Lords Sitting of 29 January 2004

Preamble
The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Manchester.

Iraq
Lord Lamont of Lerwick Lord Lamont of Lerwick asked Her Majesty's Government:
Whether they will now set up an independent inquiry to investigate whether the United Kingdom's declared reasons for war against Iraq were justified by the available evidence.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, we have no plans to do so.
Lord Lamont of Lerwick: My Lords, I thank the Minister for that reply. Given that up to 20,000 people may have died in the war against Iraq and a similar number may have been maimed or injured, is it not reasonable for people to want an answer to the question which the noble and learned Lord, Lord Hutton, quite understandably, declined to enter into—namely, whether the intelligence on which the decision to go to war was taken was soundly based? Whenever this question has been asked in the past, the Government have said we should wait for the survey group to report. Now that the chairman of that group has resigned, telling a US Senate Committee yesterday that we were almost all wrong, is there not an argument for following the precedent of my noble friend Lady Thatcher after the Falklands War and setting up an independent inquiry?
Baroness Symons of Vernham Dean: My Lords, the noble Lord must bear it in mind that there have already been three inquiries. The inquiry conducted by the Foreign Affairs Committee produced its report on the decision to go to war on 7 July. The inquiry conducted by the Intelligence and Security Committee reported on 11 September. I remind the noble Lord that that committee was not in being at the time that the Franks committee was set up—it is important to remember that. In addition, the Hutton inquiry reported yesterday.
Mr Kay was very clear in what he said to the Intelligence Committee in a number of respects. But he also said that his views were partial; they were his own; and that more evidence may become available. So I suggest that we are patient on this issue. I know that there is a bit of disappointment on the Benches opposite over what happened yesterday, but instead of
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repeating the errors of rushing to judgment in the light of what Mr Kay has said, it would be sensible to wait for the ISG to report.
Lord Wallace of Saltaire: My Lords, when the ISG reports, will we be given a chance to debate that report as well as the US Congress? Is it the settled policy of Her Majesty's Government that all further inquiries on the wider case for war will be conducted by the US Congress and not by the British Parliament?
Baroness Symons of Vernham Dean: My Lords, the noble Lord will know that there may be issues around the report that cannot go into the public domain. He will know that with the interim report, we put as full a report as possible into the public domain. I want to be clear about this because I do not want there to be any misapprehension over what I am saying. In the same way that we have had an enormous number of opportunities to debate the issues around why we went to war with Iraq in the first place—even last night we were debating the issues around the costs of that war—I am sure that there will be opportunities, and the usual channels will be able to fix those opportunities, to debate anything appropriate.
Lord Howell of Guildford: My Lords, does the Minister recall that many of us on these Benches strongly supported the Prime Minister and saluted his courage at the time of the invasion and his decision to ally ourselves with the Americans in invading Iraq? All we questioned at the time was the clarity of some of the justification given by the Prime Minister. We questioned the two dossiers which are now universally reckoned as dodgy—indeed, the second dossier being very much dodgier than the first one.
Would it not now be very helpful to all—including the Government's case, which is not looking very good in Iraq—to have an investigation or inquiry, which, as my noble friend has reminded us, is being proposed in the United States, to show the real and good reasons for regime change in Iraq, for removing the hideous Saddam, and to bring home to all people the considerable achievements which are now taking place in Iraq but which hardly ever get reported? The wheels of commerce are now turning in that country and there are many benefits which we do not hear enough about from the media or the Government.
Baroness Symons of Vernham Dean: My Lords, I am bound to say that if the noble Lord had been in his place yesterday evening, he would have heard a great deal about that. I know that there were others taking part in that debate, but the fact is that we debated a lot of the benefits to flow from Iraq, only last night in this House. I, like him, wish that that received more publicity.
I do recall that the noble Lord was among many who—very rightly in my view, but courageously as well, given the politics—supported the Government at the time we went into military conflict with Iraq. I also recall that much of the intelligence we had available was shared at that time. I believe that more evidence

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will be found of weapons of mass destruction, but let us see what the ISG reveals and whether those programmes existed. At that point, the noble Lord will no doubt be able to make his case again. However, it is important to remember that this was not the sole reason for going to war. The reason for going to war was the way in which Iraq had repeatedly flouted the United Nations—the way in which the whole world believed, in passing United Nations Security Council Resolution 1441, that Iraq was in material breach of its obligations under UN Security Council Resolutions 678 and 687. We had a debate about that in this House before the military conflict started. So to be partial about this is a mistake.
Lord Tomlinson: My Lords, does my noble friend agree that rather than spending a great deal of time going back over the genesis of every detail that led to a war which the vast majority of Members of both Houses of Parliament supported, it would be more useful now if we concentrated on winning the peace and heard something from opposition parties calling on all parties in the United Nations fully to observe all the requirements of Resolution 1441? Many of their political friends in other countries are currently ignoring their responsibilities there, and if they called on their political friends to observe that resolution, perhaps we could do something constructive towards securing the peace.
Baroness Symons of Vernham Dean: My Lords, I agree with that wholeheartedly. I hope, given what the noble Lord, Lord Howell of Guildford, has said today, that he will be on the front foot on this issue about winning the peace and that the Opposition will be on the front foot about telling the world what a good job we are making of many issues in Iraq. We do not hear that from the party opposite. I remind those who attack the Government on this issue that the United Kingdom's declared reasons for war against Iraq were discussed fully in both Houses, with a vote in the House of Commons, a move unprecedented in modern times. I look forward to what the noble Lord will say as a result of these exchanges, to the media and elsewhere, about how well the coalition is doing in Iraq.
Baroness Walmsley: My Lords, when the ISG report or part of it is published, can the Minister assure the House that it will be published in the words of the ISG alone and that there will not be any suggested "adjustments", shall we say, to the wording from any member of the Prime Minister's private office?
Baroness Symons of Vernham Dean: My Lords, in the light of the findings of the noble and learned Lord, Lord Hutton, the implication behind that question is totally inappropriate. The noble Baroness is trying to revisit issues around the accusations of spin. The Government were cleared entirely of those accusations by the noble and learned Lord, Lord Hutton. If the noble Baroness does not understand that, she can read the report in full.

UK Economy: OECD Report
11.14a.m.
Lord Roberts of Conwy Lord Roberts of Conwy asked Her Majesty's Government:
How they respond to the latest report on the United Kingdom economy by the Organisation for Economic Co-operation and Development.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, the OECD's assessment of the UK economy was published on 20 January 2004. The Government welcome the report and note the positive assessment of the performance of the economy over the past few years.
Lord Roberts of Conwy: My Lords, glowing as the report is in parts, nevertheless it points out that the budget deficit will exceed the euro-zone's 3 per cent limit by next year. Furthermore, the report casts doubt on whether the,
"massive spending increases will fully pay off in terms of improved service".
Is not the Chancellor's golden rule on balancing the budget of the economic cycle under serious threat? Should we not be encouraging him to think about cuts in public spending as he himself suggested at the enterprise summit earlier this week, before he increases taxation or we return to the dreaded boom and bust?
Lord McIntosh of Haringey: My Lords, I heard what the noble Lord, Lord Roberts, said about glowing in parts. My copy of the OECD's statement is festooned with flags to positive comments. It looks rather different from Michael Howard's copy of the Hutton report, I have to say.
On the more serious issue, clearly there is a distinction between the wholly favourable opinion expressed by the OECD about the UK economy at present and its projections for the future. The OECD is entitled to its projections for the future; the Institute for Fiscal Studies has produced comparable projections, which are published today. They are fully entitled to their views; it is the Government's that the Chancellor will not break his golden rules.
Lord Sheldon: My Lords, is my noble friend aware that the report was really very positive about the UK economy, as he rightly mentioned? Should not notice be taken of the fact that in the whole of the past century—if we take that into account—we have had seven years of stability? That was never equalled in the whole of the previous century and for much of the century before then. This is a wholly new phenomenon, and we should pay tribute to the Chancellor for producing it.
Lord McIntosh of Haringey: My Lords, I am sure that we should, but I cannot resist recalling the view of the bursar of an Oxford college, who criticised the college's investment policy on the grounds that the past 200 years had been wholly exceptional.
Baroness Sharp of Guildford: My Lords, would the Minister agree that one element of the report that was somewhat critical of the UK economy dealt with the long-term productivity performance? In particular, the report identified the low levels of R&D as being a cause for concern. International comparisons indicate that British industry, with the noble exceptions of the pharmaceutical and aerospace industries, has a very poor record in that regard. The Government have introduced a series of measures, including a rather expensive R&D tax credit, which so far has had very little effect. Has the Minister any suggestions as to other measures that might be introduced, which might help industry to improve its performance?
Lord McIntosh of Haringey: My Lords, I am grateful for the comments of the noble Baroness, Lady Sharp, on the measures that have been introduced to improve productivity. I am sure that the Chancellor in his Budget, which is the only occasion on which such matters can be announced, will consider further measures if necessary. However, it is worth pointing out that, using the definition of productivity that the OECD uses, we have in fact already caught up with the European average. We are still behind the United States, of course, but we are catching up in relation to Europe and Japan.
Lord Marlesford: My Lords, does the Minister believe that the OECD report would be more or less optimistic if we were already in the euro? Secondly, can he remind us of the latest estimate of the budget deficit for this year and for next year, both in billions of pounds and as a percentage of GDP?
Lord McIntosh of Haringey: My Lords, the first question is of course, as the noble Lord, Lord Marlesford, knows, a try-on. It is a hypothetical question that invites me to anticipate any future statements about British membership of the euro.
On the second question, yes, I believe that I can give percentage figures, at any rate. The projection in the OECD report for the rest of this financial year—from 2003–04—is that the deficit will be 3.3 per cent. The projections for next year and the year after are 2.4 per cent and 1.8 per cent respectively.
Lord Howe of Aberavon: My Lords, will the Minister consider advising the Chancellor that the best contribution he could make to increased productivity in the years ahead would be to promise to introduce much shorter finance Bills than he those he has produced so far?
Lord McIntosh of Haringey: My Lords, I know from personal experience that the Chancellor is particularly grateful to the noble and learned Lord, Lord Howe,
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for the work that he does as regards the simplification of taxation and we are sympathetic to it. As I have said on many occasions in this House, complication of taxation arises because of the concentration of legal and financial support for those who wish to find new ways of avoiding taxes.
Baroness Wilcox: My Lords, does the Minister agree with the OECD statement that,
"improving the quality of public services in a cost-effective way in such priority areas as health and education will be a major challenge"?
If so, will he explain why the Government's approach to public services is one of more tax, more spending and more failure, rather than enacting any meaningful reforms?
Lord McIntosh of Haringey: My Lords, on the noble Baroness's first point, the OECD report is very cautious indeed:
"The jury is still out on whether the massive spending increases will fully pay off in terms of improved service".
That is a warning to us. On the second point, I disagree with all of the statements that she makes.

Carbon Dioxide Emissions
11.21 a.m.
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
Whether they are still on track to meet the goal, accepted at Kyoto, of a 20 per cent reduction in carbon dioxide emissions below 1990 levels by 2010 and a 60 per cent cut by 2050.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, I shall first, unusually, correct the noble Lord. The UK target under the Kyoto protocol is actually to reduce greenhouse gas emissions by 12.5 per cent below 1990 levels. Provisional data show that UK greenhouse gas emissions were 14.9 per cent below 1990 levels in 2002. Therefore we shall meet the Kyoto target. We remain confident that by delivering appropriate policies we can meet the domestic goal of a 20 per cent reduction by 2010. Further step changes will be needed if we are to meet the 2050 target.
Lord Peyton of Yeovil: My Lords, I am grateful for that minor correction. Is the Minister aware of the growing anxiety that DTI Ministers continue to fight shy of any real conclusion about the need for more nuclear generation? In doing so, they are losing a valuable opportunity that would take them on the way to meeting those commitments, which begin to look more like a PR exercise than real undertakings.
Lord Whitty: My Lords, the noble Lord has on occasion been with us in Committee on the Energy Bill. He knows that the discussions about a nuclear

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component of energy policy have been fairly robust and will, no doubt, continue to be so. The point about meeting the Kyoto targets is that we need no new nuclear capacity to meet them. We believe that the policies set out in the energy White Paper, if fully delivered with the energy efficiency and renewables contribution, can ensure that we meet those targets without new nuclear power. Particularly after 2010, this will require some step changes in both consumer and business behaviour. Of course, we are keeping the nuclear option open and constantly under review.
Lord Tomlinson: My Lords, does my noble friend agree that, although he is quite right to say that we need no new nuclear capacity, we do need all our existing nuclear capacity unless and until alternatives are in place that generate the same volume of electricity and the additional electricity needed to meet the productivity demands such as those set out in the OECD report?
Lord Whitty: My Lords, I do not entirely agree with that. Certainly on present policies there will continue to be a nuclear component until the mid-2030s, even if there is no new build. But that will be a diminishing component. Indeed, we can meet our projected energy requirements in 2020, provided that the policies enunciated in the White Paper are maintained, with a much reduced nuclear component by then.
Lord Ezra: My Lords, in spite of the optimism expressed by the Minister, in order to make sure that we achieve our targets, would it not be prudent for further steps to be taken now to support other energy technologies, apart from renewables, that are likely to lead to a reduction in emissions?
Lord Whitty: My Lords, further steps are being taken on renewables, on more energy efficient use of carbon fuels and the development of alternative technology. That includes keeping the nuclear option open by research and expertise being maintained, so that we could, if necessary, revert to a nuclear option. But if the various components outlined in the White Paper are delivered on current policies and on policies which are envisaged in that paper, then we do not need to rely significantly on any technology that is not so far included within that calculation.
The Lord Bishop of Manchester: My Lords, are the Government adopting contraction and convergence as the just and intelligent way forward on global emissions?
Lord Whitty: My Lords, in energy policy we are not talking about the contraction of economic growth, but of decoupling the demand for energy from economic growth, so that the coefficient for energy in developed countries would become negative. That would allow greater scope for developing countries to grow their own economies at a rate that brings their standards of
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living closer to those in developed countries. It is not exactly contraction, but it provides for some reduction in the energy take of the northern countries.
Baroness O'Cathain: My Lords, will the Minister clear up a misunderstanding once and for all? Nuclear is not included in renewables, yet nuclear does not have carbon dioxide emissions. Why can it not be counted in the percentage that is necessary to achieve the Kyoto targets? Surely, on that basis there must be some sense of urgency in going for new nuclear as well as, as the noble Lord said, maintaining existing nuclear.
Lord Whitty: My Lords, in one sense the nuclear component is taken into account in meeting the Kyoto targets as, as long as we keep a certain nuclear component, it does not contribute to the carbon figures. Although for the future nuclear technology is a low carbon or near-nil carbon technology, it is not a sustainable technology until we have found ways of dealing with nuclear waste. Once that is dealt with in a satisfactory way, then one reopens the question of the contribution of nuclear. But we are not anywhere near that point. It has economic consequences, as the costs of disposal and decommissioning need to be taken into account, which make nuclear power a not very cheap form of carbon saving.
Lord Lea of Crondail: My Lords, it may be that the anomaly arising from the noble Baroness's question is why the carbon levy does not allow a dispensation for nuclear. On the Question that is actually on the Order Paper, is it not timely to remind ourselves that although Britain has gone well ahead of other countries in Europe, and certainly in the world as a whole, in going for Kyoto plus, the fact is that, although competitiveness can be an argument, having given a lead, we now see countries such as India and China starting to move in the direction of signing up to Kyoto? Britain should be congratulated—under both parties, going back to 1992 at Rio—on giving a lead on this question.
Lord Whitty: My Lords, I agree with my noble friend. The lead given at Kyoto and that given by the UK within the EU in the EU's contribution to Kyoto have been very important. It is also important that we maintain that lead. The UK and Germany are leading the EU contribution to deliver our Kyoto targets. This has not been, and will not be, to the economic disbenefit of UK industry because, if we are ahead of the game in the technologies that are needed for this new era, UK industry will be competitive and will gain as a result of being ahead of the pack.

Criminal Record Systems
11.29 a.m.
Lord Harrison Lord Harrison asked Her Majesty's Government:
What plans they have to co-ordinate better the different criminal record systems within the United Kingdom, and across the European Union, to improve vetting and selection procedures in employment, so as to afford better protection to children.
Lord Bassam of Brighton: My Lords, we are keen to support measures within the UK and across Europe to strengthen the protection of children through the sharing of criminal record and other information. To this end we are putting in place links between the different jurisdictions within the United Kingdom for sharing conviction information, and information about people who are disqualified from working with children. We are also examining with other EU member states how the arrangements for sharing information can be improved.
Lord Harrison: My Lords, I thank my noble friend for that Answer. However, does he recognise that it is a matter of public concern that better co-ordination of criminal record systems across the United Kingdom should be effected with the greatest dispatch and accuracy? As regards the European Union, does my noble friend recognise that a number of existing states and a number of applicant states still do not have lists of those with criminal records in respect of children? Will he make it a priority of the British presidency of 2005 to ensure that all those 25 countries have proper lists and that there is a proper sharing of information across the European Union?
Lord Bassam of Brighton: My Lords, I completely agree with the noble Lord that it must be a priority to work with jurisdictions outside the United Kingdom. I am not sure that we should wait until 2005 to do that although, of course, it ought to be one of our priorities in 2005. As it is, we are working with our European partners to encourage them to have an EU-wide sex offenders register. We already have a register. We are leaders in the field in international law enforcement in this area. I believe it is generally recognised that our EU partners have much to do to catch up with us. We consider that this is an extremely important matter. Although our objective may not be achievable in the immediate and short term, it is one to which we are working.
Viscount Bridgeman: My Lords, in noting the Minister's reply to the original Question, will he comment on claims that the inability of Disclosure Scotland to access directly certain criminal records in England and Wales has created a legal loophole potentially putting children at risk? Will the Minister also note that, on the evidence of the chief executive of the Irish Society for the Prevention of Cruelty to Children in a recent press article, vetting procedures are grossly inadequate in comparison with the systems in place in England and Wales? Will the Minister therefore bear in mind the potential dangers posed to children in these two adjacent jurisdictions when he is addressing the wider context of harmonisation of vetting procedures across the European Union?
Lord Bassam of Brighton: My Lords, I certainly accept the premise of the noble Viscount's question; namely, that our procedures are more advanced than those of other jurisdictions, as I have already said. However, as regards Scotland, important work is being undertaken to ensure that the systems are
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compatible. It should be remembered that Scotland enters conviction data on the PNC. Although it does not have quite the same concept of recordable offences, in recent years a number of steps have been taken to ensure greater compatibility. Most Scottish cases are recorded on the PNC, so there is that important sharing of information. The Irish system is very much modelled on the United Kingdom system. The Irish are, like us, working towards securing high standards in terms of enforcement. Their model is very much based on ours. We are delighted with the progress that has been made in adjacent jurisdictions but, of course, there is much more to be done.
Baroness Greengross: My Lords, while agreeing with everything the Minister has said, will he ensure that the improved co-ordination applies also to vulnerable adults who are covered by the same procedures and face the same loophole?
Lord Bassam of Brighton: My Lords, I note very carefully what the noble Baroness has said. That is an important point. It is something of which we are very mindful and on which we undertake to secure more work.
Baroness Walmsley: My Lords, following the question of the noble Viscount, Lord Bridgeman, is the Minister aware of the evidence of the relatively free movement of sex offenders across the border between England and Scotland in both directions? While we are waiting for changes and information-sharing systems to be put in place, what are the Government doing to address that issue in the short term?
Lord Bassam of Brighton: My Lords, we have worked extremely hard on this matter. The Government have an extremely good track record in this field. I summarise the situation. In the past five years we have tightened the laws on sexual abuse of children; we have strengthened the sex offenders register; we have introduced new orders to protect children from grooming; we have introduced a new order which requires sex offenders who commit offences overseas to go on the sex offenders register; we have established a multi-agency public protection arrangement; we have introduced sex offender orders which can stop sex offenders being alone with children; and we have introduced post-release supervision. All of those are very important. We work very closely with all of the jurisdictions that make up part of the United Kingdom to ensure proper enforcement. Important steps are being taken to work more closely with our colleagues in Scotland, as I indicated earlier.
Lord Elton: My Lords, when will the Scottish and English systems be compatible?
Lord Bassam of Brighton: My Lords, my understanding is that work is being undertaken to ensure compatibility. I cannot give the noble Lord a precise date but I am happy to write to him on that point.
The Countess of Mar: My Lords, the noble Lord mentioned—

National Insurance Contributions and Statutory Payments Bill
Brought from the Commons; read a first time, and ordered to be printed.

Planning and Compulsory Purchase Bill
11.36 a.m.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Rooker.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 38 [Sustainable development]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 111ZF:
Page 21, line 21, at end insert —
"( ) under Part 4 in relation to all development control matters;"
The noble Baroness said: In moving Amendment No. 111ZF, I note that grouped with it are our Amendments Nos. 111ZG, 111A and 112ZC. Also grouped with the amendment are Amendments Nos. 111ZFA, 111B and 112—to which I and my noble friend Lord Addington have added our names—and Amendments Nos. 112ZA, 112ZB, 112A and 113B together with the Question whether Clause 38 shall stand part of the Bill. Of course, if I had mentioned sustainable development rather than recounting a list of the amendments in the group as noble Lords were leaving the Chamber, that might have attracted them to stay. I want to record that in Hansard
We have reached a hugely important part of the Bill. I suppose that it is in the nature of scrutinising legislation that not only do the scrutineers from time to time seek to delete or alter provisions, but when we support them we seek to improve them, if I can use the term without incurring too much wrath, or, as is perhaps the case here, to extend their effect. I make all my remarks on this group of amendments with that in mind and hope that the Committee will understand that that is our intention. We are keen to strengthen the provisions regarding sustainable development and to ensure that they have a practical effect.
At present Clause 38 provides that persons or bodies exercising certain functions must do so,
"with a view to contributing to the achievement of sustainable development".
I am aware that the Government are concerned not to use primary legislation to lock us all into a definition of "sustainable development" when the concept and the term are developing, if I can put it that way. I believe that a new version of planning policy guidance note 1 is to be issued shortly which will address that. I share
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the Government's concern about the matter. It is important not just to get it right for this moment but to get it right in a way that will stick.
My name is added to Amendment No. 112. I am not sure whether the noble Baroness, Lady Wilkins, will be able to speak to it because she is not in the Chamber, but it is her amendment. I wish to speak about paragraph (a) of her amendment, which raises the issue of access as part of the question of sustainability. I had prepared a probing amendment to cover just that aspect, but as this amendment had been tabled my name was added to it.
The noble Baroness rightly raises the question of access as part of the social limb of sustainable development because there is a risk of it being sidelined and limited to development control rather than to strategic planning.
Amendment No. 111ZF seeks to extend the duty to contribute to the achievement of sustainable development, or whatever term we end up with in Clause 38(2), to development control. Clause 38(1) refers to the regional spatial strategy function and to local development documents. It may be that the Minister will tell me that it is not necessary to refer specifically to development control because of the reference to Part 2 and local development documents which will obviously have to be had regard to when a local planning authority exercises development control functions. That reference means that the concept does apply.
Amendments Nos. 111ZG and 111A go to the heart of our concerns. The words "the objective of achieving" sustainable development, as they appear in Amendment No. 11ZG, have been urged on us—and no doubt on the Government—by a very large number of organisations. The words "with a view to", "contributing to" or "having regard to" in the Bill are not as strong as we would like them to be. The amendment is designed to make the actual achievement of sustainable development a primary rather than a peripheral concern.
I understand that the term "objective" has been litigated, so it will not be new to the courts or something which they would have to define. Amendment No. 111A suggests that the persons exercising the functions must do so with a view to the "principles of sustainability". That is a home made amendment, but one which seems to me to express something more than sustainable development as it is now. It takes us back to what sustainability and sustainable development are about. I believe that it might be helpful.
Amendment No. 111ZC requires impliedly that policies and advice are the subject of Clause 38(3). We want guidance in this instance. Whatever form it takes it must address what is meant by sustainable development.
We disagree with the view that sustainable development, if it is not capable of definition or if there are difficulties with it, should not be part of the Bill. That seems to us not to meet the argument at all. The definition may change as we as a society understand

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the concept more and as culture changes. So we need to find a way to ensure that the legislation remains up to date.
At Second Reading the Minister spoke about finding a form of words which would meet the Government's requirements—he referred particularly to the sustainable communities plan—while not meeting with adverse comment from lawyers. On this occasion it is the lawyers who need to find the words to say what almost all of us seek to see the Bill achieve. I beg to move.
11.45 a.m.
Baroness Hanham: I have three amendments in this group. All of them relate to the extremely important point about the definition of sustainable development. Part 4 of the Bill relates to development control in England and Part 6 to planning in Wales.
Clause 38 is a potentially beneficial clause of substantial effect in planning decision-making. However, at the moment it fails to achieve its objective on three counts. First, it excludes from its ambit local development orders and statements of development principle, the former being found under Clause 39 and the latter under Clause 41. Although at the moment we object to the statements of principle, they are in the Bill at present. Together with the local development orders they form the bedrock of the Government's local planning decision-making and local development control under the new system.
Excluding Clauses 39 and 41 from Clause 38 would unreasonably limit the statutory requirement for the achievement of sustainable development at a local level in making day-to-day planning decisions. By doing so the Government would be abdicating their responsibility in this respect and causing an apparent anomaly. The requirement would be applicable to the planning of schemes and plans but not to the coal-face, which is development control.
Secondly, an undeniably important part of the planning system in this country is to stimulate economic activity and regeneration. The Department of Trade and Industry relies on it. It is recognised by the Office of the Deputy Prime Minister and by the Department for Environment, Food and Rural Affairs. Adherence in the clause to sustainability alone gives insufficient weight to economic regeneration. It is a vital component of planning decision-making for business and commerce, and hence the amendment to ensure sufficient recognition of economic regeneration factors in the decision-making.
Thirdly, sustainability can mean all things to all men. However, it is capable of definition as we demonstrate in our succinct new clause. But to leave the definition to secondary legislation or policy made by the Secretary of State, or to leave it to the courts to sort out later, would be to shirk responsibility within the terms of the Bill and it is unwarranted.
A definition is important to give guidance to the public and those in the planning system as to what the Government and, more importantly, Parliament
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means by this otherwise potentially nebulous word. As it carries a couple of clauses with it, it is important for people to know what it means.
The meaning that we propose in our new clause has legal basis. It has as its derivation the definition concluded at the UN Human Environment Conference 1972 in Stockholm. It appears on the Government's own website. As time passes and definitions become more and more extensive and complicated, as Amendment No. 112 demonstrates, our amendment takes us back to the root definition of 1972, updated by the words "and natural". It is simple, universal and it has been recognised for the past 30 years. We believe, therefore, that this is a definition which will stand not only the test of time, but put on the face of the Bill, will stand as the definition of sustainable development which, after all, is what the Government are seeking to achieve in many ways in this planning Bill.
Lord Greaves: I have two amendments in this group—Amendments Nos. 112ZA and 112ZB—which are amendments to Amendment No. 112 in the names of the noble Baroness, Lady Wilkins, and my noble friends Lady Hamwee and Lord Addington.
As I understand it, Amendment No. 112 has been tabled in order to engender a discussion on the aspects to be included in the concept of sustainability. The noble Baroness, Lady Hanham, has just said that sustainability is very often all things to all men; I would no doubt add "to all women, too". However, that is the precise difficulty. What "sustainability" means to a business person and what it means to an environmentalist are entirely different. It risks becoming a weasel word about which everyone says, "Yes, it's a wonderful idea. It's like motherhood and apple pie, and we are all against sin". But, unless we talk about what it means, it becomes relatively meaningless.
Amendment No. 112 talks about social progress and the environment. Paragraph (c) refers to,
"prudent use of natural resources",
and paragraph (d) talks about,
"maintaining high and stable levels of economic growth and employment".
All those things are important. Yet neither in this amendment nor in the debate about sustainability is there a recognition of the ways in which different types of sustainability may conflict and the best ways in which they can be maximised in order to provide the best possible outcome involving trade-offs, compromises and, inevitably, priorities.
My first amendment would merely add the word "communities" to the concept of social progress. I am not sure that it would provide the most elegantly worded amendment in that there would then be a reference to "access to communities". However, at this stage, these amendments are for discussion and not for writing into the Bill. Therefore, I am not too concerned if the wording is not as elegant as it might be.

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However, it seems to me that communities are the most fundamental part of the concept of social sustainability. Ultimately, everything else—whether public services or access to education and employment or housing—comes down to the local communities of which they form an important part.
My second amendment—Amendment No. 112ZB—is rather more important. It is an attempt to tease out from the Government what they see as the priorities between economic growth and all other desirable issues, particularly environmental ones. We cannot get away from the fact that a conflict often arises there and one must make a choice. You can engage in some form of development which results in higher economic growth in the short term or you can say, "No. Considerations of protecting the environment", in this case, "or perhaps longer-term sustainable economic growth must take priority over the immediate—perhaps selfish—interests of those of us who live here and now and would benefit from that immediate economic growth".
There are conflicts. Most of the arguments surrounding major planning applications encapsulate the conflict between people who say, "This has to happen because it produces more jobs or more housing for people", and those who say, "Yes, no doubt it may do that, but the environmental or ecological consequences, or whatever, are not worth it. The short-term economic gain is not worth the longer-term environmental loss". Therefore, this amendment suggests that the emphasis should be firmly on the environmental aspects and the prudent use of natural resources rather than on short-term economic growth. That is certainly where I stand.
I tabled the amendment to find out what the Minister has to say about it and to tease out again just how far this Planning and Compulsory Purchase Bill is intended to stimulate economic growth at the expense of other factors, such as the rights of people to object to that growth or to take part in the system. In particular, I want to find out how far it is intended that the planning system, as amended by the Bill, will make economic growth easier at the expense of other factors, such as environmental ones.
Lord Marlesford: This group of amendments highlights the problem that exists in respect of planning law in deciding what should be on the face of the Bill—that is, in primary legislation—and what should be in secondary legislation. I believe that the old system of PPGs, which is now the system of PPSs, has served us well. It has two big advantages. First, it is possible to put into the PP system far more detail than one can ever really put into a Bill. Secondly, as the world moves on, it is possible to amend the PP system in a way in which, on the whole, one cannot amend primary legislation.
I believe that primary legislation should give an indication of the major considerations to be taken into account in framing secondary legislation. It should be
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an indicator of the constraints and of the areas to be addressed by such secondary legislation. However, I do not believe that it should be too tight. That is why I support my noble friend's Amendment No. 111B. It would merely add the words "and economic regeneration", whereas I consider Amendment No. 112, for example, to be far too detailed to be included in primary legislation. It would be quite unsuitable. There are many good aspirations in it but it is not suitable for primary legislation. Frankly, it could lead to endless examples of judicial review and other problems, which would be a barrier to making any kind of progress.
I speak, of course, with an environmental hat on due to my concern for rural England. However, I recognise that, if the Bill is eventually to come out well, it must help, where possible, to speed up planning legislation and make it more efficient. That is why I hope that the Government will feel able to support my noble friend's amendment as an appropriate insert into the Bill. It is merely one of the factors to be taken into account in framing the secondary legislation, which I believe will always have to give the detailed indications of the planning policy.
Lord Cobbold: I am one of those who has serious problems with the concept of sustainable development. I am afraid that I cringe every time I hear the word "sustainable" mentioned. It seems to me to be a classic bureaucratic mantra. It is planning-speak for "good intentions". How long will anything be sustained? Who is to sustain it? How is it to be sustained? To me, sustainable development can only be a subjective concept; it defies objective definition.
Amendment No. 112 attempts to provide a definition but it lists only a range of factors against which development plan documents and development plans should be judged, many of which, as has already been said, by their nature are conflicting. One person's or one authority's desire to maintain high and stable levels of economic growth and employment is likely to conflict with another's effective protection of the environment, as the noble Lord, Lord Marlesford, has just noted. At the extreme, airports or motorways and wind farms generate fiercely opposing views.
Clause 38, as it stands, contains no definition of "sustainable development", perhaps because the Government recognise that it is impossible to define. Yet, elsewhere in the Bill, as we have already seen—namely, in Clause 18(5)—local planning authorities are required to carry out an appraisal of the sustainability of their proposals and to prepare a report on their findings. That seems to me to be an unnecessary piece of bureaucracy.
The origin of the phrase "sustainable development" was, I believe, from a 1994 paper entitled Sustainable Development: The UK Strategy. But the most common definition is in PPG1, which describes sustainable development as,
"development which meets the needs of the present, without compromising the ability of future generations to meet their own needs".

