expertise, no matter how little, was an absolute necessity. There would not be much point in employing a sausage maker to repair my motor car. Hence, it was difficult to follow his arguments, which appeared to be a series of unconvincing contradictions. He said that the system had proved itself over 30 difficult years. However, we have to ensure public confidence. I had thought that 77 per cent of the public has confidence in judges and magistrates. That point was conveyed in this House by the noble and learned Lord, Lord Hutton.
If lay people are involved in the Judicial Appointments Commission, they will be seen as "quango-ites". If 77 per cent of the public has confidence in judges and magistrates, not even 0.7 per cent of it would have confidence in many of those who are mostly unelected and often unelectable. Quango-ism in Northern Ireland

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has become a kind of covert profession. It is pretty much despised. There are exceptions in the form of some very able, publicly spirited people, but there are others whom I would fear if they made up the lay element of a Judicial Appointments Commission.
When one comes to selecting those lay people, they will inevitably be selected because they are Protestant or because they are Catholic. However often I speak about this Bill, I have to emphasise the sectarianising that is inherent in it. Some of us have worked a lifetime to try to reduce that in Northern Irish society.
I referred in Committee to the Minister's remarks on merit at Second Reading. She had said:
"Merit has been and will continue to be the overriding principle for judicial appointments".—[Official Report, 16/12/03; col. 1092.]
She said "overriding". Merit cannot be overriding if it is subject to one condition after another. That is exactly what we are hearing from government. The condition will be traditional balance in terms of only one criterion: Protestant or Catholic. I could never concur with that. My party has worked for years to try to eliminate it.
I shall draw attention to research paper No. 5 that was commissioned during the review of the criminal justice system. Page 60 states:
"The international models of Appointments Committees have varying degrees of similarity. Most feature a Chief Justice as Chairperson; representatives from courts, Bar Council and legal profession. When lay members are included they are chosen from individuals with a sophisticated knowledge of appointments procedure and legal issues".
I do not know how we can bring that kind of professional advice to the review of criminal justice. The Minister cannot argue that meritocracy and competency are overriding, while all those elements of sectarianism are being built in. It does not square up. That is the sad reality of the situation.
Lord Smith of Clifton: My Lords, I am somewhat depressed by the denigration of the contribution of the lay element to appointments. I always listen to the noble and learned Lord, Lord Mayhew, with great respect, but we should not be seduced by his mellifluous articulation of his points. His words smack heavily, as they have done before, of those of an eloquent shop steward for the legal trade union. There is no question that the balance that we have is the right one. Undoubtedly, the lay members will listen most assiduously to what the legal and judicial representatives say. However, selecting on the basis of integrity, knowledge, independence and all the other criteria referred to by the noble and learned Lord, Lord Mayhew, is not the preserve of the legal profession. Many of us feel that we can discriminate between those who possess them and those who do not. The noble Lord, Lord Maginnis, the noble Lord, Lord Glentoran, to some extent, and, in his most mellifluous way, the noble and learned Lord, Lord Mayhew, have rather over-egged the pudding in making their point.
Lord Filkin: My Lords, the amendment would increase the number of judicial members and decrease the number of lay members on the Judicial Appointments Commission. To some extent, it is
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surprising to be debating this amendment because the Bill does nothing to change the composition of the Judicial Appointments Commission which this House and another place passed into legislation nearly two years ago. That was a decision that Parliament made at that point in time, and I think it was the right decision. The composition was debated at length in both Houses during the passage of the Justice (Northern Ireland) Act 2002.
The 2002 Act reflected Recommendation 78 of the Criminal Justice Review which sought to have a careful balance in terms of the commission's membership. Indeed, as I made clear in Committee, out of a total of 13 commission members, eight will have knowledge of the law, legal processes and legal systems. I sought to say that there would be eight members of a commission of 13 who would either be judicial or legal professionals. It may well have been slightly condensed in the process of transmogrification. However, the point I was making was that there were eight people who were either acting as judges or who were professional lawyers.
Furthermore, the chairman of the Judicial Appointments Commission is the Lord Chief Justice himself. He is sitting on top of this apex, bringing all of the weight of his office, experience and intelligence to its functions. In that respect, the Judicial Appointments Commission in Northern Ireland is quite different from the system currently operating in Scotland and what is proposed for England and Wales. I make no issue with that—there are good reasons for where the 2002 Act positioned it, and we think that that is right. Therefore, we are slightly at a loss about why the question is being reopened at this time, given that we have had some good debates and have sought, through Parliament, to settle the matter.
Let me turn to a number of the points that were made in the addresses to the amendment. The noble and learned Lord, Lord Mayhew, is right to bring the issue of appointment on merit before us early in our proceedings. He said that Ministers proclaimed that this was the objective. Yes, they do, but we go substantially further than that—we enshrine it in the legislation. It spells out with absolute clarity that there is only one criterion for this Judicial Appointments Commission making a decision on a judicial appointment, and that is merit. In that sense, this goes way beyond proclamation—we are enshrining it in legislation. The commission is statutorily charged to behave in that way.
Identifying which candidates have judicial skills is clearly part of the job of the commission. Judicial skills are partly about knowledge of the law and partly about knowledge of judicial processes. They also include some of the other human skills needed to manage the judicial process in ways that build the confidence of the community that justice is being fairly done. Undoubtedly the judicial members of the commission will be powerfully positioned to have their arguments on some of those skills, but lay members may make a contribution when it comes to some of the other skills as well. Lay

585
members will also make a contribution in terms of looking at the selection procedures—the advertising, recruitment and attraction of people—to ensure that a rich pool of talented candidates is coming forward for consideration by the panel.
I should also mark the fact that the Judicial Appointments Commission has a second role. It does not just make short-term decisions about judicial appointment. However—I repeat this so that the noble Lord, Lord Maginnis, is in no doubt about this—its secondary role in trying to promote a more diverse judiciary is subordinate to the appointment on merit. In other words, it only does those other things subordinate to merit, not the other way round, as I think it was being interpreted.
We had a good discussion on these issues in Committee, and it seemed to me that there was a strong measure of consensus. The judiciary in Northern Ireland, no different from that in England, is not, in gender terms, representative of society broadly. Therefore the commission has to think what can be done over five, 10 or more years to ensure that people of talent in all walks of life come forward. That is its second role. It is self-evident that a commission which has on it lay people with relevant experience will be very powerful. That was what I was meant when I referred in Committee to short-changing.
On sectarianism, the Lord Chancellor appoints the lay members of the Judicial Appointments Commission in the pre-devolution situation. They will be selected in accordance with the Commission of Public Appointments code of practice. In addition to having to swear an undertaking to uphold peace and justice, they must be able to command the confidence of a broad swathe of society in Northern Ireland and, by their stature and integrity, have demonstrated their ability to contribute to decisions in a non-sectarian way. While Scotland does not have the same level of sectarianism that Northern Ireland has, tragically, had, we have already seen a Judicial Appointments Commission in Scotland chaired by a lay member making good progress on addressing some of these issues, albeit in an advisory capacity. I think confidence is developing in Scotland in that respect.
We got it right when we established the composition in 2002, and we are right now to implement some, if not all, of the Judicial Appointments Commission's functions because we need to make progress in the areas I have outlined. I very much hope that the noble Lord, Lord Glentoran, will feel minded to withdraw his amendment.
Lord Glentoran: My Lords, I thank the Minister for his lengthy explanation. However, I do not really understand why the Government are sticking to their guns so strongly on this and they probably do not understand why I am sticking to mine. Neither the Criminal Justice Review—see paragraph 6.103—nor the implementation plan—see page 44—called for a majority of lay over judicial members.
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I would be very satisfied if the Government would undertake that the casting vote was left with the Lord Chief Justice, but I feel that in the Province that I know and have lived in for many years, the climate is not right to have a commission to appoint the judiciary made up with a majority of non-judicial persons. I should like to test the opinion of the House.
4.58 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 115; Not-Contents, 156.

Division No. 1

CONTENTS

Anelay of St Johns, B.

Knight of Collingtree, B.

Arran, E.

Laird, L.

Ashcroft, L.

Lindsay, E.

Astor of Hever, L.

Listowel, E.

Attlee, E.

Liverpool, E.

Biffen, L.

Luke, L.

Blaker, L.

McAlpine of West Green, L.

Brigstocke, B.

McColl of Dulwich, L.

Brooke of Sutton Mandeville, L.

MacGregor of Pulham Market,

Brookeborough, V.

L.

Brougham and Vaux, L.

Mackay of Clashfern. L.

Burnham, L.

Maginnis of Drumglass, L.

Buscombe, B.

Mancroft, L.

Byford, B.

Marlesford, L.

Caithness, E.

Mayhew of Twysden, L.

Campbell of Alloway, L.

Miller of Hendon. B.

Carlisle of Bucklow, L.

Molyneaux of Killead, L.

Carnegy of Lour, B.

Monson, L.

Chadlington, L.

Montagu of Beaulieu, L.

Cobbold, L.

Montrose, D.

Colville of Culross, V.

Murton of Lindisfarne, L.

Colwyn, L.

Naseby, L.

Cope of Berkeley, L. [Teller]

Newton of Braintree, L.

Courtown, E.

Noakes, B.

Crickhowell, L.

Northcsk. E.

Dixon-Smith, L.

O'Cathain, B.

Eccles of Moulton, B.

O'Neill of Bengarve, B.

Elton. L.

Onslow, E.

Erroll, E.

Palmer, L.

Ferrers, E.

Park of Monmouth, B.

Forsyth of Drumlean, L.

Patten, L.

Fowler, L.

Peyton of Yeovil, L.

Gardner of Parkes, B.

Pilkington of Oxenford, L.

Geddes, L.

Plumb, L.

Gilmour of Craigmillar, L.

Plummer of St. Marylebone. L.

Glenarthur, L.

Rees, L.

Glentoran, L.

Renfrew of Kaimsthorn, L.

Goschen, V.

Renton of Mount Harry, L.

Gray of Contin. L.

Roberts of Conwy, L.

Hanham, B.

Rotherwick, L.

Hayhoe, L.

Saltoun of Abernethy, Ly

Higgins, L.

Sanderson of Bowden. L.

Hodgson of Astley Abbotts, L.

Seccombe, B. [Teller]

Home, E.

Selborne, E.

Hooper, B.

Shaw of Northstead, L.

Howe of Aberavon, L.

Sheppard of Didgemere, L.

Howell of Guildford, L.

Skelmersdale, L.

Hunt of Wirral, L.

Soulsby of Swaffham Prior, L.

Jenkin of Roding, L.

Stevens of Ludgate, L.

Jopling, L.

Stewartby, L.

Kimball, L.

Strange, B.

King of Bridgwater, L.

Swinfen, L.

Kingsland, L.

Tebbit, L.

Kirkham, L.

Thatcher, B.

587

Thomas of Gwydir, L.

Waddington, L.

Trumpington, B.

Wakeham, L.

Ullswater, V.

Walpole, L.

Vinson, L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Hollis of Heigham, B.

Addington, L.

Hooson, L.

Allenby of Megiddo, V.

Howarth of Breckland, B.

Alton of Liverpool, L.

Howe of Idlicote, B.

Amos, B. (Lord President)

Howells of St. Davids, B.

Andrews, B.

Howie of Troon, L.

Archer of Sandwell L.

Hughes of Woodside L.

Ashton of Upholland, B.

Hunt of Chesterton, L.

Avebury, L.

Hunt of Kings Heath, L.

Barnett, L.

Hylton, L.

Bassam of Brighton, L.

Irvine of Lairg, L.

Beaumont of Whitley, L.

Janner of Braunstone, L.

Berkeley, L.

Jeger, B.

Bernstein of Craigweil, L.

Jones, L.

Bhatia, L.

Judd, L.

Billingham, B.

King of West Bromwich, L.

Blackstone, B.

Lester of Herne Hill, L.

Borrie, L.

Levy, L.

Bradshaw, L.

Lipsey, L.

Brookman, L.

Lockwood, B.

Brooks of Tremorfa, L.

Lofthouse of Pontefract, L.

Burlison, L.

Macdonald of Tradeston, L.

Campbell-Savours, L.

McIntosh of Haringey, L.

Carlile of Berriew, L.

McIntosh of Hudnall, B.

Carter, L.

MacKenzie of Culkein, L.

Christopher, L.

Mackenzie of Framwellgate, L.

Clark of Windermere, L.

Mackie of Benshie, L.

Clinton-Davis, L.

McNally, L.

Corbett of Castle Vale, L.

Mallalieu, B.

Crawley, B.

Mar and Kellie, E.

David, B.

Marsh, L.

Davies of Coity, L.

Mason of Barnsley, L.

Davies of Oldham, L. [Teller]

Massey of Darwen, B.

Dean of Thornton-le-Fylde, B.

Miller of Chilthorne Domer, B.

Desai, L.

Mitchell, L.

Dholakia, L.

Morris of Manchester, L.

Dixon, L.

Newby, L.

Donoughue, L.

Nicol, B.

Dubs, L.

Parekh, L.

Eatwell, L.

Pendry, L.

Elder, L.

Peston, L.

Evans of Parkside, L.

Phillips of Sudbury, L.

Evans of Temple Guiting, L.

Pitkeathley, B.

Ezra, L.

Prys-Davies, L.

Falkland, V.

Puttnam, L.

Farrington of Ribbleton, B.

Ramsay of Cartvale, B.

Faulkner of Worcester, L.

Randall of St. Budeaux, L.

Fearn, L.

Rea, L.

Filkin, L.

Redesdale, L.

Finlayof Llandaff, B.

Rendell of Babergh, B.

Fyfe of Fairfield, L.

Rennard, L.

Gale, B.

Rodgers of Quarry Bank, L.

Gilbert, L.

Roper, L.

Golding, B.

Russell-Johnston, L.

Goldsmith, L.

Sainsbury of Turville, L.

Goodhart, L.

Sandberg, L.

Gordon of Strathblane, L.

Sawyer, L.

Goudie, B.

Scotland of Asthal, B.

Gould of Potternewton, B.

Sharp of Guildford, B.

Grabiner, L.

Sheldon, L.

Graham of Edmonton, L.

Shutt of Greetland, L.

Grantchester, L.

Simon, V.

Gregson, L.

Smith of Clifton, L.

Grocott, L. [Teller]

Smith of Gilmorehill, B.

Harris of Richmond, B.

Smith of Leigh, L.

Harrison, L.

Steel of Aikwood, L.

Hayman. B.

Stone of Blackheath, L.

Hilton of Eggardon, B.

Strabolgi, L.

Hogg of Cumbernauld, L.

Symons of Vernham Dean, B.

588

Taylor of Blackburn, L.

Warner, L.

Temple-Morris, L.

Warwick of Undercliffe, B.

Thomas of Walliswood, B.

Watson of Richmond, L.

Thomson of Monifieth, L.

Whitaker, B.

Thornton, B.

Whitty, L.

Tordoff, L.

Williams of Crosby, B.

Triesman, L.

Williams of Elvel, L.

Turner of Camden, B.

Williamson of Horton, L.

Walmsley, B.

Winston, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.9 p.m.
[Amendment No. 3 not moved.]
Lord Glentoran Lord Glentoran moved Amendment No. 4:
Page 2, line 10, leave out subsection (2).
The noble Lord said: My Lords, Amendment No. 4 is another amendment that we have already discussed at considerable length. In Committee we clarified the important point that the Lord Chief Justice who chairs the committee sits ex officio and is therefore not caught by the 10-year limit. The noble Lord, Lord Filkin, said that,
"on promotion to another tier of the judiciary, a person can have another opportunity to enter the judicial appointments commission".—[Official Report, 15/1/04; col. 695.]
If that is so, it would go far to meet our concerns as the high flyers will almost certainly be promoted through the system, typically from High Court judge to Lord Chief Justice or resident magistrate to county court judge. But if what the noble Lord, Lord Filkin, said in Committee is correct, what is the point of the statutory restriction as it will so seldom apply? In my view it is far from clear that sub-paragraph (IA)—I read it several times along with advisers—means what the Minister thought that it meant and I hope that it means. I await the noble Lord's comments on that point. I beg to move
Lord Filkin: My Lords, I am very glad to repeat and re-emphasise the explanation and the commitment that I gave in Committee in this respect. While the clause that we are discussing puts all judicial members on a level playing field regarding their terms of office—there seem to be good reasons for doing that both in principle and also because it was one element of the Hillsborough agreement—a lay member or a judicial member can serve five years as their first term. They are eligible to be reappointed for a second term, if that is the decision of the relevant appointing body. That second term can either be served directly subsequent to the first term or after a period of time has elapsed.
It is also the case—I again emphasise this, as I think I have said, and I may have also written to the noble Lord—that were a judicial office holder to be promoted, he or she is open to a further opportunity for appointment as they may then move into a different category. For example, if they move into the High Court, they would be open to a further opportunity for consideration and selection. In theory in extremis one can envisage the slightly bizarre situation in which a

589
person who was promoted could end up serving on the Judicial Appointments Commission for 20 years. That is the theoretical extreme logic of the measure. However, I should be surprised if that occurred. As I signalled in Committee, there are good reasons for wanting turnaround while also wanting experienced people to serve on the body.
In essence I can give exactly the assurance that the noble Lord, Lord Glentoran, seeks. People may be reappointed to serve a second term in their existing role or be reappointed in a different capacity if they are promoted. Why is that? As I have signalled, it seems right in principle that both lay and judicial members should be on a level playing field as that was part of the Hillsborough agreement. I hope that having re-emphasised what I said in Committee, the anxieties of the noble Lord, Lord Glentoran, will be appeased.
Lord Glentoran: My Lords, I thank the noble Lord for that very clear explanation which I accept. Being rather churlish, I hope that the draftsmen and officials will reconsider the relevant phrasing to reassure themselves that future generations will interpret it correctly. The provision comprises only about three lines. It is rather difficult to interpret it correctly unless the relevant explanation in Hansard is attached to it.
5.15 p.m.
Lord Filkin: My Lords, I thank the noble Lord for giving way. If it will help our processes, I shall threaten to send him one of my tedious letters in which I shall spell out explicitly why we believe that we are right.
Lord Glentoran: My Lords, I thank the noble Lord for that. His letters are by no means tedious. I have received some in the past for which I am very grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 5 not moved.]
The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, before calling Amendment No. 6, I must inform the House that, if it were to be agreed, I would not be able to call Amendment No. 7 in the name of the noble Baroness, Lady Amos, due to the rules of pre-emption.
Clause 3 [Duty of Commission to secure judiciary reflective of the community]:
Lord Maginnis of Drumglass Lord Maginnis of Drumglass moved Amendment No. 6:
Page 2, leave out lines 26 to 35.
The noble Lord said: My Lords, I return to the question of what is actually meant by the wording in the Bill. I do not care whether the relevant phrase is "representative of the community" or "reflective of the community". Clause 3 is entitled:
"Duty of Commission to secure judiciary reflective of the community".
590
We are told in new subsection (8) of Clause 3 that selection for appointment,
"must be made solely on the basis of merit".
A certain logic flows from that. If selection for appointment is,
"solely on the basis of merit",
and we are not of the opinion that males are cleverer and more able than females or vice versa, or that black people are more able than white or coloured people or vice versa, or that Protestants are more able than Catholics or vice versa, new subsections (9) and (10) of Clause 3 are absolutely unnecessary. However—I do not need to emphasise this point much more—I and anyone who comes from Northern Ireland believes that this has to do with creating a sectarian trade-off—nothing more and nothing less. It is about creating a sectarian trade-off. I am as opposed to a sectarian trade-off as I am opposed—and have been opposed in my 20 or so years in public life—to sectarianism. I beg to move.
Lord Hylton: My Lords, when the noble Lord, Lord Filkin, replies to the amendment will he say whether there is a legal precedent for using the word "reflective"? He and I and other Members of the House probably have a fair idea of what is intended by the word but it would be slightly disappointing if a subsequent judicial interpretation showed that we were wrong.
Lord Monson: My Lords, I too hope that the noble Lord, Lord Filkin, can clarify one or two matters when he replies to the amendment.
In the course of replying to Amendment No. 1, the noble Lord mentioned that the Government aimed to achieve gender balance in the Northern Ireland judiciary. Does that mean that where two equally well qualified candidates present themselves—one male and one female—the woman will always be chosen until such time, many years hence, when 50 or 51 per cent of the judiciary in Northern Ireland is female? I do not think that any other interpretation is possible but there may be one of which I am unaware.
Leaving aside the question of gender, what other characteristics are sought in the Government's ambition to achieve a judiciary "reflective of the community"? Both the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Maginnis, have assumed that religious affiliation will be the main criterion, judging by their earlier contributions this afternoon, but I wonder whether they are right. If a Roman Catholic Unionist—whether with a capital U or a lower case u—were to be proposed to fill the notional Roman Catholic quota, my guess is that he or she would be totally unacceptable to Sinn Fein and quite probably unacceptable to the SDLP as well.
Therefore, "reflective of the community" could only mean reflective of the political community, with 30 per cent of new appointments going to known DUP supporters—assuming they have all the correct legal

591
qualifications—and 23 per cent or so going to Sinn Fein supporters and so on. Can the Minister confirm that that is the case?
Viscount Brookeborough: My Lords, I support the amendment. Regarding the word "reflective", I am involved in the Northern Ireland Policing Board. When we chose members of the district policing partnerships, of which the noble Lord, Lord Maginiss, will be aware, we had to appoint people who were "reflective" of the community. The first issue to be taken into account was religion. That was not our choice, but, we were told, it was through the "political correctness" of the situation. That is how it will be done. The second issue was gender but the first was clearly religion.
I have one question for the Minister. If merit is the number one objective, how on earth can that be distorted by bringing religion or gender into it? That is not possible.
Lord Filkin: My Lords, I thought that we had one of the best discussions on the Bill on such issues in Committee. I value the exchange that we had with the Opposition Front Bench, particularly with the noble Lord, Lord Kingsland.
I start by addressing Amendment No. 6, tabled by the noble Lord, Lord Maginnis, which would remove the requirement that is inserted into Section 5 of the 2002 Act by Clause 3 that the Judicial Appointments Commission should,
"engage in a programme of action designed to secure"
a judiciary,
"reflective of the community in Northern Ireland".
I made it clear in Committee and shall do so again that the duty to engage in a programme of action is subject to the immutable principle of appointment on merit.
The Judicial Appointments Commission can make a decision only on which applicant is best for that judicial post. It can take no account of whether the person is a man or a woman; whether they are from one community or another; or whether they are of one ethnic group or another. The Bill could not be clearer. Appointment has to be on merit.
However, in our discussions in Committee we addressed the issue of the judiciary of Northern Ireland no differently from issues relating to the judiciary in Britain. If one looks at the composition of the judiciary in Northern Ireland—which I repeat is deeply impressive in very many respects in terms of its judicial skill and courage over some difficult periods of time—it is apparent that 87 per cent are men and 13 per cent are women. The question that faces society, which is the subject of this part of the Bill, starts from the premise that we talked about then: no one in the House believes that women are more stupid than men. Therefore, that begs a question: what is in the nature of the processes that leads to the disproportionate composition of the judiciary in Northern Ireland?
The nature of that discussion in Committee was that one had to ask the commission and others in Northern Ireland society—the Bar Council and the Law Society—
592
to reflect on the nature of judicial careers, including the way in which people came forward for them, to see whether anything in the nature of those processes was likely to lead to a disproportionate composition. I shall not repeat the arguments for those who want to engage further. We have set out why the issue matters profoundly. I shall not weary the House with that again, but the issue is asking the commission what it can do to give leadership in civil society in Northern Ireland over a period of years to seek to bring about change.
I agree with the noble Lord, Lord Kingsland, who was clear that we are talking about actions that might take five, 10 or 15 years. But they are important to try to redress the composition of a judiciary that, while it is eminently skilled in what it does, is not reflective of the diversity of society. That was the essential issue and although in Committee I churlishly refused to accept the amendment tabled by the noble Lord, Lord Kingsland, about a continuing programme of action, I agree with him that that was what the issue was about. Therefore, we tabled Amendment No 7 to make it absolutely clear, as the noble Lord, Lord Kingsland, invited us, that a programme of action by the Judicial Appointments Commission was necessary over a period of years.
Regarding the concerns raised by noble Lords, I gladly pay tribute to the reminder by the noble Lord, Lord Maginnis, of his lifetime opposition to sectarianism. We recognise how difficult that is in Northern Ireland and how that requires leadership and courage. But we are not putting the issue of sectarianism at risk by the Bill. Regarding the question asked by the noble Lord, Lord Monson, about what matters most, I said in Committee that one had to expect a judiciary, everything being equal, to be roughly reflective of society.
The greatest deviance in society is not community background but gender. That is my direct response. We do not know the exact figures for community background in Northern Ireland, but the best estimates suggest that probably around 35 per cent come from a Roman Catholic background and about 65 percent come from a Protestant background. That is not to say that there is anything fundamentally wrong or that there is perfection. But the last thing that the Judicial Appointments Commission is entitled to do is to make any decisions on appointments based on the community background of people. I am signalling that the issue matters most on gender, given my figures.
Regarding ethnicity, there is such a small ethnic minority population in Northern Ireland that there are no people on the judiciary from ethnic minorities, as they represent only 1 per cent of the population. They are small figures. It is not a situation of appointing people in order to achieve quotas. Quotas are illegal—as set out by the thrust of the Bill. Age is another issue that one might look at, but there is a limit to what might be achieved regarding age, given that holders of judicial office often require many years of experience. Therefore, one cannot expect a complete balance there of adult society, for obvious reasons.

