Gender Recognition Bill [Lords]

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Mr. Boswell: The Minister has just made a perfectly appropriate response to the hon. Lady. Will he also, for the purpose of the Bill, commit himself to reflect—I ask no more than that—on whether it may be possible to give some kind of retrospective validity to Acts made in relation to the foreign marriage when the marriage is recognised by the issuing of a British gender recognition certificate?

Mr. Lammy: The issue that the hon. Gentleman raises is connected. In endeavouring to get to the bottom of the contribution made by my hon. Friend the Member for Birmingham, Selly Oak, that is certainly something that we will want to consider.

Dr. Harris: Subsection (3) has more in it than I had thought. When the Minister started talking about same-sex marriages, I began to wonder what subsection (3) is really trying to say. It states:

''if a . . . recognition certificate is issued to a person who has entered into a foreign post-recognition marriage, after the issue of the certificate the marriage is no longer to be regarded as . . . void on the ground that (at the time . . . it was entered into) the parties to it were not respectively male and female.''

Does that mean in the eyes of British law, because they were not in possession of a British certificate?

Mr. Boswell: That is correct.

Dr. Harris: The hon. Gentleman says that he thinks that that is correct. Or, is it because it was a same-sex marriage and therefore the parties were not respectively male and female, even though that was allowed by that foreign country? Or, is subsection (3) just trying to extract the idea that non-same-sex marriages are okay after the full recognition certificate is issued? The wording is ambiguous in the context of the Minister talking about same-sex marriages and I would be grateful for clarification.

Mr. Lammy: Subsection (3) states that foreign post-recognition marriages will be recognised if the person who already has legal recognition in the acquired gender in another country or territory gains recognition in the acquired gender in the UK. Such recognition will apply only where the parties to the marriage are then of an opposite sex. So, we have to deal with both points. We must make it clear—and qualifications continue throughout subsection (5)—that recognition must be under UK law and that it must be an opposite-sex marriage. That is why there is a need for qualifications.

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This is clearly a developing area. At present, there are no universally applied international standards for gender recognition. No doubt we will gradually move towards such shared standards. At that point, we will have to reconsider the provisions for people who received recognition overseas. Perhaps we will be able to set up robust reciprocal arrangements with, for example, other EU states. For now, we believe that the approach that I have outlined best tackles the complexities raised by overseas gender recognition. With that explanation, I hope that the hon. Gentleman will withdraw his amendments.

Dr. Harris: It has been an interesting debate. First it is appropriate to deal with the point raised by the hon. Member for Birmingham, Selly Oak. I am grateful to her not only for having read but for having found the briefing that we were both given by the QC from Matrix chambers. I endorse what she said.

I am grateful that the Minister has offered to consider whether some marriages that would now be recognised as valid—and, therefore, some rights retained in European law—might not be recognised as a consequence of the clause, or any part of the Bill, if it is not amended. If he intends to write to me on the subject, I would be grateful if he would do so well before Report, and if he would send that letter to all Committee members. They would find it useful.

On amendment No. 73, I think that I now understand the complex structure of the clause. I apologise to the Committee for not having understood it earlier, although I have been talked through it on a number of occasions by people who, I think, do understand it. It is a complex way of putting the point. It appears that clause 21(3) is qualified by subsection (5)(c). The former states that, where the

''full gender recognition certificate is issued to a person who has entered into a foreign post-recognition marriage, after the issue of the certificate the marriage is no longer to be regarded as being void''—

which it previously was by virtue of subsections (1) and (2)—

''on the ground that (at the time when it was entered into) the parties to it were not respectively male and female''.

That is qualified by subsection (5)(c), which says that

''the other party to the marriage was not of the gender to which the person had changed under the law of that country or territory''.

I think that that is clear.

