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Session 2004 - 05 Publications on the internet Standing Committee Debates |
Seventh Standing Committee on Delegated Legislation |
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Column Number: 1 Seventh Standing Committee on Delegated LegislationThe Committee consisted of the following Members: Chairman: Mr. Bill O’Brien †Allan, Mr. Richard (Sheffield, Hallam) (LD)Atkinson, Mr. Peter (Hexham) (Con) †Boswell, Mr. Tim (Daventry) (Con) †Cruddas, Jon (Dagenham) (Lab) Davidson, Mr. Ian (Glasgow, Pollok) (Lab/Co-op) †Davies, Geraint (Croydon, Central) (Lab) †Harris, Dr. Evan (Oxford, West and Abingdon) (LD) †Lammy, Mr. David (Parliamentary Under-Secretary of State for Constitutional Affairs) (Lab) †Martlew, Mr. Eric (Carlisle) (Lab) †McCafferty, Chris (Calder Valley) (Lab) †Prentice, Ms Bridget (Lewisham, East) (Lab) †Soley, Mr. Clive (Ealing, Acton and Shepherd’s Bush) (Lab) Stanley, Sir John (Tonbridge and Malling) (Con) Stringer, Mr. Graham (Manchester, Blackley) (Lab) †Tapsell, Sir Peter (Louth and Horncastle) (Con) †Wills, Mr. Michael (North Swindon) (Lab) Frank Cranmer, Committee Clerk † attended the Committee Column Number: 3 Thursday 10 February 2005[Mr. Bill O’Brien in the Chair]Draft Gender Recognition (Approved Countries and Territories) Order 20059.55 amThe Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): I beg to move,
The Gender Recognition Act 2004 received Royal Assent on 1 July, and its provisions will come into force on 4 April 2005. I am pleased that the hon. Members for Daventry (Mr. Boswell) and for Oxford, West and Abingdon (Dr. Harris), who contributed so much to that legislation during its passage through the House, are here today. Other members of the Committee might find it useful if I briefly outlined the main objectives of the Act before considering the order. The Gender Recognition Act is about equality, human rights, dignity and respect. I, for one, am proud to be associated with it, as it brings legal rights to a small and vulnerable minority—a minority of people who are driven to live in the opposite gender to the one into which they were born. Many of us have constituents who are transsexual and who have learned at first hand the very real difficulties that transsexual people face in their everyday lives. The Act provides transsexual people with the legal recognition of an everyday reality—the gender to which they now belong; their acquired gender. It is no mere legal technicality. It determines who such individuals can marry, their pension rights and much else. Legal recognition means that the transsexual person is entitled to be treated for all purposes as a person of the acquired gender, gaining the legal rights and responsibilities appropriate to that gender. The Act sets out three criteria against which a transsexual person applying for legal recognition will be assessed. They are that the person must have or have had gender dysphoria, which is the recognised medical condition of transsexual people; that the person must have lived in the acquired gender throughout the preceding two years; and that the person must intend to do so until death. The application process is robust, credible and sustainable, and it was recognised as such by Parliament during the passage of the legislation. Gender recognition panels, composed of legally and medically qualified members, will determine all applications. In drawing up the application process, we had to be mindful of the fact that many other countries already grant legal recognition to transsexual people in their acquired gender. That is why the Act sets out a process
At the same time, Parliament and the Government were concerned to ensure that the criteria set out in the Act could not be compromised. If we had not been alive to that danger, we would have created a potential for forum shopping; that would allow a person who did not expect to receive recognition in the UK to go overseas to a country with much softer criteria. If, by virtue of that overseas recognition, the person gained recognition in the UK, others would follow, and the integrity and credibility of the processes in the Gender Recognition Act would be damaged. The order protects the integrity of the application process in the Gender Recognition Act. It provides a list of all the approved countries and territories that research has established have a process for legal recognition at least as rigorous as ours. We have consulted on the order, and it has received the support of the transsexual community. In making the order under the affirmative resolution procedure, the Government are fulfilling commitments that we made to both Houses following the recommendations of the Delegated Powers and Regulatory Reform Committee. The order can be revised as other countries and territories establish new schemes for legal recognition. There are no standardised criteria for gender recognition; different countries apply different standards for recognition. In drawing up the list, we applied two key criteria. First, we allowed only those countries or territories that provide legal recognition for gender change. The UK Act is about legal recognition and we felt that we should approve only others that had taken that same decisive step. Secondly, we allowed only those countries or territories where the process of legal recognition is such as to demonstrate the permanence of the decision to change gender. In summary, the order provides clarity on those countries or territories that have a process for legal recognition that we can trust. A transsexual person who has been recognised in any of the countries or territories on the list will have undergone a process of gender reassignment with the intention of living permanently in their acquired gender. I commend the order to the Committee. 