593
The noble Lord, Lord Hylton, asked me about the terms "representative" and "reflective". We have changed the wording to "reflective" because the Liberal Democrats pointed out—although I cannot remember the context—that it was a better word. I stand by that because there is a slight risk that "representative" sounds as if a person on the Judicial Appointments Commission would be "representative" of the community and that would be the last thing that we wanted. All we are seeking is that the Judicial Appointments Commission is not totally male or female or totally Catholic or Protestant, but has a fair or as reasonable a balance as possible.
Regarding the point made by the noble Viscount, Lord Brookeborough, on district policing partnerships, I do not wish to go into detail about any such future programme of action, but it does require a root and branch inspection of the processes that lead to that type of outcome. It is nothing new. A whole range of public bodies have been doing that for 20 or 30 years—seeking to uphold appointment on merit, but nevertheless inquiring into the processes which may lead to a disproportionate outcome.
I hope that my reply has been helpful, and I apologise if it has been too long.
5.30 p.m.
Lord Maginnis of Drumglass: My Lords, I am grateful to the Minister for his response. It is what I expected. I shall have a moment to debate the matter further in the next government amendment. On that basis, I beg leave to withdraw my amendment.
Baroness Farrington of Ribbleton: My Lords, I owe it to the noble Lord, Lord Maginnis, to point out that as the two amendments are grouped together there will be no opportunity to discuss the Government's amendment. The debate is concluded. The noble Lord may press his amendment to a Division or withdraw it, but there will be no more debate on either amendment.
Lord Maginnis of Drumglass: My Lords, I apologise; I overlooked that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
BaronessAmos moved Amendment No. 7:
Page 2, line 26, leave out from "must" to end of line 35 and insert "at all times engage in a programme of action which complies with subsection (10).
(10) A programme of action complies with this subsection if—

(a) it is designed to secure, so far as it is reasonably practicable to do so, that appointments to listed judicial offices are such that those holding such offices are reflective of the community in Northern Ireland;

(b) it requires the Commission, so far as it is reasonably practicable to do so, to secure that a range of persons reflective of the community in Northern Ireland is available for consideration by the Commission whenever it is required to select a person to be appointed, or recommended for appointment, to a listed judicial office; and

(c) it is for the time being approved by the Commission for the purposes of this section.""

On Question, amendment agreed to.
Clause 4 [Appointment of Lord Chief Justice and Lords Justices of Appeal]:
[Amendments Nos. 8 to 12 not moved.]
Clause 5 [Removal or suspension from listed judicial offices]:
Lord Glentoran Lord Glentoran moved Amendment No. 13:
Leave out Clause 5.
The noble Lord said: My Lords, we have debated the issue at length and wonder why the Government have changed from their position in 2002. Why should the Lord Chief Justice now be only consulted rather than have to agree with the removal or suspension of a listed judicial official? Perhaps most iniquitous of all is the fact that in the constitutional Bill the Lord Chief Justice must agree—that is, for England and Wales he retains his veto. Removal in England and Wales will be by the Secretary of State with the agreement of the Lord Chief Justice. That was made clear at col. 16 of Hansard on 26 January, on page 19.74 of Constitutional Reform and in the Lord Chancellor's judiciary-related functions proposals of January 2004.
The Lord Chancellor, the Minister at that time, in his Statement covered his tracks somewhat by saying:
"My responsibilities also extend to Northern Ireland. Consideration will be given to the future handling of my functions that relate to the Northern Ireland judiciary. That process, which is currently under way, will include consultation with the Lord Chief Justice of Northern Ireland and will be based on the same guiding principles as in England and Wales, taking into account any provision already made for Northern Ireland to give effect to the recommendations of the Northern Ireland Criminal Justice Review".—[Official Report, 26/1/04; col. 17.]
This is a very important topic. In fact, nothing is more important in relation to the independence of the judiciary and the prevention of its politicisation than the right of a judge to security of tenure of office. A judge must be able to be confident that party politics will play no part in his selection and appointment and have no influence on his security of tenure. He must be unfettered in his ability to do justice to all without fear or favour, affection or ill will.
The issues and the proposals in the Bill as a whole must be seen not only from the standpoint of how they will be put into effect in practice, but also how they will be perceived by the judiciary themselves. There can be little doubt that a judge in Northern Ireland will feel less secure as a result of this provision and hence less confident in showing robust independence from the powers that be.
What have the Government to fear from maintaining this safeguard, which was so widely inserted when the matter was decided by Parliament less than two years ago? It must be unlikely in the extreme that the Lord Chief Justice of Northern Ireland will refuse his consent to the dismissal of a judge following the adverse decision of a tribunal headed, as it must be, by a Law Lord unless there are very good reasons for him to do so. But by parity of reasoning, if he feels it right to withhold his consent, he will have such reasons.
It may be precisely because he understands in a way which the tribunal does not that the sectarian politics of Northern Ireland, which the judiciary have been

595
astute to avoid to the admiration of all fair-minded observers, has impinged on the case. It must be recognised that the Law Lord heading the tribunal may well not be—indeed, probably will not be—a Law Lord with deep knowledge of Northern Ireland and, unlikely as one hopes it will be, such a situation could arise. In such circumstances, the protection of the Lord Chief Justice's consent would be critical.
In England and Wales, the Government's proposal—the Lord Chief Justice the noble and learned Lord, Lord Woolf, has confirmed this—that the consent of the Lord Chief Justice is essential. It should be the same in Northern Ireland. What possible reason can the Government give for proposing otherwise? I beg to move.
Lord Mayhew of Twysden: My Lords, I am so anxious to hear the answer from the Government Front Bench to the question my noble friend has posed that I hesitate to intervene. But the issue is so important that I am going to none the less.
The change which Clause 5 makes is extremely important. The case for it is not made out and I believe it ought to be vigorously rejected. It is said by the Minister, "Don't worry, there will first have to be a tribunal with two judges and one lay person. One will be a Law Lord. It must have recommended removal or suspension". My answer to that is that the Lord Chief Justice does not even have to have agreed to the establishment of such a tribunal; he has only to have been consulted about it. He may have objected to it and he will not necessarily sit on it. In fact, if he has objected to it, it is almost certain that he will not sit on it.
Nevertheless, as my noble friend said, under the 2002 Act, he was given a veto on removal or suspension of a judge. And that notwithstanding that the Northern Ireland Criminal Justice Review was already published so that it was known that the review,
"did not recommend a requirement for the agreement of the Lord Chief Justice".
The Explanatory Notes at paragraph 14 lamely state that the change in Clause 5 reflects more closely the recommendations in the review. Why then was it not in the 2002 Act, which succeeded the review? The answer given is that it: is in the Hillsborough agreement. I suggest to your Lordships only that if it was in the Hillsborough agreement it should not have been, and the Hillsborough agreement cannot pre-empt what Parliament may decide in its wisdom.
I ask noble Lords to put themselves in the position of a judge if Clause 5 is carried. Only two years ago the judge would know that he was protected by the necessity for a joint resolution of both Houses of Parliament, like his counterpart in England and Wales. Then that provision went by virtue of the 2002 Act. But still the judge could not be removed without the agreement of his chief. Now he realises that that is to go. He may be dismissed only on the recommendation of a tribunal with whose establishment his chief may have disagreed, upon which he did not sit and with whose recommendations he disagrees.
596
What is the judge, in those circumstances, to make of this one-way progression of so-called reform? I offer this suggestion. He will calculate that the maintenance of a fail-safe system for judicial independence is now manifestly of less concern to the Government than that the so-called political process should be furthered by what is seen at Hillsborough to be expedient. In those circumstances, will he not be tempted to trim his sails accordingly? The very existence of such an obvious temptation, publicly perceived—as it will be—will serve to diminish public confidence in the independence of the judiciary. I suggest that it is not a temptation to which either the judiciary or the public should be exposed.
Lord Smith of Clifton: My Lords, when we discussed the Justice (Northern Ireland) Act 2002, I offered the advice that we should not miss an opportunity to invent or slim down a judicial apparatus for Northern Ireland commensurate with the size of Northern Ireland. Parliament in its wisdom chose to ignore my advice; and we have now replicated there all the paraphernalia that we have in England and Wales. It is therefore consistent that we also follow the practice of England and Wales. For that reason, should the noble Lord, Lord Glentoran, seek to test the opinion of the House, noble Lords on these Benches will support him.
Lord Mackay of Clashfern: My Lords, I understood that it was contrary to judicial independence to alter the terms of service of a judge once he was appointed. If the proposal were to affect judges differently accordingly to the time at which they were appointed, that would be a serious and difficult situation for the judiciary in Northern Ireland to accommodate.
Lord Kingsland: My Lords, I had the opportunity of speaking on this matter both at Second Reading and in Committee. I am not going to state again my objections in principle to the Government's proposals. I simply want to emphasise the different treatment that High Court judges will receive in England and Wales on the one hand and in Northern Ireland on the other.
In England and Wales they will continue to receive the security they derive from the fact that they can be dismissed only on an address by a vote in both Houses of Parliament. Moreover, paragraph 74 of the document placed in the Library by the Lord Chancellor in the light of the Government's new proposals for judicial appointments in England and Wales states:
"High Court Judges and above can only be removed from office by The Queen on an Address from both Houses of Parliament. Subject to this, a judicial office-holder will only be removed from office by the Secretary of State with the agreement of the Lord Chief Justice".
Even if one sets aside the issue that Northern Ireland High Court judges will no longer enjoy the protection of a vote by both Houses of Parliament, it remains inexplicable why the additional protection of the agreement of the Lord Chief Justice should apply to all English judges, irrespective of whether they are High Court judges or circuit judges, but that equivalent

597
protection should be expressly removed, for no apparent reason, in the case of newly appointed Northern Ireland High Court judges.
Perceptions matter enormously in decision making. If the High Court judges in Northern Ireland think that they no longer have security of tenure, it will affect the courageous independence they have shown for the past 30 years. I find the Government's conduct on the matter inexplicable.
Lord Dubs: My Lords, I take a different position. I understand the much greater legal knowledge of many of the noble Lords who have contributed to the debate on the amendment so far, but we are talking about a situation that is not identical to that pertaining in England and Wales. The Government gave their commitment at Hillsborough in the Joint Declaration. It would be a sad day if the Government were to renege on a promise they made to the Northern Ireland parties.
I understand that that is the main reason why there will be a different approach from that which noble Lords believe to be appropriate for England and Wales. Furthermore, the argument was also put in the implementation plan of the Criminal Justice Review that was updated in June 2003, when the point was clearly stated in the foreword to the document. It is not a new issue; it has been in print and understood by the main Northern Ireland political parties for some time. It would be a sad day if the House were to say, "Never mind what undertakings the Government made; we think differently". The situation in Northern Ireland, with the start of the talks today on the review of the Good Friday agreement, is sensitive. It would be unhelpful if this House were to change the Bill in the way the amendment suggests
5.45 p.m.
Baroness Park of Monmouth: My Lords, any Government who make such a commitment without recognising the important repercussions ought to be big enough to say, "We gave this commitment in good faith. However, we have considered it carefully and seen what effect it will have. We are very sorry, but we have decided that we no longer intend to keep that commitment". If they are big enough as a government they can say that; and they have a duty to do so because the whole of Northern Ireland justice depends on retaining the confidence and power of the judges.
Lord Maginnis of Drumglass: My Lords, it was not my intention to intervene—not because I am not party to this amendment but because there are those who are judicially qualified to speak on the matter and, as a layman, I feel that I am not. However, that was until the noble Lord, Lord Dubs, raised the issue of Hillsborough yet again. I always understood during my period both in another place and here that Parliament was supreme and that no politician, even the Secretary of State, could arbitrarily usurp its authority.
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In this case, we are dealing with something that has a long proven tradition. It is totally wrong to make such a change to please some small element of society in Northern Ireland, whatever the noble Lord, Lord Dubs, may think. Hence I support the noble Lord, Lord Glentoran, and hope that he will press the matter to a Division.
Lord Molyneaux of Killead: My Lords, it may horrify your Lordships to know that the magic words "Hillsborough" and "Weston Park" could in any way justify the change in legislation brought forward by the Government. I shall take Weston Park first. We were told in this building—many noble Lords will remember the occasion—that these very serious changes were authorised at Weston Park.
A Minister of the Crown was present who is now unfortunately deceased. He repeated to me that one could not argue with him because the matter was carried and arranged at Weston Park. I said that I was sorry, but there was no such thing as "the Weston Park agreement". I apologise to your Lordships, because this may seem removed from Hillsborough, but the pattern is exactly the same.
The deceased very senior Lord on that occasion said that he was sorry but I was not up to date because the matter was agreed at Weston Park. My noble friend Lord Maginnis was present at the gathering in Weston Park. There was never at any stage in the proceedings a get-together around any table; there was never a vote taken. What happened was that the two Prime Ministers consulted with various groups and parties when it suited them. The others, I suppose, went around feeding the ducks, but at no time was there a legal gathering and at no time were decisions taken.
The late Lord telephoned me the next morning and said, "Jim, I owe you an apology. You were correct. There was no agreement because there never was any sort of an Assembly. When I left you last night. I went over to No. 10 and asked to see a copy of the Weston Park agreement. There was confusion in that building—I shall not say anything about more recent confusions—and, in the end, a very senior official said, 'I'm sorry. We don't have it. We can't have it. No one has it because there was not an agreement".
Much the same operation continued at Hillsborough. Others were present—I was not in the magic circle. On that occasion, we were blessed with the presence of the President of the United States. However, as I understand it, there was a fair amount of drama with television statements and so on, but no concrete, definite legal agreement. Therefore, I am afraid that I have a duty to issue this caution lest we blunder into accepting as the law something which was never put in place by any democratic body.
Lord Filkin: My Lords, I believe that this is the most important and challenging issue that we shall debate on this Bill. First, this measure is superfluous in practice. I shall seek to explain that I cannot conceive of circumstances in which a Lord Chief Justice would wish to oppose a decision of a properly constituted tribunal.

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Secondly, I shall seek to set this issue within the reality of our considerations—the reality of the challenge facing this Government and civil society in Northern Ireland—on how to build on normalisation and work towards devolution. As part of that, it is clearly important that we honour our commitments if we are to expect others to do so also. The commitment given as part of the Hillsborough agreement is reasonable and it does not undermine judicial security or judicial independence. I shall speak on those two issues.
I turn to why there is no reason to believe that the processes that will come into force post-devolution—we are talking about post-devolution here—will not put the independence of the judiciary at risk or cause a problem to the Lord Chief Justice. There are three categories of judicial office-holder. I must ask for the patience of the House in this respect as I want to explain how these measures will apply to the three categories of those office-holders.
First, Section 7(5) of the 2002 Act—the section that we are talking about—will not apply to the removal of the Lord Chief Justice or a Lord Justice of Appeal; nor will it apply to a High Court judge appointed before the section comes into force, which would be post-devolution of judicial functions. The removal of those office-holders, were they to be found guilty of a judicial misconduct, would require not only the recommendation of a removal tribunal but also an address to both Houses of Parliament. Therefore, this amendment does not refer at all to that category of judicial office-holder.
I turn to the second clutch of judicial office-holders, if I may use that term. I refer to all other listed judicial office-holders, as set out in Schedule 1 to the 2002 Act; for example, as the 2002 Act currently stands, the removal of one of the 17 county court judges or one of the 19 resident magistrates would require the consent of the Lord Chief Justice.
However, as a consequence of this Bill, a tribunal would be established, as was said by the noble and learned Lord, Lord Mayhew, either at the initiation of the Lord Chief Justice himself or at the initiation of the First Minister and the Deputy First Minister after consultation with the Lord Chief Justice. The tribunal that would be set up for this category of judicial office-holder would be chaired by the Lord Chief Justice himself, a former Lord Chief Justice or a Lord Justice of Appeal. It would also have a High Court judge member. The crucial point in this respect is that the chair and the High Court judge will be selected by the Lord Chief Justice. Therefore, for this clutch of judicial office-holders, which is by far the vast majority—roughly speaking, we are talking about some 1,000 posts—the Lord Chief Justice will select the High Court judge and the Lord Chief Justice, if he wishes, can put himself on the tribunal and can chair it.
A third—lay—member will be selected by the First Minister and the Deputy First Minister. Therefore, if, for some reason, one chose to believe that the lay member was nothing other than a patsy or a pawn of politicians, two senior judges would clearly form the
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majority of such a tribunal. One of those would be the Lord Chief Justice, if he wished to chair it; the other would be a High Court judge whom he would have chosen to sit with him on that panel.
Next, the tribunal's procedure will be determined by no other than the Lord Chief Justice himself. In those circumstances, I cannot see how it is conceivable that a tribunal so composed with such a procedure could come forward with a recommendation with which the Lord Chief Justice would not be in accord.
The third set of judicial office-holders—High Court judges—are potentially the smallest group and form potentially the most sensitive and challenging area. As I believe the noble and learned Lord, Lord Mackay, signalled, the measure would apply only to a High Court judge appointed post-devolution, not prior to it, but a High Court judge appointed after the new removal provisions come into force. And, were such a High Court judge to be charged with a misdemeanour which appeared either to the Lord Chief Justice or to the First Minister and the Deputy First Minister acting together to require investigation, the process would be as follows.
A tribunal would have to be convened and it would be chaired by a Lord of Appeal in Ordinary—we know who those are—or the holder of a high judicial office. That could mean an English High Court, Court of Appeal or Court of Session judge. The other judicial member would be a judge of the Court of Appeal in England and Wales or a judge of the Inner House of the Court of Session. Those persons would be selected by the Lord Chancellor.
Also, if such a distinguished tribunal recommended the removal of a High Court judge, then it seems to me inconceivable that a body consisting of those people and making such a momentous recommendation would do so without the greatest inspection of the evidence and the greatest inspection of whether they believed it was fair, right and proper to do so.
Therefore, two of the highest judicial office-holders in the land would make a recommendation that a judge—in this category, a High Court judge—be removed. Can we conceive of a situation where the Lord Chief Justice would consider it right to say in that circumstance, "No, I will have my way. The decision of that tribunal should not carry"? In the difficult circumstances of Northern Ireland, in essence we are saying that no person, however high or low, can appoint a judge and no person can veto a judge.
Lastly, I turn to why this matters and why I particularly hope that the arrangements which we have always enjoyed in this House of a bi-partisan approach to the crucial issues of Northern Ireland will sustain and continue. I do not need to tell the House what a deeply divided society it is and how previous governments have been struggling for years with the parties in Northern Ireland to try to bring an end to the appalling divisions in that society. Many Members of this House know vastly more about that than I do, but I mark that we have not concluded that process at this stage.
In fact, the Northern Ireland parties have gathered today to begin a review of the operation of the Belfast agreement. I, and I am sure all Members of the House,

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hope that that will lead to a successful outcome. The Government will work with the parties to try to create the conditions which will enable a working executive to be formed. But what is needed is confidence between the parties and among the public. Everyone must live up to the commitments which they have given. How do we expect other political parties to honour their difficult commitments if the Government themselves do not honour theirs?
The proposals contained in the Bill were the subject of extensive discussion at Hillsborough to try to ensure the broadest possible support. We have been completely transparent about these commitments. The Joint Declaration by the UK and the Irish Governments in May last year set out the Hillsborough discussion. This declaration confirmed that there would be a second justice Bill and the nine specific commitments were made public in the up-dated implementation plan. One of those is Clause 5 of the Bill.
There has been a great tradition in this House of co-operation across the parties on matters affecting the political process in Northern Ireland. I very much hope and expect that we will continue that tradition because the greater good of Northern Ireland and peace require that. I am worried by what I have already heard in terms of the signals and soundings that have been given by both Opposition Benches in that respect.
In conclusion, a clear, transparent process for both the appointment and the appropriate removal of judicial office holders is set out in this Bill, which I believe is both fair to the person complained against and to society. No one acting alone would be able to appoint, dismiss or veto a judge. That is right. These are carefully crafted measures which increase transparency in judicial independence. I believe that the House should support them. I call on it to do so.
6 p.m.
Viscount Bledisloe: My Lords, before the noble Lord sits down, can he explain to me, as a total ignoramus on this topic, what appears to be a total dichotomy between his two opening sentences? First, he said that it will make no difference because he cannot conceive of any circumstance in which the Lord Chief Justice would disagree with the tribunal. Secondly, he said that it is a very important provision of the Hillsborough agreement, which we must not tear up. If it is totally unimportant and there is never going to be any choice, why did people make so much fuss to make it a term of the Hillsborough agreement?
Lord Filkin: My Lords, the Government did not make so much fuss to get it into the Hillsborough agreement. It was very important indeed to some of the parties. There is absolutely no contradiction between the two points I have been making.
I shall explain why. Northern Ireland is such a divided society and the Lord Chief Justices I have met in Northern Ireland—and that is two only—will be aware of the great courage and integrity which Lord Chief Justices have displayed in the appallingly
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difficult times in Northern Ireland over the years. I believe that the vast majority of the people of Northern Ireland have respect for Lord Chief Justices both past and present. But because it is such a divided society, some political parties might be apprehensive that a future Lord Chief Justice with a power of veto might exercise it in the face of a decision, which was not fair and balanced, by a properly constituted tribunal. I believe that that concern may be seen by some as extreme but it is a real issue. Therefore, because there is no threat to judicial independence in practice, as I have explained, it is important that the Government honour their commitments in that respect. It is part of building confidence in the wider part of civil society in Northern Ireland in the integrity of the judicial processes there. I commend it to the House.
Lord Glentoran: My Lords, I thank the noble Lord for his lengthy expose of the Government's position. I am not convinced. Some of the contradictions which have appeared make me even more convinced that there is absolutely no need for this clause and that the Bill would be considerably better without it. I wish to test the opinion of the House.
6.6 p.m.
On Question, Whether the said amendment (No. 13) shall be agreed to?
Their Lordships divided: Contents, 149; Not-Contents, 128.

Division No. 2

CONTENTS

Addington, L.

Eccles of Moulton, B.

Anelay of St Johns, B.

Elton, L.

Astor of Hever, L.

Enroll, E.

Attlee, E.

Falkland, V.

Avebury, L.

Ferrers, E.

Baker of Dorking, L.

Fookes, B.

Barker, B.

Forsyth of Drumlean, L.

Beaumont of Whitley, L.

Fowler, L.

Biffen, L.

Gardner of Parkes, B.

Blackwell, L.

Geddes. L.

Blaker, L.

Gilmour of Craigmillar, L.

Bledisloe, V.

Glenarthur, L.

Bradshaw, L.

Glentoran, L.

Brigstocke, B.

Goodhart, L.

Brooke of Sutton Mandeville, L

Coschen, V.

Brookeborough, V.

Gray of Contin, L.

Brougham and Vaux, L.

Hamwee, B.

Burnham, L.

Hanham, B.

Buscombe. B.

Hanningfield, L.

Byford, B.

Harris of Richmond, B.

Caithness, E.

Hayhoe, L.

Campbell of Alloway, L.

Higgins, L.

Carlisle of Bucklow, L.

Hodgson of Astley Abbotts, L.

Carnegy of Lour, B.

Home, E

Chalker of Wallasey, B.

Howe of Aberavon, L.

Clement-Jones, L.

Howell of Guildford, L.

Cobbold, L.

Huntof WirralL.

Colville of Culross, V.

Jenkin of Roding, L.

Cope of Berkeley, L. [Teller]

Jopling, L.

Courtown, E.

Kimball, L.

Craig of Radley, L.

King of Bridgwater, L.

Crathorne, L.

Kingsland, L.

Crickhowell. L.

Knight of Collingtree, B.

Dixon-Smith, L.

Laird, L.

603

Lang of Monkton, L.

Rawlings, B.

Lester of Herne Hill, L.

Razzall, L.

Lindsay, E.

Rees, L.

Liverpool, E.

Rennard, L.

Livsey of Talgarth, L.

Renton of Mount Harry, L.

Lucas, L.

Roberts of Conwy, L.

Luke, L.

Rodgers of Quarry Bank, L.

Lyell, L.

Roper, L.

McColl of Dulwich, L.

Rotherwick, L.

MacGregor of Pulham Market,

Russell-Johnston, L.

L.

Saltoun of Abernethy, Ly.

Mackay of Clashfern, L.

Sandberg, L.

Mackie of Benshie, L.

Sanderson of Bowden, L.

McNally, L.

Seccombe, B. [Teller]

Maginnis of Drumglass, L.

Selbome, E.

Mancroft, L.

Sharp of Guildford, B.

Mar and Kellie, E.

Shaw of Northstead, L.

Marlesford, L.

Skelmersdale, L.

Mayhew of Twysden, L.

Smith of Clifton, L.

Miller of Chilthorne Domer, B.

Soulsby of Swaffham Prior, L.

Miller of Hendon, B.

Stewartby, L.

Molyneaux of Killead, L.

Strathclyde, L.

Monson, L.

Swinfen, L.

Montrose, D.

Taverne, L.

Murton of Lindisfarne, L.

Taylor of Warwick, L.

Naseby, L.

Tebbit, L.

Newby, L.

Thatcher. B.

Newton of Braintree, L.

Thomas of Gwydir, L.

Noakes, B.

Thomas of Walliswood, B.

