Gender Recognition Bill [Lords]

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Mr. Boswell: I am grateful to the Minister. I think that he and I agree on the scope and nature of voluntary organisations, and that they should behave in a professional and proper manner. I am sure that no one would wish to construe this useful and constructive debate as being otherwise. In the light of the Minister's response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lynne Jones: I beg to move amendment No. 51, in

clause 22, page 9, line 31, at end insert

'where prior application for disclosure has been made to the court or tribunal, the court has ruled that such disclosure is relevant and reasonable.'.

Subsection (4) details the circumstances in which it would be permissible to disclose protected information. Paragraph (e) states that disclosure is permissible if it is

''for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal''.

Amendment No. 51 is a probing amendment, through which I seek reassurance from the Minister that disclosure would be permissible only if it were relevant and reasonable. For example, would it be permissible for a case against an individual to be posted as ''Jane Smith, formerly known as Peter Smith''? That may well be appropriate in some circumstances. I am sure that we can all envisage circumstances in which it would be appropriate to disclose the actions of an individual before gender recognition or a name change, but they must be relevant to the proceedings. Quite simply, that is the purpose of the amendment.

I appreciate that subsection (7) outlines the provision under subsection (5), but, as I am not legally trained, it is not clear to me whether that covers the concerns that are addressed in the amendment.

Mr. Lammy: We do not wish to allow people to get around the prohibition against disclosure simply by ensuring that it takes place in court. That is why the exception that we are discussing has been carefully drafted. It does not provide that disclosure made in the course of proceedings before a court or tribunal is lawful. It is narrower than that: disclosure must be ''for the purposes of'' such proceedings.

If a disclosure is made that is not relevant, even if it is done in the course of proceedings, it will not be covered by the existing exception, and would therefore be unlawful. Persons making the disclosure would be subject to prosecution and would face a maximum fine

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of £5,000. They would not be able to use the exception in their defence. The exception was conceived to cover various situations, such as those involving people who have subsequently changed gender or who incurred a debt or committed a crime before they changed gender. In such circumstances, disclosure of the previous identity during court proceedings will be for the purposes of those proceedings only, and hence will come under the terms of the exception. The amendment is therefore unnecessary. We believe that clause 22 will effectively protect the privacy of transsexual people.

Lynne Jones: I will give consideration the Minister's reply. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Boswell: I beg to move amendment No. 23, in

clause 22, page 9, line 37, at end insert 'or'.

The Chairman: With this it will be convenient to discuss amendment No. 24, in

clause 22, page 9, line 39, leave out from '(5)' to end of line 41.

Mr. Boswell: The amendments would exclude subsection (4)(j). As they are probing amendments, it would be helpful if the Minister would explain why it is necessary to make such a provision. I may make similar comments on the next clause, but I always find myself a little uneasy when I come across such general catch-all provisions. It would be useful if the Minister could tell the Committee what he has in mind.

Mr. Lammy: The Bill is designed primarily to secure the rights of transsexual people. However, all human rights legislation must seek to strike a balance between the rights of one set of individuals and the rights and freedoms of others. For that reason, the prohibition against disclosure in clause 22 is limited in important ways. Disclosure is permitted when it is made in accordance with, or by virtue of, a statutory provision. Clause 22 will therefore not prevent members of the civil service or of other public bodies from carrying out their statutory functions. It is a standard exemption, similar to one that appears in the Data Protection Act 1998. The amendments seek to remove that exception, but we believe that that would have a damaging impact on many areas of public policy. The most effective way for me to make the point is to offer some examples.

The tragic case of Victoria Climbie probably best illustrates why such a provision is appropriate. Section 81 of the Children Act 1989 empowers the Secretary of State to cause an inquiry to be held into any matter connected with the functions relating to children of, among others, of a local authority, an adoption agency or voluntary organisations. The person appointed to hold the inquiry may require any person to give evidence or produce documents in accordance with subsections (2) to (5) of section 250 of the Local

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Government Act 1972. Those are powers in relation to local inquiries. The first Victoria Climbie inquiry was established under section 81 of the Children Act 1989. I know that hon. Members will understand why, under such circumstances, it may be important to inquire, and to allow that exception.

