Lords Sitting of 10 February 2004

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Worcester

Northern Ireland: Racist Attacks
Lord Chan Lord Chan asked Her Majesty's Government:
What is their response to recent reports of racist attacks against black and other ethnic minorities in Northern Ireland.
The Lord President of the Council (Baroness Amos): My Lords, the Government have frequently put on record our abhorrence of all forms of intolerance. We have developed a co-ordinated response and will be publishing our race equality strategy for Northern Ireland this summer. Enforcement action by the Police Service of Northern Ireland will continue to be key. Today, the Government published legislative proposals to deal with what is often termed "hate crime". The Government are committed to eradicating all such manifestations of hatred, and to the creation of a safer and more tolerant Northern Ireland.
Lord Chan: My Lords, I thank the Minister for that helpful reply, but is she aware that there have been more racist attacks against the Chinese community in Belfast this January than in the entire 12 months of 2003? Further, is she concerned that racial attacks against Chinese businesses and families in England have increased since 2000, especially during the Chinese new year season of January and February?
Finally, will she confirm whether the Government will take steps to prevent any perverse racial attacks against the Chinese community as a result of the tragedy at Morecambe Bay, which indicates that it is about time that the Home Secretary's brave proposal of an amnesty for migrant workers who are here illegally was put in place?
Baroness Amos: My Lords. I thank the noble Lord. I am aware of the increase in racial attacks against the Chinese community in Northern Ireland, about which we are very concerned. The noble Lord will be aware that the Chinese community makes up the bulk of the ethnic minority community in Northern Ireland. We have been in discussion with members of community organisations about the best way to tackle the problem.
With respect to the wider question and the tragic incident in Morecambe Bay, the noble Lord will be aware that we have a clear, three-pronged strategy. The first prong is to tackle asylum; the second is to ensure that we work to build community cohesion; and the third concerns managed migration.
Lord Smith of Clifton: My Lords, does the Minister agree that the lack of police activity in the Village area
1034
of south Belfast has enabled loyalist terrorists to grow in strength there? It is not the first time that they have used their muscle: they have cleared students and Roman Catholics out of the area in the past. How many arrests have been made in recent weeks by the police dealing with those activities in the Village area?
Baroness Amos: My Lords, the situation in Northern Ireland is somewhat complex and, as I understand it, there may be a number of reasons why those attacks have increased. We have nationalist parties operating; we have protection rackets and people trafficking; and there is an allegation that some attacks are linked to the paramilitaries, although the noble Lord will be aware that the paramilitary organisations have made it absolutely clear that those attacks are unacceptable.
Policing is more visible and I understand that there have been three arrests, although I am not aware of what has happened about charging.
Lord Campbell of Alloway: My Lords, to put the matter in perspective, ought not a great tribute be paid to the police for the wonderful and difficult work that they have done in stopping Chinese terrorist gangs victimising their own countrymen in this country? They have done a fantastic job and, if we are to talk about the subject, there should be some balance to it.
Baroness Amos: My Lords, the Question concerns the situation in Northern Ireland, but on the noble Lord's point, of course the police are to be congratulated on the higher visibility policing that we have seen in areas where ethnic minority communities feel vulnerable. He will be aware of the announcement yesterday of a government initiative to tackle organised crime.
Viscount Brookeborough: My Lords, first, I declare an interest as a member of the Northern Ireland Policing Board. Is the Minister aware that liaison officers have recently been appointed in each district to deal with ethnic matters? Is she further aware that the day after tomorrow, the Community Involvement Committee, of which I am a member, is gathering representatives of minority communities, especially the Chinese, and of the senior police responsible for community involvement to a meeting to help to sort out the problem?
Baroness Amos: My Lords, I am aware of the appointment of ethnic minority liaison officers in each neighbourhood in Northern Ireland. I was not aware of the meeting, but I am pleased that it is going ahead and that the community, the police and the government agencies are coming together in this way.
Lord Laird: My Lords, as the Minister may recognise, I used to represent the Village area of Belfast. I am sure that the Minister will join me and every other right-thinking person in Northern Ireland to condemn these attacks without reservation, no matter who they are on, no matter what race or for

1035
what reason. I am sure she will agree that we should ask all right-thinking people to report any information that they have to the police immediately, to make sure that this nonsense is stopped for once and for all.
Baroness Amos: My Lords, the noble Lord is right. Of course I agree that we want to see condemnation of these attacks and we want to see these attacks stop. That is why the work of the Police Service of Northern Ireland is so important. We also need to work together to build community cohesion.
The Lord Bishop of Southwell: My Lords, will the Minister encourage and facilitate both Christian and other faith community groups and their leaders to work more closely together to combat xenophobia? Will the Minister investigate the schools curriculum to find imaginative, new, creative ways in which to help to build social cohesion?
Baroness Amos: My Lords, of course I agree with the right reverend Prelate. We need to work across the faiths. I will discuss the issue of education with my colleagues, and I will make the right reverend Prelate's point to them.
Lord Brooke of Sutton Mandeville: My Lords, given the extent to which the paramilitaries have been able to exercise their will in particular parts of Belfast, do the police believe the paramilitaries when they say that they have no part in what has been going on?
Baroness Amos: My Lords, as I understand it, the police consider that a complex range of issues are coming together. In answer to another question, I said that not only were there issues with respect to people trafficking, but with nationalist parties from Great Britain that are seeking to organise in Northern Ireland, as well as allegations with respect to the paramilitaries. All of these issues are being investigated by the police.

Chlamydia Screening Programme
2.45 p.m.
Baroness Gardner of Parkes Baroness Gardner of Parkes asked Her Majesty's Government:
Whether the chlamydia screening programme will only cover a quarter of primary care trusts; and, if so, what significant impact they expect this screening to achieve.
Baroness Andrews: My Lords, the aim of the chlamydia screening programme is to implement, by 2008 at the latest, a national prevention and control programme in England. We have already achieved coverage of over a quarter of primary care trusts in just over two years. Early detection and treatment of chlamydia not only reduces the prevalence of lower
1036
genital tract infections, but decreases the incidence of costly longer-term complications such as pelvic inflammatory disease and infertility.
Baroness Gardner of Parkes: My Lords, I thank the Minister for that Answer. I am glad that the Government are doing something. Unfortunately, it is not enough. Is the Minister aware that in the six years before 2002, chlamydia infection increased by 141 per cent, and in the most recent year's figures it increased by 14 per cent? Does she agree that one of the real problems is that 70 per cent of women and 50 per cent of men with the infection are totally unaware that they have it, and are symptomless? It is for that reason in particular and in view of the young age of those mostly affected that screening is the only thing that works.
Baroness Andrews: Yes, my Lords, all the figures that the noble Baroness has given are absolutely right. They present a depressing story, particularly because so many young women and men do not know that they are at risk. We have followed the National Strategy for Sexual Health and HIV, which is one of the first in Europe, and we have emphasised the screening programme that was introduced last year following the pilot. We are now at phase two, and by the summer we will have reached phase three, by which time over 100 PCTs will be involved. We will be reaching a lot of people in opportunistic screening where real use can be made of the findings. We are putting a lot more money into screening: £40 million in the past two years and another £26.4 million following the Health Select Committee's report.
Lord Rea: My Lords, can my noble friend reassure me that the screening programmes take adequate account of the role that men play in the spread of this infection? In sexually transmitted disease clinics, it is normal to ask the patient to inform their partner, and if that is not possible to slip them an anonymous calling card. At this time of year, it would be rather an unwelcome Valentine. Would she agree that to treat patients who then go back to their infected partners is rather a waste of time?
Baroness Andrews: My Lords, we are certainly targeting young men. We are conscious of the fact that young men are less confident about coming forward than young women. We have commissioned the Men's Health Forum to look at ways of helping us to develop the right strategies. We are looking at ways of reaching young men, through men's magazines, men's clubs, armed services bases and other places where we can be effective. In schools, the DfES is working with the National Children's Bureau to develop guidelines about how sex education can reach boys more effectively.
Baroness Masham of Ilton: My Lords, does the Minister think that in the long run it would be cost effective to make chlamydia notifiable?
Baroness Andrews: My Lords, we have chosen an opportunistic screening programme simply because

1037
we know that it is effective. We are reaching those people who we need to reach. For the moment, that is the most effective thing to do.
Baroness Barker: My Lords, does the Minister have an estimate of the cost of delaying the full roll-out of this programme to 2008, as opposed to the cost of increases in infertility and ectopic pregnancies and the cost to the department of treating those conditions?
Baroness Andrews: My Lords, I do not have a comparative cost. It is difficult to cost infertility. I take issue with the word that the noble Baroness used— "delaying". We are actually rolling this programme out faster, because as each phase comes on stream, we can learn from what we have achieved. Introducing a screening programme is not an instant fix, especially something like this where there must be a framework for follow-up, testing and treatment. We are actually making better progress than we thought at the beginning.
Baroness Perry of Southwark: My Lords, given that the 16 to 24 year-old age group is most affected by chlamydia, is it not particularly important that clinics in universities and colleges, and those dealing with upper secondary schools, are given priority in this programme, and that the educational programme carried out in schools emphasises the dangers and risks?
Baroness Andrews: Yes, my Lords. That is precisely why we are phasing in the programme to target educational establishments, such as colleges of further education, in particular. The reason for the age limit of 24 is that that is the age of greatest sexual activity. In addition, I understand that women are less likely to contract chlamydia as they grow older. We need to focus our resources where they would be most useful.
Baroness Gould of Potternewton: My Lords, I declare an interest as the chair of the Independent Advisory Group on Sexual Health and HIV. Is my noble friend aware that last year NICE recommended free IVF treatment on the NHS, but in doing so it did not refer to the relationship between infertility and chlamydia, which has been raised in this Question? What action is being taken to ensure that if the NICE proposals are implemented, that causal effect will be taken into account?
Baroness Andrews: My Lords, one of the reasons that we are accelerating the programme is the devastating consequences of infertility. An estimated 20 per cent of infertility cases are caused by chlamydia. The guidelines are scheduled for publication at the end of this month. The Government's position will be determined in the light of the final version. I am afraid that I shall have to ask my noble friend to await that outcome.
Earl Howe: My Lords, can the Minister clarify her earlier answer in which she said that 100 PCTs would
1038
be eligible for the screening programme later this year? Am 1 not right that the Department of Health's own report into the pilot screening programme in 2000 said that chlamydia screening should be introduced nationwide? What is the time-frame for doing that? Although the Minister is keen to tell us that the rate of progress has been good, I am not sure that I see it that way. Why has progress not been faster?
Baroness Andrews: My Lords, by the summer one-third of all PCTs will be in the screening programme. The noble Earl is right; it followed a highly successful pilot in which the efficacy of screening was proved by the take-up and the outcomes. I believe that in my original Answer I said that it would happen by 2008 at the very latest. We might be able to make faster progress if we can learn as the programme evolves We are quite optimistic. We are taking radical steps to inform people, as I am sure noble Lords will have seen, about the need to be aware that they are at risk. It is to be hoped that we will make fast progress.

Winter Fuel Payment
2.53 p.m.
Lord Ashley of Stoke Lord Ashley of Stoke asked Her Majesty's Government:
Whether the winter fuel payment can be extended to the 1.27 million severely disabled adults and children who receive the middle or higher rate of the disability living allowance care component, or the higher rate of the mobility component.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Mollis of Heigham): My Lords, winter fuel payments were created to ensure that the elderly can afford heating in cold weather. After all, 95 per cent of all the additional winter deaths are of pensioners. There are no plans to extend the payments to any groups below 60.
Lord Ashley of Stoke: My Lords, I thank my noble friend for that response. Does she recall that on the previous occasion on which I made this request she rejected it and gave the unconvincing excuse that, of those in fuel poverty, only 4 per cent were severely disabled, and that disability living allowance was available to help with fuel costs? Regardless of whether the figure is 1 per cent or 4 per cent, many severely disabled people—there are more than 1 million— cannot afford fuel to heat their homes or water, or to cook. It is irresponsible to leave such people unable to live a normal life. Will my noble friend remember that disability living allowance, which she said can help with fuel costs, is also supposed to help with the costs of food, laundry and care, so there is precious little left to cover fuel costs? Do the Government still say "no" to extending those payments to severely disabled people?
Baroness Mollis of Heigham: My Lords, I am afraid that, again, I shall have to challenge my noble friend's assertions. Disabled people, including severelydisabled people under 60, receiving DLA are not only half as likely to be in fuel poverty as pensioners, they are less likely to be in fuel poverty than the rest of us. That is because disability benefits, including DLA, are doing their job, and I am delighted that they are.
I shall give just one example: a lone parent with a non-disabled child will get £2,500 a year—about £50 a week—in financial support. If that child were severely disabled, the lone parent would get, not £2,500, but £10,000 a year in financial support—four times as much. I am delighted about that, but it means that the non-disabled child, not the disabled child, is more at risk of fuel poverty.
Lord Ezra: My Lords, not for the first time, the noble Lord, Lord Ashley of Stoke, has made the point that the winter fuel payment should be extended to severely disabled people below the age of 60, a number of whom, despite what the noble Baroness has said, could be in fuel poverty. In that connection, does she agree that fuel poverty is closely linked with poor housing? Can she assure us that severely disabled persons, particularly those who are housebound, will be given priority in ensuring that their homes are effectively insulated and provided with good heating?
Baroness Hollis of Heigham: My Lords, the noble Lord is absolutely right that fuel poverty is not only about income; possibly at least as importantly, it is about the state of housing. It is about whether the house is insulated; the fact that one quarter of our stock is pre-First World War; and pensioners, in particular, are likely to be under-occupying. In rural areas, pensioners are often not attached to gas mains so that their heating costs are proportionately higher. That is why pensioners are at most risk.
Whereas in 1997 nearly half of all our housing was below what we regard as a decent standard, primarily because of lack of thermal efficiency, we have brought that down to one third. Around 700,000 families on income-related benefits have received warm-front grants, and local authorities have received nearly £8 billion to bring the housing stock up to decent levels. We have some way to go, as housing stock is what we inherit, and it takes many years to renew it. But I am confident that the Government are well on their way to meeting their targets in that direction.
Lord Tomlinson: My Lords, does my noble friend not agree that, as she has rested heavily in her argument on the estimation of fuel poverty, it is a nonsense that everybody over the age of 60 receives the winter heating allowance, irrespective of need? Is there not a more fundamental case that needs at some time to be tackled: getting proper means-testing of all benefits, and benefits dealt with by a single mechanism rather than this complex multiplicity of mechanisms, which many people do not understand?
Baroness Hollis of Heigham: My Lords, there is a range of views about the efficacy or the right balance between means-tested or income-related benefits on the one hand and universal benefits on the other. The Government, for example, have increased their expenditure on pensioners in real terms since 1997 by £9 billion, half of which has gone to the poorest one-third, as my noble friend would like. But 52 per cent of those in fuel poverty are pensioners. That is why it makes sense to make this a universal benefit to those over 60.
Lord Skehnersdale: My Lords, disability living allowance at its various rates is intended as help from the taxpayer for those with extra costs resulting from their disability. Surely some of those extra costs are heating. Therefore, is there not a heating element in the calculation of DLA?
Baroness Hollis of Heigham: My Lords, DLA is meant to assist disabled people to meet the additional costs of their disability. In some cases, particularly for those with mobility problems, heating may be an issue; for others, it may be about diet; for others, it may be laundry. Around one-third of disabled people on disability benefits have mental health problems that may have no connection to heating needs. The noble Lord is right that it is a general benefit which disabled people and their carers can use as they see fit. But disabled people receiving those benefits are less likely to be in fuel poverty precisely because those benefits are adequate enough to meet their needs.
Lord Ashley of Stoke:My Lords, I am sorry to come back again. Instead of digressing on those byways and side-paths of other people who may or may not be worse off, perhaps my noble friend would deal with the central issue that I raised. More than 1 million severely disabled people cannot afford to heat their homes and water or to cook. How do the Government intend to deal with that?
Baroness Hollis of Heigham: My Lords, I am sorry, but I still challenge my noble friend's assertion. There are 1.3 million disabled people in receipt of attendance allowance. As they are more than 60 years old they receive the winter fuel payment. Of those who are in receipt of disablement benefits, whether income support, DLA or whatever, only a tiny proportion— something like 7 per cent, as far as we know—are suffering from some evidence of fuel poverty. It simply is not the case, as my noble friend said, that 1 million severely disabled people are suffering fuel poverty.