Northbrook, L.

Tope, L.

Northesk, E.

Tordoff, L

Northover, B.

Trumpington, B.

Oakeshott of Seagrove Bay, L.

Ullswater, V.

O'Cathain, B.

Vinson, L.

O'Neill of Bengarve, B.

Wade of Chorlton, L.

Onslow, E.

Wakeham, L.

Palmer, L.

Wallace of Saltaire, L.

Park of Monmouth, B.

Walmsley, B.

Phillips of Sudbury. L.

Walpole. L.

Pilkington of Oxenford, L.

Wilcox, B.

Plummer of St. Marylebone, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Dean of Thornton-le-Fylde, B.

Ahmed, L.

Desai, L.

Allenby of Megiddo, V.

Dixon, L.

Alli, L.

Donoughue, L.

Alton of Liverpool, L.

Dubs, L.

Amos, B. (Lord President)

Eatwell, L.

Andrews, B.

Elder, L.

Archer of Sandwell, L.

Evans of Parkside, L.

Ashley of Stoke, L.

Evans of Temple Guiting, L.

Ashton of Upholland, B.

Falconer of Thoroton, L. (Lord)

Barnett, L.

(Chancellor)

Bassam of Brighton, L.

Farrington of Ribbleton, B.

Berkeley, L.

Faulkner of Worcester, L.

Bernstein of Craigweil, L.

Filkin, L.

Billingham, B.

Fyfe of Fairfield, L.

Blackstone, B.

Gale, B.

Borrie, L.

Gilbert, L.

Bragg, L.

Golding, B.

Brooke of Alverthorpe, L.

Goldsmith, L.

Brookman, L.

Gordon of Strathblane, L.

Brooks of Tremorfa, L.

Gould of Potternewton, B.

Burlison, L.

Grabiner, L.

Campbell-Savours, L.

Graham of Edmonton, L.

Carter, L.

Grantchester, L.

Christopher, L.

Grenfell, L.

Clark of Windermere, L.

Grocott, L. [Teller]

Clinton-Davis, L.

Harris of Haringey, L.

Corbett of Castle Vale, L.

Harrison, L.

Crawley, B.

Haskins, L.

David, B.

Hayman. B.

Davies of Coity, L.

Hilton of Eggardon, B.

Davies of Oldham, L. [Teller]

Hogg of Cumbernauld, L.

604

Hollis of Heigham, B.

Puttnam, L.

Howells of St. Davids, B.

Radice, L.

Howie of Troon, L.

Ramsay of Cartvale, B.

Hughes of Woodside, L.

Randall of St. Budeaux, L.

Hunt of Chesterton, L.

Rea, L.

Hylton, L.

Redesdale, L.

Irvine of Lairg, L.

Rendell of Babergh, B.

Jones, L.

Sainsbury of Turville, L.

Judd, L.

Sandwich. E.

King of West Bromwich, L.

Sawyer, L.

Kirkhill, L.

Scotland of Asthal, B.

Lea of Crondall, L.

Simon, V.

Levy, L.

Smith of Gilmorehill, B.

Lipsey, L.

Smith of Leigh, L.

Lockwood, B.

Stone of Blackheath, L.

Lofthouse of Pontefract, L.

Strange B

Macdonald of Tradeston, L.

Symoas of Vernham Dean, B.

McIntosh of Haringey L.

Teylor or Blackburn, L.

McIntosh of Hudnall, B.

Temple-Morris L

MacKenzie of Culkein, L.

Thornton B

Mackenzie of Framwellgate, L.

Tomlinson, L.

Mallalieu, B.

Tomlinson L.

Marsh, L

Triesman, L.

Mason of Barnsley, L.

Turnberg, L.

Massey of Darwen, B.

Turner of Camden, B.

Mishcon, L.

Warner, L.

Mitchell L

Warwick of Undercliffe, B.

Nicol, B.

Weatherill, L.

Parekh, L.

Whitaker, B.

Patel, L.

Whitty, L.

Pendry, L.

Williams of Elvel, L.

Pitkcathley, B.

Williamson of Horton, L.

Prys-Davies, L.

Winston, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.16 p.m.
Clause 6 [Duty of Director of Public Prosecutions to refer certain matters to Police Ombudsman]:
Lord Maginnis of Drumglassmoved Amendment No. 14:
Page 3, line 35, leave out "may have" and insert "has''
The noble Lord said: My Lords, this amendment (deals with the duty of the Director of Public Prosecutions to refer certain matters to the Police Ombudsman. I particularly refer to subsection (3), which will insert a new subsection (4A) in to the 1955 Act:
"The Director shall refer to the Ombudsman any matter which—
(a) appears to the Director to indicate that a police officer—
(i) may have committed a criminal offence".
It is our proposal that "may have" be changed to "has".
It appears absolutely ridiculous that the Director of Public Prosecutions, who has the duty to make decisions about matters being referred to the court, should have to relegate his position to that of the Police Ombudsman. That is what it boils down to.
The reality is that the Director of Public Prosecutions will look at a case where there has been an allegation that a police officer may have committed a criminal offence and he will then make a decision that he has enough evidence to test the matter in court, or that he does not have enough evidence and that the matter should not be tested in court. That has to be an

605
end of it. It appears to go against the course of natural justice that the matter would then be passed on to the Police Ombudsman for further investigation.
Recently the Police Ombudsman went back in one case for a period of 10 years where a complaint had been made by an injured party. He decided to reopen a matter that had previously been referred to the DPP and where no action had been taken. When I questioned that, I was told that where a matter appears to have involved criminality, the ombudsman has an obligation to deal with it no matter how far back the issue goes.
When the legislation creating the post of Police Ombudsman was passed through Parliament, I understood that there was to be no retrospection. Now I am told that that is in respect of policy, not matters of criminality. So, at present if someone takes an allegation to the Police Ombudsman, she considers that it is her legal obligation to pursue the issue. However, I do not believe that this House should endorse legislation which states not only that, but that the Director of Public Prosecutions, irrespective of any decision he makes within the powers of his office, has to subject himself to second-guessing by the Police Ombudsman.
For that reason, I propose that in line 35 we leave out "may have" and insert "has". Amendment No. 15, grouped with this amendment, leaves out lines 36 to 38, which state that a police officer,
"may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings".
That is so ill-defined that, again, I believe that it should not be part of the Bill. We have a Chief Constable and a police board, and disciplinary procedures are already in place. Once again, it appears that we are saying that the Chief Constable and officers in command of the PSN1 must subjugate themselves to the will and interests of the Police Ombudsman. Again, it strikes me as an absolute travesty that that should be the case.
In the debate on Clause 5 it was interesting to hear the Minister virtually admit, and to receive support from his noble friend Lord Dubs, that concessions were being made to a very small minority—we all know that we are talking about Sinn Fein. Those cannot be deemed to be in the best interests of the community: Protestant or Catholic, Unionist or Nationalist, where neither has any difficulty at present. We are being asked to accept an intervention by Sinn Fein for some narrow nationalistic or sectarian reason. I beg to move.
The Attorney-General (Lord Goldsmith): My Lords, we discussed this clause at some length in Committee. The amendments deal with the reference by the Director of Public Prosecutions to the Police Ombudsman in certain cases.
I re-emphasise what I said in Committee; that is, this clause does not undermine in any way the professionalism of the Director of Public Prosecutions. Perhaps I may respond straightaway to the point made by the noble Lord, Lord Maginnis, that the effect of this
606
clause may be that the director is delegating in some way his decision to the ombudsman. Clearly, that is not the position. As I said in Committee, decisions as to whether there should be a prosecution will still lie entirely with the director and his staff. It is his decision as to whether a prosecution should take place, and that will continue to be the position. If there is to be a prosecution, that will take place before reference to the ombudsman. So, there is no question of delegating a decision. The point is that the ombudsman has a different function. The ombudsman is not concerned to make a decision as to whether there should be a prosecution. As I said, that is for the director. The issue for the ombudsman is a different one and not one which falls within the director's responsibilities.
The provision therefore delineates sensibly the respective roles of the Director of Public Prosecutions and the Police Ombudsman by ensuring that any decision taken on the conduct of the police—not prosecution decisions but other decisions—are taken by the Police Ombudsman as Parliament intended. The director may already make reference to the Police Ombudsman in these circumstances, and we are strengthening that provision.
If Amendments Nos. 14 and 15 took effect, that would mean that the director would be obliged to refer cases to the ombudsman only where a police officer had in fact committed a crime. In effect, that means only where the officer has been convicted of a crime. In our view, that is a much narrower and less helpful provision than ensuring that the ombudsman is in a position to know of cases where there may be a justification for considering, as the ombudsman may, other powers rather than prosecution.
The other aspect to which the noble Lord referred is the second part of the clause, which his amendment would remove. That relates to cases where it appears to the director that a police officer,
"may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings"
The noble Lord worries about that being ill-defined. However, the virtue of the clause is that it is not for the director to decide whether disciplinary proceedings should take place. Ultimately, that is a matter for the ombudsman. He is simply making a reference to matters which may fall within that category. He and his staff will need to be guided—I have discussed this with the director—as to the kind of areas that may cover. However, as I have said, in view of the great experience of the director and his staff in dealing with police investigations, they will certainly have a good idea of conduct which may justify disciplinary proceedings.
Finally, the noble Lord referred to the issue of retrospectivity. We dealt with that also in Committee. We tabled amendments then, and I am grateful to the noble Lord, Lord Laird, who drew this to our attention, to ensure that this clause is consistent with the existing legislation in terms of retrospective investigations by the ombudsman. There are certain circumstances in which, within limits, it may be retrospective. This clause makes no changes to those

607
and is entirely consistent with them. For those reasons, I hope that the noble Lord does not press his amendment.
Lord Maginnis of Drumglass: My Lords, it is difficult to convince me. Certainly, I have not found the Minister's response convincing. It appears that there is a form of double jeopardy that has not been addressed. It is left to me to ask whether the Minister can illustrate a case in which, a criminal having gone through the due process, someone who. is not a police officer will find himself in a similar situation to a police officer as here proposed. If the Minister can give me an example of that, I will be happy to give way. It is not my intention to press this, but it is disappointing that the Government are simply putting this provision in the Bill to placate a small section of society, namely Sinn Fein/IRA.
6.30 p.m.
Baroness Farrington of Ribbleton: My Lords, once we reach Report, and the Minister has sat down, only the mover of the amendment may speak. Technically, the mover of the amendment must move the amendment in order to say anything. The House is slightly lenient on that point. The Minister listens and obviously if appropriate, will drop a line or two to the noble Lord.
Lord Maginnis of Drumglass: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 15 and 16 not moved.]
Clause 7 [Influencing a prosecutor]:
Lord Glentoran Lord Glentoran moved Amendment No. 17:
Leave out Clause 7.
The noble Lord said: At Committee stage, I thought that we had support from all around the House. I had hoped—perhaps expected would be overstating it—that the Government might have seen a way to leaving this clause out and taking our advice that it was unnecessary, especially in the light of my reading of Hansard, where I found the Attorney-General's arguments less than convincing. I have great admiration for the Attorney-General in 99.9 per cent of what he does for our nation.
This is a new offence of influencing a prosecutor. It is neither necessary nor wise. The Government rightly realised that, for it to have legal certainty, an essential of any such criminal offence is that it must be done with the intention of perverting the course of justice. Any attempt to influence a prosecutor with such an intent is already a criminal offence at common law, and the proposed statutory offence adds nothing to it. I am well advised by my noble friends who are not in their places at the moment, but who are much more skilful lawyers than me.
The Attorney-General was asked specifically by my noble and learned friend Lord Mackay of Clashfern to illustrate circumstances in which there would be a breach of the clause and yet not of the common law provisions. I sensed from Hansard that he was not able
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to answer that. He said that there was an advantage in having it in the statute. The real problem is that while to do so adds nothing in law, it has a significant down side. As the noble and learned Lord the Attorney-General made clear, reference to the "Director of Public Prosecutions" refers also to his deputy, to any public prosecutor, and to any barrister or solicitor appointed to prosecute on his behalf. Yet, there can be many perfectly valid reasons why individuals can and should be able to seek to influence the prosecutor, be it the DPP himself or any other prosecutor.
Such representations may concern not only the evidence, but the public interest reasons for bringing the case. Before any case can be prosecuted not only should there be a sufficiency of evidence to give a reasonable prospect of conviction, but prosecution must also be in the public interest. The existence of this new offence is unlikely to have much effect on professional criminals or terrorists, or on those who intimidate on their behalf. It may well inhibit the innocent person who wishes to make a pressing representation, whether it be on evidential or public interest grounds. It is essential that the law be clear in this area. We suggest that this clause reduces clarity and may well restrict proper representations. It should not stand part of the Bill. I beg to move.
Lord Mayhew of Twysden: My Lords, this clause is a mystery. It is a harmful mystery because, as my noble friend has just said, common law achieves everything, on a more general basis, that this achieves in a particular focus. It is harmful, because the existence of this specific offence will be a temptation and will lead to the foreseeable use by prosecutors of this specific offence. This has harmful connotations for exactly the reason that my noble friend has just given.
He said correctly, as the Attorney-General knows so well, that there are two limbs to what a prosecutor must ask himself. Is there enough evidence to justify a conviction on the basis that there will be a reasonable chance of getting a conviction? That is how it is put in Northern Ireland, if I remember correctly—it is either reasonable or realistic, but I believe that it is reasonable; the effect is the same either way.
Is a prosecution in the public interest? That is the second limb, which applies if the first question has been answered in the affirmative. Why should a member of the public not have a view as to what is or is not in the public interest? It is entirely foreseeable that a member of the public will have a view on any particular case, and he may be moved to express it to the prosecuting authorities. Why should he not seek to influence a prosecuting authority in those circumstances? There can be no reason whatever why he should not be permitted to seek to do so, and foreseeably he will.
What can be more readily foreseeable than that a prosecutor in such circumstances will say to himself, "This is intended to pervert the course of justice by an interference with my impartial discretion"? It will be for the prosecutor to decide whether to prosecute the member of the public for that offence.

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I invite your Lordships to accept that this clause is unnecessary, and it will give rise to confusing uncertainty. It will result in inexpedient criminal proceedings, and at worst it may well lead to an oppressive prosecution. This clause should be struck from the Bill, and I hope that it will be.
Lord Maginnis of Drumglass: My Lords, I will give the noble and learned Lord the Attorney-General a practical example of a case in which I might well have been deemed—if this clause became legislation—to have committed an offence.
An elderly widow was accused of being involved in a hit and run accident about 30 miles from her home on a Saturday morning. She was taken to court, the case had been adjourned, and she was going back to court. Knowing the family and knowing that the woman would not be involved in such a case, I went to see her. I discovered that the police had come out, they had seen a dinge in her car, which had happened before—she had had the car for years. The police had taken paint samples, but they had not given her a report of what those samples indicated.
I intervened on her behalf. I discovered that the paint samples proved nothing. I approached the chief superintendent, and I suggested that he had no case and should not prosecute. He insisted that he would prosecute, because he had an eyewitness. I had the idea of getting her telephone account. She lived on her own, and I discovered that at the very time that she was supposed to be 30 miles away bashing into the car, she had made a series of telephone calls to people who could be identified as members of the bowling club where she was secretary and of the Mothers' Union where she was secretary.
The case still went to court, despite my making representations and presenting that evidence. I had to go to court and give evidence. Eventually, the resident magistrate understood and dismissed the case, realising that the eyewitness had made a mistake. Given that series of events, would I have been guilty of an offence under this Bill? I believe that I would have, because I pleaded with the chief superintendent not to pursue the case against the woman. If the noble and learned Lord the Attorney-General can convince me that I am wrong in that opinion, I might better understand the purpose of duplicating the provision.
Lord Goldsmith: My Lords, the noble Lord. Lord Glentoran, put his proposition on the basis that having the offence was neither necessary nor wise. In my view, it is both, and I will explain why. Before I do, I shall emphasise two factual points of importance. The first is that, in some of the observations made by noble Lords, the spectre was raised of a prosecutor misusing the clause to the detriment of those who have perfectly legitimate reasons to put representations before him. The two points relate to that.
First, there is no offence, unless the intention of the person seeking to influence the Director of Public Prosecutions is to pervert the course of justice. That is
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critical. It is not an offence of seeking to influence; it is an offence if there is an intention to pervert the course of justice. I have no hesitation in saying to the noble Lord, Lord Maginnis of Drumglass, that, on the account that he gave of the proper steps that he took on behalf of a constituent so that the course of justice would run true, rather than be perverted, he did not commit any offence and would not commit an offence on any further occasion. I hope that the noble Lord, who said that he hoped to be convinced by me, will, at least, find that statement by me of some comfort, even if he is not prepared to be wholly convinced, as I hope he will be. It is important to recognise that the provision requires that absolutely key condition.
The second point—it is not unimportant—is that Section 32A(4) will provide that the proceedings cannot be brought just on the whim of a prosecutor, a barrister or a solicitor. They can be brought only with the consent of the director. It will take a decision by the director for such proceedings to be brought. They cannot be brought on a whim or so as to frighten someone off.
Why is the provision necessary and wise? A new system of justice is being created for all the people of Northern Ireland. Under that system, the director will explicitly be an independent officer. That is unlike the position in England and Wales, although I do not suggest for a moment that the Director of Public Prosecutions in England and Wales is not independent. The position will be different in that there will be a wholly new relationship with the Law Officers.
At the moment, the Director of Public Prosecutions is subject to the superintendence of the Attorney-General—my superintendence. After the devolution of justice, that relationship will change, and the director will be in a more direct and, if I may say so, free-standing position. He will have a relationship of consultation with the new locally appointed Attorney-General and a relationship of consultation with the Advocate-General. The reason for that is to make it very clear, in the particular circumstances of Northern Ireland, that people must have absolute confidence that prosecution decisions taken in Northern Ireland are taken independently, impartially and objectively on the evidence and nothing else and, as the noble and learned Lord, Lord Mayhew of Twysden, and the noble Lord, Lord Glentoran, said, on a proper consideration of the public interest. Those of us who have to make those decisions know that it is a question of public interest and not, for example, of any party political interest, which would be an inadmissible consideration.
Everyone needs to be clear that those decisions will be taken independently. In the past, there have been assertions—assertions that I have repudiated and repudiate now—that prosecution decisions have not been taken on that basis. I unreservedly pay tribute to the present and past director for the independence of the decisions that they have taken. Those decisions were taken conscientiously and properly, but I know for a fact that people have questioned them. Therefore, it is important and necessary for Parliament to express very clearly that the independence of the director is

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absolute and that anybody who seeks to influence him with the intention of perverting the course of justice shall not do so. It is necessary so that there is a clear statement, and it is necessary so that the people of Northern Ireland can be assured that decisions affecting them, their family, their relatives or their neighbours will be taken properly, objectively and impartially. It is necessary to state that to give that assurance and, as I said, to give a clear statement that the independence is to be respected.
I have declined to speculate on all the circumstances in which the common law might afford a remedy at the moment. As I said to the noble and learned Lord, Lord Mackay of Clashfern, in Committee, the difficulty about the common law is, as he and all lawyers will know, that its edges are often not that precisely clear, until a court gives further clarity. By putting this provision in the statute, we will make it clear that,
"if, with the intention of perverting the course of justice, he seeks to influence the Director"—
or one of those persons, a person is guilty of an offence.
It may be that, in certain circumstances, the common law could have done the job, but it is better that what we expect from people should be clear in the statute. I have made it clear in what I have said to the noble Lord, Lord Maginnis of Drumglass, and on a previous occasion, that the provision will not stop proper representations being made by people who, to put it broadly, have a legitimate interest in doing so—there will be many—to the prosecutors. However, there comes a point at which it crosses the boundary into seeking to pervert the course of justice, and that shall not be done. It is both necessary to say it—to give assurance—and wise to say it, in order that there should be a very clear message in the statute about the independence of the director. Those are the reasons why I continue to believe that it is an important and proper provision.
6.45 p.m.
Lord Glentoran: My Lords, I thank the noble and learned Lord the Attorney-General for that very clear set of arguments and advice. At this time, I am content to accept his advice, on the premise that I will return to my legal team and take further advice before Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Guidance for criminal justice organisations on human rights standards]:
The Lord President of the Council (Baroness Amos)The Lord President of the Council (Baroness Amos) moved Amendment No. 18:
Page 4, line 36, leave out "issued or revised" and insert "for the time being in operation"
The noble Baroness said: My Lords, Amendments Nos. 18 to 24 and Amendment No. 29 seek to meet the recommendations of the Select Committee on Delegated Powers and Regulatory Reform. In its report, the committee recommended that the human rights guidance to be issued by the Attorney-General under Clause 8 should be brought into operation by an order subject to the negative resolution procedure when it is
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issued and each time that it is revised. That is to give Parliament some control over the coming into operation of the guidance.
In Committee, the noble Lords, Lord Glentoran and Lord Kingsland, tabled an amendment relating to that issue. In response, my noble and learned friend the Attorney-General stated that it was the Government's intention to adopt the committee's recommendations but that time had not permitted amendments to be tabled for the Committee stage.
The amendments in this group amend Clauses 8 and 21 to make provision for the Attorney-General's guidance on human rights that will be brought into force by order, subject to the negative resolution procedure when it is issued and each time it is revised.
I thank the Delegated Powers and Regulatory Reform Committee for its advice. I beg to move.
Lord Glentoran: My Lords, I thank the Lord President for moving the amendment, which we support.
On Question, amendment agreed to.
Baroness Amos Baroness Amos moved Amendments Nos. 19 to 24:
Page 4, line 42, leave out "and"
Page 4, line 43, at end insert "; and
(c) shall not come into operation until the Attorney General for Northern Ireland by order so provides."
Page 5, line 27, leave out from "code" to end of line 30 and insert "the Chief Constable and the Board shall also have regard to any guidance for the time being in operation under section 8 of the Justice (Northern Ireland) Act 2004."
Page 5, line 33, leave out from "code" to end of line 37 and insert "the Director must also have regard to any guidance for the time being in operation under section 8 of the Justice (Northern Ireland) Act 2004."
Page 5, line 39, leave out "issued" and insert "for the time being in operation"
Page 6, line 7, after "subsection" insert "(3)(c) or"
On Question, amendments agreed to.
Clause 12 [Bail to which Part II of the Criminal Justice (Northern Ireland) Order 2003 applies]:
Lord Glentoran Lord Glentoran moved Amendment No. 25:
Page 8, line 24, after "court" insert "and at the end insert—
"in order to carry out an arrest under this paragraph, a constable may enter any premises where he has reasonable grounds for suspecting that person to be"
The noble Lord said: My Lords, I thank the noble Baroness for her letter to me referring to this amendment. It concerns the powers of access for the PSNI when a person has jumped bail. Having spoken to the noble Baroness, the chief constable's office at the PSNI and officials, I understand that while the Government are unwilling to alter the Bill to include this amendment, or a similar one, they are giving serious consideration to how such an amendment could be brought into future Bills on Northern Ireland justice, which we are led to believe are in the pipeline. I understand that the amendment could cause difficulties with the ECHR. I accept those arguments and should be grateful if the noble Baroness could give me an undertaking today that the Government are

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considering the matter and intend to facilitate the PSNI and those concerned with enforcing law and order in this area. I beg to move.
Baroness Amos: My Lords, the noble Lord, Lord Glentoran, proposed a similar amendment in Committee. I gave an undertaking then to consider the proposal in so far as it related to a breach of bail. I have written to the noble Lord and, with the leave of the House, I shall set out what I said in that letter to clarify matters. Before doing so, it would be helpful to set out the powers that are currently available.
At present, the police have an automatic power of entry to effect arrest when an arrestable offence, as defined in the Police and Criminal Evidence (Northern Ireland) Order 1989, has been committed, is being committed, or is about to be committed. The power also applies for the purpose of saving life or limb, or for preventing serious damage to property, where a court issues a warrant of arrest in criminal proceedings and in a number of other specified instances.
In bail cases police powers are already in place to deal with the most serious breaches. When a person absconds from bail, committing the offence of failing to surrender to custody, the court would issue a warrant of arrest on his non-appearance, and thus a power of entry would follow. If a breach of a bail condition is of a serious nature, it may well constitute an arrestable offence—for example, the intimidation of witnesses—and thus, again a power of arrest and entry already exists.
It is only in relation to the less serious breaches and anticipated breaches, which do not constitute criminal offences, that a power of entry is not presently available. I would have real concerns that to create a power of entry for police in those less serious scenarios might be disproportionate and incompatible with the ECHR, as mentioned by the noble Lord, Lord Glentoran.
Since the Committee stage, my officials have been working closely with the chief constable's staff in the Police Service of Northern Ireland. They have been exploring the need to create a power of entry, proportionality and ECHR compliance. It is our view, which is now shared with the PSNI, that more joint work needs to be done between policy and legal staff.
Against the backdrop of the availability of other powers of entry, the pressing need for such a power in the circumstances proposed needs to be fully explored. Providing such a power should not be done lightly. It would be preferable to consider the power of entry in the context of all other related issues, including other powers in relation to arrest and bail.
I intimated in Committee that the need for a power of entry could be looked at in the context of the planned review of PACE in Northern Ireland. We have now agreed a revised way forward with PSNI whereby we shall fully explore the detail and prioritise the issue ahead of the planned PACE review. If legislation is still required, a legislative vehicle will be found.
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If that approach were to be adopted I would be more confident that a proper exploration would be conducted into all the implications and peripheral considerations of such a change. I thank the noble Lord, Lord Glentoran, for his interest in this matter and hope that, with my explanation, he will feel able to withdraw the amendment.
Lord Lester of Herne Hill: My Lords, I have not taken part in the progress of this measure, but may I say that that was an admirable reply?
Baroness Farrington of Ribbleton: My Lords, the noble Lord, Lord Lester of Herne Hill, knows the rules about speaking after the Minister on Report.
Lord Glentoran: My Lords, I thank the Lord President for her undertaking, in light of which I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 [Transfer of prisoners]:
Baroness Amos Baroness Amos moved Amendment No. 26:
Page 9, line 9, at end insert—
"( ) In paragraph 5(1) (conditions of transfer) after "this Part" insert "(other than a transfer under paragraph 1 (2A))".
( ) After paragraph 5 insert—
"Conditions of transfer under paragraph 1(2A)
5A

(1) A transfer under paragraph 1(2A) shall have effect subject to—

(a) such a condition as is mentioned in paragraph 6(1)(a);and

(b) such other conditions (if any) as the Secretary of State may think fit to impose.