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That definition has the beauty of brevity, but leaves plenty of room for disagreement on whether a particular development is or is not likely to compromise the needs of future generations. It is hard to see how any appraisal of success or failure can be made without the benefit of an opinion from those future generations.
Planning is an art form. No one can accurately predict the future. Planning is the art of reconciling a range of competing and often conflicting aspirations and finding the optimal compromise between various interests in any particular situation. The noble Baroness, Lady Hanham, was right to call for objectives to be set out in planning and to attempt to meet them. But objectives will vary from one part of the country—region, county or district—to another. I believe that the Bill should set out a range of objectives against which planning documents and applications should be measured. That could be done in secondary legislation, as the noble Lord, Lord Marlesford, suggested, rather than on the face of the Bill. One of those conditions should have to be good design, as has been mentioned.
Local authorities would then need to prioritise the objectives and criteria that they deem to be important in their development documents and plans, against which planning proposals would be judged. But there is likely to be a variation in the relevance of different objectives to different parts of a district. Flexibility and judgment must always have a place in the planning process.
I hope that the Minister will at least acknowledge the impossibility of providing an objective definition of "sustainable development", but I expect it is too much to hope that the dreaded phrase can be completely left out of the Bill.
Noon
Baroness Hanham: Will the noble Lord take it from me that "sustainability" goes back earlier than 1994—it comes from the United Nations conference in Stockholm in 1972? The exact effect of my amendment was agreed in Stockholm and is on the Government's website—I can tell the noble Lord how to find it. But the phrase dates from much earlier than 1994. I, too, agree with him that sustainable development is subjective.
Lord Lucas: I am attracted to Amendment No. 113B, tabled by my noble friend, because it gives the first definition of sustainable development that I have seen anywhere that can be evaluated in individual planning applications. There is so much guffery surrounding the subject. If one is trying to balance the benefits to the current generation against the benefits or costs to future generations, how can that be evaluated when someone wishes to put an extension on the back of their house? In Amendment No. 113B one can make that equation. For example, someone can be given permission to extinguish a small amount of grass, with the loss of life of a few ants, because his proposal to put up bat boxes would be acceptable as a reasonable compromise. Something practical would
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have been agreed. In any case, if the amendment is accepted, we shall need secondary legislation to ensure that enough information is available, so that people making planning applications can understand how they are to make their proposals, and, taken as a whole, contribute to sustainable development. It will be a difficult piece of secondary legislation to write, but I hope that the Minister will indicate some of its contents and the practical effects of Clause 38, of which I thoroughly approve.
My own Amendment No. 112A looks at one aspect of the way in which the introduction of Clause 38 might affect the way that we look at planning decisions. It goes back to points raised by the noble Lord, Lord Rogers of Riverside, at Second Reading. He said that a sustainable city is a multi-centred city. Yesterday, I had the dubious pleasure of spending a considerable time in Willesden Junction, where the undertaker seems to be the most prosperous business. It is probably the happiest, too, because at last one could leave Willesden Junction if one was a customer of the undertakers. But it should not be that way. It is reasonably accessible to the centre of London and has plenty of space. London has become too centre-heavy. The parts around the periphery rely too heavily on the centre and become as denuded, desolate and unkempt as Willesden Junction. I have been in smarter streets in Kabul than in Willesden Junction. It is a decrepit place. That it should be part of our capital city is not what is meant by sustainable development.
We should develop concepts of the type espoused by the noble Lord, Lord Rogers, which seem to encapsulate the idea of sustainable development. That concept should also apply to little villages. My home in Hampshire is not in a sustainable village. It relies heavily on facilities provided outside. It no longer has a shop or a school; one cannot exist there without relying on a car for transport. Every need other than having the house is supplied from outside the village. If we are looking at sustainable communities, we must develop villages in a more sustainable way and make them large enough to command some level of local provision. I would like to see practical evolution of that concept and its effects on the development of the countryside and towns. When we consider the secondary legislation, the Government will have to give many steers and pointers on how Clause 38 will work in practice if we are to use it effectively. Otherwise nothing will happen, because it will be possible to argue any case in any way and there will be no way of reaching even decisions around the country.
Lord Chorley: Like many noble Lords, I supported Clause 38 at Second Reading. Most of us probably regarded it as a starting point to the debate we are having now. I will not speak to all of the amendments in the group as there are many of them. Amendment No. 111ZG, tabled by noble Baroness, Lady Hamwee, is important because it makes Clause 38 operational rather than a pious hope. I do not particularly mind Amendment No. 111B, tabled by noble Baroness, Lady Hamwee, on economic regeneration. Although I

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am not sure that it sits comfortably in a clause about sustainable development, it is there and I do not mind it.
Regarding Amendment No. 112, like everyone who has spoken, I agree that it goes too far in trying to define that elusive and developing concept of sustainable development. It is far too ambitious and detailed and for that reason alone is dangerous, because it ties the legislation down in many odd areas.
The noble Baroness, Lady Hamwee, talked about access under paragraph (a). I agree with her. The noble Lord, Lord Marlesford, spoke about the issue in general terms and I agree that it is not right. The proposal embroiders far too much and muddies what I understand to be the Government's definition. It calls for,
"social progress which recognises the needs of everyone … effective protection of the environment … prudent use of natural resources … maintaining high and stable levels of economic growth and employment".
That is better, but it goes a little too wide.
I agree with the noble Baroness, Lady Hanham, that we need to return to the original concept of the Stockholm conference of 1972. All things considered, I would prefer that route and not the Government's definitions.
Finally, I want briefly to comment on the amendment tabled by the noble Lord, Lord Lucas. When I read it, I thought that he was somewhat dotty—if he will forgive me saying so—because I did not understand what he was getting at. I now understand, but I am not sure whether his amendment achieves his aim. I like the concept of the noble Lord, Lord Rogers, that properly designed cities are the only way forward for sustainable development, but I do not know whether it is worth putting that into the Bill. I like the idea of the importance of design, contained in the amendment tabled by the noble Lord, Lord Lucas, and probably I would leave it at that.
Baroness Maddock: I support Amendment No. 111ZG tabled by my noble friend Lady Hamwee because it is important to try to beef up what is contained in the clause, however difficult that may be. At Second Reading, that seemed to be the desire of many noble Lords. If we can include sustainable development as an objective, that will be a step forward and perhaps during forthcoming debates we can agree measures that will make it more forceful.
I agreed with much of what was said by the noble Lord, Lord Lucas, and I want to comment on the sustainability of our housing. The Minister has said many times that one of the objectives of the Planning and Compulsory Purchase Bill is to speed up the process by which we provide homes. We have been creating households at a much greater rate than we have been building homes. All of us share that objective. However, we have seen what has gone wrong in the past and we have demolished some of the developments of the 1960s.
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It is important that we address that issue and that in drawing up plans at whatever level we are aware of the problems. Today we need to think about the different tenures which make a community sustainable; about the materials that are used in construction; how much waste we create; and what its removal means in traffic movement.
We also need to think about the natural resources that our homes use. I am concerned in particular about water, on which I have spoken previously. Climate change brings an increased risk of flooding, yet we build many estates on ground that does not allow water to drain away and where there is much more hard-standing. We still install in houses water and sewerage systems that are uneconomical in their use of resources. As the noble Lord, Lord Lucas, said, when we are designing new home developments we must be aware that people need to be near to schools and hospitals.
However we resolve the issue of sustainable development today or at later stages of the Bill, I hope that the Government will ensure that the points I and other noble Lords have raised appear in all other aspects of the Bill, whether in guidance or in secondary legislation. We all want to ensure that the issues we have raised today improve the Bill as it passes through your Lordships' House.
12.15 p.m.
Lord Rooker: I am genuinely grateful for all the speeches that have been made today. Most were extremely helpful to the debate. I take note in particular of what was said by the noble Lord, Lord Marlesford, about separating out the primary legislation and deciding what detail we want. For obvious reasons, it is easier to change that. I was speaking at a conference earlier today when that very issue arose in terms of planning policy guidance. It can be changed and does not necessarily require a legislative slot.
This is an important debate on an important part of the Bill and I want to make a few preliminary comments. But one thing I will say—and this gives nothing away because I am in no position to do that—is that I do not want to be dogmatic. I do not want to sound dogmatic. I have to resist these amendments at this stage, but that is not to say that we have finished looking for other forms of wording.
I have previously explained why Clause 38 is drafted in the way that it is. We accepted at the outset that there were strong arguments to have in the Bill a statement of what we are planning for. We wanted something that would work and be practical. There are two extremes. We could include a lot of fine words that will look good and make us feel good, but which are quite meaningless—I have seen drafts of such paragraphs—or we could attempt legal definitions which could get us into all kind of problems. There is one that I will share with the Committee when I come to address a particular amendment because it is an example of a possible problem over legal definitions.

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We decided not to tie the requirement to specific functions. We have a planled system, so the right place for the duty is at the plan-making level. That is how the clause is currently drafted. It bears on the regional planning body and local authority when they are preparing a revision to the regional spatial strategy or preparing local development documents. The planled system provides for decisions to be taken in accordance with the local plan unless there are other material considerations.
The local plan provides the policy framework for the planning decisions and, as a consequence, does not specifically cover development control, as would happen under Amendment No. 111ZF, or any of the procedures covered by Part 4, such as those referred to in Amendment No. 111ZFA. It simply does not need to do that.
A plan in itself cannot achieve sustainable development, as noble Lords will accept. It sets out a framework, but it is the actions that follow which lead to sustainable development. That is why we used the "contributing to the achievement of wording.
We used the words "with a view to" in order to make it clear that the regional planning body or local planning authority should have a positive intent towards sustainable development in exercising the duty. If we had simply said, "with the objective of achieving", there would be a risk that we would place a weight on the plan-making function that we do not believe that it could bear.
Achieving sustainable development will require action on a far wider front than is provided for by what we can do through planning and the planning system. People may argue that the plan has not achieved sustainable development because of issues that the plan could not hope to have addressed. On the other hand, issues that were covered in consultation or the examination, but which were rejected by that process, could be reopened through a legal challenge under the terms of the amendment. That is what we seek to avoid.
We are keen to ensure that the wording in Clause 38(2) is effective. We want to ensure that it works and sends the right message as well as being robust legally. So we shall study the words,
"with a view to contributing",
further, to see whether they can be improved. That is why I can say I am not being dogmatic. I also have to say—because it says it in the brief—that after the work it took to get to where we are, I cannot give any guarantee that we shall be able to find better words.
I can genuinely assure the Committee—of course in the early days the Bill was in my policy ownership—we spent an enormous amount of time with various drafts on this aspect of the Bill and that has continued with the current planning Minister, Keith Hill.
The varying definitions offered up in contribution to this debate all help to underline the point that I am sure Members will expect me to make. That is not to belittle the amendments or the importance of the subject matter. To take the amendments as they stand, the issue is whether one puts a definition on the face of the
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Bill or whether one uses guidance. The specific amendments use words that are fine in guidance—giving advice on when the concept of sustainable development could apply. None of them causes me any problems in the sense of what is implied behind the words.
The problem is the idea of putting them on to the face of the Bill. They would bring uncertainty in legislation. If the matter went to court, a court would be required to define "social progress", or there could be a debate in a court about maintaining high and stable levels of economic growth. We have the problem of putting words in the Bill that could be used to delay and tie up the planning system in the courts.
Recently—last week or the week before—we published a consultation paper on a proposed urban development corporation for west Northamptonshire. The areas covered in the document included Northampton, Daventry and Towcester. By common consent, when we discussed this matter with our partners in the area, there was a concern that Brackley should be included in that list. Frankly, we wanted to include it, but we were prevented doing so on legal advice. The reason was that to set up an urban development corporation under the current legislation there has to be a regeneration reason. The point was that the case could not be made strongly enough in legal terms to put Brackley on the list, although in that general area it would be impacted by other changes.
In regard to the words of Amendment No. 111B—"and economic regeneration"—I can give one example, on which I have not taken advice. It is an example that I have dealt with recently, in which we could not make the case for regeneration for Brackley, but that does not mean that it should be excluded from the benefit of being in the growth area and what we will operate with the UDC in the other areas. It came down to the fact that there was a problem with the legal term "regeneration"; we could not satisfy the requirements of legislation that has been put on the statute book for those reasons.
I give that as one example, but that is not the reason why we shall not look at it. Certainly it is an example that comes to mind and it appears to be a good idea—we all agree with economic regeneration in areas—but putting it into principal legislation could give rise to all kinds of difficulties if it ever came to court. That is why we should make it clear what we mean by "sustainable development" and why it should be put in guidance. That is the purpose of subsection (3), that in fulfilling the duty the regional planning body and the local planning authorities should have regard to the guidance issued by the Secretary of State. That guidance will explain what we mean by "sustainable development" in this context.
On a number of occasions, in earlier debates, I have mentioned what the Government see as the four broad objectives for sustainable development that will be set out in the forthcoming consultation draft of planning policy statement 1. I shall say more about that in a moment. The four objectives are sustainable economic development, social inclusion, protection of the

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environment and prudent use of resources. I am extremely disappointed that I have not been able to provide a draft of planning policy statement 1 before now. It is a document that we have to get right. From what I know about it so far, I am confident that it will meet many of the concerns expressed in today's debate.
Without talking out of school or misquoting anyone in particular, in an interview in Planning on 5 December, Jonathan Porritt, who is the chair of the Sustainable Development Commission and one of the Prime Minister's advisers on the issue, indicated that,
"he has seen a draft of PPS1 and is happy with what he saw".
That comes from a rather long article. In other words, the early drafting meets the point. It comes down to the main argument of whether one puts it into principal legislation or into guidance.
Another question is whether one has it right in the first place. First, we need to get it right; whether in guidance or in primary legislation, we have to get the definition of what we are talking about right. Secondly, there is the practical issue, in terms of the legal process and the parliamentary process, of putting it in guidance or on the face of the Bill.
I hope that in due course we shall be able to convince the Committee that we have the matter right. I can give a firm promise to have a draft of planning policy statement 1 ready for the next stage of the Bill. That means that we need it before Report stage so that people can look at it and table amendments. I must not just give it out as we start Report stage. It must be available before Report stage.
Planning policy statement 1 will make it clear that planning authorities should facilitate and promote sustainable patterns of urban and rural development by making suitable land available for development in line with economic, social and environmental objectives to improve the quality of life; by contributing to sustainable economic growth; by protecting and, where possible, enhancing the natural environment and the quality and character of the countryside and existing successful communities; by ensuring good quality and good design; and by ensuring that development supports existing communities and contributes to the creation of safe, sustainable and liveable communities.
I hope that that gives a flavour of the way in which we are working. Although I have not referred to them specifically, each set of paragraphs has covered a group of amendments. I am afraid that Amendment No. 112ZC is unacceptable. It would result in different types of guidance based on the way they impact on the planning authority. Currently, planning authorities must have regard to guidance. That is right because it recognises that, however comprehensive and up to date, there are likely to be situations that the guidance has not foreseen or that the guidance has not addressed in detail, or other issues may need to be considered. That is why the concept of material considerations allows the planning authority to take account of those situations so it is not forced to follow only guidance in
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developing policies or making decisions. That is crucial. The guidance is important but that concept of material considerations allows a degree of flexibility at local level.
The effect of the amendment would be to remove any discretion from the planning authority. I understand that the term has been used in other legislation, but it would send an unwelcome precedent in planning legislation. I understand also that case law has confirmed that the effect of this formulation is to remove all discretion from the relevant authority. That is a highly dangerous way to operate. We could find ourselves in a position where local authorities are forced to follow the guidance come what may, even when they know it is the wrong thing to do because there are other issues that need to be addressed. We could also end up with a different hierarchy of guidance depending on whether it is guidance which must be followed or guidance to which regard must be had. This is a recipe for confusion and challenge and yet more time in the courts.
I regret that I do not have available the draft guidance. I hope that I have said enough to indicate that we are on the right track. In the end it will come down to the issue of whether or not we put the wording in the legislation. I have given an example of Brackley and regeneration. In order to sustain my argument, before the next stage I shall try to find examples where there has been a court case about such words as are used in the amendments so that I can explain to the Committee why it might be a dangerous route to follow.
We do not want a form of words which those who wish to stifle development out of a principled ideological argument can use to frustrate. I do not claim that any noble Lord has remotely hinted at anything like that; nor do I cast aspersions on outside bodies. But the law is for everyone to use. Therefore, we have to be very careful how the Bill is drafted. We are in some ways in uncharted waters because we have not attempted anything like this before. A planning Bill comes along about once in a decade. We need to get it right, therefore, so that we do not have to wait a decade before correcting a mistake.
I hope that that gives a flavour of the Government's approach. I hope that we shall have available more substance before the undoubted debates on Report.
12.30 p.m.
Lord Lucas: I was encouraged by the noble Lord's remarks. As I listened, I considered again Amendment No. 113B. From the Minister's remarks on PPS1, I understand that most of that amendment will be included. However, I hope that he will include "and" which is a crucial piece of drafting. It provides that any development must enhance the natural environment. That is "do-able" already at the big end. If one wants to build a new port facility on the Solent, displacing some ducks and wading birds, one has to include in the development another bit of coast which one spends some time enhancing. I cannot see why that would not be a constructive way of looking at development in the future.

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if one wished to add 300 houses to a village, by building them in a wheatfield one does not harm the environment very much, a wheatfield being a pretty desolate thing as regards the environment; the odd pond would probably satisfy. However, if one were developing on a more slightly attractive area (in environmental terms), why not be obliged to improve some of the neighbouring woods and meadows so that the environment as a whole was improved by the development? I cannot see why that would not be a good route to follow. It has been adopted very constructively for some big developments and, I would hope, for small ones too.
Lord Cobbold: I thank the Minister for his response. It was excellent. He understands the problems that we have with this clause.
Baroness Hanham: I am sorry that the Minister did not reflect a little more closely on Amendment No. 113B about which I am most interested and concerned. If it would be helpful, I am happy to give the Minister's researchers the website on which this definition appears. While the words "and natural" have been added to help with exactly the matters the Minister spoke about which will appear in draft PPS1, the definition is universally accepted and has been since 1972. It seems a great pity that we go round trying to reinvent the wheel.
Economic and social exclusion and prudent use of resources are all encompassed in the amendment. I accept that the Minister refers to draft PPS1. The amendment would put on the face of the Bill a definition of sustainable development and it would then be explained in the guidance. At present, the real flaw is that it is just a heading. If we are not careful, "sustainability" becomes jargon. Everyone uses the word without having the faintest idea what they are talking about. It is a wide definition. The amendment confines it to areas about which we are concerned: housing, education, health, land, newts, trees—it encompasses everything.
I do not want the Minister to think that I was so clever that I found this definition myself—perhaps I should say that that was so—but I have been guided towards it. I have also had checked by planning counsel how they would handle it if they ever had to defend it in court. The planning counsel I have asked see it as acceptable.
I am pushing the Minister slightly. As it stands, "sustainable development" in Clause 38 is unacceptable. It gives no clues as to what is being talked about. One can hardly put on the face of the Bill, "Please see draft PPS1" because that will not work either.
"Sustainability" is mentioned not only in Clause 38 but throughout the Bill. Somewhere along the line there has to be a broad definition of it. I urge the Minister to think again about the amendment to which we shall return and perhaps have a longer discussion on it. I believe that it does exactly what the Minister suggested it needs to do and is then susceptible to guidance thereafter if that is what is required. But to
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leave the Bill without any clues about the meaning of "sustainable development" will probably be unacceptable. I leave the website with the Minister, if it is helpful for him. It is based on the conclusions of the United Nations meeting in Stockholm in 1972 which were agreed by the entirety of the United Nations so for once I have other people on my side.
Baroness Hamwee: It is tempting to start the discussion all over again. I shall indulge myself to this extent. The way in which my noble friend Lord Greaves raised the important issue about communities was helpful although he said that it was his secondary point. I have always considered that one could not achieve sustainable development without including economic issues and economic regeneration as part of the whole approach.
The Minister has been helpful. No doubt messages are winging their way to many organisations that he is not dogmatic and that the Government are still looking for the best way. We all look forward to seeing the draft PPS1.
I turn to the particular amendment. I should be willing to forgo Amendment No. 112ZC if we can make Section 38(2), as the Minister said, both robust and send the right message. That is one aspect of the matter to which I am sure we shall want to return, but it is perhaps time to move on. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 111ZFA to 112A not moved.]
Clause 38 agreed to.
[Amendments Nos. 113 to 113C not moved.]
Clause 39 [Local development orders]:
Lord Hanningfield Lord Hanningfield moved Amendment No. 113D:
Page 22, line 23, at end insert "following the expiration of the period of one year commencing on the date on which it shall have given notice of the intended revocation in accordance with regulations under Schedule 4A"
The noble Lord said: We come now to a part of the Bill that seems to me—in microcosm—to sum up some of the difficulties with which we must concern ourselves on planning legislation.
As we have heard throughout our debates on the Bill, planning is a matter of carefully calibrated checks and balances. Indeed, the objection of many noble Lords to the Bill is that it disturbs that carefully calibrated balance.
Local development orders illustrate the point well. In principle, I am in favour of anything that aids local autonomy. It seems right that we should trust our democratically elected representatives to lead their communities and that we should hold them accountable for their actions.
Local authorities are well placed to exercise their judgment on what development is needed for their communities and how best to pursue that development. As I understand the matter, these provisions mean that local planning authorities will

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now be able to determine local development orders by themselves, whereas currently this power is held by the Secretary of State.
I hope my understanding is correct. If so, I restate my position. In principle we support providing local authorities with the power to exercise responsibilities towards their communities. In practice, we believe that local authorities are better able to carry out that task than the Secretary of State.
I would encourage the Government to try removing a power from the Secretary of State and giving it to local authorities more often. At the same time, we believe that the existing planning system has served this country rather well for a great many years. We are somewhat nervous of major innovations that would sweep away many of the protections afforded by the current system.
On the whole—balancing these imperatives—we are not opposing local development orders in the amendment. We seek to engage constructively with what we think they are trying to achieve.
The amendment simply ensures that there is an element of stability in the system. There is a concern that developers will simply not understand the parallel planning jurisdictions operating in a specific area. In order to share that, we do not find ourselves in a situation where confusion reigns. The amendment is designed to ensure that proper notice is given on any changes to planning designations.
I hope my understanding of this part of the Bill is correct; that the Minister will understand why I have moved the amendment; and that he will answer my points. I beg to move.
12.45 p.m.
Baroness Hamwee: Our Amendments Nos. 113E and 113F are grouped with the amendment. Amendment. No. 113E seeks to clarify the basis on which the Secretary of State or the National Assembly for Wales should review a local development order which has been called in for approval. In new Section 61B, subsection (3) requires account to be taken of any matter which the appropriate authority thinks is relevant. I am advised by the Law Society of its concern that the wording is too vague. The Minister has talked this morning—quite rightly—about the dangers of vagueness and how that can give rise to legal challenge. Is the Secretary of State right to think that an issue is relevant? The term "material considerations", contained in Amendment No. 113E, would narrow the factors to be considered to purely planning considerations.
In Standing Committee, the Minister said that there was nothing magical about this—although he accepted that it is an accepted phrase—in dealing with individual applications. He went on to say:
"The reason why the clause is slightly broader is that broader issues may well arise".—[Official Report, Commons Standing Committee G, 21/1/03; col. 313.]
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He also said that those matters might not be captured by a narrower definition of "material considerations". They are captured by using the word "relevant", although that is a clumsy phrase. As the Minister then said that he would look at the wording again, can he take the matter any further now?
Amendment No. 113F seeks to require the Secretary of State to give reasons for any direction to a local planning authority to modify a local development order. I accept that the Secretary of State or the National Assembly for Wales will give reasons. I again refer to what the Minister said. He stated:
"When informing the LPA of the changes that it should make, the appropriate authority will need to explain how the document is deficient. How can it ask the LPA to modify what it considers to be deficient if it does not point out the deficiencies, which are the reasons for the directions?".—[Official Report, Commons Standing Committee G, 21/1/03; col. 315.]
Indeed. But one needs to be sure that the reasons are adequately explained. There seems to be no burden on the Secretary of State or the National Assembly for Wales to be required to give reasons. When a similar point was raised on Tuesday by the Conservative Front Bench, in a different context, the noble Lord, Lord Bassam, said that there was,
"comity … with a measure of agreement".—[Official Report, 27/1/04; col. 141.]
He also said that he would consider how to deal with the matter. Perhaps the comity can also extend to this provision.
Noble Lords on these Benches have indicated an objection to Clause 39 standing part of the Bill. Perhaps I can address that now. This is not least because when the matter was dealt with in the Commons, the honourable Member for Cotswold read into the record some extensive comments by the Law Society. It appears from reading Hansard that the Minister had to leave the room. On his return he merely referred to "LDOs"—he does not have the same distaste for acronyms as the noble Lord, Lord Rooker. He continued:
"LDOs in no way impinge on the environmental impact assessment process … [and] I am grateful for the committee's acclamation of the clause".—[Official Report, Commons Standing Committee G, 21/1/03; col. 318.]
I am not quite sure about that point.
I understand that local planning authorities already have the power to make local development orders covering a specific area or about a particular type of development—for instance, they can provide that there should be no restriction on development for industrial use within the area of the business park; but it is not a widely used power. I thought that it might be worth tabling an objection to the Question whether the clause should stand part in order to give the Government an opportunity to explain their thinking and the need for the provision, particularly given the retention, in effect, of powers by the Secretary of State and the National Assembly to direct the local planning authority to submit the local development order for approval and to bar the local planning authority from making the order unless it is specified as necessary by its local development plan or a development plan document.

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I am not clear—I do not know whether the Minister can help me on this today—about the extent of a local planning authority's powers. For instance, could it amend a general development order to vary the amount of floor space that could be added to an existing building? At present the amount is 10 per cent. Could it be changed locally to a different percentage?
Other concerns have been voiced about whether, because of different arrangements in different areas, local development orders will create and add to the confusion that we have already outlined in our concerns relating to a good deal of the Bill. Of course, we must always be aware that that may damage public understanding of and confidence in the planning system. It has also been said—I do not wholly share the view—that local development orders could lead to widespread environmental damage. Clause 38 certainly needs to be robust enough to protect from such damage.
We all know that relatively small developments and a disproportionate amount of time spent on them by planning officers, local councillors and Members of Parliament can cause enormous anxiety to neighbours. Therefore, a local development order could be a helpful or very unhelpful tool in the new tool kit.
Viscount Ullswater: I rise to support my noble friend Lord Hanningfield in his approach to this section. General permitted development orders have proved very successful in helping householders to undertake minor alterations to their properties without the need and cost of applying for planning permission. It appears that local development orders extend that principle on a locally determined basis and should be given a cautious welcome. Until now, the Bill has taken away from local authorities much of their present power of determination. Development plans approved by an inspector must be adopted, and the Secretary of State, even at the end of the road, can adopt a plan on behalf of a local authority. They should therefore be given a cautious welcome.
However, as the noble Baroness, Lady Hamwee, has just said, it is unclear on the face of the Bill what can be undertaken under a local development order. If such an order is to provide for minor relaxations of planning control that everyone can understand, albeit variably applied across the country, so be it. However, will the Minister confirm that, perhaps under new Section 61 A(2)(b) of the principal Act, structures such as wind turbines will not be included in a local development order? Structures of that nature would be most worrying. I understand that, when first erected, mobile phone masts were allowed under general development planning orders.
Baroness Hanham: Before the Minister replies, I clearly support what my noble friend Lord Hanningfield said about welcoming greater power for local authorities. However, prompted by my noble friend Lord Ullswater, I have two questions.
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First, it seems that local development orders will be local Article 4 orders, in that they will grant permitted development by way of a local development order. Perhaps the Minister will confirm whether that is correct.
Secondly, what sort of consultations will have to take place with local communities before a local development order grants planning permission? Under Section 61 A(2), a local development order may grant planning permission, which may relate to all land in the area of the relevant authority, any part of that land and a site specified in the order. In relation to wind turbines and large areas of land, therefore, it would have very wide powers that may affect people quite substantially. At the moment Article 4 directions are sometimes applied to prevent nearby buildings being composite, but also to stop development that would affect other people. I should like to know the extent of that power and what kind of consultation it is expected will take place before those orders are made. If it is correct that the order itself will grant planning permission, what redress will there be by way of appeal?
1 p.m.
Lord Bassam of Brighton: To set matters in a useful context, I am tempted first to describe the effect of Clause 39 before I deal with the various amendments.
Clause 39 allows local planning authorities to introduce local development orders that grant planning permission for development without the need for a specific planning application. In effect, it introduces local permitted development rights—a point made by one Member of the Committee—which extend those set nationally in the general permitted development order.
Local development orders can be used by local authorities to implement only policies set out in an adopted development plan document. For example, a development plan document may contain policies aimed at reducing the number of offices in a town centre and increasing the number of shops. A local planning authority might implement that policy by granting specific planning permission by a local development order for the change of use of an office to a shop anywhere in the desired area.
The use of local development orders would have benefits for both local planning authorities and developers, because it would reduce the number of applications that an authority would have to determine, but where its consent was expected to be given. It has that streamlining beneficial effect. It will be entirely up to a local planning authority whether to introduce a local development order. Therefore, that important element of local autonomy—the useful expression used by the noble Lord, Lord Hanningfield—will be preserved.
An authority may also revoke an order at any time, although it will be liable to pay compensation if an application for development that would have been allowed under the order is submitted within a year of the order being revoked and is refused or approved subject to conditions.

