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Mr. Boswell: This has been an excellent debate. The House is grateful to my hon. Friend the Member for Gainsborough (Mr. Leigh) for introducing it so comprehensively and for sparking off some other excellent contributions. I found very little to quibble about in my hon. Friend's own contribution. I merely point out that although I speak from the Front Bench I neither require nor encourage my colleagues to follow me in this matter. All votes from these Benches today will be free votes.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con):
All votes are free votes.
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Mr. Boswell: Indeed, but the votes today are particularly free and we should welcome and celebrate the diversity that they may yet produce.
Mr. Bercow: I am grateful to my hon. Friend for giving way and I am sure that we are all particularly grateful to my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) for pointing out that all votes are free votes, but does my hon. Friend the Member for Daventry (Mr. Boswell) think that that was the view expressed by our right hon. and learned Friend when for a brief period he was a Government Whip?
Mr. Boswell: Some things in this place are perhaps best left unsaid, especially among consenting friends, if I may put it like that.
I speak as a supporter of the Bill but also as someone who signed the new clause with enthusiasm and amendment No. 1 with a degree of tentativeness, and who has listened to the representations made to me. The Bill deals with some difficult issues, many of which we dealt with equably in Committee. Almost all the letters I received about the Bill were from faith interests, the majority from Christian interests. They reflected the opinions of a variety of churchmanship, from Catholic to Free Church. We should remember, too, that other faith communities, including Muslim communities, are exercised about the Bill to some degree or another.
I am a Christian, as I made clear in Committee, so I may be said to have an interest. In general, I support the Bill but I have reservations about these aspects. It has been right to debate them and we look forward to the Minister's response. Equally, however, I have reservations about the situation that might arise if we were to enact the new clause.
As a general rule, I do not like partial legislation; as several hon. Members on both sides of the House have pointed out, there should be no special deal for the Churches. They should not have carte blanche against the provisions of the law, as the hon. Member for Hampstead and Highgate (Glenda Jackson) said, to do exactly as they like when that is unacceptable to the House. We must defend that principle. Equally, however, we must respect their sensitivities and their broad underlying decencies wherever we possibly can.
2.15 pm
I do not seek to patronise the many people who wrote to me personally—the number ran into three figures—because we know how things can be encouraged. People read about something and want to write to someone to express their concern. However, it is possible that not all my correspondents fully understood all the implications of the Bill and the safeguards that it already contains. Indeed, I am not absolutely sure that any of us do—it is a complex matter, with legal cruces to which I shall turn in a moment. It is also possible that some people, even those in faith communities, may be motivated by personal dislike of or distaste for transgendered people. I do not condone that and I do not follow them in it, but it is possible that some people may be using some of the practical difficulties as a shield behind which they can advance such views. I certainly do not want to encourage that. Nevertheless there is a body of interest
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and concern among decent and responsible opinion, mainly in the Christian Churches, that should be properly addressed.
The Minister will be able to make this point better and more clearly than I, but there are already several serious safeguards in the Bill and they should be embodied in good practice. We should, for example, try to embody them in Christian practice. A minister has the right to ask, and the respondent the right to decline to answer, the question: "Are you or are you not a transgendered person?" That is a reasonable and proper question—for example, in regard to marriage—especially if the rules of the Church preclude particular offices or practices to a person in that situation.
An individual, whether or not they are a minister of religion, has the right to pass on information, provided that it is done with the consent of the person concerned. That is obviously the best situation in practice. Nevertheless, despite those safeguards, the faith communities have concerns and have written eloquently to us about them.
First, faith communities have concern about practices that they would regard as normal and reasonable. Secondly, they are concerned about the discharge of their pastoral duties—for example, between one member of the clergy and another. Thirdly, and more widely, they are concerned about the threat of litigation that, even if they were to win it, might incur considerable hassle and cost to a relatively small community, unused to early recourse to legislation.
The Minister will rightly say that nobody can be precluded from taking up their rights under the law as a matter of principle—nor should they be; as he has already reminded the House, if that were contrary to public purposes there are already safeguards. However, to my regret, we are moving towards a society that is highly litigation-driven, where people will seek either to assert and secure their rights or to make a point about their putative rights at the expense of a third party.
Chris Grayling: On a point of order, Mr. Deputy Speaker. I apologise to my hon. Friend for interrupting him, but the Officers of the House might like to be aware that there is a pronounced smell of burning on the Opposition side of the House.
Mr. Deputy Speaker: I am well aware that there is a smell of burning on both sides of the House, and it is being investigated at the moment.
Mr. Boswell: I was doing my very best not to make an inflammatory speech and I am sorry that I have so conspicuously failed to do so, but let us heroically return to the point in the hope that the fires will not be in store for us all.