(2) Such a condition as is mentioned in paragraph 6(1)(a) shall not be varied or removed.

(3) A condition imposed under sub-paragraph (1)(b) may be varied or removed at any time.""

The noble Baroness said: The main effect of the amendment is to provide that all transfers under the new power will be on a restricted basis and that, accordingly, the prisoner's release date will not be effected by the transfer. I said in Committee that any transfers would be on a restricted basis to ensure that there was no possibility of the prisoner benefiting from it owing to the more generous early release arrangements available in England and Wales.
We reflected on the comments made by the noble Lord, Lord Glentoran, in Committee, and concluded that it is right that the fact that all transfers will be on a restricted basis should appear on the face of the Bill. The amendment also provides that it will not be possible to convert a transfer from being on a restricted basis to an unrestricted basis. The amendment mirrors existing provisions of Schedule 1 to the Crime (Sentences) Act 1997 by providing that any transfer under the new power may be subject to such other conditions, if any, as the Secretary of State may think fit to impose. Those additional conditions will be capable of being varied or removed at any time.

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The amendment does not change the policy in any way. It simply makes that policy more transparent by providing on the face of the Bill that all transfers will be on a restricted basis. I beg to move.
Lord Glentoran: My Lords, once again I thank the Lord President. That, was largely what our amendments in Committee were about—clarification and transparency. The amendment goes a long way towards solving the problem of potential misunderstandings. I support the amendment.
On Question, amendment agreed to.
Clause 19 [Commencement]:
Lord Glentoran Lord Glentoran moved Amendment No. 27:
Page 10, line 13, at end insert—
"( ) Any order under subsection (1) bringing into force any of sections 1 to 5 shall not be made before the end of the period of 6 months beginning from the date on which this Act achieves Royal Assent."
The noble Lord said: My Lords, I am unsure how to handle this amendment. Part of the response to Amendment No. 27 was given earlier today by the noble Lord, Lord Filkin. I have also received a letter from the Lord President on this topic which almost satisfies me. It certainly clarifies issues about which I was concerned. Alongside the explanations given by the noble Lord, Lord Filkin, to earlier amendments today, it clears up the matter.
I have one concern: that this Bill will not run concurrently with the constitution Bill because I do not believe that it has yet been printed. A number of issues in this Bill could change fairly dramatically should the constitution of England and Wales Bill be altered significantly on its passage through Parliament. I was anxious to find a vehicle through which we could return to this Bill, or to parts of it, even though it had been enacted, so that we could change certain points should the constitution Bill be significantly altered. I want to avoid a widening gulf of differentials on particular aspects of the Bill, most of which we have talked about in Committee and on Report at some length. I do not know how to do that. I tabled this amendment as an opportunity to open the debate for probably the last time. I beg to move.
Baroness Amos: My Lords, when we discussed this matter in Committee I anticipated some overlap between the two Bills being considered by the two Houses of Parliament. In that event, if there were considerable changes that had an impact on this Bill, we would have to find a way of considering the matter.
As I said in Committee on Clauses 1 to 3, which relate to the Judicial Appointments Commission, the practical steps to create a commission should not be rushed and will take time. We aim to have the commission in place by spring 2005, so there is some time available to us. Clauses 4 and 5 come into effect only after the devolution of criminal justice. I hope that in the light of that the noble Lord, Lord Glentoran, will feel able to withdraw his amendment.
Lord Glentoran: My Lords, I thank the Lord President for that response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 [Statutory rules]:
Baroness Amos Baroness Amos moved Amendment No. 28:
Page 10. line 22, leave out from "power" to end of line 24.
The noble Baroness said: My Lords, during the debate in Committee we accepted a number of amendments that changed references in the Bill from Secretary of State, meaning the Secretary of State for Constitutional Affairs, to Lord Chancellor. These further amendments serve to tidy up the remaining references to the Secretary of State for Constitutional Affairs that are found in Schedule 3 to the Bill. The amendments to Clause 21 are consequential. I beg to move.
Lord Glentoran: My Lords, we support this group of amendments.
On Question, amendment agreed to.
Baroness Amos Baroness Amos moved Amendments Nos. 29 to 34:
Page 10, line 30, after "section" insert "8(3)(c) or"
Page 10, line 34, leave out from "made" to end of line 36 and insert "under this Act may include supplementary, incidental, transitional or consequential provisions."
Page 16, line 10, leave out "Secretary of State" and insert "Lord Chancellor"
Page 16, line 15, leave out "Secretary of State" and insert "Lord Chancellor"
Page 17, line 31, leave out "Secretary of State" and insert "Lord Chancellor"
Page 18, line 23, leave out "Secretary of State" and insert "Lord Chancellor"
On Question, amendments agreed to.

Gender Recognition Bill [H.L.]
7.4 p.m.
Lord Filkin: My Lords, on behalf of my noble and learned friend Lord Falconer of Thoroton, 1 beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Filkin.)
On Question, Motion agreed to.
Schedule 4 [Effect on marriage]:
Lord Tebbit Lord Tebbit moved Amendment No. 86:
Page 26, line 4, at end insert—
"( ) Notwithstanding any other provisions of the Gender Recognition Act 2004, no two persons each possessing XX chromosomes nor each possessing XY chromosomes, nor each possessing genitalia appropriate to the same sex, may be married the one to the other."
The noble Lord said: My Lords, I expect to be told that the amendment is in conflict with the European Court ruling, but I do not believe that it is. In aid of that view I shall quote the finding of the court which the noble Lord, Lord Filkin, mentioned on 13 January in Grand Committee:
"The court had found under Article 8 of the Convention that a test of congruent biological factors could no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual'".—[Official Report, 13/1/04: col. GC 5.]

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I believe that those last words are the most important.
The amendment states that:
"Notwithstanding any other provisions of the Gender Recognition Act 2004, no two persons each possessing XX chromosomes nor each possessing XY chromosomes, nor each possessing genitalia appropriate to the same sex, may be married the one to the other".
It is slightly badly drafted and it would be better if it said, "and each possessing genitalia". I leave that to one side.
Last week on 29 January, during the first day of Report stage, the noble Lord, Lord Filkin, set out in commendably robust and clear terms the policy of the Government:
"We are not going to allow same-sex marriage; I said that very clearly at Second Reading and that is our position".—[Official Report, 29/1/04; col. 401.]
One may believe that the noble Lord would welcome an amendment that would prohibit marriage between persons of the same sex. That is a marriage between persons whose chromosomes and sexual organs are of the same sex. After all, that is the undoubted determinant of biological sex. I know that some people think that one's sex is determined by one's mind, but that is surely no more than a superstition.
I hope that the noble Lord will acquit me of discourtesy—I am sure he will—if I say that his robust rejection of same-sex marriage does not go so far as rejection of same-sex marriage. In his answer to a Written Question on 19 January he set out his position more openly. I asked Her Majesty's Government,
"Whether they intend to legalise marriage between persons each possessing the XX chromosome (or each possessing the XY chromosome) and each possessing the genitalia of the same sex.
The noble Lord replied:
"The Government believe that marriage should only be possible between people of opposite gender in law".—[Official Report, 19/1/04; col. WA 124.]
There we have the problem. The Government believe that marriage should only be possible between people of opposite gender in law. I believe that it should only be possible between people of opposite sex.
The noble Lord may yet have to eat some of his words. The other day I was reading my birth certificate. I have brought it into the Chamber this evening. I know that Government Whips suspect that I might not have had one, but here is the document. At the bottom, I found something that I had never noticed before. It states:
"Caution. Any person who (1) falsifies any of the particulars on this certificate, or (2) uses it as true, knowing it to be false, is liable to prosecution under the Forgery Act 1913 or the Perjury Act 1911".
I presume that if I were to be overtaken by sexual dysphoria and became possessed of the idea that I was indeed a woman, and secured the agreement of a gender recognition panel to that, I would receive a new certificate. However, it would be in conflict, quite clearly, with the Forgery Act 1913 or the Perjury Act 1911, in that it would state, contrary to this certificate, that I had been born as a female. We do get into deep water in these matters, do we not?
Let us consider the Minister's proposition from the Written Answer to the Parliamentary Question that I have just recounted. His answer would mean that two persons, each of whom had given birth to children—and I can think of no better test of whether a person is female than that—and each of whom remains capable of bearing children, could be legally married provided that one has been given a certificate that states that she was born a male, was a male at the time she gave birth, and remained a male. That is the implication—nay, the meaning—of the Minister's reply. What would the noble Lord think should appear on their child's birth certificate; that his mother was a man? For sure, that would have to appear on it.
Let me remind the Minister of his Written Answer to another Parliamentary Question of mine on 19 January. I asked the Government whether they were,
"aware of any cases of persons certified at birth as male who had given birth to children".—[Official Report, 19/1/04; col. WA 125.]
I have just enunciated the circumstance where somebody who had been certified as male at birth could give birth to children. Will any such caveat as appeared on my birth certificate appear on those issued under the Bill?
What of the marriage so disrupted by the person who purports to be the husband and who then gives birth? Would such an event establish in the minds of the noble Lord's legal advisers that it was a same-sex marriage? Would that marriage fall to be annulled under the dictum of the Minister as enunciated in his response last week to Amendment No. 28; that is, that a marriage between persons of the same sex should be annulled? Or would the noble Lord's advisers shrug their shoulders and say, "Well, it's just one of those things, isn't it? People giving birth these days might well be women; they might well be men. Anyway, so long as they are legally female, all is well".
Even at this late stage, I beg the Government to see the world as it is. There is something absurd in the proposition that the problems—I accept that they are very real ones—of transsexual people require us to accept that while today the marriage of two people each bearing the chromosomes and the sexual organs of the same sex would be a same-sex marriage and therefore illegal, a piece of paper that declares one of those two people to be of the opposite sex would be permitted by this legislation to make it a legal marriage of opposite sexes. That cannot make sense. I beg the noble Lord to consider that matter and to accept the amendment. I beg to move.
Lord Turnberg: My Lords, I am afraid that I do have a problem with the amendment. A problem arises from the attempt to base so much on the possession of the X and Y chromosomes and on the external genitalia, not least because there are so many exceptions to the general rule that one can determine a person's sex by them. One example is the condition known as Turner's syndrome, which affects women, most of whom have only one X chromosome. Is one X enough to count as a woman? Those who have Turner's syndrome certainly are women. Another is Klinefelter's syndrome, which affects men who have two Xs and a Y. Should they be classified

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as men or women? They believe that they are men, but they have two Xs. Genes on other chromosomes also contribute to the sexuality of a person.
One comes then to the possession of the relevant genitalia as the determining factor. However, there are many examples of babies born with genitalia that are at variance with their chromosomes. Some of those babies have had some form of surgery that placed them clearly and permanently in one or other gender. Only in some cases do those genders coincide with their chromosomes. Some of those people have married on reaching adulthood. Those couples are of course infertile as, unfortunately, are many other couples, but infertility was never a bar to marriage. However, the amendment would prevent their marriage on the chromosomal count.
All of the above says nothing of the rights of transsexual people to marry, which the Bill would allow, but it simply points out the difficulties in practice of using the criteria that are set out in the amendment. I cannot support it.
7.15 p.m.
Lord Winston: My Lords, I reluctantly join the debate at this stage of the Bill. I apologise for not being in the House at Second Reading and for hearing only part of the Committee stage. However, I feel so strongly about the amendment, as well as about Amendment No. 128, that it is important to put on record the medical facts.
As a practising obstetrician and gynaecologist who has been involved with reproductive medicine and the definition of sex in both animals and humans for the past 30 years in my research, I can only reiterate the comments of my noble friend Lord Turnberg.
The definition of sex is extremely complicated. It is not just a question of chromosomes. It is possible of course to have chromosomal sex and it is probable, though by no means certain, that all of us in this Chamber have chromosomes that are either XX or XY. However, even in the case of Turner's syndrome, which my noble friend has just described, it is possible to have an XY mosaic, with some of the cells carrying a Y chromosome and some having a deleted X chromosome. The variations of that syndrome mean that people may have different degrees of masculinity or femininity.
Most practising doctors in the field would describe sex on six, totally separate, definitions. Those definitions can be chromosomal but, more importantly, they are genetic. It emerges that genes on the Y chromosome are not the only genes that define sex. Although the SRY gene is by far the most common and important, there are genes on chromosome 17, chromosome 11, chromosome 10, chromosome 6 and chromosome 3 that can, in exceptional circumstances, determine sex of various kinds. Those people can carry on a completely normal life.
Genetic sex is therefore no less important than chromosomal sex, but that is not the end of the story. There is also hormonal sex. Some people will produce
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hormones that will tend to feminise them, while others will be masculinised. That can happen in utero. Good evidence has emerged from Professor Waters of Monash University in Australia—he is now long retired—that suggests that some people who become transsexuals later in life have been exposed to an abnormal surge of either male or female hormones during pregnancy. That has caused them to have a different psychological sex from their genital sex. Psychological sex of course depends on brain function. That also varies greatly and is probably genetically determined, but so much exploration of that subject is being conducted that it is not fully understood.
Genetics is rapidly changing our understanding of where sex is determined. But to define it simply as genital, hormonal or, as the noble Lord, Lord Tebbit. seeks to do, as gonadal, is a travesty of what really happens.
Let me give one example. Janice was the most beautiful woman, who came to my unit some time: ago. She was six feet tall, and had been brought up as a woman. She had very well developed breasts, a perfect physique, and was actually XY. She did not find that out until she was 20. Some people with XY dysgenesis believe themselves to be female and relish being female. Others find that when they are actually male because of their chromosomes, they entirely change their view psychologically.
I should like to make the point made by Robert Jaffe, now retired, a very distinguished endocrinologist. He says in his chapter on reproductive medicine headed "Disorders of Sexual Development":
"It is crucial that the clinician who deals with patients with genital ambiguities be sensitive to the emotional as well as the physical needs of the patient. The patients frequently have a great deal of confusion and anxiety about their sexual roles Whereas genetic, gonadal, hormonal, and genital sex may be of prime importance to the physician, the gender identity (that is. how the patient views himself or herself) and the sex of rearing are paramount in determining the patient's sexual identity".
Robert Jaffe is effectively saying that there needs to be an understanding of the autonomy of the person concerned because, on the whole, they are the best people to judge how they feel about their sexuality. That is true of the 200 different mutations which could have affected Janice, my patient. There are so many different fluctuations in this broad spectrum of sexuality that I urge the House to be very cautious about defining it in terms of chromosomal, genital or any other simple definition. It simply is not medically just, and I am sure that it would produce bad law.
Lord Lucas: My Lords, I entirely support what the noble Lord, Lord Winston, has just said. Klinefelter's syndrome, in particular, seems to be quite common, occurring in one in 1,000 male births. We are not talking about a collection of extremely rare symptoms but about something which probably affects someone we know. I do not think there is any way in which we can sensibly define gender as a biological phenomenon. It is too much a continuum, much as we may like to think that it is separated. It just does not exist in that way.

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It makes the Minister's arguments quite attractive to say that someone's gender is what the law says it is and that is to be accepted. It will make for an interesting variant on the Scottish play—a man not of woman born—and there can be other explanations once the Bill is passed. It could perhaps explain what is going on in the words of "Colonel Bogey", when it was clear that the Third Reich was populated almost entirely by people afflicted by such symptoms.
The noble Lord knows that I sympathise with the amendment. What hurt me in the earlier amendments was the tearing apart of a marriage between a genetic man and a genetic woman just because of some legal fiction. That does offend me. But allowing a marriage between an emotional or a psychological man and a psychological woman who are apparently, in some aspects of their genetics, both of the same sex, is much more reasonable. I am happy to go down that route, particularly given the explanation of the noble Lord, Lord Winston. Tearing apart a real marriage seems much more serious than allowing the sort of marriages that will be allowed if the Bill is passed in its current form. I will therefore not be supporting the noble Lord, Lord Tebbit, in this amendment
Earl Ferrers: My Lords, to listen to the noble Lord, Lord Winston, is always a fascination. His knowledge and experience of these matters go way beyond anything any of us would normally know about or experience. However, I do not agree with him that sex is quite difficult to decide. Sex, on the whole, is pretty obvious. There may be a difficulty in the one thousandth or one millionth case, but on the whole there cannot be a real difficulty because it is obvious, is it not?
Lord Filkin: My Lords, it is novel to have the support of my noble friends Lord Turnberg and Lord Winston and the noble Lord, Lord Lucas, at the same time. It is also a privilege. I will speak briefly, because as the noble Lord, Lord Tebbit, and I spoke before we started this stage of the Bill, we have rehearsed these arguments in part before, although I am interested in some of the legal conundrums and challenges he posits for me today. 1 will look with interest at what he has said when I study Hansard and reflect on it.
At heart, the noble Lord knows that we will not agree because the system for recognition under the Bill in the acquired gender is not to be based on chromosomes or genitalia. It has been set on the tests that are set out on the face of the Bill, the three measures which we have debated time after time. Those do not turn on the genitalia or the exact chromosomes, nor should they, as my noble friends Lord Winston and Lord Turnberg have made clear so powerfully as part of their expert advice to us from their medical practice.
Sex and gender are not determined purely by chromosomes. Recognition, therefore, cannot depend purely on chromosomes. Similarly, having or lacking the right genitalia is not the nub of the Bill, and surgery
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should not be a precondition either. The noble Lord, Lord Tebbit, was with me on the last point, and I respect him for that.
The appropriate test is whether a person has taken decisive tests to live fully in the acquired gender and there is clear evidence of gender dysphoria after a proper process of inspection and testing over a number of years. We do not intend to compel transsexual people to undergo surgery, even though most wish to do so. The principle of legal recognition in the acquired gender will, subsequent to the issue of a gender recognition certificate, become the acquired gender for all purposes in law, as we have said before.
The amendment would have us define a person's gender in law in one way but define the person's gender for the purposes of marriage in another way. That goes against the central purpose of the Bill.
Marriage in our society is a status for two parties of the opposite gender in law. The Bill retains that principle, hence the basic nature of marriage as an institution. The amendment would mean that a person who had been recognised by the state as being of a changed gender in law after the process we have discussed would not be able to marry. That would not be compliant with our ECHR obligations and would also, I believe, be wrong in principle for reasons we have debated many times.
I am grateful for the clarity that my noble friends Lord Turnberg and Lord Winston brought to the complexity of the issues. When I was younger, I tended to think that the world was rather simple. As one becomes older, one learns that the world is more complex; it is clearly more complex medically, whereas I perhaps focused on its greater social complexity. By and large, I have found that that complexity enriches life rather than diminishes it.
With regard to what the noble Earl, Lord Ferrers, said, we are talking about only 5,000 people in Britain. That is why this is such a unique and specific set of circumstances. This is one of the smallest minorities in our society, yet the evidence we have had prior to the Bill and during our debates shows that for that very small minority this issue is very significant. I think we have an obligation in justice to help them live their life as they believe it to be. Therefore, while I have a lot of respect for the unflinching opposition of the noble Lord, Lord Tebbit, to the Bill, we will not be able to support the amendment for these reasons, and I hope he will not press it.
Lord Tebbit: My Lords, I thank the Minister for his reply. Let me make it absolutely plain that I would not be party to any legislation that forced a transsexual person to undergo surgical mutilation in order to benefit from the provisions of the Bill, if it becomes an Act of Parliament. That would be quite wrong and quite outrageous.
I am enormously flattered that this evening the Government had to bring in the heavy mob, in the shape of the noble Lord, Lord Winston, as well as the light cavalry in the shape of the noble Lord,

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Lord Turnberg—light cavalry is a formidable weapon when it is used effectively. Let us not forget that it can even undo heavy cavalry.
Both noble Lords perhaps suffered from the disadvantage of not having read every word of the proceedings at earlier stages of the Bill, although I would not wish to sentence either of them to that, as it comes under the heading of cruel and unjust punishment. I have never maintained that there is a single test of sex. In this amendment, I propose a triple test. The noble Lord, Lord Winston, said that that is not satisfactory. I am terribly tempted to ask him—particularly as I know that under the rules of the House he cannot speak again—exactly how he would set about defining sex. I acknowledge that he said that it is extremely difficult.
It is a wonder to me that the human race has got on quite well for so long without the benefit of all this doubt about the matter. We have had marriage for centuries, for thousands of years, and we have always had an understanding—initially informally but gradually more formally and eventually legislatively—that marriage is possible only between people of opposite sexes. Now the noble Lord, Lord Winston, tells us that it is almost impossible to distinguish whether people are of opposite sexes. It would seem to indicate that we have been making a massive mistake of some kind for thousands of years. I do not accept that that is so. He is over-elaborate in his cautions. We may be in danger of damaging society, and the institution of marriage, because of these doubts that spring from our better understanding of the fact that no simple theory of the structure of life is adequate.
There is a legal requirement to differentiate between the sexes. We should not throw aside all common sense and experience, and rest everything upon the judgment of a couple of medical practitioners and, even worse, registered psychologists, particularly when in recent weeks we have seen just how fallible expert opinion may be. We all revere expert opinion. We all revered the opinion of the medical expert on whose expert evidence many women were unjustly sentenced to gaol for murder. We would be wise to ask whether we should uncritically accept expert advice or whether we should accept common sense advice. If we had accepted the common sense view, those women would not have been sentenced to gaol. They were sentenced to gaol by a medical expert. In future we shall rest our conclusion upon whether a couple may marry upon just such expert opinion. I would rather rest upon common sense. It is something that we have done in this country for a very long time. It is why we have juries. It is why we do not always trust judges, who are very expert, to come to the right conclusion unless they are assisted by juries.
The choice here is between what some people think and what all of us can see. We should choose what all of us can see.
Lord Elton: My Lords, before the noble Lord sits down, will he explain to me a point that is probably clear to others? He has said that we should not rely
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upon expert witnesses, but who, except an expert witness can tell us whether a particular person answers to one or other of the descriptions in his amendment?
Lord Tebbit: My Lords, the descriptions are not terribly difficult. Two-thirds of them would be obvious if the marriage ceremony were to take place in a nudist encampment. The other one, the definition of the chromosomes, is not terribly expert. It ought to be within the ability and experience of an A-level student in biology, although with the degradation in standards in schools and universities it would probably now take a master's degree.
I wish to test the opinion of the House.
7.35 p.m.
On Question, Whether the said amendment (No. 86) shall be agreed to?
Their Lordships divided: Contents, 46; Not-Contents, 121.

Division No. 3

CONTENTS

Ashcroft, L.

Mancroft, L.

Attlee, E.

Marlesford, L.

Brookeborough, V.

Miller of Hendon, B.

Brougham and Vaux, L.

Montrose, D.

Byford, B.

Northesk, E.

Carlisle of Bucklow, L.

O'Cathain, B. [Teller]

Cope of Berkeley, L.

Palmer, L.

Dixon, L.

Plummer of St. Marylebone, L.

Erroll, E.

Roberts of Conwy, L.

Ferrers, E. [Teller]

Rotherwick, L.

Gardner of Parkes, B.

Saltoun of Abernethy, Ly.

Geddes, L.

Seccombe, B.

Glentoran, L.

Shaw of Northstead, L.

Home, E.

Soulsby of Swaffham Prior, L.

Hooper, B.

Southwell, Bp.

Jopling, L.

Stoddart of Swindon, L.

Kimball, L.

Strange, B.

Knight of Collingtree, B.

Swinfen, L.

Lindsay, E.

Taylor of Warwick, L.

Lofthouse of Pontefract, L.

Tebbit, L.

Luke, L.

Thomas of Gwydir, L.

Lyell, L.

Ullswater, V.

Maginnis of Drumglass, L.

Vinson, L.

NOT-CONTENTS

Acton, L.

Carlile of Berriew, L.

Addington, L.

Carter, L.

Alli, L.

Chandos, V.

Amos, B. (Lord President)

Clark of Windermere, L.

Andrews, B.

Clinton-Davis, L.

Archer of Sandwell, L.

Cohen of Pimlico, B.

Ashton of Upholland, B.

Corbett of Castle Vale, L.

Barker, B.

Crawley, B.

Bassam of Brighton, L.

David, B.

Beaumont of Whitley, L.

Davies of Coity, L.

Berkeley, L.

Davies of Oldham, L. [Teller]

Bernstein of Craigweil, L.

Dean of Thornton-le-Fylde, B.