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Clause 39 also introduces Schedule 1, which sets out the procedure for making local development orders. The clause inserts new Sections 61A to 61C into the Town and Country Planning Act 1990. Section 61 A(5) allows the Secretary of State or the National Assembly for Wales to make an order to specify areas or kinds of development for which a local development order may not be made. At present we expect to use that provision to exclude development related to listed buildings, conservation areas and development for which an environmental impact assessment is required.
Section 61B provides the Secretary of State or the National Assembly for Wales with an opportunity to intervene before a local development order is adopted. In such cases, the Secretary of State or the National Assembly for Wales may approve or reject an order or may direct a local planning authority to modify it. New Section 61B also allows the Secretary of State or the National Assembly for Wales to revoke a local development order that has already been made by an authority. That power would be used only in extreme cases, but may be needed where, although the policy in a development plan is acceptable, the effects of a related order had unwanted, adverse impacts that became apparent only after it had been made. So it is a fall-back provision.
New Section 61C enables planning permission granted by a local development order to be granted unconditionally or subject to conditions specified in the order. That may answer the noble Baroness, Lady Hamwee, who asked whether the local development order can be varied. Conditions may be placed or it may be granted unconditionally.
Schedule 1 introduces a new Schedule 4A to the Town and Country Planning Act 1990. Paragraph 1 of Schedule 4A allows the Secretary of State and the National Assembly for Wales by regulation to make provision for the procedures to be followed in preparing, submitting, approving, adopting, revising and withdrawing a local development order. It also allows the Secretary of State and the National Assembly for Wales to introduce requirements in respect of notice, publicity, inspection and consultation—consultation is important so that there is transparency to the order.
The processes from preparing to adopting a local development order will generally mirror those for the local development plan document to which it relates, although independent testing will not be required. It is generally expected, although it is not a requirement, that an order will be prepared at the same time as the development plan document to which it relates, so the burden of preparing an order should be minimal.
Paragraph 2 of Schedule 4A concerns the revision of a local development order. An authority may revise an order at any time. It must do so if so directed by the Secretary of State or the National Assembly for Wales, or if a policy in a development plan document that the order implements is revised or revoked.
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I hope that that context has given some reassurance to Members of the Committee who have asked questions, because it explains quite well how we see the process working. I shall now go back through the amendments.
Amendments Nos. 113D and 113G would require a local planning authority, the Secretary of State or the National Assembly for Wales to give a year's notice of an intention to revoke a local development order. I understand the caution that motivated the noble Lord, Lord Hanningfield, to table those amendments, but they would allow developers who intend to take advantage of the permitted development rights granted by the order the opportunity to carry out works before the rights were withdrawn. We cannot agree that any notice should be required. The local planning authority, the Secretary of State or the National Assembly may discover that a local development order has unwanted impacts that were apparent only after it had been made. Orders should be revoked as soon as possible in such situations.
The Bill has already been amended in response to concerns raised about what should happen where a developer had already started work permitted by a local development order only to find that the order had been revoked before the development had been completed. Clause 40 allows a local development order to provide that any development started under the order power may be completed even if the local development order is revoked. There is no time limit on when such development should be completed. That ensures that if development is permitted at the time it is started, it remains valid if a local development order is revoked.
Revoking a local development order does not mean that the development cannot take place, merely that planning permission will be required. As I said, compensation is payable under Section 108 of the Town and Country Planning Act 1990 if an application for development that would have been allowed under the local development order is submitted within a year of the order being revoked and is refused or approved subject to conditions other than those imposed by the order. That will ensure that a developer is not disadvantaged if local permitted development rights are withdrawn.
I turn next to Amendment No. 113E, tabled by the noble Baroness, Lady Hamwee. It is not directly consequential on the other amendments, and I am unclear why the noble Baroness proposes it. I assume that she wants to narrow the effect of that part of the clause. It is certainly true that the words "material considerations" are well known. They are used in the context of determining planning applications, as Section 70 of the 1990 Act requires regard to be had to the development plan,
"so far as material to the application, and to any other material considerations".
It may be thought that it would be helpful to use the same words in new Section 61 B(3). We think that to be mistaken. The matters to which the appropriate authority may wish to have regard in considering a local development order made by a local planning

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authority may not be the same as the material considerations that need to be taken into account in a planning application.
The Secretary of State may want to take a wider view. He may, for example, want to take account of public opposition expressed through the consultation process that he may consider relevant to the issue of approval of a local development order, but which has been held not to be a material consideration in relation to a planning application. It is for such reasons—so that a broader view can be taken of wider public opinion—that our wording is superior and more flexible. He may also want to take account of emerging policy that has not yet reached the stage of being a material consideration.
Finally, I turn to Amendment No. 113F, which was also tabled by the noble Baroness. I have read it and am attracted to it. We want greater transparency in the planning process. In general, the Government's view is that reasons should be stated. If the noble Baroness will agree not to press the amendment today, I am happy to take it away to see how we can meet the concern that has been raised and add an extra layer of transparency.
Those are my considered views on the issues raised. I think that I have answered most of the questions posed. The noble Viscount, Lord Ullswater, asked what could be done under local development orders. Our view is that they can be used only to implement policies as part of the local development plan document. I think that his example and particular concern was wind turbines. We do not think that the practical working of the legislation would be likely to include wind turbines. I understand his caution: he does not want the general capacity that the LDO creates to be exploited. I think I made clear when speaking generally that because of our concern about environmental impact, and so on, we envisage such things being ruled out by the working of the process. I hope that provides the reassurance that he sought.
I hope that the amendments will not be pressed.
Baroness Hamwee: I, for one, want to reflect on what the Minister said about the scope of local development orders. They are clearly important, and I want to think further about what he said. He said that he was unsure why I tabled Amendment No. 113E. It was tabled because of concern that the Bill's wording was a little vague, and because the Minister in the Commons said that the Government would reconsider. One always wants to give the Government the opportunity to say that they have reconsidered, just in case they do not volunteer that information themselves.
In planning matters, I always find the extent to which we take account of emerging policy a difficult issue. It emerges through consultation processes, and so on, but how far should it bite until it is finally adopted? So that again goes to the heart of the issue about the scope of a local development order. Having
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said all that, I am grateful to hear that the Government will consider the points made under Amendment No. 113F and of course I do not intend to press it today.
Lord Hanningfield: I thank the Minister for that reply. As I said right at the beginning, I welcome anything that gives more autonomy to local government. This is one of the better parts of the Bill. As the Minister has explained, as long as the local development order is very much tied into the local development plan, it removes some of the fears that my noble friend Lord Ullswater highlighted. I reiterate my noble friend's remarks and give this a cautious welcome. It is important that it does not increase confusion about the changes in planning legislation. It needs to be presented and explained well. However, I thank the Minister for that answer. He has covered the points raised and I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 1113E to 113G not moved.]
Clause 39 agreed to.
Schedule 1 agreed to.
On Question, Whether Clause 40 shall stand part of the Bill?
Baroness Hamwee: I apologise for not warning the Government of this. I certainly do not expect an answer today. This is another of my lawyer's points which I apologise for in advance. Late last night I realised that the term used in Clause 40 for the start of development was that the development is "started". But the principal Act in Section 56 uses the terms "initiated" and "begun". There may be no subtle difference, but can I raise it—certainly not expecting an answer now—because if we do not address it, it could earn a lot of other people a lot of money in the future?
Lord Rooker: Ten out of ten. I guarantee that I will get an answer and I will not wait for Report before I tell the noble Baroness.
Clause 40 agreed to.
1.15 p.m.
Clause 41 [Statement of development principles]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 113H.
Page 25, line 11, leave out "must" and insert "may"
The noble Baroness said: In moving the amendment, I speak also to Amendments Nos. 113J, 113K, 113L, 132B, 134A, as well as the issue of whether Clause 41 stand part. The noble Baroness, Lady Hanham, has Amendment No. 113M in this group. This takes us to Clause 41 dealing with the statement of development principles and alongside that, the whole issue of what happens to outline planning permission.
There has been a great deal of concern, both at local authority level and in the construction and development industry about the workability of new

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Clause 61E. Is this clause capable of independent life outside of the old Section 92—the outline planning permission clause? I hope that the Minister can reassure us today and take the opportunity to amplify the Statement made by the Minister for Planning on 15 December. He indicated that government thinking has moved on a good deal in the year or so between the consideration of these provisions in another place and when the Statement was made. The Minister said on 15 December that on the basis of representations he was content to consider further the removal of provisions from this Bill that abolish outline planning permission.
Amendment No. 113H relates to new Clause 61 E(1) and provides that the local planning authority must issue a statement of development principles on request. Subsection (5) allows it to decline to do so only on limited grounds, such as disagreeing with a similar request within the previous two years. There are obvious concerns about workload here. Will speculators go on fishing expeditions and get the local planning authority to do the work for them? If the local development documents are worth anything—and I hope they will be—then what would be the value of this particular subsection? I wondered whether it was equivalent to what I am accustomed to referring to as a site brief. This is where the local planning authority sets out criteria for development deals with parameters and perimeters, access and so on. However, I believe this is quite different. Therefore I have tabled the word "may" rather than "must" in this context. I have written down what worried me when the Minister said in another place:
"I see no reason why the Local Planning Authority should not be obliged to form and state its view on that question."—[Official Report, Commons, Standing Committee G, 21/1/03; col.327.]
Is that equivalent to letting the authority decide whether it should determine an application for planning? Local authorities may well not understand what would be required of them. Can the Minister tell the Committee whether the work that would be done in these statements is something for which a local authority can charge? I say that because I was the chair of the local planning authority which imposed a charge only to recover costs for advice to developers. The judgment was heard in your Lordship's House in the case of McCarthy & Stone. I felt very sad that the outcome was not as I would have wished it. However, we have the recent Local Government Act which may or may not affect this.
Amendment No. 113J is not one that I wish to make too much of. As all these amendments are also in the names of the noble Baroness, Lady Hanham and the noble Lord, Lord Hanningfield, they may wish to speak to them. Amendment No. 113K requires sufficient information to have been provided by the applicant to enable a decision to be made. Again I was worried by what was said in another place. The Government said that they intend to specify in a development order that someone requesting a statement will need to provide as a minimum a site location plan and a description of the proposed development. If they wish to provide more
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information such as detailed drawings, they will be able to do so, but the Government do not intend to require more. I thought that that amounted to making the local planning authority do the potential applicant's work. Although planning should be a cooperative, deliberative process with a lot of dialogue, not just something to which the local planning authority reacts, there are limits to that.
Amendment No. 113L relates to an environmental impact assessment of the proposed development. I see from a letter—it is only a letter, so perhaps something should be put on the record—sent to Members of the other place that the Government do not intend to introduce a requirement for an environmental statement to be prepared. The Minister may want to explain that, as it will be of concern to many people, myself among them. If an environmental impact assessment is not required, can the planning authority say, "We've got to do it before making the statement"? If the statement amounts to an agreement to the principle of development, an environmental impact assessment after the statement can do nothing more than address compensation and mitigation. It certainly cannot prevent the development.
Amendments Nos. 132B and 134A are about the repeal of Section 92, which relates to outline planning permission. Statements from the Government before last December were on the lines that, as and when statements were up and running, the Government would repeal the provisions relating to outline planning permission. I do not want to take too much longer, but, as I said, it must be understood that we do not see the statements as an effective alternative to outline planning permission, and neither, it is clear, does the industry. The statements are not fundable, and there will be no certainty for investors. If no outline planning permissions are available, there will be difficulties for the development industry.
I can sum it all up as being too simplistic. Outline permissions are a tool in major proposals, and the industry, which has been consulted and, I hope, will be consulted further by the Government, does not want the change. Local planning authorities are fearful. The Government would need strong justification to go ahead. Certainly, they should give an explanation, as none of those scrutinising the Bill appears to have found their reasons convincing. The Government must give a more convincing explanation. I beg to move.
Lord Hanningfield: I am happy to support the amendments. I realise that we are under pressure of time, but I am afraid that I have a lot of comments to make.
As has been said, we welcome some of the changes that the Government propose in Part 4. Nevertheless, Amendments Nos. 113H to 113M and 132B are necessary, as the Government have not thought through properly the introduction of statements of development principles.
Amendment No. 113H would give local authorities more discretion in the issue of statements of development principles than is proposed in the Bill.

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Amendments; Nos. 113Kand 113L are complementary to that aim, in that they support specific aspects of local authority discretion. The three amendments would enable local authorities to decline to issue statements of development principles on the basis of insufficient information.
Amendment No. 113J is a probing amendment. With the amendment, we simply seek clarification from the Government of whether it will be local authorities that ultimately decide whether the development plan is material to the request for a statement of development principles.
Amendment No. 132B would mean that provisions for outline planning permission would not be omitted, at least not yet, from the Town and Country Planning Act 1990. Finally, Amendment No. 113M is a probing amendment designed to test the Government's thinking on how they propose to minimise the level of deliberate frustration in the planning system. If Amendment No. 113H were accepted, Clause 41(5) would be unnecessary anyway.
As far as I can judge, the statement of development principles is being introduced as an eventual replacement for outline planning permission. Apparently, that will provide speed and certainty for a developer, when considering a project. The Government should explain exactly why they believe outline planning permission to be deficient in either speed or certainty. We strongly believe that the Government have not yet made the case for how statements of development principles will add value to the planning system in this country. We have met a lot of developers and have heard a lot of concern. They use outline planning permission to obtain finance and acceptance for the development. They borrow from the bank on the basis of outline planning permission, but they are not certain that they will be able to do that under the new process. There is a lot of fear in the system.
We appreciate and support the Government's aim of adding transparency and, by extension, more certainty to the pre-application process, but it seems doubtful that statements of development principles will achieve that. As far as I can see, there is no discernible benefit to applicants, local authorities or the public. If the overall aim is to address the weaknesses associated with outline planning permission, why not address those problems directly—for example, by encouraging earlier discussions in the application process between developers and planning departments? Why must we get rid of the outline planning permission process completely, albeit not immediately, to achieve more certainty? It is worth pointing out that developers and planning departments have not been persuaded that statements of development principles will add more certainty to the process, as I said.
Amendments Nos. 113H and 113K would ensure that local planning authorities will not feel compelled to approve or refuse applications, when they simply do not have sufficient evidence by which to judge the merits of an application. That could happen because,
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as the Bill stands, there is no provision to allow the local authority to decline a request to issue a statement of development principles on the grounds of insufficient information. Local authorities may be put in a position in which they do not have the confidence in their legal position to say that an application is entirely unacceptable, which, I believe, is the only ground on which they can decline to issue a statement of development principles, even if they also feel that they have not been provided with sufficient information—for example, information about design or infrastructure—on which to base their decision.
As organisations such as the Campaign to Protect Rural England have pointed out, that would put pressure on local authorities to issue statements of development principles that agreed with the proposed developments and then spend valuable time and resources trying to decide what safeguards and conditions should be placed on them to meet any eventuality. With a national shortage of skilled planning personnel, the Government should not be devising extra unnecessary work for planning departments. It will simply clog up the system, and we are trying to speed it up. Of course, it is important that a statement of development principles is not used inappropriately. Just as with outline planning permission, it may be an important material consideration in the final decision on planning permission.
Amendment No. 113L would address our concern that the statement of development principles does not have to take into account whether a proposed development would require an environmental impact assessment. We are aware that the Government have stated that, because the statement of development principles does not itself grant consent to allow a development to go ahead, an environmental impact assessment is not a requirement. We would like reassurance from the Minister that this arrangement, whereby the principle of a development has been agreed prior to the outcome of an environmental impact assessment, will not undermine the integrity of the environmental impact assessment and its capacity to reach a different conclusion from the statement of development principles.
As I have already mentioned, with regard to the workload of planning departments, we also believe that statements of development principles would mark an unacceptable shift in the burden of planning applications away from the applicant to the local authority.
This is not simply an argument about planning authorities having had insufficient information and then dealing with the consequences. It is also partly because the number of requests for statements of development principles will be much higher than outline planning applications. It flows from the fact that anybody can ask a local authority for a statement of development principles.
Thus, in relation to Amendment No. 113M, I would like some reassurance from the Minister that the new procedures for statements of development principles

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will not be used to frustrate legitimate development. Our concern is that in some circumstances, local authorities might be asked to determine requests for statements of development principles before the information on which requests should be judged is available.
New Section 61E(5) states that,
"a local planning authority may decline to issue a statement of development principles before the end of the period of two years",
if it disagrees with the principles of the development. Thus, a local planning authority could quite legitimately issue a new statement of development principles that agrees with the developer's proposal before the end of that two-year period.
As I said earlier, I am really probing the Government's thinking at this late stage about whether they see the discretion afforded local planning authorities in subsection (5) as a mechanism by which to deal with any potential exploitation of statements of development principles by those who just want to stop all development, regardless of its benefits. I would be grateful for clarification on that.
I also believe that deleting subsection (5) of New Section 61E would be in line with the preceding amendments, the fundamental point being that it would be much simpler and more democratic to give local planning authorities the discretion to decide whether to issue statements of development principles to any particular development.
This is a very complicated process. We will obviously have to discuss it further, but I have put it on the record, and I would like the Minister to give us some assurances on these issues.
1.30 p.m.
Lord Marlesford: I will not detain the Committee. However, as I heard the Minister say a moment ago when my noble friend rose to speak, this is a very important clause and a very important matter. Although one commends the Government for devising the statement of development principles as a means of increasing transparency, and so forth, it could be very dangerous. Ultimately, what matters is that developments do not take place if they should not take place. That is what this should be about.
I fear there are echoes in the way in which the clause could be used that might result in that happening. I have one example; it is not directly related but it has often been a worry to those of us who are concerned with these matters. I refer to the way in which, so often in the past, local authorities have been intimidated by developers in certain cases more or less threatening to claim damages in instances where a planning application is refused and then granted on appeal. That philosophy could be used by people in getting these outline permissions without having given sufficient information so that a proper decision can be made by the local authority. So I would be happier without the clause, unless it can be reworked.
Lord Avebury: The clause says that the local planning authority must issue a statement of development principles in relation to a proposed development. My noble friend suggests that "must" should be replaced by "may". In that context, will the Minister explain how this clause interacts with the policies of the local authority under the Licensing Act 2003? So far we have not had the guidance under the Licensing Act, and we do not know to what extent local authorities will be allowed to impose limits on the number of licensed premises to which planning permission will be awarded. Until that guidance is published, I cannot see how the local authority would be able to interpret a requirement that it must issue a statement of development principles. If it does not have guidance under the Licensing Act, it does not know to what extent the local authorities may impose some numerical limits on the number of licensed premises to which planning permission is awarded.
As the Minister will be aware from the debates on the Licensing Bill many months ago, there is considerable anxiety among local authorities about the extent to which they can exercise limits on the number of licensed premises by means of planning controls.
Lord Rooker: In answer to the question about licensing from the noble Lord, Lord Avebury, I do not have a clue but I will find out and write to him. I will not be able to give him an answer today.
I am delighted with the new-found interest in the proceedings of this Bill, given the greater attendance in your Lordships' House at this part of our proceedings. On the other hand, if I was misunderstood and anyone has come for the other Bill, I suggest they go and get a cup of tea, because I have the largest speaking note on this group of amendments than on any other.
As the noble Lord, Lord Marlesford, heard me say, this clause is very important. To keep everyone happy, my officials have ruthlessly edited the speaking note, so it will not be the 17 pages that I had planned to use, but I will do my best. I will not curtail my speech unnecessarily because this is a crucial part of the Bill. It is where the Bill starts to get interesting and sexy, if you like. It has been a little boring until now, but when we get on to outline planning permissions and situations such as this it becomes much more interesting.
The statement of development principles is a new procedure for anyone wishing to obtain an indication from a local planning authority about whether all or part of a proposed development would be acceptable in principle. The statement of development principles is halfway between an officer's informal view and an outline planning permission. A statement of development principles will be a material consideration for the purposes of determining an application for planning permission for a similar development that is submitted within three years. A statement of development principles does not grant the applicant any consent to do the works. That being the

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case, it may stop the applicant raising finance, and I fully accept the point made by the noble Lord, Lord Hanningfield.
As far as the relationship between the statement of development principles and outline planning permission is concerned, there has been much debate about this proposal. Statements of development principles will at first supplement and might eventually replace outline planning permission. We believe that the way in which outline planning permission is currently handled by some authorities has significant faults. At its worst, it allows redlining on a map of an area or site for development for a particular use or uses of land with no detail shown. This is not an acceptable state of affairs. Local communities should have early opportunities to engage in discussion of proposed developments. The Government are laying increasing emphasis on the importance of pre-application discussions. Good developers will undertake such discussions. The Government want this best practice to become standard practice. A statement of development principles is one means of formalising the dialogue between a developer and a local planning authority.
We said in a Written Statement on 15 December—I cannot go further than that today—that if we retain outline planning permission, we will need more detail. We are waiting for a response from the development industry. I certainly hope that by the time we reach Report we will be able to have better particulars in that respect.
The outline planning permission would need to provide sufficient information for a local authority to make an informed decision about whether an environmental statement is required. On community involvement, the Government consider that a local planning authority statement of community involvement should set out how the community should be involved in significant planning applications. Outline planning applications should provide sufficient information to allow the community to comment in a meaningful way.
We are considering possible mechanisms for ensuring that additional information is required at the stage of application for outline planning permission. One mechanism might be guidance; another might be the use of secondary legislation.
Clause 42 allows for a development order to make provision as to documents or other materials that are to accompany a planning application. The general development procedure order might be used to require a design statement to accompany an application for outline planning permission. That is by way of an example that could be given. If we were to pursue that approach, the new system of development control could include both statements of development principles and outline planning permission. Statements of development principles would provide developers and local planning authorities with an additional tool for building up an agreed development prospectus for a site. Outline planning permission could be used either after or instead of a
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statement of development principles. That would be for the applicant to decide. I understand that the issue of being able to raise the funds necessary is a crucial link, but the developer would have the opportunity to decide. Full planning permission, requiring the submission of all details of the proposed development, would not change. It would therefore remain the case that development could not commence until reserved matters had been approved.
We do not agree with Amendment No. 113H. If an application for a statement of development principles is received, a local planning authority should be required to come to a decision. In issuing its decision, the local planning authority will have to indicate whether it agrees with the principle of all or part of the proposed development.
Amendment No. 113J would require the local planning authority to have regard to the development plan rather than having regard to the plan so far as it was material to the request for a statement of development principles. The existing wording mirrors existing provisions such as Section 70 of the Town and Country Planning Act 1990, which requires local planning authorities considering planning applications to have regard to the development plan,
"so far as material to the application".
The deletion of those words cannot be right, because it cannot be right for a local planning authority to have regard to the development plan if it is not material to the application.
Amendment No. 113K is coupled with Amendment No. 113H. It would give the local planning authority discretion whether to decide on a statement of development principles depending upon the adequacy of the information submitted. By itself, it would have no effect, since the authority would be obliged to issue the statement of development principles whether or not sufficient information had been provided. I consider it right that a local planning authority must issue a decision, but it can only make its decision on the basis of the information submitted by the applicant. If the application lacks detail, so will the statement of development principles. But in issuing its decision, the local planning authority would be able to include details of any information that it would require to accompany an application for planning permission.
Amendment No. 113L would make an environmental impact assessment a possible requirement and a possible material consideration for a local planning authority in considering a statement of development principles. We see no need for that. An environmental impact assessment will not be required on an application for a statement of development principles, because such a statement is not a development consent. We propose to provide in the secondary legislation that if a local planning authority considers that a proposed development would require an environmental impact assessment, it must state in the statement of development principles its opinion as to the information to be provided in an environmental statement. Its agreement to the principle of the

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development would be subject to such information being provided with an application for planning permission.
Amendment No. 113M would prevent a local planning authority from declining to issue a statement of development principles where it had issued a statement disagreeing with the principle of all or part of a similar development within the previous two years. I can understand the concern that an authority might decline to issue a statement even where a potential developer has changed some factors of a proposed development in order to address concerns raised by the local planning authority in the first statement. However, it would be illogical to require an authority to deal with repeated requests for statements of development principles when, elsewhere in the Bill, we are proposing to provide them with the power to decline to determine repeated requests for planning permission. That is an issue that we shall come to, though certainly not today.
Amendments Nos. 132B and 134A would retain outline planning permission in the Town and Country Planning Act 1990. We are considering the retention of outline planning permission. That would be on the basis that it provided a level of information that would enable local authorities to assess all the significant environmental impacts from proposed developments. Discussions with representatives of interested parties, including the development industry, are ongoing as I speak—but probably not at the rate of pace at which I am speaking. But it will be okay, Hansard—honestly—because I stuck to the script.
I hope that I have given a flavour of how we want to proceed. This is an issue on which we do not have a closed mind; we made that clear in the Statement on 15 December. There are important financial aspects; nevertheless, we wish to get over the problem that exists at present, with the sometimes scandalous situation that arises regarding outline planning permissions. I had that as a constituency Member in the other place. Some of the issues that arise as a result of an outline planning permission being granted are quite disgraceful. The noble Lord, Lord Rogers, or another noble Lord, made the point that the development that turns up later may have no relation whatever to what people believed was in the outline consent. We have to deal with that, and we are trying to find ways in which to do so; I hope that, by the time the Bill reaches the statute book, there will be an agreed way by consent across the Floor to find a solution. Therefore, I hope that the amendments can be withdrawn.
1.45 p.m.
Lord Hanningfield: I thank the noble Lord for that answer. He had a lot to read, just as I did when I had my notes to read through.
Many concerns were raised, and I am sure that the noble Baroness, Lady Hamwee, will address some of them in a moment. The Minister said that discussions were ongoing, but discussions must speed up, because
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before we get to Report stage we would like to know more of how the Government can accommodate many of the fears within the industry and a lot of the bureaucratic nature of the work for the planning authorities. Those hard-pressed authorities will not have the resources to fulfil some of the Government's requirements. However, the fears are there in the development industry in particular. As the Minister said, discussions are going on, and Report stage will be the next opportunity to discuss those matters in detail. I hope that the Government are then able to accept some of our amendments.
Baroness Hamwee: I do not believe that the Minister dealt with my question about charging, but I do not blame him for that.
Lord Rooker: No, I can do—at least, I did have a note on that, although I seem to have lost it. We retain an open position on the work under the statement of development principles. It may be that there will be an element of charging, but no final decision has been taken. I am sorry that I do not have an answer to the noble Baroness's question.
Baroness Hamwee: I am grateful to the Minister, and hope that the open mind comes to the right decision.
At this point, I do not want to go through the Minister's comments in detail. I do not want to impugn the Government's good faith in pursuing the issue—and I take the Minister's point about the difficulties regarding outline permissions. Some people refer to them as "trophy architects". However, that strongly suggests to me that Clause 39 should not remain in the Bill and that Section 92 of the 1990 Act should not be subject to abolition when the Secretary of State decides, unless the matter has progressed very considerably by the next stage in the Bill.
The Bill began its passage in October 2002, and I cannot remember how long before the Bill the Green Paper was published. Of course, I do not for a moment object to consultation; it is absolutely essential to hold consultation with everybody who is concerned. However, it would be quite wrong for the House to be asked to agree to take a very substantial step in the absence of something much closer to a conclusion about what will be put in place. We shall put that to the House next time, unless there is a lot of progress before then. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 113J to 113M not moved.]
Clause 41 agreed to.
Baroness Farrington of Ribbleton: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Gender Recognition Bill [H.L.]
1.50 p.m.
Report received.
Clause 1 [Applications]:
Lord Tebbit Lord Tebbit moved Amendment No. 1:
Page 1, line 3, leave out "gender" and insert "sex"
The noble Lord said: My Lords, this is a re-run of our discussions in Committee and, bearing in mind the rules of the House, there is no need for it to delay us long. There is a major defect in the Bill in its confusion over sex and gender. Is the Bill about a change of sex or a change of gender? In the words of the noble Lord, Lord Filkin:
"The Government do not base their argument that there is a simple or conclusive medical definition on whether a person is of one gender or one sex or another".—[Official Report, 13/1/04; col. GC5.]
That is a view that many people outside this building would find remarkable. He has made it plain that even when the biological evidence—which is not a single test, but three tests, those of chromosomes, genitalia and gonads—points conclusively to a person being of one sex he, like Lord Justice Thorpe, would allow the one subjective test of what a person thinks, perhaps as a result of a psychological disorder, to decide whether he or she should be regarded as male or female. The overriding test would be the subjective one as opposed to the objective one.
Then, in a masterly and concise summary of the Government's position, at the same column he went on to say:
"I do not wish, partly out of ignorance but partly because I do not think that it is central to our debate, to engage in the great medical diversity on this matter".
At heart, the Government's view is that this is a legal issue. I notice a nod from one of the lawyers in the House. It does not make sense to say that a person's sex is decided by the law, as opposed to biology. However, I am always willing to offer a way out. I am willing to give the noble Lord, Lord Filkin, the benefit of the doubt and to offer him the chance to use the word "sex", rather than the word "gender" in the Bill. I hope that he will now do what he would not do in Committee and will tell noble Lords what he thinks to be the difference between the two, why he regards the word "sex" as inappropriate and why he prefers the use of the word "gender".
In order to try and help him, I have also tabled a new amendment, Amendment No. 128, which adds to the clarity of the Bill by offering clear definitions of gender and sex. This will improve the Bill, whatever other amendments the House chooses to make. I would be happy to add to the definition of gender in the amendment that I have tabled, Amendment No. 128—I shall direct the attention of noble Lords to it. I have suggested that in the definitions clause we should add that:
"'Sex' means the biological categorisation as male or female by virtue of chromosomes, genitalia and gonads.
"'Gender' means the social and cultural categorisation as male or female by virtue of personal choice or lifestyle".
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I would be happy to add, "or by legal decision", if that made the lawyers more comfortable.
There is no necessity to argue that case any further and I shall be extremely interested to hear whether the noble Lord, Lord Filkin, has had any further thoughts about it.
I think it may be helpful to him if I say, before I sit down, that at a later stage I shall try as regards some other amendment—I am not yet sure which—to raise the question of how the Armed Forces will deal with the question of transsexuals who wish to join the Armed Forces and present themselves with a certificate of their re-registration of birth. I know that that will have been heard outside this Chamber and that it will give the noble Lord an opportunity to make a comment on it later. I beg to move.
Baroness O'Cathain: My Lords, this is the first time that I rise to speak on Report. I am distressed that the minimum allowable time between Committee and Report has been applied to the Bill. There were a number of difficult issues raised in Committee, which really demanded much more discussion, dialogue with officials and consultation than has been possible—except for a meeting, for which I was very grateful, that I had with the Minister yesterday evening. In no way do I wish to appear churlish, but I suggest that consideration should be given to those of us who do not have hordes of officials to support us and who, as in my case, could be involved with another Bill at the same time. It is in the interests of the House that greater thought should be given to the logistics and practicalities involved in ensuring that such complex legislation is thoroughly considered on its passage through this House.
Baroness Farrington of Ribbleton: My Lords, it may be of help to the noble Baroness, Lady O'Cathain, for me to comment that my understanding is that the timing of Bills is a matter that is discussed through the usual channels. Her Front Bench will have been involved in those discussions. I am sure that those concerned will take note of the point that she has raised.
Baroness O'Cathain: My Lords, I thank the noble Baroness for those remarks. It is really for poor, humble, little Back-Benchers who do not have the resources to deal with these matters that I made the point.
Baroness Farrington of Ribbleton: My Lords, the noble Baroness stretches my imagination to breaking point by describing herself as a poor little Back-Bencher.
Lord Marlesford: My Lords, I echo what my noble friend says. I attended some of the Committee sittings and it was a Bill that, for all kinds of reasons, revealed

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the defects of considering legislation in Committee. That makes the point that my noble friend has brought to our attention more relevant.
Baroness O'Cathain: My Lords, having made that point, and after thanking the Minister for accepting it, I shall move on.
I support my noble friend Lord Tebbit in his amendment. He needs no assistance from me, because he is doing a masterful job, as he did in Committee. He has the advantage of having truth and logic on his side because the basic proposition of the Bill is mistaken. A man cannot become a woman. A woman cannot become a man. He also has the advantage of being able to point to considerable disagreement among the medical profession world-wide. I have made the point before that we normally legislate only when we are sure about the science and when we can be sure that what we are doing is the best thing for the people affected. Psychiatrists and psychologists are far from being of one mind that attempting to change sex is the best solution.
The Minister will probably say that the European Court of Human Rights compels us to legislate in this way. But it causes one to ask whether, if Europe required us to legislate that sheep could become goats and goats sheep, we would do it. Is there no point at which common sense would override and the Government would say, "No, that is simply too much. Enough is enough"?
Amendments Nos. 1 to 4 and 6 to 11 in the name of the noble Lord, Lord Tebbit, and his proposed Amendment No. 132 to the Title have the virtue of at least making it plain on the face of the Bill that we are not just saying that a person can change his or her gender in law under this Bill but rather his or her sex.
Amendment No. 128 gives a succinct explanation of the difference between gender and sex. As has been pointed out, sex is a clear biological categorisation. Save in a tiny number of cases worldwide, doctors have absolutely no difficulty in determining a person's sex by reference to physical indicators. Gender, on the other hand, is really a modern invention. It conveys the idea of a fluid, changeable view of your own sexual identity that is governed not by any physical, medical or biological criteria but solely by perceptions—your own and those of other people.
I have said before and say again that I feel genuine compassion for those who struggle with their sexual identity. The overwhelming feeling of being trapped in the wrong body must be just awful. However, sex change is not the only solution. During our debates there has been little consideration of the possibility that a person who feels this way might overcome it by reconciling with reality. Transsexual rights groups obviously promote the idea that a sex change is the answer, but others disagree, especially the families who get left behind.
Let me quote from an account of the struggle faced by a family when a husband became obsessed by the idea of becoming a woman. The wife tells how selfish
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he became, including spending the family budget on makeup and beauty treatments for himself. Mercifully, he changed his mind after being challenged by a sermon. The wife says:
"We had 2 weeks of battling and anguish, and he clearly was in turmoil, but it did make him realise that he had a family that cared for him and wanted the best for him. He decided to stay and change, realising that he was about to destroy everything he had worked so hard for over thirty plus years … The thought of what could have been leaves me cold. If he had been encouraged by others, or legislation to pursue his own way, he would have left six devastated lives in his wake".
Clearly, that family could all have saved themselves a lot of grief if they had just gone along with him. There would have been a form of resolution if the wife had been willing to pretend to be his lesbian lover, as he wanted. But they could not. They did not believe it was true that a man could become a woman. They could have avoided conflict by abandoning their absolute beliefs about sex and gender, but it was unthinkable for them to do so.
This Bill abandons absolute beliefs about sex and gender. In so doing it makes it more difficult for people who are not willing to do so. I hope that by having this debate again on the basic mechanism employed by the Bill, the Minister will again address his mind to the impact this Bill will have on third parties.
I believe we may hear that some consideration is to be given to wives and children in the gender recognition process. This is a concession which has to be welcomed warmly, but the Bill itself is wholly misconceived. I remind the House again of the words of that tortured wife who believed that if legislation had encouraged her husband to believe that he could change his sex,
"he would have left six devastated lives in his wake"
2 p.m.
Lord Turnberg: My Lords, I must first apologise to your Lordships for not being able to be present during the earlier stages of the Bill. I regret that but I say in mitigation that I have read every word of those debates in great detail and very carefully. Therefore, I hope that noble Lords will forgive my intervening in this set of amendments. I should express my interest as a retired physician and retired professor of medicine, but in neither capacity have I been involved in the care of transsexual people, so to that extent I am neutral.
In earlier debates and today the noble Lord, Lord Tebbit, made a robust case for the belief that a person's sex is determined at birth by the genes on their chromosomes and that it is these which determine the development of those characteristics which we recognise as male or female—sexual organs and other characteristics. It all seems so straightforward and black and white, but unfortunately that is not quite the whole picture. One's sex is only a part of one's gender. It is an important and essential part but not the only part as it is now clear that genes, although having a strong influence on a person's inherited characteristics, are not the only determinant. We now know that genes determine only the likely trajectory of development and not the final picture. In the case of a