Iran: Democratic Reform
3 p.m.
Lord Phillips of Sudbury Lord Phillips of Sudbury asked Her Majesty's Government:
How they are co-operating with Iran to support its democratic evolution.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, we seek to support reform in Iran while maintaining a critical dialogue on areas of concern, such as Iran's approach to proliferation of weapons of mass destruction, human rights, the fight on terrorism and the Middle East peace process. We are concerned about reports that the final candidate list for Iran's parliamentary elections on 20 February is likely to exclude a large number of candidates. Our concerns are widely shared in the European Union and elsewhere.
Lord Phillips of Sudbury: My Lords, I am most grateful to the noble Baroness for that reply. I am sure that most noble Lords feel alarm at the blocking of reformist candidates. Does the Government agree that Iran, besides being in the early stages of its democratic development and being a theocratic state, also has a constitution of Byzantine complexity? If the Minister agrees, do we have any basis on which to influence the Iranians so that in future the Guardian Council will not have the power it currently exercises to block reformist candidates?
As a member of the Government, does my noble friend accept that there must be a serious governmental balance struck between the dialogue to which she has referred, which many of us have advocated for many years—be that dialogue constructive or be it critical—and perceived support which, given at the wrong time, can be seriously conunterproductive?
Baroness Symons of Vernham Dean: My Lords, I agree with much of what my noble friend has said. I shall be
1042
meeting the Iranian Ambassador later this week. I shall ensure that I give him a copy of the exchanges that have taken place in your Lordships' House. Perhaps I may make one point to my noble friend. As he said, the original list of candidates barred was some 3,600. That has been reviewed. Although it is not enormously improved, the number is now lowered to some 2,300. Furthermore, although there were a greater number of the current deputies barred, the number now is 70 out of the 290 deputies currently sitting.
There has been a marginal improvement. I just say that for the record. But the fact is that that makes no difference to the fundamental point made by my noble friend Lord Temple-Morris, which is that this is not the way to improve Iran's democratic credentials.
Lord Marsh: My Lords, given that true democracies are very rare in the world—the vast majority of countries are not true democracies by any calculation—could the Minister tell us on what criteria the Government decide which emerging democracies they choose to support and influence as opposed to all the others?
Baroness Symons of Vernham Dean: My Lords, of course there are many different standards of what one regards as democratic. I am sure that there are people all over the world who will look even at your Lordships' House and raise various questions. As I have already pointed out to some of my interlocutors on this point, the fact is that in this instance there are 70 individuals who, as of today, are able to sit in the Majlis in Iran who will be excluded from the elections on 20 February. That is not going forward in democratic terms. Alas, it appears to be going backwards.
Lord Archer of Sandwell: My Lords, does my noble friend agree that a regime condemned yet again by the last General Assembly of the United Nations for practising torture, amputations and blindings is not even pretending to evolve towards democracy? Can my noble friend assure the House that, so far as concerns, the United Kingdom, Iranians found in Iraq will not be returned to the clutches of the torturers and murderers from whom they are trying to escape?
Baroness Symons of Vernham Dean: My Lords, of course, we will have to look very carefully at any individuals who are claimed by countries that practise torture, amputations and various forms of capital punishment. I accept what my noble and learned friend has said. There is an enormous amount of ground to work on with the Iranians in relation to human rights. There is progress, albeit very slow. For example, we have been able to work on an announcement by the Supreme Administrative Court that the practice of stoning has been suspended.
I recognise that that may seem a marginal point to some of your Lordships. We are calling for a moratorium on all the hideous forms of amputation that are practised as a means of discipline, as a means of a legal system. But there is a great deal of work to do in that respect. We certainly do not shirk from undertaking it.
Lord Howell of Guildford: My Lords, does the Minister agree that there are signs that the Iranian Government want to have closer links with the West and to play a more responsible global role? In particular, the young people of Iran seem to be strongly pro-West and many of them want to live in the United States. As this exchange has confirmed, there is not much democratic evolution going on in Iran at the moment, with those 2,000 candidates banned from the elections next week.
Would those who have contact with Iran, including this Government, keep reminding the Iranians that if they want closer and better relations, free elections are better than building nuclear weapons? They would provide a much better basis for the close relations which are needed. In some ways, that is evidenced by the very warm reception that Prince Charles has had on his visit to Iran where he took our sincere condolences to the people of Iran for the horrific slaughter in the town of Bam.
Baroness Symons of Vernham Dean: Yes, my Lords, of course. On that last point, I am sure that we all welcome the visit of His Royal Highness to Bam, which he undertook in his role as patron of the Red Cross. I am sure that he was able to bring comfort to that city in its dreadful plight. Of course the noble Lord is right. We want to see free elections. I would not wish your Lordships to take away an entirely gloomy picture of what is happening in our relationship with Iran.
As I indicated in my initial response to the noble Lord, Lord Phillips, we are supporting reform in Iran. We believe that we are working with the grain of the reformists in Iran. We should not forget that there are elected deputies and elected people in positions of power in Iran. As I think your Lordships have been able to discuss, the problem arises with the role of the Guardian Council. Of course we are engaged in very important discussions; for example, on the whole issue of weapons of mass destruction. We should not throw away what is good, what is working in the relationship, where we believe that we can work with reforming influences because there is still a very bad record on human rights and there also appears to be a rather less full approach to the elections on 20 February than we would wish.

Airline Passengers: Wheelchair Levy
3.10 p.m.
Lord Carter Lord Carter asked Her Majesty's Government: What is their view of the proposal to charge airline passengers a levy on each ticket to cover the cost of providing wheelchairs for disabled passengers when the proceeds of the levy will exceed the cost of providing wheelchairs.
Lord Davies of Oldham: My Lords, the setting of fares is entirely a matter for individual airlines. However, as a matter of principle, the Government welcome the recent ruling that the cost of providing assistance should not be passed on to the disabled passenger. That principle is enshrined in the Department for Transport's voluntary code of practice for the UK air industry and in the European Airline Passenger Service Commitment.
Lord Carter: My Lords, I thank my noble friend for that Answer. Is he aware that the wheelchair levy of 50p on every ticket that Ryanair is charging will raise £12 million per annum, which will far exceed the actual cost to Ryanair of providing wheelchairs—about 2p per ticket? Leaving aside the question of whether there should be a charge for providing wheelchairs at all, does my noble friend agree that the levy is a disgraceful example of using disability as an excuse for blatant profiteering? Should not the levy be referred to the Office of Fair Trading? The Ryanair website states:
"The amount of the levy will be continuously reviewed upwards or downwards to ensure that Ryanair collects only what is required to cover the provision of assistance at Stansted".
Lord Davies of Oldham: My Lords, Ryanair, of course, is not a British airline. Therefore, there is a limit to how much British law can influence and affect Ryanair. My noble friend has identified the key point, that originally the intention was to pass the cost on to disabled passengers. Following the court ruling, it has been suggested that the charge for each ticket should rise by 50p, when the actual cost of providing for disabled passengers may be only 2p per ticket.
Lord Forsyth of Drumlean: My Lords, why is this not the responsibility of the airport operators? Surely it should be for the British Airports Authority to ensure that passengers can be safely taken to their points of departure. It should not be left as a squabble between the BAA and the airlines. If the BAA can afford to provide free parking for Members of Parliament, surely it can afford wheelchairs for the disabled.
Lord Davies of Oldham: My Lords, the noble Lord has identified the fact that the legislation implemented by airports stops at the point at which the passenger embarks, is cared for on the aircraft and disembarks from it. The provisions of the draft Bill propose that the requirement should extend to the aviation industry and to the aircraft. Therefore, when my noble friend's committee has finished its pre-legislative scrutiny and we are able to consider the Bill, we shall consider extending the provisions to airlines.
Lord Morris of Manchester: My Lords, does not the court's decision in this deeply disturbing case reflect very high credit on the DRC and emphasise again the urgency of the need to enact the Government's new legislation on disability discrimination?
Lord Davies of Oldham: My Lords, I agree with my noble friend. The court case was clear that the commission was right to raise the issue, and it obtained a judgment in its favour. That demonstrates the excellent work that the commission does on behalf of the disabled. As my noble friend rightly said, the next stage is to ensure that we introduce measures to advance the cause of the disabled.
Lord Addington: My Lords, will the Minister give an assurance that the Government will use their influence and power to ensure that this sort of objectionable profiteering does not carry on and that disabled people are never again used as an excuse for upping the price of tickets?
Lord Davies of Oldham: My Lords, as I indicated in my original Answer, Ryanair is not a British airline. But, of course, the European Commission is also active in this area and proposes to introduce regulations to deal with the situation.
Lord Hughes of Woodside: My Lords, if Ryanair is unwilling to change its policy, might it not qualify for the accolade "Cheapskate airline of the year"?
Lord Davies of Oldham: My Lords, I am not sure that my role is to comment on the virtues or defects of particular airlines, but I think that in this case the slogan "no frills" is not a particularly advantageous advertisement.
Lord Campbell of Croy: My Lords, I begin by declaring an interest. Since World War II, I have been dependent on wheelchairs at airports. Can the Government make any suggestions as to how the levy is to be calculated?
Lord Davies of Oldham: My Lords, the Government's intention is not to introduce a levy, but to introduce a law and consequential regulations that oblige airlines to treat disabled passengers in a totally non-discriminatory way.
Lord Strathclyde: My Lords, with regard to the question of my noble friend Lord Forsyth, will the Minister give a clear answer? Do the Government believe that the airport operators, rather than the airlines, have a responsibility in this respect?
Lord Davies of Oldham: My Lords, under British law, the airport operators have a clear responsibility, which they fulfil, to care for disabled passengers in a non-discriminatory and helpful way. The problem is that the law does not extend to the boarding of aircraft, to passenger seats on aircraft or to disembarkation. Our proposed legislation, and that of the European Commission on behalf of all the European airlines, addresses that feature.

Justice (Northern Ireland) Bill [H.L.]
3.17 p.m.
Read a third time.
Clause 4 [Appointment of Lord Chief Justice and Lords Justices of Appeal]:
Lord Glentoran Lord Glentoran moved Amendment No. 1:
Page 3, line 8, at end insert ", and
(c) consult the Lord Chancellor"
The noble Lord said: My Lords, this group of amendments was tabled on Report but, due to the delayed start occasioned by a Statement and my particular desire to move on quickly to Clause 5, I did not move them. I now return to them because I believe that they are an extremely important part of the Bill and because I believe that Her Majesty's Government have again got it wrong. In principle, the amendments refer to the appointment of the Lord Chief Justice and Lords Justices of Appeal.
There should not be only a single name put forward either jointly or by the First Minister and Deputy First Minister. 1 suggest that they can and should indicate their preferences and, where these coincide, they should carry significant weight.
According to the Bill, the Prime Minister's duty remains to make the appointment on merit, which I support entirely. He or she must be capable of being satisfied that the paramount requirement—the merit principle—is fulfilled. Any other interpretation would mean that the predominant consideration was political. Therefore the existing practice, at least as it was under my noble and learned friend Lord Mackay and probably under the noble and learned Lord, Lord Irvine, and it is hoped under the noble and learned Lord, Lord Falconer, whereby the field was very carefully surveyed in close consultation with the most senior judiciary, needs to find continuing expression in Northern Ireland and to be a part of the procedure. It should be considered seriously whether not only the Lord Chief Justice should be consulted personally, but also that the views of the Judicial Appointments Commission as a whole should be known.
It is also desirable that the Lord Chancellor should continue to be consulted. As I read the Bill, the Lord Chief Justice of Northern Ireland will have either no or very little input, and the Judicial Appointments Commission absolutely no input. In that context, it may be that, in practice, the convoluted provisions for devising apparently ad hoc procedures for each such appointment set out in Clause 4(5) and (6) will take some or all of the above into account. But the Judicial Appointments Commission is certainly not permitted to recommend names. Both this and what is to happen generally need to be spelt out clearly on the face of the Bill, otherwise there is a real danger that such appointments will lack well informed and carefully considered advice, and degenerate into political horse-trading.
The Government say that they set out to ensure the depoliticisation of judicial appointments in Northern Ireland. But what they have done is the opposite and

1047
in my opinion it was done in a cynical way. I believe that most of the Bill has emerged as the result of debate, discussions and negotiations with political parties. Much of what is in it, including these clauses, is at the behest of one or other of those political parties. In anyone's book, that is not depoliticisation; it is politicisation.
We only have to compare this with what Her Majesty's Government think is right for England and Wales. I refer to some of the provisions. For appointments to the Court of Appeal, a senior appointments panel will be established by the Judicial Advisory Commission for England and Wales comprising the Lord Chief Justice, a head of division or other Court of Appeal judge chosen by the Lord Chief Justice, the chairman of the Judicial Appointments Commission or a deputy chosen by him—a lay member, and a further lay member of the JAC chosen by the chairman. This panel will provide one name for the vacancy specified and a list of other candidates who might be suitable.
The Secretary of State—I am not being political in saying that; while the provision refers to the Lord Chancellor's Department, it will involve the Secretary of State for Constitutional Affairs—can ask the panel once to reconsider, and he can reject a candidate once.
For appointments to the head of division, including the Lord Chief Justice, the senior appointments panel will be made up of the most senior of the judges from England and Wales who are members of the Supreme Court from England or a deputy chosen by him; the Lord Chief Justice or, if appointing to the post of Lord Chief Justice, a head of division or other appropriate judge chosen by the senior judge as mentioned above; the chairman of the Judicial Appointments Commission or a deputy chosen by him—a lay member; and a further lay member of the JAC chosen by the chairman.
In conclusion, not only does the Judicial Appointments Commission for England and Wales have a hand in the consultation process, it can recommend the candidates. For Northern Ireland, however, the First Minister and Deputy First Minister consult the JAC only about procedure in making a single recommendation to the Prime Minister. I suggest that this is monstrously inconsistent and very political. I beg to move.
Lord Monson: My Lords, the noble Lord, Lord Glentoran, made a powerful and, I suggest, overwhelming case for these amendments. While there is no problem with Amendments Nos. 1, 2 and 3, I wonder whether there might be a drafting error in Amendment No. 4, which is rather less important than the other three. Should not the word "and" appear after the word "recommendation"?
Baroness Amos: My Lords, I am aware of the concerns of the noble Lord, Lord Glentoran, about this issue. It is clear that the noble Lord is seeking to
1048
build in safeguards in relation to senior judicial appointments to minimise his concerns about the possible scope for political influence.
Perhaps I may say at the outset that throughout our examination of the Bill we have sought to ensure that the independence of the judiciary is upheld. The noble Lord referred to what would be relevant in England and Wales. I should say to him that there are common principles relevant to all three jurisdictions of the United Kingdom—Northern Ireland, Scotland, and England and Wales. These are the ideals of enduring judicial independence, transparency, accountability and high public confidence in the judiciary.
However, the fact that there are three jurisdictions means that certain differences in approach will be taken at the operational level. In practice these differences are right, proper and necessary to reflect the differences between the jurisdictions. Moreover, one point that has been made abundantly clear in our discussions about the Bill is that there are particularities in Northern Ireland which we need to take into account. So I am sorry that the noble Lord is not convinced that the procedure on devolution for senior judicial appointments is sufficiently robust.
Amendments Nos. 1 and 3 seek to provide for statutory consultation with the Lord Chancellor when making senior judicial appointments. The Prime Minister will make a recommendation to Her Majesty after considering the recommendation of the First Minister and Deputy First Minister. The Lord Chief Justice will be consulted, as provided for in the Justice (Northern Ireland) Act 2002. His views will be made known to the Prime Minister. Further, there is nothing to stop the Prime Minister or the First Minister and Deputy First Minister consulting the Lord Chancellor.
However, I must remind noble Lords that we are discussing senior judicial appointments in a post-devolution criminal justice environment when the Lord Chief Justice will be head of the judiciary in Northern Ireland, not the Lord Chancellor. I would therefore propose that it is not necessary to provide for statutory consultation with the Lord Chancellor.
Amendment No. 2 seeks to specify that when making senior judicial appointments, the First Minister and Deputy First Minister will supply a list of at least three names to the Prime Minister. The clause as it stands gives the Prime Minister flexibility over the number of names he might require from the First Minister and Deputy First Minister. Of course the Prime Minister might ask for three names, or he might ask for fewer than three. The Prime Minister can decide in each case. We believe that this flexibility is important and should be maintained.
The effect of Amendment No. 4 would be that the Judicial Appointments Commission, as well as advising the First and Deputy First Ministers on the procedure to adopt when making senior judicial appointments, would also advise on the substance of the recommendations. Recommendation 85 of the Criminal Justice Review states:

1049
"The First Minister and Deputy First Minister should consult with the Judicial Appointments Commission over the procedure to be adopted in appointments to the positions of Lord Chief Justice and Lords Justices of Appeal".
The review did not recommend that the commission should provide advice on the substance of recommendations to the Prime Minister. This would give the commission a role in individual appointments to senior judicial offices which was never intended. They are currently required to advise the First Minister and Deputy First Minister on a general process to be used for making recommendations about senior appointments.
I said at the beginning that what we have put in place is robust. Of course we wish to maintain the independence of the judiciary. This is not about political influence or interference. The review was very clear with respect to the Judicial Appointments Commission's direct involvement in appointments. It should cease at the level of the High Court judge. I hope that in the light of this explanation the noble Lord, Lord Glentoran, will feel able to withdraw his amendment.
Lord Glentoran: My Lords, I thank the Lord President. I hear what she says in relation to my Amendment No. 1 on devolution. I am afraid that her arguments on Amendment No. 2 are not acceptable. As a member of the Northern Ireland community, as a Member of your Lordships' House and in my role at the Dispatch Box, I find it quite incongruous that Northern Ireland's judicial system should be downgraded and politicised to the extent that it has been by this Government. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Glentoran Lord Glentoran moved Amendment No. 2:
Page 3, line 8, at end insert—
"( ) Any specification by the Prime Minister under subsection (3)(a) in relation to recommendations from the First and Deputy First Minister must specify that the recommendation shall contain no fewer than three candidates."
The noble Lord said: My Lords, I wish to test the opinion of the House. I beg to move.
3.32 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 106; Not-Contents, 156.

Division No. 1

CONTENTS

Ackner, L.

Bridges, L.

Alexander of Weedon, L.

Brooke of Sutton Mandeville, L.

Ampthill, L.

Brookeborough, V.

Anelay of St Johns, B.

Brougham and Vaux, L.

Astor of Hever, L.

Buscombe, B.