Bhatia, L.

Desai, L.

Billingham, B.

Dubs, L.

Borrie, L.

Eatwell, L.

Bragg, L.

Elder, L.

Brooke of Alverthorpe, L.

Evans of Parkside, L.

Brookman, L.

Evans of Temple Guiting, L.

Burlison, L.

Farrington of Ribbleton, B.

Campbell-Savours, L.

Filkin, L.

625

Freyberg, L.

Nicol, B.

Fyfe of Fairfield, L.

Oakeshott of Seagrove Bay, L.

Gale, B.

Oxford, Bp.

Golding, B.

Parekh, L.

Goldsmith, L.

Patel, L.

Goodhart, L.

Pendry, L.

Gordon of Strathblane, L.

Phillips of Sudbury, L.

Gould of Pottemewton, B.

Pitkeathley, B.

Grabiner, L.

Radice, L.

Graham of Edmonton, L.

Ramsay of Cartvale, B.

Grantchester, L.

Randall of St. Budeaux, L.

Grocott, L. [Teller]

Rendell of Babergh, B.

Hamwee, B.

Roper, L.

Harris of Haringey, L.

Russell-Johnston, L.

Harrison, L.

Sainsbury of Turville, L.

Hayman, B.

Sawyer, L.

Hilton of Eggardon, B.

Scotland of Asthal, B.

Hogg of Cumbernauld, L.

Sharp of Guildford, B.

Hollis of Heigham, B.

Simon V.

Howells of St. Davids, B.

Smith of Clifton, L.

Howie of Troon, L.

Smith of Leigh, L.

Hughes of Woodside, L.

Symons of Vernham Dean, B.

Jones, L.

Taylor of Blackburn, L.

King of West Bromwich, L.

Thomas of Gresford, L.

Layard, L.

Thomas of Walliswood, B.

Lea of Crondall, L.

Thornton, B.

Lester of Herne Hill, L.

Tomlinson, L.

Livsey of Talgarth, L.

Tope, L.

Lockwood. B.

Tordoff, L.

Lucas, L.

Triesman, L.

Macdonald of Tradeston, L.

Turnberg, L.

McIntosh of Haringey, L.

Wallace of Saltaire, L.

MacKenzie of Culkein, L.

Walpole, L.

Mackenzie of Framwellgate, L.

Warner, L.

Maddock, B.

Warwick of Undercliffe, B.

Mallalieu, B.

Whitaker, B.

Mar and Kellie, E.

Whitty, L.

Massey of Darwen, B.

Wigoder, L.

Merlyn-Rees, L.

Winston, L.

Miller of Chilthorne Domer, B.

Worcester, Bp.

Resolved in the negative, and amendment disagreed to accordingly.
7.45 p.m.
Lord Filkin Lord Filkin moved Amendment No. 87:
Page 26, line 5, leave out from beginning to first "gender" in line 6 and insert "A clergyman is not obliged to solemnise the marriage of a person if the clergyman reasonably believes that the person's"
The noble Lord said: My Lords, I seek to be relatively crisp because this is not the first time that the Government have moved an amendment having sought to listen and respond to points made at earlier stages of a Bill.
Ministers of the Church of England and the Church in Wales are legally obliged to solemnise the marriages of parishioners. The Bill therefore provides a conscience clause so that ministers are freed from their legal obligation if one of the parties to the marriage has been recognised in the acquired gender. Although the relevant minister may not wish to solemnise the marriage, there are plenty of other opportunities for a person to get married and not be debarred of their legal rights.
There is wide support for the principle of a conscience clause, including from the transsexual community. Similar provision exists, for example, in relation to a person who seeks to remarry after having been divorced.
There was considerable discussion on this issue in Grand Committee. I accept the difficulty posed by the present version of the provision. If the person seeking to marry does not, or refuses to, tell the minister, a minister will not be in a position to know that a person has changed gender. Information about a person's change of gender is, for good reason, protected under the Bill.
We have listened to the arguments and consider that it is sensible to amend the schedule so that it provides protection for the conscience of a minister both where he or she knows that a person wishing to be married has been recognised in the acquired gender and where he or she has a reasonable belief that this is the case.
Were the noble Lord, Lord Chan, present, I would speak to his amendment in a little more detail. However, the succinct response regarding why we consider his amendment is inappropriate is that it is perfectly possible for an unreasonable belief to be held sincerely by a person. The noble Lord's amendment would therefore, if accepted, open up an injustice.
As I have said, we are open to addressing the concerns of the clergy regarding being able to act on their consciences on the matter. I have met with representatives of the Church of England and my officials have worked with them to formulate an acceptable form of words. I understand that the Church in Wales has examined the new wording of the schedule and is content with it.
This is the first opportunity to pay tribute to someone else who has been a redoubtable adversary of the Government on this Bill. If I am being polite, that means that I have not agreed with every word that the noble Baroness, Lady O'Cathain, has said. However, I recognise the passion and sincerity with which she has argued her case. Therefore, it is fitting to recognise that today is her birthday. I beg to move.
The Lord Bishop of Worcester: My Lords, I have not been able to participate in earlier discussions on the Bill. However, I consider that it is important to place one reflection on record. In doing so I pay tribute to both Ministers and staff in the relevant departments who have engaged in very careful and thorough discussions with staff of the Church of England and with bishops about this matter. I do not wish my remarks to be pressed to the point of a vote on the amendment, but I wish to place on record that I and many others feel considerable discomfort at those regrettably frequent occasions when we come to the House as agents of the country's religious communities and ask for our consciences to be protected from a proposed law.
We need to recognise that the clause, which is an attempt to balance some difficult matters, makes it possible for a person who will have been through a nightmarish life experience to endure the suspicion and then rejection of their request to marry. Some of the stories that have come our way and some of the people I know, who are the subjects of the Bill, are asking no more than that they should be protected from being suspected, inquired into and perhaps gossiped about. The clause, for all its right protection

627
of the consciences of some clergy, actually troubles the consciences of many others of us by what it puts certain people through in their request to be married.
I am not pressing the matter to a vote and I respect the attempts that the Government have made to produce a form of words which is acceptable. I also accept that if there is no conscience clause in the Bill there will be far stronger opposition to it than would otherwise be the case. However, I would not feel that I have done my job in the Chamber if I did not place on record the discomfort of a considerable number of people, when religious communities ask for their consciences to be protected from what society's conscience has come to think is right.
[Amendment No. 88, as an amendment to Amendment No. 87, not moved.]
On Question, amendment agreed to.
[Amendment No. 89 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 90:
Page 26. leave out lines 8 to 10 and insert —
(2) A clerk in Holy Orders of the Church in Wales is not obliged to permit the marriage of a person to be solemnised in the church or chapel of which the clerk is the minister if the clerk reasonably believes that the person's gender has become the acquired gender under that Act.""
[Amendments Nos. 91 and 91 A, as amendments to Amendment No. 90, not moved.]
On Question, Amendment No. 90 agreed to.
[Amendments Nos. 92 and 93 not moved.]
Schedule 5 [Benefits and pensions]:
[Amendments Nos. 94 and 95 not moved.]
Lord Carlile of Berriew Lord Carlile of Berriew moved Amendment No. 96:
Page 29, line 20.. at end insert—
"(2A) But sub-paragraphs (1) and (2) do not apply to a person who was born not less than 50 years before the appointed day and who is a woman immediately before the certificate is issued, and the rights of that person to a Category A retirement pension are to be decided as if the certificate had not been issued."
The noble Lord said: My Lords, my noble friend Lord Goodhart and I and all other noble Lords who have discussed the matter are grateful to the noble Baroness, Lady Hollis. She has been at great pains to try to explain to me and to others that the amendment is unnecessary. I think—and when I say "I think" it is my fault, not hers—that she has pointed out to me that no female to male transsexual will be disadvantaged in terms of his pension as a result of obtaining a gender recognition certificate; or, at least they will not be disadvantaged financially if they fall within a certain age group. That is the subject of the amendment.
The issue was drawn to my attention by Mark Rees, a female to male transsexual who is well known because he brought one of the cases that went to the European Court and because he wrote an excellent autobiography about his experiences as a person who has had to endure the whole process and live with it for many years. He wrote to me to point out that people of his age—that is, people who are now at the age
628
when, had they remained of female legal status, they would have retired or would have been about to retire and receive their pension—find themselves potentially disadvantaged. It is a simple point. The Bill helpfully gives them the status of the gender which they have acquired once they obtain the certificate. A female to male transsexual, therefore, receives a pension at 65. A male to female transsexual receives a pension at 60. In legal terms that is as it should be. But there is an anomaly.
A person like Mr Rees will have gone through the process of law, which included going to the European Court of Human Rights; of lobbying, including a Private Member's Bill, which I presented in another place with the assistance of Mr Rees many years ago; and various other experiences that led him to the conclusion that he was never going to acquire the legal status of a man, which he is pleased to see that the Bill will give him. Of course he openly welcomes the Bill, almost without reservation. But it took a long time to reach the present position and successive governments made it clear to him that he was not going to reach it. So, he was entitled to assume that he would receive a pension at 60. There are possibly a dozen people who fall into that anomalous group. I suggest to your Lordships that we need to be sure that those people will not be disadvantaged in any way. We need to be sure that, even if they do not make themselves available for work because of their reasonable expectation of what was going to happen to them regarding their pensions, they will not find themselves disadvantaged.
Amendment No. 96, for which I do not claim anything except simplicity, is an attempt to put that issue in simple terms and to find a solution for it. I strongly suspect that the comments we will hear from the noble Baroness, Lady Hollis, in response to this short debate will be a little more complex than the amendment. When she responds I should be grateful if she would make it absolutely clear—since it may become a Pepper v Hart point—that there is no risk of the people to whom I refer being disadvantaged in any way. If there is a risk, surely the way to deal with it is by an amendment such as this, which would remove all doubt. I beg to move.
Lord Monson: My Lords, when we debated the Bill last week the noble Lord, Lord Filkin, made it clear that once an individual changed sex or acquired a different gender—however one puts it—they would henceforth be entitled to all the advantages and disadvantages, fiscal or otherwise, associated with that newly acquired gender. The amendment would allow a woman who has legally become a man to have his cake and eat it to some extent.
I thought from what the noble Lord, Lord Filkin, said last week that that was contrary to the Government's purpose, but the noble Lord, Lord Carlile, suggests otherwise. He suggests that his amendment sets out in clearer form what the Government intended all along. That totally puzzles me because it seems inconsistent with what the Government have said. If someone who

629
has become a man draws his state pension at 60, he is not being treated the same as all other men who have been men all the time.
Moreover, the right of women to receive the state pension five years earlier than men is an unjustifiable anomaly, as I believe all political parties now agree. I stand open to correction, but I believe the anomaly is being phased out over a period of years and not before time. In a sense, therefore, the amendment is retrograde.
If I am mistaken and that is what the Government intended all along, there is little I can do about it, but I should be grateful for an explanation from the Government Front Bench.
8 p.m.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): My Lords, the amendment focuses on the state pension provision. The noble Lord, Lord Carlile, supported by the noble Lord, Lord Goodhart, proposes that some individuals who gain a gender recognition certificate should receive their state pension according to their acquired gender but that others should be given special status and receive their state pension according to their birth gender. Like the noble Lord, Lord Monson, I believe that that runs entirely counter to the principle of the Bill.
Last Thursday, your Lordships' House decided that the marriage will end if one partner changes gender and wants to obtain a full gender recognition certificate. The amendment could not fit in with that decision. The marriage comes to an end and the consequence is that each partner must now be treated as an individual in his or her respective gender.
Let me focus on the fundamental difficulties which I believe are raised by the amendment, which is to allow category A pension provisions—the basic £77 state pension—for female to male transsexual people over the age of 50. The noble Lords feel that because such people have made financial preparations for retirement based on the expectation that they would be retiring at the age appropriate for women, we should respect and honour that by virtue of the amendment.
I want to make four brief points because the noble Lord, Lord Monson, anticipated most of my argument. First, if female to male transsexual people over 50 who gain legal recognition of their acquired gender retain entitlement to the category A pension— the basic £77 state pension—as though they were still women, that clearly discriminates against those legal males who have not changed gender but would like the same right. We would be creating a special group of men who would be treated differently because of the fact they were once women, despite the fact that they want to be recognised as men. That is unfair and could, I am led to believe, be open to legal challenge. Obviously, I would defer to the weight of legal opinion on the Bench.
Secondly, if female to male transsexual people over 50 are to be treated for state pension purposes as remaining in their birth gender, it would be legally difficult not to
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treat the opposite group of transsexuals—in fact the majority; those who are male to female—in their birth gender for pension purposes also. They, too, presumably on the noble Lord's argument, have been planning their financial retirement as though they were going to retire at 65 while in their new gender they would be entitled to claim their basic state pension at 60. I emphasise that 80 per cent—three-quarters or more—of transsexual people move from male to female. In other words, if we are to be fair across the category of transsexual people, three-quarters would be disadvantaged for the one-quarter who might on this account gain. Obviously, one cannot distinguish only female to male; I would argue that one would have to distinguish similarly male to female. I do not believe that that would be reasonable.
The third point, in practical terms, is the financial situation mentioned by the noble Lord, Lord Carlile. Whether someone is male or female between the ages of 60, his or her financial situation can be virtually identical. Anyone over the age of 60—male or female—subject to income, is entitled to an income-related benefit which is pension credit. It used to be called MIG. That is important. It is worth £102 to the individual however much towards that £102 he or she brings in the form of basic state pension. In other words, if as a female she has a basic state pension in her own right of £50, £60, £70 or £77, MIG—pension credit—would top it up to £102. But if as a male by either birth or by acquired gender he does not yet have an entitlement to the basic state pension, he none the less, subject to income, can also get pension credit of £102. Therefore, in practice a female to male transsexual, a male to female transsexual, a birth male and a birth female will all receive the same sum of money between the ages of 60 to 65. subject to income, of £102 a week, whether there had been a change of gender or not.
Finally, from 2010 we begin to equalise the retirement basic state pension age for both men and women alike. Not only will we be reducing financial difference in terms of eligibility for basic state pension between men and women, we will be reducing legal entitlement too,
I have made four points. First, that it is not fair to men in their birth gender if some men in their new acquired gender have a different entitlement. Secondly, in all logic one would have to extend the same principle to male to female transsexuals and therefore the majority of transsexuals could lose financially in this package if one takes the argument of the noble Lord. Thirdly, eligibility for income-related benefits is the same irrespective of gender acquired or at birth between the ages of 60 and 65. Finally, we are equalising gender state retirement ages. I hope that with those four brief points, the noble Lord, Lord Carlile, will feel able to withdraw his amendment.
Lord Carlile of Berriew: My Lords, I am grateful to the Minister for her response. Had we achieved equalisation of pension ages—a laudable aim which I and my party support—I would not be moving the amendment. I recognise the validity of that point—we just have not got there yet.

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The points on discrimination and legitimate expectation illustrate the dilemma we are in. We have a conflict between two concepts. On the one hand, we have the legitimate expectation in the example I gave of Mr Rees who was led by the Government, particularly by their hostility until recently into recognising he was a man, to expect that he would receive his pension not subject to income measurement at the age of 60. On the other hand, others might conceivably claim that they were discriminated against for the reasons the noble Baroness gave.
I do not accept for one moment that what has been said is a satisfactory answer for that very small number of people because a non-income-related benefit will be replaced by an income-related benefit in some cases. Among that small group, there will be people who have occupational pensions who will without doubt be losers. I find that unsatisfactory.
Having said that, in recent days I have spoken to and corresponded with people who are in this position. We all recognise that the Bill is a significant step forward in the law. It would be inappropriate to divide the House over the issue, but it is appropriate to register disappointment at the outcome of this short debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 6 [Sex discrimination]:
Lord Goodhart Lord Goodhart moved Amendment No. 97:
Page 34, line 30, at end insert—
"1A In section 2A (discrimination on the grounds of gender reassignment)—

(a) for paragraphs (a), (b) and (c) of subsection (I) substitute "any provision of Parts 2 or 3"; and

(b) in subsection (1), insert at the end "or intends to acquire or has acquired a gender recognition certificate under the Gender Recognition Act 2004.""

The noble Lord said: My Lords, the Sex Discrimination (Gender Reassignment) Regulations 1999 introduced a number of new sections into the Sex Discrimination Act 1975. Their purpose was to extend the protection of the 1975 Act to transsexual people undergoing gender reassignment or who had undergone or intended to undergo it. The new sections did not extend the protection of transsexuals to the full width of the Act.
Section 2A, introduced by the 1999 regulations, extended the Sex Discrimination Act to cover transsexual people in relation to discrimination over employment under Part II of the Act, but did not extend protection against discrimination to the provision of goods and services under Part III.
Amendment No. 97 serves two purposes. First, it extends the rights of people undergoing or having undergone gender reassignment by forbidding discrimination in the provision of goods and services. Secondly, it recognises that male and female transsexual people will be entitled to the protection of the Sex Discrimination Act in their legal status as women. But discrimination may be specifically against male-to-female transsexuals and not against women generally; so there is a lacuna.
We see no adequate reason why the anti-discrimination legislation should be limited to discrimination in employment under Part II of the 1975 Act and not to discrimination in the provisions of goods and services under Part III of the Act.
The amendment's second purpose is to extend the protection expressly to transsexual people who have acquired, or intend to acquire, a gender recognition certificate. Gender reassignment, as defined in subsection (3) of Section 2A of the 1975 Act, involves medical treatment. That can, of course, be surgery, but it could also be hormone treatment without surgery. The majority of people who seek or obtain a gender recognition certificate will, as part of the process, undergo medical treatment of some kind, but it is not in fact a requirement of the Gender Recognilion Bill that they should do so.
It seems pointless for a person who has obtained a gender recognition certificate to have to produce evidence of medical treatment to be able to bring a complaint about discrimination when the very existence of the certificate shows that they are people who are intended to be protected. The absence of any specific reference to people who have received gender recognition certificates may cause particular difficulties where the applicant has changed gender under the law of an approved foreign country and evidence of medical treatment would have to be obtained from abroad, which might present difficulties and perhaps involve the translation of documents.
Not only should the existing protection be extended to include Part III as well as Part II of the 1975 Act, but it should also involve a specific reference in Section 2A to those who have obtained gender recognition certificates, as well as to those who have undergone or may intend to undergo gender reassignment. 1 beg to move.
Lord Filkin: My Lords, as will be apparent from the exposition of the noble Lord, Lord Goodhead —
Lord Goodhart: Goodhart.
Lord Filkin: I am so sorry.
Lord Carlile of Berriew: He has a good head as well.
Lord Filkin: He does indeed. These issues are complicated. The thrust of our response is not that there are no issues worthy of study here, but that because of their complexity this is not the best place or time to do so and there will be another opportunity relatively shortly. I shall speak on that in a little more detail.
As the House knows, once gender recognition had been granted, an individual would be able to claim all the rights appropriate to that gender. The person would therefore have protection in the acquired gender under existing sex discrimination law. However, fundamentally, this Bill is about legal recognition in the acquired gender and not about the totality of anti-discrimination law.

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Anti-discrimination protection for transsexual people as transsexuals already exists in the areas of employment and vocational training. That has been set out in the Sex Discrimination Act since 1999. Protection is provided on the basis of intending to undergo, undergoing or having undergone gender reassignment. There are a number of exceptions relating to genuine occupational qualifications where the circumstances are specified in which discrimination on the grounds of gender reassignment is not unlawful.
Some of the exceptions apply only to a person who intends to undergo or is undergoing gender reassignment and not to a person who has undergone gender reassignment. However, the Act does not contain a definition of the point at which a person is to be regarded as having undergone gender reassignment. Therefore, the creation of a new legal status in this Bill gives us the opportunity to provide such a definition.
First, the Bill amends the Sex Discrimination Act so that the genuine occupational qualifications allowing discrimination on the grounds of gender reassignment will not apply in the case of people who have been legally recognised in their acquired gender. The effect would be that, while there would be occasions when it was legitimate to discriminate against a transsexual man or woman on the grounds of his or her acquired gender, it would no longer be permissible to discriminate against them in employment matters on the grounds that they were previously of another gender, unless the separate exception for organised religions under Section 19 is applicable.
However, a further extension of the protection against discrimination into the realm of goods and services would require an evaluation by the Government of the nature and extent of the problems faced by transsexual people in those areas. We would need to consider the implications and practicalities of extending the law, including the nature of new burdens on service providers in all sectors, including education, to which the amendment extends, and the necessity for exceptions in any particular circumstances. And, as has been the case in relation to this Bill, we would also want to have proper consultation with stakeholders and those affected.
We firmly believe that if that is to be done—we have heard the arguments that have been made today—it should be done only once a recognition system is in place and once the impact of recognition in the acquired gender has been evaluated. That would provide better evidence of the nature of the problems. For the reasons that I have touched on, we do not think it right suddenly to do so as part of this Bill.
However, I do not believe that that is an argument for unreasonable delay. On 5 November 2003, the European Commission published a draft directive on sex discrimination in the field of goods and services. Negotiations on that directive will provide a suitable forum in which discussions can take place with our European partners and the Commission. Those discussions will provide a far broader, European-wide discussion of the issue, including the possible need for exemptions and legal protection against discrimination.
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Taking action in this Bill would risk the possibility of having to revisit the same area of anti-discrimination law once the directive was finalised. It would be unhelpful if we were to legislate now in haste and then find, as I believe would almost inevitably be the case, in a relatively few years' time that we had to legislate again because a significant number of burdens were placed on service providers to bring themselves into compliance as a consequence. If they were required to do so twice, I believe that that would be unreasonable.
Having said all that, we hear the arguments surrounding the issues most clearly. They will be issues for ongoing study within government and will inform our discussions with the European Commission and the relevant parts of the Council of Ministers on these matters. We shall look to amass evidence and experience as part of that process.
8.15 p.m.
Lord Goodhart: My Lords, naturally, I am somewhat disappointed by that reply, particularly in relation to the part of the amendment which proposes that there should be a specific reference in subsection (3) of Section 2A not only to those who have undergone or are undergoing gender reassignment but also to those who have obtained a gender recognition certificate. That seems to me to short-circuit some of the evidence that it would be necessary to produce without in any way taking decisions about the extension of the coverage of the anti-discrimination laws.
However, there is obviously a considerable degree of comfort in the knowledge that the Government are planning to consider this matter in the wider context of the proposed European directive. In those circumstances, it would obviously be inappropriate for us to push this issue to a Division. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 98:
Page 35, line 9, at end insert—
"(5) A person—

(a) whose gender has become the acquired gender under the Gender Recognition Act 2004, or

(b) who will not consent to the disclosure of any entry relating to him contained in the Gender Recognition Register,

is to be regarded as a person who is undergoing or has undergone gender reassignment for the purposes of subsections (3) and (4).""

The noble Baroness said: My Lords, in moving this amendment I shall also speak to Amendment No. 101 in my name. They are identical except that Amendment No. 98 refers to Great Britain and the other to Northern Ireland.
The purpose of these amendments is to allow a Church to refuse employment to a person who will not consent to the disclosure of an entry relating to them on the gender recognition register. Any employer will say that getting the right person for the job is essential.