We still have the difficulty, however, of whether the Minister is right to say that we cannot recognise even foreign same-sex marriages legally. I wonder whether the Minister can clarify that by an intervention. I have seen social security Bills that contain clauses dealing with polygamous marriages and marriages of people to a partner under the age of consent, which we would not regard as valid here. I do not want to open a debate about those marriages, but is he saying that same-sex marriages are a class apart even from those situations, in that they can never be recognised? He used the same language, which is that we would be creating a small set of marriages that we cannot tolerate creating. It seems that that goes a little further than we have gone

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about those other practices that happen overseas but do not happen here. I hope that the Minister will be able to help.

Mr. Lammy: The Government's position is that no same-sex marriages have been recognised here. There is no authority on the subject. The position under English private international law is unclear. If something were to come to our attention of which we were previously unaware, I would bring it to the hon. Gentleman's attention. However, our position is that foreign same-sex marriages are not recognised in the UK.

Dr. Harris: I am grateful to the Minister for clarifying that he does not know of any such marriages that are currently recognised, even though we recognise polygamous marriages and marriages to people under the age of consent that have happened lawfully abroad.

The Parliamentary Under-Secretary of State for Work and Pensions (Maria Eagle): In some social security legislation we recognise the impact of validly contracted polygamous marriages, in which people come from countries where polygamous marriages are allowed, for the purpose of applying social security rules about benefits for married people. However, we do not recognise the marriage—if the hon. Gentleman sees the distinction that I am trying to make.

Dr. Harris: I see the distinction and it might be dealt with by the amendment proposed by Nicholas Blake, QC, in respect of rights not being lost by virtue of the introduction of the legislation. It would provide for something similar to what the Under-Secretary has described—recognising what flows from the marriage, if not the marriage itself. I am grateful to her, as I looked in her direction when I mentioned social security. I note that she is not dealing—nor should I expect her—with the issue that I raised about marriages between people, one of who is, or both are, under the age of consent.

The Minister with responsibilities for constitution affairs says that he does not think that any same-sex marriages are recognised and that it is the intention of the clause, and in particular subsection (5)(c), to ensure that that remains the case.

Angela Watkinson (Upminster) (Con): Would the hon. Gentleman agree that, in effect, there would be a form of same-sex marriage in this country if one partner in an existing marriage were to undergo gender reassignment and acquire a new gender but not seek a gender recognition certificate? In those circumstances the marriage would remain legal and, to the eyes of the world, they would be two people of the same gender living together in marriage, but it would not be recognised in law.

Dr. Harris: That is right. I am not a lawyer and I am dubious about using Latin, so I do not know whether it is a de facto same-sex relationship—

Maria Eagle: Doctors use Latin all the time.

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Dr. Harris: This one did not; this one missed those parts of the course because of by-elections, which is probably why I am doing this and not practising.

The point is that the relationship is not recognised as a same-sex marriage because without the gender recognition certificate the transgender status is not recognised for the purpose of marriage and the marriage has to be dissolved.

The points that the hon. Lady raises are important because people's understanding of what happens is different from the law. I will not prolong the matter; it is important to wait for the Minister's promised response in writing, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 ordered to stand part of the Bill.

Clause 22

Prohibition on disclosure of information

Mr. Boswell: I beg to move amendment No. 21, in

clause 22, page 9, line 3, leave out 'in an official capacity'.

I am conscious that time is increasingly precious and I am anxious that the serious issues in the amendment should be debated. The Minister and other members of the Committee will have noticed that the amendments are essentially probing, but it is important for Ministers to reply to them.

Given the sensitivity expressed many times about the transsexual community and the release of information, the last thing that anyone in Committee wants is the wanton abuse or publication of information about the transsexual person's application or gender history that would cause them distress. Against that, there are the public duties, including crime prevention and child protection, which must be properly dispatched. It is that balance—to use the Minister's phrase—that we are analysing again.

