Gender Recognition Bill [Lords]

---

[back to previous text]

Mr. Lammy: I cannot announce the salary package on offer to the panel members today but, as the hon. Member for Daventry would expect, those issues will be addressed in detail once the Bill has been enacted and the Department for Constitutional Affairs has begun appointing and establishing the gender recognition panels.

We have not yet set the fee structure, but fees will be consistent with those paid to members of comparable tribunals and public bodies. There is therefore no question of the rates being anything other than reasonable.

Amendment No. 9 relates to paragraph 8(2), which contains a standard safeguard enabling judicial officers to receive compensation for loss of office. We believe that it would be wrong to remove it. The panels will be made up of legal and medical professionals, the majority of whom will sit as and when required while continuing to practise their various professions. However, it is possible that some will act in a salaried capacity, and it is a requirement of salaried officers and members of a tribunal to cease private practice on appointment and not to return to private practice on cessation of their judicial appointment. For those purposes, it is important that the Lord Chancellor has those powers.

It is also right to retain flexibility on numbers and workload. Owing to the absence of gender recognition in this country, the panel will initially have to deal with many applications, and we are making appropriate arrangements for that. For those reasons, I ask the hon. Gentleman to withdraw his amendments.

Mr. Boswell: I am grateful to the Minister for his explanation. He may or may not know that one member of my family is a member of the Bar and in the Government legal service, so, although I am not canvassing for a job for her, the point arises about somebody's appointment as a salaried person. I realise from the Minister's slight eyebrow lifting that if she were a Government employee she could not possibly be on any panel while she so remained.

The Minister's reply was perfectly satisfactory; I would have expected nothing other, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Boswell: I beg to move amendment No. 10, in

schedule 1, page 15, line 33, at end insert—

Column Number: 39

'8A The President of Gender Recognition Panels shall make an annual report to Parliament, but this must not contain material likely to identify individual applicants or to prejudice the operation of section 22 of this Act.

The intention of the amendment is self-evident. We have already had a useful discussion about how the gender recognition panels will operate, and as they involve the most private considerations for the individual it is proper that they meet in private. That supports the argument for not making them too large; the more they can act with discretion and confidentiality in principle, the better.

On the other hand, public interest is recognised in part by the obligation in paragraph 6(6) that the panel give reasons for its decision—that it has to have some basis in principle. No doubt the president of the panel will be anxious to see consistency of judgment and that approvals by one panel translate into work, where applicable, in other cases. He might also wish to express concern even to professionally empanelled members if that were going wrong.

The amendment allows for the fact that such matters are very private with a safeguard about individual confidentiality. As part of the overall transparency of the process, however, I am anxious to ensure that the president of the panel can report adequately and publicly. He should explain what is happening, such as the number of cases, the types of decision that are being taken and any pattern that is developing. I am not looking for trouble, but we all need a degree of scepticism and humility. I do not expect it, but a process might develop where the practice of panels diverged from what had been anticipated by all members of the Committee, wherever they stand on the matter. At least then the president would be able to engage on it and there could be public debate. The last thing that we want is the hawking around of individual and private decisions. That is not the purpose of the amendment. On the other hand, it is important, not least because of some of the fears that have been expressed by faith communities and others, that there is some public transparency once the legislation takes effect.

3 pm

Mr. Lammy: I agree in principle with the purpose of the amendment. It is important that I put a few things on the record that have not been mentioned previously. First, the gender recognition panels' work load and performance will be reported on annually. The panels will eventually form part of the tribunal service announced last year by my Department as a result of the wide-ranging review undertaken by Sir Andrew Leggatt. The hon. Gentleman may know that the Government hope to come forward shortly with plans for that service.

Mr. Boswell: That is a useful assurance. Would the tribunal service deal with administrative matters? I emphasise that I am not referring to decision making but, for example, the setting up of hearings. If hon. Members were to receive representations from constituents who felt that a decision on their case was

Column Number: 40

being held up, would they be able to make representations to the tribunal service that would, presumably, lead to some effect?

Mr. Lammy: I am happy to give the hon. Gentleman that assurance and also to announce to the Committee that the Council on Tribunals has agreed to take a supervisory role in the administration of the panels. It will keep them under review and report annually to the Lord Chancellor, who shall lay the report before Parliament, and the Scottish Ministers, who shall lay the report before the Scottish Parliament, with such comments as they think fit. The council will also be able to investigate matters of concern referred to it by others. To achieve that role for it, I intend to table an amendment on Report that I hope will meet the favour of the House of Commons. I trust that my assurance that the performance of the panels will be reported on satisfies the hon. Gentleman.

Mr. Boswell: Again, those are highly satisfactory and welcome assurances. We look forward to the Government amendment in due course. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Clause 2

Determination of applications

Mr. Boswell: I beg to move amendment No. 3, in

clause 2, page 1, line 21, leave out 'or has had'.

This is a different sort of amendment. It deals not with administrative matters but, if anything, medical matters. It is designed as a probing amendment. As such, I realise that it could be subject to misinterpretation. It is not an attempt to alter the underlying concept of the Bill, let alone to intrude on the position of individuals. Its purpose is to get clarification from the Minister.

I suppose that much depends on how the Minister, the Committee and, ultimately, the courts interpret the condition of gender dysphoria. We need not unpick the aetiology of the condition. The hon. Member for Birmingham, Selly Oak circulated some interesting and rather convincing material on the subject, which is a matter of considerable complexity. The condition can develop in utero, or shortly afterwards, and can take a long time to resolve. The Bill implies—this is where the amendment raises a query—that the applicant either

''has or has had gender dysphoria''.

The evidence presented with the condition is fairly simple to assess. Assessing a past condition is a little more difficult.

Things could go one of two ways. I think that I know the way that the Minister has in mind, but I need to clarify that. It could be that the condition involved a feeling that the individual had that has gone away and is no longer relevant, in which case I suppose that it would be reasonable to say, ''But why are they then turning round and making an application to the

Column Number: 41

gender recognition panel?'' I understand that. I presume that there would be no legal merit—to use a legalistic term—in that sort of application. Equally, it would be a case in which the applicant ''has had'', or could be argued to have had, gender dysphoria.

The other situation seems much more plausible. This is what I want the Minister to clarify, in particular. The applicant could have had gender dysphoria at some time. They could have sought treatment for it and had a surgical change, and could be living in the acquired gender for all purposes. That is the sort of person who, as the Minister rightly said, may come forward under the fast-track procedure that we will discuss later. In a sense, they did have gender dysphoria, and that may have been resolved. Equally—this is where I pause, because I want the matter to be clarified—as it is the general, if not universal, practice that individuals in that situation are required medically, or advised medically, to support their change with hormone treatment more or less indefinitely, I am not clear whether they still have gender dysphoria or have had it. If everybody still has gender dysphoria because they still require some form of treatment, why is it necessary to prescribe circumstances in which applicants may have had it, but no longer do so? This is not a serious issue of substance, but it is important that the Minister explains and clarifies the various circumstances and why the Bill is drafted as it is.

Dr. Harris: Does the hon. Gentleman accept the following simple treatment of the matter? I am grateful to Press for Change for putting it to me. The treatment for gender dysphoria is gender reassignment. It is perfectly possible for people to have had gender dysphoria that has been treated and dealt with by reassignment. Legal recognition is a separate issue and follows on from that process.

 

---

Prepared 9 March 2004