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In any business if the right person is employed it goes brilliantly, but if the wrong person is employed it becomes a disaster. It can have a very negative effect on the whole organisation if someone is employed who does not share the basic values, or what we term in business "the ethos of the business".
If that is true in a secular organisation how much more true it is in a religious organisation. In a religious group the staff are bound together by very strong beliefs on fundamental issues and shared values. These are beliefs not about mundane matters such as management style or marketing techniques, but about human nature, right and wrong and the nature of truth.
Churches teaches us that our sex is decided by God. They also teach that your sex is a matter of absolute truth, not personal choice. I ask, how could a Church employ a transsexual who effectively believes that God got his sex wrong? How can they employ a person who, in their eyes, lives a lie by impersonating the opposite sex?
The Government know that it is wrong to force this on religious groups. In 1999 they enshrined the right of religious bodies to refuse to employ transsexuals. This is found in Section 19 of the Sex Discrimination Act. Yet only five years later we are severely limiting the ability of Churches to exercise that right by taking away their right to know the birth sex of the candidate for employment. If a job applicant conceals his or her transsexualism religious employers will have no way of knowing it.
At present they can resolve any doubts they may have by requesting sight of the birth certificate. Either the person will supply it, in which case it will declare their true sex, or they will decline it in which case they can be turned down on the basis of bad faith.
But this Bill takes that option away. It would be pointless to ask for a birth certificate to verify their sex because it will simply confirm the applicant's version as to his or her sex. As a way of establishing a person's true biological sex, birth certificates will in effect become useless.
Of course, the Church can ask a direction question: have you changed sex? Some transsexuals will be honest and answer truthfully, but some will not. They may have a deep-seated urge to conceal their true sex. They may have no compunction at all about saying, "No, I have not changed sex. I have always been what I am now". The Church may then feel that it has no choice but to believe them. It might not emerge that they have been deceived until months or years later.
Why do the Government not seem to care about this possibility? Why do they recognise that it is changing the nature of the relationship between the Church and its potential employees?
I ask the Minister three questions. First, does he understand the dilemma that Churches face through not knowing the true sex of job applicants? Secondly, what is a Church supposed to do about it? Thirdly, does the Minister agree that it would be offensive to
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Churches, mosques or temples or other religious bodies who are employers, to discover that they had unwittingly employed a transsexual?
The human rights barrister, Paul Diamond, issued a legal opinion about this Bill on 26 January. He believes that the Bill may breach the freedom of religion under Article 9 of the European Convention. He put it like this:
"It is rather like saying to a Muslim school: 'We don't know if the food given to your children has pork in it. Further, you are not allowed to inquire, or check whether this is the case". Thus the choice for the Muslim is not to eat. Or to say to a Jewish person, that you should become a vegetarian as you cannot secure Kosher meat. The very posing of the question illuminates the clear violation of religious rights".
If we say that we respect people's religious opinions we must take steps to avoid this scenario. This Bill must be amended to protect the existing rights of Church employers. I beg to move.
Lord Filkin: My Lords, the amendments seek to ensure that a person who has acquired a new gender under the Bill or who will not consent to disclosure of their entry in the gender recognition register is covered by the exemptions in Section 19(3) and (4) of the Sex Discrimination Act. Those subsections allow discrimination against those who are undergoing or have undergone gender reassignment in relation to employment, authorisation or qualification for the purposes of an organised religion, provided that this is done to comply with a religious doctrine or to avoid offence to the religious susceptibilities of a significant number of the religion's followers.
I am happy to be able to reassure the noble Baroness and the House that no addition to Section 19 is needed, as the existing provisions already do all that is needed.
Where a person is refused employment, or an authorisation, or qualification, this is unlawful under Section 2A of the Sex Discrimination Act only if it is done,
"on the ground that the person intends to undergo, is undergoing or has undergone gender reassignment".
Whether or not that is the case is a question of fact for the tribunal, were one to be engaged to decide on the case. What is important to note is that wherever it is found that an organised religion has discriminated on this ground they are entitled in principle to seek to claim the benefit of the exemption in Section 19.
I shall deal with the concerns which underlie this part of the amendments. The amendments suppose that a person who has acquired a new gender under the Bill applies for employment or ordination for the purposes of an organised religion but refuses to consent to the register being consulted. In this situation, if the Church refuses employment or ordination, it is very likely that the discrimination would be held to have been on the ground that the person has undergone gender reassignment. The Church will therefore be entitled to seek to rely on the relevant part of Section 19.
The Church will succeed under Section 19 only if it can show that the restrictions imposed satisfy the tests laid down in Section 19. In other words, the Church will have to show that the restrictions were imposed to

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comply with a religious doctrine or to avoid offending the religious susceptibilities of a significant number of the religion's followers, which is, I think, the thrust of the noble Baroness's amendment. The fact that the Church had not seen the gender recognition register would not prevent it from seeking to rely on this examination.
Amendment No. 99 seeks to insert into the Bill an exemption covering ordination and appointment. We have already said in Grand Committee that the question of whether the Church may discriminate against transsexual people in these respects is one that must be answered in the context of our EU obligations and specifically the Equal Treatment Directive that must be implemented by October 2005. We have clearly also signalled that we would be happy to continue discussions with the Church about that issue.
Baroness O'Cathain: My Lords, I thank the noble Lord for giving way, but we are not talking about Amendment No. 99, which is the amendment of the right reverend Prelate the Bishop of Winchester and is not grouped with my amendments. Unfortunately, the right reverend Prelate is not present.
Lord Filkin: My Lords, I apologise. I will say no more on that. Amendments Nos. 100 and 102 would add a new Section 33—
Noble Lords: Oh!
Baroness O'Cathain: My Lords, I am sorry to do this to the noble Lord especially when he has been so gracious as to wish me a happy birthday, for which I thank him. The actual amendments I am speaking to are Amendments Nos. 98 and 101. They are very narrow ones and are identical. Amendment No. 98 applies to Great Britain and Amendment No. 101 applies to Northern Ireland.
Lord Filkin: My Lords, I am most grateful to the noble Baroness for her help. I shall seek to find any relationship to Amendment No. 101 in my notes.
8.30 p.m.
Baroness O'Cathain: My Lords, perhaps I can help the Minister. I do not think it matters because both amendments refer to the same point. Amendment No. 98 applies to Great Britain and Amendment No. 101 to Northern Ireland, but the wording is identical.
Lord Filkin: My Lords, yet again the noble Baroness has fooled me. Clearly, I have answered the point and I shall say no more.
Baroness O'Cathain: My Lords, I thank the Minister, in particular for his gracious handling of the amendment. He said that my amendment is unnecessary because Section 19 already allows the Church to refuse to employ any transsexual whether or not they have a gender recognition certificate.
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The point is that Section 19 should cover all transsexuals. That needs to be made explicit on the face of the Bill to avoid Churches having to foot the bill for litigation on this point. We also need to avoid rogue court rulings. Schedule 6 states that a person with a gender recognition certificate is not a transsexual for the purposes of Section 7A of the Sex Discrimination Act. We do not want an employment tribunal reading that across and saying that the same applies to Section 19. That is the purpose of my amendment. Although I would love to say that the Minister has given me great comfort, I fear that he thinks that Section 19 would be adequate; I fear that it will not be.
Lord Filkin: My Lords, before the noble Baroness sits down perhaps I may say that I shall study yet again what she has said to see if there is any further engagement we can have on this before Third Reading to identify whether there is a significant difference between us on policy or law, or whether we have not been clear enough about the nature of the issues.
Baroness O'Cathain: My Lords, I am grateful to the Minister. Certainly, I shall take him up on his offer. Therefore, I have great pleasure in begging leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Bishop of Southwell The Lord Bishop of Southwell moved Amendment No. 99:
Page 35, line 9, at end insert—
"In section 19 (ministers of religion etc), insert at the end—
"(5) Without prejudice to subsections (3) and (4) above, in relation to discrimination falling within section 2A. this Part does not apply to any thing done for the purpose of an organised religion in relation to—

(a) the provision of training for ministry or service;

(b) the conferring of any such authorisation or qualification as is referred to in section 13(1) in relation to carrying on ministry or service;

(c) the appointment to any office or post involving ministryor service;

in the context of that religion if it satisfied the requirements of subsection (6). (6) The requirements specified in subsection (5)(c) are that the thing in question was done—

(a) on the grounds of the doctrines of the religion or strongly held religious convictions held by a significant number of the religion's followers; or

(b) in compliance with the normal rules or practices of the religion applying generally to persons seeking training, an authorisation or qualification to minister or serve in that religion;

or that, in view of the doctrines, religious convictions or other rules or practices referred to in paragraph (a), the person concerned failed to satisfy a requirement for the relevant matter referred to in subsection (5) or the person doing the thing in question was not satisfied, and in the circumstances it was reasonable for him not to be satisfied, that that person met the requirement. (7) In subsections (5) and (6) above, any reference to the doing of any thing includes a reference to declining or omitting to do any thing.""

The right reverend Prelate said: My Lords, in the unavoidable absence of my noble friend the right reverend Prelate the Bishop of Winchester, I rise to move Amendment No. 99 standing in his name. In substance it is identical to the amendment he moved in Grand Committee and reflects concerns which he raised at Second Reading.
The amendment is intended to safeguard members of churches and other faith communities against the risk of liability under the Sex Discrimination Act 1975 when they act on the basis of doctrines of their religion or the strongly held convictions of a significant number of the followers of their religion in relation to selection and training for ordained or recognised, authorised work or service.
I emphasise that the amendment does not seek a blanket exemption to discriminate in matters of employment, let alone membership. We shall come to those issues later where, indeed, the Church of England seeks no such exemption. Our concern is with public representative office, which ordination—and perhaps a limited number of other roles—conveys, and where we believe a genuine and determining occupational requirement could be demonstrated.
On a number of occasions during the passage of the Bill, reference has been made to the need to balance the proper rights of transsexual people with the proper rights of other parties. Section 13 of the Human Rights Act requires courts involved in determining human rights to have particular regard to the exercise by the religious organisation of the convention right to freedom of thought, conscience and religion.
As we move into a more overtly multicultural and multiracial Britain, the need to recognise and respect the reasonable rights of minorities will become progressively more evident in a whole range of issues. The case for appropriate safeguards in this matter was recognised by the Minister when he spoke in Grand Committee. He acknowledged that as well as providing rights for transsexual people, the Bill protects the rights and freedoms of others where appropriate. The Minister went on to say that these protections would be best provided not in the Bill itself but in the regulations that will need to be introduced to give effect to the equal treatment directive, which must be implemented by the United Kingdom by October 2005.
I can see the case for dealing with all these matters together in the round, in the totality of the situation, as the Minister put it in Committee. Will the Minister confirm that the Government recognise the potential rights of religious communities and minorities in relation to the appointment of transsexual people to representative public office or equivalent roles? Whether this is dealt with in the Bill, as the amendment proposes, or in regulations is of secondary concern.
We would prefer it to be in the Bill, both as a guarantee of this recognition, but also because, as things stand, there is likely to be a gap between the passing into law of the Bill—the Minister mentioned April 2005—and the new regulations, which must come in by October 2005. As I understand it, there will
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be no legal protection for Churches and religious groups in that gap, which is a cause of considerable concern. If the matter is to be dealt with by regulations, can the Minister assure the House that the gap between the enactment of the Bill and the regulations will be kept to a minimum? Might it even be the case that the equal treatment directive could be implemented in two stages, the first dealing with transsexual and other areas relating to sexual discrimination legislation? Perhaps that might be considered.
Let me be clear. This amendment has a limited, but vital scope. I seek the Minister's assurance that the strictly limited concerns that are outlined here are shared by the Government and will be recognised by appropriate action without any avoidable delay. I beg to move.
Lord Filkin: My Lords, noble Lords will be relieved that I will not speak at great length on this, but not because the issues are not important. We have already signalled our position. Amendment No. 99 seeks to insert into the Bill an exemption covering ordination appointments. We have already said at Grand Committee that the question of whether the Church may discriminate against transsexual people in these respects is one that must be answered in the context of our EU obligations, specifically the equal treatment directive, which must be implemented by October 2005.
I hope, and I have some confidence, that it has been pretty clear from how we have handled this Bill so far that where it is possible to accommodate the profoundly held beliefs of religious organisations, without infringing the human rights of transsexuals, we have been open to discussions and efforts to do so. I make that clear, with that caveat, without that being a total blank cheque, that we will continue those discussions in the nature of the equal treatment directive.
In so far as the present position in law is concerned, office holders are not covered under the existing employment protection that is accorded to transsexual people. This will change with the implementation of the equal treatment directive, but this Bill will itself make no change to the existing position. That is why we have said before, and we say again today, that the discussions that have taken place with the Church will continue in preparation for that implementation. I hope that the right reverend Prelate will feel minded to withdraw his amendment.
The Lord Bishop of Southwell: My Lords, I am grateful to the Minister, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 100:
Page 35, line 9, at end insert—
"After section 33 (exception for political parties), insert—
"33A EXCEPTION FOR RELIGIOUS BODIES

(1) This section applies to a body which—

(a) exists for the purposes of organised religion, or

(b) has as its main object the promotion of religion.

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(2) Sections 29(1) and 30 shall not be construed as rendering unlawful—

(a) the restriction of membership of any such body to persons who do not fall within subsection (3) (disregarding any minor exceptions), or

(b) the provision of benefits, facilities or services only to persons who do not fall within subsection (3) (disregarding any minor exceptions),

if the limitation is imposed tocomply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers.

(3) This subsection applies to persons—

(a) whose gender has become the acquired gender under the Gender Recognition Act 2004, or

(b) who will not consent to the disclosure of any entry relating to them contained in the Gender Recognition Register.""

The noble Baroness said: My Lords, I rise to speak to Amendments Nos. 100, 102 and 108. Again, we have a situation like the last two amendments that I moved. Amendments Nos. 100 and 102 are identical: Amendment No. 100 applies to Great Britain and Amendment No. 102 to Northern Ireland.
The purpose of Amendments Nos. 100 and 102 is to prevent litigation under the Sex Discrimination Act, which forces religious bodies to allow those with gender recognition certificates into membership or to use the facilities provided. The purpose of Amendment No. 108 is to query why the Government are willing to give wide exemptions to sporting bodies, but are reluctant to make concessions for religious groups. The grouping is a bit crazy, but I hope that it will be all right.
Amendments Nos. 100 and 102 deal with what one might call the "Bill Parry scenario". Mr Parry has been mentioned several times, at Second Reading, in Grand Committee and on the first day of Report. He was a Congregationalist minister, a husband and the father of three. A few years ago, he decided to change sex. He started attending the Maesteg Christian Centre. The Church believed that it was morally wrong to try to change sex, but, for two years, he attended none the less.
Mr Parry would not accept the Church's teaching on transsexualism, and matters came to a head when the Church refused to allow him to attend the ladies' prayer meeting and would not let him use the ladies' toilet. Mr Parry is an activist and has used the law more than once against people who would not treat him as a woman. In July 2000, he won a £6,000 out-of-court settlement with a college. He claimed that it had discriminated against him, as he was on its beauty therapy course. Three months later, he forced the Welsh equivalent of the Women's Institute to change its membership policy. So, it was no surprise when, in 2002, he sued Maesteg Christian Centre over access to the ladies' fellowship and use of the ladies' toilet.
The Church engaged a barrister and successfully resisted Mr Parry's legal action, but the judge expressed strong sympathy with Mr Parry and criticised the Church. Even though the Church won the action, the judge ordered it to pay some of its legal
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costs. Sadly, if the Bill had been in force, the judge might have found a way of giving Mr Parry what he wanted. There is plenty of scope for that in the Bill. The Bill says that a man who holds a gender recognition certificate is to be treated in law as a woman. Clause 9 says that he is a woman for all purposes. That means that he is entitled to sue for discrimination as a woman under the Sex Discrimination Act.
The Government are creating a new legal landscape, in which the sort of action pursued by Mr Parry could succeed. After all, what legal justification could a Church have for refusing to allow a woman to use the women's toilets? Even if a legal action failed, Churches would have to put up with the distress and might even have to foot the bill. We must put protections against that into the Bill.
Amendment No. 108 simply gives me the opportunity to point out the inconsistency between the Government's treatment of sports bodies and their treatment of religious bodies. I feel sure that the Minister will have had a sense déjà vu, when he saw the wording of Amendment No. 108. As noble Lords will have noticed, it mirrors closely the wording of government Amendment No. 107, exempting sporting bodies.
The Government are willing to make broad, far-reaching exemptions for sports bodies. I support that, and I think that it is brilliant. However, they have not yet brought forth anything similar for religious bodies. The Minister will say that Churches can already discriminate and that there is no need for the amendment. I would nearly bet on that. However, in Grand Committee on 14 January, he said that there was no need for amendments to protect sport; then, he changed his mind. I ask him gently to change his mind about protecting religious bodies. I beg to move.
The Lord Bishop of Worcester: My Lords, I feel obliged to reiterate more strongly the point that I made earlier today. As we debate the matters, a picture is being built up in which organised religion always takes one view of the question. What will be the situation of the Government in the discussions, when they are faced with people who purport to represent the views of a religious body but actually represent only part of that body, in which there are others who hold the opposite point of view with equal force?
I do not know whether it is known in the House, but when the House of Bishops of the Church of England discussed this subject, it was clear that we had to acknowledge the existence in the Church of England of two equally strongly held doctrinal positions on the matter. I shudder at the thought of government having to adjudicate on the doctrinal position of an organised religion. I recognise that the words, "religious susceptibilities of a significant number of its followers", are already enshrined in statute. But they are highly dangerous. When I hold a religious sensibility, to me a significant number is one. I do not think that that is true of other people's religious convictions, but I notice that other people behave in similar ways.

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For the Government to confer on religious bodies the right to create membership qualifications that go against the convictions of the society in which those religions function, and to be protected when they do so, is a dangerous precedent. I urge the Minister to bear in mind in the conversations that will proceed in the coming months that, like gender, organised religion is a complex matter. The convictions and doctrines of organised religion are also complex. I am well aware of a significant number of members of the Church of England who find the collection of exemptions along these lines deeply offensive.
8.45 p.m.
Lord Elton: My Lords, I shall listen to the Minister's reply with great interest, and shall do so in part in the light of what the right reverend Prelate has just said. What my noble friend has proposed is permissive, not obligatory. It is available for that section of any belief that holds her view without compelling any section that does not hold her view. To that extent, I feel that the objection of the right reverend Prelate is without much force.
I want to return to something that the right reverend Prelate said earlier when he expressed his discomfort in general—not in particular terms—at the position taken by my noble friend. Had it been expressed in particular terms, I would have been less concerned by it. He said that he was very concerned when the Church asked for shelter from the consequences of disagreeing with something with which the majority of society had come to a conclusion. I always thought that it was the function of Churches to do exactly that—to stand firm when the majority of society got things wrong. I am not saying that society got it wrong in this respect, as I see the right reverend Prelate quivering on the edge of intervening. I am referring to the general principle. I am thinking of the Church in Germany in the 1930s and early 1940s, and indeed, of our Churches during the civil war. It is plainly the duty of a religious body—especially a Church, and my own Church, in particular—to stand by principles when the majority of society has got them wrong, as they now have in many respects. I am not speaking about the Bill when I say that.
The Lord Bishop of Worcester: My Lords, perhaps I may assist the noble Lord. It might help if I say what my intervention would have been, rather than what he thought it might have been.
My concern is not that the Church should comply with everything that society says. It cannot be said that I advocate that position. My concern is that the Church should not seek protection from the costs of its obedience.
Lord Elton: My Lords, that is a much more honourable and enlightened position, but as to my first question, I shall leave it to the Minister.
Lord Filkin: My Lords, I thank the noble Lord, Lord Elton, for that challenge. It almost feels too late to go into full detail on all these issues. However. I am
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grateful for being exposed to an alternative set of pressures from the ones to which I am usually exposed on this Bill. That is healthy and it is a reminder to Government of how one has to be cautious in trying to uphold two sets of rights. Clearly, in part, much of these discussions has concerned trying, if possible, to provide the proper rights to transsexual people that we clearly believe should be provided in a civilised society, and to do so in a way that does not, at the same time, infringe the right to freedom of religion and to freedom of religious expression. We are debating on that cusp.
The noble Baroness, Lady O'Cathain, gave me plenty of fervour and examination questions to take away with me. I shall not respond to them all tonight, but I shall look at them. For now, 1 shall make a few comments on the record.
Amendments Nos. 100, 102 and 108 would add a new Section 33A to the Sex Discrimination Act and Article 34A to the equivalent Northern Ireland order. The provisions will provide religious bodies with the freedom to restrict membership or the provision of benefits, facilities or services in such a way as to exclude a person who is recognised in the acquired gender or who will not consent to the disclosure of any entry relating to them in the gender recognition register. Amendment No. 108 has the same purpose.
On the face of it, that is a wide-ranging exemption. However, it would have no effect, as neither the Sex Discrimination Act nor the Northern Ireland order at present extends protection to transsexual people in terms of membership of religious organisations or the provision of benefits, facilities or services. As I have already explained, we do not consider it appropriate in this Bill to extend protection against gender reassignment discrimination to the area of goods, facilities and services, not as a point of principle, but as a point of practice. There is a better forum for engaging in those issues.
The Bill is concerned with providing transsexual people with access to a means of acquiring legal recognition; it is not an anti-discrimination Bill per se. The only changes that it makes to anti-discrimination law are consequential changes:providing access to legal recognition in the applied gender. We have had, and no doubt will continue to have, discussions with the noble Baroness, Lady O'Cathain, and representatives of Evangelical Alliance, for whom I hasten to say she does not speak. I was not seeking to ally her with a Christian institution.
On the outcome of Mr Parry's case, 1 do not want to comment on a particular case. The Bill does not open up a new class of discrimination claims. As I have already said, we are not using the Bill to extend discrimination on the ground of gender reassignment.
On sporting bodies, one is damned if one does and damned if one does not. We have been willing to provide an exemption for sporting bodies, but the Bill is not about discrimination. The exemption for sport is of a different character. It does not permit a sporting body to restrict the participation of all transsexual people; it allows a restriction only where that is necessary to secure fair competition or safety of other

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competitors. An exemption for religion, at least under the terms proposed, would apply to all transsexual people.
I shall say no more about access to lavatories or other such issues. On a general point, I recollect, either tonight or previously, a question being asked about the Women's Institute. The present law would not prevent an organisation like the Women's Institute discriminating against a transsexual person if it wished to do so, as the Women's Institute could not be considered to be exercising a public function in considering applications for membership and, therefore, it would not be a public body. But I hope that it would not discriminate.
Baroness O'Cathain: My Lords, I thank the Minister again. I see the Bill as opening up the prospect of litigation against the Churches, which concerns me. I know that between now and Third Reading there will be discussions so I shall beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 101 and 102 not moved.]
Clause 16 [Peerages etc.]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 103:
Page 6, line 22, at end insert—
"( ) Nothing in this section shall prevent the holders of any peerage or dignity or title of honour who are in receipt of a gender recognition certificate from styling themselves as if they had inherited the peerage or dignity or title of honour in their acquired gender, and the persons concerned shall have the right to require any organisation or body of which they are a member to address them by the style appropriate to their acquired gender.
( ) A person who is the holder of an order of chivalry which is limited to one sex shall after receipt of a gender recognition certificate have the right to petition for conferment of the equivalent degree of the order of chivalry appropriate to their acquired gender."
The noble Baroness said: My Lords, in speaking to Amendment No. 103 I return to a debate that we had in Grand Committee about peerages. Noble Lords will recall that Clause 16 states:
"The fact that a person's gender has become the acquired gender under this Act … does not affect the descent of any peerage or dignity or title of honour".
In a sense, the clause provides for an exceptional treatment for peerages, in the way that Clause 15 provides for a different treatment for succession. In Grand Committee, we expressed our concern that if, for example, a male baron were to become a female, that male would not then be able to call himself a baroness. Similarly, an earl could not become a countess. Amendment No. 103 illustrates to the Government just one of our concerns about a number of anomalies in the Bill relating to how individuals should be treated in particular circumstances.
Noble Lords will note that my noble friend Lord Ferrers has tabled an amendment about peerages. I defer to him for he knows much more about peerages than do I. Indeed, I suspect that he knows much more about succession than do I.
The Government conceded in Grand Committee that there were "issues to consider", not only about how title is officially recognised, but also about how other matters flow from the holding of a title. The Minister has since courteously written to me about those further considerations. It seems that a possible solution has been found. However, I would prefer to wait to hear the Minister's response to my noble friend Lord Ferrers about that solution. I beg to move.
Earl Ferrers: My Lords, as my amendment has been grouped with this one, I shall make some observations. My noble friend Lady Buscombe kindly said that I knew more about peerages and succession than does she. I do not know whether that is true, but I certainly do not know more than does she about changing gender. I have been lost in admiration at your Lordships' ability to understand the complexity of the Bill, in particular that of Ministers, who have fought bravely to defend it and all its complications.
I have a number of questions to ask. I suppose that I should declare an interest in so far as I am a hereditary Peer and the clause relates to hereditary peerages. I assure your Lordships that any interest 1 declare is not personal, but arises merely because I am a hereditary Peer.
In Grand Committee, I thought it extraordinary that the Government wanted to help hereditary Peers, because normally they do not. The noble Baroness, Lady Hollis, is shaking her head. Before she shakes it, perhaps she should hear what I say. It was extraordinary that they should help hereditary Peers by inserting a special clause for their benefit. I felt that either the Bill is so good that it should apply to everyone or that it is so bad that the Government cannot find a way of getting round the issue without making an exception for hereditary Peers. I shall quote what the noble Lord, Lord Evans, said in Grand Committee. He can sit in his place and be frightened. He said:
"I said that it raised a number of very interesting and important issues that the Government must consider. I said that we would go away and consider the points raised and return before Report with amendments".—[Official Report,.14/1/04; col. GC 105.]
I became very excited. I thought that the Government had at last taken note of something that I had said. However, when I looked at the list of amendments, the Government had not put one down to address this problem. So I tabled an amendment to leave out Clause 16 to find out exactly what it means because, quite frankly, I do not understand it.
Clause 16 says that the fact that a person's gender has become the acquired gender under this Act,
"does not affect the descent of any peerage or dignity or title of honour".
I can understand that. However, Clause 16(b) says that it,
"does not affect the devolution of any property limited (expressly or not) by a will or other instrument to devolve (as nearly as the law permits) along with any peerage or dignity or title of honour unless an intention that it should do so is expressed in the will or other instrument".