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person's gender that is certainly the case. For example, hormonal makeup, psychological development and probably some features of brain structure do not necessarily follow a specific set of genes. Indeed, other genes on other chromosomes all play a role in determining sexual characteristics, and this says nothing of the role of environmental factors which we cannot ignore.
In the case of the genes on the X and Y chromosome it is, of course, undeniable that they are extremely strong determinants of gender, but even there we know that there is an infinite variation in the degree of masculinity and femininity which an individual displays. The point here is that in a very small minority of individuals it is clear to them and often to others that the X and Y genes which determine their perceived sex at birth are quite out of sync with everything that they feel and know about themselves now. That is determined by a whole host of genetic and non-genetic factors. Therefore, I am not convinced by the noble Lord's arguments for these amendments; namely, that the X and Y chromosomes are the final arbiters.
The Bill has nothing to do with whether such individuals should or should not change their gender—they have already made their decision and gone ahead and done it—it is about whether, having done it, they can be recognised in law. These are people who have suffered torments about their identity for years until they are convinced that they are expected to behave in one gender when they know in their hearts that they are another.
Lord Tebbit: My Lords, I am most grateful to the noble Lord for giving way. I think that I would be able to follow him even more closely were he to say how he defines "sex" and "gender". It seems to me that he is using the words in a rather muddled fashion.
Lord Turnberg: My Lords, what I am suggesting is that sexual determination does not necessarily coincide with gender determination. Sex plays a part but it is not the whole part. Sex is determined by one particular set of genes whereas gender is determined by a whole host of genes together with other factors.
Lord Tebbit: My Lords, I am most grateful to the noble Lord but that is not the point. I understood that to be the case that he was making but what he has not told me is what is his definition of the words "sex" and "gender".
Lord Turnberg: My Lords, that can mean a variety of things. The noble Lord is talking about a person's sex. That you may define biologically if you so wish—that is determined by X and Y chromosomes—but even that is not distinct. Some people are born with two Xs and a Y. In any event it is not as clear cut as the noble Lord suggests.
I am talking now about the people who have gone through the process and have decided at long last after a long struggle that they are another sex than the one they had at birth. When they accept the need to
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change, it takes enormous courage. It is not a trivial pursuit. Then they have to go through an elaborate and searching set of procedures over a prolonged period of time. That, again, is not trivial. These are the people we are talking about who have made enormous sacrifices. I can see absolutely no reason why such individuals, having already made an irrevocable decision, should be deprived of the status and rights that this Bill would allow them. I am afraid that I cannot support the noble Lord's amendments.
Lord Carlile of Berriew: My Lords, what a pleasure it is to follow the noble Lord, Lord Turnberg, who stated his position so clearly—a position that I think helps many Members of this House to understand the issues in this Bill. At this early stage of our debates this afternoon I apologise in advance—as I already have to the noble Lord, Lord Filkin—for my unavoidable absence after about six o'clock this evening.
I thank the Government for the very intensive, high quality and continuing level of consultation that has taken place since the Committee stage of the Bill. It is entirely unreasonable to complain about the short time that has passed. I believe that we have all had plenty of time to consider this Bill over the months since we knew it was going to be introduced. Compared with many Bills there has been a predictable type of correspondence at a predictable level which has not overwhelmed us. I believe that we have had plenty of time for consultation.
I invite the Government to adhere to a now almost classical adage. I hope that I shall be forgiven for using a few words of Latin: Et timeo Tebbitos et dona ferentes. I am perfectly prepared to translate for the noble Lord if he would like me to.
The noble Baroness, Lady O'Cathain, spoke with her usual persuasiveness, candour and conscientious approach to what she really believes. She is wholly opposed to the Bill, as is the noble Lord, Lord Tebbit. They have made that clear on numerous occasions. Understandably from their viewpoint, they would wish to find a way of wrecking the Bill at any stage including the present one. One accepts that that is a conscientiously held view.
However, I say to the noble Baroness that what she has said was not fair to the legal profession. The anecdote she used illustrated the danger of using carefully chosen anecdotes which misrepresent what occurs in the very real and difficult world of those who make the extraordinary decision to have gender reassignment. The idea that it is made over a short time is completely unrealistic.
I have the advantage shared by one or two other Members of the House in having been a lay member of the General Medical Council for 10 years. A number of other Members of this House have been professional and academic members of the General Medical Council in its old, unwieldy, massive and thankfully now over-and-done-with form.
The Conduct Committee of the General Medical Council, of which I was an active member for five years, would take an extremely dim view, I am sure, of

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any doctor or group of doctors who did not start from the viewpoint, as they always do, of trying to discourage people who are interested in the possibility of gender reassignment from going through that process. The psychological profiling and the social as well as medical care that is given to people who go through the process starts from the viewpoint that it is all extremely painful, literally; that it involves enormous adjustments to one's body and one's life and that one should have it done only if absolutely certain. It is a process which lasts not one minute less than a few years. They have to live in their acquired gender for a period of two years at least. That is enshrined in the proposed legislation.
Baroness O'Cathain: My Lords, I thank the noble Lord for his comments about the approach I have taken to the Bill. There is a slight misunderstanding here which I would like to clear up. It is not necessary to have the gender assignment process to get to the stage in the Bill where one obtains a gender recognition certificate. It is not necessarily true that in cases where there have been problems, as I have indicated, they would be the result of the operation or the gender assignment process. There a great deal of difficulty arises. If people say that they have always felt that they wanted to be man and that they will live as such for two years, they can then go to the gender recognition panel and say, "I am a man, please give me recognition. That is the way I feel". That is my understanding of the matter.
2.15 p.m.
Lord Carlile of Berriew: My Lords, with respect to the noble Baroness, she should re-read the Bill because that is not what it says. It is an extremely difficult process which includes two years of living in the acquired gender to obtain a gender recognition certificate. One of the requirements of the Bill is that the tribunal which hears the case should be satisfied that there is a permanent intention to live in the acquired gender.
I am saying that there are guarantees in the medical and legal processes that protect members of families from a temporary whim. The ways in which the human mind works, even within the bounds of what is generally called "normality", are extraordinary and unpredictable. As I say, the protection is built in. I am sure that the General Medical Council would take a very severe view of any doctor practising in this area who did not use the utmost care.
One should not forget that if a person undergoes severe and detailed psychological treatment or, even more to the point, major surgery without the proper procedures being gone through by the medical profession, the perpetrators of the changes would be committing very serious criminal offences for which undoubtedly they should be convicted by criminal courts. We say to the Government that this is an issue about which they should stand firm and hold to the purpose of defining gender as a matter of law.
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The noble Lord, Lord Tebbit, seems unable to distinguish sex from gender. I suggest to noble Lords that it is a male, female or ambiguous biological component of humanity whereas gender is the legal status of a person as a man or woman in law. Surely, that is a difference which anybody can understand.
Lord Tebbit: My Lords, I do not know what is the inability which causes the noble Lord not to understand, not to be aware of or to ignore the fact that I have tabled amendments to precisely define the difference between sex and gender. The noble Lord will have heard the exchange I had with the noble Lord, Lord Turnberg, on the subject. How can the noble Lord then say that I seem to believe that they mean the same thing?
Lord Carlile of Berriew: My Lords, the noble Lord has made an attempt to create a distinction, but I do not accept that he makes it. Furthermore, with great respect to the noble Lord—and I mean that because I respect him enormously especially as a parliamentarian—it is the purpose of this legislation to provide for the legal status of a group of people who have been defined by national and international courts, as well as by the usual political process, as requiring not just the protection of these Houses of Parliament, but also definition in law. The clarity of the definition offered in the Bill is considerable. In so far as there is any clarity in the definitions offered by the noble Lord, it is not a clarity that would offer anything to anyone except myself and my learned friends.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, I rise to return to this interesting element to our Bill about which we have spoken on a number of occasions. I have even less confidence that there will be a meeting of minds at the end of the debate. I perhaps signalled my dubiety when we spoke about it at Second Reading. Nevertheless, the noble Lord, Lord Tebbit, is entitled to hear the Government's position on these issues even though neither he nor I expect that we will necessarily agree or rejoice in that.
I share some of the pain that the noble Baroness, Lady O'Cathain, feels about parliamentary timetabling. This is one of three Bills that I am currently taking through this House. Two of them are being debated at the same time this afternoon. I find it difficult to be in two places at once and therefore I am being helped in relation to the other Bill. I am told by the Chief Whip's Office that, when it comes to taking any notice of people on timetabling considerations, the government Minister's view is about the last in the queue. That is perhaps for good reasons.
The noble Baroness spoke about the ECHR. She is quite right. As we said previously, we have an obligation—it is one with which we are perfectly comfortable—to adjust our domestic law in order to be compliant with ECHR law. That is not the centrality of our position and, even if there were no ECHR obligation, we believe that it would be right to

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act in that way. We consider it right to give legal recognition to the very small number of people in our society who, I believe, currently suffer an injustice. I shall develop that argument later.
The noble Baroness is also right to trail the subject of third parties. I hope to be able to say something helpful about that when we reach later amendments. I thank the noble Lord, Lord Carlile, for his kind offer to translate the Latin. However, even my hopeless Latin was just about good enough to give me the gist of his sentence.
I turn to the centrality of this issue. In essence, the Government's view is that a person's sex, as the noble Lord, Lord Turnberg, signalled, is more than his or her chromosomes. I do not want to detain the House for too long on this matter but I believe that the Oxford English Dictionary gives about four separate meanings for the word "sex", none of which is reduced simply to "chromosomes".
There is not a great deal of fruit in spending a lot of time on trying to define the meanings of those words, although there are distinctions between them. The meanings have changed over time and are still changing. The word "sex" now has more of a social and psychological connotation than it would have had 20 or 30 or so years ago. As we all know, language is mobile.
However, the reason that I do not consider this matter to be central to our deliberations or that we should spend a great deal of time debating it is that I suspect it is not the central dividing issue between us. While I accept that chromosomes are one of the primary sexual characteristics, there is also a range of secondary sexual characteristics. Gender identity is also determined by a range of psychological factors.
In Committee, I quoted a little from the judgment of Lord Justice Thorpe in the Court of Appeal on the Bellinger case. With the patience of the House, I shall repeat it because it may have relevance for those who were not present on that occasion. Lord Justice Thorpe said:
"Can the legal definition of what constitutes a female person be determined by only three of the criteria which medical experts apply? Are judges entitled to leave out of account psychological factors? For me the answers do not depend on scientific certainty as to whether or not there are areas of brain development differentiating the male from the female. In my opinion the test that is confined to physiological factors, whilst attractive for its simplicity and apparent certainty of outcome, is manifestly incomplete. There is no logic or principle in excluding one vital component of personality, the psyche".
I believe that there is eminent sense in that and the Government consider it to be good advice to us in our deliberations.
We do not believe that continuing disputes about linguistic terminology is a reason for delay. The Government's position is that there is an injustice for a very small number of people in our society who are absolutely convinced that their real-life gender, as they believe it, is out of congruence with what is recorded on their birth certificate. After a very thorough, careful, proper and patient process of testing and validation by the state and by medical experts, the state
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believes that it is right and fair, as well as in accordance with European law, to adjust that anomaly in the very limited number of circumstances in which it applies. Perhaps I may remind the House that that is relevant. Our best estimates—no one has a final figure—are that probably about one in 17,000 people suffer from gender dysphoria. The fact that there are so few does not mean that as a society or a state we should not be concerned with trying to give them the legal recognition that they believe they are owed.
Therefore, the Bill is about legal recognition and it will define a person's sex in law. We consider the arguments about the meaning of the words "sex" and "gender" to be beside the point. There is no stark dichotomy between the meaning of the words. Language, as I said, is fluid. Our sense of the words "sex" and "gender" has changed over time and no doubt will do so in the future. While the meaning of the word "sex" is not the same as that of "gender", the word "sex" is increasingly in use in ways that go beyond a narrow biological definition.
In addition, medical recognition of gender dysphoria has never been wider. The Chief Medical Officer recognises that, and treatment has been available on the National Health Service for many years. A small number of people are convinced that their real-life gender is out of congruence with what is recorded on their birth certificate as their legal status. We believe that, after a process of proper testing and validation, it is right and decent, as well as in accordance with law, to close that discontinuity.
I also say, with courtesy, that, while I respect the differences of opinion, I struggle to see the great mischief or harm in what we are doing in this respect. It seems to me that it is an act of a civilised society and I cannot see the damage that would result to others. By that, I do not seek to provoke those who have put many hours of debate into these issues because I respect their difference of view. However, at this point, I should state my view on this as well. Therefore, with regret, I cannot accede to the amendments proposed by the noble Lord, Lord Tebbit.
Lord Tebbit: My Lords, I am, of course, disappointed but not unduly surprised by what the Minister said. He tempts me to enter into a Second Reading debate. It is a temptation that I shall resist manfully. As we proceed through some of the other amendments, he may see more clearly my objection to the Bill—not least the objection that it would require officials to certify something which was simply not true.
On the subject of the way in which the business is managed, which has received some criticism today, I should say that I am extremely grateful to the Government Whips' Office for moving out of this group Amendment No. 86, which I did not believe belonged there. We can deal with it later. Therefore, I am grateful for that.
I understand the dilemma facing the noble Lord, Lord Filkin, who is expected to be in two places at once. It is a very difficult situation. I can only offer him

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the possibility of the judgment of Solomon as one way out, although I do not think that he will be particularly keen to take it.
The Minister seemed to introduce a new concept, which I believe we might call "linguistic relativism". It seems to have led him to the conclusion that we should legislate using words whose meanings we do not understand and which mean different things to different people. I do not believe that that is a good way in which to legislate. If we use a word in legislation, we should be prepared to state its meaning clearly and unequivocally and say how it differs from the meaning of other similar words which might be used as a substitute for it in legislation.
The noble Lord, Lord Turnberg, suggested that I might not understand the relationship between the words "sex" and "gender". However, sadly, when it came to the point, he could not define either of those words, which he used quite freely, nor say what he meant by them. Again, if I may say so, it seems to me that that is a lacuna in his argument.
I was brought up in a profession which, like that of the noble Lord, places human life in the hands of its practitioners. However, it was one in which we were expected to know precisely and absolutely the meaning of the words that we were using because, if we did not, it would prejudice life. Recently we have seen in the medical profession one or two spectacular cases where doctors did not understand the meaning of the words "left" and "right", let alone anything else, and thereby prejudiced life.
The noble Lord, Lord Carlile, says that to substitute the word "sex" for "gender" would wreck the Bill. It must be a very delicate Bill if it would be wrecked by substituting a word that we can not define with another word that we can not define—but which says pretty much the same thing anyway. That does not seem to have the savour of a wrecking amendment. I find the matter profoundly unsatisfactory. Of course, I am a realist and we need to move on with the debate on other amendments. I do not propose to divide the House on this amendment, and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 to 11 not moved.]
2.30 p.m.
Schedule 1 [Gender Recognition Panels]:
Lord Chan Lord Chan moved Amendment No. 12:
Page 13, line 11, leave out "or chartered psychologists" and insert "recognised as currently practising in the field of gender dysphoria in the United Kingdom, or who have an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service"
The noble Lord said: My Lords, I rise to speak to Amendment No. 12 and all of the other amendments in my name—Amendments Nos. 13,15,16,20,22 and 23. In Grand Committee I did not speak on the composition of the gender recognition panels, because
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I was researching the requisite qualifications of the medical members proposed in Schedule 1. Therefore I shall dwell first on Amendment No. 12.
Clearly, the role of medical members of the panel is to determine the validity of applications, in particular the clinical diagnosis of the applicant. Gender dysphoria, as the Minister said, is accepted as a medical condition by the Chief Medical Officer of England and patients are entitled to treatment on the National Health Service.
In clinical practice consultant psychiatrists validate the diagnosis of gender dysphoria. As it is a specialised area of medical expertise only a limited number of consultant psychiatrists are recognised as specialists in gender dysphoria. I have taken the liberty of excluding chartered psychologists, because in current practice they do not diagnose independently people with gender dysphoria. Clinical psychologists are technically members of the medical profession. Diagnoses of that medical condition are made by consultant psychiatrists, who may use the services of a chartered psychologist to determine the psychological profile of the patient.
When considering something as important and, literally, life changing as an application for gender reassignment and for a gender recognition certificate that overrides and cancels a person's birth certificate, I am convinced, as I hope other noble Lords are, that the expertise of the gender recognition panel must be of the highest professional proficiency. Therefore, Amendment No. 12 is designed to identify registered medical practitioners who are currently practising in the field of gender dysphoria in the United Kingdom, or consultant psychiatrists in the National Health Service who are registered with the General Medical Council.
In Amendment No. 13 I ask for two medical members to be appointed to all gender recognition panels. My reason was influenced by the current re-examination called for by the Attorney-General of all criminal cases involving more than one sudden infant death in a family, where a medical expert has been used by the prosecution. A similar situation has arisen in the past week in the case of the United Kingdom's best known expert on trans-sexualism, who is a consultant psychiatrist at Charing Cross Hospital, and is being investigated by the GMC after claims by a dozen patients that he put their health at risk—according to an article in the Guardian on 20 January. I quote:
"Consultant psychiatrist Russell Reid, a specialist in gender identity disorders, allegedly breached standards of care by prescribing patients with sex changing hormones and referring them for genital surgery without adequately assessing them".
The standards by which Dr Reid should have conducted his practice have been recognised by other consultant psychiatrists in the field, who say that the guidelines they use are set by the Harry Benjamin Gender Dysphoria Association, based in Minneapolis. The guidance states, the article continues,
"that patients should have been living in their desired gender role for at least three months before prescribed hormones, or had at least three months of psychotherapy. Patients should also undergo

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a minimum of 12 months' hormone therapy and live in the desired gender for the same period before referral for gender change surgery".
Therefore, as other noble Lords and the Minister have mentioned, it is a long process and a decision that the person wanting to change his or her gender has to consider very carefully. Regarding that problem of medical experts, we see that the recommendation in Schedule 1 states that there should be just one medical practitioner as a member of a panel. That position is no longer tenable because of the difficulties that arise from expert witnesses with a medical background. In view of such allegations it would be best practice to have two medical members on a gender recognition panel.
Amendment No. 15 arises from the need to be sure that applicants for gender recognition certificates have been convinced that their condition is permanent. The period of two years in which the applicant has lived in his or her acquired gender needs to be verified to avoid complaints such as those levelled against Dr Reid. The GMC is investigating allegations that the patients did not have enough time to change their minds about their preferred gender. Although all transsexuals consult their GPs, who refer them to consultant psychiatrists, the nature of their condition may lead some to change their minds about gender reassignment. I hope that all transsexuals have the support of their families and partners when they apply for a gender recognition certificate. To establish that support, the transsexual person should obtain confirmation from two qualified witnesses—naturally one would think of doctors, but they could also include close family members and partners—to verify that the person has indeed been living in the chosen gender for two years.
That leads me on to Amendment No. 20 which deals with evidence: evidence which makes it clear that any applicant for a gender recognition certificate should have been under the care of a registered medical practitioner practising in the field of gender dysphoria or a consultant psychiatrist specialising in gender dysphoria.
I have not come across the names of non-medical practitioners who currently practise in the area of gender dysphoria. It is therefore appropriate that the Bill specifies the qualifications of medical practitioners who are recognised and whose reports are the evidence needed by the gender recognition panel. After all, we have identified that gender dysphoria is a medical condition recognised by the Chief Medical Officer, so it is only appropriate that medical evidence is produced from reports by medical practitioners.
I tabled Amendment No. 16 because it is true that the majority of applicants have undergone sex reassignment surgery because of the two years which has been given for them to be convinced that they would live in the gender of their choice. Sex reassignment surgery is a sign that the applicant is convinced that it will be a permanent change. From experience of transsexuals in Australia, New Zealand
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and parts of the United States, there should be no doubt that such an individual should be given a gender recognition certificate.
Of course there will be some transsexuals who on medical grounds of serious life-threatening diseases are unable to undergo sex reassignment surgery. Those cases can be judged on individual merit by the gender recognition panel.
Another reason in favour of the amendment that requires applicants to have undergone sex reassignment surgery has been the regular reports of the rape and murder of transsexuals that I have read. They have taken place in Australia and in this country. The view I have gained is that most such tragedies affect transsexuals who have not undergone sex-change surgery. When an individual has undergone sex-change surgery, there is no reason to deny her or him a gender recognition certificate.
Finally, I tabled Amendments Nos. 22 and 23 so that objective evidence is obtained of the applicant's determination to live in the preferred gender. These amendments should also help to exclude applicants who are not qualified to obtain a gender recognition certificate. I beg to move.
Baroness Finlay of Llandaff: My Lords, I apologise to the House that I have been unable actively to participate until this stage. I want simply to reinforce most strongly the points made by the noble Lord, Lord Chan, particularly that of protecting the patients and the medical member of the panel. The wording of the Bill strikes me as containing a small wording conflict in that it includes clinical psychologists as medical rather than clinical members of the panel. That might have been a more accurate description. But the importance of being trained in this very small and highly specialised area, dealing with people who are undertaking complex decisions—the rigors of which were eloquently outlined by the noble Lord, Lord Carlile—indicates that Amendment No. 13 in particular is crucial to protect all involved in the process.
2.45 p.m.
Lord Turnberg: I want specifically to address the amendment moved by the noble Lord, Lord Chan, which introduces the need for surgical intervention. I can well understand the noble Lord's desire to be absolutely convinced that the people who wish to be given a gender recognition certificate should have demonstrated beyond doubt that they are sufficiently determined by having surgery to change their gender. But I am afraid I cannot accept that as being a mandatory procedure.
Of course many will have had surgery, but it is worth remembering just what this type of surgery entails. In a woman who wishes to be regarded as a man, it would involve the removal of the uterus and the ovaries, probably a bilateral mastectomy, and possibly plastic surgery to construct a phallus. In a man, it would involve removal of the penis and testes, with the possible construction of a vagina.

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I am sorry to be so graphic, but I want to emphasise that these sorts of operations are not undertaken lightly. And as with all operations, they are not without risk. Most individuals are likely to be fearful and others may simply not be fit. The fact that most do go through with all this is a testament to their determination, but to insist that they all do so seems quite unnecessarily cruel. To demand surgery to confirm a diagnosis of dysphoria also seems perverse: we do not insist in law on surgery to make any other sort of diagnosis—cancer and the like. I am afraid I cannot support that particular amendment.
Perhaps I may be forgiven for returning to the dilemma of the noble Lord, Lord Tebbit, over sex and gender. The sex of an individual may be defined entirely in biological terms as possession of X or Y, or both, genes. It cannot be defined in terms of other sexual characteristics such as external genitalia because they do not always coincide at birth with the chromosomal determinates. Some babies at birth are difficult or impossible to sex. So if we are to be entirely clear, it is the chromosomal features only.
When we come to gender, this is the state that can be defined only in terms of possession of multiple factors which take into account the physical and psychological make-up of an individual, which can be defined and which make up the totality of that individual.
Baroness O'Cathain: One does not have to support the Bill to support these amendments, which impose a much more rigorous standard of testing on those who wish to go forward for gender recognition. There is evidence that there are people who have been railroaded through sex-change operations without any consideration of the alternative. The noble Lord, Lord Turnberg, has just given us a graphic description of what is involved in all this. I touched on the subject when I spoke to the amendment tabled by my noble friend Lord Tebbit and I shall return to the point when I move my Amendment No. 19.
It is an obvious failing that the Bill as drafted contains no requirements of psychiatric evidence. It could be that there are severe psychiatric reasons why such a change should not be made. Yet such evidence could be excluded. The panel may never see it and I do not believe that that is right. Furthermore, these amendments would create a system of assessment which was left open to abuse. By selecting the right medical expert and learning to say the right thing at the right time, transsexuals could quite easily pass the test laid down by the Bill at present.
I read recently that there are websites which teach transsexuals the right things to say when being interviewed by medical professionals. They advise them, basically, on how to cheat; on how to present the classic symptoms of gender dysphoria in order to get the operation they feel they want. I have no doubt that with the growth of cyberspace there will soon be websites advising on the best way to get a gender recognition certificate. We must take steps to limit the scope of that kind of abuse.
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A more rigorous regime is all the more necessary because the medical profession itself seems to be in turmoil over the appropriate standards to be applied in these cases. Some medical professionals working in this area feel that some of their colleagues are less than rigorous in assessing people. Indeed, the noble Lord, Lord Chan, has given us a description of one such case. Perhaps some professionals feel that their duty is simply to give the patient what he or she wants. I suggest that that is a dangerous approach to take. Not only is it a dangerous approach, but it is an enormous step to take.
Sadly there is plenty of evidence that people regret having a sex change. Only today my attention was drawn to a television programme broadcast in September of last year on ABC, the Australian broadcasting network. It was called "Boy Interrupted" and was about Alan Finch who, with the support of health professionals, had sex-change surgery at the age of 19. He now says,
"Anatomically, I was never a woman … Everything was fake about it from top to toe".
At age 31 he decided to change back to his biological sex.
There are many unresolved issues and many uncertainties about the whole process. That goes back to the points that I made at Second Reading and in Grand Committee. Today, just as an aside, we have another uncertainty: the noble Lord, Lord Chan, and the noble Baroness, Lady Finlay, suddenly made me realise that as a lay person I did not have the definitions clear in my mind. I would like confirmation that a medical doctor is a member of the medical profession, but that a consultant clinical psychologist is not a member of the medical profession. Is a consultant clinical psychologist a member of the health profession? There are health professionals as well as medical professionals. It is just so complicated.
In the Bill the least we can do to try to make matters less complicated is to ensure that the medical assessment through which applicants go is thorough and genuine and not just a rubber-stamping of their current wishes.
Lord Tebbit: I thank the noble Lord, Lord Turnberg, for his post-mortem comments on amendments that have already been debated. Turning to the present matter—Amendment No. 12 in the name of the noble Lord, Lord Chan—it seems to me that the extra precautions that he would insert as regards additional members of panels and matters of that kind, are thoroughly sensible and reasonable. But, like the noble Lord, Lord Turnberg, I hesitate to follow him on the subject of Amendment No. 16. He said that it would indicate whether a person had been willing to undergo the sex reassignment surgery, which I prefer to call sexual mutilation. In parenthesis, we Westerners criticise primitive tribes for their sexual mutilation practices, but perhaps those people should read the Bill and consider this kind of matter.

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The noble Lord, Lord Chan, said that a person would have to be convinced that he or she really was a transsexual. Yes, but that conviction could come about through a serious psychological disorder. I do not believe that it would be appropriate to persuade people who were suffering from a severe psychological disorder, which may perhaps be temporary or which certainly may not be completely permanent that, to achieve the objective which their disorder told them to follow, they should be subjected to irreversible surgery. That would be going too far. I go along with the noble Lord, Lord Chan, on all the amendments in this group, barring Amendment No. 16. I believe that that amendment goes too far and that it would be unduly cruel to people for whom we all have very great sympathy in their dilemma.
Lord Filkin: Before the moment passes, I celebrate the fact that the noble Lord, Lord Tebbit, and I agree on one point. That is a comfort to me, if not to him.
The problem with these amendments is that while I respect the objectives behind them in terms of trying to ensure that there is a credible process, they tend to add to the complexity and they tend to focus on the process rather than on the outcome. By doing that, they attempt to fetter the discretion of the panel. I shall return to why I believe that the panel needs to carry the burden that we. as legislators, will impose on it, rather than us over-specifying the mechanisms by which it is to fulfil those duties.
The panel must be satisfied that the criteria set out in the Bill have been met. That is its job. First, it has to be convinced that the person has or has had gender dysphoria. I shall not speak at length about the process of diagnosing and treating gender dysphoria. The noble Lord, Lord Carlile, spoke about that earlier and we may have spoken about it also in Committee. In essence, it is not a sudden process; it takes many years. It requires an initial diagnosis which is likely to involve psychotherapy, psychological tests and other medical tests. That is followed by a process of real life experience, so that before further medical treatments are given, the reality of the person's conviction is tested in the fierce crucible of living out in the real world in the gender that they believe to be true for them.
After that process has been under way for a good period of time and if it is appropriate after a further assessment process, hormone treatment can be undertaken. Subsequently—again if it is appropriate and advisable—there can be surgery. I shall not go into detail; the process is available from a number of sources, and I stress how necessarily cautious and lengthy it should be and needs to be.
Clearly, the test of gender dysphoria has to be carried out by a specialist. A person working in the area of gender dysphoria will have to make the critical judgment of whether a person has gender dysphoria as a precondition of an application to succeed. Amendments Nos. 20 and 22 provide that there must be two diagnoses of gender dysphoria, one from a registered medical practitioner and one from a consultant psychiatrist. We do not see the need for that. The panel will not simply take the diagnosis of
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gender dysphoria from anyone at large. It will have a list of people who work in the area of gender dysphoria, which will be drawn up in conjunction with the professional bodies to ensure that evidence comes from reliable sources. If there is any doubt in the minds of the members of the panel they will make further inquiries. Therefore, the burden is on the panel to be satisfied that the diagnosis of gender dysphoria is one on which they can lean and if in doubt they should not do so.
Next, the person must prove that he or she has lived in the acquired gender for at least two years and provide medical evidence of treatment that has been received. That evidence will be considered by the panel. So a person will have a diagnosis of gender dysphoria from a specialist and evidence of living in the acquired gender for at least two years. A person must provide evidence of medical treatment and will have to convince the panel that he or she intends to live permanently in the acquired gender. That is a proper and substantial process of testing.
Amendment No. 15 would add that a person must have lived successfully in the acquired gender. I do not know what weight to put on that, but it also adds that two witnesses must attest to the fact that the person has lived for at least two years in the acquired gender.
Quite rightly, the approach taken by the Bill is that the panel has to satisfy itself that an applicant has lived in the acquired gender for the past two years. It leaves open the evidential requirements, which is how one should treat judicial panels. They should be at liberty to decide what evidence they believe will satisfy them; if they are not satisfied they should ask for further evidence; and if they are still not satisfied they should refuse the application. We do not need to specify exactly how they go about their business. The panel will be chaired by a circuit judge. Such people are not unaware of proper process.
The panel must satisfy itself that an applicant has lived in the acquired gender for the past two years, not two witnesses. The applicant can submit further evidence if he or she wishes; or the applicant can be required to do so if the panel is not satisfied.
Finally, the amendment also requires that the two witnesses attest to the applicant's assertion that he or she intends to live permanently in the acquired gender. Again, we think that it is the job of the panel to take what tests, measures, evidence or inquiries it thinks appropriate to meet that test. It is not a good use of our time to seek to fetter the discretion or specify the processes by which a judicial panel should meet the burden the legislation imposes on it.
If, on the sum of the evidence, the panel is convinced that an applicant has taken decisive steps to live permanently in the acquired gender, has or has had gender dysphoria, and has demonstrated a commitment to live in the acquired gender, only then will it give a certificate. If it is not satisfied, it will not do so, nor should it.

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Amendment No. 16 seeks to add an additional criterion: that a person must have first undergone reassignment surgery. I do not wish to add much. A number of noble Lords have said why they believe that that is wrong. I start with an explanation. Most people who have gender dysphoria undoubtedly wish to have surgery. The individual wishes to bring his or her bodily state into alignment with that person's profound belief. Most will have done so. To require those persons to do so is wrong for all the reasons given by the noble Lord, Lord Tebbit, and others. One should not force that process on people as a necessary test.
Some people may be too old to be able to cope with the rigours of surgery. It would be wrong to deny them legal recognition if the three tests in the Bill were met. Let me not labour that point.
I turn the argument round the other way. It does not mean that the process is any the less severe. Clearly a person who has gone through the horrors of surgical realignment in this way does in a sense demonstrate how severe his or her conviction is that there is a problem which needs to be remedied. I signalled in Committee that where a person has not had surgery I would expect the panel to be more alert in inquiring whether there were sufficient evidence of commitment to a permanent change. That is not the same as saying that a person who has not had surgery should not be recognised. It is to say that the panel would want to inquire why the person had not had surgery. If it was because at heart there was doubt in the person's mind about whether he or she was going to make a committed and permanent change the panel would not grant a gender certificate. I do not think that we are at risk in this respect. The panel is likely to want to inquire more in such circumstances.
3 p.m.
Baroness O'Cathain: My Lords, I thank the Minister for giving way. That is my point. If a person goes to a gender recognition panel, the individual can have in mind the fact that he or she wants to change gender but does not want to undertake surgery for all the reasons that have been explained. That person can convince the panel yet be in a situation where he or she was going to cheat. I am sorry, but that is the reality. When I made the point earlier, the noble Lord, Lord Carlile, chided me.
One of my great concerns about the Bill is that an individual can have a gender recognition certificate without having surgery. It depends on how determined that person is in his or her own mind about the belief that he or she is of the opposite sex. I find that very distressing.
Lord Filkin: My Lords, I do not want to labour the point because we have given these issues considerable attention in Committee and today.
Such people who do not have surgery are few. There are usually good reasons for them not having done so. If the panel is not convinced that those persons are
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committed to living in a permanent state it will not grant them a gender certificate. However, to turn it the other way, for the state almost to say that unless people go through a process of bodily mutilation they will not have a legal recognition is wrong. I regret that we shall not agree on that issue.
I turn next to the composition of the panel. The medical member is not there to make a diagnosis. The diagnosis is to be provided by the person practising in the field of gender dysphoria. The medical member is on the panel to ensure that the medical evidence is properly understood and can be inspected or further inquires made if appropriate. The panel will be working with a list of medical practitioners and chartered psychologists who practise in the field of gender dysphoria.
With regard to there being several on the panel, few practitioners could be described as working in the field of gender dysphoria. Putting two on the panel would have significant disadvantages. It would also mean that they would frequently be seeking to make judgments on their own clinic or clinical work which, again, is clearly judicially flawed and, therefore, there would be further practical problems. So they are there to inquire into the medical evidence not to make the diagnosis.
On the interesting point about members of the medical profession raised by the noble Baroness, Lady Finlay, clinical psychiatrists are covered in Clause 3 under the term "registered medical practitioner". Chartered psychologists are members of the British Psychological Society, a professional body with which we shall work in developing the process. Having said that, I shall look further at what the noble Baroness said. If I have missed the point and dropped the ball, I shall come back to her before Third Reading.
I am sorry to have spoken at length but it is an important group of issues. I hope that I have stated clearly the Government's position.
Lord Chan: My Lords, I thank the Minister for that reply and all noble Lords who spoke. I accept that surgery is the end point and should convince anyone that the applicant is genuine. I concede that it would be difficult to make it a ground on which to provide a certificate. That would be seen to be cruel.
However, with regard to evidence and diagnosis, as I sought to outline, there are suspicions that within the medical profession medical opinions are given which may be extreme and not necessarily balanced because the medical practitioner is convinced of a certain point. With two medical members on the panel that issue would not arise.
Whether or not we like it, the ultimate issue is the diagnosis—being convinced—particularly if the applicant has not had surgery and there are other issues to consider. I admit that I am not familiar with the process and legal composition of a panel but that was the main purpose underlying Amendment No. 13. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Chan Lord Chan moved Amendment No. 13:
Page 14, line 7, leave out "one medical member" and insert "two medical members including

(i) a registered medical practitioner recognised as currently practising in the field of gender dysphoria in the United Kingdom, and

(ii) a registered medical practitioner recognised as currently practising in the field of gender dysphoria in the United Kingdom, who has an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service."