Attlee, E.

Byford, B.

Blaker, L.

Caithness, E.

Bowness, L.

Campbell of Alloway, L

Bridgeman, V.

Carnegy of Lour, B.

1050

Cockfield, L.

Marlesford, L.

Cooke of Islandreagh, L.

Mayhew of Twysden, L.

Cope of Berkeley, L. [Teller]

Miller of Hendon, B.

Courtown, E.

Molyneaux of Killead, L.

Cox, B.

Monson, L.

Crickhowell, L.

Montagu of Beaulieu, L.

Cuckney, L.

Montrose, D.

Dean of Harptree, L.

Moore of Wolvercote, L.

Deedes, L.

Mowbray and Stourton, L.

Denham, L.

Murton of Lindisfarne, L.

Dixon-Smith, L.

Naseby, L.

Dundee, E.

Northesk, E.

Fitt, L.

O'Cathain, B.

Flather, B.

Patten, L.

Fookes, B.

Perry of Southwark, B.

Forsyth of Drumlean, L.

Pilkington of Oxenford, L.

Gardner of Parkes, B.

Platt of Writtle, B.

Gilmour of Craigmillar, L.

Rawlinson of Ewell, L.

Glentoran, L.

Reay, L.

Goschen, V.

Renfrew of Kaimsthorn, L.

Gray of Contin, L.

Roberts of Conwy, L.

Griffiths of Fforestfach, L.

Rogan, L.

Hayhoe, L.

Rotherwick, L.

Henley, L.

Sanderson of Bowden, L.

Hodgson of Astley Abbotts, L.

Seccoombe B [Teller]

Hooper, B.

Selsdon, L.

Howe, E.

Shaw of Northstead, L.

Howell of Guildford, L.

Shaw of Glaisdale, L.

Hussey of North Bradley, L.

Skelmersdale, L.

James of Holland Park, B.

Stoddart of Swindon, L.

Jopling, L.

Strathclyde, L.

King of Bridgwater, L.

Swinfen, L.

Kingsland, L.

Thatcher, B.

Knight of Collingtree, B.

Thomas of Gwydir, L.

Laird, L.

Trefgarne, L.

Liverpool, E.

Trumpington, B.

Lucas, L.

Vinson, L.

Luke, L.

Waddington, L.

Lyell, L.

wade of Chorlton, L.

McAlpine of West Green, L.

Wakeham, L.

MacGregor of Pulham Market, L.

Warnock, B.

Wilcox, B.

Mackay of Clashfern, L.

Willoughby de Broke, L.

Maginnis of Drumglass, L.

Windlesham, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Colville of Culross, V.

Addington, L.

Condon, L.

Ahmed, L.

Corbett of Castle Vale, L.

Amos, B. (Lord President)

Crawley, B.

Andrews, B.

David, B.

Archer of Sandwell, L.

Davies of Oldham, L. [Teller]

Ashley of Stoke, L.

Dholakia, L.

Ashton of Upholland, B.

Dixon, L.

Avebury, L.

Donoughue, L.

Barker, B.

Dubs, L.

Barnett, L.

Elder, L.

Bassam of Brighton, L.

Evans of Parkside, L.

Beaumont of Whitley, L.

Evans of Temple Guiting, L.

Berkeley, L.

Ezra, L.

Bernstein of Craigweil, L.

Falconer of Thoroton, L. (Lord Chancellor)

Boothroyd, B.

Boston of Faversham, L.

Farrington of Ribbleton, B.

Brooke of Alverthorpe, L.

Faulkner of Worcester, L.

Brookman, L.

Fearn, L.

Campbell-Savours, L.

Filkin, L.

Carey of Clifton, L.

Finlay of Llandaff, B.

Carter, L.

Gavron, L.

Chan, L.

Goldsmith, L.

Christopher, L.

Goodhart, L.

Clark of Windermere, L.

Gould of Potternewton, B.

Clarke of Hampstead, L.

Graham of Edmonton, L.

Clinton-Davis, L.

Greengross, B.

Cobbold, L.

Gregson, L.

1051

Grocott, L. [Teller]

Pitkeathley, B.

Harris of Richmond, B.

Prys-Davies, L.

Harrison, L.

Puttnam, L.

Haskel, L.

Radice, L.

Hilton of Eggardon, B.

Ramsay of Cartvale, B.

Hogg of Cumbernauld, L.

Randall of St. Budeaux, L.

Hollis of Heigham, B.

Rea, L.

Hooson, L.

Redesdale, L.

Howarth of Breckland, B.

Rennard, L.

Howells of St. Davids, B.

Richardson of Calow, B.

Howie of Troon, L.

Rodgers of Quarry Bank, L.

Hoyle, L.

Rooker, L.

Hughes of Woodside, L.

Roper, L.

Hunt of Chesterton, L.

Sainsbury of Turville, L.

Hunt of Kings Heath, L.

Scotland of Asthal, B.

Irvine of Lairg, L.

Scott of Needham Market, B.

Jones, L.

Sheldon, L.

Kirkhill, L.

Shutt of Greetland, L.

Lea of Crondall, L.

Simon, V.

Lester of Herne Hill, L.

Smith of Clifton, L.

Linklater of Butterstone, B.

Smith of Gilmorehill, B.

Lipsey, L.

Smith of Leigh, L.

Livsey of Talgarth, L.

Stone of Blackheath, L.

Lockwood, B.

Strabolgi, L.

Lofthouse of Pontefract, L.

Strange, B.

Macdonald of Tradeston, L.

Symons of Vernham Dean, B.

McIntosh of Haringey, L.

Taverne, L.

McIntosh of Hudnall, B.

Taylor of Blackburn, L.

MacKenzie of Culkein, L.

Temple-Morris, L.

Mackie of Benshie, L.

Tenby V.

McNally, L.

Thomas of Gresford, L.

Maddock, B.

Thomas of Walliswood, B.

Mar and Kellie, E.

Thornton, B.

Marsh, L.

Tomlison, L.

Mason of Barnsley, L.

Tordoff, L.

Massey of Darwen, B.

Triesman, L.

Merlyn-Rees, L.

Turner of Camden, B.

Michie of Gallanach, B.

Wallace of Saltaire, L.

Miller of Chilthorne Domer, B.

Walmsley, B.

Mitchell, L.

Walpole, L.

Morgan, L.

Warner, L.

Morris of Aberavon, L.

Warwick of Undercliffe, B.

Morris of Manchester, L.

Weatherill, L.

Murray of Epping Forest, L.

Whitaker, B.

Northover, B.

Whitty, L.

Oakeshott of Seagrove Bay, L.

Williams of Crosby, B.

Orme, L.

Williams of Elvel, L.

Parekh, L.

Williamson of Horton, L.

Patel, L.

Winston, L.

Pendry, L.

Woolmer of Leeds, L.

Peston, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.45 p.m.
[Amendments Nos. 3 and 4 not moved.]
Clause 5 [Duty of Director of Public Prosecutions to refer certain matters to Police Ombudsman]
Lord Maginnis of Drumglass Lord Maginnis of Drumglass moved Amendment No. 5:
Leave out Clause 5.
The noble Lord said: My Lords, both in Committee and on Report I indicated that my party and I are unhappy with the Bill, largely because we suspect that it will not work for the greater good of the people of Northern Ireland. It is a very political Bill. In his remarks earlier, the noble Lord, Lord Glentoran, intimated that he feels likewise.
1052
One should consider the words of the noble Lord, Lord Dubs, at Report stage. He said about this part of the Bill:
"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".
The only matter I take issue with on that is that it was not a commitment given to "the" Northern Ireland parties; it was a commitment given, secretly and without agreement, to "a" Northern Ireland party.
The noble Lord, Lord Dubs, continued:
"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".—[Official Report, 3/2/04; col. 597.]
We simply do not believe that secret and clandestine arrangements made outside the House—by whoever— override the interests of those of us who come here to legislate for the good of society as a whole. That is why Amendment No. 5 seeks to leave out Clause 5.
The clause relates to the duty of the Director of Public Prosecutions to refer certain matters to the Police Ombudsman. I cannot look at the clause without wondering where the powers of the Police Ombudsman end. Is the Police Ombudsman to be all powerful? Is the Police Ombudsman's influence to override the influence of the command of the Police Service of Northern Ireland; the influence of the Policing Board; the influence of Her Majesty's Inspectorate of Constabulary; and, in a way, the influence of the Office of the Director of Public Prosecutions?
I acknowledge that I have received a letter from the noble and learned Lord, Lord Goldsmith, the Attorney-General, in which he sought to reassure me on this point. However, I am not reassured in any way.
New subsection (4A) in Clause 5(3) states:
"The Director shall refer to the Ombudsman any matter which…appears to the Director to indicate that a police officer…may have committed a criminal offence".
If it is believed that a police officer has committed a criminal offence the matter will obviously be referred to the Director of Public Prosecutions, who will make a considered judgment based on the evidence before him. If there is a good chance that he will achieve a conviction, he will take the matter to court. If there is a 50–50 chance, he may decide to take the matter to court. If there is a 40 per cent chance, he will make an assessment.
But let us consider the case where the Director of Public Prosecutions looks at the information and evidence brought before him and decides that there is a 5, 10 or 15 per cent chance—in other words, a case where he would not recommend prosecution through the courts. That should be the end of his responsibility. It is not for him then to ask questions that impinge on the responsibility of the police command, Her Majesty's Inspectorate of Constabulary and the other institutions to which I have referred. Never have the police been so policed as they are now. We should not

1053
regard the Police Service of Northern Ireland as a body that needs to be passed from one invigilating authority to another.
Let us return to the case where the DPP has decided that the policeman will not be taken to court; that he will not give or require the opportunity, as the case may be, for the policeman to account for his behaviour before a jury of his peers. I have already acknowledged that the Attorney-General has written to me. Whatever he may say, is it not a form of double jeopardy?
When the DPP says, "What has come before me does not appear to me to necessitate prosecution, but I shall relegate the judgment on this case to the police ombudsman", the policeman will not in fact be tried or examined by a jury of his peers. Yet, when that case is passed to the ombudsman, is there not—because of its source, which is the office of the Director of Public Prosecutions—to some extent an obligation on her that would not have been on her had the matter arrived on her desk through the system that she controls? Is there not a greater likelihood of more severity and greater pressure being brought to bear in respect of a policeman? The same situation occurs in terms of new subsection (4A)(a)(ii). That new subsection refers to the possibility that it may appear,
"to the Director to indicate that a police officer…may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings".
I have experienced a poorly prepared prosecution coming out of the DPP's office. If that happened, and there is an "inquest" into why a prosecution has failed, is there not likely to be a natural fall-back position, asking the police ombudsman to examine the evidence that the police provided in bringing the prosecution in the first place?
Again, it is very much a matter of who minds the minder. Quite simply, I do not believe—and many people would agree with me—that the DPP's role and responsibility should be that of message boy or girl, as the case may be, for the police ombudsman. We have adequate supervision of policing at every level. To impose this particular clause on top of all that has gone before and all that currently exists is to create double jeopardy, however Government Ministers may try to explain it away. I beg to move.
Lord Glentoran: My Lords, I shall be brief. The Bill would be better without this clause. We have a new police force in Northern Ireland, the PSNI. It has new cultures developing and evolving. In Northern Ireland, we are desperately short of trust between all the organisations: political parties, religions, police forces and various other aspects and parts of the judicial and criminal services. They have links with the British Army. There are huge numbers of interlinks and interfacing organisations, all attempting to cope with extraordinarily difficult levels of crime and terrorism. I do not see what is only a provocative clause achieving anything very much; the Bill would be better off without it.
The Attorney-General (Lord Goldsmith): My Lords, I too can be brief because we debated this clause at some length in Committee and on Report.
1054
I shall respond first to the points made by the noble Lord, Lord Maginnis. This amendment is not about the powers of the ombudsman; those are not at issue. It is about the Director of Public Prosecutions passing matters across, in certain circumstances, to the ombudsman. It does not touch on what powers the ombudsman has when he or she—presently she— receives that information. It is not about overriding the Director of Public Prosecutions. So far in these debates, I have made two points clear. First, that the director's independence, professionalism and integrity are beyond doubt and, secondly, that the decision on prosecution remains absolutely and completely that of the director, not of the ombudsman. It is only after the director has made a decision, one way or another, that the matter will go to the ombudsman, if it goes at all.
I said that in my letter to the noble Lord, Lord Maginnis, which he was generous enough to acknowledge today. I shall quote what 1 said to him, so that your Lordships are aware of it too. I wrote:
"It may help if I make it absolutely clear that decisions as. to prosecutions are, and will remain, the responsibility of the Director of Public Prosecutions for Northern Ireland. The responsibility of the Police Ombudsman is to investigate allegations of criminality by police officers or of behaviour that may justify disciplinary proceedings".
That is the disciplinary side.
That takes me to my second point. The noble Lord, Lord Maginnis, was worried that the Director of Public Prosecutions, having made his proper decision about prosecution, might need to ask questions—I noted his words as,
"impinging on questions of the police command and so forth".
No, after the decision on prosecution is made and executed, it will not be for the director to do that. If it falls within this clause, it would be for him to pass the matter across to the police ombudsman and it would then be for the police ombudsman, if appropriate, to make further enquiries. It may well not be appropriate. That would be for the ombudsman to decide.
The third point that he made is that, because an issue has been put before the ombudsman by the Director of Public Prosecutions, that would somehow give it greater gravity or require her to deal with it with greater severity. I do not see that at all. The ombudsman will be obliged to consider the material before her on the objective basis of that material and its strength, and not on the basis of the provenance of the material. That is particularly so because the director will be passing the information over as a result of a duty—that is the very thing that this clause imposes—not as a result of a judgment by him that the matter is one that deserves consideration by the ombudsman.
The noble Lord, Lord Maginnis, was concerned, on the previous occasion at least, about what he described as double jeopardy. Another matter dealt with in the letter that I wrote to him responded to a question that he sought to ask on the previous occasion. A police officer is not in a different position from that of many other people who belong to professional bodies. After trials of all sorts, people in professional bodies may find themselves referred to their professional bodies or to other disciplinary bodies for consideration. As a barrister, that

1055
is certainly something that would undoubtedly happen to me. I have experience of other professionals too, such as solicitors and doctors. Police officers are not in that regard in a unique position in any respect.
Moreover, this issue is more likely to arise in circumstances where the officer is not the subject of the investigation but is the investigating officer or is involved in the course of investigating somebody else. If Mr A is on trial, but it appears that the police officer has misconducted himself, there is no question of double jeopardy so far as the officer is concerned. For those reasons, I respectfully suggest that the concerns of the noble Lord, Lord Maginnis, are not well founded.
I heard what the noble Lord, Lord Glentoran, said about there being a shortage of trust in Northern Ireland. As Attorney-General for Northern Ireland, I understand what he means by that. However, I invite him and those on the Benches opposite carefully to consider this: is not one of the reasons for the lack of trust in some parts of the communities a belief, however ill founded, that wrongdoing on the part of particular people is covered up and not passed over? Having a clear obligation on the Director of Public Prosecutions that says, "If you come across this sort of conduct, you must pass it to the Police Ombudsman", gives many people in the community a sense of trust that there can be no question of that sort of material being seen by someone in the DPP's office and covered up simply because they prefer not to expose to daylight any misconduct.
I agree with the noble Lord, Lord Glentoran, that trust is important. This clause will increase trust within the community. I warmly urge him and those on the Benches opposite to consider that, in accordance with his objective of increasing trust, which I share, the right thing to do is to support this clause.
4 p.m.
Lord Maginnis of Drumglass: My Lords, the noble and learned Lord the Attorney-General has outlined very clearly the technical aspects of the matter that I raised. However, he has not clarified at all—it is impossible to clarify—the fact that the DPP is concerned with criminality. Criminality is different from professional inadequacy or carelessness. The people who deal with those things are the ombudsman, Her Majesty's Inspectorate of Constabulary, the police officer's own senior command and the Policing Board. There is no such cross-fertilisation in the case of the solicitors, doctors and accountants that the Attorney-General mentions in his letter. Those professional bodies make a judgment that is separate and apart from the judgment of criminality made by the Director of Public Prosecutions. Hence, I have not had a satisfactory explanation of why, in this specific case, there should be that overlap between criminality and professional inadequacy, misjudgment or carelessness.
If we adopt this clause, we give the Police Ombudsman a second opportunity to find evidence against a policeman which, in turn, may lead to a
1056
prosecution, because if she finds something within the scope of her investigations that suggests criminality, she is bound to refer the matter back. The situation will be such that, having considered the case against the policeman, and decided that there is no case to answer, the case is passed to the ombudsman and then handed back. The DPP has to make the same judgment on a second occasion. That is absolute nonsense. If it is not double jeopardy, it is what I always believed double jeopardy to be.
I am not satisfied that this clause is beneficial. I should like to seek the opinion of the House.
4.4 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 81; Not-Contents, 170.

Division No. 2

CONTENTS

Ackner, L.

MacGregor of Pulham Market, L.

Blaker, L.

Bowness, L.

Mackay of Clashfern, L.

Brigstocke, B.

Maginnis of Drumglass, L.

Brookeborough, V. [Teller]

Marlesford, L.

Brougham and Vaux, L.

Mayhew of Twysden, L.

Caithness, E.

Molyneaux of Killead, L.

Carnegy of Lour, B.

Monson, L.

Chadlington, L.

Montrose, D.

Cockfield, L.

Mowbray and Stourton, L.