10.1 amMr. Tim Boswell (Daventry) (Con): I begin by welcoming you to the Chair, Mr. O’Brien, and reassure you that this need not be a long or difficult process, at least not as far as I am concerned. I also welcome the Minister and what he said in generously acknowledging the Standing Committee that
On the general application, a constituent of mine who wishes to apply for gender recognition and has been helpful in briefing me at all stages through the process, including up to the commencement, has, in her acquired gender, initiated the process. She wanted me to report favourably on the official response that she has received. She said that the forms were clear and was happy about that. It is right to give credit where it is due, and I hope that the Minister will pass that on to his officials. We are not against the order. We do not seek to divert it and it is therefore inappropriate to talk at length on it. However, I should like to probe the Minister on one or two points on which I seek assurance. My first point, which I had not anticipated, arises from the absence of a regulatory impact assessment—actually, from an admission in the explanatory memorandum—and is about the cost to the public sector. The memorandum says:
That is obviously sensible and I am pleased that we are saving money. However, it has occurred to me that we perhaps did not pay quite as much attention as we might have done to the nuts and bolts of the fees that applicants for gender reassignment are charged. Such issues are always administrative matters for Ministers to decide after legislation is enacted. The logic of the admission that some money will be saved is that domestic applications will cost the health service; the cost will not be fully absorbed by the fees charged. The Minister will remember that we referred in Standing Committee to ensuring that the fees were not inordinate or inappropriate. It would be useful if he could explain whether there is an element of cross-subsidy. I suspect that we are talking about practitioners under the national health service who will have been responsible for the care and management of the persons involved anyway, and that the cost will therefore be purely notional, but it is important to clarify the point. My second point is about the countries and territories on the list. The Minister has explained, to my certain satisfaction, that the main criteria are legal recognition and permanence and the existence of a separate regime to deliver that in each of the approved countries and territories. Even a cursory look at the list will secure the observation that most of the main countries—or, in the case of north America, most of the states or provinces—with which we deal are covered, with one exception to which I shall refer in a moment. That is helpful. It would be useful if the Minister said how, having done the initial work, he intends to keep the list updated. Will he look at it ad hoc as a post reports the introduction of gender
The inference to be drawn from that is the wider the mutual recognition, and most importantly, the less intrusive it becomes for the individuals, the better. Although the Minister did not use the phrase, a lot of this is about what might be termed double jeopardy—having gone through one process and then having to experience another for purely administrative reasons. Therefore, I have no problem with extending the list if that is the right thing to do, but it would be useful if the Minister explained how that is to happen. The other side of the matter is a little more negative. I do not anticipate trouble, but the Minister was right to refer to the danger of forum shopping if a country has a weaker regime. I am concerned not so much with the legal form of the regime but with whether it operates in practice. I do not suggest, for example, that our hard-working posts should spend all their time checking whether there has been infelicity in the operation of the local gender recognition legislation in some province of Canada, for example; of course not. However, I hope that the Minister will be alert to cases that are brought to the attention of the Government through local reporting, or to any difficulty arising out of litigation, and that he can assure the Committee that if something happens that we would not wish to happen, the state involved will be de-registered. As I understand it, it would still be open to an individual in such a situation to come to the UK and to apply for a gender recognition certificate within our rules, but this is about mutual recognition. I acknowledge, in case the point has escaped the Committee, that in many cases the requirements are more drastic than ours because they require a physical act of surgery. I am not looking for trouble, but it is important to anticipate