The noble Lord said: My Lords, I beg to move.
On Question, amendment negatived.
Clause 2 [Determination of applications]:
[Amendments Nos. 14 to 18 not moved.]
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 19:
Page 2, line 10, at end insert—
"(4) The panel must reject an application under section 1(1) if the panel has issued a gender recognition certificate to the applicant on two previous occasions."
The noble Baroness said: My Lords, I tabled an amendment in Grand Committee which raised the issue of whether a person can go through the gender recognition procedure a second time in order to return to his or her biological sex. The Minister may remember that in Grand Committee on 14 January I moved a similar amendment. In dealing with Clause 9 I said that,
"many people change their minds and revert to their real gender, or oscillate between the two".[Official Report, 14/1/04; col. GC64.]
I quoted the Government as being behind that statement. The Minister cited a percentage figure of 1 per cent. Of course 1 per cent does not square with "many". I have since discovered that the source of the "many people" quotation was from page 5, paragraph 5.1 of the Home Office report of the Interdepartmental Working Group on Transsexual People published in April.
One does not have to look hard to find examples of people who wish they had never changed. The Sunday Telegraph Magazine of 15 November 2003 reported the case of a person called Claudia, who deeply regrets his decision to have reconstructive surgery and assume the identity of a woman. He said:
"I changed for all the wrong reasons, and then it was too late … I was seen for 45 minutes by a psychiatrist in private practice, and I believe I was railroaded into thinking that an irreversible operation was the only solution. It made me feel they were just in it for my money".
He went on to say:
"I feel like this sex change has just made me into some kind of freak. I'm not a real woman, I am a sex-change".
That is tragic. It is a side of the transsexualism debate that seems to be swept under the carpet, although I notice, as has been said already, that the Guardian of 20 January 2004 reported that the UK's best known "expert" in transsexualism is being investigated by the General Medical Council after claims that he sent patients for sex-change surgery without adequately assessing them. The Sunday 0
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Telegraph Magazine stated that the same person was involved, while running a private practice as well as working in the National Health Service,
"in controversy over the condition known as body dysmorphic disorder, (BDD), where sufferers can experience a desperate urge to rid themselves of a limb".
Dr Russell Reid was one of the psychiatrists who referred two patients with BDD to a surgeon for leg amputations. The article continues:
'"When I first heard of people wanting amputations it seemed bizarre in the extreme,' he said in a television documentary at the time, 'but then I thought, T see transsexuals and they want healthy parts of their body removed in order to adjust to their idealised body image,' and so I think that was the connection for me. I saw that people wanted to have their limbs off with equally as much degree of obsession and need.'
But to what degree should doctors be acquiescent to the 'obsessions' and 'needs' of patients?"
It appears that the sex-change proponents have created all the running on this issue, yet there are genuine deep concerns by professionals which do not seem to be considered. The same article in the Sunday Telegraph Magazine referred to:
"Dr Fiona Mason, a forensic psychiatrist with an expertise in gender issues, is seriously concerned about the practices of some private clinics dealing with transsexualism".
She said:
'"I can't imagine assessing anyone suffering from a serious disorder in under three hours. It can take three years to assess patients with complex problems. The trouble with some private clinics is that the patients are just given hormones after an hourlong appointment, which can have an irreversible effect on the body.'
Some critics are even going as far as to say that psychiatrists have not, in fact, 'discovered' transsexuals but created them. That is, that once 'transsexual' and 'gender-identity disorder' (GID) become common currency more people began interpreting their experience in these terms. Specialists working in gender-identity clinics made similar complaints about their patients as early as the mid-1970s".
Clearly, there will be some people who will go through gender recognition only to want to change back again.
In Grand Committee, the Minister assured me that the Bill already provides for that. However, it must be said that it is not clear on the face of the Bill. I know he will tell me that we must not put words into the Bill that do not need to be there, but we should have some reassurance, if only for people like Claudia, that it is possible to go back to your true sex in law, even if the surgery is not reversible.
My amendment would make it clear that reversal is possible at the same time as limiting a person to only two changes. That would allow a person to change his sex to a woman and then back to a man, or vice versa, but he or she could make no further changes after that. Otherwise, of course, it is possible that person could change back and forth throughout life. That would clearly be ludicrous, not to say very damaging for the person himself or herself. I know the Minister will say that the gender recognition panel will always be terribly sensible and it would never allow that, but we cannot be sure under the current wording. If he thinks a person should not be able to make multiple changes back and forth, he should be prepared to see a limitation placed on the face of the Bill. I beg to move.
3.15 p.m.
Lord Filkin: My Lords, I thank the noble Baroness, Lady O'Cathain, for clarifying almost the double elements of this issue. The first element—and I do not think there is an issue between us about whether it is possible—is on the limited number of tragic cases where a person who might, after having gone through this enormously difficult and traumatic process, decide that they had made a mistake and wish to revert. Let me put it on record that while the number of such cases is likely to be extremely small, under the Bill it is completely open for the panel to grant the application to revert if it is convinced. The panel will be applying those three tests very seriously, and it will be applying them even more seriously because the person is reverting back.
On the second element, the noble Baroness suggested that we should put a provision on the face of the Bill to stop people making changes back and forth. I do not think that is necessary. The panel is there with expertise to make judgments. The central judgment it has to make in this respect is whether it is convinced that the person is committed to living permanently in that gender. I cannot think of circumstances—for example, in the extreme case of a person who has changed once and then has changed a second time—in which a panel would be convinced that it would grant legal recognition for a third change. I cannot conceive of a situation where a panel would be open to persuasion that that was possible.
One might ask, "Why not put the provision on the face of the Bill?" But why should we fetter the role and the duty of a judicial panel? We will give it clear criteria and through this legislation it should be left to get on with that job. Therefore, I think the law will allow exactly the change the noble Baroness wishes to allow. If the panel is convinced that a person has genuinely made a mistake then reversion is possible. I cannot see that there is a need to go further than that in the legislation.
Baroness O'Cathain: My Lords, I thank the Minister for his reply. As always, he listens carefully to my arguments, and I to his. The onus is on the panel. My simple amendment would be helpful to the panel, so that another client could never come back, and would remove any doubt about it. The Minister and I are at one on the point that there should be a limit. However, the Minister is placing the onus on the panel, whereas I believe that it would be better to have it on the face of the Bill so that we could help the panel.
The Minister made the point that the amendment would fetter the role and judicial competence of the panel. I say that it would be a belt and braces measure to ensure, first, that the panel is not put into a very difficult situation and, secondly, that it could not happen, which I am sure neither of us wants.
I will read carefully what the Minister said. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Evidence]:
[Amendments Nos. 20 to 23 not moved.]
Lord Goodhart Lord Goodhart moved Amendment No. 24:
Page 2, line 42, after "required" insert "by order made"
The noble Lord said: My Lords, this amendment concerns Clause 3(6)(b) of the Bill, which states:
"Any application under section 1(1) must include any other information or evidence required by the Secretary of State".
It does not specify the form in which that requirement is to be made. It is a general requirement, not a specific requirement relating to a particular case. Presumably, therefore, it must be made in some kind of document that will be circulated to all people who need to know about it.
The purpose of Amendment No. 24 is to provide for the requirement under Clause 3(6)(b) to be made by statutory instrument, but not one that involves any parliamentary procedure. The requirement that it should be made by statutory instrument reflects the concerns of the Delegated Powers and Regulatory Reform Committee. As was explained when I raised the question in Grand Committee, in paragraph 7 of its report, the Delegated Powers and Regulatory Reform Committee said:
"The prescription by central government of the particulars or evidence to accompany applications as part of a formal procedure is often made the subject of rules or regulations, whether or not subject to a Parliamentary procedure. This accords with the view that the prescription of general rules about these matters has the characteristics of a legislative, rather than a purely administrative, act. For this reason we considered whether, in this instance, the particulars and evidence should be specified in a statutory instrument, to which the usual publication requirements will apply".
Paragraph 8 continues:
"The reason given by the Government for wishing the matter to be left to 'administrative' action only is that the details are likely to change. We recognise that this is a good reason why the details should be left to regulations, but, given the flexibility of the delegated legislative procedure, it does not provide an explanation why there should be no formal procedure of any sort".
The report makes further comment, which I shall not read now.
In Grand Committee, the noble Lord, Lord Evans of Temple Guiting, the Minister speaking to this amendment, said:
"It might help if I clarified what the power will be used for. It will be used to set the questions that are asked on the application form. Its purpose, therefore, is very narrow. That is why we do not believe that any parliamentary scrutiny is necessary. The application form will ask questions that will enable the panel to determine an application. Contact details, for example, will have to be requested. At the same time, the application form will contain questions relating to the criteria in the Bill. The application form may, for example, ask an applicant to specify what evidence is being supplied to satisfy the panel that the applicant has lived in the acquired gender for at least two years". [Official Report, 13/1/04; col. GC 31.]
The difficulty is that the power could be used to cover fields very much wider than those referred to by the Minister on that occasion. It could, for example, be used to bring into effect a provisions similar to those contained in Amendments Nos. 15 and 23, tabled by the noble Lord, Lord Chan—the requirement that

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evidence be given of a particular fact by two witnesses. Although the Government may intend to use it simply to specify what is put on the application form, if one looks at the language, it is quite clear that it could be used to set out the nature of the evidence that the Secretary of State will require for presentation to a panel in order to prove any of the conditions that have to be satisfied before a gender recognition certificate can be granted.
I am not suggesting that there should be a parliamentary procedure. However, it seems to me that we require a degree of formality and accessibility to Government websites, which would be provided if the matter is dealt with by means of a statutory instrument rather than a circular. I hope that the Government will feel able to think again about that issue. I beg to move.
Lord Filkin: My Lords, in preparing for today's debate, it struck me, perhaps belatedly, that that may have been what was behind this amendment, so that the Bill would not be open to being twisted and turned in the future. I shall reflect on that point. In so doing, I do not want to raise any optimism, but I believe that that will probably short-circuit our discussions.
Our argument is as set out by the noble Lord, Lord Evans, in terms of the benefits of flexibility. We also believe that the ability to ask for information is clearly circumscribed by the three criteria set out in the Bill by which the panel will have to be tested. Nevertheless, that does not satisfy the point made by the noble Lord, Lord Goodhart, that it could be taken away over the hills. Therefore, without for a moment signalling that we shall accede to it, I should like to reflect on the point.
Lord Goodhart: My Lords, I am grateful to the Minister and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Buscombe Baroness Buscombe moved Amendment No. 25:
Page 3, line 2, at end insert—
"( ) In the case of an application under section 1(1) from a person who is married, a Gender Recognition Panel may take evidence from the spouse and children of the applicant before making any determination under section 1.
( ) Evidence from the spouse or children may include a report from a chartered psychologist or a registered medical practitioner on the effect of issuing a certificate on the spouse or children of the applicant.
( ) The spouse or children of an applicant shall have the right to offer oral and written evidence to a Gender Recognition Panel and, before issuing a certificate, the Panel shall have due regard to the effect of issuing such a certificate on the spouse or children of an applicant.
( ) In the case of an application under section 1(1) from any unmarried person, a Gender Recognition Panel may take evidence from the partner or children of the applicant before making any determination under section 1.
( ) In the case of minor children, evidence may be given by a representative appointed on their behalf."
The noble Baroness said: My Lords, I begin by suggesting to the Minister that in order to overcome his dilemma or compromise position of having to be in
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two places at once because he is involved with another Bill, which is in Grand Committee, if we did not have Grand Committees and all our legislation was considered on the Floor of the House, that problem would not arise—
Lord Goodhart: I thank the noble Baroness for giving way. I intervene to say that I am also involved elsewhere at this time. I am rather pleased at that, because it spares me from having to spend another day on the Committee stage of the European Parliamentary and Local Elections (Pilots) Bill.
3.30 p.m.
Baroness Buscombe: My Lords, I return to what I consider to be the issue of paramount importance: that of the family of the applicant. As noble Lords will have noticed, I have altered the amendment tabled in Grand Committee to introduce the element of choice, so as to enable the gender recognition panel to be able to lake evidence from the spouse and children of the applicant before making a determination under Clause 1. That evidence could take different forms, as proposed in my amendment.
We had a good, thoughtful debate on the issue in Grand Committee. I was grateful to all noble Lords who took part. Some points raised gave me pause for further thought. I said then, and still firmly believe, that the concerns of the family should be taken into account during the process of gender reassignment; that a holistic approach to the process is the right route; and that my amendment would help, rather than hinder, the process. That said, I take on board the cautionary note proffered by the noble Lord, Lord Carlile, in Grand Committee. I would not want to encourage a climate similar to that of the contested divorce. In most instances, that would be unhelpful.
The trouble with the Bill is that only the interests of the applicant appear to matter. When I first read it, I could find no reference to children, spouses or partners of the applicant, except in two lines of Clause 12. I found that deeply disturbing.
I am reminded of the words of the right reverend Prelate the Bishop of Winchester in Grand Committee, when he said:
"At this point it seems crystal clear that the Government are, without remainder, giving rights to one set of people and taking no notice of the rights of another".
In response, the Minister was also crystal clear. Although confirming that central to human rights legislation is the balance between rights and responsibilities, he said:
"The tough answer is that the right which the panel will decide whether or not there is evidence in the application to grant"—
gender recognition—
"is not a right that can be balanced".—[Official Report, 13/1/04; cols. GC36–39.]
That is tough, and I keep returning to the fact that our hands are tied.

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We have no choice but to respond to a judgment of the European Court of Human Rights. We have obligations under human rights law. In Grand Committee, the Minister offered to consider the matter further. I am pleased to confirm that we had a helpful meeting; the Minister has encouraged me to listen to what he has to say today in response to the amendment.
We have considered the matter at great length. I, and several other noble Lords, want to be reassured that the rights, interests and concerns of the family will be taken on board throughout the process of gender reassignment and should be considered by the gender recognition panel. I beg to move.
Lord Carlile of Berriew: My Lords, we have sympathy with the aims of the noble Baroness. It is vital that in the process—and at the right stage—the views of the family, if it has views on the matter, should be taken into account in an assessment of whether the person who makes the application is appropriate for a certificate.
It is to be noted that one test under Clause 2—indeed, the primary test under Clause 2(l)(a)—is that the panel must be satisfied that the applicant has, or has had, gender dysphoria. One would assume that if a proper medical and psychological process is carried out, an assessment of the views of the family will be part of the evidence-gathering of that process. By the time the case reaches the panel, there will have been detailed psychological and psychiatric assessments—as already happens in all such cases.
Further, what the noble Baroness asks for is already provided under the Bill in appropriate cases. Clause 3(6)(c)—Clause 3 being entitled, "Evidence"—states that an application must include
"any other information or evidence which the Panel which is to determine the application may require".
If that means what it says, if the panel has any doubt about evidential aspects of the process that has led the applicant to the panel, the panel has absolute discretion to inquire into those matters set out—or summarised, at least—in the amendment.
The hearing before the panel is too late for the evidence for which the noble Baroness provides in her amendment to be considered. In making its decision, the panel must decide on the four criteria set out in Clause 2(1). In a few cases, the family may remain implacably opposed at that stage. Nevertheless, if those criteria are satisfied, the determination of legal status must be made; that is a requirement placed on the panel.
What I have said, in a rather long-winded way, is that the Bill already provides for the process that the noble Baroness has in mind in the disciplines that are applied to each applicant before they ever reach the panel. I therefore suggest that, although I agree with the spirit behind the amendment, it is superfluous.
The Lord Bishop of Winchester: My Lords, I welcome the fact that the noble Baroness, Lady Buscombe, has retabled the amendments. Notwithstanding the points made in Grand Committee by both the Minister and the noble Lord, Lord Carlile, and what the noble Lord just said—I have read Hansard and listened carefully to him now—it is important that in the second line of the first paragraph of the amendment, we now have the word, "may", not "must". I welcome that change.
It is still important that written in the Bill should be the clear encouragement to the panel, even at what the noble Lord, Lord Carlile, is right to say is a late stage, to take seriously the concerns of the spouse, partner or children, and for them to know that they are being taken seriously. The panel should be required to take them seriously, and they should have the opportunity to be heard.
It is not simply a matter of a family being, as the noble Lord, Lord Carlile, suggested, implacably opposed. That puts the whole matter in far too adversarial a context. It is entirely possible and, to my knowledge, sometimes the case, that there is profound concern and anxiety about the mental, spiritual or physical well-being of the person—who may indeed be well down or through the process of gender change; or of that of the children, spouse or relatives; or of both intermingling.
It is worth noting that the amendment does not suggest that the panel must do what it is asked by those to whom the amendment would give the right to offer advice—to whom the panel would be asked to listen. It states that the panel should have "due regard". As I understand it, that phrase makes entirely clear that it must take note of, but need not be bound by, that advice. It means that it must listen to what is being said to it; not that it must agree with it or, in the end, that its decisions must be bound by it.
That seems to me both proper in itself and—to take another element in the amendment—because I take the noble Baroness to be testing, I believe extremely importantly, whether in the Bill the Government really are committed to what she correctly reported as the Minister's tough line in Grand Committee. To the extent that I as a lay person in these matters can read the human rights legislation—in Grand Committee I pointed to some parts of it that were quoted by the Court of Human Rights in the Goodwin case—it requires all concerned to be engaged in a balancing act, or a holding intention, of one right and another.
I was surprised, even shocked, by the Minister's tough line because as a layman in this regard it seemed to me deeply questionable. It is extremely important that this should be explored both in this matter and others. If the Government are prepared to note this tension between rights and duties in the matter of sport, and I judge them to be doing so correctly, they also need to be seen to be doing so for their own good, let alone for straight justice, in relation to children—in other legislation, the rights of children are said to be paramount—spouses, partners and the proper concerns of the churches and faiths, which are

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reflected in a series of amendments to the Bill. I am grateful that the noble Baroness, Lady Buscombe, has brought these amendments back in this slightly revised form. I will listen to the Minister with great interest. From her discussions with the Minister, she has whetted my appetite and I hope that he may have something of real interest and significance to say.
Finally, I. too, am required to be in two places at once. I made my apologies to the Minister earlier and I apologise to your Lordships' House now. There is a point beyond which I shall have to attend an unavoidable engagement in a church in my diocese this evening.
Baroness O'Cathain: My Lords, I am very pleased to be able to support my noble friend's amendment. One of the obvious gaping holes exposed during Grand Committee was that the gender recognition process gave no right to the family of a transsexual to have any say. I said that this emphasised that the Bill was about the rights of transsexuals and nobody else. Whispers have told me that there is likely to be some movement from the Government on this.
I hope that this bodes well for some other concerns we have about the Bill. I do not intend to rehearse all the arguments again. Suffice it to say that it seems unthinkable that a wife and children of a man—or indeed the husband and children of a woman—who went forward for gender recognition would be denied a say. I refer back to the story I read earlier about the terrible pain endured by the family of the transsexual man who thankfully changed his mind before it was too late. It was clearly tortuous for all of them, not just for the man involved. It is right that at the very least people in that situation should be allowed to put their views before the gender recognition panel.
It is possible that the Human Rights Act will come into play. I understand that the European Convention on Human Rights includes a right to fair trial and a right to be heard when a tribunal determines one's rights. I am sure there are some good legal minds who would be able to extend that to encompass the family in relation to the gender recognition panel. A wife whose husband was being changed in law to a woman could make a convincing case that her human rights were being breached if she were denied a right to be heard. Her rights would be very seriously affected by the decision of the panel. I do not believe that the panel should have absolute discretion.
The noble Lord, Lord Carlile, drew our attention to the Bill. It does not make it clear that the family would necessarily be encompassed in that consultation. I welcome the right reverend Prelate's great contribution that due regard has to be taken. I have absolutely no hesitation in congratulating my noble friend on her amendment. I hope that I can welcome the Government's willingness to think again.
3.45 p.m.
Earl Ferrers: My Lords, before the Minister responds, may I say that I very much hope that he will agree to the amendment. It seems almost impossible to
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believe that in the case of a man changing to a woman, his wife or children should not at least have access to the gender recognition panel so that they can give their views. The panel does not necessarily have to accept them but at least they ought to be heard. I hope the Minister will agree to the amendment.
Lord Filkin: My Lords, this is probably one of the most interesting and difficult issues we have to address in relation to the Bill, although there is probably some fierce competition for that title. When I talked about toughness in Grand Committee I was not talking about social toughness; I was talking about intellectual toughness. What I meant by that was that, under the statute that we are considering, the panel had a duty to make a decision as to whether the tests had been met to grant a change of legal gender to the applicant. Those three tests have been discussed many times. What I said was tough and difficult—whilst being emotionally sympathetic to the issues we have discussed—was having a process by which a judicial panel was asked to make a decision as to whether a person met those tests for their gender to be recognised and then to decide not to give it because the wife was unhappy. That was the toughness of the issue which we face and which we have been reflecting on in Government to see if nevertheless we can find a way of addressing what one has respect for—the human issues that lie behind that.
I shall now set out our thinking on this. I will also write to participants about this issue because it is important. That will give a little time for us to reflect on it before Third Reading. However, I can at least set out the position. In summary, there is not much problem in principle with allowing wives' and children's views or evidence to be put into the panel. The problem is about whether that should affect the decision of the panel. I am relieved to see the noble Lord, Lord Tebbit, nodding and agreeing with me on the intellectual toughness of that. We have been thinking about finding a way, which is consistent with the tests that the Bill sets out—including dysphoria, permanence, the two-year requirement and so on—of ensuring that the interests of the wife and child are properly considered at a time when it is possible for them to have an effect on the process. To put that at its shortest, we think it hinges around the consideration of permanence. By that I mean the panel has to be convinced that the test is permanent. There is a line of thought that goes that a person who applies for gender change to be recognised and is married and may have children, is in probably the most difficult situation. We want to ensure that that person and their family have fully considered the very painful and difficult implications of what the person wishes to go through throughout that process.
In short, the process of testing for gender dysphoria and treating it—the process set out in the Harry Benjamin International Gender Dysphoria Association standards—emphasises that professionals should discuss all the consequences of a change in gender for the person, their family and their work colleagues. It further says that the therapist should work with a transsexual person

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to accept the need to maintain a job, provide for the emotional needs of children, honour a spousal commitment or not to distress a family member as currently having a higher priority than the personal wish for constant cross-gender expression. So, good clinical practice already sets the issues out.
The issues should be explored as part of the therapeutic investigation early in the process. That seems right. In a sense, it is too late, two or three years down the line, when the case is with the panel, for that to be dealt with effectively, apart from allowing the family to give supportive evidence that may be relevant to the application to the panel. In many cases, applicants will wish their family to give evidence in that way.
In the guidance that will be given to the panel, we will make it clear that, if an applicant is married and/or has children, it is particularly important to recognise the burden placed on that person by the social situation that they are in and to test whether they have thought through the seriousness of the change that they are making and the effect that it will have on others, as well as themselves. Therefore, if there is guidance to the panel that it is to look for evidence that that has been properly tested, it leaves the door wide open for the applicant to put evidence from the wife and child into the panel's processes. More importantly, it gives a clear signal, at the start of the process, that the applicant will be tested at the end of the process on whether the issues of concern to the family have been properly considered as part of a therapeutic process. That will not be done in order to balance the interests of the family against the application—that cannot happen, for the reasons that I gave—but to see whether there is a greater risk of impermanence because of the social pressures on the applicant as a consequence.
I fear that I have spoken at length, but I hope that I have set out the argument clearly. I will put it in letters to noble Lords. Without completely impossibly corrupting the responsibility of the panel, one can build into the process a mechanism to ensure that the interests of the wife and children are given proper consideration. In any event, any decision by the panel is only an interim one, for a married couple. A divorce cannot take place until the court has considered whether appropriate ancillary relief decisions have been made and the interests of the children recognised. The court process for married applicants also has a check. Unless the court is satisfied that the normal divorce tests of ancillary relief and care for the children are met, the applicant cannot change the interim gender certificate into a permanent one. There are, in a sense, two tests. That allows us to build up a robust process that is fair to the applicant but is also fair to the wife and children.
As the House will have noticed, I speak without looking at my notes. I would welcome the House's liberality and ask it to reflect on the matter. I shall put
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it all in writing to the House, so that we can see whether we have found a way through the difficult moral dilemmas that does not corrupt the integrity of the process. I thank the noble Baroness, Lady Buscombe, for her thoughtfulness on the matter, but I ask her to withdraw the amendment, at least at this point, for the reasons that I have given.
Baroness Buscombe: My Lords, I thank the Minister for his response. I also thank particularly my noble friends Lady O'Cathain and Lord Ferrers for their support. I thank the noble Lord, Lord Carlile of Berriew, for his sympathy for the spirit of the amendment, although I cannot agree with the noble Lord that the amendment is otiose. In a sense, I am considering the perspective of the spouse and the children. I believe that Clause 3(6)(c) focuses on the perspective of the panel and the information that the applicant might wish to include, as opposed to the information or evidence that the spouse or children might wish to include.
That said, I am grateful to the Minister. I welcome also the support of the right reverend Prelate the Bishop of Winchester, who has clearly thought the matter through in a way similar to the way in which I have done with regard to the difficult dichotomy between rights and responsibilities. When we come down to it, the Bill focuses on the rights of the applicant.
There is no question but that the Minister has responded to our concern. Of course, I would prefer to see our amendment made. I accept the difficulty that the Minister highlighted with regard to including in the Bill a provision that relates to a late stage in the process. I hope that the Minister will assist me and other noble Lords by writing to us, first, with regard to the timing of the introduction of the guidance that will be attached to the legislation and, secondly, to help us to understand better how the process will be effected, such that the interests of the spouse and family, where they exist, are tested. In other words, at what stage will their evidence be included? Will it be an ongoing process, leading up to the application to the gender recognition panel? Will it be enough for evidence from a wife, spouse, partner or family to be offered once, or will consideration of the interests of the family continue right through the difficult process leading to gender re-assignment and the application to the gender recognition panel?
I am grateful to the noble Lord for the opportunity between now and Third Reading to consider what he tells us in writing before deciding whether it is enough to have the matter dealt with simply in guidance—I accept why he wants to do that—as opposed to having it in the Bill. I am grateful that the Minister and his officials took considerable time to tackle such a difficult and important issue. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Mollis of Heigham)The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Mollis of Heigham) moved Amendment No. 26:
Page 3, line 5, at end insert—
"( ) If the Panel which is to determine the application requires information or evidence under subsection (6)(c) it must give reasons for doing so."
The noble Baroness said: My Lords, I move the amendment and speak to this disparate group of amendments on behalf of my noble friend. The amendments arise from discussions in Committee, and I hope that they will address the concerns raised at that stage and be welcomed by your Lordships. In moving Amendment No. 26 I shall speak also to Amendments Nos. 46, 71, 118, 119, 120, 121, 123 and 125.
Amendment No. 26 relates to a request by the gender recognition panel for further information when determining an application from a transsexual person for recognition in the acquired gender. In Grand Committee, the Government indicated that it was not uncommon for judicial panels to request further information when they consider a case. We agreed that it was good practice for a panel to give its reasons for such a request, not only to assist the individual to provide the correct information but to reassure him that it is necessary. Therefore, on behalf of my noble friend, I propose that a requirement to give reasons should be enshrined in law.
Clause 7(2) allows the Secretary of State to determine the fee that should be charged for making an application to the gender recognition panel. At present, this power is not subject to any parliamentary procedure. The Delegated Powers and Regulatory Reform Committee did not recommend a change, but invited the House to question the Government about why no parliamentary procedure was required.
Of course, fees are routinely changed, often increasing annually with inflation. However, I am alive to the concerns of the Members of this House that Parliament should have some scrutiny over the fees that are charged. Subsequent to comments made in Grand Committee and given that all other court fees are set by order, subject to the negative resolution procedure, we agree that the fees for an application to the gender recognition panel should be set in the same way. Amendments Nos. 46 and 123 achieve this. Again, I hope that the House welcomes this move.
Clause 22 sets out a power to modify statutory provisions in relation to persons whose gender has become the acquired gender, or any description of such persons. This power is delegated separately to the Secretary of State, to the Scottish Ministers where the provision to be made is within the legislative competence of the Scottish Parliament, and, similarly, to the appropriate Northern Ireland department. It is a narrow power, designed to ensure the proper working of Clause 9 and the fundamental proposition that once a full gender recognition certificate has been issued to a person, that person's gender becomes, for all purposes in law, the acquired gender.
Legislation has used gender-specific terms and categories for centuries, and while we have been thorough in trying to identify what problems may arise
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from a person changing gender in law, we cannot discount the possibility that problems requiring an adjustment of statutory provisions will be needed. These adjustments will be to give effect to the principle that a person is to have all the rights and responsibilities appropriate to the acquired gender.
if the Bill is enacted, Parliament will have agreed the basic principle—that a person is to have the rights and responsibilities appropriate to the acquired gender. The power to modify statutory provisions will be used only to ensure that this principle has full effect. The question of ensuring that before exercising those powers there should be appropriate consultation was raised in Grand Committee. The amendment proposed by the noble Earl, Lord Mar and Kellie, was entirely sensible and an important safeguard. I am therefore introducing government Amendment No. 118, which I believe will achieve the desired objective.
The next two amendments in the group, Nos. 119 and 120, are consequential. The Bill makes provision for the particulars to be held on the gender recognition register to be prescribed by secondary legislation. This is the same provision as for other registers—for example, the birth register. From time to time, the set of details held on these registers is changed. The same flexibility should exist vis-a-vis the gender recognition register. That is the responsibility of the Chancellor of the Exchequer. It is therefore necessary that the powers in Clause 23 should extend to the Chancellor as well as to the Secretary of State. The two amendments achieve that purpose.
Amendment No. 122 implements two recommendations of the Delegated Powers and Regulatory Reform Committee. Again, I hope they will be welcomed by the House. Applicants who already have recognition overseas may apply on a simpler procedure whereby they have to prove that they have recognition overseas and that the country in which they have recognition is an "approved country or territory".
Lord Goodhart: My Lords, just to put the record straight, the noble Baroness referred to Amendment No. 122 when I think it should be Amendment No. 121.
Baroness Hollis of Heigham: My Lords, whenever the noble Lord, Lord Goodhart, has challenged parliamentary counsel, as he has done on at least three previous Bills, he has been proven to be correct. I am sure that he is correct about this, too, in which case I apologise.
Applicants who already have recognition overseas may apply on a simpler procedure. As the Bill stands, under Clause 2(4) the Secretary of State has the power to specify a list of approved countries or territories. The power will be exercised only after consultation with the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland.
At present, Clause 23 provides that countries are "approved" by an order made by the Secretary of State subject to the negative resolution procedure. In its

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report, the Delegated Powers and Regulatory Reform Committee agreed that it is appropriate that approval should be given by order, as the list of approved countries will change from time to time. However, it was concerned that on the face of the Bill it was not explicit that only those countries that have criteria equivalent to our own would be approved. It was concerned about future policy changes which might change the criteria by which other countries were approved for these purposes. The committee therefore concluded that the negative procedure would not provide an appropriate level of parliamentary scrutiny for a power of such potential significance in the context of the Bill and recommended that the affirmative resolution should apply.
Taking into account the views of those noble Lords who, in Grand Committee, expressed similar reservations and the recommendations of the committee, we are proposing an amendment to Clause 23 which I hope will find favour. It will provide the assurance sought. The power to prescribe approved countries will now be subject to the scrutiny and approval of both Houses.
Let me turn to the amendment as it relates to paragraph 11 of Schedule 3. At this point, Amendment No. 71 is also relevant. The Delegated Powers and Regulatory Reform Committee recommended a change to the provision in Schedule 3, paragraph 11. That provision seeks to accommodate a regulatory reform order that is already under way and which relates to the registration system for England and Wales. We explained that the original purpose of the paragraph was to enable the registration provisions contained in the Bill to be amended so that the gender recognition register conforms to the forthcoming changes being brought about by the General Register Office in England and Wales. I think this is a matter of some concern to the noble Baroness, Lady Buscombe.
The Delegated Powers and Regulatory Reform Committee accepted this argument and that the scrutiny process for the order could be shortened as proposed. However, rather than altering the requirements for an order under the Regulatory Reform Act 2001, the committee recommended that the Bill should give an express power for Part 1 of Schedule 3 to be amended, and that any such amendments should be made by affirmative resolution.
The amendment to paragraph 11 of Schedule 3 fully meets the committee's recommendation and I hope that it finds favour with noble Lords who, in Grand Committee, drew our attention to the matter.
The final amendment in this group, Amendment No. 125, is, again, a drafting amendment. Clause 21 includes the power to specify further exceptions to the prohibition against disclosure. Clause 21 provides that the power may also be used by Scottish Ministers in areas within their competence. Unfortunately, however, the present version of Clause 23 does not subject this power, in contrast to the power given to the Secretary of State, to any parliamentary procedure. The amendment corrects this unintended omission.
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I hope that your Lordships will agree that we have sought to meet the concerns expressed in Grand Committee and by the Delegated Powers and Regulatory Reform Committee and are happy to accept these amendments. I beg to move.
Lord Goodhart: My Lords, as a number of the amendments result from points made by us in Grand Committee, we naturally welcome them. The amendments on points that we did not make ourselves all seem perfectly sensible. We are therefore entirely happy with all the amendments.
Baroness Buscombe: My Lords, I also welcome the Minister's response to the concerns that we raised in Grand Committee, and entirely agree with the noble Lord, Lord Goodhart, that the other matters that the Minister raised today make sense. We support the amendment.
On Question, amendment agreed to.
Clause 4 [Successful applications]:
[Amendment No. 27 not moved.]
The Deputy Speaker (Lord Geddes): My Lords, I remind the House that if Amendment No. 28 is agreed to I cannot call Amendment No. 29 due to preemption.
Lord Goodhart Lord Goodhart moved Amendment No. 28:
Page 3, line 9, leave out subsections (2) and (3).
The noble Lord said: My Lords, Amendment No. 28 stands in the name of my noble friend Lord Carlile of Berriew and myself, and in the name of the right reverend Prelate the Bishop of Winchester. We and the right reverend Prelate come at the amendment from different directions, but we reach the same objective.
A number of transsexual people have entered into marriage before gender change with a person of the opposite sex. If a transsexual person wishes to obtain a gender recognition certificate in their required gender and the marriage in the birth gender still subsists, the panel under the terms of the Bill as it now stands can grant only what is called an interim certificate. Such a certificate has no effect at all in itself; it will, however, be converted into a full certificate if, and only if, the marriage is annulled or dissolved in proceedings commenced within six months of the interim certificate being granted.
In many cases, gender dysphoria of one of the parties to a marriage and the consequences of that dysphoria will lead to a breakdown of the marriage. However, there is a small number of marriages, thought to be in the order of 50, in which one party to the marriage is a transsexual person who wishes to obtain the same right as other transsexual people to legal recognition in their required gender, while both parties wish to keep the marriage in existence. The fact that the marriage has to be terminated for the transsexual partner to obtain a gender recognition certificate is a cause of great distress.