Coe, L.

Murton of Lindisfarne, L.

Cooke of Islandreagh, L. [Teller]

Naseby, L.

Courtown, E.

O'Cathain, B.

Cox, B.

Onslow, E.

Crickhowell, L.

Palmer, L.

Cuckney, L.

Patten, L.

Dean of Harptree, L.

Perry of Southwark, B.

Deedes, L.

Pilkington of Oxenford, L.

Denham, L.

Platt of Writtle, B.

Dundee, E.

Plumb, L.

Flather, B.

Prior, L.

Fowler, L.

Rawlinson of Ewell, L.

Gardner of Parkes, B.

Reay, L.

Goschen, V.

Rogan, L.

Gray of Contin, L.

Saltoun of Abernethy, Ly.

Griffiths of Fforestfach, L.

Sanderson of Bowden, L.

Harris of Peckham, L.

Shaw of Northstead, L.

Hayhoe, L.

Simon of Glaisdale, L.

Henley, L.

Strathclyde, L.

Home, E.

Swinfen, L.

Howe of Aberavon, L.

Tebbit, L.

Howell of Guildford, L.

Thomas of Gwydir, L.

Jellicoe, E.

Trefgarne, L.

Jopling, L.

Trumpington, B.

Kimball, L.

Vinson, L.

King of Bridgwater, L.

Waddington, L.

Knight of Collingtree, B.

Wade of Chorlton, L.

Laird, L.

Wakeham, L.

Liverpool, E.

Walker of Worcester, L.

Lyell, L.

Willoughby de Broke, L.

McAlpine of West Green, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Ampthill, L.

Addington, L.

Andrews, B.

Allenby of Megiddo, V.

Archer of Sandwell, L.

Amos, B. (Lord President)

Ashley of Stoke, L.

1057

Ashton of Upholland, B.

Livsey of Talgarth, L.

Bach, L.

Lockwood, B.

Barker, B.

Lofthouse of Pontefract, L.

Barnett, L.

Macdonald of Tradeston, L.

Bassam of Brighton, L.

McIntosh of Haringey, L.

Beaumont of Whitley, L.

McIntosh of Hudnall, B.

Berkeley, L.

MacKenzie of Culkein, L.

Bernstein of Craigweil, L.

Mackie of Benshie, L.

Bhatia, L.

McNally, L.

Billingham, B.

Maddock, B.

Boothroyd, B.

Mar and Kellie, E.

Boston of Faversham, L.

Marsh, L.

Brooke of Alverthorpe, L.

Masham of Ilton, B.

Brookman, L.

Mason of Barnsley, L.

Campbell-Savours, L.

Massey of Darwen, B.

Carter, L.

Merlyn-Rees, L.

Chandos, V.

Michie of Gallanach, B.

Christopher, L.

Miller of Chilthorne Domer, B.

Clark of Windermere, L.

Mitchell, L.

Clarke of Hampstead, L.

Morgan, L.

Clement-Jones, L.

Morris of Aberavon, L.

Clinton-Davis, L.

Morris of Manchester, L.

Cobbold, L.

Murray of Epping Forest, L.

Colville of Culross, V.

Newcastle, Bp.

Corbett of Castle Vale, L.

Northover, B.

Craig of Radley, L.

Oakeshott of Seagrove Bay, L.

Crawley, B.

Orme, L.

David, B.

Parekh, L.

Davies of Oldham, L. [Teller]

Patel, L.

Desai, L.

Patel of Blackburn, L.

Dholakia, L.

Pendry, L.

Dixon, L.

Peston, L.

Donoughue, L.

Phillips of Sudbury, L.

Dubs, L.

Pitkeathley, B.

Eatwell, L.

Ponsonby of Shulbrede, L.

Elder, L.

Prys-Davies, L.

Evans of Parkside, L.

Radice, L.

Evans of Temple Guiting, L.

Ramsay of Cartvale, B.

Ezra, L.

Randall of St. Budeaux, L.

Falconer of Thoroton, L. (Lord Chancellor)

Rea, L.

Redesdale, L.

Farrington of Ribbleton, B.

Rendell of Babergh, B.

Fearn, L.

Rennard, L.

Filkin, L.

Rodgers of Quarry Bank, L.

Finlay of Llandaff, B.

Rooker, L.

Gavron, L.

Roper, L.

Goldsmith, L.

Sainsbury of Turville, L.

Goodhart, L.

St. John of Bletso, L.

Gordon of Strathblane, L.

Sandberg, L.

Goudie, B.

Scotland of Asthal, B.

Gould of Potternewton, B.

Scott of Needham Market, B.

Graham of Edmonton, L.

Sheldon, L.

Greengross, B.

Shutt of Greetland, L.

Gregson, L.

Simon, V.

Grocott, L. [Teller]

Smith of Clifton, L.

Harris of Richmond, B.

Smith of Leigh, L.

Harrison, L.

Stallard, L.

Haskel, L.

Stern, B.

Hilton of Eggardon, B.

Stone of Blackheath, L.

Hogg of Cumbernauld, L.

Strabolgi, L.

Hollis of Heigham, B.

Strange, B.

Hooson, L.

Symons of Vernham Dean, B.

Howarth of Breckland, B.

Taverne, L.

Howells of St. Davids, B.

Temple-Morris, L.

Howie of Troon, L.

Tenby, V.

Hoyle, L.

Thomas of Gresford, L.

Hughes of Woodside, L.

Thomas of Walliswood, B.

Hunt of Chesterton, L.

Thornton, B.

Hunt of Kings Heath, L.

Tomlinson, L.

Irvine of Lairg, L.

Tordoff, L.

Jeger, B.

Triesman, L.

Jones, L.

Turnberg, L.

Kirkhill, L.

Turner of Camden, B.

Lea of Crondall, L.

Wallace of Saltaire, L.

Lester of Herne Hill, L.

Walmsley, B.

Lipsey, L.

Warner, L.

1058

Warwick of Undercliffe, B.

Williams of Crosby, B.

Weatherill, L.

Williams of Elvel, L.

Wedderburn of Charlton, L.

Williamson of Horton, L.

Whitaker, B.

Winston, L.

Whitty, L.

Worcester, Bp.

Wilkins, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.15 p.m.
Lord Glentoran Lord Glentoran moved Amendment No. 6:
Leave out Clause 6.
The noble Lord said: My Lords, I take issue with the Attorney-General and with Clause 6, which was Clause 7 on Report, and question whether it should not more properly be struck out of the Bill.
I remember saying on Report that I accepted the Attorney-General's arguments, but would take advice from my legal team. I am here because my legal team was not satisfied with the arguments put forward by the noble and learned Lord on Report.
I shall not go through the issues at length as we have discussed them both in Committee and on Report. Unfortunately, on neither occasion did the Attorney-General and I agree. On Report I said:
"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".—[Official Report, 3/2/04; col. 607.]
I beg to move.
Lord Tordoff: My Lords, it is not my intention to intervene in the substance of the discussion, but I have a procedural point to make.
It is strange that noble Lords are trying to remove a clause on Third Reading that stood part in Committee. I am sure that that is not what Third Reading is about. There may be occasions when that can happen, and this may be one of them. I do not know enough about the subject of the clause.
We must be careful about how we proceed at Thi rd Reading. I have been saying for a long time privately— and possibly publicly—that there are far too many amendments at Third Reading. Noble Lords will see that the Companion is quite strict about that. I am sure that it has been accepted by the Clerks in the general way in which the House deals with such matters. I simply want to raise a caution. Clauses that stand part in Committee should not really be struck out at Third Reading unless there is some very significant change between those two stages.
Lord Goldsmith: My Lords, the noble Lord, Lord Tordoff, has made a very important point. I doubt that this afternoon is the moment to attempt to respond to

1059
the significance of what he said, but I am sure that the fact that he said it—and that he in particular said it— needs to be considered further by those who consider the procedures of our House. If he will permit me, I shall make no further observation on it, other than that I have great sympathy with what he said.
We have debated the issue at some length. It is always a regret for any lawyer to find that other lawyers disagree with him. I explained fully in Committee and on Report my reasons why I think it proper and wise to keep the clause in the Bill. I said then, for example, that bringing the offence would require the consent of the director himself. Perhaps I should have added that there are circumstances in which the deputy director can act in his stead, but I imagine that that would be only if the director himself were away.
I do not think that I can add anything to what I have said before. The noble Lord, Lord Glentoran, dealt with the amendment very quickly and I adhere unrepentantly, I am afraid, to my views that the clause is good and proper and should be kept in the Bill. I hope that noble Lords will agree.
Lord Glentoran: My Lords, before responding to the noble and learned Lord, I should like to say to the noble Lord, Lord Tordoff, that I will certainly take note of what he said. If I have tabled an amendment that I should not have tabled, I apologise unreservedly to the House and to those concerned, and I shall seek advice from the Clerks in future with more diligence.
I know that the noble Baroness, Lady Farrington, does not want us to get involved too heavily in speeches on whether the Bill do now pass. However, as it is a Northern Ireland Bill and there is always a lot of passion and argument on Northern Ireland Bills, I should like to thank those on the Government Front Bench who have so patiently dealt with all our criticisms. I also thank my noble and learned friends and noble friends who have supported us and, last but by no means least, the officials from the department, who have been very patient with me when I have badgered and bullied them in corridors, airport lounges and other places to get more information or to change something.
I thank the noble and learned Lord for what he said, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
An amendment (privilege) made.
Baroness Amos: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Amos.)
On Question, Bill passed, and sent to the Commons.

Gender Recognition Bill [H.L.]
4.23 p.m.
Read a third time.
Clause 3 [Evidence]:
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin) moved Amendment No. 1:
Page 3, line 1, after "by" insert "an order made by"
The noble Lord said: My Lords, on Report, the noble Lord, Lord Goodhart, made a strong case for the power conferred on the Secretary of State in Clause 3(6) to be subject to a degree of formality. The power enables the Secretary of State to specify the further content of the application form. The noble Lord proposed that the power should be exercised only by order, but that such an order need not be subject to a parliamentary procedure. He brought into question the openness of the language of the clause as it stands.
As I signalled, I wanted to reflect on that, and I now propose an amendment to Clause 3(6) so that the content of the application form for gender recognition is now set by order. In that way, we will retain the flexibility which we believe is important, while introducing the formality and transparency of an order-making process. I beg to move.
Lord Goodhart: My Lords, I am obviously most grateful to the Minister for having thought about and accepted the principle behind my argument on Report. I therefore greatly welcome the two amendments in the group.
Baroness Buscombe: My Lords, we also welcome the amendments.
On Question, amendment agreed to.
Lord Filkin Lord Filkin moved Amendment No. 2:
Page 3, line 7, leave out "impose a requirement" and insert "make an order"
On Question, amendment agreed to.
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 3:
Before Clause 19, insert the following new clause—
"RELIGION

(1) A body which exists for the purposes of organised religion may, if subsection (2) is satisfied, prohibit or restrict the participation in its religious activities or ceremonies of persons whose gender has become the acquired gender under this Act.

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

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

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

(3) "Religion" means any religion, religious belief or similar philosophical belief.

(4) This section does not affect—

(a) section 19 of the Sex Discrimination Act 1975 (c. 65) (ministers of religion etc.), or

1061

(b) Article 21 of the Sex Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042 (N.I. 15)) (corresponding provision for Northern Ireland)."

The noble Baroness said: My Lords, for those who have not followed the Gender Recognition Bill during the last five debates on it, I should explain that it allows a man to become a woman or a woman to become a man, even without gender reassignment surgery. It allows a new birth certificate to be issued in the new gender, and creates a criminal offence if the original birth sex is revealed by a person in an official capacity, such as a Church leader. It is a transsexual rights Bill.
My amendment addresses the fact that Churches and religious bodies will face litigation under the Bill. How can I be so sure? Because it has already started. Already the Bill is being used to argue that transsexuals have a legal right to teach in a Sunday school and take part in any form of Church ceremony, such as marriage and worship. Already it is being used to argue that transsexuals have a legal right to take holy communion, which contravenes the teachings of particular Churches now threatened with legal action. At least two Churches have already been threatened with legal action under the Bill, even before it reaches the statute book.
A number of other Churches have been threatened with litigation by transsexuals in recent years. There was even a court case where the pastor and the entire membership of a Baptist church in south Wales were sued because a man who had had a sex-change operation was told that he could not attend a ladies' prayer meeting. Under the current law, the church succeeded in having the case thrown out. There were legal costs even though it won, but the church was not compelled to give a male transsexual the right to attend a ladies' prayer meeting. This Bill changes the legal landscape, however. There is no guarantee that the church would win the case if it came up again. It would certainly be far more costly to defend.
I received a letter yesterday from the noble Lord, Lord Filkin, for which I am grateful, in which he admits that under the Bill Churches can be taken to court over their beliefs. He says that it is the Government's opinion that such litigation "probably" would not succeed on the grounds of sex discrimination. Such litigation puts Churches under huge pressure. Members of the Baptist church to which I referred earlier were advised by their lawyer that defending the action could cost them up to £100,000, all because they would not let a man come to a ladies' prayer meeting.
My amendment is very simple. It is directly based on and mirrors the Government's own amendment—now Clause 19—which gives broad exemptions for sports bodies. The Government are prepared to amend the Bill to protect "fair competition". Can we not do the same to protect, as I suggest in the amendment, the doctrines of religion? The new Clause 19 allows sports bodies to prohibit participation of a person with a gender recognition certificate. What reason could there be for not allowing the Church an equivalent right?
1062
The amendment simply enshrines existing freedoms. The Government will no doubt say that those freedoms are not under threat. Ministers said the same thing to the sporting bodies, but then they changed their minds. In Grand Committee on 14 January, the noble Lord, Lord Filkin, said:
"We believe that maintaining competitive parity, or fair and safe competition, is fundamentally important, but we are not convinced that there is a problem".
Then he said:
"The Bill will not give transsexual people the general right to participate in sport in the acquired gender". [Official Report, 14/1/04; col. GC 121–122.]
He changed his mind and we now have an amendment protecting sports bodies. It gives sports bodies reassurance and greater legal certainty. That is all my amendment seeks—reassurance and greater legal certainty. If sporting competition is "fundamentally important" are not the beliefs of religious bodies equally fundamentally important?
My amendment will deter hostile litigation against religious bodies which, as we all know, often survive on a shoestring. People do not put money into the collection plate to pay lawyers. All my amendment seeks to do is to allow people of faith to worship God and conduct their own religious activities according to their own faith. Their faith teaches them that one's sex is fixed at birth and cannot be changed. That perfectly reasonable belief is very common among religious people and, indeed, among the general public as evidenced by the hundreds of letters that have been written to support the thinking behind this amendment. There are thousands of people out there who are genuinely worried about this.
The question is, should you be sued in the secular courts merely because of your beliefs and the way you worship God?
It is important to emphasise that my amendment does not affect the principle of the Bill in any way. It does not even address the fact that Church ministers face a potential criminal record and a fine of £5,000 if they tell another clergyman in their own Church that the woman in the congregation is really a man. All the amendment does is give reassurance and protection for some of the existing freedoms of religious bodies.
Churches are private bodies; they make their own rules of membership. Any private body can exclude people for all sorts of reasons. The problem is that the new legal situation under this Bill has the capacity to open up the affairs of a Church to the scrutiny of the secular courts in a way which would not apply to other private associations or groups.
It is clear from the wording of my amendment that if no offence is caused, then there is no issue. The amendment is permissive; it does not compel a Church to do anything. As a matter of fact most Churches will welcome a transsexual visiting their services to hear the Gospel. It is only where there is offence that they should be entitled to protection.
It is also clear that non-religious activities are not covered. Purely secular activities of a religious body do not come into it. The amendment is concerned only