it. My final point goes a little wider again. It relates to the other implications of issuing gender recognition certificates to citizens whose normal residence or origin is not in the United Kingdom. The Minister will remember some interesting exchanges in Committee on The Hague convention, on which I know he is an expert, and on the obligations within the European Union in relation to issues such as the recognition of the married status of persons who have undergone gender reassignment—they have been married in their acquired gender, but might not be regarded as validly married under the law of one of the other member states. There are also interesting and difficult issues on the benefits front, as well as in the matter of legal recognition of course. I looked down the list of countries and, if my calculations are correct, of the 25 member states of the European Union, 21, including the United Kingdom, are scheduled. That leaves four. Unless I have them wrong, they are Hungary, Lithuania, Portugal and the Irish Republic—that was the case that I flagged up, because there is significant movement of populations between our country and the Irish Republic. It would be helpful if the Minister said a bit to the Committee, given the background of, for example, the European convention on human rights—which is not an EU
I am concerned about the position both of people who under UK legislation would be able to apply for a certificate and who choose to settle in an EU country that does not have the process—would they be under pressure for that?—and of those who have obtained a UK certificate, and therefore a right to benefits in their acquired gender, and have settled in a EU state that does not recognise the process. There are many such difficult areas of overlap. It may be that the issue cannot be finally resolved in Committee, and I simply flag up the fact that there is some concern that the provisions should work fairly. The Minister will remember that some rather heavyweight legal opinion was chucked at the Government and, I think, responded to by them. To conclude, there is no difficulty with the order; it is a logical extension of the Government’s decision to legislate on gender recognition. I support that legislation, which will reduce the friction and difficulty for people in this most delicate situation and enable them to move more smoothly between countries. For all those reasons, the order is welcome. I hope that my comments will be construed merely as seeking elucidation on potential difficulties—or, more likely, challenges—to which people may wish to have answers; they are no more than that. 10.11 amMr. Richard Allan (Sheffield, Hallam) (LD): Like the hon. Member for Daventry, I welcome you to the Chair, Mr. O’Brien. I also see no reason to extend our proceedings too far, given that we are all generally supportive of the order. However, it is useful on such occasions to get a bit of the detail on the parliamentary record for future reference. My questions are similar to the hon. Gentleman’s and relate to potential challenges and changes over time. We need to understand how states can come on and off the list. Clearly, given the state of the political debate in the United States, we can imagine some states on the list unrecognising or changing the status of transgender people. Virginia is in the news today for having passed a measure, and we can imagine individual states reversing their gender recognition law by referendum or some other procedure. It would be helpful to know what would happen under those circumstances. Mr. Boswell: It occurs to me—this supports the hon. Gentleman’s point—that a Supreme Court ruling could automatically alter the whole situation, perhaps against the wishes of individual states. Mr. Allan: That is a helpful intervention. We need to understand what would happen, given that we can predict some volatility in terms of who is on and who is off the list. Equally, a wave of liberalism may wash over individual states such as Texas, which may then
My second question relates to the research that the Department for Constitutional Affairs has done on the list. There are presumably several categories of states: there are those listed in the order, whose gender recognition law we find acceptable, and there are those with no gender recognition law. However, the most difficult states are those in between, whose gender recognition laws we have deemed to be unacceptable. I can imagine challenges from transgender people who come to the United Kingdom from one of those countries. They may say, “Why do you recognise the law of Spain, but not the law where I’ve come from?” It would be helpful to know whether the Minister’s categorisation of countries, as well as the advice that he has been given and the research that he has done, will be made publicly available to such people and their advisers. They should be entitled to see it and may want to query it. Mr. Boswell: In that context, I again seek to assist the hon. Gentleman. There may be the option of obtaining such information under the Freedom of Information Act 2000. Mr. Allan: That is my thought precisely. However, it would be better for people to be offered the information than for them to have to prise it out of the Government’s hands. Assessments that potentially affect