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The Joint Committee on Human Rights took evidence on a draft of the Gender Recognition Bill. Thirty individuals or couples submitted written evidence, and 11 of those 30 were letters from one or both parties in a subsisting marriage protesting at the need to terminate the marriage before a full gender recognition certificate could be granted. That is a very high proportion of those affected by the Bill to have responded to that issue.
We believe that allowing a subsisting marriage to continue will alleviate distress and cause no harm. We have therefore tabled a long series of amendments. Most of them, in fact, are minor consequential amendments and do not need to be referred to in any detail. The purpose is, first, to eliminate the existence of interim certificates so that anyone, whether married or not, will be able to obtain a gender recognition certificate if he or she satisfies the conditions for obtaining such a certificate. The grant of the certificate will continue to be a ground for the termination of the marriage if either party wishes to terminate it. Secondly, the amendments provide that the marriage shall be treated as dissolved for the purpose of state benefits and pensions, as the Government have managed to persuade us that leaving the marriage in existence for those purposes would cause undue confusion.
Why do the Government not accept our amendment? There appear to be three reasons. The first is a philosophical reason: namely, that it will recognise same-sex marriages. However, we are talking about marriages that were all legitimate when they were entered into. We see no need to extend the principle that marriages must be between people of the opposite sex to say that the marriage cannot continue if one party changes gender in law.
Secondly, the Government say that the changes would cause serious administrative difficulties. I am unpersuaded of that, despite the best efforts of the noble Baroness, Lady Hollis, to persuade me otherwise. She has sent a long letter to me on the issue. As the letter is not a confidential one, I shall read your Lordships a couple of paragraphs from it. The Minister said:
"Schedule 5 makes provisions for the treatment of social security benefits and contracted-out private pension arrangements when a person registers in their acquired gender. If an existing marriage is allowed to subsist for all purposes other than Schedule 5"—
which would of course be the effect of our amendment—
"a married couple would have to claim some state benefits as individuals. However, as not all state benefits are covered by Schedule 5—for example, income-related benefits—they would still be able to claim some state benefits as a married couple. This would cause considerable administrative difficulties and confusion for the couples involved. It would be difficult to explain to such a couple why they have to make individual claims for some benefits, while being able to claim other benefits as a married couple, and why they would not be able to claim survivor benefits when it would be appropriate for other married couples to do so. The current proposal to end the marriage for all purposes ensures that all transsexual people are treated in the same way and that generally they acquire the same benefits and pensions as others".
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I do not dispute the truth of what is said there, but if people sufficiently strongly wish to retain their marriages, then they are likely to be perfectly happy to put up with a degree of difficulty and confusion. I see the Minister shaking her head, but that seems to me to be the case. In a very small number of cases, I believe that couples will say that that is a price worth paying for the retention of the marriage. In view of the small number of cases involved, it is easy to have any claims that arise handled by a single officer at the Benefits Agency, rather than at local offices. Other problems, in addition to the one that I have read out, are raised in the letter, for example, certain problems relating to pension schemes. I do not regard these as likely to make the retention of an existing marriage unworkable.
The third argument put forward by the Government is that parties can wait until the civil partnerships Bill is enacted. They could then get a divorce and a full certificate one day, and enter into a new civil partnership the next day. There are two objections to that. First, we cannot yet tell when, or if, a civil partnerships Bill will be enacted. Although I understand that it is the Government's intention to bring one in fairly shortly, there is no guarantee that that will be done. I believe that the Government, understandably and rightly, do not intend to delay the coming into force of this Bill until it is clear that there will be an effective civil partnerships Bill that can be brought into effect at the same time. There is at least a risk that transsexual people who want both a certificate and to maintain a legal relationship with their former spouse will find themselves in a limbo that might last for years or, if something goes wrong with the civil partnerships Bill, if it gets squeezed out by the pressure of other legislation or for some other reason, perhaps indefinitely.
Secondly, and perhaps more importantly, what this very small number of parties clearly wants, if one has read the often very moving letters, is a continuation of the marriage. These people do not want to give up their marriages and enter into a new and quite different legal relationship. These amendments will substantially improve the very difficult situations of, admittedly, a very small number of people and will do so without doing any harm to either the administration of the benefits system or to anyone else. I beg to move.
4.15 p.m.
The Lord Bishop of Winchester: My Lords, I identify myself with everything that the noble Lord, Lord Goodhart, has just said. I thank him and the noble Lord, Lord Carlile, for their graciousness in agreeing to me adding my name to their amendment.
The noble Lord has excellently expressed the needs of this small number of people—I have been made aware of some seven or eight couples, as I think he has. I noted the letter that he quoted from the Minister, but this situation cannot possibly be beyond her well-known skill and ingenuity and that of her officials if they set their minds, as I am sure that it is their nature

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to do, to seeking to assist this tiny group of people whose situation, if the Bill goes through in this form, is simply deplorable; indeed, the proper word is cruel.
if people have committed themselves to a marriage, whether or not out of a religious understanding, of any faith, it is part of the Government's responsibility to sustain that marriage if they wish to sustain it; I have made this point in other circumstances in this House. To force them to be broken apart and then to suggest that they be placed in some other legal relationship which—quite apart from the fact that it does not yet exist—if it were to exist, they do not want, is not a sustainable way of behaving on the part of the Government. I think the Minister knows my reasons for disagreeing with him—I shall not repeat them— that what we are discussing necessarily constitutes a same sex marriage.
I want also to underline the point that the noble Lord, Lord Goodhart, made that there is an extraordinary retrospectiveness in this element of the Bill. We are talking about couples, many of whom have been married for years and a significant number of whom have begotten children and brought them up, in which case children are involved too. I refer to the earlier comments of the noble Baroness, Lady Buscombe, in that regard.
I applaud the fact that the Government are making clear that they do not support same sex marriages. The Minister will know that for me the illogicalities of the Bill in principle are revealed if it says that a marriage which has not been a same sex marriage for many years suddenly at a certain point becomes one. However, that is not the main point at issue here—that concerns a quite unnecessary piece of cruelty. Noble Lords opposite and I are to a great extent in agreement on the matter for similar reasons. I hope we shall hear that the Government have had further thoughts on the matter and that they will not be thrown off course in that regard by looking to the kind and gracious nature of the noble Baroness, Lady Hollis of Heigham, to find a way through the detailed problems.
Lord Cameron of Lochbroom: My Lords, in Grand Committee I spoke in support of this measure. I should like to thank the Minister for the letter that he sent in response to my intervention. I am very grateful to the Minister for what he said in that letter but it still does not cover the concerns that I sought to express, which have been put before the House very forcefully this afternoon by both the noble Lord, Lord Goodhart, and the right reverend Prelate.
I think of the couple who have been happily married as man and wife and one of whom has, as a consequence of the change that we are discussing, become of the same gender as the other. However, both are anxious to continue the marriage with all that goes with it, not merely in terms of a social relationship but also in terms of the legal rights that go with it. What the Government propose is that the courts have to interpolate themselves into this relationship by way either of a decree of nullity in England or a decree of divorce in Scotland. Noble Lords will be well aware
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that a divorce involves the question of division of property. Indeed, one of the issues involved in property is that the property that is to be divided is not necessarily the whole of what each party has. There is something in Scotland called matrimonial property. The consequence of that is there has to be a division of that which the parties do not want to divide in order that they then may, as it were, resume the relationship but call it a civil partnership. It seems to me that that is a very odd way of going about dealing with a problem which exists even now. The Bill will, of course, have consequences for all those who in future undergo the whole process of gender reassignment.
I feel very strongly that issues such as those which have been mentioned by the noble Baroness, Lady Hollis, are matters that we shall have to look at again anyway in another context. Today I received the transcript of a judgment of the European Court of Justice in the case of KB v National Health Service Pensions Agency. The facts are different because in that case they were two persons. One was transsexual in an established partnership. KB was entitled to an occupational pension under the National Health Service, which gave rights to a widower. But the partner, not being married or being capable of marriage, was not so entitled. That is precisely the kind of thing which arises on a decree of divorce. The person cannot be a spouse at the time of death in that relationship. These are the kinds of much deeper factors which we shall have to look at in another context and no doubt will have to make changes to the various schemes and the like which attach to these new relationships brought about by gender reassignment. But for the moment it is enough to say that I strongly support the amendment.
Baroness O'Cathain: My Lords, I disassociate myself from this amendment because I cannot support it for all sorts of reasons. It is one of the trickiest issues in the Bill. One can say on the one hand that we have a Bill which will force divorce and, on the other, that we have a Bill which creates same-sex marriages. Many noble Lords will have received a letter from Janet and Sarah Wood. Clearly, Janet has chosen to reconcile herself to her husband's wish to be a woman. He would like to change his sex in law, but he also wants to remain married to Janet.
Surely, he must choose between being a woman in law and being married to Janet. Many will feel huge sympathy for him, but that is the situation which pertains at the moment before the Gender Recognition Bill becomes an Act. Some have said that they must simply make the choice and some argue that the Bill is already bending over backwards. It might be said that transsexuals in this position want to have their cake and eat it.
Legalising same-sex marriage in law is obviously a step too far even for the Government. That ignores the fact that they are already creating same-sex marriage

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if this Bill becomes an Act, where a person who was born a man will be a woman and will be able to marry a man who was born a man. That is same-sex marriage.
Lord Filkin: My Lords, I am saddened because I thought that I was going to have the opportunity of saying that I agree with everything that the noble Baroness has said. She has spoilt my fun.
Baroness O'Cathain: My Lords, I do not believe that it is fun. We are dealing with it in a slightly light-hearted way, but it is a very serious issue. The Bill allows a biological man to marry another biological man. That is my contention. I know that is not agreed by other noble Lords. Returning to the amendments tabled by my noble friend Lord Tebbit, just because a woman wants to be a man, whatever gender recognition certificate the person has they were born either as a man or woman and they will always be so.
Lord Tebbit: My Lords, the Bill allows two persons to marry, both of whom have borne children and are still capable of bearing children, and who might do so in future. If that is not same-sex marriage then I am deeply puzzled to know what is.
Baroness O'Cathain: My Lords, I thank my noble friend for his intervention. Perhaps I should not have caught his eye at the beginning of what I had to say. The matter is becoming more and more complicated.
There is real concern that if we create same-sex marriages, every other group of whatever kind will say that they want same-sex marriages. The option is simply for people to stay the way that they are and, if they want to go that far, they do not apply for a gender recognition certificate. People may be in a close, harmonious relationship which has existed for 20 or 30 years and they may have two, three or four children and even grandchildren. If they cannot bear the thought of breaking up and divorcing, with the assets being split and the family being torn apart, is it not better that they do not go through the process in the first place? I really cannot support the amendment.
4.30 p.m.
Lord Monson: My Lords, in rising briefly to support the noble Baroness, perhaps I may urge your Lordships to bear in mind the well known maxim "Hard cases make bad law".
Lord Tebbit: My Lords, I recollect that on this issue in Grand Committee, I started by quoting the old adage that our mothers taught us:
"O what a tangled web we weave. When first we practise to deceive!".
I then went on to get myself into a thoroughly big tangle over the difference between dodos and doornails.
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I find this an extraordinarily difficult issue. I take on board entirely what my noble friend Lady O'Cathain said, as I do what I am sure the noble Lord, Lord Filkin, is going to say. But then I think to myself that, in my view, the certificate and the amended birth registration are both lies. They are simply untrue. The individual concerned has not changed sex. I might go so far as to please some other Members of the House by wondering whether he or she has changed gender. But I am sure that the person has not changed sex.
If the individual has not changed sex but, through the process of a perverse piece of legislation, he or she has been issued with a false certificate stating what is demonstrably a lie—that is, not only that that person is not of the sex that he or she is but that he or she never was—where does that take me? It might easily take me to the position where I would say, "There is no ground for annulment because nothing has happened. This man and this woman are still a man and a woman. In that case, why should the marriage be annulled?" That would get me off an awkward hook because I have the greatest sympathy with people who are in that position. I believe that if this matter were to go to a Division, I might plead for extra time so that I could sit here and finally make up my mind as to which Lobby to enter. I hate to say that because it is not a problem that I normally have. Perhaps I am suffering from voting dysphoria.
Lord Skelmersdale: My Lords, the names of Janet and Sarah Wood have already been mentioned in this debate. I was very surprised to see a copy of a letter to them from an official in the Gender Recognition Division of the Department for Constitutional Affairs. That letter, in part, said:
"The issue of what to do with existing marriages is a complex one"—
well, that is what the whole debate is about; of course it is complex—
"and the decision to require that existing marriages should be annulled was not an easy one to make. The Government is not about undermining strong and stable relationships that have survived the upheaval of one of the parties going through the transition to a different gender. It is the marriage that cannot continue, not the relationship".
We are not talking about same-sex marriages here; we are talking about same-sex divorces, which are an entirely different thing. This sparked my interest for a totally different reason. Many of us—most of us, probably—who are present in this Chamber are, or have been, married and we went through the marriage service, part of which, I seem to remember, said:
"Those that God has joined together let no man put asunder".
That is extremely important to me. It is clear that such people and many like them are strong and committed Christians. Why should the law make them divorce? That is the issue.
Earl Ferrers: My Lords, I agree with the comments of my noble friend Lord Skelmersdale, particularly his last quotation. That is what is happening. I am also sympathetic to my noble friend Lord Tebbit, who said that the longer he listens to the debate the longer he

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wants it to continue, so that he can make up his mind. I may not be able to help him with that, but the issue is a deceit whichever way it is looked at. We all know the reasons for it and we have sympathy for them, but it is a deceit. If a person is born a girl and has a birth certificate to say so, but later decides to become a man, the registrar has to say that the certificate was wrong and "You are now a man and you always have been". That is wrong and is a lie. The registrars are being forced by law to make a lie.
What happens if a person who was born a man, decides to change sex and become a woman, but has been living with his partner as her husband? What happens if that man, who is still biologically a man, contracts and subsequently dies from, for example, cancer of the testicles? What does the doctor put on the certificate—that the woman has died of cancer of the testicles? That is curious and one of the sort of absurd cases that will emerge. It comes back to the basic point of my noble friend Lord Tebbit—it is a deceit whichever way one looks at it.
Lord Lucas: My Lords, I support the amendments, yet I find myself supporting my noble friend Lord Tebbit at the same time. I agree entirely with my noble friend Lord Skelmersdale. The key is the sanctity of marriage and the vows that are taken and supported by the state at the time of marriage—although I am still annoyed that I was not allowed to use the Anglican vows of marriage in my civil marriage service, which was an affront that I may attack on another occasion. People are married on the basis of "'til death us do part", or many of us are, and that is the basis on which marriage holds its privileges and should be respected. There are other circumstances where marriage has caused problems. There was another such problem of gender recognition when the Church of England agreed to have women priests, which led to some male priests moving to the Roman Catholic faith. They were accepted as priests with their wives, despite the rule that Roman Catholic priests are forbidden to marry. However, the sanctity of marriage was respected. It was the right decision although it created a class of married Catholic priests who could not have first become Catholic priests and then been married.
Marriage involves an important set of vows. It is an important relationship and should not be broken in such a way—even if it involves surgery. So what? A person who has his testicles shot off is not then compelled to become unmarried. It is a matter of tiny importance compared with the importance of the vows that have been taken. As my noble friend Lord Tebbit says, the reality is that they are still a man and woman married to each other, whatever they may call themselves or whatever lie may have been put on the statute book and the birth certificate. To separate and destroy that, when both parties wish to continue with the commitment that they have given, is entirely wrong.
Baroness Buscombe: My Lords, I did not take part in the debate during Grand Committee. I want to make it
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clear that, bearing in mind that members of the Conservative Party have a free vote on all aspects of the Bill, I am offering my personal view of the matter.
At Second Reading, I said that to legislate for divorce goes very much against the grain. I suspect that I speak for all noble Lords on that and all will have great sympathy with the view of the right reverend Prelate the Bishop of Winchester in that regard. However, these amendments, if accepted, would mean in law same-sex marriage. That is clear and I cannot accept or support it.
I am sure that all noble Lords have sympathy for everyone who has written in. Several have referred to Janet and Sarah Wood, who wrote to a number of noble Lords. In their letter, they say:
"To allow such marriages to continue will not undermine the principle against same-sex marriage any more than the main thrust of the Bill for allowing transsexual marriages".
That simply is not true. There is a point which I am sure the Minister will make clear in response. It is that if people like Janet and Sarah really do not want to divorce, they have a choice: they do not have to undertake this process; they do not have to seek legal gender recognition. I accept that it compromises what they had sought to succeed in through the process of this legislation, but there is that strong element choice. As my noble friend Lady O'Cathain commented, they can continue just as they are. I support everything my noble friend said.
In any event, I am more persuaded by the Minister, the noble Baroness, Lady Hollis, than by the noble Lord, Lord Goodhart, with regard to the enormous difficulty of creating a whole system of welfare and benefits for what in fact will be a small number of people.
I return to relying on our obligations under the ECHR. Perhaps it is because I am a lawyer and because of those obligations that I am just able to justify what we are doing in passing this legislation.
The Lord Bishop of Chester: My Lords, perhaps I may speak from these Benches with just a touch of Episcopal dysphoria. I do not quite agree with my noble friend the right reverend Prelate the Bishop of Winchester. He was sorry to have to leave for a diocesan appointment this evening. It is such a difficult issue.
I believe that it comes down to which decision would best uphold the dignity and institution of marriage in our country. We are caught between our absolute sympathy for the individuals concerned, which the noble Lord, Lord Goodhart, and my noble friend expressed, and an unholy alliance. They come at the issue from totally opposite points of view, which reminds one of some of the alliances we hear about in the other place between those on the more Right-wing Conservative Party and those on the more Left-wing of the Labour Party.
What will uphold the dignity of marriage by making every concession, which our emotions draw us to do, to the small number of individuals who are affected? Will we simply put one more nail in the coffin of the

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institution of marriage and the way it is perceived in society at a time when the institution of marriage is under huge pressure? That ultimately leads me to the position expressed by the noble Baronesses, Lady Buscombe and Lady O'Cathain.
I have an anxiety that to agree to these amendments now might subtly pre-judge some of the debates that need to happen under the civil partnerships Bill. The Government's consultation papers have gone too close to the notion of same-sex marriage in the way that has been set out. That representation has been made by the Churches—it is not just me saying it now. When that Bill comes before us, there is a real discussion to be had as to how civil partnerships are to be construed.
I speak as someone who is very much in favour of having a system of civil partnerships in our country to remedy injustice and bring better order into our social relationships. But the devil is in the detail in that Bill as to how those partnerships are construed. If we agree to this amendment, we could be seen to be pre-judging some of those discussions.
4.45 p.m.
Lord Tebbit: My Lords, I am grateful to the right reverend Prelate. I think that he has just about brought me back on side.
Lord Filkin: My Lords, this is one of the really difficult issues. I find it even more difficult because part of the privilege of being a Minister for such a Bill is that at times it is important to meet people who feel passionately about these dilemmas. Therefore, in a number of meetings people have explained to me their passionate feelings about wishing to have the gender change and, at the same time, the status of marriage. I have had the unpleasant duty—I believe this is right as well as being our policy—to look them in the eye and say, as I said at Second Reading, "We are not going to do that".
The reasons why we are not going to do that have already been stated, eloquently and clearly, by the noble Baronesses, Lady O'Cathain and Lady Buscombe, and by the right reverend Prelate the Bishop of Chester. Fundamentally, marriage means something to everyone in our society—a legal union between a man and a woman. It is a sophistry to play games and to pretend that because one does not think that the Bill is a good Bill, in some sense the two people are not married and so we can pretend that it is not a same-sex marriage. In law the position is absolutely clear: if the state, through the processes that the Bill sets out, gives legal recognition to a change of gender, then that will be, in law, the gender of that person. If we allow a marriage to continue we shall allow a same-sex marriage to continue.
One could argue that this concerns only 50 people, but I am sorry, that will not do. We are not going to allow same-sex marriage; I said that very clearly at Second Reading and that is our position. However, we shall do our utmost to make the process of change, for those who wish to continue a close relationship into the future, clear and possible. They will have to have a
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divorce; and they will receive an interim gender recognition certificate which will be turned into a final gender recognition certificate only after they have been through the divorce courts and received a divorce.
We also signalled at earlier stages of the Bill that we intend to bring in the civil partnership Bill. When that is enacted, if people so wish, they can have a legal relationship, sustaining their emotional relationship, but it will not be marriage. On the timing of that, we intend to bring that Bill into the House as a substantive Bill before Easter and, if it passes, it will become legislation and implementable by about October 2005. This Bill, if and when it passes, will become legislation by April 2005. Therefore, there will be a short gap of some six months between our best forecast of when the two Bills will be in place. Those who do not want to go into a legal limbo, awaiting civil partnership, after their divorce as a result of gender change recognition, will not need to do so; they can wait until the civil partnership process is in place. They will still be able to have the fast-track process of gender recognition, of which we have spoken. As noble Lords will know, in later amendments we shall allow the fast-track process to run for two years.
Therefore, we come back to the point that we are not forcing people to get divorced. We are giving them a choice, which is what the state should do in such a situation. It should say to people who believe fundamentally that they have a discontinuity in their gender, "We are giving you the option of legal recognition of your change of gender; you can take that if you want to; we are not forcing it on you, but you cannot pick-and-mix; you cannot have both at the same time; if you want to stay married you can"—God bless them; long may they do so—"but you cannot have gender change". If they want gender charge that is their choice. There will be a facility for doing so. But they cannot stay married at the same time. That is the Government's position which we shall stay with. For those reasons—with concern for humanity, respect for the people who move the amendments and understanding of the pain of people in that situation—I believe that that is a right and principled position.
Lord Goodhart: My Lords, it has been an interesting debate to which many noble Lords have made contributions about which they feel strongly. I respect the views of everyone who has spoken.
I welcome the fact that the amendment received support from the Bench of Bishops, the Cross Benches and the Conservatives Back Benches. I regret that the right reverend Prelate the Bishop of Winchester—for reasons he explained to me—has had to leave in order to attend a function in his diocese.
I found the objection of the noble Baroness, Lady O'Cathain, somewhat difficult to understand. She plainly regards a gender change as not having taken place. Therefore, there should surely be no obstacle to people remaining married who were married in the birth gender of both of them.
Baroness O'Cathain: My Lords, I thank the noble Lord for giving way. That is not the point. I certainly

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did not want to force divorce. But individuals do not have to go down the gender recognition route. They can stay married with their own family surroundings and behave exactly as they do now. Were it not for this Bill, this future as regards divorce would not face them.
Lord Goodhart: My Lords, perhaps I may respond to the speech of the right reverend Prelate the Bishop of Chester. He clearly regards it as a difficult issue, as I do. He thought that the sanctity of marriage was best preserved by the defeat of the amendment.
The Lord Bishop of Chester: My Lords, I do not think that I used the term "sanctity of marriage" but referred to the social standing of marriage. That is a slightly different concept regarding the place of marriage in our society. However, I shall not delay the noble Lord unnecessarily.
Lord Goodhart: My Lords, if the right reverend Prelate is right, the couples who are now married but where one of them wishes to change gender will divide into three classes. The first will be people who decide to retain their marriage and forgo a gender recognition certificate. They would have retained their marriage anyway. The second group will be those who divorce and enter into a civil partnership. That means giving up a marriage which is recognised by Christians as a sanctified relationship and entering into an unsanctified relationship. The third group will divorce and enter into no form of new relationship. None of those solutions advances or protects the role of marriage in any way. In this case I would much prefer to see the marriage continuing.
I have made the arguments for the issue. It is one on which I feel strongly and on which Members of my party, as well as others, have views, which they are—of course for reasons of conscience—free to express. But on this issue, I wish to test the opinion of the House.
4.55 p.m.
On Question, Whether the said amendment (No. 28) shall be agreed to?
Their Lordships divided: Contents, 33; Not-Contents, 120.

Division No. 1

CONTENTS

Addington, L. [Teller]

Greaves, L.

Avebury, L.

Hamwee, B.

Barker, B.

Harris of Richmond, B.

Bradshaw, L.

Lucas, L.

Cameron of Lochbroom, L.

Maddock, B.

Campbell of Alloway, L.

Mar and Kellie, E. [Teller]

Carlile of Berriew, L.

Miller of ChilthorneDomer, B.

Clement-Jones, L.

Newby, L.

Crickhowell, L.

Razzall, L.

Dholakia, L.

Rea, L.

Geraint, L.

Rennard, L.

Goodhart, L.

Roper, L.

404

Sandwich, E.

Thomas of Gresford, L.

Seccombe B

Thomas of Walliswood, B.

Sharp of Guildford, B.

Thomson of Monifieth, L.

Skelmersdale, L.

Tordoff L

Walmsley, B.

NOT-CONTENTS

Acton, L.

Hilton of Eggardon, B.

Allenby of Megiddo, V.

Hodgson of Astley Abbotts, L.

Amos, B. (Lord President)

Hollis of Heigham, B.

Andrews, B.

Howe, E.

Archer of Sandwell, L.

Hoyle, L.

Bach, L.

Hughes of Woodside. L.

Bassam of Brighton, L.

Hunt of Chesterton, L.

Berkeley, L.

Hylton, L.

Bernstein of Craigweil, L.

James of Holland Park, B.

Blackstone, B.

Jenkin of Roding, L.

Blackwell, L.

Joffe, L.

Bledisloe, V.

Lea of Crondall, L.

Borrie, L.

Listowel, E.

Bragg, L.

Liverpool, E.

Buscombe, B.

McColl of Dulwich, L.

Byford, B.

Mcintosh of Haringey, L.

Carlisle of Bucklow, L.

MacKenzie of Culkein, L.

Carter, L.

Marlesford, L.

Chalfont, L.

Marsh, L.

Chalker of Wallasey, B.

Massey of Darwen, B.

Chan, L.

Mitchell, L.

Chester, Bp.

Monson, L.

Chorley, L.

Montrose, D.

Clinton-Davis, L.

Moynihan, L.

Colwyn, L.

Murton of Lindisfame, L.

Cope of Berkeley, L.

Neill of Bladen, L.

Corbett of Castle Vale, L.

Newton of Braintree, L.

Craigavon, V.

O'Cathain, B.

Crawley, B.

Ouseley, L.

DarcydeKnayth, B.

Palmer, L.

Davies of Coity, L.

Perry of Southwark, B.

Davies of Oldham, L. [Teller]

Pitkeathley, B.

Denham, L.

Puttnam, L.

Desai, L.

Ramsay of Cartvale, B.

Dixon-Smith, L.

RendellofBabergh, B.

Dubs, L.

Renton, L.

Eatwell, L.

Rotherwick, L.

EdenofWinton, L.

St. JohnofBletso, L.

Elder, L.

Saltoun of Abernethy, Ly.

Erroll, E.

Sawyer, L.

Evans of Temple Guiting, L.

Shaw of Northstead, L.

Farrington of Ribbleton, B.

Sheldon, L.

Faulkner of Worcester, L.

Simon, V.

Feldman, L.

Simon of Glaisdale, L.

Ferrers, E.

Soulsby of Swaffham Prior, L.

Filkin, L.

Stevens of Ludgate, L.

Finlay of Llandaff, B.

Stoddart of Swindon, L.

Gavron, L.

Strathclyde, L.

Gilbert, L.

Swinfen, L.

Glentoran, L.

Symons of Vernham Dean, B.

Goldsmith, L.

Tebbit, L.

Gordon of Strathblane, L.

Thomas of Gwydir, L.

Gould of Potternewton, B.

Triesman, L.

Grabiner, L.

Turnberg, L.

Gray of Contin, L.

Walpole, L.

Grenfell, L.

Whitty, L.

Grocott, L. [Teller]

Wilcox, B.

Harris of Haringey, L.

Williams of Elvel, L.

Harrison, L.

Windlesham, L.

Hayman, B.