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I am not a lawyer; the noble Lord, Lord Carlile of Berriew is, and he no doubt understands that perfectly. However, I do not understand what it means and I would be grateful if the Minister would explain what it means.
I would like some explanations to some serious points, and I hope the Minister will answer them. What happens if an earl has a sex change? In order to make certain that there is no duplicity, we will call him Earl Dodger and his son Viscount Chump. If Earl Dodger has a sex change, does he become a countess, in which case there will then be two Countess Dodgers? Or does he remain as an earl although he masquerades as a woman?
As the earl has changed from being a male to a female, what happens to the title? Does Viscount Chump suddenly inherit the earldom and become an earl as the earldom is apparently vacant? That does not seem right because you would then have two earls. What happens if Countess Dodger, on the other hand, changes sex and becomes a man? What does she become? Does she become Earl Dodger, so that there are two earls? She cannot, because she was not appointed. What does she do?
Let us suppose that Earl Dodger has a son and a daughter. Let us suppose that the daughter is older and that she has a sex change and becomes a man. Does she then become Viscount Chump instead of her younger brother who, up till now, was Viscount Chump? If she does become Viscount Chump, does she inherit everything else? Does she inherit the title of earl instead of the proper Viscount Chump, and all the cash, if there is any? In my experience, earls do not have much cash nowadays, but they used to in the good old days. What happens to the proper Viscount Chump? There may be a trust fund under which it all goes to the holder of the earldom. Does the lady get that and, if so, will she remain friends with her brother?
Clause 16(a) states that the Bill does not affect the descent of any peerage or title of honour. Of course it does—it goes to someone to whom it was not supposed to go.
I have read Clause 16(b) six times and I cannot understand it. It says that the fact that a person's gender has become the acquired gender does not affect the devolution of any property unless an intention that it should do so is expressed in a will. In years gone by, quite a lot of these properties were expressed in wills by grandfathers and great-grandfathers who did not have the curiosities that exist nowadays.
If it is intended that the land owned by an earl should pass on to the next earl, and if Earl Dodger becomes a woman and vacates the earldom, does he have to pass his land on to Viscount Dodger, who presumably becomes the earl? Of course, he cannot become the earl, because the earl is still alive. It does not seem very fair, and it happens to nobody else in the country. I hate to put it like this, but the Government are discriminating against hereditary Peers. They have always hated hereditary Peers but I think hereditary Peers are jolly good folk. It is a pity to see the
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Government discriminate in this way by suddenly saying that the Bill is wonderful, but the change must not appear to be part of the peerage.
The noble Lord, Lord Filkin, made an interesting remark in a letter to my noble friend Baroness Buscombe:
"The hereditary principle is hence untouched. However, this does mean that a person recognised in law as a woman may inherit a 'male title'. Clearly, a person in this position may wish to seek a change to the form of address".
He said that the whole purpose of the Bill is to allow a woman to inherit a male title. Yet, earlier on, it said that there would be no change. In his letter, the noble Lord goes on to say that:
"Subsequent to these discussions",
that he had with Garter Principal King of Arms,
"it is clear that a person in this position would be free to petition Her Majesty for a change in the form of address. Therefore, rather than making the detailed provision in the Bill to deal with every possibility, we believe that this issue should be dealt with on a case-by-case basis and that this discretion should rest with Her Majesty".
Do the Government mean to say that they have introduced a Bill that is so complicated, and has made such a mess of every thing, including the peerage, that the only way out is to get Her Majesty to resolve it? I find that quite extraordinary.
I shall remind your Lordships of what the right reverend Prelate the Bishop of Winchester said in Committee. He asked what happens if a female priest changes sex and becomes a man and said:
"It [is] an infringement of her rights that Crockford's"—
or, as the right reverend Prelate also mentioned, Who's Who, Dehrett's or Dod's—
"continued to contain details of the early stages of her ministry".—[Official Report, 14/1/04; col. GC 105.]
If one removes the first part of a person's career from a professional directory, where does the editor stand in terms of the Trade Descriptions Act? I thought that that was a very trenchant point by the right reverend Prelate. The Government did not have an answer to that.
What happens if, as one does, one has a medical directory? Suppose there is a person who becomes a doctor, goes through the training, becomes a surgeon and decides to become a woman? Is the directory to cut all that out of a person's previous career? Would not anyone employing that person as a surgeon want to know where that person was educated, what medical school he or she went to and what happened in her career? That must all be cut out because she has changed sex and it must not be referred to.
One could say that if one looked in Dod's, or in a similar directory, and saw that a person was educated, for instance, at Winchester and Magdalene College, Cambridge, even though she was a woman, one could discover that she was probably a man because those places usually educate men not women. No attempt has been made to answer these points.
The Minister who will respond to this amendment— I am not certain who it will be, but I have a good idea that it will be the noble Lord, Lord Evans-may say

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that when people are in positions of importance, such as bishops, priests, surgeons, Peers, and anyone in public life, everyone will know that they have changed sex and they do not have to worry about it. It is only people lower down the echelons who the Government are worrying about. That is no way to produce a Bill. If the Bill is so good that it has to refer to these 5,000 who, regrettably, for reasons with which we all sympathise, have to change sex, it must refer to everyone; a group cannot be excluded.
The real answer is that the Bill is so bad because it is based on a deception. The whole idea is a deception. My noble friend Lord Tebbit, who regrettably is not here, has said this all along. It is based on a deception whereby you say, "Here is a person who was born a female," and then you say, "We have decided 40 years later that he was born a male". That is a deception. It turns nature topsy-turvy. I hope that the noble Lord who replies to the amendment will provide perfectly clear and not complicated answers to these questions as the measure has turned nature upside down and we should like to know what the position is.
Lord Monson: My Lords, the noble Earl, Lord Ferrers, is an extremely hard act to follow when talking about matters of this kind. I shall not even try to emulate his tour de force. However, there are a couple of points that even he did not cover in his splendid peroration.
If I have interpreted the noble Baroness's speech correctly, which I hope that I have, I am relieved to learn that Amendment No. 103 is in effect tongue-in-cheek. I hope that I am right about that because, if it is not, we must consider some of the consequences. Clause 16 as it stands talks only about descent but Amendment No. 103 refers to actual titles. If a baronet were to change his sex, presumably he would become either a lady or possibly a dame, I am not sure which. However, if the amendment is tongue-in-cheek, that does not really matter.
The other curious aspect of the amendment is that it would give someone the right to require an organisation or body to address them by the style appropriate to their acquired gender. How can they do that? No criminal penalties are set out in the amendment or in the Bill. Would the people in question be able to take civil action against the organisation in question to force it to address them in a certain style? I shall be interested to hear what the Minister has to say on the matter.
Lord Evans of Temple Guiting: My Lords, I rise to speak in an attempt to match the extraordinarily funny and interesting contribution of the noble Earl, Lord Ferrers.
The Government do not hate hereditary Peers. I am a Member of the Government. My closest friend, who does not sit in this House, is a hereditary Peer. Without wishing to pre-empt anything that may happen later in the Session, it may be hereditary Peers sitting in the
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House of Lords who present the problem. However, we regard them as an endangered minority who have to be looked after and nurtured.
Earl Ferrers: My Lords, the whole of this Report stage has been worthwhile just to hear the noble Lord say that.
Lord Evans of Temple Guiting: My Lords, I am very grateful to the noble Earl, Lord Ferrers, for that. He challenged me to answer all the questions that he raised. I shall not do so this evening as we hope to finish by 10 or 10.30 p.m. However, the week-long holiday will soon arrive and I should be very happy to spend that week with the noble Earl, Lord Ferrers, talking about the extraordinary family he has constructed in which everyone seems to have changed sex.
I must apologise to the noble Earl for saying in Committee that I was so overwhelmed by his arguments that the Government would bring forward amendments on this matter. However, we have not done so. We have not done so because after very careful reflection—but I am afraid that the noble Earl, Lord Ferrers, will need a great deal of persuading on this—we consider that Clause 16 is necessary and that it ought to remain in the Bill. I shall tell the noble Earl, Lord Ferrers, why that is so in rather a dull way, I am afraid, which does not match his style and humour. However, it is important that this is put on the record.
Clause 16 states that the issue of a gender recognition certificate does not affect the descent of peerages. It has been included so as to exclude the possibility of a person changing gender—I refer to an elder daughter changing gender in these circumstances—in order to leap-frog a sibling and in that way obtain a peerage, dignity or title of honour. If that could occur it would defeat the expectations of the person to whom the peerage would have otherwise descended. Peerages are also unique because they descend to the eldest son, according to birth. That is another reason why birth gender should continue to count. The adoption and children act of 1992 makes a similar exception, about which the noble Earl, Lord Ferrers, may have waxed eloquently 13 years ago. The exception is there so that the adopted children may not inherit a peerage, even if they qualify—as, for example, the eldest son.
I can see from the expression on the face of the noble Earl, Lord Ferrers, that he does not think that my argument is impressive. But it is our argument and we have considered his comments in Committee. Perhaps my noble friend Lord Filkin and I can have a meeting with the noble Earl so that we can sit down and avoid—if we wish to avoid—a brilliant performance from him at the next stage or perhaps we should just wait and enjoy his comments when we discuss the matter again. I can see out the back of my head the expression on the face of my noble friend Lord Filkin. Seriously, the noble Earl made some interesting points and we would like to discuss them with him over the next week or so—even if I have to do that myself.
9.15 p.m
Earl Ferrers: My Lords, may I interrupt the noble Lord for half a moment? I am amazed that he could see what his noble friend Lord Filkin was saying and thinking, since he was sitting behind him. He must have eyes in the back of his head, like a chameleon. My real concern is that he said I had waxed eloquent over a matter some 13 years ago. I do not wax eloquent over many issues, but I do over some. There are so many matters, that I cannot remember my actual comments 13 years ago. I am deeply impressed that the noble Lord did.
Lord Evans of Temple Guiting: My Lords, I was imagining what the noble Earl may have said—I have not read Hansard to see whether he did contribute. I shall do that first thing in the morning. I am taking the matter extremely seriously. Before I move away from the amendment tabled by the noble Earl, I wish to say that although his comments were amusing, he made some serious points and I would like to make a valiant attempt to convince him that the clause should stay in the Bill.
Amendment No. 103, tabled by the noble Baroness, Lady Buscombe, raises the issue of forms of address. The noble Baroness also raised the issue in Committee. It was never the intention that a Knight Commander who became a woman in the eyes of the law should continue to style herself as "Sir". But the noble Baroness has raised a valid point—and I hope that I am not upsetting the noble Earl, Lord Ferrers, by acknowledging that—about whether a Peer or the holder of another title can legitimately swap it when his or her gender changes in law.
In fact, all of us are in the gift of Her Majesty. She, alone, can confer a title and she, alone, can alter the form of address that a holder uses. However, that does not mean that an amendment to the Bill is necessary. The Government have, since Committee, consulted the Palace and the Garter Principal King of Arms. We are in agreement that the best way to proceed in such rare cases—I underline "rare"—would be for the holder of the title to petition Her Majesty to ask that she change the form of address. There is a wide range of circumstances under which an individual may wish to adopt a different form of address as a result of the Bill. In addition to transsexual people themselves, the former or future spouse of a transsexual person may have a claim on a courtesy title.
Legislating for this multitude of circumstances would seem disproportionate given the very low frequency with which the situation would arise. It would also reduce Her Majesty's prerogative powers in this area. Accordingly, the Government are satisfied that the right to petition Her Majesty, which already exists and will continue to do so, is a sufficient and proportionate method of dealing with the matter.
Baroness Buscombe: My Lords, this has been an extremely illuminating debate and I am deeply grateful to my noble friend Lord Ferrers for, as I suspected, illustrating the fact that he knows more about peerages
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than I do. It is a knotty problem and one which I am glad we have raised. The Government need to resolve it.
I join my noble friend in regretting that there is no clear amendment to the Bill to deal with the problem. However, I recall that during Grand Committee I looked to the officials with considerable sympathy, given their task of coming up with a solution in time for the Report stage. I take my hat off to them and to the Minister for turning to Garter Principal King of Arms and the Palace for their support in their search for the solution.
While the Minister's proposal seems convoluted, it is fair to say that for those who will have to go through the difficult and lengthy process of gender recognition, this final phase for a tiny number of individuals will not be viewed as particularly arduous. It surprised me that the Bill would necessitate involving Her Majesty. I wonder whether that is why it was not even mentioned in the gracious Speech. Perhaps if it had, it might have caused some disturbance at that stage. It seems an enormous length to go to in turning to Her Majesty to change a form of address.
That said, I suspect that this is the best and most practical solution that could be found. Like all noble Lords, I accept that we are talking about a tiny number of individuals in the years to come—perhaps none at all, who knows? I am grateful to all noble Lords who have taken part in the debate, including the noble Lord, Lord Monson, and my noble friend Lord Ferrers, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Ferrershad given notice of his intention to move Amendment No. 104:
Leave out Clause 16.
The noble Earl said: My Lords, I am grateful to the noble Lord, Lord Evans, for the answers he gave. Unfortunately, during the Committee stage he said that the Government would have to think about these things and I had hoped that he would come up with some answers. I believe that the proper thing would be to have a Division in order to discover what people really feel. We would then know where we were.
However, I would not wish to disturb the noble Lord, Lord Evans, too much and I think that he had better go away and think about it. Perhaps he could consider the questions I asked and give me some answers. I would not want him to do that first thing tomorrow morning because that would be most disturbing. He has plenty of time to think during the forthcoming Recess. I do not want him to go to any great trouble nor, particularly, to chat me up about it because he might persuade me. But if he would give me the answer on apiece of paper I should be very grateful. I shall not move the amendment.
[Amendment No. 104 not moved]
Clause 17 [Trustees and personal representatives]:
[Amendments Nos. 105 and 106 not moved.]
Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 107:
After Clause 18, insert the following new clause—
"SPORT

(1) A body responsible for regulating the participation of persons as competitors in an event or events involving a gender-affected sport may, if subsection (2) is satisfied, prohibit or restrict the participation as competitors in the event or events of persons whose gender has become the acquired gender under this Act.

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

(a) fair competition, or

(b) the safety of competitors,

at the event or events.

(3) "Sport" means a sport, game or other activity of a competitive nature.

(4) A sport is a gender-affected sport if the physical strength, stamina or physique of average persons of one gender would put them at a disadvantage to average persons of the other gender as competitors in events involving the sport.

(5) This section does not affect—

(a) Section 44 of the Sex Discrimination Act 1975 (c. 65)(exception from Parts 2 to 4 of that Act for acts related to sport), or

(b) Article 45 of the Sex Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042 (N.I. 15)) (corresponding provision for Northern Ireland)."

The noble Lord said: My Lords, the question of sport pre-occupied us for some time in Committee. The Government have introduced an amendment which we hope will solve the legitimate problems raised at that time.
We said in Grand Committee that the Gender Recognition Bill must not lead to a situation in which competition, or the safety of other competitors, is compromised.
We have been of the view that the existing legal framework of the Sex Discrimination Act and Human Rights Act combined provides sporting bodies with the necessary flexibility to deal with the issues raised by transsexual competitors. However, during the debate in Grand Committee I said that we would consider the issue further. Since then, the issue has been discussed between my department—the Department for Constitutional Affairs—the Department for Culture, Media and Sport and UK Sport.
This is a complex area of law. The Government believe that by making express provision in the Bill, sporting bodies will be placed in a better position to formulate clear and lasting frameworks for dealing with the issues raised by transsexual sports people. As your Lordships may know, the International Olympic Committee is also presently looking at the issues raised by transsexual competitors. I understand that it is due to issue guidelines shortly. We will need to ensure that the provisions for sport in the Gender Recognition Bill do not pose a problem for sporting bodies that wish to use the IOC guidelines in the future. The provisions may therefore need to be revisited once the guidelines have been issued. I beg to move.
Baroness Buscombe: My Lords, as I understand the Minister is aware, my noble friend Lord Moynihan is
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in Norway today meeting officials from the Norwegian sports anti-doping agency. From these Benches we would like to express our support for the Government's conversion to our case—a case that my noble friend put forcefully both at Second Reading and in Grand Committee—to exempt competitive sport in the Bill. It now takes a privileged place alongside the monarchy and hereditary Peers.
As it stands, the amendment recognises the strength of argument made by my noble friend and supported in principle by the noble Lord, Lord Goodhart, in Grand Committee to allow governing bodies of sport to continue to determine their criteria for classification, thus preserving fair competition and protecting the safety of competitors, particularly in contact sports. In so doing, the Government are joining us in responding to the representations made to that effect by the Central Council for Physical Recreation, the Sports Council and many governing bodies of sport.
We also support the Government's intention to keep open the possibility of a further amendment during the Bill's proceedings in another place. At the end of this month the International Olympic Committee will be meeting, inter alia, to consider the issue of gender classification. It is possible that its findings may allow Parliament to improve on the wording suggested this evening.
My noble friend Lord Moynihan and I appreciate the sensitivity with which this important issue for sport has been approached by the Minister and his officials since the subject was extensively debated during Second Reading and again in Grand Committee. We thank the Government for listening and are pleased to lend our support to the proposed amendment.
Lord Goodhart: My Lords, we welcome the amendment. It follows the solution for which I expressed a preference when speaking in Grand Committee. We think it is a sensible step for the Government to have taken; it deals with a serious and important problem. We are happy to support it.
On Question, amendment agreed to.
[Amendment No. 108 not moved.]>
Clause 19 [Scottish gender-specific offences]:
[Amendments No. 109 not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 110:
Page 7, line 25, leave out subsections (2) and (3) and insert—
"(2) The following are relevant gender-specific offences for the purpose of subsection (1) above—

(a) section 5 of the Criminal Law (Consolidation) (Scotland)Act 1995 (c.th39) (intercourse with a girl under 16);

(b) section 11 of the Criminal Law (Consolidation) (Scotland) Act 1995 (trading in prostitution and brothel keeping);

(c) section 13 of the Criminal Law (Consolidation)(Scotland) Act 1995 (homosexual offences);

(d) section 311 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (non-consensual sexual acts);

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(e) section 313 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (persons providing care services: sexual offences);

(f) any offence under section 294 of the Criminal Procedure (Scotland) Act 1995 (c. 46) (attempt at crime);

(g) rape;

(h) sodomy;

(i) clandestine injury to a woman;

(j) abduction of a woman or girl with intent to rape;

(k) assault with intent to rape or ravish;

(l) attempting to commit any of the offences set out in the above paragraphs.

(3) The Scottish Ministers may by order make provision for modifying the terms of subsection (2)."

The noble Earl said: My Lords, here is something simpler. Amendments Nos. 110 and 126 have been inspired by the Law Society of Scotland in a further attempt to ensure that the Scottish gender-specific legislation is identified in the Bill. This matter remains as relevant as it was in Grand Committee. The Minister rejected a similar amendment in the fear that at present the list might not be all-inclusive and that future legislation might be needed to add to the list. I remain sufficiently unconvinced to have tabled this amendment. Clarity is an important attribute in legislation.
The Minister is bringing forward an amendment to apply the concept of gender-specific offences to all three legal jurisdictions of the United Kingdom. Therefore, I look forward to hearing from the Minister the implications of his amendment for Clause 19.1 beg to move.
9.30 p.m.
Baroness Buscombe: My Lords, I support these amendments. Noble Lords may recall that I proposed similar amendments in Grand Committee, although I sought to amend the wording slightly in the sense that I felt that the list was not entirely adequate. However, I see no harm in having some such list with some expression on the face of the Bill that the list is not exclusive. I believe that having some form of clarity is a good idea.
Lord Evans of Temple Guiting: My Lords, Amendment No. 110 seeks to insert a list of gender-specific offences into Clause 19 in place of the general definition of gender-specific sex offences that the clause contains at present. The amendment and Clause 19 as presently drafted have the same purpose. The disagreement here is about means and not ends. The problem with using a list—the means proposed by the amendment—is that, if further offences were created or if the definition of existing offences were changed to include or exclude a gender-specific element, the list would require amendment. Although the amendment, taken together with Amendment No. 126, provides for changes in the list, the virtue of using a definition of gender-specific sex offences is still that the need for future amendments is avoided.
Government Amendment No. 131 also relates to Clause 19. At present, Clause 19 extends only to Scotland. However, the law on sex offences in Northern
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Ireland remains, to a large extent and in the same way as Scots law, gender specific. As a consequence, the Gender Recognition Bill as drafted will have a disabling impact on the law on sex offences in Northern Ireland—particularly on rape—unless it is amended in a similar fashion to that in Scotland.
It was originally felt that a temporary lacuna in the law in Northern Ireland might be acceptable, given that a review of Northern Ireland law was in progress and that subsequent legislation would be expected to remove gender-specific crimes from the body of law on sex offences. However, given the straightforward nature of the amendment that will plug the gap in Northern Ireland in the interim period before the new law on sex offences is ready, the Government believe that it is appropriate to take action.
Therefore, I am proposing Amendment No. 131 to adjust the extent of Clause 19 so that it applies throughout the United Kingdom. Although the Sexual Offences Act applying to England and Wales uses gender-neutral terms, this amendment will ensure that no residual problem arises in England and Wales. The Sewe1 Motion in the Scottish Parliament will take place this Thursday, 5 February.
I have set out the Government's views on Amendments Nos. 110 and 126. In any case, if the House accepts Amendment No. 131, the list in Amendment No. 110 will be out of date. I would argue that the extent of Clause 19 should be expanded as proposed. In addition, especially in the light of the fact that any list in Clause 19 would have to cover all the criminal jurisdictions in the UK, I would argue that the present definition in Clause 19 provides the better legislative solution.
The Earl of Mar and Kellie: My Lords, there is no doubt that the Minister has got one over me at present. That often happens in these proceedings. I should like in the long run for the Scottish gender-specific offences to be at least listed in a schedule. That may come about. In any legislation to which the future Gender Recognition Act was relevant there would be a clause which amended it taking into account the new legislation. However, I shall read Hansard with regard to the implications of the noble Lord's amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 [Foreign gender change and marriage]:
[Amendment Nos. 111 and 112 not moved.]
Clause 21 [Prohibition on disclosure of information]:
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 113:
Page 9, line 8, at end insert—

"( ) the disclosure is made for the purposes of section 4A (marriages involving person of acquired gender) of the Marriage Act 1949 (c. 76),

( ) the disclosure is made for the purposes of section 2A (marriages involving person of acquired gender) of the Marriage (Scotland) Act 1977 (c. 15).

( ) the disclosure is made for the purposes of Article I 8A of the Family Law (Miscellaneous Provisions) 'Northern Ireland) Order 1984,

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( ) the disclosure is made for the purposes of section 19 (ministers of religion etc) of the Sex Discrimination Act 1975 (c. 65)

( ) the disclosure is made for the purposes of Article 21 (ministers of religion etc) of the Sex Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042 (N.I. 15))

( ) the disclosure is made for the purposes of Section 33A (exceptions for religious bodies) of the Sex Discrimination Act 1975 (c. 65

( ) the disclosure is made for the purposes of Article 34A (exceptions for religious bodies) of the Sex Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042 (N.I. 15)."