There has rightly been a great deal of discussion about the legal opinion of James Dingemans, QC in this matter. There then equally has been put against that opinion—as a layperson, I am enjoying this rather vicarious clash of the champions—the view of the Joint Committee on Human Rights, which says in its 12th progress report that it does not agree with it. Of course, as the Minister will be aware, the Joint Committee concedes that, in the spirit of the legislation, there
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should be a conscience clause for clergy, who would not be required under the Bill to marry transgendered persons, to be told that those persons are trangendered. That is an entirely reasonable provision, and perhaps the Minister will tell us how he intends to proceed on that.
Frankly, such a safeguard does not deal with a number of other conscience clause issues that might arise—for example, if a priest is transferring from one diocese to another, the pastoral duties of a bishop to advise the neighbouring bishop of the priest's status as a transsexual person, and in certain faiths where it is not acceptable for such people to proceed to ordination, the fact that they are so. Those are very difficult issues, but they undoubtedly come within the overall gamut of the Dingemans opinion.
Mr. Drew: I am grateful to the hon. Gentleman for giving way and for battling on despite all before us. Those who have taken up this issue with me have particularly wanted to protect their own clergy. Although I support the case behind new clause 1 in outline, what worries me is that no distinction is drawn in it between the additional protection that clergy may need because of the vulnerable position that they may be put in, and the religious freedom that we as Christians would all wish to exercise but which we, through our conscience, would have to take a risk in exercising. Does he accept that there is a problem?
Mr. Boswell: I certainly accept that there is a problem, although with respect—I mean that—the right approach to the solution may not have been found, because some faith communities do not organise themselves separately into clergy and lay people, and a difficulty is obviously created if that is so. As the hon. Member for Braintree (Mr. Hurst) said, that may be something to do with the relationship of trust when someone is in a position of trust or management. That may need to be thought about. I am well conscious of the fact that if the new clause does not prevail in a few moments, the Minister may want to go away and think very much about what may be done under the order-making powers to try to safeguard people's positions. I am pleased to see that he is at least nodding concern, if not assent, about that point.
There is, however, a real worry, and my hon. Friend the Member for Gainsborough has been entirely right to bring this to the House's attention and there are more general applications for these concerns. Even with good will on the part of the Churches and the faith communities and with good will, as I am sure there will be, among the great majority of transgendered people themselves, who will not seek to make political or demonstrative points, the danger is that this will end up in a kind of legal Tom Tiddler's ground. I am a little surprised that no one has quoted the last paragraph of the Dingemans opinion, which bears quotation in full because it expresses very well the concerns in this matter. He says:
"The Bill contains provisions which would criminalise disclosures made for religious purposes which are likely to infringe the religious rights of individuals. Further the Bill, in its current form, gives scope for litigation against individual Churches
- seeking to act in accordance with their religious beliefs. Such litigation is likely to be divisive, costly and of benefit only to the lawyers."
That is my sensitivity on this matter.
I said, however, that I believe that some of those issues perhaps have a wider application than the Bill itself. I will say very briefly—I am conscious of the fact that I am speaking to a motion on Report, rather than raising a general issue—that my own experience and concerns arise as a co-sponsor of the Promotion of Volunteering Bill. Again, there is the problem. A large number of hon. Members on both sides of the House want to achieve common support for the voluntary sector, but we are conscious of the fact that, in a litigation-driven culture, people are moving towards recourse to law, suing on risks that may or may not have been inherent in the situation, with all the problems that brings for small, relatively unsophisticated bodies in fighting off that kind of litigation.
My hon. Friend the Member for Gainsborough referred in his most telling remark—he took the words from my lips, so I shall have to repeat them on his behalf—to the legal debate about whether one convention right should trump another. That is exactly the point. With respect, he and I cannot resolve that issue—it is not our job to do so—but the fact that there is such a debate creates the conditions for litigation, which is of benefit only to lawyers.
I happen to believe that, as we clear the path through blatant issues of discrimination and the abuse or denial of human rights that have characterised our society over the years—we need not make huge political points about them or claim to have been politically virtuous in dealing with them—and as we gradually put our society in the right way in respect of the treatment of women, minorities or whatever, we begin to find that we have done the easy part. We have dealt with things about which discrimination should never have been allowed to occur in the first place. However, we then come across clashes where one right overlays and diminishes another right, and we then have real problems on our hands.
We need to remember that all this came from the European Court of Human Rights judgment that the United Kingdom had infringed articles 8 and 12 of the European convention on human rights, but article 9 deals with practising religion. There is no provision in the European convention or the Human Rights Act 1998 for one measure to trump another. They must all be held in balance. It will be more difficult for the House to hold those things in balance than in the past, but our job today is to try to get them as best in balance as we can. That is a real-world issue.
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