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Mr. John Bercow (Buckingham) (Con): My hon. Friend will not be surprised to know that I am rather perturbed by the general thrust of his remarks. If the House, on what is undoubtedly a controversial issue, reaches a judgment on what it thinks is the appropriate human rights treatment of transsexuals, surely it is both wrong in itself, and a dangerous signal to send in relation to other potential legislation, that people, whatever their private views, should somehow be allowed to opt out of the legal and human rights judgment that the House has made.
Mr. Leigh: The answer is that people are not opting out. The Bill will become law. A man will be allowed to become a woman and his birth certificate will be changed. In all respects in society—getting a job and going about his or her daily business—if she was a man who is now a woman, she will be a woman. Is my hon. Friend really saying that when we are dealing with people who have particularly strong moral or religious views we should override those views not in society as a whole, but in their own private meetings and in their own church?
Mr. Leigh: If my hon. Friend really believes that, it is a deeply illiberal point of view.
Rev. Martin Smyth (Belfast, South) (UUP): Liberal or not, the harsh reality of life is that when the state has sought to interfere in the internal affairs of church bodies, there has been constant persecution. If the hon. Gentleman's new clause is not pressed through, it will lead to tension that the country should not have to face. Since 1647, the state has had no rule in the internal affairs of the Church of Scotland.
Mr. Leigh:
We would all agree that the last thing we want to do is return to the controversies in the House in
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the 16th and 17th centuries. We want to keep out of all that. We want nothing to do with what people do in their own churches.
Mr. Leigh: I give way to my liberal Friend.
Mr. Bercow: I thank my hon. Friend for giving way. Over the past five years I, in common with many other Members, have been accused of many things. I do not think I have been accused of illiberalism until now, but there is always a first time. May I put it to my hon. Friend that what he is arguing, in reasonable and measured terms, is that people should have a right, because of their convictions, to exclude from their private gathering a person or people of whose status they disapprove? That would provide a dictionary definition of intolerance, and intolerance should be inimical to anyone with a religious commitment.
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Mr. Leigh: I have already said that I cannot think of any—or many—churches that would exclude a transsexual from their services. Being a Christian is about welcoming everybody, even people of whose past, morals or anything else one might thoroughly disapprove. But there may be a case that may not be entirely unreasonable. I have already mentioned the real case of the ladies in the Baptist church in south Wales—incidentally, the judge finally came down on their side, and they won the case. Were they being entirely unreasonable in saying, "We are a group of ladies, sitting in a private meeting, and discussing intimate female matters. We know that this chap has been man for the last 30 or 40 years, and we would prefer him not to attend our meeting"? It is ridiculous that they should be carted off to the High Court simply for saying that. They were not excluding this man from anything else. My hon. Friend's argument is too wide. Let us return to the narrow point that this House should not, under any circumstances, impose its views on private religious meetings.
The new clause borrows without modification the wording of section 13 of the Human Rights Act 1998, on which I hope all Members can now agree. Section 13 was introduced by this Government in response to religious liberties concerns about the effects of the Act. The wording draws attention to the scope for a clash between religious and other rights. Religious rights are often overlooked, so it reminds the court—that is all the amendment does; it is very narrowly drawn—to pay particular attention to those rights when resolving any dispute affecting a religious group. If some religious group were in certain circumstances acting completely unreasonably, I presume that it would fall as foul of my amendment as of the Bill as drafted. The wording could not be more modest: it simply places in the Bill an acknowledgement that applying this new law in a religious context could affect religious liberties. It seeks to ensure that rights are not ignored, which will help to deter vexatious litigation against churches under the Bill. It will give churches that are sued an extra legal argument that they can use.
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I know that the Minister will say that there is no need for the amendment. Funnily enough, he will not use many of the arguments used by my hon. Friend the Member for Buckingham (Mr. Bercow). He will say that his lawyers have advised him that churches would win any cases brought against them under the Bill that try to change their doctrinal beliefs on transsexualism. He will say that the Bill does not add to anti-discrimination law, and that a transsexual will be no more likely to succeed in suing a church after the Bill's enactment than before it. I will happily give way now to the Minister if what I am saying is completely different from what he intends to say, but I assume that that will probably be his argument, and that he will not use the wider philosophical arguments that my hon. Friend the Member for Buckingham deploys with such skill. He will say that our concerns are sensible, but we should not worry because the Bill does not add to anti-discrimination law.
I say, I think my hon. Friends say, and I know Mr. Dingemans says, that this Bill changes the legal landscape. It says that a man can become a woman in law. How can the Minister be so sure that that fundamental change will not have an effect on the courts? In 1648, the Earl of Pembroke, when a Member of the other place, said that a Parliament can do anything but make a man a woman and a woman a man. Parliament is doing precisely that today. That is why this is an important legal landmark. If Parliament is making that decision, with which the amendment does not argue, it is wrong for the Minister to say that that important legal landmark will not change the legal landscape and open up the possibility of litigation.
Lynne Jones: The hon. Gentleman is wrong when he says that Parliament is making a man a woman and vice versa. Parliament cannot do that—neither would it be right for it to do so. In this Bill, Parliament is rightly recognising the personal and human rights of people who, through no fault of their own, find themselves trapped in the wrong gender, and wish to have their correct gender recognised.
Mr. Leigh: That is entirely right. Parliament cannot do that, and from the hon. Lady's point of view, what it is doing is recognising a medical fact. But it is still an important decision, and to argue that it does not change the legal landscape and that it does not open up the possibility of litigation—especially given the opinions of different lawyers to which I have referred—is to be unduly optimistic. I say that to the Minister in advance of what will no doubt be a convincing speech.
James Dingemans QC says that the Bill will lead to costly and divisive litigation against churches. He agrees that the churches should win in the end, but points out that that will divert their resources into litigation. Furthermore, he says that leaving things that way breaches religious rights. Even if they win, churches may be unable to reclaim their costs against a claimant who is legally aided. Where are they expected to get £100,000 for a Court of Appeal case? It cannot be right to leave the Bill in this state.
Let me deal with Pepper v. Hart. In the other place, Ministers offered Pepper v. Hart statements to clarify that the Bill was not intended to restrict church rights. Pepper v. Hart was a legal ruling that ministerial
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statements could be used when there were drafting ambiguities in the law, and when the drafting of legislation left something to be desired. It was a retrospective solution to drafting inadequacies. Surely we cannot and must not come to the stage at which Ministers refer to Pepper v. Hart in advance of a Bill becoming an Act, saying, "Don't worry, the Bill does not need to be entirely clear. I am now giving a Pepper v. Hart statement. Lawyers in future can refer back to my remarks, so what I am saying should give reassurance to churches." Should we not try to make the legislation watertight before we reach that stage?
Mr. Fallon: Surely the point about Pepper v. Hart is that, whereas it may influence the courts and the decision that they make in any litigation, it will not prevent that litigation. The fact that the Pepper v. Hart precedent has been set, and that these ministerial statements have been made, will not prevent the churches from incurring the expense.
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