individuals should increasingly be made available, because much of the legislation that goes through the House interacts with legislation in other countries. However, it is difficult for individuals, who do not have the Government’s resources, to find out about the law in so many different countries and to come to their own view. It would be appropriate, and a good role for a Department such as the Department for Constitutional Affairs, to make such information available to the public, so that people can assess it for themselves. My final point relates to mutuality. In the order, we are recognising the laws of other countries. Equally, however, UK citizens who have gone through gender reassignment will go to the countries on the list. Will their ability to be recognised in those other countries get a boost from the fact that we have recognised citizens from those countries? Has the Department gone to the countries and states on the list and said, “We’re going to recognise your citizens. What are you going to do about UK citizens?” If we are acting in a spirit of mutuality, it is important that UK citizens are given comparable rights in other countries to those that we have given citizens of those countries when they have come to the UK. I hope that putting these brief observations on the record will help to flesh out the issue for those who read our proceedings and who have an interest in this subject. I hope that the Minister will be able to respond to those points now, and if not that he will be able to give some response, perhaps in writing, at a later date. Column Number: 9 10.15 amDr. Evan Harris (Oxford, West and Abingdon) (LD): It is a pleasure to join the Gender Recognition Bill reunion. I have a couple of points additional to those made by my hon. Friend the Member for Sheffield, Hallam (Mr. Allan). First, the number of countries on the list that already have processes to provide for legal recognition of gender reassignment shows how far we are behind. That is a direct measure of how long it has taken us to be dragged to this stage by judgments in the European Court. It is important to recognise how welcome the measure is, although eventually that statement has to be qualified. Interestingly, on the basis of what the hon. Member for Daventry said, we might be the 21st of the 25 countries in the EU to grant such legal recognition, although I am not entirely clear about the timings. I would have thought that the same European court judgments that bind us would bind the missing four, which should be in the process of providing legal recognition. Do those four European Union countries have processes that meet the legal requirements of the European court, or is it that our Government do not believe that their processes are robust enough? I think that is unlikely, because according to the information I have been given the list is quite generous. I pay tribute to the Department for Constitutional Affairs, because some countries’ processes are not as rigorous as ours, although they pass the threshold for mutual recognition. I am told that that is especially true of some US states. It would therefore be useful to see the research and conclusions referred to by my hon. Friend the Member for Sheffield, Hallam, because it would allow us to benchmark for people who are concerned that our rules are too restrictive. People who fail to get recognition might make that case if the research is available. I do not see why we would need to use the Freedom of Information Act to extract that. In countries such as Iran and Pakistan, I understand that there is a process but that there is no mechanism within the legal code to recognise it. Will there be problems with those countries, where I understand surgery can and does take place but where there is no legal process and it is therefore performed outwith the law, which puts them in a difficult position? How many applications have there been, if any, from overseas? The order will come into effect in April 2005. Those of us who were impatient for the Bill and for its enactment, would be interested to learn whether the Government have a record of the number of inquiries. Clearly, without the law one cannot formally count and record them, and I understand that the research would take some time to get together. One might argue that given the slow pace at which the Government have dealt with the issue over years, progress on this provision has been quite rapid. It would be interesting to know whether there is a mood of impatience. Mr. Boswell: I am grateful to my hon. Friend—I can so describe him for this purpose, as I think we are all united in our thinking. The Minister must satisfy the