Winston, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.5 p.m.
[Amendments Nos. 29 to 32 not moved.]
Schedule 2 [Interim certificates: marriage]:
[Amendments Nos. 33 to 41 not moved.]
Clause 5 [Subsequent issue of full certificates]
[amendment No. 42 not moved.]
Clause 6 [Errors in certificates]:
[Amendment No. 43 not moved.]
The Principal Deputy Chairman of Committees (Lord Grenfell): My Lords, I call Amendment No. 44.
Lord Tebbit Lord Tebbit moved Amendment No. 44:
Page 4, line 7, leave out from first "person," to "for" in line 8 and insert "an application may be made"
The noble Lord said: My Lords, I hope I shall be excused for my slight lateness; it is a hangover from finding it so difficult to know which way to vote on the previous amendment.
Turning to the amendment, it seems to me that it would be right for persons other than the Secretary of State to make such an application. We debated that in Grand Committee and, afterwards, I tried to find another way to write an amendment that would allow someone other than the Secretary of State who had reason to believe that a certificate had been issued on a false premise to seek to have it amended.
The noble Lord, Lord Filkin, suggested that the clause was not the right place for the provision, because it was concerned with amending minor—what I described as bureaucratic—details. I see the force of that argument, but hope that he will see the force of the argument that there should be some way by which persons other than the Secretary of State who have cause to believe that the certificate was issued on a false basis could apply to have it amended or overturned. I beg to move.
Lord Filkin: My Lords, I shall not repeat all our discussion in Grand Committee. The noble Lord, Lord Tebbit, has helpfully focused on the thrust of his concern. As I probably said in Grand Committee—I am racking my brains to recollect it—I have not yet seen the force of the problem. I agree with the noble Lord that it is right and proper that there should be a process for inspecting, addressing and, if substantiated, redressing a fraud that someone discovers. However, such a process will exist because Clause 8 contains provision for quashing fraudulently obtained certificates.
I therefore genuinely believe that if evidence is brought to the Secretary of State that a fraud has been committed, he would be obliged to inspect the case and decide whether to exercise his powers under the clause. I should like to reflect further on that. It may be efficient for us also to have a few words to see if he would tell me what he thinks is wrong with that process or whether there are things that I can say to emphasise how that process would operate. I am with him on
406
principle, but am struggling to see how the current legislative framework does not achieve the objective that he and I want. Can I leave that invitation to him?
Lord Swinfen: My Lords, before the Minister sits down, if such an application was necessary, to whom would that application be made? I am not clear on that.
Lord Filkin: My Lords, the Bill specifies that the application would be made to the Secretary of State.
Lord Tebbit: My Lords, I am most grateful to the noble Lord. It seems to me that the nub of it is whether the application should go direct to the panel or to the Secretary of State who, if he thought there was a case to be made, obviously after discussion with the panel, would seek to quash the certificate under the powers in, I think, Clause 8(5). On the basis that he said that he would turn his mind to it, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Applications: supplementary]:
[Amendment No. 45 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 46.
Page 4, line 25, leave out from "amount" to "for" in line 27 and insert "prescribed by order made by the Secretary of State unless the application is made in circumstances in which, in accordance with provision made by the order, no fee is payable; and fees of different amounts may be prescribed"
On Question, amendment agreed to.
Clause 8 [Appeals etc.]:
[Amendments Nos. 47 to 48 not moved.]
Clause 9 [General]:
[Amendment No. 49 not moved.]
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 50.
Page 5, line 13, leave out "all purposes" and insert "the purposes of this Act"
The noble Baroness said: My Lords, I return to this issue of Clause 9 and its blanket assertion that a person who gets a gender recognition certificate changes sex in law "for all purposes". It is notable that the Government chose to call this the Gender Recognition Bill, "gender" being a political term favoured by sociologists who like to think of one's sex as a fluid concept and something which can be changed. "Gender" is the word used to write most of this Bill.
However, in Clause 9 where it really counts, the word used is "sex". In law it is a person's sex that is said to change. In Committee we have had all the arguments about how ludicrous it is to suggest a person can change sex, but the Government are determined to legislate for it. However, it is not yet clear why it is that a person's sex must be changed in law for all purposes. I fear that if we leave this clause in, the law of unintended consequences will occur in spades. Who knows what speculative litigation could be launched by a person with a gender recognition certificate on the basis that he should, for all purposes,

407
be recognised as a woman? Sadly, some transsexuals seem to be extremely litigious, and very anxious to use the law to try to force other people to accept them in their chosen sex. It may be that they have felt excluded for many years and then, having got what they think they want, wish to parade it. I think it is probably a human failing, but that seems to be the way it happens.
The reason we are here with this Bill is that Christine Goodwin insisted on pressing his case all the way to the European Court of Human Rights. Before him we had Rees, Cossey, Sheffield and Horsham all of whom sued all the way up to Strasbourg. The Government believe that they have to conform to the ruling in Strasbourg. Do they need to go so far that, in UK law, for all purposes, a person's sex is changed? Is that the case in all 14 other European Community states, or are we, once more, gold-plating? I need not explain to your Lordships what "gold-plating" means. We seem to have been doing it for ever. I base that statement on all the experience that I had in the agriculture sector many years ago.
Once the Bill becomes an Act, a man really will become a woman in law. On the second day in Grand Committee, I gave the example of the BBC programme:
"At the moment there is an example in the news of a BBC programme in which a transsexual man was referred to as a man. Press for Change, the transsexual rights group is campaigning for the BBC always to refer to transsexuals in their chosen gender".
That is even before we have the Gender Recognition Act. I also said:
"That is indicative of the Orwellian nightmare that the Bill encourages. Will people who refuse to call a transsexual man a woman routinely face that kind of hostility? Given what we established yesterday"—
the first day of Grand Committee—
"which is that the Government believe that many people change their minds and revert to their real gender, or oscillate between the two"—
I must qualify that once more by saying that the Minister did not say "many"; it was the joint working party to which I referred earlier today—
"how are people to know which gender a person wants to be known as at any particular time? I say again that it is absurd to say that a man can become for all purposes a woman or vice versa".—[Official Report, 14/1/04; col. GC 64.]
There are recorded instances in the United Kingdom of individual transsexuals using legal threats to intimidate people into accepting their change of sex. Only last week, Elizabeth Bellinger, who took his case for recognition as a woman all the way to your Lordships' House threatened legal action against the Christian Institute. The institute published a briefing describing Mr Bellinger as a man, and Mr Bellinger says that that is libellous.
The Government seem to think that all transsexuals are delightful, kind and tolerant. Most people are delightful, kind and tolerant, but we cannot accept that transsexuals are different from any other sector of the population and that there are not some who are nasty, unkind and intolerant. The Bill potentially hands the more aggressive transsexuals a legal stick
408
with which to beat those who disagree with them. We must do more to limit the scope for vexatious litigation. We must do more to prevent the courts running amok with the legislation, forcing it to new extremes of which, no doubt, the Minister would disapprove.
Later at this stage, I shall come back to crucial issues of religious liberty in respect of which clear, unambiguous protections must be put in the Bill. In the mean time, I move the amendment to find out from the Minister the purposes for which a person's sex changes. Why must the provision be so broad? Why must it make an assertion that not only conflicts with common sense but could be used in whole areas of law to force acceptance of a person's sex change on unwilling conscientious objectors? Why cannot Clause 9 say simply that the legal change is only for the purposes specifically enumerated in the Bill, which is, after all, pretty comprehensive? I beg to move.
5.15 p.m.
Lord Carlile of Berriew: My Lords, in making the argument for her amendment, the noble Baroness chose, one assumes, to describe several people known to me as nasty, litigious people.
Baroness O'Cathain: My Lords—
Lord Carlile of Berriew: My Lords, she used the word "nasty". I remind the noble Baroness, if she will bear with me, of the grotesque unfairness of what she said. Some of the people she cited went to law to obtain precisely that right which, it is to be hoped, this Bill will give them. Some of those people went to law and actually won in the end, but not in their own individual cases. We are talking about only a handful of cases, which resulted in one crucial victory in the European Court of Human Rights.
I invite the noble Baroness, when she responds to the debate, to withdraw what I am afraid is the slur that she has cast upon people such as Goodwin, and Mr Rees, who is very well known to me. I invite her to reflect upon the fact that it is she—and she has used her pronouns in a way that demonstrates it—who cannot accept the legislative purpose of the Bill and that it is colouring her view of those honest people who disagree with her and have fought for their rights.
This is a House, above all, that should support people who are prepared to go through difficult litigation in support of their rights. I have never advised in such a case and I have never appeared in such a case, but I have seen some of the papers in such cases. In every one of those cases, advice has been given by some of the most eminent international lawyers in this country that there was a reasonable prospect of success. The funding of the cases depended upon such advice, and the cases were brought on that basis.
I reject the argument that the noble Baroness makes in favour of her amendment.
Lord Elton: My Lords, I think the noble Lord is slightly mistaken about what my noble friend said. It

409
was not that these individuals or that the whole of this class were nasty or whatever other adjectives she used, but that they did not differ from the rest of society in the proportion who were either good or bad, in those terms. Therefore, it was not quite the black-tarred brush to which the noble Lord refers.
Lord Carlile of Berriew: My Lords, I am certainly prepared to accept that it may not have been quite the tarred brush to which I referred. Of course I will read the noble Baroness's words with great care. I will be the first to apologise if I have misunderstood either the words or the import of those words, but at the moment, I am afraid, I will take some persuading.
The noble Baroness is missing the whole basis of legislation. Legislation does not change our consciences at all—it merely confers legal status. When it says in the Bill "for all purposes", it means for all legislative purposes. We cannot change the cast of the noble Baroness's mind, if that is the cast she chooses to adopt on this issue. It can be cast in bronze, indestructible. I would not pretend that I could destroy the indestructible cast in her mind on this issue.
Please may we at least have some intellectually sustainable argument on these points? It is my belief—and I regret having to say this, but I feel extremely strongly about the way in which the argument is put—that we have not had intellectual robustness on this point; we have had an amendment presented on an entirely untenable basis.
Lord Campbell of Alloway: My Lords, I support my noble friend. I do not pretend to know much about sex changes; I really came here to support Amendments Nos. 99 to 101 and to support the exception of religious bodies. However, I have listened to the argument and knowing, as I say, not very much about sex changes, it seems to me that we cannot be concerned with whether people are nasty or litigious or whether they receive advice from distinguished international lawyers. I was rather upset at the way in which my noble friend Lord Carlile put his objections, but that is beside the point. What matters is not the way in which objections are put or exactly the way in which the case is put for the amendment, but what the legislation actually entails. That is what I find difficult to understand.
I have never seen a statute quite in this form before. The Bill says "becomes for all purposes", and it is not limited to the purposes of the Act. I do not understand what all the purposes are if they are other than the purposes of the Act. If they are other than the purposes of the Act, why are they dealt with in the statute? I hope that I am not being tiresome, but I feel that this is a curious way in which to legislate. I listened to my noble friend's argument, and it seemed to me to make total sense. If one casts aside irrelevant considerations about the quality of the persons that we are talking about, which is really nothing to do with the Bill, I suggest with respect that the amendment should be accepted.
Lord Filkin: My Lords, I sought to set out in Committee that the Bill's basic principle is that the
410
issue of a gender recognition certificate by the judicial panel would mean that a person's gender becomes for all purposes in law the acquired gender. That is in truth the absolute heart of the Bill; in essence, after the process of inquiry and testing, which we have discussed at length today, when or if the panel comes to that conclusion that the tests set out in the Bill have been met, the person's gender in law becomes for all purposes the gender as granted by the Act. That is the central thrust of the Bill.
Clause 9 allows for relative simplicity in the Bill itself. It contains a general proposition about the effects of the issue of a full gender recognition certificate and hence avoids the need to spell out each and every instance in law for which gender is relevant. Why does that matter? It matters because, pretty obviously, we have been legislating for hundreds of years with reference to gender. There are literally thousands and thousands of references to gender in legislation.
There is nothing malign here. In a sense, this is the reverse of our previous debate about marriage. The intent of the Bill is that if gender has been changed and a person is recognised in law as a woman as a result of the process, they are a woman for all legal purposes relevant in other legislation.
Lord Campbell of Alloway: My Lords, does the Minister mean for all purposes recognised by law?
Lord Filkin: My Lords, I do exactly, yes. That may be of some slight comfort. For example, because there is reference to pensions and benefits within the Bill, it is clear and transparent that the Bill would apply to pensions and benefits. However, if we passed the amendment, it would mean that the Bill would not apply to all the other thousands of situations in which gender was recognised and which had a relevance in law. That would mean legal chaos, which I do not believe was the intent of the noble Baroness, Lady O'Cathain, with this amendment. Her amendment at heart goes into issues that we shall discuss later relating to the social or religious situations in which it is or is not legitimate to discriminate. Without prejudging those issues, we shall come to them; it is important that we test them.
Lord Monson: My Lords, the Minister said that if the Bill became law a man who changed his sex would become a woman for all legal purposes. Is it not the case that the Bill provides that he will not be entitled, if he becomes a woman, to start drawing his pension at the age of 60? So it is not really for all legal purposes.
Lord Filkin: No, my Lords, not so. He would become entitled to draw his pension at the age at which a woman can, so it is an exact parity. We have sought to make that clear because it seems to us that there should be an absolutely clear, black and white position. It works both for and against people, but it follows the gender.

411
I turn to the question of the noble Baroness, Lady O'Cathain, about what other countries do. All the other members of the Council of Europe, not the European Union, with the exception of Ireland and Albania—we found one more—already have a recognition system in place. Not all countries have passed legalisation to enable gender recognition to occur. Some rely on the courts or on administrative processes. Our laws and constitutional arrangements quite properly require us to legislate to require recognition of the acquired gender.
We touched on the question of whether we are gold-plating. The European Court of Human Rights made t quite clear that the recognition of a change of gender meant recognition of a new gender in law. The court specifically mentioned the areas of birth registration, access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance. We can ensure compliance with international obligations only by ensuring that a person has recognition for all purposes. To avoid doubt, even if we did not have that obligation, we would want, as a position of policy, to be consistent on this. I shall say no more on that.
The noble Baroness also asked whether people who refuse to call a gender-changed man by the changed gender would be open to action. No, they would not, unless they had information about the person's gender history in an official capacity and they disclosed it otherwise than is allowed for by Clause 21.
We shall come to some of the other issues later on in our discussions and I hope that the noble Baroness will withdraw at this point.
5.30 p.m.
The Earl of Erroll: My Lords, before the Minister sits down will he say whether, if a man changed his gender at 60, to claim a pension early, and then changed it back at 65, it would be regarded as fraud?
Lord Filkin: My Lords, if a man changed his gender to a woman at 60 he would not be able to change it back to a man at 65, unless the tests set in law by the gender recognition panel were met. As we have signalled in previous discussions on this very small proportion of cases, the panel would look very closely at whether the tests were met: that there was gender dysphoria and a permanent intention and that they had lived in the changed gender for two years. It would be fraud if, as a result of that process, it came to light that evidence that he had given to the panel as part of the first application had been dishonest. In theory, the fact that he had applied to change back would not automatically mean that there was fraud. It would depend upon whether he had given fraudulent information to the panel.
Lord Marlesford: My Lords, would the Minister have been able to accept my noble friend's amendment
412
if she had used the words of my noble friend Lord Campbell; that is, "all purposes in law"? Would he have found that satisfactory?
Lord Filkin: Yes, my Lords.
Baroness O'Cathain: My Lords, I would like to thank practically everyone who took part in this debate. I shall start by referring to what the noble Lord, Lord Carlile, said. Frankly, he wholly misrepresented what I said. I did quote the names because I said they were litigious. I also said that one should not think that some people are litigious for the right reasons at times. I never said anything about the people who had litigated. I said that, like in the rest of the population, there are some nasty, vexatious, and all the rest of it, people. I definitely said that. Then I was accused of having a mind cast of bronze. He said that I would never be moved. I think that that is most unfair. I hope that the noble Lord, Lord Carlile, will reflect on what he said. If he knows anything at all about me, he knows that I am very ready to listen to arguments and that I do change my mind—it is, they say, a woman's privilege, although I do not back that. The reality is that I do listen to the strength of the arguments. The opinion of Lord Carlile, as expressed in your Lordships' House tonight, is that I am absolutely immovable—that I get hold of one set of ideas and am not prepared to budge. That is quite wrong.
I say to the noble Lord, Lord Carlile, that third party interests are involved. I refer to litigation that has been instituted against religious bodies, which I shall discuss on later amendments. The Christian Institute is being sued. There seems to be no compassion in the noble Lord's mind regarding those who have been sued by transsexuals. It occurs to me that perhaps the only people we are worried about are transsexuals. We want to be sympathetic towards transsexuals and we want them to be embraced by the whole of society. We want them to be content as they have obviously undergone a huge amount of trauma. I do not want to say that transsexuals experience mental problems as I shall be taken to task on that, but I appreciate that they experience unease and lack calmness. We want to try to avoid that situation. I am the first to say that we accept that these people are genuinely worried about their situation and that we must do what we can for them.
I return to the amendment. I thank my noble friend Lord Campbell of Alloway and particularly my noble friend Lord Elton for standing up for me. I also thank my noble friend Lord Marlesford. I should also like to thank the Minister very much. We had a bit of a canter round this course yesterday afternoon. I gave him notice of the points that I intended to make with regard to the practice in various countries. It is interesting to know that there are only two countries in the Council of Europe, Ireland and Albania, that do not have a system in place vis-a-vis gender recognition and that they would approach the matter on a case-by-case basis. I have a lot to do with one of those countries but nothing to do with the other. I can see the merit in that approach.

413
I am still very concerned. I shall read everything that was said. I was slightly knocked off course by the first contribution to the debate after I sat down. Therefore, I am not perhaps doing justice to what the Minister said. However, I shall read what he said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 51 and 52 not moved.]
Clause 10[Registration]:
[Amendments Nos. 53 and 54 not moved.]
Schedule 3 [Registration]:
Lord Tebbit Lord Tebbit moved Amendment No. 55:
Page 17, line 18, leave out "not"
The noble Lord said: My Lords, Amendments Nos. 55 to 67 relate to Schedule 3. They are all designed to reverse the duty of secrecy placed on the Registrar General.
It seems to me that in logic the amendment to the birth certificate of an individual who is judged to have changed gender should be dated on the date on which that event occurs. It seems to me fundamentally wrong that it should be dated at the date of birth of the individual. This Bill, of course, legislates otherwise. That persuades me all the more strongly that there should be on grounds of public interest a general right to know that the register of births has been amended. The register of births is itself a public document. It is a document of record, of fact. It seems to me that it should not be allowed, or required, that an amendment to it should be secret.
Amendment No. 114 would amend Clause 21 and would provide a public interest defence for a person who discloses information in addition to that listed in subsection (4). Again, it seems to me that there is a public interest issue here. We should not penalise a person who comes across information in the way described in Amendment No. 114 and who then realises that in his view it is in the public interest that it should be disclosed. We should provide a defence for him to do that and he should not be penalised for it. It should be for a court to decide whether it was a genuine belief that it was in the public interest which caused him to disclose. We went around this matter very briefly in Grand Committee when I was unable to be present. I believe that the Minister did not go very deeply into the arguments against these amendments at that stage. I beg to move.
Lord Elton: My Lords, I support the point that my noble friend made. A certificate which does not in any way reveal the fact that it is different from the one issued at birth is mendacious. It is making a false statement in law. It is extraordinary that we should be asked to do that. If I am wrong I apologise, but if I am right I am adamant.
Lord Chan: My Lords, the information is important particularly if there has been a change in gender from the medical viewpoint. Let us take the example of a person who says that he is male and is in fact female from the point of view of the chromosomes. We know
414
of a rare but dangerous syndrome of people who have been transfused with blood from women and there is a transfusion reaction. It is an interesting fact which has come to the notice of blood transfusion services and of clinical haematologists.
Therefore, as regards health the original birth certificate should be produced because it will determine whether we are dealing with a man or a woman. There is a transfusion reaction which arises particularly when a woman has had one or two children. I accept that this reaction to female blood is exceedingly rare. But it has been recorded in the United Kingdom in about 50 cases. On medical grounds there is a need for a person who has received a gender recognition certificate to disclose what their sex was at birth.
Lord Goodhart: My Lords, despite the fact that the noble Lord, Lord Tebbit, almost supported my recent amendment, I am unable to support his. In this case it is important that people who are transsexuals should be entitled to privacy. It is a condition which attracts a good deal of hostility. In many cases there will be a fairly large circle of the transsexual's friends and family who will know anyway. No doubt it will be a matter of general knowledge. But it is not desirable that the ability to find out facts of this kind should be increased.
I am particularly concerned about Amendment No. 114, which adds another defence to prosecution for disclosure under Clause 21. It seems to me that it is plainly right that people who come by information about transsexuals in the course of their official business should not be allowed to make disclosures of it except in clearly controlled circumstances. I do not consider that a subjective belief that disclosure is in the public interest would be a satisfactory ground for exemption from the criminal penalties.
5.45 p.m.
Lord Campbell of Alloway: My Lords, I am not happy with the amendment, and was about to say so for the reasons given by the noble Lord, Lord Goodhart, concerning the protection of privacy. He put it so much better than I could have done. However I am particularly worried about a gender recognition register being open to certain sections of the press which could well, apart from the medical considerations, use it for wholly improper purposes with total impunity as a public document. I am worried about the amendment.
The Earl of Erroll: My Lords, we legislate against many things that we dislike, such as racial discrimination and discrimination of many other kinds, but we have not tried to rewrite the fact of what people are—that is, we have not tried to redefine people as being something else. It concerns me that we are trying to turn matters of fact into something else One cannot legislate to change history, but that is the effect of what we are doing. Once we start down that path, what else shall we redefine retrospectively?
Baroness Hollis of Heigham: My Lords, these amendments were spoken to in Committee by the noble Baroness, Lady O'Cathain. Essentially, they state that other people should be entitled to know about a person's change of gender, that all new birth certificates should be marked to indicate that a change in gender has taken place, and that the gender recognition register should be open to public inspection. In addition, Amendment No. 114 states that that information can be disclosed if the person disclosing it believes it to be in the public interest to do so.
Perhaps I may quickly respond to the precise point raised by the noble Lord, Lord Chan. Guidance will explain to transsexual people the medical risk that he mentioned—I am pleased that he did so—and it will state that they must make the risk known when presenting to hospital. The same protection applies to a person who is, say, allergic to penicillin. However, if the noble Lord feels that that is not a sufficiently full answer, we shall be happy to engage in correspondence with him on how to provide the medical protection that we all agree is necessary in those situations.
Lord Swinfen: My Lords, perhaps the noble Baroness will be kind enough to give way. She is saying that the person who has changed gender should advise the hospital. But what is the position if people are taken into hospital unconscious and are unable to advise those who are looking after them or if they have a mental problem which, again, means that they are not in a position to give such advice?
Baroness Hollis of Heigham: My Lords, the situation may be no different from that of someone who is at risk of being allergic to penicillin but is not able to disclose that information. However, as I said, because this is a very precise point and because I very much respect the concerns raised by the noble Lord, Lord Chan, on this matter, we shall try to give a general assurance through guidance. I am happy to follow up this matter to make it more robust as obviously no one wants the type of situation anticipated by the noble Lord, Lord Swinfen, to arise. However, it is not unknown, in a whole range of circumstances, for medical practitioners not to know about a problem that a patient may have if he is unconscious or has a severe mental health difficulty. Established protocols exist to deal with that situation.
The Earl of Erroll: My Lords, I do not believe that that was the point raised by the noble Lord, Lord Chan. It is not the people who have changed gender who will be at risk; the point is that they will pose a risk by giving blood to a third party. They may give blood and wish to conceal their gender change, thereby putting a third party, who knows nothing about it, at risk. If it were the other way round, I would not have a problem.
Baroness Hollis of Heigham: My Lords, I was trying to cover both contingencies. The noble Lord, Lord Chan, raised the question of the risk to another person—a matter which I hope would be covered by
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the guidance to that transsexual person. The point that the noble Lord, Lord Swinfen, made concerned the equivalent of someone being unconscious and therefore being at risk. There, I was trying to make the analogy with a person who is allergic to penicillin. However, perhaps I may follow that up in writing and, if the noble Lord, Lord Chan, or other noble Lords feel that we have not addressed the issue satisfactorily, we can obviously pursue it because we would not wish that risk to be realised.
Perhaps I may return to the core of the amendments of the noble Lord, Lord Tebbit, and the argument put forward in Committee by the noble Baroness, Lady O'Cathain. The argument was that there can be a public interest, if a person so believes it, in being able to find out, disclose, and claim a public interest defence as regards someone having changed their gender. If we do that I do not know where we stop on the line between privacy and outing. It could end up like the pursuit of witchcraft. I have thought about the amendment and I believe that it cannot hold.
It would allow any person to disclose that protected information on his or her own understanding of the public interest. Any parent might think that it was in the public interest for other parents to know about a teacher in a school; any landlord or neighbour might think that it was in the public interest for other neighbours, tenants or residents to know; any employer who knew that an employee was transsexual might think it was in the public interest for other employees to know that; the secretary of any voluntary society might believe that it was in the public interest for any member of that society to know. I am sure that any tabloid newspaper would believe that it was, if not in the public interest, of public interest for everyone to know.
Lord Goodhart: My Lords, I am sorry to interrupt the noble Baroness, but she gave an example that a parent might wish to tell other parents at a school that one of the teachers was a transsexual. It is regrettable, but I do not believe that that would be an offence under Clause 21, because it might apply only if the parent had acquired that information in an official capacity. If they simply happened to know, that would not be an offence.
Baroness Hollis of Heigham: My Lords, that is not correct. It refers to a person in a public capacity; but the point is that if one opens up records in such a way, then there is no protection against people having access to that knowledge and claiming a public interest defence, should they need to, after spreading the knowledge about. The amendment means that anyone who is a transsexual could not expect or hope to live a life of privacy. If anyone could check any birth certificate and then spread that information, whether they are in a public or private position, because they have access to that relatively freely available information, I do not see how the line between that and fully outing any transsexual can be drawn, because someone will always argue that it is in the public interest of other people to know. I find that impossible

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to defend, because everyone would have a different version of the public interest, according to their subjective, personal belief—however genuine that may be.
I do not believe that Amendment No. 113 has been spoken to and the right reverend prelate the Bishop of Winchester has not spoken to his amendment either, because he is absent. Having made that argument, I hope that the noble Lord, Lord Tebbit, will not pursue the amendment further, because if he does, the right to privacy, which is currently protected by the restrictions around information on birth certificates and others, would be blown apart by anyone who wished to find out. That would leave no transsexual person comfortable in their right to privacy.
Baroness James of Holland Park: My Lords, before the Minister sits down, I would like to ask a question. I apologise to the House that I did not attend the Grand Committee. We know that certain illnesses—including those that are dangerous and horrible—are passed down through one sex only. The noble Lord, Lord Chan, could confirm that haemophilia is one such condition. Would descendants of a woman with haemophilia, who had changed her sex, have the right to ascertain that fact?
Baroness Hollis of Heigham: My Lords, certainly the immediate children would know, because they would be the offspring of that person. The question is relevant to an amendment to be moved later by the noble Baroness, Lady Buscombe, which says that if someone has the date of birth and the original name of the person they can check that record, thereby obtaining the information on a "need to know" basis for the descendants of that family.
Lord Tebbit: My Lords, this has been an interesting short debate. I am enormously grateful to the noble Lord, Lord Chan, who lit a candle of light in a dark room. He said that whatever the certificate states, whatever the legal status of a person's sex, he or she is still of the sex into which they were born. If someone was born a woman, she is carrying a woman's blood and that is it—end of message, complete and absolute. That so conflicts with everything in the Bill, it undercuts the basis of the Bill and all the arguments that have been put about it. He was saying that one's sex is immutable. From my inadequate understanding of these matters, I had always believed that and it is greatly comforting to me to have that assurance from the noble Lord. Lord Chan.
I turn to the arguments that have been made and the talk of "outing" people. The first thing we must understand is that a very strong case indeed must be made that the kind of information that is held by the state should be maintained secret. That conflicts with the very idea of a Freedom of Information Act. It absolutely and completely conflicts with that. I believe that there should be a right to know.
My noble friend Lord Campbell of Alloway is right in saying that it is most inconvenient that we have in our press some people who would want to use the
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information in an unpleasant and unfortunate manner. But that is true of all information that can be extracted about anyone. One might equally well say that divorce should be kept secret; that no one should know that a person has been divorced; that no one should know that his or her parents were not married; and that no one should know—one can go on and on.
I do not believe therefore that transsexualism is so different from all the others that we must totally reverse our normal ideas on the right to know. In any case, as the noble Lord, Lord Goodhart, said, a large circle of people would know. It will not be made a punishable offence for those who know already to tell others who do not, so the information will spread. In any case, it cannot be kept secret. We are saying that as regards the state the normal ideas and attitudes that are embodied in a Freedom of Information Act should be stood on their head. I do not believe that that is right.
Lord Stoddart of Swindon: My Lords, I am obliged to the noble Lord for giving way. In relation to what he is saying about freedom of information, I am wondering whether we have joined-up government. I understand that the Government are to make it possible for sperm-donor fathers to be named. It seems that we have in the Bill an attempt at concealment while on the other hand there is an attempt to "out" the sperm-donor fathers of children. Does the noble Lord agree that we do not have joined up government?
Lord Tebbit: My Lords, the noble Lord, Lord Stoddart, is right; the Government are facing in two directions at once. They have got themselves into a totally illogical position.
Baroness Hollis of Heigham: My Lords, perhaps the noble Lord will allow me to intervene. The reason the Government face in two directions at once is because, as everyone in your Lordships House will accept, there are two pieces of legislation. One is the Freedom of Information Act, which is the right to know, and the other is the Data Protection Act, which protects sensitive, personal information. Under freedom of information and the right to know, for example, the noble Lord, Lord Tebbit, has no right to the knowledge of any of our private medical records. That is protected by the Data Protection Act.
I accept that it is a matter of balance. In any walk of life there would be a balance between the right to know and the protection of personal, private information. Given all that we know about people seeking to live with an acquired gender—let alone other people, whether alleged paedophiles or whoever—I believe that people have a right to the protection of their personal information unless and until the need to know falls within very defined categories; I refer, for example, to the investigation and prevention of crime and the matters that were discussed in Committee. That is where the Government have drawn the line.
6 p.m.
Lord Tebbit: My Lords, the noble Baroness has every right to inspect my birth certificate and she has

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every right, when she inspects it, to believe that what it says is true and correct. In the case of a transsexual she said that if anyone inspects his or her birth certificate, that person would not have the right to know that it falsely represents that the person was born male when the person was born female or vice versa. It seems to me that there is a case for saying that such information should be freely available.
The Minister was very dismissive at one stage about the circle of people who had some right to know and who would know. In that she included the offspring. Of course she is completely wrong. What about the case of a marriage that has broken up, where the father has left and, as usual, the mother is left with the children? The father goes away completely, becomes a transsexual and his birth certificate is amended; the children and the mother make no contact with the father; but eventually the offspring track down their parentage—most people want to know about their parentage; they find that they were born to a father, Mr Joe Bloggs; and they find his birth certificate, but it says that he is a woman. Do they have the right to know how that has come about?
Lord Elton: My Lords, would my noble friend enlighten me as to what the birth register, of which the birth certificate is a copy, would say? Would the register be amended as well as the certificate?
Lord Swinfen: My Lords, before my noble friend answers my other noble friend, surely if the offspring are unable to find a birth certificate showing that their father was male, they may believe that they were born out of wedlock and therefore bastards.
Lord Tebbit: My Lords, as I understand it, that particular description of being born out of wedlock is no longer one that we use. It certainly is not true that the offspring will necessarily know of those matters, but it is certainly true that they ought to know of them. Of course, if they go to the registrar and seek a certificate, they will receive a copy that is a false copy. That is the heart of the matter. As I understand it, the registrar would commit an offence if he told an inquirer that it was a false copy. I believe that that makes a very strong case that there should be an obligation on the registrar to disclose. There should be an obligation on the registry not merely to be true, but to be true and open to everyone who inquires about the matter. There should not be two classes of persons: those who have discovered the truth, perhaps through gossip, and those who seek to discover the truth by applying to the registrar, who should be the custodian of the truth.
The Lord Bishop of Chester: Does the noble Lord consider that the distinction in this case, and in all the other cases to which we have referred, is that a genuine medical condition is being addressed by this process and that the presumption of secrecy applies in the case of all medical processes? I recognise that the noble Lord does not acknowledge the validity, authenticity
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and truthfulness of that medical condition. The plain fact is that the strong, predominant—although not unanimous—balance of opinion is that there is a genuine medical condition. For that reason, the presumption of secrecy should apply unless there are recognised reasons—we shall discuss these matters on later amendments—that a balancing of right needs to take place. Generally speaking, I believe that the presumption of privacy goes alongside the recognition that there is a genuine medical condition. That is at the heart of why the Government are so proceeding.
It is one of the areas where a practical matter touches upon the deep division of opinion as to whether the process of gender reassignment is to be recognised. As so often is the case, it is practical matters which bring out those divisions rather than theoretical discussions.
Earl Ferrers: My Lords, before my noble friend sits down perhaps I may ask one question of him on a point that he raised. A person asks the registrar, "Can I see my father's or mother's certificate?" It is a changed certificate. If that person were to ask the registrar, "Is this an original or is it changed?", is the registrar not bound to say, "No, it is an original", in which case is not the registrar obliged to lie?
Lord Tebbit: My Lords, yes, the registrar is obliged to lie. I say this to the right reverend Prelate. Yes, there is a controversy in the world of medicine as to whether it is a medical or psychological condition. We also know that the world of medicine changes its mind quite frequently, sometimes in a spectacular fashion as we have seen recently in the press in relation to cases of infant cot deaths, and matters of that kind.
We have to go back and say that the birth certificate should record what is true. If a birth certificate states, as the Bill provides that it should, that where a person was born as a female, has borne children and subsequently has suffered from transsexual dysphoria, the birth certificate which would be shown on any inquiry would say that that person was born a male. That is manifestly untrue. There should be a very high threshold for us to legislate that something which is manifestly untrue should not only be certified as true but that all mention of it being untrue should be concealed. That is the point.
I place a considerable regard upon truth. If there is a conflict between truth and untruth I think that the House should come down on the side of truth even if it is uncomfortable.
The Lord Bishop of Chester: My Lords, clearly we need to hear the Minister's response. There has to be demonstrated a contemporary relevance for the information to be made available pertaining to the birth gender—or whatever one wishes to call it. I do not think that there is a case for the general availability and openness of the register.
Lord Tebbit: No, my Lords. A case has to be made not for the release of the information but for maintaining secrecy about the information. I think