The noble Baroness said: My Lords, these amendments refer to Clause 21. Amendment No. 113 deals with disclosure in furtherance of the exceptions which are listed in the amendment. Amendment No. 116 deals with the penalties.
Clause 21 is one of the most heavy-handed parts of this Bill. It creates a criminal offence affecting anyone who learns of a person's sex change in an official capacity. If they disclose this information they can be prosecuted and fined up to £5,000.
What is most surprising is that the offence is not limited to civil servants such as people working in the Registrar General's office. It extends to all private employers and, more surprisingly still, to voluntary bodies. If the principal of a Bible college gives a job reference for a former employee, which mentions his change of sex, he is committing a criminal offence. If a church minister tells a church official that a member of the congregation has changed sex, he is also committing a criminal offence. That is really ludicrous.
The fact that a person has had a sex change is, as I have said before, of religious importance. It is a serious ethical issue on a par with lying or adultery. If the church is giving a job reference to another church, it may believe that it is vitally important that the other church knows the truth.
Even if they do not set out to disclose the sex change, they may feel that it is impossible honestly to answer a request for a reference without mentioning it. If the person used to be the woman in charge of ladies' ministries, how would they explain to the new employer how the job was done by a man? Clause 21 compels them to say in the letter that "she" is a "he". It will be a criminal offence to do otherwise.
Many churches, particularly the reformed churches, still operate the practice of requiring a reference from a previous church before accepting someone into membership of that church, not into a job situation, but actual membership on the parochial roll. This too may result in a prosecution. Indeed, it may be that someone will say, "Don't you dare declare it or I will sue". It seems that it would even be an offence to warn a bridegroom if he did not know that his bride-to-be was really a man.
Do the Government see that these are issues of conscience? Do they really want to fine church ministers for refusing to say that a woman is a man?
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Do they not believe that it is wrong to prosecute churchmen for actions which most people would consider perfectly respectable?
In many places of worship several officials will be involved in decisions about employment or membership. Perhaps only one of them knows that the person has changed sex. If the others favoured the application, he would probably feel compelled by conscience to let them know yet he could be prosecuted for so doing. I ask the Minister this question. If half-a-dozen church elders did discuss the change of sex, would they all be prosecuted or only the one who made the original disclosure? Will there be six fines or just one?
Amendment No. 113 shows that it is possible to create narrow exceptions to protect religious conscience. We are not talking about protecting gossip here, but disclosure of a serious breach of religious ethics on a need-to-know basis. The same thing happens in politics. If a Government Minister told the Chief Whip that he was secretly donating funds to the Liberal Democrats, the Chief Whip would rightly discuss it with other senior party officials. Why should religious leaders not have a similar liberty of conscience?
I have another question for the Minister. What if a transsexual applies for a job in any organisation—not necessarily a Church organisation—and is asked for a job history, that is, a cv. The recruiting company wishes to check references and refers to one of the companies on the cv. Large organisations have large human resource directorates, and the people working in those would be aware of the law. But what if you have a small accountancy firm in a small market town, where the person who is the administration manager is the person who deals with job applications, or anything to do with a personnel function? Suppose they have an application from somebody called Janet Jones to join this firm. The cv shows where Janet Jones had worked. One of the organisations is rung up, but the person at the other end of the phone in another small accountancy firm in another town says, "We did not have a Janet Jones working here; we had a James Jones during that period— 1989 to 1995." "Are you sure that is James Jones? That must be a mistake. Surely it was Janet Jones."
Then what? Who is fined? What happens? This is the law of unintended consequences as part of this Bill.
I have put down Amendment No. 116 to show how harsh the penalty is in Clause 21. Not only would people who disclose this information get a criminal conviction, they could be fined up to £5,000. This is on a par with Section 71 of the Sexual Offences Act 2003. It stipulates the same maximum fine for the offence of having sex in a public toilet. This is clearly out of all proportion. I beg to move.
Baroness Mollis of Heigham: My Lords, I shall be as brief as I can without intending any discourtesy to the noble Baroness, Lady O'Cathain. If she feels there are points that I have not answered I will be happy to follow them up in writing, but the hour is late.
Amendment No. 113 deals with marriage. The Bill contains in Schedule 4 a conscience clause which is intended to provide for the situation of ministers of the

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Church of England or the Church in Wales who have a profound difficulty in marrying a person who has been recognised in the acquired gender. The government amendment on this issue has already been presented. Ministers of other religious bodies, as we discussed on the previous day on Report, are not obliged to solemnise marriages.
With regard to the remainder of the amendment from the noble Baroness, this also seeks to provide exemption from the prohibition on disclosure but this time in order to provide religious bodies with the knowledge needed to restrict employment, or membership, or the provision of benefit facilities or services, in such a way as to exclude a person who is recognised in the acquired gender, or who will not consent to the disclosure of any entry relating to him or her contained in the gender recognition register.
There is no need for a further exemption to the disclosure clause for these purposes, when, as we explained in Grand Committee, there are other ways for a religious minister or religious organisation to find out if a person is or is not a transsexual. We are talking about co-believers here. A religious organisation can simply ask the individual concerned, and I find it hard that a co-believer would knowingly lie to a member of the faith on which presumably their life is constructed.
If that notion of "good faith, bad faith" is passably manipulated, none the less it is possible for the religious organisation to acquire this information in a way that prevents even that potentially awkward question and answer session. A Church could, for example, ask to see the person's baptismal certificate. Given that the vast majority of people are baptised before the age of 18, and that no person can change gender before the age of 18, the baptismal certificate would reveal whether a person was transsexual. As I have said, a co-believer should be happy to share this information with a religious organisation that thinks it is important. There are other ways in which such sharing of information could occur discreetly.
The noble Baroness, Lady O'Cathain, also raised a question about the level of penalties provided for breach of Clause 21. The effect of her amendment would be that the maximum penalty for breach of Clause 21 would be a £200 fine as opposed to the present maximum of £5,000, which is the upper limit. The precise sentence is for a judge to determine. The amendment would provide that even in a case where disclosure was made maliciously with intent to harm a transsexual person, the maximum penalty would be £200. That hardly seems a sufficient sanction for an act that could cause considerable harm, considerable distress and could become the cause for further acts of discrimination, harassment and abuse.
If the noble Baroness is concerned about the position of people who make a prohibited disclosure inadvertently, clearly that is a matter which the judge would be expected to take into account as part of the deliberations on sentence. Although the harm to the transsexual person would be no less it would be surprising if in those circumstances a judge was to impose a maximum penalty.
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If, instead, the noble Baroness is concerned about disclosures that were made for a legitimate reason, we do not think this is the way to address that concern. Clause 21 already provides for a range of exceptions that seek to describe what counts as legitimate reasons for disclosure. Protected information and worries about criminality are obvious examples. Clause 21 also contains an order-making power for providing further exceptions to be used as and when a need to provide further exceptions is identified in future.
I am not sure whether I have persuaded the noble Baroness, but I have done my best to answer the questions she raised. I hope that as a result she feels able to withdraw her amendment.
9.45 p.m.
Baroness O'Cathain: My Lords, I am grateful to the noble Baroness, Lady Hollis. As always, she has been gracious and helpful. I do not disagree with all that she says. A couple of points she made were valid.
The noble Baroness said that this clause concerns marriage. That is right, but I am hooking more issues on to that, as can be seen from the wording of the amendment, to cover other situations. We return to the point in Grand Committee when the noble Baroness referred to good faith, bad faith and co-believers. However, she made a suggestion tonight which I had not thought of and which is very valid; that is, the baptism certificate. I shall take that away and consider it. I am grateful to her for that suggestion.
The Minister also said that the sentence is for the judge to determine. That did not fill me with a great deal of confidence. Unfortunately, if someone inadvertently discloses information, as in my example of the administration manager of the small market town accountancy firm, that would still result in a criminal offence. I am very concerned that someone should inadvertently find themselves in that situation. It is up to the judge to decide whether or not there is a valid case to answer but that could result in a criminal offence. That worries me. The kind of situation I described could not occur frequently. After all, we are told that there are only 5,000 transsexuals or thereabouts and the chances of them applying for jobs in such accountancy firms are probably remote. However, it could occur and it would be dreadful if the Bill put people in those situations.
Baroness Hollis of Heigham: My Lords, perhaps I may draw the attention of the noble Baroness to Clause 21(4)(c) which provides that where the person does not know, no offence has been committed.
Baroness O'Cathain: My Lords, in the complexity of the Bill, that escaped me. I suppose I got carried away. I shall also take up the offer of discussions between now and Third Reading. The Minister is shaking his head. I will read what the noble Baroness said, and in the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 114 not moved.]
The Lord Bishop of Southwell The Lord Bishop of Southwell moved Amendment No. 115:
Page 9, line 12, at end insert ", or
(k) the disclosure is in relation to any matter referred to in section 19(4) of the Sex Discrimination Act 1975 (c. 65) (ministers of religion etc.) as amended by Schedule 6 to this Act"
The right reverend Prelate said: My Lords, I move this amendment which stands in the name of the right reverend Prelate the Bishop of Winchester. The amendment relates to the sensitive issue of disclosure of the fact that a person has undergone the gender recognition process under the Bill. When I moved Amendment No. 99, I spoke about appointments, training for ministry or ordination or some other form of authorisation for ministers in Churches or faith communities. That is linked to this amendment.
However, the right reverend Prelate the Bishop of Winchester also explained in some detail at Committee Stage that the present amendment was needed to ensure that members of religious bodies who are responsible for decisions on those matters can be told in confidence the relevant facts, without the risk of someone committing a criminal offence. Providing safeguards on this is a vital part of safeguarding the Church's right to exercise freedom of conscience in reaching such decisions. That is why this amendment is before your Lordships again today.
We recognise that there are issues of human rights here. Nevertheless, the Minister will appreciate how essential it is to strike a proper balance between the rights of all those concerned. That includes the Churches and faith communities who number transgender persons with deep religious convictions among their members. We ought to be sensitive to their vulnerability.
At Committee Stage, the Minister indicated that if any provision was needed it should be made by regulations. The Church of England would not be opposed, in principle, to taking that approach, if it proved to be the most satisfactory one. Although I cannot speak for other Churches and faith communities, one would expect the same to apply to them. I stress that we are concerned with the need to address some problem areas that present real practical difficulties, as well as issues in principle. So far, the suggestions for overcoming them without legislation seem at best to provide only a partial answer.
That is why before abandoning the possibility of an amendment to the Bill, we need at least some reassurance from the Minister that the Government recognise that there are genuine problems. The discussions between officials, which are already in progress, could continue in their present, constructive spirit, against that background. It is in search of such reassurance that I speak to this amendment in the name of the right reverend Prelate the Bishop of Winchester. I beg to move.
Baroness Hollis of Heigham: My Lords, most of these issues have already been explored, but I hope that I can address the right reverend Prelate's concerns. We are discussing the position with the
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Church of England. We would be interested to hear the views of other religious organisations. If it is demonstrated that an exemption is necessary, we will provide for that in secondary legislation.
The Lord Bishop of Southwell: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 116 not moved.]
Lord Marlesford Lord Marlesford moved Amendment No. 117:
Leave out Clause 21.
The noble Lord said: My Lords, I seek, in moving this amendment, to remove Clause 21 to make this a much better Bill. A number of amendments have been moved that have touched on Clause 21. I have not spoken, except for very briefly, on this Bill before, but I have attended Second Reading, Grand Committee, and Report stage. I have great sympathy for those suffering from gender dysphoria. It is entirely reasonable that those who seek to change or redefine their gender should, after a proper review of their cases, be given official recognition of this fact.
It would have been better for this to have been done through changing administrative procedures, as I understand is done in certain other countries, rather than bringing in a whole Bill for it. It would be a simple procedure to issue a certificate stating that a gender change had been completed. The issuing of a second birth certificate, which would have the same date as the original certificate, would, at the least, be a rather confusing use of government documentation, although the Government will not say that. I was glad to hear on the first day of Report that the original certificate is retained and is available to those who ask for it. The second certificate could be seen as something of a fake.
There are, of course, documents that must be re-issued when they expire—a passport is an obvious example—but those are successor documents that, in no way, purport to be the first and original document issued. I object to the attempt to keep secret the fact that the gender change has been recognised. I use the word "secret" advisedly because Clause 21 makes it a criminal offence to disclose the information. That takes us far beyond the normal considerations of privacy. I am one of those who believe that the civil right to privacy in many situations should be extended.
I recognise that, in cases involving national security, governments must issue false documents to protect intelligence agents and others and, sometimes, police officers. It is also sometimes necessary to create false identities for reasons of witness protection. However, we should hesitate to create fresh criminal offences, with all the attendant implications. We should be sure that they are absolutely necessary. We should remember that the police must enforce such legislation, and they have enough to do already. I am sure that the Minister will say that she anticipates that little police time will be needed, but I would have thought that, as we are not in the business of extending the police further with this Bill, it would be undesirable

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to bring in a new criminal offence. As far as I am aware, Clause 21 is not required by the ruling of the European Court of Human Rights.
Clause 21 goes absurdly wide and is riddled with contradictions, some of which my noble friend Lady O'Cathain referred to. In many ways, it could be unenforceable. In the Explanatory Notes, the paragraph relating to Clause 21 states that,
"the prohibition extends only to information acquired in 'an official capacity' and so does not cover information acquired purely in a private capacity".
The implication is that civil servants should not be allowed to pass on information that they have acquired in an official policy. Obviously, that is right. It is normal practice and would probably still be covered by the Official Secrets Act 1989 and by the remaining sections of the Official Secrets Act 1911. However, Clause 21 goes far wider than the Explanatory Notes suggest. It covers anyone involved as an employer or prospective employer and anyone involved in "the conduct of business".
The definition of protected information is information that,
"concerns the person's gender before it becomes the acquired gender".
As my noble friend pointed out, that could cause tremendous complications for any employer who has a CV for somebody who presents themselves as a prospective employee and wants to check back. It creates questions about the legitimacy of the check. My noble friend Lord Ferrers also gave examples of questions about the extent to which inquiries can be made.
The noble Baroness, Lady Hollis of Heigham, said several times last week that information on individuals— an original birth certificate, for example—would normally be available only to close relations. Frankly, society is much wider than that.
We have been told throughout our discussions that some 5,000 people will be affected by the Bill. How many will mind people knowing that they have changed gender? I suspect that many will be so relieved to have received the official recognition that they desire, and which most of us support that they should have, that they will be inclined, to use the recent words of the Home Secretary, to open a bottle and invite their friends round. There are many other medical conditions, such as venereal diseases and psychological conditions, especially those relating to sexual dysfunction or aberration when there are far stronger arguments for secrecy, yet the general acceptance of the right of privacy provides adequate attention.
In most cases, changed gender will already be well known to friends and neighbours. I cannot see many unconnected private people seeking out information to abuse privacy. In any case, I do not believe that Clause 21, as drafted, will guard against that. I emphasise that the danger of discrimination against people for gender change will be well covered by the Sex Discrimination Act 1975.
In summary, I would argue that Clause 21 is unnecessary, unenforceable and undesirable, and the Bill would be better without it. I beg to move.
10 p.m.
Lord Tebbit: My Lords, I wonder whether I might tweak the Minister's tail just a little again.
Lord Evans of Temple Guiting: My Lords, I am sorry to intervene, but the Companion tells us that visual aids are not allowed in the Chamber. It is very emphatic on that. I apologise if I have spoilt the intervention of the noble Lord, Lord Tebbit.
Lord Tebbit: My Lords, with every respect to the noble Lord, if we were to go down that path, Ministers could not read their briefs. I do not accept that his is a rightful interpretation of the Companion, and I shall proceed as I intended regardless.
The visual aid which I have, which is rather akin to the visual aids used by Ministers, is nothing more nor less than my birth certificate. I am sorry if the noble Lord does not like birth certificates to be produced in the House, but I shall continue to produce mine.
I notice on the right hand side, it says:
"Insert in this margin any notes which appear in the original entry".
If anyone were to seek a copy of my birth certificate, it would be incumbent on the registrar to insert in the margin notes that appeared in the original entry. If I decided that I should change sex and got the approval of the gender recognition panel for a change of gender, a certificate would be issued in which it would be forbidden to insert the notes in the margin. As I said earlier, to which the noble Lord, Lord Filkin, did not allude in his reply, it cautions any person who falsifies any of the particulars on the certificate, or who uses it as true knowing it to be false, and he would be liable to prosecution under the Forgery Act or the Perjury Act.
The Government should sort out the implications of that before resisting the amendment moved by my noble friend Lord Marlesford to delete Clause 21. Plainly they have not thought the matter through. If the Bill is enacted and a new birth certificate is copied, it would not have on it what was on the original. It would therefore be false. It would not be adequate according to the birth certificate which I have, and it would constitute either fraud or perjury. The Government need to think their way through that.
Baroness Hollis of Heigham: My Lords, first, I shall comment on the argument of the noble Lord, Lord Tebbit, before turning to the point raised by the noble Lord, Lord Marlesford. The noble Lord, Lord Tebbit, hung an issue on an available amendment which essentially is that he believes that any re-registration in the new gender, by virtue of a new birth certificate, is in some way fraudulent and makes one a liar. I believe that is where he comes from. I suspect that there will be absolutely no meeting of minds on this matter.
Lord Tebbit: My Lords, I am saying that in my case the original birth certificate would state that I was

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born a boy. If I had a change of gender and acquired the appropriate certificate, a new birth would state that I was born a girl. Quite clearly, those two certificates would be in conflict.
Baroness Mollis of Heigham: My Lords, that is because the noble Lord thinks that the second birth certificate would, in some sense, be a lie because it differed from the first birth certificate. The point is that the second certificate would be a new certificate and not a copy of the original. Therefore, it would be as valid a document as the original birth certificate. That is the position of the Government. I know that the noble Lord does not accept that and that other noble Lords also may not accept it, but that is the whole point of having a new birth certificate.
Earl Ferrers: My Lords—
Baroness Hollis of Heigham: My Lords, I shall defer to the wishes of the House. We can spar, but I am mindful that the House will want, if possible, to complete Report stage tonight. However, if the noble Earl insists on speaking, of course I shall give way.
Earl Ferrers: My Lords, I do not wish to trouble the noble Baroness any more.
Baroness Hollis of Heigham: My Lords, I am grateful to the noble Earl for his courtesy. I return to the amendment tabled by the noble Lord, Lord Marlesford. Changing gender is a difficult process. It is difficult in terms of the person's own identity and in terms of his or her relationship with other people. I believe that we would all accept that respect for a person's private life means that we must alleviate some of the dangers of humiliation, embarrassment and harassment.
As we have discussed, it is a medical condition whereby a person feels driven to live in the opposite gender. I do not think that being reminded of the original gender, being confronted by it regularly, having others knowing that you suffer from the medical condition and knowing that they might be talking about it, is conducive to feeling secure. I believe that that makes it difficult to live in the acquired gender in dignity.
That is why the Bill contains protections for the privacy of transsexual people, a privacy that is in accord with ECHR, despite the challenge of the noble Lord, Lord Marlesford. We have checked on that. These protections prevent harm to the transsexual person and to his or her family and friends. In turn, do they cause harm to others?
In Clause 21, as your Lordships have already discussed, there are references to exclusions, crime detection and hearings before courts and tribunals where information of the original birth gender may be properly disclosed. Clause 21 also has another important limit. Not only does it enumerate a list of exceptions that allow disclosure where it is justified in terms of public policy, but it extends only to information that is acquired in an official capacity, as
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the noble Lord, Lord Marlesford, recognises. It does not intrude into the private sphere; it is not for the state to determine what friends may or may not say to each other about another friend or what family members may talk about. The law has limits beyond which ethics alone must suffice. With those remarks, I hope that the noble Lord, Lord Marlesford, will feel able to withdraw his amendment.
Lord Marlesford: My Lords, it is late and uncharacteristically the noble Baroness has given a self-contradictory reply. She started off by talking about the importance of Clause 21 which is to ensure that people do not chat or gossip about the situation, so making people feel uncomfortable with having had a gender change. Then she went on to point out that the limitations of Clause 21 would not make the slightest difference to that because it does not involve private people next door to each other who do not come under the limits drawn by Clause 21. Therefore, I go back to my point. Recognising the need for privacy and recognising that there is already provision for privacy under general practices, I found the Minister's answer unconvincing. It is an important issue. The Bill would be greatly improved without the clause, precisely because it meets a danger that is not there and does not meet a danger that the Minister suggested was avoided by it.
However, it is perhaps a little late in the evening to test the opinion of the House, so, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 [Power to modify statutory instruments]:
Lord Filkin Lord Filkin moved Amendment No. 118:
Page 10, line 3, at end insert—
"( ) Before an order is made under this section, appropriate consultation must be undertaken with persons likely to be affected by it."
On Question, amendment agreed to.
Clause 23 [Orders and regulations]:
Lord Filkin Lord Filkin moved Amendments Nos. 119 to 121:
Page 10, line 5, after "State," insert "the Chancellor of the Exchequer,"
Page 10, line 9, after "State" insert ", the Chancellor of the Exchequer"
Page 10, line 12, at end insert—

"( ) No order may be made under section 2 or paragraph 11 of Schedule 3 unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament."

On Question, amendments agreed to.
[Amendment No. 122 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 123:
Page 10, line 14, leave out "2" and insert "7"
On Question, amendment agreed to.
[Amendment No. 124 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 125:
Page 10, line 17, after "section" insert "21 or"
On Question, amendment agreed to.
[Amendments Nos. 126 to 128 not moved.]
Clause 25 [Commencement]:
On Question, Whether Clause 25 shall stand part of the Bill?
Baroness Buscombe: My Lords, when we debated in Grand Committee whether Clause 25 should stand part of the Bill, I expressed my belief that the Bill should not come into force until the civil partnership Bill is enacted. We should have had an opportunity to debate that Bill first, particularly given the difficulty that many noble Lords, including myself, have had with coming to terms with a Bill that requires, in the event of an individual wishing to acquire full gender recognition, that he or she must, if married, go through the process of a divorce or annulment. If the civil partnership Bill does not reach the statute book, those who have divorced in order to acquire full gender recognition will be left in a terrible limbo.
I am sorry that the right reverend Prelate the Bishop of Winchester is not in his place because I wanted to take this opportunity to confirm that I do not believe that marriage and civil partnership are the same. Noble Lords may remember from our debate in Grand Committee that the right reverend Prelate was concerned at the suggestion that one could move seamlessly from marriage to a civil partnership arrangement. I would wish to see the process and time frame of moving from one state, marriage, to another, civil partnership, being made as smooth and straightforward as possible. That does not mean that the status of being in a civil partnership is equal to that of marriage.
I fear that by debating this Bill prior to the publication of a civil partnership Bill we are able only to hope that the latter will be enacted and will contain provisions to allow couples to enjoy some of the legal—I stress, legal—obligations proposed, for example, in the Private Member's Bill that was introduced in 2002 by the noble Lord, Lord Lester of Heme Hill.
Lord Filkin: My Lords, we spoke briefly on these issues last week during the first day of Report. I then put on record that it was the Government's intent to introduce the civil partnership Bill into this House by the end of March. I think that that is the first time that that had been referred to publicly. The consequence of that if, as we hope, it makes sensible progress—I note with gratitude the expression of support from the noble Baroness, Lady Buscombe, to that effect—is that this Bill should go live in April 2005 and the civil partnership Bill would go live in about October 2005, some six months later.
In short, a transsexual person who was married and wished to have their acquired gender recognised in law would be able, if they wished, to move ahead forthwith. Alternatively, if they wished to avail themselves of the very simple transition that we believe we have identified—from the married status through divorce to civil partnership, the final stages of which
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we believe could be done in one day—they could wait until then. Therefore, they are in control of whether they move ahead forthwith or stay in their position.
That is a decent choice, but it is not a good reason for not proceeding with allowing transsexual people who are married and do not wish to wait until the civil partnership provision is in place to avail themselves of the legal opportunity as soon as possible or, indeed, the vast majority of transsexual people who are single.
I am with the noble Baroness in terms of intent—we want this process to be as quick as possible. If the gap is only six months, that is excellent. We have made the transition process as short and simple as possible—it can be as short as one day. People are in control of what they do. We feel this is the best possible situation, recognising that the two pieces of legislation cannot be synchronised exactly. I hope, with that explanation on the record, the noble Baroness will not press the amendment.
10.15 p.m.
Baroness Buscombe: My Lords, I thank the Minister for his reply. I do not want to detain the House tonight, but I believe the Government should accept that it is wrong in principle to introduce one Bill, encourage noble Lords to support it and see it through to the statute book, before a Bill such as the civil partnership measure, which is of great importance to this Bill, is passed.
The provisions of the civil partnership Bill will, as we understand it, enable those who have to go through this really difficult process of divorce to be able to move to another form of legal status such as a civil partnership. However, I believe the Government have got it wrong; they have introduced the wrong Bill at the wrong time. The Government should have introduced the civil partnership Bill, seen it through and then, assuming that it makes it on to the statute book, introduce this very difficult Gender Recognition Bill that requires noble Lords to accept the notion that there must be a divorce or annulment if an individual wants to have full gender recognition when that individual is married and is changing gender.
As I have said, I do not want to detain noble Lords tonight, but I believe this is a matter of principle. However, I will not press the Question.
Clause 26 [Applications within six months of commencement]:
Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 129:
Page 11, line 7, leave out from "applies" to end of line 15 and insert "where applications are made under section 1(1)(a) during the period of two years beginning with the appointed day ("the initial period").

(1A) Section 2(1)(a) has effect as if there were inserted at the end "or has undergone surgical treatment for the purpose of modifying sexual characteristics,"

(1B) In the case of an application which—

(a) is made during the first six months of the initial period, or

(b) is made during the rest of the initial period and is based on the applicant having undergone surgical treatment for the purpose of modifying sexual characteristics,

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section 2(1)(b) has effect as if for "two" there were substituted "six".
(2) Subsections (3) and (4) apply in the case of an application to which subsection (1B) applies and in the case of an application—

(a) made during the rest of the initial period,

(b) based on the applicant having or having had gender dysphoria, and

(c) including a statutory declaration by the applicant that the applicant has lived in the acquired gender throughout the period of six years ending with the date on which the application is made."

The noble Lord said: The noble Lord, Lord Goodhart, expressed the view in Committee that six months might be too short a time, taking into account the fact that some transsexual people may not become aware of the simplified procedure or that there might be extraneous circumstances outside their control which prevent them applying within the period.
In considering the noble Lord's arguments, I also considered a situation in which a married transsexual person who will have to end the marriage before he or she acquires full recognition may wish to wait for civil partnership legislation to come into effect so the relationship can be put back on a legal footing almost immediately. I am therefore proposing that the simplified procedure should be available for the first two years of the operation of the gender recognition panels. That should provide sufficient time for a transsexual person to find out about the process, prepare an application and make all the necessary arrangements, especially where a spouse or children of the family are involved.
The simplified procedure will be exclusive for the first six months. It is only fair that applications from those transsexual people who have lived in the acquired gender for a long time have their applications dealt with first. For a further 18 months the simplified procedure will run alongside the standard application procedure.
The amendment proposed by the noble Lords, Lord Goodhart and Lord Carlile of Berriew, Amendment No. 130, seeks to make the provisions in
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Clause 26 available to any person who is able to satisfy the panel that he or she was entitled to apply on those provisions in the first two years of the operation of the panels but has a reasonable explanation for not doing so. I am concerned as to how the panel would be expected to exercise the discretion that is proposed. The amendment provides no guidance on what would constitute a reasonable explanation. The amendment would add discretionary aspects to the panel's deliberations and would decrease the simplicity and clarity of the panel's work. I also wonder whether the amendment would make the panel unduly vulnerable to challenge when exercising its discretion in this matter.
I am convinced that the government amendment that I have outlined is an uncomplicated solution that addresses the concerns raised in Committee and those of the noble Lords whose amendment is before us today. It is unclear what further advantage their amendment would bring. I beg to move.
Lord Goodhart: My Lords, I am grateful to the Minister. I put forward two amendments in Committee. One was to extend the fast-track period from six months to 12 months; the second was to allow discretionary applications to be made after the end of the 12-month period. The Government now propose to extend the fast-track period to not one year but two years. I regard that as adequate and I shall therefore not seek to move the amendment calling for a further discretionary extension.
On Question, amendment agreed to.
[Amendment No. 130 not moved.]
Clause 27 [Extent]:
Lord Filkin Lord Filkin moved Amendment No. 131:
Page 11, line 41, leave out paragraph (a).
On Question, amendment agreed to.
In the Title:
[Amendment No. 132 not moved.]
House adjourned at twenty-four minutes past ten o'clock.