1063
with religious activities or ceremonies, such as marriage, Communion, baptism or teaching in a Sunday school.
I believe that Churches have similarities with political parties. Like a political party, they would be nothing without freedom of association. As I understand it, the Labour Party insists that all its employees are card-carrying members of the Labour Party, and quite right too. Like a political party, the Churches maintain internal discipline. Those who reject the fundamental tenets of the organisation through words or deeds can be asked to leave. That is already the case, but that is now put in jeopardy by the Bill. Churches are private bodies but their internal affairs can be opened up to hostile litigation by the particular combination of legal rights which will result from the Bill.
A person who assumes a new sex has new human rights, thanks to the Goodwin case. Section 6 of the Human Rights Act means that you can argue that a Church is subject to these rights as a public authority in its exercise of some public functions. The transsexual also has sex discrimination rights in his or her new gender. Finally, transsexuals have rights under this Bill. But the Church, on the receiving end of litigation over marriage or membership, only has one set of rights—human rights. That is three against one.
The Bill is a completely new departure in UK law. It declares that a man must be treated as a woman "for all purposes" in law. It is illegal to discriminate on the basis of sex in the provision of goods and services. This presents absolutely no problems for Churches at the moment, but it will after this Bill.
In the south Wales case, a husband and father of three used sex discrimination law to argue that he had the legal right to join the ladies' prayer meeting. What would be the outcome of that case now? One of the Churches currently being threatened under this Bill is being told it must provide Holy Communion to a transsexual. Again, sex discrimination law is cited in addition to human rights, but also mentioned in this letter from the solicitor is the fact that this Bill is being considered in Parliament and will become an Act, thereby reinforcing the point I made about three sets of rights. Surely these are matters that should be left to the Church and not to secular courts.
We all have—at least some of us have— disagreements with our Church. I dearly wish that I could have been married in Church but because I married a divorcee I was not allowed to do so. If I go to the Roman Catholic Church 1 do not take Communion; I take it in the Anglican Church because the Roman Catholic Church makes its own rules which I respect. The Government may claim that my amendment is unnecessary, but there can be no doubt that the law will develop. Laws have a habit of developing, as we well know. Churches will be threatened; this may cost them dearly in terms of time, stress and finance—even if they win. My amendment seeks to enshrine the long-standing right of the Church to order its own religious activities and ceremonies.
1064
If a church, synagogue, mosque or temple does not want to conduct the marriage of a transsexual, it can refuse. If a Welsh chapel wants to insist that its ladies' prayer meeting is only for biological women, then it can do so without fear of litigation. Thirdly, a church can decide who can teach in a Sunday school or youth meetings without being sued. That is the effect of my amendment.
The Government believe that it is possible under this Bill for a transsexual to sue an Anglican minister over a refusal to conduct a marriage. That is why it has provided a conscience clause for Anglican clergy, but there is no conscience clause for other Churches or for the non-Christian faiths.
The Government now accept—according to the letter sent from the Minister to me—that other denominations can also be sued, but helpfully he suggests that such legal action could be resisted, using human rights arguments. In other words, they are left to their fate and the mercy of lawyers, not to mention the cost. I have also to point out that the Minister finds himself in conflict with the former Home Secretary Mr Jack Straw, who was unequivocal that Churches act as public authorities when they conduct a marriage. I refer to Hansard of 20 May 1998, col. 1017.
The Minister said that we can take a more optimistic view. Instead of leaving it to chance, surely it is our duty to give the Churches the reassurance they need on the face of the Bill.
When the European Convention on Human Rights was devised in 1952 it did not contain a section on transsexual marriage rights. The European Court confirmed that in 1998, but only four years later it reversed its position. In 2002, the Goodwin case said that transsexuals have a right to marry in their assumed gender. It would satisfy the Goodwin judgment if the Bill provided only civil marriages for transsexuals, but the Government have gone much further, in effect giving the right to religious marriages for transsexuals.
Some Churches may be content to take part in this and that is fine. But many—and I would suggest most—would not be content. Yet the ground is laid for litigation against them if they refuse. The UK courts may take a more interventionist view on these issues than the court at Strasbourg.
One government argument against protecting Churches is that there is no need to do so because the transsexuals would not want to force such issues. But that ignores the fact that there is hostility against religious groups, which is sometimes manifested in litigation.
The Government recently brought in new employment regulations to outlaw discrimination on the grounds of sexual orientation. Protections were provided for religious groups, yet even these limited protections are now being challenged in the courts. The Government are having to defend the rights of religious groups against hostile litigation. Surely, they must accept that this Bill creates scope for more of the same.

1065
The Minister says in his letter to me that he cannot guarantee that religious bodies will not face litigation. That is exactly the point. He is admitting that the Churches can be hauled through the secular courts over these issues. It really is appalling—and I say that advisedly—that the Government, it seems, are not prepared to do anything about it.
My amendment provides reassurances and protection for Christian Churches and those of other faiths. I beg to move.
4.30 p.m.
The Lord Bishop of Worcester: My Lords, I hesitate to contest an amendment moved with such evident religious conviction, but I found the noble Baroness's speech confusing at a number of points. I am not clear whether the Church, which I serve, is in her mind a private or a public authority. I am clear that it is a public authority not simply because it is, by law, established but because, to quote an example she gave, the right to exclude a person from the Holy Communion is governed by canon law, which in this country is the law of the land. So it is not clear to me that at least the Church that is served and represented by people who sit on these Benches could ever claim to be a private authority with the rights of private authorities.
Secondly, it is not at all clear to me what is meant by "a Church". Does it mean a vicar in a local parish? Does it mean a bishop in a diocese? That confines my attentions only to the Church of England. What will count as "a Church" which has these rights?
What is included in the expression "religious activities or ceremonies"? Let me offer a hypothetical situation. I decide that it would be good to celebrate the patronal festival of St James, the patronal festival of Hartlebury, with a pageant on the village green. There is present at this event, which includes the singing of hymns and the saying of prayers, someone who is known to be a transgender person and a group of people start a disturbance. As I happen to be a person who dislikes conflict—and I ask noble Lords to believe that—I conclude that it would be better to ask the transgender person to leave than to confront the people making the disturbance. It seems to me that when then challenged by the transgender person, I can say that the religious susceptibilities of the significant number of my religion's followers have been offended and it was on that basis that I acted, even though I myself would have acted purely out of timidity and not out of conviction.
Is that really the road down which we as a society wish to travel? Do we really wish to deny people the protection that we should be offering them from such behaviour and do we wish thereby, in fact and implicitly, to encourage such behaviour? I ask that those who are troubled by this matter recognise that there is a serious balancing consideration. We are talking about a relatively small group of people who have usually been on a personal journey of a nightmarish kind to the point at which they have decided to undertake the most radical life-change that any of us could imagine.
1066
I believe that we, as a Parliament, should be protecting such people from the kind of behaviour to which I have referred. We should also be protecting them from the arbitrary exercise of judgments by people who may or may not be qualified, except in the fact that they have a strong religious conviction, from taking the action that they take. I believe that the inclusion of the amendment introduces huge confusions as to what is a religion, what is a ceremony, what is a private body, what is a public body and what it is that we really want to protect people from.
So far—and some of us have questions even about this—we have sought only to offer the limited protection of those people who would otherwise be in jeopardy of litigation in respect of the exercise of their public office at particular public moments. That, I think, introduces a wholesale opportunity to discriminate and expose people to extremely dangerous situations. I hope that the House will reject the noble Baroness's amendment
Lord Lester of Heme Hill: My Lords, it is a privilege to speak after the right reverend Prelate the Bishop of Worcester. Your Lordships may wonder what on earth a lawyer can add to what one has just heard from the Bishop, but I want to make a couple of further points explaining why I am strongly opposed to the amendment.
I want first to clarify one matter. The only way in which the Gender Recognition Bill confers a legal entitlement on transsexuals not to be discriminated against is in the employment and related field. That is made quite clear in the Explanatory Notes, and in Schedule 6 one sees that the only parts of the Sex Discrimination Act which are modified in favour of transsexuals are the employment and related provisions. No one could bring a discrimination claim under the Bill against the Church or anyone else in the provision of services or facilities to the public. It is important to recognise that.
It has been criticised by the Joint Select Committee on Human Rights, of which I am a member. We argued that the Bill, like the Sex Discrimination Act, should have covered not only employment but the provision of goods, services and facilities to the public. Had it done so, an amendment of this kind might, if carefully tailored and much narrower, have been appropriate. In terms of the claims of transsexuals to equal treatment without discrimination, as a matter of law it is entirely inappropriate and unnecessary. That is the first matter I want to deal with.
The second matter is that in subsection (2) the amendment, like the equality regulations on sexual orientation and religious discrimination that were the subject of much controversy in your Lordships' House, allows a prohibition where it is necessary not only to,
"comply with the doctrines of the religion",
but, and alternatively, to,
"avoid offending the religious susceptibilities of a significant number of the religion's followers".

1067
That is a surrender to mob prejudice and group prejudice of all kinds, as the right reverend Prelate the Bishop of Worcester explained when we debated a similar exception in the employment field. I can understand an argument that makes it appropriate to comply with the doctrines of a religion in terms of the need for religious freedom. If there really is a religion that is so bigoted that it wishes to exclude or discriminate against someone who has had their gender reassigned, then perhaps there is an argument for deferring to that in striking a fair balance. But how can it be right to strike a balance by not complying with the doctrines of a religion but by the avoidance of offending the religious susceptibilities of "a significant number", whatever that means, "of the religion's followers", whatever that means? If your Lordships approve the amendment it would send a signal that your Lordships' House was in favour of that kind of mob rule, which I am certain is not the case.
Lord Tebbit: My Lords, I feel in my heart that the noble Baroness, Lady O'Cathain, is right to envisage the problems which may arise from the legislation, and that perhaps, with every respect to the right reverend Prelate, there is just a touch of complacency in some of his comments.
It is a great pity that, neither in this debate or earlier debates, have we heard the voice of Islam in this House. My friends of that faith tell me that they have grave reservations about the legislation. It is also a great pity that so many of our proceedings were undertaken while the noble Lord, Lord Patel of Blackburn, was away on pilgrimage to Mecca. It would have been most welcome to have heard his views, speaking for his religion. That would either have persuaded me that my fears were wrong, or might have persuaded the House that my fears were well founded.
When the Minister replies, I hope he will give an undertaking that if the fears expressed my noble friend Lady O'Cathain are proved to be true, despite the comments of the legal experts—and we all know that in every case half of the lawyers are wrong—if they are well founded and there are successful legal actions, the Government will come forward with amending legislation to protect the Church, even against itself.
Lord Clarke of Hampstead: My Lords, I support the amendment tabled by the noble Baroness, Lady O'Cathain. Even at this stage, I sincerely hope that my noble friend the Minister will accept it. In my limited ability, I cannot deal with the legal niceties of learned Lords or the intellectual capacity of a Bishop such as the right reverend Prelate. I can speak in the House only as a person who tries to understand matters in the simplest way. The feelings of religious groups on the subject are well known to every Member of the House. They know that from conversations on not just the Christian faith, as has just been mentioned, but on other faiths. Their views on the proposals in the Bill and the amendment are widely accepted and respected.
1068
For the life of me, a simple person, I cannot understand why my Government, the Government I support, are so determined to resist an amendment that clearly protects. The right reverend Prelate spoke about our duty to protect people. We also have a duty to protect religious groups and Churches. We have heard clear threats to Churches and their finances and we know of the misery that is often caused when people are dragged through the courts. The feelings of others should always be considered. Without the amendment the feelings of many people will be offended. If the noble Baroness, in the absence of the Government acting with common sense, has to test the opinion of the House, I shall willingly follow her into the Lobby. Even at such a late stage I hope that will not be necessary.
The Earl of Onslow: My Lords, I was looking at the front pages of today's Times and Daily Telegraph and now I understand why our dear, much-loved and so woolly Church of England is in such a muddle over the amendment. It has, after all, decided that the Three Wise Men are now neutered—have they been transgendered or not?
The Lord Bishop of Winchester: My Lords, perhaps I may respond briefly to the noble Earl. He needs to be wary of what he reads in particular newspapers that I shall not name, or any newspaper, on that kind of matter. But that is not why I am speaking.
I shall approach the noble Baroness's amendment by expressing my warm appreciation for the courtesy, attention and patience of the Minister and his colleagues and of his officials—the latter over many months and in many meetings long before the Bill reached your Lordships' House. Paragraph 3 of schedule 4 is, I hope, not only warmly welcome to us, but something of a first. I am grateful for his explicit assurances that such meetings can continue and that we can persevere at working not only with the Church of England but with representatives of other Churches and—as the noble Lord, Lord Tebbit, notes—to see whether acceptable ways forward can be found around the issues of disclosure and discrimination in particular.
The Minister has received two sides of a letter from me that expresses both my appreciation and anticipation of such further work and our hope that we can start on it soon. That is because—and it is appropriate to the amendment—I noted and warmly welcomed the assurance by the noble Lord:
"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 their right to freedom of religion and to freedom of religious expression".
He then accurately ended that paragraph by saying:
"We are debating on that cusp".—[Official Report, 3/2/04; col. 644.]
That brings me directly back to the amendment tabled by the noble Baroness. As she and other Members of the House who worked on the issue in the past weeks

1069
know, I have much sympathy for where the noble Baroness and those people for whom she speaks are coming from. There are matters of real concern. For me, the fact that we have not achieved some safeguards for other Churches and faiths on the face of the Bill, specifically regarding the solemnisation of marriage, is a matter of real concern. I remain, but am not very, hopeful that that question will be approached in another place. Having said that, I hope that I am not immediately disappointing the noble Baroness, because she knows that for me the amendment is quite a few steps too far. The balance of the sort that is needed, and to which the Minister referred on 3 February, is not where I should want to see it. So, although I am with the noble Baroness to a significant extent, I cannot go with her to the extent of the amendment; but I hope that several of the issues that she had in mind may be approached in further discussion, which is necessary.
While I am on my feet, I listened carefully to the noble Lord, Lord Lester, who cited the amendment and traced it back to its origins in existing legislation. In particular, he made an observation about the real difficulties that that legislation contains—that it mentions avoiding offending the religious susceptibilities of a significant number of the religion's followers. But what is "a significant number"? The Church of England, other Churches and other faiths hope to continue to work closely with the Government to attempt on this and a range of other matters to determine what the provision may mean.
Few Churches or faiths in this country or anywhere else are entirely monolithic. For me and others in the Church of England—of course, we on this Bench do not always speak with one mind—those words will prove important and we shall have to work out what they mean. It is in such areas, among others, that the careful work that I am delighted that the Minister has offered to continue will be especially welcome.
5 p.m.
Baroness Turner of Camden: My Lords, I hope that my noble friend will not feel disposed to accept the amendment. I oppose it because it seems rather intolerant. I speak as someone who is not a believer— I happen to be vice-president of the British Humanist Association—but I have always believed passionately in people's right to practice their beliefs and participate in religious ceremonies.
We are discussing a relatively small group of people who have had pretty awful experiences and may themselves be rather damaged individuals. They are the very people who are most likely to need the consolations of their religious belief. To pass an amendment that would prohibit them from expressing that religion and attending religious ceremonies is simply unkind and would add to the difficulties that such people encounter.
As noble Lords have already pointed out, new subsection (2)(b) provides for a kind of mob law to prevent those people from having the right to exercise their beliefs. I therefore hope that my noble friend will
1070
not feel disposed to accept the amendment. It is intolerant. Its wording is unclear: what does participation in religious activities mean? That could mean an employee engaged in selling religious artefacts in a cathedral shop, for example. That wording is far too wide and, in any event, to prohibit people from attending a religious service that may mean an enormous amount to them would be quite unkind. I hope that the amendment is not accepted.
The Earl of Erroll: My Lords, I have had more lobbying—more letters—on this issue than on either the Hunting Bill or the homosexuality clauses in other Bills. I thought that anti-discrimination legislation was to stop an individual imposing his views on others of a different nature. In general, for people of high moral principle, their religious belief is at the very core of their existence. They come together and congregate in churches. What worries me about the Bill is that it allows individuals aggressively to impose their view of the world and of their nature on such groups.
Even if the amendment is imperfect, it is necessary to include it in the Bill at this stage. I understand the reservations of the right reverend Prelate and others, but it is better to include the amendment now and then tidy it up. It should come down to congregational rather than whole Church level, because some congregations may accept the approach and some may not. We should allow that diversity in the Churches. We need the amendment included now to start the defence, because the provision can be amended in another place. The Bill should defend churches from transsexuals who would discriminate against church congregations' beliefs.
Lord Campbell of Alloway: My Lords, I shall be brief. I came to support the amendment but, having heard the speech of the right reverend Prelate the Bishop of Winchester, although I support the principle behind the amendment, I cannot support it. The principle behind it is the entitlement to have a derogation from the provisions of the Bill of generic application to all purposes recognised by law in favour of religion. That principle I adhere to. But, as the right reverend Prelate pointed out, the balance has gone wrong—especially in paragraph (b).
In our predominately Christian, multi-ethnic, multi-religious society, which is tolerant of all faiths— atheists, agnostics, Dissenters, or what have you—one ought to defer, if one can, to the authority of the established Church as an estate of the realm, which was confirmed as long ago as towards the end of the first millennium by exchange of oaths on the coronation of King Edgar
Lord Mackay of Clashfern: My Lords, I shall just say one or two things following from the observations of the noble Lord, Lord Lester of Heme Hill. He pointed out plainly that words similar to the amendment are already in the legislation of this country—no doubt subordinate legislation; but legislation nevertheless. He describes that as an illustration of mob rule, but it is mob rule, if he likes to