I turn to another example. The Adoption Agencies Regulations 1983 require an adoption agency to provide access to its case records and to disclose information in its possession to persons listed in regulation 15. That regulation also allows the agency to disclose such information as it thinks fit—first, for the purposes of carrying out its functions as an adoption agency; and, secondly, to someone authorised to carry out the search. Regulation 16 allows an adoption agency to transfer a copy of a case record to another adoption agency if it considers it to be in the interests of a child or prospective adopter to whom the record relates. Adoption case records could include protected information—for example, where a person who has changed gender had previously adopted a child in their birth gender.

I hope that those two examples show the sorts of disclosures that will be permitted by virtue of the exception that the amendments would remove. I hope that the hon. Gentleman will withdraw the amendment.

Mr. Boswell: I am grateful to the Minister for that explanation. It is useful to have confirmed the Bill's congruence with the Data Protection Act 1998, which in that respect has not given rise to material difficulties. The two examples cited by the Minister were useful. As I understand it, the provision is a generic one to enable public officials and private agencies and other bodies operating in this delicate field to do their job. It is not a matter of specific authorisation for individual acts. We are talking about the ability, at law, to be able to show after the event that they have conducted themselves within the framework of their overall statutory duties and obligations. That is not inherently unreasonable. Indeed, speaking prospectively, it bears on a new clause that we may still have an opportunity to touch on before we conclude our proceedings. In the light of those assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 ordered to stand part of the Bill.

Clause 23

Power to modify statutory provisions

Question proposed, That the clause stand part of the Bill.

Mr. Boswell: When I see a clause headed ''Power to modify statutory provisions'', I feel a degree of sensitivity. That is not a power that we should give to any Government or Minister lightly, because we are here to decide what legislation we want, and not what kind of legislation Ministers might want or that we might have had if we had thought of it.

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I understand the genesis of the clause. The helpful explanatory notes from the Department state:

''Legislation has made distinctions on the basis of gender for centuries, and the use of gender-specific terms, though it has reduced, nevertheless continues in some contexts.''

It goes on to spill the beans on why the clause has been included:

''Though a thorough analysis has been conducted of areas in which the facility to change gender may cause difficulties or complexities, this clause acknowledges the possibility that other instances may come to light in the future.''

In other words, it is designed to cover situations that might happen, but which the Department has not noticed yet.

I could nod to the general wish, but I want to make one point. Legislation now is non-gender specific, generally. That is welcome and I hope that that will not change. I agree that there may be some draftsperson in the future who nods and lets something through, perhaps because of the habits of a lifetime, but I hope that the clause is primarily targeted towards clearing up any difficulties in old legislation, rather than in new legislation.

The Minister may like to consider that that there may also be circumstances in which the use of gender-specific legislation bears on private law and the relationship between parties—issues that may not have been adequately covered under the saving clause, clause 18. In that case, he may wish to deploy the provision in relation to a private inequity.

Perhaps the Minister can briefly comment on the points that I have raised. We should not allow general enabling powers to pass without some mention.

Mr. Lammy: We had an interesting debate about the various uses of ''female'', ''male'', ''sex'' and ''gender'' in legislation in this country. I indicated that the use of the words ''sex'' and ''male'', in particular, was much higher than the use of the words ''female'' and ''gender''. That has much to do with current practice, which has developed since the '70s, since when people have tried to use less gender-specific terminology. I support the point that the hon. Gentleman has made. In that sense, this provision could be used to remedy a situation.

I should put it on the record that if the Bill is enacted, Parliament clearly will have agreed the basic principle that a person is to have all the rights and responsibilities appropriate to the acquired gender. The power to modify statutory provisions will be used only to ensure that that principle has full effect. That is an important qualification to make when discussing an enabling provision. I am grateful for the hon. Gentleman's observation in relation to clause 18 and I will study that carefully.

 

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Prepared 16 March 2004