Dr. Harris: My hon. Friend—to use his phrase—makes a valid point. With that, I conclude my remarks and look forward to the Minister’s response. 10.20 amMr. Lammy: I am grateful for the manner in which the hon. Members for Daventry, for Sheffield, Hallam and for Oxford, West and Abingdon made their remarks, and I am pleased that there is broad consensus among members of the Committee. The hon. Member for Daventry mentioned fees and cross-subsidy. He will understand that because few people are involved—a fact that we debated at great length in Standing Committee—the savings are so small that they are negligible and are worth cross-subsidy. I remind him that we set the fees at a maximum of £140. For people on low incomes of between £14,000 and £21,000, the fees will be £30, and people on benefits and on very small incomes below £14,000 will pay nothing. In Standing Committee, the hon. Members for Daventry and for Oxford, West and Abingdon made much of the point that many transsexual people are on low incomes because of the discrimination that they have experienced. There has been much debate on monitoring. I emphasise that it is possible for countries to come on and, indeed, to come off the list. Our contacts in British embassies have contacted the medical specialists in this field in the countries involved and the various Governments of those countries. We are satisfied that the processes of most of those countries, and certainly of those on the list, are as rigorous as our own, and that they have created a legal context in which they recognise gender reassignment. Some countries have not been as co-operative, and British embassies have found it difficult to obtain information. We will, however, monitor those countries through our embassies. We expect intelligence to be produced because of the nature of this condition and the small community about which we are talking, not only in our country but internationally, and if, as the hon. Member for Sheffield, Hallam suggested, an American state were to change its position, we would return to the matter and consider amending the list. That is the context. The hon. Member for Daventry mentioned the European Economic Area and the European Union. We added section 21(6) to make it clear that the Gender Recognition Act 2004 recognises the right of free movement that all individuals from EU and EEA
The hon. Member for Oxford, West and Abingdon talked about Iran and Pakistan. Again, we are not satisfied that they have systems at least as rigorous as our own. He might recall our debate in Standing Committee on India and Thailand. Both those countries have gender reassignment, but, again, we are not satisfied that their systems are as rigorous as ours, so they are not on the list. However, that situation might change, and we will monitor it through our embassies and the wider community. In short, only countries or territories that can demonstrate that evidence of permanence was inherent to their recognition process have been included on the list. The hon. Gentleman will remember that we had much discussion about that important standard. Members of this Committee expressed concerns about the provisions on marriage. The Act requires that marriages should come to an end because this country does not recognise the marriage of same-sex couples. However, we have since introduced the Civil Partnership Act 2004, which will apply to foreign nationals, as anyone in this country is, of course, subject to our laws. Dr. Harris: Will the Minister clarify that? Is he saying that a person from another country, even another European Union country, who has had gender reassignment surgery or has been recognised in a new gender, and who is, by permission of the other country, married to someone of the same gender as their new gender, will not have their marriage recognised in this country, and that if they want to access the benefits of married status, as far as they can, they will be required to divorce and to seek a civil partnership? Column Number: 12 Mr. Lammy: Yes, that is the position. The hon. Member for Daventry mentioned transsexual people from other EU states. I hope that I have dealt with that issue. I reiterate that there is no systematic scheme of mutual recognition across Europe. However, that will arrive—largely because of the Goodwin judgment and our decision in this Parliament. That mutual recognition, which we would expect for our nationals, will then be achieved. Of course, we are in constant dialogue with Governments across Europe. Dr. Harris: Is the Minister saying that some countries have agreed to recognise our processes, but some have not? Does he know which countries, and is that information available, or is it too early in our process for other countries to have got hold of that? Mr. Lammy: I have been told that it is too early at this stage, but he can, of course, press the Government on that point later, when we may able to provide him with that information. The hon. Member for Sheffield, Hallam made an important point about information. When the Government complete their assessment, I cannot see why we should not make that information available. Indeed, that may assist if the position is to change in the relevant country. The hon. Member for Oxford, West and Abingdon asked the related question of how many applications we have received. The secretariat has been sitting only since January, so we do not have the figures for that; it is a little too early to say. Again, if he wants to request that information later, he can do so. I hope that I have dealt with all the points made by hon. Members. The measure is important, and I look forward to people from this country and overseas being recognised in their acquired gender because of the serious condition that they have had. I commend the measure to the House. Question put and agreed to. Resolved,
Committee rose at half-past Ten o’clock |
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