1071
call it that, that is recognised by our legislative authorities. Therefore, what he calls mob rule depends on his view that someone who objected to a transsexual taking part in a religious ceremony would necessarily be bigoted. We all understand that one difficulty about religious freedom is that what is freedom for one may appear to be bigoted to another.
It is important that this Bill already recognises in paragraph 3 of Schedule 4 the right of a clergyman not to solemnise the marriage of someone whom he reasonably believes has an acquired gender under this Act. That recognises plainly, in an important area, the religious view or attitude of a clergyman. The amendment proposed by my noble friend does not prohibit anyone from taking part in a religious service; it empowers a religious body, if that is required by the doctrines of that body, to make such a provision. It does not oblige any religious body to do so, it provides only for religious freedom.
The right reverend Prelate the Bishop of Winchester said that he would go a certain distance with this amendment, but not the whole way. The problem will be that if this amendment is rejected at this stage, it is highly likely that what he wants to happen will be somewhat difficult. I am interested to hear what the Minister will say about that and about the extent to which he is able to give undertakings about it. My understanding of the matter is that the Minister believes that religious freedom may require a religious body to have some sort of protection, but he believes— as his letter to my noble friend seems to suggest—that the secular courts will give that protection in a suitable case.
This amendment does something that requires serious consideration. If the wording needs to be improved, there is ample scope for that to be done in another place, but the principle of the amendment might well be recognised here. I support it.
Lord Monson: My Lords, the noble Lord, Lord Tebbit, is right. We have not had a chance to hear the views of Muslims on this Bill. Apart from the last speech, we have not had a chance to hear much of the views of non-conformist Christians, either. Moreover, with all deference to the right reverend Prelate the Bishop of Worcester, I suggest that his views do not necessarily reflect the views of all Anglicans.
When the Minister winds up, can he say whether— in the unfortunate event of this amendment being rejected—a woman who becomes a man will be legally entitled to demand to be trained for the Roman Catholic priesthood, and if they pass all the necessary tests and exams, will they be legally entitled to be ordained as a Roman Catholic priest?
Lord Filkin: My Lords, those who have followed this Bill from Second Reading through its stages will be aware that, quite properly, we are not coming to these issues for the first time. They have been at the centre of our proper processes of exploration and testing from Second Reading through consideration in Committee and on Report. I say to my noble friend Lord Clarke
1072
of Hampstead that we have been giving these issues serious consideration before the Bill was drafted and throughout its passage.
As has been said, the concern, in short, is that the Bill will compromise the freedom of religious organisations. Clearly, in what we stand for as a society, irrespective of what the Human Rights Act 1998 says, we are trying to look at two issues at the same time: a belief in the importance of freedom of worship and a very strong belief in the importance of giving legal recognition to an oppressed and ignored minority that is at the centre of this Bill. We have been working and probing with the Churches, both before this Bill came into this House and throughout its passage, the tension between those two areas and how we strike a balance.
As has been signalled, these issues are not simple; they are not easy. The Churches themselves do not speak with one voice on these matters. Is there any expectation or reason why they necessarily should? I was grateful for the way in which the right reverend Prelate the Bishop of Worcester spoke on Report, in putting what seemed to be an important balance on to some of these issues. For some of us, that chimed with what we had expected to hear from faith communities, as well as hearing the sensitive issues about concerns on some of the sharper areas.
Let me also mark that we have, through the process of reflection, discussion and consultation with faith communities—that process has been both a duty and a privilege—we have sought to listen and to move where we thought it was appropriate. We put into the Bill at First Reading an explicit exemption around marriage for ministers of the Church of England and the Church in Wales. For good reason—when they perform a marriage ceremony, ministers of the Church of England and the Church in Wales are effecting a civil function as well as a religious one. The burdens on them are therefore explicitly strong. Without that exemption they would have been caught. We made that provision explicit so that clergymen were exempt in conscience, if they wished to be so, from any challenge to them if they did not wish to carry out a marriage.
Since the Bill was introduced, we have gone further and amended the provision to protect further those ministers otherwise obliged to solemnise marriages, extending the conscience clause to a situation where a clergyman reasonably believes that one of the parties to the marriage has been recognised in the acquired gender. We have listened to the arguments put to us and were open to the point that there might be circumstances where a clergyman had reasonable grounds for belief that the information had not been disclosed, and that they were protected in those circumstances if they said, "No, I am sorry, I do not wish to solemnise a marriage for you". In this case, we are talking about Anglican clergy. Therefore, we have been listening. I have been glad to meet the noble Baroness, Lady O'Cathain, and others, along with my officials to explore the issues.

1073
The issues turn on two sets of arguments: moral and legal. I shall be cautious about what I say about the moral arguments, because perhaps government Ministers should confine themselves to the law on such issues. The question of whether religious organisations ought to exclude transsexual people from participation in religious activities is certainly at bottom a moral argument. However, I say from the government Front Bench that one hopes as a society, given the importance that we place on tolerance, that in most situations religious organisations would not wish to discriminate against transsexuals but would recognise the humanity in them and welcome them as part of their faith community. I shall say no more on that.
It is therefore open to a religious community to decide whether it wishes—I was surprised to hear it— to say that it will refuse to administer Holy Communion to a human being in those circumstances. At heart, however, that is not a matter for me, but for them. It is a matter for me only in my private life, when I have opportunities elsewhere to argue those points.
On the legal arguments, I shall address first the solemnisation of marriage. The issue at heart is that no minister of religion other than an Anglican clergyman—a Muslim or Baptist minister, for example—is obliged by law to solemnise a marriage. Nothing in the Bill changes that; they are at perfect liberty to continue to refuse to solemnise a marriage of anyone whom they know or believe to be a transsexual. There is no catch to them as regards the freedom of action that they already have. I know from our many discussions that the noble Baroness, Lady O'Cathain, understands that point. Without boring the House by discussing the public function issue in detail, the reason is that, apart from in the Church of England or the Church of Wales, when solemnising a marriage, a cleric would not be considered to be exercising a public function. They are not public authorities in that context; therefore, they are not subject to the obligations of the Human Rights Act 1998.
The second area of debate is access to facilities. The short answer, on which the noble Lord, Lord Lester of Heme Hill, was clear and crisp, is that the Bill does nothing to change discrimination legislation. It has been a source of criticism from some Benches that it does nothing to change the law. It is a matter of fact that it does nothing to change the law; therefore, discriminatory action that was legal before the enactment of the Bill is still legal afterwards. The current situation whereby a Church might be able to be taken to court by an aggrieved person because it has or has not done something will not change after the Bill has been enacted. I cannot believe that the noble Baroness, Lady O'Cathain, said that in some ways the Churches can never be taken to court as a result of any of their actions. That would be either to reinstate the Church courts or to create a theocracy. That cannot be the argumentation.
The central point is that the Bill does nothing to change discrimination law. We have explained on several occasions why that is. Essentially, it is about a narrow focus giving legal recognition to a very small
1074
group of people after they have gone through a proper process of testing to recognise their change of gender. We have indicated further that the European Union has signalled, under the terms of its draft sex discrimination directive, that it is looking at the issue of sex discrimination across Europe. For good reason, we have said that issues about where discrimination should or should not be allowed to take place should be examined as part of that process, to avoid taking two bites of the cherry. We should be having this debate in the future, not now, as we are not changing the law in this respect.
Lord Tebbit: My Lords, I am grateful to the Minister. Of course, the noble Lord correctly says that we are not changing the law on sex discrimination. But what he omits to say is that in the past there has never been any dispute as to the sex of persons. We now have a situation where there will be a group of persons who will claim a sex which a number of other people will say is not their sex. That is where the new problem arises without having changed the law on discrimination between male and female
Lord Filkin: My Lords, I thank the noble Lord, Lord Tebbit, for his intervention. I also mark the resolute way in which he has argued his corner throughout the Bill. The short answer is that the Bill does nothing to change the law about discrimination against people as transsexuals. We are talking about discrimination against them as transsexuals rather than discrimination against them on account of their sex. If the noble Lord is patient with me, I shall seek—
Lord Lester of Heme Hill: My Lords, I am grateful to the Minister for giving way. The Minister has said several times that this does not change the law on sex discrimination. But that is not quite right, is it? It changes it in the employment field. The point is that the amendment does not touch employment. It does that by embracing the employment provisions of the Sex Discrimination Act for transsexuals.
Lord Filkin: My Lords, at earlier stages, I signalled that employment was different and that it was. a specific area. I acknowledge the point made by the noble Lord, Lord Lester, in that respect. In fact, if I had only waited: the present protection exists only in the realm of employment and vocational training. The moral of that is that it is always better to use one's speaking notes than to speak off the cuff.
It does not extend to participation in religious activities. In effect, it means that the freedom for religious organisations to discriminate against transsexuals sought by this amendment already exists. Many will say that it should not, but that is not what we are debating. In fact, the ability to discriminate is there in law already.
The Bill ensures that, as a consequence of recognition, a person is protected under sex discrimination law in the acquired gender. However, religious organisations, as in the many examples given, will not be discriminating against a person who has

1075
changed gender on grounds of his or her sex, but on the grounds that he or she is a transsexual person. We do not believe—we are strong in our view that sex discrimination law will restrict the freedom of religious organisations in this matter.
The noble Baroness suggested that differential treatment of transsexual people might be considered to be sex discrimination. This is on the basis that, for example, a female-to-male transsexual person with a gender recognition certificate would be allowed to use the ladies' toilet facilities, but a male-to-female transsexual person would not. I find it difficult to see that a church would wish the female-to-male transsexual person to use the ladies' toilet, but that is the noble Baroness's assumption. Even if that were the scenario, we do not think that the courts would accept that that was discrimination on the grounds of sex. The courts have demonstrated that they are not prepared to stretch provisions about sex discrimination in order to prohibit action, which is in fact discrimination on a ground other than sex. That would be the case here. What is described is clearly discrimination on the basis of the individual having changed gender.
Before I move on to the specifics of other issues that were raised, perhaps I may respond explicitly to the points made by the noble Lord, Lord Clarke of Hampstead, and the right reverend Prelate the Bishop of Winchester. Previously, I have given undertakings that as part of the Government's process of looking at the application of the shaping of EU legislation and its application into domestic law, we will continue with our close discussions. I repeat that.
We would be happy to talk with the Churches about the implementation of the legislation when it is passed. The Churches will understand that, as I have signalled previously, that is not to sign a blank cheque, but it is within the broad policy framework that we have signalled. I think that is understood, so I am pleased to give that reassurance.
I was asked about the sport exemption, which does not exclude transsexual people as a class. It refers only to those people who have a competitive advantage or where there would be a threat to the safety of others. Religious organisations, unlike sporting bodies in this context, are not public bodies and, hence, the Human Rights Act does not apply to them in this way. I could say more, but perhaps we have said it at previous stages.
In short, nothing in the Bill—with the exception of which the noble Lord, Lord Lester, has reminded me—changes the law on discrimination. It is possible that future law may address those issues, and we shall be pleased to work with the Churches and the faith communities to explore them. We have been pleased to make some significant movement on the Bill in order to address the areas in which we feel there is a just case for the Churches to be listened to. But at the heart of the Bill is the concept of giving legal recognition to a very small number of people who for much of their lives have felt a fundamental discontinuity in their lives. After a proper process of testing, we believe that
1076
it is right that the state should give them that legal recognition. I therefore ask the House to reject the amendment.
The Lord Bishop of Winchester: My Lords, before the Minister sits down, will he respond to the question from the Cross Benches about the position of a postulant for the Roman Catholic priesthood?
Lord Filkin: My Lords, I apologise for not having done so previously. If I recollect correctly, the noble Lord, Lord Monson, asked the question. The position is that in the circumstances to which the noble Lord referred, the Roman Catholic Church would be totally at liberty to refuse ordination and would not be open to an action.
Baroness O'Cathain: My Lords, I thank the noble Lords who have spoken on the Bill, particularly those who have supported me, and I thank the Minister for his reply.
I reiterate that my amendment in no way changes the principle of the Bill. It certainly does not attempt to be intolerant. I fear that those who suggest that it will lead to mob rule have not understood where I am coming from. Perhaps I have not made it clear enough. However, I was rather surprised by some of the reaction. I shall not deal with all the points that have been raised, but I should reply to some that were made by noble Lords who object to the Bill.
First, I believe that the scenario suggested by the right reverend Prelate the Bishop of Worcester about the patronal festival of St James is unlikely to be covered by this amendment. I feel that the right reverend Prelate should not distract from the purpose of the amendment, which is to provide reassurance and greater legal certainty for the Church. We should concern ourselves with the rights of all religions, both Christian denominations and others, and should protect their freedom to decide what they do in their own churches.
I turn to the comments made by the noble Lord, Lord Lester. His points could be covered by my statement that the Bill is all about balancing rights. I believe that this amendment is necessary to balance the rights of Churches against those of transsexuals. That is not to say that I have anything against transsexuals. I am extremely supportive of the compassionate feeling for them. It is always difficult to be the odd one out. I have known about being the odd one out, though not to such an extent. We can all feel isolated in certain circumstances. Transsexuals can feel isolated, and it is right that we should give them every support. However, it is right that those people who have strong beliefs should also be given support.
The Bill provides some protection for religious people who believe that your true sex is the sex that you were born with. On issue, a male transsexual is always a man and a female transsexual is always a woman. But the Minister's point that in terms of marriage any church minister or Muslim minister can be protected is not covered by the Bill—only ministers of the Church of England and the Church of Wales are covered.

1077
The Government did not deny that church ministers could be sued if they refused to conduct such marriages, and that is why they seek the inclusion of a conscience clause. I want to strike a balance here. If provision is made for ministers of the Churches of England and Wales, why not for Roman Catholics, Baptists, for other non-conformist Christian denominations, for those of the Jewish and Muslim faiths and all others? The Government now admit that other religious groups could be sued, a point I made earlier. I take the view that other Churches and non-Christian faiths need the protections given to the Churches of England and Wales.
A recent Law Lords ruling found that a church marriage performs a governmental function. When people get married in church, the Church is acting in place of the state and is therefore open to challenge under human rights legislation. What we are considering today is no academic debate. Instead of a legal argument in your Lordships' House, under the Bill there will be costly legal arguments in the courts. A vote for my amendment is a vote to defend our existing religious freedoms from hostile and expensive litigation.
Before the Bill was even printed, several Churches had been threatened. I referred to one court case when moving my amendment. A man sued a Church citing sex discrimination legislation. I ask: is access to a ladies' prayer meeting to be defined as "goods and services" under the terms of the sex discrimination Acts? Let us not forget that some of the people who will receive, as they want, gender recognition certificates, rendering their original birth certificates null and void except in the case of the police and criminal prosecution bodies—they have the right to use the original documents—need not have had gender reassignment surgery. It is rather feeble to say that if a male transsexual becomes a woman, he may use the ladies' lavatory and not cause distress. I put it at its simplest.
The Bill is being used as a means to threaten legal action against Churches. The fundamental question is: are Churches to be protected? The Minister has said no. The Government are prepared to protect sporting bodies, but not Churches. I welcome the Minister's reiteration that there will be ongoing discussion and debate about the Bill, but the Bill will leave this House tonight. What influence will we have? We are not actually "Top of the Pops" for the people down the corridor.
This Bill enables a battery of legal rights to be deployed against a Church. A secular court will be able to adjudicate on the most precious belief; that of religious belief. The Government say that the Bill is necessary to protect the rights of 5,000 transsexual people. I say again that we all understand their difficulties and we want to see them treated with the utmost compassion. But what about compassion for the millions of people who do not want their most precious religious beliefs trampled upon by the courts?
1078
To those who say that they speak for society by supporting the Bill as originally published, I say, look at the postbags of many Members of your Lordships' House. They show the real concern felt among the general public about the issue of religious liberty. To those who approve of the Bill, I say that my amendment does not affect the principle here, it merely gives to Churches the same freedoms which the Government have already given to sporting bodies. I urge noble Lords to vote to protect religious freedoms and I wish to test the opinion of the House.
5.34 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 144; Not-Contents, 149.

Division No. 3

CONTENTS

Ackner, L.

Gardner of Parkes, B.

Ahmed, L.

Glentoran, L.

Allenby of Megiddo, V.

Goschen, V.

Ampthill, L.

Gray of Contin, L.

Armstrong of Ilminster, L.

Greenway, L.

Arran, E.

Griffiths of Fforestfach, L.

Attlee, E.

Harris of High Cross, L.

Bagri, L.

Harris of Peckham, L.

Blackwell, L.

Hayhoe, L.

Blaker, L.

Henley, L.

Boothroyd, B.

Home, E.

Boyce, L.

Hooson, L.

Brennan, L.

Howe, E.

Bridgeman, V.

Howell of Guildford, L.

Bridges, L.

Hunt of Wirral, L.

Brooke of Sutton Mandeville, L.

Hussey of North Bradley, L.

Brookeborough, V.

Jauncey of Tullichettle, L.

Brookman, L.

Jopling, L.

Brougham and Vaux, L.

Kimball, L.

Byford, B.

Kingsland, L.

Caithness, E.

Kirkhill, L.

Carnegy of Lour, B.

Knight of Collingtree, B.

Chalfont, L.

Laird, L.

Chan, L.

Lindsay, E.

Clarke of Hampstead, L.

Liverpool, E.

Cobbold, L.

Lofthouse of Pontefract, L.

Cockfield, L.

Lucas, L.

Coe, L.

Luke, L.

Colville of Culross, V.

Lyell, L.

Colwyn, L.

McColl of Dulwich, L.

Cooke of Islandreagh, L.

Mackay of Clashfern, L.

Cope of Berkeley, L.

Maginnis of Drumglass, L.

Courtown, E.

Marlesford, L.

Cox, B.

Masham of Ilton, B.

Craig of Radley, L.

Mason of Barnsley, L.

Cuckney, L.

Mayhew of Twysden, L.

Davies of Coity, L.

Miller of Hendon, B.

Dearing, L.

Molyneaux of Killead, L.

Denham, L.

Monson, L.

Dixon, L.

Montrose, D.

Dixon-Smith, L.

Moran, L.

Donoughue, L.

Mowbray and Stourton, L.

Dundee, E.

Moynihan, L.

Elles, B.

Murton of Lindisfarne, L.

Emerton, B.

Newton of Braintree, L.

Erroll, E.

Northbrook, L.

Feldman, L.

Northesk, E.

Finlay of Llandaff, B.

O'Cathain, B. [Teller]

Fitt, L.

Onslow, E.

Fowler, L.

Oppenheim-Barnes, B.

1079

Palmer, L. [Teller]

Stewartby, L.

Pearson of Rannoch, L.

Stoddart of Swindon, L.

Pilkington of Oxenford, L.

Strange, B.

Platt of Writtle, B.

Strathclyde, L.

Plumb, L.

Swinfen, L.

Plummer of St. Marylebone, L.

Tebbit, L.

Quinton, L.

Tenby, V.

Rawlinson of Ewell, L.

Thomas of Gwydir, L.