If we were to agree to the amendment, it would formally preclude the release of any protected information by any person to any other person, regardless of whether it was acquired in an official capacity. There was a good deal of discussion in the debates in another place about Ministers not becoming over-officious and seeking to regulate gossip. If Ministers are taking that approach, it is a fairly healthy if not always characteristic one. Clearly, even if we privately felt that something was better not said, we would not necessarily wish to pass a law or to take the full weight of the law against someone who said something in a casual moment. It is regrettable when people gossip about personal matters, but we should not necessarily pass laws to stop it.

I would be grateful if Ministers would clarify whether they are taking that position. Perhaps they would also say whether any changes to the general laws or obligations in respect of confidentiality and privacy may come about that would bind us all as citizens rather than binding only those in a specific and official capacity. That is my first concern on the matter.

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My second concern is with the definition in clause 22(3) of the official capacities in which persons may acquire protected information. The Minister may have had a chance to reflect on something that I mentioned in our earlier discussions on marriage, or he may want more time to reflect. For the purposes of the Bill, clergy, whether in the Church of England or the Church in Wales, are not seen to be acting in an official capacity because they perform not a public function but a private religious function. I am not absolutely clear whether they have duties of confidentiality and, if they do, exactly how such duties bind them or relate to other duties that apply to other ministers or leaders of religions or faith communities.

It is not always clear whether Members of Parliament act in an official capacity; we should never be obsessed by that in this place. We are not officials or holders of public office. Mr. Speaker may have a position as a public office holder but we do not. I do not suggest for a moment that we should abuse anything that comes our way. I am sure that we are all familiar with the general duties of confidentiality in our work as constituency Members, but it would be useful to clarify how they work.

The third point is rather different. It is about the release of information in subsection (2) that

''concerns the person's gender before it becomes the acquired gender.''

I hope that the hon. Member for Oxford, West and Abingdon will give me a brownie point for taking notice of one of his colleagues. The hon. Member for Winchester (Mr. Oaten) made an interesting and important point in his contribution on Second Reading when he said that it is possible to leak information in different ways. It is not necessary to be explicit and ask, ''Did you know that this person has had a gender change?'' in order to allow such information to reach the public domain; it could happen by accident. We are all aware that it is possible to breach confidences inadvertently and, to some extent, guard against it, but such a breach can occur because the policies of an organisation are not particularly sensitive to such issues.

I have not checked the record, but I believe that the example of the hon. Member for Winchester was about an academic certificate. That is a typical case. Let us say that Miss Freda Bloggs had undergone gender reassignment and received a certificate. She had been at a university 30 years before and had occasion to go back for an academic certificate. Not only would she no doubt have been registered in her previous name and gender—Mr. Fred Bloggs—but, if she held a public post, particular given the way that people use window envelopes, that would involve a public display of her gender history. That is something that no one, least of all academic authorities, would wish to encourage—indeed I am sure that they would wish to avoid it. Ministers should discuss with people who might have an interest in the issue, who are not necessarily defined as acting in ''an official capacity'' under the terms of the clause, whether something must be done.

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I am thinking whether it might be possible to agree with the main purveyors of this sort of historic information that there should be a code of practice to which they should adhere. Perhaps a transgender person who had received a certificate would be able to draw their attention to the provisions of the code of practice and encourage them to take the necessary steps to avoid personal details being disclosed. For example, in the case that I cited, a university could be persuaded to modify academic certificates to accommodate the change of name and gender so that that way of inadvertently disclosing someone's history would be closed.

These are tentative but important thoughts. None of us on the Committee would want anyone to abuse information that they obtain. Some information may come contingently in conversation, and I would hope that people would not abuse it anyway, although it would be useful if the Minister were to clarify whether there are duties or restraints on the use of that information. Some information may come formally in an official capacity, and it would be useful if the Minister could define that capacity and how far it goes. Some of it might fall into the public domain because of the insensitive use of past information, even when tendered in good faith. The Minister needs to consider whether reasonable understandings can be found, as have operated historically for public services such as driving licences, which could be applied and made available to people not strictly acting as public officials so that they could play their part in making the situation acceptable for all involved.

 

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Prepared 16 March 2004