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Mr. Heath: I am most grateful to the hon. Gentleman for giving way because I want to correct what I said   earlier. The hon. Member for Gainsborough (Mr. Leigh) is absolutely correct to say that such things are expressed in precisely those words in section 13 of the Human Rights Act 1998, which would have effect irrespective of whether the new clause were included in the Bill; it would still qualify the attitude of the courts in interpreting the workings of the Bill.

Mr. Boswell: I am grateful to the hon. Gentleman for that clarification. I, too, had noticed that happy
 
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coincidence. The Minister, if he is smart, will say, "But we don't need to do it because it is there already." That is an argument, but he needs to be encouraged to take seriously the kinds of concern that have been expressed.

I conclude—we have had enough debate on the issue, although we look forward to the Minister's response—by saying that new clause 1 enshrines the convention rights and is a proper declaratory statement of the rights in relation to religion. On amendment No. 1, I have somewhat greater qualifications because of the difficulty with partiality, but I would tell the Minister that we have collectively identified concerns and the elements of a possible problem. We need to take that seriously and, if possible, legislate now. We certainly also need to keep our minds open to making changes by order that would make those fears prove unfulfilled in practice.

2.30 pm

Mr. Lammy: I am grateful to the House. We have had an excellent debate on this important issue. Clearly, important issues for religious organisations arise from the Bill and the right to freedom of religion is certainly extremely important. It is, rightly, enshrined in our law by virtue of section 13 of the Human Rights Act 1998, whose effects have just been described. The wording of the new clause is in large part borrowed from that section, but the existence of section 13 means that new clause 1 is unnecessary. We have already enhanced protection for the right of freedom of religion in our law.

We have not sought to rely solely on section 13. Throughout the preparation and the parliamentary passage of the Bill, we have engaged with the views of religious organisations and those who, as a matter of religious doctrine, do not accept that a person can change their gender or sex. As we might expect, disagreement remains on that principle, and we have heard that expressed today. However, in the course of several meetings with, among others, the Bishop of Winchester, officials of the Church of England, the Evangelical Alliance and the Christian Institute, we have begun to work through the practical issues that need to be resolved. Following those discussions, in the House of Lords we widened the conscience clause in relation to marriage. That change was widely welcomed. It is important to put on record our respect for religious freedoms and communities and our ability to produce a conscience clause that protects clergy.

Andrew Selous: I know that representatives of the Evangelical Alliance were grateful for the opportunity to meet the Minister's officials last week. I have learned from my discussions with them that they have serious concerns and want new clause 1 or a very similar provision to appear in the Bill.

Mr. Lammy: I have just explained the close relationship between the Bill and section 13 of the Human Rights Act, but perhaps the hon. Gentleman will be more pleased to hear later passages of my speech.

We must protect the rights of transsexual people and we believe that it is essential that the Bill should provide protection for their privacy. The benefits of recognition in the acquired gender would be greatly compromised were there to be open access to the fact that a person is
 
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recognised in the acquired gender. The Government have to weave a path between the two rights: the right of religious freedom and the right of privacy. In that respect, amendment No. 1 is unsuitable: as my hon. Friends the Members for Stroud (Mr. Drew) and for Braintree (Mr. Hurst) said, it is extraordinarily broad and, given its use of words such as susceptibilities and doctrines, would not provide the exemption that religious organisations want.

We accept that religious organisations have some important concerns, but they relate to specific issues. We have heard about the disclosure that might need to take place during the course of considering a person for appointment as a religious minister, whether ordination or appointment to a congregation. Those responsible might want to know whether the person concerned has been recognised in the acquired gender. It has been suggested that similar issues arise when a transsexual person wishes to be considered for membership of a faith community. The hon. Member for South-West Bedfordshire (Andrew Selous) mentioned the rules and practices of some religious communities that would want to exclude people who have acquired gender—although I say for the record that that is not my Christian tradition within the Anglican communion.

A further issue is disclosure to a religious minister who is about to conduct a marriage ceremony. My hon. Friend the Member for Braintree described a case in which someone else—for example, the curate—knows that one of the parties is recognised in the acquired gender; in that case, the curate might feel obliged to tell the minister, yet clause 22 might prohibit disclosure of that important information.

There may be several solutions to such problems and it is right that we approach them in a common-sense fashion, asking what a curate or a faith community faced with such a problem would do in the circumstances,

Andrew Selous: The Minister uses emotive words such as exclude. The clergy and pastors with whom I have spoken are concerned simply to ensure appropriate and sensitive pastoral care. Exclusion is no part of their agenda.

Mr. Lammy: I am grateful to the hon. Gentleman for putting that on the record.

Chris Grayling: The Minister has set out a number of scenarios in which a problem could arise. Does he accept that the benefit of new clause 1 is that it addresses the unexpected, as well as the expected? Undoubtedly, situations will arise that Parliament has not anticipated and of which the Minister did not think when preparing his speech. Does he accept that a signpost in the Bill stating that Parliament wants the courts to be mindful of religious rights is therefore desirable?

Mr. Lammy: Let me make some progress and explain how we would deal with such situations.

We have always said that the primary solution must be to seek the consent of the transsexual person to disclosure. We are discussing sensitive personal information and it is reasonable that, for the most part, the consent of the individual should be required before
 
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disclosure can occur. As I said in Committee, my experience and, I am sure, that of most hon. Members suggests that if a member of the clergy or a member of a faith community were to receive such information, they would quietly and calmly seek the consent of the transgendered person to their passing on that information, should they wish to do so.

In another place we extended the conscience clause so that a religious minister is allowed to refuse to marry a person if the minister has a reasonable belief that the person is recognised in the acquired gender. We understand that baptismal certificates are often requested in cases involving marriage, membership or appointment. Unless a person was baptised after the age of 18, the baptismal certificate would be in the original gender and thus provide the information needed. The hon. Member for South-East Cornwall (Mr. Breed) asked whether disclosure of baptismal certificates would cause problems. I refer him to clause 22(4)(c), which allows an exemption for cases in which someone could not have known that the person was transgendered.

Mr. Boswell: Will the Minister advise the House, now or later in his speech, or perhaps in writing, whether an offence will have been committed by somebody who discloses historical information—for example, in a baptismal or academic certificate—in good faith, with no knowledge of any intervening change of gender? Secondly, if the release of the information is an oblique or indirect way of securing or passing information about a change of gender, but the disclosure arises simply from the release of historical material that is not an official document, will the person be guilty of an offence under clause 22?

Mr. Lammy: The wording of clause 22(4)(c) is clear. It states:

"the person . . . does not know or believe that a full gender recognition certificate has been issued".

Mr. Gerald Howarth (Aldershot) (Con) rose—

Mr. Lammy: We have only dealt with new clause 1 and I should like to make progress. It is important that we deal with as many groups of amendments as possible this afternoon.

As Members will see, clause 22 provides the Secretary of State with the power to prescribe further exemptions to the prohibition on disclosure in secondary legislation. Our intention is to use that power to provide for detailed exemptions wherever necessary. It is already clear that problems arise only in very specific circumstances. As I have said, we must respect both the rights of transsexual people and the right to freedom of religion and weave a path between them. By using secondary legislation and engaging in dialogue with religious organisations, we are seeking to deal with that problem.

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