Reay, L.

Tombs, L.

Rees, L.

Trefgarne, L.

Rees-Mogg, L.

Trumpington, B.

Roberts of Conwy, L.

Vinson, L.

Rotherwick, L.

Waddington, L.

St. John of Bletso, L.

Wade of Chorlton, L.

Sanderson of Bowden, L.

Wakeham, L.

Seccombe, B.

Walker of Worcester, L.

Selborne, E.

Walpole, L.

Selsdon, L.

Weatherill, L.

Shaw of Northstead, L.

Williamson of Horton, L.

Shrewsbury, E.

Willoughby de Broke, L.

Simon of Glaisdale, L.

Windlesham, L.

Skelmersdale, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Greengross, B.

Addington, L.

Grocott, L. [Teller]

Alli, L.

Hamwee, B.

Amos, B. (Lord President)

Harris of Haringey, L.

Andrews, B.

Harris of Richmond, B.

Archer of Sandwell, L.

Harrison, L.

Bach, L.

Haskins, L.

Barker, B.

Hilton of Eggardon, B.

Barnett, L.

Hogg of Cumbernauld, L.

Bassam of Brighton, L.

Hollis of Heigham, B.

Beaumont of Whitley, L.

Howarth of Breckland, B.

Berkeley, L.

Howe of Idlicote, B.

Bernstein of Craigweil, L.

Howells of St. Davids, B.

Bhatia, L.

Hoyle, L.

Billingham, B.

Hughes of Woodside, L.

Blackstone, B.

Hunt of Chesterton, L.

Borrie, L.

Hunt of Kings Heath, L.

Bragg, L.

Irvine of Lairg, L.

Brooke of Alverthorpe, L.

Janner of Braunstone, L.

Burlison, L.

Jeger, B.

Campbell-Savours, L.

Jones, L.

Carter, L.

Judd, L.

Chandos, V.

King of West Bromwich, L.

Christopher, L.

Layard, L.

Clark of Windermere, L.

Lea of Crondall, L.

Clement-Jones, L.

Lester of Herne Hill, L.

Clinton-Davis, L.

Linklater of Butterstone, B.

Cohen of Pimlico, B.

Lipsey, L.

Corbett of Castle Vale, L.

Lockwood, B.

Crawley, B.

McAlpine of West Green, L.

David, B.

Macdonald of Tradeston, L.

Davies of Oldham, L. [Teller]

McIntosh of Haringey, L.

Dean of Thornton-le-Fylde, B.

McIntosh of Hudnall, B.

Desai, L.

MacKenzie of Culkein, L.

Dholakia, L.

Mackie of Benshie, L.

Dubs, L.

Manchester, Bp.

Elder, L.

Mar and Kellie, E.

Evans of Temple Guiting, L.

Marsh, L.

Ezra, L.

Merlyn-Rees, L.

Farrington of Ribbleton, B.

Miller of Chilthorne Domer, B.

Faulkner of Worcester, L.

Mishcon, L.

Filkin, L.

Mitchell, L.

Fookes, B.

Morgan, L.

Gavron, L.

Murray of Epping Forest, L.

Goldsmith, L.

Newby, L.

Goodhart, L.

Newcastle, Bp.

Gordon of Strathblane, L.

Northover, B.

Goudie, B.

Oakeshott of Seagrove Bay, L.

Gould of Potternewton, B.

Ouseley, L.

Graham of Edmonton, L.

Parekh, L.

Grantchester, L.

Patel, L.

1080

Patel of Blackburn, L.

Smith of Clifton, L.

Pendry, L.

Smith of Leigh, L.

Peston, L.

Stern, B.

Phillips of Sudbury, L.

stone of Blackheath, L.

Pitkeathley, B.

Symons of Vernham Dean, B.

Prys-Davies, L.

Temple-Morris, L.

Puttnam, L.

Thomas of Gresford, L.

Radice, L.

Thomas of Walliswood, B.

Ramsay of Cartvale, B.

Thornton, B.

Randall of St. Budeaux, L.

Tomlinson, L.

Redesdale, L.

Triesman, L.

Rendell of Babergh, B.

Turnberg, L.

Rennard, L.

Turner of Camden, B.

Rodgers of Quarry Bank, L.

Wallace of Saltaire, L.

Roper, L.

Walmsley, B.

Russell-Johnston, L.

Warner, L.

Sainsbury of Turville, L.

Warwick of Underclifie, B.

Sandwich, E.

Whitaker, B.

Sawyer, L.

Whitty, L.

Scotland of Asthal, B.

Wilkins, B.

Scott of Needham Market, B.

Williams of Elvel, L.

Sharp of Guildford, B.

Winston, L.

Sheldon, L.

Worcester, Bp.

Simon, V.

Resolved in the negative, and amendment disagreed to accordingly.
5.45 p.m.
Clause 22 [Prohibition on disclosure of information]:
Lord Marlesford Lord Marlesford moved Amendment No. 4.
Leave out Clause 22.
The noble Lord said: My Lords, I am relieved that my amendment is less intellectually complicated and certainly less philosophically challenging than thediscussions that we have had. Therefore, I hope that I can speak reasonably briefly to it. The amendment seeks to remove Clause 22 from the Bill. To do so would have no effect on the general purpose of the Bill, which is to give official recognition to those who have changed gender. Indeed, I, like other noble Lords, have great sympathy for those who suffer from the medical condition known as gender dysphoria.
Clause 22 makes it a criminal offence for certain categories of people to reveal that a person has changed gender. I believe that Parliament should be wary of creating additional criminal offences; there are quite enough already. Each additional offence, before it is passed, should be subjected to certain, rather obvious, tests. First, is it necessary? Secondly, would it achieve the purpose stated? Thirdly, is it enforceable? Fourthly, do the law enforcement agencies have sufficient resources to enforce it?
I do not believe that Clause 22 is necessary. Those people who come across information on gender change in their official capacities, whether, for example, they be medical people or civil servants, are already bound by ethical conventions, professional rules and laws of confidentiality. No doctor or nurse gossips about his or her patients. Civil servants are bound by the Official Secrets Acts 1911 and 1989. Last

1081
week, when we had a brief discussion on this amendment, which I did not then move, the Minister, the noble Baroness, Lady Hollis of Heigham, said:
"Respect for a person's private life means that we must alleviate some of the dangers of humiliation, embarrassment and harassment … 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 [not] conducive to feeling secure".—[Official Report, 3/2/04; col. 665.]
That is absolutely true. Indeed, it applies to many medical conditions, especially sexual or psychological conditions.
Clause 22 does not deal with that. The Minister, the noble Lord, Lord Filkin, very kindly wrote to me yesterday to explain:
"Clause 22 only applies when information is acquired in 'an official capacity'. No doubt this does mean that gossip and rumour about a person's gender history can continue and is not unlawful when it is conducted by people who have acquired the information in a private capacity … The state should not, for the most part, seek to interfere in the content of conversations that take place between friends and neighbours, in coffee shops and living rooms. Any such prohibition would also be almost impossible to police and it would be very difficult to gather enough evidence for the purposes of a trial".
Quite so. The clause does not cover malicious gossip, but it does cover a wide range of people, other than civil servants, who might have totally legitimate reasons for needing to know. It covers anyone involved as an employer, or prospective employer, in the slightly quaint words, anybody involved in "the conduct of business".
If we were talking about employment law on the grounds of gender, as we have heard from the noble Lord, Lord Lester, and from other noble Lords, we already have legislation to protect from discrimination. In his letter the noble Lord, Lord Filkin, tells me that this clause is required by Article 8 of the European Convention on Human Rights.
Article 8 merely states:
"Everyone has the right to respect for his private and family life, his home and his correspondence",
and then goes on to list exemptions from that right. If we were to legislate to enact the very general provisions of Article 8, almost every Bill would need a Clause 22. Clause 22 does not provide privacy protection where it could be needed, but offers it where it is already provided for. In cases in which anyone might wish to enforce the provision, it would difficult to prove the case, and would use considerable resources that are scarce and needed for the protection of people from real crimes. Such resources would probably be used for little purpose.
With the best intentions, the Government have got themselves into several muddles over this Bill. Indeed, I suspect that they wish that they had tackled the need, which I accept, for official recognition of gender change by a much simpler administrative action. By removing Clause 22, the Bill would fulfil its intention and be a much better one. 1 beg to move.
Lord Lester of Heme Hill: My Lords, it may be helpful if I draw to the attention of the House the fact that the Joint Select Committee on Human Rights
1082
dealt with this matter in our fourth report, when we considered a complaint by the Evangelical Alliance. Those who lead the sort of sad lives that involve reading such documents might be interested to know about the issue. Paragraph 4.38 states:
"the Evangelical Alliance argued that the provisions protecting the privacy of those who have acquired a new gender would violate the right of others under ECHR Article 10"—
the free speech guarantee—
"to receive truthful information about a person's gender".
We unanimously—all-party and beyond party— concluded that that argument was unpersuasive.
We first dealt with why Article 10 was not really triggered. We then came to the view that free speech rights had to be balanced against the Article 10 rights of the transsexual person and decided that any court would probably conclude that the clause is,
"a proportionate response to a pressing social need…for (the purpose of protecting the right of the transsexual person to respect for his or her private life under that paragraph, as determined in judgments of the European Court of Human Rights".
I listened very carefully to the noble Lord, Lord Marlesford, and respectfully say that I do not agree with him. This type of provision is particularly necessary in this Bill because we are concerned with respect for the private lives of this small category of vulnerable persons against the possibility of information being transmitted by persons in an official capacity or by employers in an unnecessary or disproportionate way. Clause 22 carefully balances the need to respect personal privacy against other rights and interests, because Clause 22(4) sets out a variety of circumstances in which it would not be an offence to disclose protected information relating to the individual.
I have carefully considered—as has the Joint Select Committee on Human Rights—the way in which the clause is drafted. We believe that the Bill as a whole is designed to promote rather than invade fundamental rights and freedoms. We conclude that the clause strikes a fair balance and is necessary in order to comply with Article 8 of the convention.
Lord Tebbit: My Lords, I rise briefly to support my noble friend Lord Marlesford. When the matter was discussed at an earlier stage, fears were aroused that reporters from the tabloid press would go fishing around trying to discover from registrars of births and deaths whether they knew of anyone who fell into the category of transgender persons who had been issued with new birth certificates falsely purporting that they had been born male when they were born female, or vice versa.
The Government have decided that they must ensure as best they can that no registrar or any other person in possession of such information in an official capacity should leak it. I do not know how many noble Lords know very much about the tabloid press. I confess that I have a nodding acquaintance with it—a closer one than the Secretary of State for Defence does, as recent events show. Most of the information that the tabloid press has is picked up in the pub from people who have picked it up somewhere else along the way.

1083
Who will know and be legally empowered to pass on such information? They will be the workmates, friends or the family of such a person. That is the very area where the reporter or stringer from a tabloid paper picks up his information. Above all, Clause 22 will be ineffective in protecting the person. All it will do is punish an official, such as a registrar of births and deaths, for revealing the fact that somebody was born a girl although the birth certificate says that the person was born a boy.
That is it. It is a very heavy sledgehammer to attempt to crack a nut, particularly when the people most likely to discuss such matters and to talk about them to the press are not covered by the clause. The noble Lord is right that the clause is objectionable and needs to be thrown out.
Lord Selsdon: My Lords, I am a little worried because of the international requirements regarding birth certificates. For example, in the Middle East where I have been many times, one often has to produce one's birth certificate and that of one's parents. If someone changes his birth certificate, it has to be changed all the way back through the line.
I do not want to make a speech like that of the noble Earl, Lord Ferrers, on such issues, but it is complicated to know who you are these days. Around the continent of Europe there are only two names. The noble and learned Lord the Lord Chancellor, would be known as "Falconer, Charlie". His birth certificate would also be required—but he was probably not a Lord at that time—because a passport is not necessarily proof of identity. I have found that because the first part of my name is sometimes given as, "The right", I am known as "Monsieur Right The". The last bit of my title is "of Croydon", so I am called, "Croydon Of—Of being a Norwegian Christian name.
We therefore need to think right the way through the history of the birth certificate. That applies inevitably to some hereditary Peers whose father at the time of their birth were not called "Lord this or that" because their grandfathers were alive. Once the chain is broken by a change in a birth certificate it could be deemed to be extremely fraudulent in certain countries.
I believe that such a clause should not be necessary because common decency should prevail. It is only when people follow indecent thoughts that decency does not prevail. I am therefore inclined to support my noble friend Lord Marlesford as the provision seems extraordinarily complicated. I wonder whether the Government have thought through the question of proof of identity and the requirement for the birth certificates of two or three generations.
Lord Stoddart of Swindon: My Lords, this is the first and only time that I shall speak in this debate. I do so simply to say that I believe that the Bill is entirely unnecessary, and has proved to be divisive. I wish that, in considering the interests of minorities, we might also
1084
consider the interests of majorities. Perhaps we ought to have a conglomerate Bill to protect the interests of majorities.
I was surprised when I received a Written Answer to a Question asking the Government to provide information on how many new criminal offences had been instituted and passed by Parliament since 1997, because that information was not kept centrally. In fact, we are going along willy-nilly, making more and more offences and increasing the penalties for offences, but the Government—and probably the previous government as well—simply do not know how many offences there are for people to commit and what offences have had their penalties increased. I find that impossible to believe, but it is unfortunately the truth.
I am concerned about the Bill and the unjoined-up government that brings forward such Bills. I am against the Bill; I have been against the Bill since it had its First Reading. However, I have kept relatively quiet about it because, if I objected to every Bill, I would be up 24 hours a day examining them and making speeches about them, either in Grand Committee or here. I shall concentrate my attention on the amendment, which I shall support for the reasons put forward by the noble Lord, Lord Marlesford, and others.
The only point that I want to make about the clause is about its subsection (5), which states:
"The Secretary of State may by order make provision prescribing circumstances in which the disclosure of protected information is not to constitute an offence under this section".
That sounds very reasonable—except that everything else that the Government have not thought to put in subsection (5) will be an offence. I would like an explanation from the Minister about what that subsection means. A court that looked at it and the list of offences that are excluded would be bound to conclude that every other possible offence was included. After what I have said, I hope that he will be able to help me on that small matter.
6 p.m.
Lord Filkin: My Lords, those who have contributed to debates on the Bill in its earlier stages will be well aware why the clause matters. In itself, it goes to the heart of why the Bill matters, as it essentially deals with the importance of ensuring—albeit belatedly in the United Kingdom's case—that the gender change of people who have had or have gender dysphoria and have been in that condition for a period of time should, after a proper process of testing, be recognised by the state. We are one of only two members of the European Union that do not do that now, and it is about time that we rectified that.
The clause is an important part of the Bill because the Bill is essentially about trying to allow people who meet its tests to live their lives in peace, quiet and decency in future. There is a limit to what the state can do in that respect, as I signalled in the letter to the noble Lord, Lord Marlesford. However, what we can do. we should do, which is why the clause is in the Bill.

1085
Let me set out why it is necessary and why, as the noble Lord, Lord Lester, so clearly said, it is also proportionate to meeting our human rights obligations.
The clause is intended to ensure that the disclosure of personal information without the consent of the person in question must be restricted; if not, we would fail the person's right to respect for private life under Article 8. As the Bill is clearly structured, it signals that all human rights legislation has to strike a balance between one set of rights for one individual with rights and freedoms for others. Therefore the right and freedom in this respect are governed and limited by the prohibitions on disclosure in a number of important respects. The privacy protection does not hamper the detection or investigation of crime; it does not prevent the Criminal Records Bureau from carrying out its functions. The prohibition will not, therefore, assist a transsexual person who is also committed to a life of crime from being identified or detected. Similarly, disclosure is permitted where it is for the purpose of proceedings before a court or tribunal. It is also permitted where it is made in accordance with or by virtue of a statutory provision. Clause 22 will therefore not prevent members of the Civil Service or other public bodies from carrying out their statutory functions.
Clause 22 makes quite clear that disclosure may be made with the consent of the person to whom the information relates. This means that a person may be asked as to his or her gender history and, with his or her agreement, the information may be passed on to others who may need it.
Clause 22 also has another important limit. Not only does it enumerate a list of exceptions that allow disclosure where it is justified in public policy, it also extends only to information that is acquired in an official capacity. Clause 22 does not, therefore, cause harm to the liberty of individuals acting in a private capacity. It does not intrude into the private sphere. It would not be proper for the state to start poking into the content of conversations, as I indicated in the letter that I wrote to the noble Lord, Lord Marlesford.
On the one hand, there is the right of transsexual people to respect for their private lives, their interest in personal security and some level of control over what is sensitive personal information. On the other hand, by including specific exemptions and by staying out of the private sphere, the rights and freedoms of others are protected. Clause 22 and its subordinate limits have been carefully balanced to meet both our obligations under the Human Rights Act and our obligations in terms of decency and the rights of others.
Why does it matter? I can do little better than to draw the House's attention to a tragic article in the Guardian on 12 May. With the leave of the House, I shall refer to it briefly. It is about prejudice against a transsexual who committed suicide as a result of 10 years of prejudice against her. I do not claim that the clause will stop gossip, malice, evil or ordinary human beings from behaving in thoughtless ways that do
1086
damage, but we have an obligation as a state to seek to ensure that public officials or people acting in a public role are not part of that process. In that small and limited way we should so act.
I will not weary the House, but it is a tragic example of a person who experienced 10 years of harassment, vilification, physical assault and abuse on her house, which eventually drove her to commit suicide. In our small way— this is what the clause does—we have an obligation to act. Therefore I hope that the noble Lord, Lord Marlesford, will respect why we believe that this is an important measure and that, therefore, we do not support his amendment.
Lord Marlesford: My Lords, I am grateful to the Minister for his comments. I felt, frankly, that he very largely made my case, because he emphasised again the areas that the clause does not cover and that will not be helped by it. He referred to a tragic case which would almost certainly—although I do not know further details—come into that category.
I am sure that the noble Lord, Lord Lester of Herne Hill, would like to have every Bill with a Clause 22. There can be few examples that he would not be able to give where almost every clause of the Human Rights Act ought to apply if it does not already. Frankly, I was not convinced by the Minister.
Parliament has been increasingly criticised for its failure to put the executive right. In fact, that is one of the arguments increasingly put forward for the growing power of the media. I believe that in this small example we have the opportunity of correcting a nonsense and removing what I see as an ineffective and profoundly illiberal clause. I therefore invite noble Lords from all parts of the House to join me in the Lobby in removing it.
6.9 p.m
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 108; Not-Contents, 145.

