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Mr. Leigh: Precisely. Pepper v. Hart is an aid to litigation: it does not prevent it.

The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): Does the hon. Gentleman accept that this place can never stop litigation, but that it prescribes certain circumstances in which judges may stop litigation? We have regulations related to vexatious litigants, we have costs orders, and the Legal Services Commission has the power, under the sufficient benefit test, not to fund a particular case. In many circumstances, across the legislation that the House passes, judges and courts have the power to stop vexatious litigants or cases that have no merit.

Mr. Leigh: Why, then, did Mr. Bill Parry succeed in suing that church in south Wales, forcing it to incur costs by going to the local county court? Although the judge found in its favour, he said that it would have to pay half the costs—several hundred pounds. That may be nothing to a company, but to a small Baptist church in south Wales, it is quite a lot of money. Of course, the Minister is right, but given the views that we have had from various lawyers, it is not entirely clear to me that judges would in all circumstances stop such litigation. Whether such litigation is vexatious is a value judgment, and the view could be taken that it was not vexatious.

Mr. Lammy: I would simply say that this is a matter for the independence of the judges, and that the case that the hon. Gentleman mentions was conducted in the absence of the Bill, which has not received Royal Assent. Clearly, if a claimant were legally aided, one would expect the Legal Services Commission to make a judgment on the merits of future cases if a series of cases had been unsuccessful.

Mr. Leigh: That may or may not be true in the context of legal aid. We cannot say with any certainty that the commission would always reach that view, and the plaintiff might not be legally aided.

I do not see why such a moderate new clause, which simply quotes existing human rights legislation, cannot be incorporated in the Bill, to save the churches all this trouble. It would make things so much easier.

Chris Grayling: Probably relatively few church groups would feel able to go as far as the litigation
 
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process. Unless reassurance along the lines proposed by my hon. Friend is written into the Bill, it will constitute a huge risk. How many would take the chance? The financial downside of losing would be enormous.

Mr. Leigh: That is probably realistic. Most would have to cave in, although some would want to fight because they rightly or wrongly believe that this is an important issue for them.

Amendment No. 1 simply adds a further instance in which disclosure of a person's birth sex will not be a criminal offence. There are already exceptions for pension companies, and for other purposes. Currently, under clause 22, if one bishop tells another that a priest who has moved to his diocese changed sex, he will have committed a criminal offence. The amendment remedies that obvious anomaly.

In earlier discussions, some have rightly pointed out that the clergy are used to being discreet, and have claimed that such an exception is not necessary. But even the most discreet priest will have occasion to disclose personal matters about worshippers to his fellow clergy. That may be necessary to avoid problems in the church.

Let us use the Labour Whips Office as an example. The Whips are used to this distinction. We would all deplore it if the Whips gossiped about our private lives—of course they never do that—but what if a Labour Member is about to be promoted to a ministerial post, and one of the Whips is aware of some enormous crisis that is about to break in his personal life? Of perhaps that never happens either. It would surely be irresponsible of the Whip not to give some indication of that to those who are deciding whether to appoint him. The same might apply to the appointment of a new volunteer or member of staff in a church. If the church has strong beliefs about what it means to be male or female, it would cause enormous offence to appoint a new leader of women's ministries, only for it to emerge later that she used to be a he, and is the father of three children.

Others compare privacy over a sex change with privacy over abortion. Could a minister disclose the fact that a woman in the church had previously had an abortion? The answer is, under present law, yes—and in certain circumstances, some members of the clergy might consider it appropriate where someone might be asked to provide pregnancy crisis counselling, and that would not currently constitute a criminal offence. Why should talking about an abortion be legal and talking about a sex change be illegal? Do we really want this to be a criminal offence?

