Lynne
Featherstone: I would like to change the comment that I
made about second-class citizens and second-class human
beings.
Mr.
Boswell: I take the hon. Lady’s point. Really, some
human rights are indivisible and are not applicable in relation to
citizenship. I was going to share with the Committee one of the brisker
exchanges I had with a prison director in my constituency regarding the
actions of a prison medical officer, who was denying some prescription
from a prisoner, whose health, I thought, was at risk. I wrote a rather
brisk letter saying that if that went on, they would be in prima facie
breach of article 2. The decision was reversed in a week, and so it
should have been.
There is a
serious point here. Whatever asylum and immigration system we have, we
need to be firm and fair at the same time. We cannot just write off
people as second-class human beings—to use the excellent phrase
that has been deployed—because people have human rights. At any
rate, the Committee needs the Minister’s assurance that the
clause is not some covert way of smuggling in further unpleasantness
over and above the inherent difficulties of the situation at the
expense of immigrants and asylum seekers. If we have some assurance on
that, we will all feel a little easier on the
provision.
The
Solicitor-General: Subsection (7) is important and must
remain in the Bill. I will take a moment to explain it. For a start,
let me explain what it will not do. Certain public authorities, as the
hon. Members for Hornsey and Wood Green and for Daventry know, have a
duty of care towards people who are subject to immigration control. The
subsection will not affect that in any way. Nor will it affect those
public authorities that go beyond—as I know my local authority
does—responsibilities in this regard. Many do, but it is up to
them to treat each situation on its
merits. For
instance, people who have refugee status usually have full access to
services and are allowed to work. We have a clear aim for those who are
legally allowed to remain in this country, which is to earn
citizenship. We want them to learn English, find employment, integrate
into society, contribute to the country and be welcome additions to it.
We run integration programmes for refugees to try to ease their way out
of socio-economic deprivation. We try to give initial decisions on
applications for asylum relatively quickly—we are far quicker
now than before. Following appeal, if necessary, we try to aim for
within six
months. In
the meantime, as the hon. Member for Hornsey and Wood Green knows, the
applicants have statutory rights. They are legally entitled to remain
in the country and are not here unlawfully, but it is not appropriate
to force authorities to give particular attention to the socio-economic
disadvantages of that group. No public body will be forced to go beyond
their existing responsibilities, but their existing responsibilities
are
substantial. The
rationale is pretty clear, and I put it as bluntly as necessary. Our
position on people who are here unlawfully is that we are keen to deter
them from entering and remaining here illegally, and to remove them if
they are not entitled to be here. Unless people have shown that they
have a right to remain, we leave it to the public authorities, whose
responsibility it is to ensure that
people are subject to immigration control and are
not pressured by the new duty, and I believe that they seek to deal
with people in a compassionate
way. Mr.
Boswell: For the record, will the Solicitor-General
confirm that there is absolutely no detriment proposed or likened from
the clause to the existing human rights and rights in law that they
have?
The
Solicitor-General: It is about not adding the new duty on
to authorities that already have clear statutory responsibilities for
this body of
people.
Lynne
Featherstone: I am heartened by the Minister’s
reassurances, but perhaps it is in the execution and the time lag that
some of these issues come to my surgery, for instance, where I do see
the situations that I described and real hardship. They must fall
between the intention and the reality. However, I take what the
Minister said and I thank her for it. On that basis, I beg to ask leave
to withdraw the
amendment. Amendment,
by leave,
withdrawn. Question
put, That the clause stand part of the
Bill. The
Committee divided: Ayes 12, Noes
4.
Division
No.
1] Foster,
Michael Jabez (Hastings and
Rye)Question
accordingly agreed to.
Clause 1
ordered to stand part of the
Bill.
Clause
2Power
to amend section
1 Question
proposed, That the clause stand part of the
Bill.
Mr.
Harper: I will be brief. I just want to pick up from our
previous discussion one or two of the Minister’s remarks about
the nature of the public authorities. This clause, which is the one
that I said we were not very happy with, gives Ministers the power by
regulations not just to add public authorities that are subject to the
duty, but to remove authorities and to vary the functions to which it
will apply. The Minister said she felt that the Government had covered
most of the authorities that they wanted, but they had left the power
to add them in case they had missed any, and her response to the
amendment tabled by the hon. Member for Hornsey and Wood Green
suggested that there were one or two authorities that the Minister
needed to consider
again. However,
given that the Bill has these authorities in it and the Committee has
now accepted them, it seems to me that Ministers being able to take
them out pretty
much whenever they felt like it would not be
acceptable. I would therefore like the Minister to say a few words
about where Ministers thought they might use the powers. Is it an
administrative thing? In other words, is it about taking authorities
out when they cease to exist or there is a reorganisation and they are
called something different or the machinery of government changes? Are
we pretty much stuck with the list barring that happening, or will it
be the intention of Ministers to take out authorities for other
reasons? I would like some understanding of Ministers’ thought
processes. The
Solicitor-General: We have already exhibited an interest
in being flexible about the list. If we change it, of course, it will
be changed before the Bill becomes law, so then, we hope, the list will
be as comprehensive as all parties here have been able to make it by
considering the purpose of it and being able to add and take off what
they wanted to. I am therefore hoping that we are getting even nearer
to the right list, but yes, the point of this clause is to future-proof
the list. First, we need to specify the right bodies and we think that
we have picked the correct ones. However, the machinery of government
can be subject to change; functions of particular bodies can change, as
can the bodies themselves. New ones come and old ones
go. 1.45
pm
Mr.