Division No. 4

CONTENTS

Astor of Hever, L.

Cox, B.

Bagri, L.

Crickhowell, L.

Blackwell, L.

Davies of Coity, L.

Boothroyd, B.

Denham, L.

Bridgeman, V.

Dixon-Smith, L.

Bridges, L.

Donoughue, L.

Brooke of Sutton Mandeville, L.

Dundee, E.

Brookeborough, V.

Eccles of Moulton, B.

Burnham, L.

Elton, L.

Byford, B.

Erroll, E.

Caithness, E.

Feldman, L.

Campbell of Alloway, L.

Fitt, L.

Carnegy of Lour, B.

Fookes, B.

Chalfont, L.

Freeman, L.

Coe, L.

Glentoran, L.

Colwyn, L.

Gray of Contin, L.

Cooke of Islandreagh, L.

Harris of High Cross, L.

Cope of Berkeley, L.

Harris of Peckham, L.

Courtown, E.

Hayhoe, L.

1087

Hodgson of Astley Abbotts, L.

Pearson of Rannoch, L.

Home, E.

Phillips of Sudbury, L.

Howell of Guildford, L.

Pilkington of Oxenford, L.

Kimball, L.

Platt of Writtle, B.

Kingsland, L.

Plummer of St. Marylebone, L.

Knight of Collingtree, B.

Reay, L.

Laird, L.

Rees, L.

Lindsay, E.

Renton, L.

Liverpool, E.

Roberts of Conwy, L.

Lofthouse of Pontefract, L.

Rogan, L.

Luke, L.

Rotherwick, L.

Lyell, L.

Saltoun of Abernethy, Ly.

McColl of Dulwich, L.

Sanderson of Bowden, L.

MacGregor of Pulham Market, L.

Seccombe, B.

Selborne, E.

Mackay of Clashfern, L.

Selsdon, L.

MacLaurin of Knebworth, L.

Shrewsbury, E.

Maginnis of Drumglass, L.

Simon of Glaisdale, L.

Marlesford, L. [Teller]

Skelmersdale, L.

Masham of Ilton, B.

Stewartby, L.

Mason of Barnsley, L.

Stoddart of Swindon, L.

Mayhew of Twysden, L.

Strange, B.

Miller of Hendon, B.

Strathclyde, L.

Molyneaux or Killead, L.

Taylor of Warwick, L.

Monson, L.

Tebbit, L.

Montrose, D.

Tombs, L.

Mowbray and Stourton, L.

Trefgarne, L.

Moynihan, L.

Trumpington, B.

Murton of Lindisfarne, L.

Vinson, L.

Naseby, L.

Waddington, L.

Northbrook, L.

Wade of Chorlton, L.

Northesk, E.

Wakeham, L.

Norton of Louth, L.

Weatherill, L.

O'Cathain, B. [Teller]

Willoughby de Broke, L.

Palmer, L.

Windlesham, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Evans of Temple Guiting, L.

Addington, L.

Ezra, L.

Ahmed, L.

Farrington of Ribbleton, B.

Allenby of Megiddo, V.

Faulkner of Worcester, L.

Alli, L.

Filkin, L.

Amos, B. (Lord President)

Finlay of Llandaff, B.

Andrews, B.

Gavron, L.

Archer of Sandwell, L.

Goldsmith, L.

Barker, B.

Goodhart, L.

Barnett, L.

Gordon of Strathblane, L.

Bassam of Brighton, L.

Goudie, B.

Berkeley, L.

Gould of Potternewton, B.

Bernstein of Craigweil, L.

Graham of Edmonton, L.

Bhatia, L.

Grantchester, L.

Billingham, B.

Grocott, L. [Teller]

Borrie, L.

Hamwee, B.

Bragg, L.

Harris of Haringey, L.

Brooke of Alverthorpe, L.

Harris of Richmond, B.

Burlison, L.

Harrison, L.

Campbell-Savours, L.

Haskins, L.

Carter, L.

Hilton of Eggardon, B.

Chandos, V.

Hogg of Cumbernauld, L.

Christopher, L.

Hollis of Heigham, B.

Clark of Windermere, L.

Howarth of Breckland, B.

Clement-Jones, L.

Howe of Idlicote, B.

Clinton-Davis, L.

Howells of St. Davids, B.

Cohen of Pimlico, B.

Hoyle, L.

Corbett of Castle Vale, L.

Hughes of Woodside, L.

Craigavon, V.

Hunt of Chesterton, L.

Crawley, B.

Hunt of Kings Heath, L.

David, B.

Irvine of Lairg, L.

Davies of Oldham, L. [Teller]

Jay of Paddington, B.

Dean of Thornton-le-Fylde, B.

Jeger, B.

Desai, L.

Jones, L.

Dholakia, L.

Judd, L.

Dubs, L.

King of West Bromwich, L.

Elder, L.

Kirkhill, L.

1088

Layard, L.

Rodgers of Quarry Bank, L.

Lester of Herne Hill, L.

Rooker, L.

Lipsey, L.

Roper, L.

Livsey of Talgarth, L.

Russell-Johnston, L.

Lockwood, B.

Sainsbury of Turville, L.

Macdonald of Tradeston, L.

Sandberg, L.

McIntosh of Haringey, L.

Sawyer, L.

McIntosh of Hudnall, B.

Scotland of Asthal, B.

MacKenzie of Culkein, L.

Scott of Needham Market, B.

Mackie of Benshie, L.

sharp of Guildford, B.

Maclennan of Rogart, L.

Simon, V.

Maddock, B.

Smith of Clifton, L.

Mar and Kellie, E.

Smith of Leigh, L.

Miller of Chilthorne Domer, B.

Stone of Blackheath, L.

Mitchell, L.

Symons of Vernham Dean, B.

Morgan, L.

Temple-Morris, L.

Morriss of Aberavon, L.

Thomas of Gresford, L.

Murray of Epping Forest, L.

Thomas of Walliswood, B.

Newby, L.

Thornton, B.

Northover, B.

Tomlinson, L.

Oakeshott of Seagrove Bay, L.

Tope, L.

Ouseley, L.

Tordoff, L.

Parekh, L.

Turnberg, L.

Patel of Blackburn, L.

Turner of Camden, B.

Pendry, L.

Wallace of Saltaire, L.

Peston, L.

Walmsley, B.

Prys-Davies, L.

Walpole, L.

Puttnam, L.

Warner, L.

Radice, L.

Warwick of Undercliffe, B.

Ramsay of Cartvale, B.

Whitaker, B.

Randall of St. Budeaux, L.

Whitty, L.

Razzall, L.

Wilkins, B.

Redesdale, L.

Williams of Elvel, L.

Rendell of Babergh, B.

Williamson of Horton, L.

Rennard, L.

Winston, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.19 p.m.
An amendment (privilege) made.
Lord Filkin: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Filkin).
Lord Tebbit: My Lords, I shall be brief. First, I express my thanks, especially to the noble Lord, Lord Filkin, and his colleagues on the Front Bench. The Bill is highly contentious and quite emotive, and I greatly appreciated the courtesy and good humour with which it was debated in the Chamber; and, occasionally, the even greater humour with which it was debated just outside the door, I must confess.
I hope that the noble Lord will not think that I am misquoting him, for I cite from memory rather than Hansard, when I say that at the end of Second Reading, he declined to argue with me because he saw my objections to the Bill as being objections of principle and therefore incapable of being moved. That is rather a pity; we should sometimes try to change people's minds over objections in principle. In many ways, we should try harder at that. The noble Lord rarely dealt with the arguments for the numerous amendments that I moved. It was not a discourse of the deaf: we heard and understood each other; but, all too often, we did not really engage in debate about the issues.

1089
On secular grounds, I objected to a law that requires a public servant to certify as true that which is not true. That is not that a person may have changed sex. Whether that is possible is a matter of debate, but it is not open to debate that if a child is certified at birth as female and subsequently gives birth, the odds are heavily that she was born a girl. A subsequent sex change may or may not be real, but it cannot change the fact of her birth. The Bill purports that that fact can be changed and requires a public servant to certify that it has happened, when clearly it has not. The Bill is unchanged not only from Second Reading but from First Reading in that respect.
On grounds of common sense, I objected to the fact that the Bill would allow the marriage of two persons, each bearing the chromosomes, genitalia and gonads of the same sex, provided only that one of them believed—and persuaded a panel of experts to believe—that he or she had changed sex. My amendment on that matter was rejected.
On religious—or, perhaps I should say, Church— grounds, I found myself greatly in agreement with my noble friend Lady O'Cathain on a number of amendments that she moved, all of which were rejected. I find it disturbing that sport seems in Ministers' minds to need more protection than religion. It seems to me that it is bishops rather than footballers who are an endangered species these days.
Lastly, I say again how sorry I am that we have not heard the voice of Islam in our debates. I think that, with the sole exception of sport, the Bill is now as bad a Bill as it was when it was introduced to the House. I therefore object to it and will ask the House to reject it.
Lord Filkin: My Lords, I shall be very brief. At Second Reading, I did not say that I would not engage with the noble Lord, Lord Tebbit—I and others, especially my noble friends Lord Winston and Lord Turnberg, engaged with him brilliantly on the central issue of the difference between sex and gender. Essentially, I was saying that there is a limit to how much time I will spend—his time or that of the House. I was not optimistic that a man of his firmness of opinion was likely to be swayed by my puny argumentation. We have done justice to his issues, particularly at Report around that central issue.
The central thrust of the case of the noble Lord, Lord Tebbit, was that one's chromosomes are the beginning and the end of the story. The Bill does not seek to rewrite history. It does not seek to say that what was recorded at birth is not a historical fact. That is a historical fact; it is kept and it is recorded. The Bill recognises that in very limited circumstances, for a very limited number of people—after a proper process of testing, through medical opinion, advice and process test—it is right for the state to give recognition of a change of gender. The Bill does no more than that, but it is right that it does that.
We have spoken a number of times about sport. For the reasons that I gave not five minutes ago, we have been persuaded that there was a need to strengthen the protection on sport. That is all that we sought to do, and I am glad that we have done it.
1090
We have just had a debate on religion. There is no point in me repeating that debate at this point. I took some small comfort that, on an issue that was so central to the Church, of those Members sitting on the Bishops' Benches who were present in the Chamber, three of them voted with the Government on the amendment. The calumnies that have sometimes been put about that we have been riding roughshod over the sensitivities of organised religion are untrue.
I will say no more, because it is for the House to decide this issue, rather than my persuasion. 1 commend the Bill to the House.
6.27 p.m.
On Question, Whether the Bill do now pass?
Their Lordships divided: Contents, 155; Not-Contents, 57.

Division No. 5

CONTENTS

Acton, L.

Gavron, L.

Addington, L.

Goodhart, L.

Alli, L.

Gordon of Strathblane, L

Amos, B. (Lord President)

Goudie, B.

Andrews, B.

Gould of Potternewton, B.

Archer of Sandwell, L.

Graham of Edmonton, L.

Ashdown of Norton-sub-Hamdon, L.

Grantchester, L.

Greengross, B.

Bagri, L.

Grocott, L. [Teller]

Barker, B.

Hamwee, B.

Barnett, L.

Harris of Haringey, L.

Bassam of Brighton, L.

Harris of Richmond, B.

Berkeley, L.

Harrison, L.

Bernstein of Craigweil, L.

Haskins, L.

Bhatia, L.

Hilton of Eggardon, B.

Billingham, B.

Hogg of Cumbernauld, L.

Borrie, L.

Hollis of Heigham, B.

Bragg, L.

Howarth of Breckland, B.

Brooke of Alverthorpe, L.

Howe of ldlicote, B.

Brookman, L.

Howells of St. Davids, B.

Burlison, L.

Hoyle, L.

Buscombe, B.

Hughes of Woodside, L.

Campbell-Savours, L.

Hunt of Chesterton, L.

Carter, L.

Hunt of Kings Heath, L.

Chandos, V.

Irvine of Lairg, L.

Christopher, L.

Jay of Paddington, B.

Clark of Windermere, L.

Jeger, B.

Clement-Jones, L.

Jones, L.

Clinton-Davis, L.

Judd, L.

Cohen of Pimlico, B.

King of West Bromwich, L.

Corbett of Castle Vale, L.

Layard, L.

Craigavon, V.

Lea of Crondall, L.

Crawley, B.

Lester of Herne Hill, L.

David, B.

Lipsey, L.

Davies of Coity, L.

Livsey of Talgarth, L.

Davies of Oldham, L. [Teller]

Lockwood, B.

Dean of Thornton-le-Fylde, B.

Macdonald of Tradeston, L.

Desai, L.

McIntosh of Haringey, L.

Dholakia, L.

McIntosh of Hudnall, B.

Donoughue, L.

MacKenzie of Culkein, L.

Dubs, L.

Mackie of Benshie, L.

Elder, L.

Maclennan of Rogart, L.

Evans of Parkside, L.

McNally, L.

Evans of Temple Guiting, L.

Maddock, B.

Ezra, L.

Mar and Kellie, E.

Farrington of Ribbleton, B.

Mason of Barnsley, L.

Faulkner of Worcester, L.

Miller of Chilthorne Domer, B.

Filkin, L.

Mitchell, L.

Finlay of Llandaff, B.

Morgan, L.

1091

Morris of Aberavon, L.

Sawyer, L.

Murray of Epping Forest, L.

Scotland of Asthal, B.

Newby, L.

Scott of Needham Market, B.

Northover, B.

Sharp of Guildford, B.

Norton of Louth, L.

Shutt of Greetland, L.

Oakeshott of Seagrove Bay, L.

Simon, V.

Parekh, L.

Smith of Clifton, L.

Patel, L.

Smith of Leigh, L.

Patel of Blackburn, L.

Stone of Blackheath, L.

Pendry, L.

Symons of Vernham Dean, B.

Peston, L.

Temple-Morris, L.

Phillips of Sudbury, L.

Thomas of Gresford, L.

Pitkeathley, B.

Thomas of Walliswood, B.

Prys-Davies, L.

Thornton, B.

Puttnam, L.

Tomlinson, L.

Radice, L.

Tope, L.

Ramsay of Cartvale, B.

Tordoff, L.

Randall of St. Budeaux, L.

Turnberg, L.

Razzall, L.

Turner of Camden, B.

Redesdale, L.

Wallace of Saltaire, L.

Rendell of Babergh, B.

Walmsley, B.

Rennard, L.

Walpole, L.

Rodgers of Quarry Bank, L.

Warner, L.

Rooker, L.

Warwick of Undercliffe, B.

Roper, L.

Whitaker, B.

Russell-Johnston, L.

Whitty, L.

Sainsbury of Turville, L.

Wilkins, B.

St. John of Bletso, L.

Williamson of Horton, L.

Sandberg, L.

Winston, L.

NOT-CONTENTS

Armstrong of Ilminster, L.

Carnegy of Lour, B.

Attlee, E.

Chalfont, L.

Boyce, L.

Chan, L.

Burnham, L.

Colwyn, L.

1092

Cooke of Islandreagh, L.

Montrose, D.

Cox, B.

Naseby, L.

Dixon-Smith, L.

Northbrook, L.

Elton, L.

O'Cathain, B. [Teller]

Emerton, B.

Palmer, L.

Erroll, E.

Plummer of St. Marylebone, L.

Feldman, L.

Reay, L.

Gray of Contin, L.

Rees, L.

Harris of High Cross, L.

Renton, L.

Harris of Peckham, L.

Rotherwick, L.

Jauncey of Tullichettle, L.

Sanderson of Bowden, L.

Kimball, L.

Selsdon, L.

Kirkhill, L.

Shrewsbury, E.

Laird, L.

Stewartby, L.

Lindsay, E.

Stoddart of Swindon, L.

Liverpool, E.

Strange, B.

Lofthouse of Pontefract, L.

Tebbit, L. [Teller]

Luke, L.

Tombs, L.

Lyell, L.

Trefgarne, L.

MacLaurin of Knebworth, L.

Vinson, L.

Maginnis of Drumglass, L.

Waddington, L.

Marlesford, L.

Wade of Chorlton, L.

Masham of Ilton, B.

Weatherill, L.

Miller of Hendon, B.

Willoughby de Broke, L.

Molyneaux of Killead, L.

Resolved in the affirmative and Motion agreed to accordingly.
Bill passed, and sent to the Commons.
House adjourned at twenty-three minutes before seven o'clock.