It is interesting to compare the Bill's treatment of religion with its treatment of sport. Sport is big business, of course. It is an industry with a huge amount of money and a huge amount of influence, political and otherwise. In popular culture, it is much more important than religion. When sporting bodies wanted an exemption from the Bill, they got their way. The Government originally said that they had nothing to worry about, using arguments similar to some that we may hear today; but when those bodies continued to press for an exemption, the Government gave way. The financial rewards for winning meant that the issue had to be addressed. What concerned the sports industry was that
 
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some man somewhere might consider dramatic surgery to enable him to become a winner in female events. The Government have allowed sports groups to discriminate against transsexuals when it is necessary to protect competitive sport.

We simply want churches to have an equal right to decide their affairs when they sincerely believe that it is necessary to protect their religious doctrine. There is a lot of concern about this in religious communities. Today's Report stage is our last opportunity to amend the Bill. I hope that the Government will look on the amendments sympathetically, and that they will allow their supporters a free vote so that we can reach a considered decision.

1.15 pm

Mr. David Drew (Stroud) (Lab/Co-op): It will not take me long to make my point.

I was with the hon. Member for Gainsborough (Mr. Leigh) for about half his speech, but the second half made it a bit more difficult for me to agree with him. If a group feels uneasy about being joined by someone on the basis of gender, I see that not as a religious issue but as an issue of people's feeling that their own inclination could be affected.

I thought that the hon. Gentleman was entirely right about conscientious objection. Some of my church leaders have approached me expressing their unease. If we are to produce statute, it would be helpful if we got it right at the outset rather than assuming that it will be improved in due course by custom and practice and further legal challenges.

As always, we have been provided with helpful notes. The hon. Gentleman was magnanimous enough to say that—bar the point that I am about to raise—the Joint Committee on Human Rights did not support his legal opinion, although it did support his view on protecting the clergy's rights in terms of conscientious objection in the event of advance disclosure of an issue that could arise in a particular church. The Joint Committee said that, in relation to marriage, that should not be an offence, but it could be covered by secondary legislation. Is that the Government's opinion? I understand that they are likely to clarify their general approach today, but I should like to know specifically why such a provision should be introduced in secondary legislation.

I would not pretend to have any legal knowledge—I am anything but a lawyer—but I feel that secondary legislation is by nature a weaker form of protection than primary legislation. If it is argued that this question can be covered suitably by secondary legislation, I shall want to know why. I shall also want to know when the secondary legislation will be introduced in what the hon. Gentleman described as the likely event that the Bill is passed today and goes on to become law. It is not unusual for secondary legislation to be somewhat delayed, which would give someone an opportunity to test the provision in the courts.

There are a few questions that need to be answered very quickly to put the minds of some of us at rest. We should like the problem over conscientious objection to be overcome, in the context of more general human
 
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rights issues to do with the wider community; but that must be done in this Bill and at this time, because otherwise we could leave too much to risk.

Richard Younger-Ross (Teignbridge) (LD): When I started to listen to the hon. Member for Gainsborough (Mr. Leigh), and looked at the wording of the new clause, I had some sympathy with what he was trying to achieve. Such questions were raised on several occasions during our deliberations in Committee, and the Minister made it very clear that this issue was not a problem. He put the case that nothing was required and that what was feared could not happen.

I think that all of us on the Committee, like the hon.    Member for Stroud (Mr. Drew), received representations from members of our Churches and faith communities who had concerns, having seen the QC's interpretation of the legislation, and fears about how the Bill might be interpreted. I hope that the Minister will take account of those fears and concerns, recognise that they are genuine and perhaps consider whether there is any way in which some of the clauses could be tweaked slightly to allay them.

I hope that the Minister will explain why he will reject the new clause. I hope that he will reject it because it is a rather heavy-handed way of trying to deal with a perceived problem. It sets out to change primacy in legislation. There would be a great risk if we accepted an amendment to the Bill that said that religious freedom and the faith of a Church had primacy over everything else in the Bill—which is effectively what the new clause would do. I am not saying that that would necessarily affect other legislation, but my fear would be where we would stop. Would we then say that there should be similar clauses in other legislation?

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