COMMONS AMENDMENT (Hansard, 8 June 2004)

§ Lord Filkin
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. This amendment addresses an issue which was discussed at length in Standing Committee in another place.
150 Clause 21(1) provides that a person will not be regarded as having changed gender solely by virtue of having changed gender under the law of another country or territory. This is necessary because standards for recognition are not uniform throughout the world, and we wish to ensure that the UK grants recognition only to those individuals who have recognition in a country or territory with criteria at least as rigorous as our own.
Where other countries' criteria are as rigorous as our own, people in that position should receive recognition under a simpler process, and this is provided in Clause 1(1)(b). Conversely, if the recognition is from a country or territory with criteria that do not meet our standards, we believe that, to gain recognition in this country, an individual should have to apply in the standard way, with the gender recognition panels scrutinising a full set of evidence.
Questions were raised in Standing Committee in another place about whether a different approach was warranted for those who have recognition in another country from the European Economic Area. We reviewed the position in light of the comments and concluded that it would be useful to clarify that Clause 21 is subject to any enforceable right under EC law.
The amendment reflects the fact that in practice a national of another country in the European Economic Area who has been granted legal recognition of their gender change in their own country will not need to apply for a UK gender recognition certificate. Equally, no further application will be required for recognition of the post-recognition opposite-sex marriage of an EEA national.
We have recently completed our research on gender recognition across the EEA. This indicates that all the EEA states that have systems for recognition have criteria for recognition that are as rigorous as our own. We expect to add all these states to the list of approved countries, and individuals with recognition there would be able to apply for a UK gender recognition certificate under the simplified process in Clause 1(1)(b) if they wished to do so, but would not be obliged to do so.
This broad mutuality of standards within the EEA also means that the risk that we foresee in extending the principle of mutual recognition any further, and of accepting overseas recognition given on criteria less rigorous than our own, does not arise on the amendment that we have proposed.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Filkin.)

§ Lord Tebbit
My Lords, perhaps I may ask the Minister two questions. First, can he explain why the reference is to Community rights and not to European Community rights? Does that involve the issue of rights of people from European Economic Area states or not? It seems slightly odd. Secondly, what will happen if a European Community state grants recognition to someone on the basis of an application that has been made and accepted in a third country, whose standards are not acceptable to the United 151 Kingdom? Would such a person become acceptable whether the recognition is endorsed by a European Community country or not?

§ Lord Filkin
My Lords, on the noble Lord's first question, the changes we are making following the Standing Committee consideration of the issue, simply ensure that the Bill complies with the free movement rights enshrined in Article 48 of the Treaty of Rome 1957. As the House will know, when the UK Government joined the European Community in 1972 we signed up to the various obligations in the Treaty of Rome, and the European Union Community law was given legal effect in the UK by the European Communities Act 1972. If memory serves me right, its effect goes slightly wider than the members of the European Union Community because it also includes Norway, Iceland and Liechtenstein.
I think that addresses the first part of the noble Lord's question. As to the second part, were a member of the European economic area to grant legal recognition to someone from another country, I assume that it would apply its own domestic tests and rights of eligibility. As I said, our research indicates that those countries in the European economic area which grant legal status for recognition to people for a gender change have processes which appear to be at least as rigorous as ours.

§ The Lord Bishop of Chester
My Lords, perhaps I may ask the Minister a complementary question. Is he satisfied that someone who is granted a gender reassignment certificate in this country will be fully accepted throughout the European Community on the basis of our tests? Given that we will not have some of the requirements of other countries—for example, evidence of being a post-operative transsexual—is he satisfied that our citizens will have equal rights when they travel abroad in the European Community?

§ Lord Filkin
Yes, my Lords, I am. It follows that the rights that we recognise that we have and obligations to recognition processes in other member states apply exactly to the rights we grant our residents in that respect. We and they are caught by the obligations of the Treaty of Rome with regard to the free movement of peoples. So, yes, we can have no doubt that they should be secure.

§ Lord Mackay of Clashfern
My Lords, is there an enforceable Community right which, but for this provision, the Act might contravene?

§ Lord Filkin
My Lords, it is to avoid any doubt that the Commons have made this amendment and why we believe that it is right to do so. As I said when I introduced the amendment, we believe that the Treaty of Rome already gives these rights. Therefore, we are ensuring that there is no implicit contradiction to that by the Bill as it was drafted when it left this place.

§ Lord Mackay of Clashfern
My Lords, I understood the noble Lord to say previously that the free 152 movement of people was in question. Does that mean that the free movement of people requirement would carry with it an implication about recognition of a gender status? Or is he really depending on the fact that apparently in most if not all the European economic area countries the tests are in his view as rigorous as our own?

§ Lord Filkin
My Lords, that relates to the former point rather than to the latter. The latter point was a point of comfort to those who might have had any anxiety in that respect.

§ Lord Tebbit
My Lords, perhaps I may return to the point which I raised originally with the noble Lord. I do not think his reply was unduly clear. There are more communities than the European Community. It seems to me that to leave this bare reference to "the Community" or "Community rights" is not adequate. Can the Minister give us some precedents for that? If not, perhaps he will consider that this should be set out as rights under the European Communities Act, or something of that kind, or as rights of citizens of the European economic area, the European Union or whatever other organisation he likes to list. But the matter does not seem to be terribly precise.
Secondly, although I hope that all our partners in Europe will uphold the same high standards in the application of Community law as this country, I am not sure that that is necessarily true.

§ Lord Filkin
My Lords, as to the last point of the noble Lord, Lord Tebbit, were that to be the case there would he a right of redress in the courts to an individual who felt so aggrieved.
On the other issue of enforceable Community rights, that is the term referred to in Section 2 of the European Communities Act.