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that is a different balance, but I do not wish to detain the House longer. I can see that the noble Baroness is slightly uneasy. Was she intending to rise?
Baroness Mollis of Heigham: My Lords, I wish to intervene because the debate has gone in a direction that I had not expected. In a way it trespasses on a subsequent amendment. I thought that a lot of these matters would come up then.
Basically, there will be two birth certificates. The original birth certificate will not be destroyed. If someone goes to the registrar he could be provided with a copy of the certificate requested. The original birth certificate remains. Anyone knowing the original name, date and place of birth—as one would expect a child or grandchild with access to relatives in the family to know—would be able to obtain it.
The certificate consists of either the original birth entry or the entry on the gender recognition register, which is the alternative. Both will be genuine. There can be no question of the registrar having to lie. So the original records are there. Those who are privy to such information—usually because they are the son, daughter or a grandchild, and it may have some concern for them if there is a medical history and so on—would be able with that information, as now, to get to the original records. But if we do not have that—so to speak—firebreak, there is no protection to privacy.
Lord Tebbit: My Lords, there is no protection to privacy about one's birth anyway. I do not see why one group of people should have it and not others. But I am concerned that we have had an exhaustive discussion about this issue and I would not wish to carry it further.
However, I might leave one thought with the noble Baroness; that is, if we are not careful this will play merry hell at some stage with those who go in for genealogical research, unless we can be sure about it. Perhaps there should be a sunset clause somewhere which states that after 100 years or so the information is freely available.
That is not related to my original point but it had occurred to me. With that thought in mind, and in the interests of getting on this evening, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Buscombe Baroness Buscombe moved Amendment No. 56:
Page 17, line 19, at end insert "during the lifetime of a registered person"
The noble Baroness said: My Lords, this group of amendments deals with the rights of third parties. Indeed, some of the debate that has just taken place may see some light when we discuss these amendments.
Basically, these amendments are in two parts. The first group relates to determining the timing when details in the register can be made public; that is, to the general public. The other amendments relate to the family.
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First, I deal with the amendments which relate to the public. Amendments Nos. 56, 62, 72, 74, 77 and 79 determine the timing when details in the register can be made public. In Grand Committee we suggested in our amendments that details should be made public and generally available after 75 years. Our amendments have changed to suggest that the information should become generally available, but not within the lifetime of the applicant.
Indeed, the noble Lord, Lord Carlilc, first made the proposal during our debate in Grand Committee. In response to that suggestion the Minister stated that the proposition "during the lifetime" and not during the lifetime of the applicant may be useful.
My purpose in tabling these amendments on Report is because I am looking to the Government for reassurance that this proposal really will be seriously considered.
In Grand Committee, the Minister explained that a consultation period on civil registration records, as such, finished at the end of October 2003, a major part of which sought views on the ways in which records of births, deaths and marriages should be held and accessed. I accept that and indeed welcome that that review has taken place. I seek reassurance from the Government that this matter is being taken seriously with regard to the Bill. It is unfortunate that the Minister has so far felt it preferable to await the outcome of that consultation process rather than to include something specific on the face of the Bill.
I turn to Amendments Nos. 68, 76 and 82. These amendments relate to the rights of families. They would make provisions in England, Wales, Scotland and Northern Ireland so that with the consent of individuals holding gender recognition certificates, or following their deaths, a child or grandchild could be provided with a copy of the original birth certificate. I stress again—my noble friend Lord Tebbit may be interested to hear this; it is an issue on which he asked questions in the previous debate—that we are looking to the question of whether, and if so when and by what means, members of the family can have access to the original birth certificate.
In Grand Committee, the Minister responded that the family is able to access information about the name and date of birth. The Minister said that if a member of the family knew the name and date of birth, they would be able to obtain a copy of the birth certificate. In a sense, that is a good answer. However, where does it say that in the Bill? It is clear from paragraph 3(4) of Schedule 3 that information kept by the Registrar General for the purposes of sub-paragraph (1)(c)— that is, information to make traceable the connection between the entry in the gender recognition register and the UK birth register entry—is not open to public inspection or search.
However, some of the difficulties that we are debating arise from the fact that so little of that is clear on the face of the Bill. I have spent some considerable time trying to understand the process with regard to what happens to the original birth certificate and where it is kept. The Minister has been very

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forthcoming and helpful in confirming in writing to me and other noble Lords that, for example, the original birth certificate is not altered or destroyed. However, it is regrettable that the process with regard to what happens to the original birth certificate is not clear on the face of the Bill. I therefore urge the Government to think again about making clear on the face of the Bill who can access what information and by what means. I beg to move.
6.15 p.m.
Lord Goodhart: My Lords, I rise to say that although I think the amendment is defective because it refers to the register as a whole, I have sympathy with the ideas behind it. Since the concealment of information is due to the wish to maintain the privacy of and prevent embarrassment to an individual during his or her lifetime, in due course that information should be made available for the purposes of the historical record. The question of what is the right time to make it available may be open to debate. It certainly would not be appropriate during the lifetime of the person concerned, but it may be after death or at least after a certain interval after death.
Baroness Hollis of Heigham: My Lords, there are two separate issues. The first concerns access to information, which may or may not be medical, for the immediate descendants of that family. The second issue concerns the point at which the information becomes a matter of public record, so that genealogists and historians can track family histories. In a way, those are separate issues.
In Committee, we gave reassurances on the first issue and spoke to the question of the noble Lord, Lord Tebbit. The original birth records will not be destroyed. As now, the original birth record will remain in existence and be available for inspection to anyone who has the relevant birth details: name, date of birth and, usually, place of birth. It is difficult to conceive of a situation in which that information would not be known to the spouse or members of the family and therefore available to children. I think that the noble Lord wants to intervene.
Lord Tebbit: My Lords, the noble Baroness recognises the mischievous look in my eye. Why should the record be maintained? If a certificate has been issued to say that it was wrong and that the person was actually born in the old sex, why not alter it and throw away the old record? Or is the noble Baroness a bit unsure of her case?
Baroness Hollis of Heigham: My Lords, my grandmother had a house in Plymouth that was bombed during the war. Opposite was some land that was also bombed and was cleared. Subsequently, new housing was built on it. As a result, her address went from No. 76 to No. 82. Both were true statements: No.
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76 applied until the bombing; No. 82 applied after the rebuilding. Both were true statements; as a result, no lie or deception was involved.
Lord Tebbit: My Lords, the noble Baroness gives a very good answer, except that no one says that the date on which the number of the house was changed was the date on which it was originally built. The number changed after the house was bombed.
Baroness Mollis of Heigham: My Lords, we could continue to discuss the state of my grandmother's house opposite the Marine barracks, which would be fun. My point is that information can be changed in that way and still remain authentic.
As for the wider issue of when the information would become more widely available—to people other than children and grandchildren with the detailed knowledge that one would expect family members and only family members to have—whether after 75 years or in the person's lifetime—
Baroness Buscombe: My Lords, I am grateful to the Minister for giving way. Perhaps I may foreshorten her response by asking whether, if, for whatever reason, we cannot have the information in the Bill, we can have it in the guidance.
Baroness Mollis of Heigham: My Lords, I am not sure whether Pepper v Hart will do this for us, but I should have thought that our helpful exchanges in Committee and on Report should serve that purpose. If not, I shall take further advice, but I understand that when judgments are made on such issues, the context of parliamentary debate and the parliamentary record to that effect are taken into account. My understanding is that that should serve the noble Baroness's purpose; it certainly has done for previous Bills with which I have been involved. If not, we will return to the matter.
I sympathise with the point about genealogy. As someone who has been involved in historical reconstruction, and so on, I, too, would like access to such records. We mentioned in Committee that consultation is under way on civil registration reform, a major part of which seeks views on how records of deaths, births and marriages should be held, assessed and released. Some people are concerned about ethnicity as a source of information in records. We may or may not need information at that level of detail.
In Committee, we asked the noble Baroness and now ask the noble Lord to let us take the issue on board as part of that general review, rather than seek to prejudge it. I am entirely sympathetic, but any rule—whether for after 75 years or even after a person's death—could produce distress to others such as descendants. We could argue about how we weigh that against the need and right to know when the individual is no longer alive, but, given that the review is under way, we prefer, and think it reasonable to ask, to submerge the issue within the general review of civil registration reform.

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No doubt when and if a Bill is introduced, the noble Baroness and the noble Lord can move amendments if they feel that their concerns have not been met. Given that the review is current, it is unhelpful to try to subtract that issue in advance.
Finally, I refer the noble Baroness to paragraph 32 of the Explanatory Notes.
The Earl of Erroll: My Lords, I thought Pepper v Hart only applied if there was ambiguity on the face of the Bill or a conflict with European law? Otherwise, what is in the Bill applies and you cannot look at Pepper v Hart.
Baroness Hollis of Heigham: My Lords, as far as concerns Pepper v Hart, if there is any ambiguity or division of opinion as to what may be the situation, then, as I understand it, you may refer to the columns of Hansard in so far as they clarify the policy intent of Parliament.
Earl Ferrers: My Lords, before the Minister sits down, could she also clarify one point for me? It relates to what my noble friend Lord Tebbit said. He said that when you go down to inspect the register, if the birth certificate has been changed, why keep the original? The Minister says there are reasons for that, but does that not mean that there are then two birth certificates—the original one and the amended one? If so, what is the point of saying that nobody must refer to the original if it is still there?
Baroness Hollis of Heigham: My Lords, this is all about privacy and the right to privacy circumscribed by certain considerations—national security, crime, public health—that may impinge on that. There are indeed two birth certificates. People would have access to the acquired gender birth certificate. It would not be distinctive in any way. But the original one would exist in the same way as when studying the maps of Nottingham, I found that streets that later got called Corporation Street were originally known as Asylum Lane. I did not, as a result, suggest to my students that they got rid of the original maps. They kept both sets.
Lord Swinfen: My Lords, surely the birth certificate is a certified copy of the entry in the register of births. Is the Minister saying that that original entry is to be changed?
Baroness Hollis of Heigham: My Lords, no. If someone goes there they do not inspect the full register; they get a certificate. They will normally get the certificate of their new acquired gender. I suspect that the transsexual person will get half a dozen copies of these birth certificates for passport purposes or whatever. The original records remain. People who have exceedingly detailed information—the name, date of birth, place of birth—would also have access to the original records. These are likely to be members of the immediate family. Both of those birth certificates are legitimate. But nobody has access to the full register until it is generally released.
Baroness Buscombe: My Lords, I thank the Minister for her response and also all noble Lords who have taken part in this debate. It is clear that there is a genuine lack of clarity with regard to what happens to the original birth certificate and the whole process of accessing the information either on the part of the family or for the public record. With regard to the public record I accept what the Minister has said. I agree that we should wait for the results of the general review of civil registration and approach this issue when we discuss civil registration reform.
I would urge the Minister to consider my suggestion for having in the guidance a clear set of instructions or explanations as to this whole process. One of the reasons why this issue has been put down again on Report is that I have personally been asked by a number of noble Lords what actually happens with this situation. When the Bill was first published there was enormous concern as to whether this meant that the original birth certificate would be in some way destroyed or altered. I have to say that if that were the case I would certainly have great difficulty in supporting it. It really would be rewriting history.
I accept what the Minister has said. I do not want to delay the House, but I urge the Minister to consider making it as simple as possible for all of us. particularly applicants for gender recognition, to understand the process that they are entering into. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 57 to 65 not moved.]
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 66:
Page 18, line 28, at end insert "without the consent of the person to whom the entry relates"
The noble Baroness said: My Lords, this group of amendments is split into five separate groups. I had every intention of speaking to the whole lot together, but, by leave of the House and after consultation with both Front Benches, I will try to get through as many as I can. In moving Amendment No. 66, I shall speak also to Amendments Nos. 75 and 81. All the amendments deal with religious issues in the Bill.
The Bill takes away rights from religious people. By giving transsexual people an officially altered birth certificate, it creates an official way of concealing their true sex from religious groups that they might try to join. That is an issue of great religious importance. As Christian teaching is that sex is determined by God from conception, Christians believe that to reject one's God-given sex is to reject God's will for one's life. They also believe that the male and female sexes reflect the image of God and that to attempt to switch the two is a desecration of the image of God in oneself.
If one is in a Church that teaches that, it matters very much whether a person really is the sex that they claim to be. If someone considering an application for membership, which means being an integral part of the Church's fellowship, has any doubts, they need a way of getting to the truth. At present, a person who attempts to conceal his true sex from a Church does not have the assistance of the state. A Church can, like

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anyone else, obtain from the Registrar General a copy of the person's birth certificate, which will state their true biological sex. If somebody presents under a false name and sex, there will be no birth certificate for that person. That will set alarm bells ringing. If the person is asked to produce a copy of his certificate, he must either decline, in which case the Church can draw its own conclusions, or present the real thing, which tells the truth. When the Bill becomes an Act, such a person will be able to give the Church a birth certificate that conceals his birth sex. Even if the Church approaches the Registrar General directly, it will only get a certificate that states the opposite of the truth.
A Church that relies on official information could be duped into accepting into membership a person who fundamentally rejects some of the basic teachings of the Church. It could even inadvertently marry such a person to a member of the congregation or employ them on the church staff. In Grand Committee, the noble Baroness, Lady Hollis of Heigham, expressed incredulity that a person who professed faith could perpetrate such deception on their place of worship. I do not say that all transsexuals would do so, but some might. Sadly, not all people who claim allegiance to a faith are honest and straightforward—I am not talking about transsexuals now. Transsexuals tend to rewrite their own history. That is undeniable. Almost by definition, some will have a strong desire to keep their true sex secret. They may even effectively blank out the truth from their own mind. So somebody could try to deceive a Church with assistance from the state. There is a real need to have clear and water-tight protections on the face of the Bill to protect religious bodies from this possibility.
The noble Lord, Lord Filkin, and the noble Baroness, Lady Hollis, said that the state should not get involved in this relationship between a Church and an individual worshipper. In fact, the noble Baroness stated in Grand Committee that,
"the state should have as minimal a role as possible".—[Official Report, 14/1/04; col. GC78.]
But the state is already getting involved in this relationship by giving the transsexual the official paperwork he needs to dupe the Church.
The Bill already represents a major intervention in the relationship between a transsexual and his place of worship. I suggest that the Government cannot create this totally new legal situation and then step back and wash their hands of the consequences.
Amendments Nos. 66, 75 and 81 are part of a group which specifically address marriage, membership and employment with a religious group, as well as use of a church for services. I will say more about the rest of these amendments as we come to them. But the purpose of this amendment is to make it clear on the face of the Bill that, with consent, the Registrar General can disclose the fact that a person has an entry on the gender recognition register.
We have heard from Ministers that Churches which are concerned to protect their beliefs about sex can simply ask the person concerned. I have taken this to
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heart, and these three amendments enshrine that. A request always has to be made with the person's consent. It makes it explicit that a person's consent can be obtained in order to establish categorically whether he has changed his sex under the Bill.
I suggest that there is no invasion of privacy here. The Registrar General can provide a third party with official notification of a change of sex only with the consent of the person concerned. If there is no consent, there is no disclosure.
The Government clearly believe that the people who would have gender recognition certificates as a result of the Bill would be open and transparent with Churches. But in the Bellinger case, it is quite clear that the registrar was duped because in the certificate that was presented for the marriage of Bellinger, it specifically said, according to the judgment of the noble and learned Lord, Lord Lloyd, that Mrs Bellinger was a spinster. Surely the Government must realise that if the registrar can be duped, Churches can also be duped.
The noble Baroness, Lady Hollis, said in Grand Committee:
"In any case, if a religious minister or organisation needs to know whether a person is or is not a transsexual person, the solution would be to ask the person, particularly if their co-religionist is within a specific faith. There is nothing in the Bill to prevent the question being asked. I do not understand why we should assume that a person who is asked this question—a person who is a member of the same religious community—will refuse to answer or will lie, particularly to his priest. Essentially, I cannot believe that a member of a faith group will base his faith on bad faith. That is what the amendment impugns".—[Official Report, 14/1/04; GC.79.]
Sadly, I disagree. I beg to move.
Baroness Hollis of Heigham: My Lords, I hope that I can be fairly brief. I was slightly baffled because on some occasions the noble Baroness seemed to be arguing amendments which were benign—that X could not be done unless the transsexual consented to it. Yet on other occasions she felt that it was necessary because the transsexual might dupe some organisation, possibly a religious one. As these are diametrically opposed positions, I was not sure which one she was arguing.
I shall take Amendments Nos. 66, 75 and 81, as I understand them. The amendments would allow a certified copy of an entry on the gender recognition register to reveal that it comes from that register and so to reveal the gender history of that person if that person, he or she, consented. I have two points. First, I am advised that it would be unworkable in practice as the registrar would have to keep a record of the consent of the person concerned. Secondly, in practice, I wonder whether it is at all necessary. If the transsexual person agrees that the registrar may reveal it, why should the transsexual not agree that he or she would reveal it to whoever directly asked them for that information or identity? I do not understand why, in the case of any transsexual person who is willing and has given consent to have that information revealed,

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the information needs to be looped through the registrar. Perhaps I have misunderstood the import of the noble Baroness's amendments.
Lord Tebbit: My Lords, it seems to me that that question answers itself. If a minister of a Church were to ask a person whether they were a transsexual, they might quite easily say no. The minister now has nowhere to go. But if the minister says, "Do you give your permission for an inspection of the register" and the person says, "No, I don't", the minister would be well advised to conclude that they were concealing something.
Baroness Mollis of Heigham: My Lords, in which case, the minister can withhold consent to what is being asked for.
Lord Tebbit: My Lords, indeed, and it is the withholding of consent that would be the very answer that the minister wanted, would it not?
Baroness Hollis of Heigham: My Lords, as a later amendment seeks to establish, in that case the minister could draw from it what conclusion that minister saw fit, and therefore refuse to solemnise the marriage, for example. That position is covered.
Baroness O'Cathain: My Lords, I shall consider the matter. I was probably confused by the way in which I delivered the amendments. I thank the Minister. I shall read the Official Report and talk to her afterwards. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 67 to 70 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 71:
Page 20, line 9, leave out paragraph 11 and insert—
"11 The Chancellor of the Exchequer may by order amend this Part in consequence of any order under section 1 of the Regulatory Reform Act 2001 (c. 6) which includes provision relating to the system of registration of births and adoptions in England and Wales."
On Question, amendment agreed to.
[Amendments Nos. 72 to 84 not moved.]
Schedule 3, as amended, agreed to.
Schedule 4 [Effect on marriage]:
The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, I remind the House that if Amendment No. 85 is agreed, I shall not under the rules of preemption be able to call Amendments Nos. 87 to 91.
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 85:
Page 26, line 3, leave out paragraph 3 and insert—
"After section 4 insert—
"4A MARRIAGES INVOLVING PERSON OF ACQUIRED GENDER

(1) No person shall be under any duty whether by contract or by any statutory or other legal requirement to solemnise the marriage of a person—

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

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

(2) No clerk in Holy Orders of the Church in Wales shall be under any duty whether by contract or by any statutory or other legal requirement to permit the marriage of such a person to be solemnised in the church or chapel of which the clerk is the minister.""

The noble Baroness said: My Lords, the Government concede that there is a problem for Churches over marriage. The Bill as introduced contains a limited conscience clause for Anglican clergy in England and Wales, in recognition of their statutory duty to marry people from their parish. It allows them to refuse to marry a person who has a gender recognition certificate. However, the conscience clause immediately ran into difficulties when it was pointed out that the Bill gives clergymen no right to know a person's true sex. It allows them only to refuse if they knew that the person had a gender recognition certificate.
The Government have now tabled Amendments Nos. 87 and 90, which would allow an Anglican clergyman to decline to conduct a marriage if he reasonably believed that one of the parties had changed sex. While that doubtless moves in the right direction, it still falls a long way short. For a start, it still places an onus on the clergyman to prove the reasonableness of his belief. It still leaves him at risk of litigation over whether his belief is reasonable. Courts may spend days deliberating on the question of reasonableness. Is that fair to the clergyman?
It is also too narrow in scope. In Committee, I mentioned that the wedding ceremonies of some nonconformist denominations are carried out by laymen. The amendment still deals only with Anglican clergymen, so how will the Government amendment help them? The Minister will say that only Anglicans are under a statutory duty to perform weddings, so only they need a conscience clause. Why could a similar action to that in the case of Parry v The Maesteg Christian Centre—part of the Vine Christian Centre, to which I have referred on previous occasions—not be launched over marriage? In that case, a man wanted a court order forcing a church to recognise him as a woman and allow him access to the ladies' prayer meeting and the ladies' toilet. Why should Churches be laid open to the possibility?
After the Bill becomes an Act, the legal landscape in relation to transsexuals will fundamentally be changed. The Minister cannot say with certainty how far the courts will go with this. He cannot assure us that our judges will not seek to impose new obligations on bodies that perform wedding ceremonies. This is especially so when one takes into account Section 6 of the Human Rights Act 1998 which states that public authorities must act in compliance with the convention on human rights. It gives a wide definition of public authorities, which includes any body that carries out functions of a public nature. The Minister will probably say that Churches are not public authorities. However, when they are conducting wedding ceremonies they are standing in the place of the state.

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They have the duty, given to them by the state, to conduct weddings. Baptisms and other religious ceremonies are not public functions, but weddings are. The former Home Secretary, Mr Jack Straw, MP, made this clear during debates in the other place on the Human Rights Act. He said:
"On the occasions when Churches stand in the place of the state, convention rights are relevant to what they do. The two most obvious examples relate to marriages and to the provision of education in Church schools… We think it right in principle… that people should be able to raise convention points in respect of the actions of Churches in those areas on the same basis as they will be able to in respect of the actions of other public authorities".—[Official Report, Commons, 20/5/98; col. 1017.]
So Churches could be sued under the Human Rights Act over the way they carry out weddings.
There is another crucial new factor that greatly increases the risks that courts might take issue with Churches that will not conduct transsexual weddings: the Goodwin and I case. Since the Strasbourg court handed down its judgment in that case in July 2003, it has been a human right, under the European Convention on Human Rights, for a transsexual to wed. Mr Straw said that when Churches carry out weddings, convention rights are relevant to what they do. The convention gives a right to transsexuals to marry. This means that a transsexual who wants to sue is being handed several enormously powerful new legal arguments. There is ample scope for litigation against the Churches over marriage. Even if it is ultimately unsuccessful, why should Churches have to put up with this? The Government have not thought this through. This is an issue of fundamental importance. Do the Government believe that religious rights come such a distant second to the rights of transsexuals?
Does giving effect to the Goodwin judgment really mean that we have to expose Churches to this kind of litigation? What about registrars? I accept that they are civil servants who do the bidding of the state but when they signed up for the job transsexual weddings were illegal. Under this Bill they will be compelled to perform such weddings. Registrars, after all, have consciences too. Because of their religion or for other reasons they may well feel unable to solemnise a marriage between two people who are biologically of the same sex.
In Grand Committee the noble Baroness, Lady Hollis, compared registrars conducting weddings to Benefit Agency employees handing out payments. She asked in effect that, as the Benefits Agency employee could not allow his conscience to override his employment duties, why should a registrar? But a wedding is of far greater significance than a benefits payment. Surely the Government believe that there is something special about solemnising a marriage that distinguishes it from the other much more mundane duties of civil servants. Surely they accept that one's conscience about something as important as matrimony—the building block of society, after all— is worth protecting.
In Holland the human rights courts believe that civil registrars should not be compelled to conduct transsexual weddings if they have a conscientious
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objection. Will the Government allow our registrars the same right? I have brought up my next point before. There is a comparison to be made with the Abortion Act 1967. There Parliament legalised something that was highly controversial. In recognition of the controversy, and the fact that people held strong conscientious views about abortion, Parliament included a conscience clause. That allows medical personnel, including public sector employees—that is, National Health Service employees—to decline to participate in abortions.
With all that in mind I have tabled several amendments that take different approaches to solving the problem and I have offered different ways to let the Minister off the hook. However, having had an opportunity to consider the different approaches I am convinced that Amendments Nos. 85, 92 and 93 provide by far the best solution. These amendments would replace the existing government conscience clause altogether and, if supported, would preempt government Amendments Nos. 87 and 90.
Amendments Nos. 85, 92 and 93 operate on a UK-wide basis and would allow any person to refuse to conduct a marriage, whether they are a registrar, a layman conducting a Church wedding or a clergyman. The grounds for refusal are that the relevant person has a gender recognition certificate or that he will not allow disclosure of his gender recognition status. These amendments would make clear that not only can a person decline to marry someone they know to have a gender recognition certificate, they can also refuse to marry someone who will not consent to disclosure of their gender recognition status.
The amendments would also make explicit that no new duties to conduct a marriage may be imposed by litigation, nor could anyone be pressured by employers. That is important as it is government policy to make all those who solemnise civil marriages employees of the local authority. A registrar who would not carry out transsexual weddings could find himself out of a job. A local authority could make it a requirement of the job that all registrars must be prepared to carry out such weddings. Certainly there are some local authorities we know that impose these kinds of politically correct litmus tests. As I prefer the solution provided by my Amendments Nos. 85,92 and 93, if the group of amendments beginning with Amendment No. 56 were to be supported, I would not move Amendments Nos. 88, 89 and 91.
I know that there are technical problems, but they could be ironed out. Nothing is insurmountable. All it needs is the will to do it. I beg to move.
6.45 p.m.
The Earl of Erroll: My Lords, in our society, which is multi-cultural and multi-faith, we should be careful not to foist what one might classify as liberal western concepts on those of other faiths. Therefore, it is important to include in these provisions those of other faiths who might be asked to conduct marriages.
Baroness Mollis of Heigham: My Lords, I assume that we are talking to Amendments Nos. 85,88,89,91, 92 and 93, which I believe was the agreement. We have de-grouped the two sections. I emphasise yet again that when a person is recognised in the acquired gender that person becomes in law of that gender. The person is then entitled in law to marry a person of the opposite gender.
I do not want to go back to the arguments which we have explored as to whether that really happened whether in the eyes of God, man or law. The Bill seeks to state a legal proposition that is in accordance with European human rights law and which has been accepted in all the countries of Europe with the exception, as the noble Baroness, Lady O'Cathain, ruefully noted, of Ireland and Albania. Therefore, should this Bill be enacted a person who gains recognition in the acquired gender will have changed gender in law. Marriage in no small part is an institution defined by law.
Marriages contracted by transsexual people once the change of gender has been legally recognised, will therefore be valid marriages between a male and a female. In such a circumstance, registration officers would have no legal grounds on which to refuse to provide the service, and it would be expected that the service be provided to the same high standard as other services.
We see no reason why a registrar who did not agree in conscience should have the liberty to inquire into it and refuse to exercise his function. I do not doubt that some public officials may very well have private views about the appropriateness of some of the laws they are to discharge. But that is the commitment they have made and the territory they occupy. I suggest that there is and must be no scope for private discretion in the public discharge of the legal requirements of a public post by a public official. Otherwise we would be horrified, for example, if someone began to pick and choose who they would or would not marry or provide with benefits. We would be horrified if a schoolteacher were, because of her beliefs, to treat differently children whose parents are not married. We would be horrified if a lone parent—or a homosexual or transsexual—were refused housing benefit because the housing officer disapproved of their lifestyle on religious grounds.
Earl Ferrers: My Lords, nurses have the right not to participate in abortions if they do not wish to do so.
Baroness Mollis of Heigham: My Lords, my understanding is that nurses are not public officials. I am talking about somebody who is a public official. People discharge the law and it comes with the territory.
Lord Tebbit: My Lords, perhaps I should have stopped the noble Baroness a little earlier because she was enunciating the defence which has been put up by every junior officer concerned with a war crime that he
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was only acting on orders. Does not the noble Baroness recognise that she is giving that same defence?
Baroness Hollis of Heigham: My Lords, anyone who feels that their conscience is at odds with the requirements of the job in a civilian and democratic society has the right to resign from that job. That is the point. If one does not accept the full discharge of one's duties as laid down by law, democratically arrived at, and if one begins to exercise discretion, the law becomes a lottery. Where one lives and which official one deals with determines what the outcome must be. That is for Parliament to decide subject to the rule of law. In exactly the same way civil servants may not entirely agree with what Ministers propose. They do the job or they leave it. Local authority employees do the job or leave it and the same applies to registrars.
Lord Tebbit: My Lords, the noble Baroness not only says that there is no defence on the part of a civil servant who leaked information in a particular case a few years ago, which I recollect well. The court upheld that she was acting on her conscience and it was right for her to leak that information although it was clearly contrary to her contract. She is also enunciating the defence which was made by policemen in South Africa under the apartheid regime. She is enunciating the defence which was made by officials and soldiers in the Balkans War. Any public official who feels strongly that it is an issue of conscience has a right to stand up for that.
7 p.m.
Baroness Hollis of Heigham: My Lords, particularly in the light of the events of the past few days, I do not believe that we should introduce the issue of whistle-blowers here. I am referring to a public official v/ho occupies a post which is to be legally discharged within the framework of Parliament. Frankly, the noble Lord is inviting any junior civil servant in a benefit office or any school assistant in a school to take odds with Parliament over the fact that a child or benefit book recipient should be treated in the same way as any other child or benefit book recipient. He is inviting such a person to say, "I put my judgment, which I shall call 'belief, which may or not be religiously inspired, community-inspired or ethnically inspired, ahead of the will of Parliament".
I say to people that they have the right to make that choice but, if they do so, they should not do that job. It is their choice. If they feel that they cannot, in good faith, undertake the responsibilities of a public post and discharge public responsibilities within the framework of a law laid down by Parliament, they have the choice that we all have—to walk away from that job. Anything else becomes a lottery concerning where you live, whether you receive your housing benefit or whether the person dispensing it approves of your lifestyle. I know that the noble Lord, Lord Tebbit, would not wish us to follow that route.
Earl Ferrers: My Lords, I understand that the noble Baroness is saying that other people have to do the jobs that they are given, whether they are civil servants or whatever. But, in this case, people are being invited to tell lies. Surely if one has a conscience about that, one should be permitted to say, "I can't fill that in because I shall be telling a lie and I don't want to do that".
Baroness Hollis of Heigham: My Lords, at the heart of this debate is the fact that these will be valid marriages in the eyes of the law. Therefore, no one who was asked to solemnise such a marriage, being a public official, could in any way say that, in terms of the law, that was a lie. I believe that many people would find such a view offensive.
If that person, through religious beliefs, considers that he should not authorise such a marriage, he need not hold that job. That is his choice. But these are not lies; they will be marriages validly contracted within the framework of the law, should your Lordships and the other House so agree. If that is not the case, then, frankly, we might all just as well go home. That is the nature of law. One may disagree but, if Parliament has so determined, one then has the choice of either doing the job or walking away. No one is putting a gun to one's head. A person does not have to do the job. But no parliamentarian could accept that a decision of Parliament should be subverted by the private view of any public official. We cannot organise ourselves in such a way. On reflection, I am sure that your Lordships would not wish to go down that route.
In Committee, I also said that I was sure that a registrar could find a way around the issue if it was so troublesome to him. Of course, any couple could go to any registrar's office in the country if it was felt that the strong views held by an official in one particular office would cast a shadow over the marriage. We explored that point in Committee and I believe that it is still valid.
The amendment also seeks to go beyond providing an exception for registrars. It seeks to provide an exception for any person who is under a legal duty to solemnise a marriage. As was made clear in Grand Committee, no other religious minister is obliged to solemnise a marriage. He or she may be an authorised celebrant—that is, if he or she solemnises the marriage, no separate civil ceremony is necessary. Nevertheless, there is no obligation on that registrar to solemnise a marriage and he or she is therefore free to conduct or to refuse to conduct the marriage of a person who has changed gender. That is why the existing provision in Schedule 4 extends only to ministers of the Church of England and the Church in Wales. All others already have that right.
It has been argued that ministers of other religions may be "public authorities" within the meaning of the Human Rights Act. They may therefore be vulnerable to a claim on the basis of human rights law. "Public authorities" within the meaning of the Human Rights Act include any person,
"certain of whose functions are functions of a public nature".
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It has been argued that that could apply to ministers of the Church of England.
On that basis, we suggest that nothing would make a religious body a public authority for the purposes of the Human Rights Act. The receipt of occasional grants from English Heritage or the lottery fund—the example that I was given in Committee—would not convert a private body into a public authority. The cross-reference that I have is to the Appellate Committee of the House of Lords, recognised in Aston Carlow PCC v Wallbank. So there appear to be perfectly secure grounds on the matter.
In addition, people should not be allowed indiscriminately to reveal information about a person's gender history in the form of malicious gossip or damaging rumours, which is why the prohibition on disclosure is required. We have to be careful to understand the scope of that prohibition. Disclosure is prohibited when the information has been acquired in an official capacity. For example, if an employer acquires information about a person's gender history, he or she is not permitted to disclose it, unless the disclosure falls within one of the exceptions in Clause 21; for example, criminal activity and so forth. Clause 21 does not involve the criminalisation of activity that is purely in the private sphere. That would not be appropriate. The Government are, therefore, firmly of the view that Clause 21 is necessary, that it is drawn up in the right terms and I hope that your Lordships will continue to support it.
Baroness O'Cathain: My Lords, I have always had the greatest admiration for the noble Baroness, Lady Hollis, and that has grown tonight. She has much greater staying power than I have. I thank her for dealing with those amendments and for giving me some comfort, although not much, regarding the last point about religions, other than the Anglican clergy, not being regarded as public bodies in the solemnisation of marriages. That is fair. I am sorry that the noble Lord, Lord Carlile, is not in his place, but I also realise that if the Bill is enacted and a registrar has a conscientious objection to marrying people who he or she suspects are transsexual, the registrar should not really be in the job or should make the people go to another registrar. There are ways and means of achieving that. I thank the Minister very much for her comprehensive reply to the amendments, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Triesman: My Lords, I beg to move that further consideration of the Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at seven minutes past seven o'clock.