Third Report
Gender Recognition Bill [HL]
Introduction
1. This bill is to give transsexuals the opportunity
for full legal recognition in their acquired gender.
The Delegated Powers
2. There are delegated powers to make orders
or regulations at clauses 2(4), 21(5) and (6), 22(1) to (3) and
25 and paragraphs 3, 14 and 23 of Schedule 3. There are minor
extensions of existing powers at paragraphs 12 and 13 of Schedule
5 and paragraphs 16 and 17 of Schedule 6. There are also powers
at clauses 3(6), 4(5) and 7 which could be considered legislative
powers. The Department for Constitutional Affairs has provided
a memorandum for the Committee. The memorandum is printed at Annex
1 to this Report.
3. Although in most instances we take the view
that the delegations are appropriate and subject to an appropriate
level of Parliamentary scrutiny, three of the delegated powers
raise issues to which the Committee wishes to draw the attention
of the House.
CLAUSE 2
4. Under clause 2(1), a person applying to a
Gender Recognition Panel on the basis of living in another gender
must satisfy the panel on four matters, set out in paragraphs
(a) to (d). But a person applying on the basis of having changed
gender in another country has to satisfy the Panel only that the
country is an "approved country", with greatly reduced
evidential requirements (clause 3). Clause 2(4) provides that
countries are "approved" for the purposes of clause
2 by order made by the Secretary of State subject to negative
resolution procedure.
5. It is appropriate that approvals should be
given by order, as the list of approved countries will change
from time to time. The Government state, in the memorandum to
this Committee, that the power "will be used to prescribe
those countries that have criteria equivalent to our own".
But the power is not limited on the face of the bill to prescribing
such countries. Should the policy change in the future, the power
might be used for prescribing also other countries, thus extending
the cases in which an application could succeed without the need
to satisfy the Panel about the specific matters in clause 2(1)
(a) to (d), and without the need to satisfy the evidential requirements
of clause 3(1), (2), (3) and (4). In view of this, we conclude
that the negative procedure does not provide an appropriate level
of Parliamentary scrutiny for a power of such potential significance
in the context of the bill. We recommend that the affirmative
procedure should apply.
CLAUSES 3(6) AND 7
6. Clause 3(6)(b) provides that applications
for determination by a Panel should include, as well as a statutory
declaration about marital status, "any other information
or evidence required by the Secretary of State".
7. 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.
8. 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. However, we recognise that the number of
applications is likely to be small. We suggest, therefore,
that the House may wish to invite the Government to explain more
fully why, in this case, the general requirements about information
and evidence to accompany applications should not be set out in
regulations, whether or not subject to a Parliamentary procedure.
9. We believe that the same point applies to
fees payable on the applications (clause 7(2)) and to the form
and manner of the applications (clause 7(1)), and suggest that
the House may similarly wish to invite the Government to provide
a further explanation in relation to these provisions also.
SCHEDULE 3, PARAGRAPH 11
10. Schedule 3, Part 1 sets out the registration
procedure for England and Wales. There is a Regulatory Reform
Order in progress, which it appears will be ready for "first
stage" scrutiny early in 2004 which will reform the legislation
relating to the registration of births, marriages and deaths.
Schedule 3 to this bill reflects the provision for births, deaths
and marriages as it now is. If the Regulatory Reform Order is
passed and made, we think it likely that the Government will wish
to use the Regulatory Reform process to amend Part 1 of Schedule
3.
11. The "two year" rule in the Regulatory
Reform Act 2001 would prevent a Regulatory Reform Order amending
Schedule 3 from being made for two years following this bill's
enactment. So paragraph 11 of Schedule 3 overrides the two year
rule for amendments to Part 1 of Schedule 3. We have commented
in the past that we do not expect to see this sort of provision
frequently in legislation. On this occasion, however, we raise
no objection.
12. Paragraph 11(b) of Schedule 3, however, raises
a different order of questions. Paragraph 11(b) disapplies both
the consultation requirements of the 2001 Act and the "first
stage" scrutiny, so that the order amending Schedule 3 would
proceed as an ordinary affirmative resolution order. Bearing in
mind the limited scope of Schedule 3, we do not suggest, in this
case, that the resulting level of Parliamentary scrutiny is inappropriate.
But we are concerned about the underlying point of principle.
The consultation and scrutiny requirements are normally an essential
part of the Regulatory Reform Order process and such orders undergo
a different Committee procedure in Parliament to other orders.
If the effect of the bill is to shorten the process, in this
particular case, so that it is equivalent to the ordinary affirmative
procedure, then we take the view that the bill should provide
a particular power (subject to affirmative procedure.) limited
to amendments to Part 1 of Schedule 3.
Conclusion
13. We draw to the attention of the House
to the recommendations in paragraphs 5 and 12 and the suggestions
for further explanation in paragraphs 8 and 9. There are no further
matters in relation to the delegated powers in this bill on which
we wish to report to the House.
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