Boswell: On the strength of having recently attended the
Council of Europe social, health and family affairs committee, perhaps
I can ask the Minister to at least consider a situation where a public
authority is working with an international organisation. Therefore, the
authority would not be wholly in command of the situation, but there
would be a strategic implication. Will she consider whether there is a
possible loophole that needs
covering?
The
Solicitor-General: I will certainly reflect on that. The
hon. Gentleman spends his spare time in an interesting way. When old
bodies are wound up and new ones are established, we need the
flexibility to vary the provision, if necessary. It is for that kind of
thing, or where change means that we no longer have the list, because
the list’s contents have
changed. In
addition, we need the power to add the Welsh bodies to the list. We are
hopeful that Welsh Ministers will decide to extend the duty to their
relevant bodies in due course, sooner rather than later. It will take a
bit of time, so we need this clause to make provision for that to
happen. I hope that the hon. Member for Forest of Dean is satisfied
that, as he put it, we will not be putting bodies on and taking them
off when we feel like it. The intention is that it will not be used
often. Question
put and agreed
to. Clause
2 accordingly ordered to stand part of the
Bill.
Clause
3 ordered to stand part of the
Bill.
Clause
4The
protected
characteristics
Lynne
Featherstone: I beg to move amendment 115, in
clause 4, page 4, line 9, leave
out ‘reassignment’ and insert
‘identity’. An
amendment to widen the definition of who is protected from transgender
discrimination.
The
Chairman: With this it will be convenient to discuss the
following: amendment 118, in clause 15, page 11, line 3, leave out
‘reassignment’ and insert
‘identity’. Amendment
119, in clause
15, page 11, line 12, leave out
‘7(1)’, and insert ‘[Gender identity]
(1)(a)’. Amendment
120, in
clause 24, page 17, line 37, leave
out ‘reassignment’ and insert
‘identity’. Amendment
121, in
clause 24, page 17, line 42, leave
out ‘reassignment’ and insert
‘identity’. Amendment
123, in
schedule 3, page 151, line 18, leave
out ‘reassignment’ and insert
‘identity’. Amendment
124, in
schedule 3, page 157, line 20, leave
out ‘reassignment’ and insert
‘identity’. Amendment
125, in
schedule 3, page 159, line 5, leave
out ‘reassignment’ and insert
‘identity’. Amendment
122, in
clause 188, page 134, line 26, leave
out ‘reassignment’ and insert
‘identity’. New
clause 8—Gender
identity— ‘(1) A
person has the protected characteristic of gender identity if the
person is or is perceived to
be— (a) a person
intending to undergo, undergoing, or having undergone gender
reassignment, where gender reassignment means a process which is
undertaken under medical supervision for the purpose of reassigning the
person’s sex by changing physiological or other characteristics
of sex, and includes any part of such a
process; (b) a person living
permanently in the gender role different from that expected of a person
of their recorded natal
sex; (c) a person who has, by
virtue of the Gender Recognition Act 2004 (c.7), received recognition
of their acquired gender for all legal purposes;
or (d) a person who has a
gender identity that is different from that expected of a person of
their recorded natal sex, provided that behaviour is not unlawful or
offensive. (2) A reference to a
transgender person is a reference to a person who has the protected
characteristic of gender
identity. (3) In relation to
the protected characteristic of gender
identity— (a) a
reference to a person who has a particular protected characteristic is
a reference to a transgender
person; (b) a reference to
persons who share a protected characteristic is a reference to
transgender
persons.’.
Lynne
Featherstone: Amendment 115 is intended to widen the
definition of who is protected in transgender discrimination. On these
Benches, we have a high degree of concern about the narrowness of the
protection in the definition of gender reassignment. The issue is not
just about reassignment, which is the medical end to a process. We
would also have concerns if, additionally, it were about the process
that leads only to medical gender reassignment.
This is a
vulnerable group, perhaps one of the most vulnerable in society. It is
also a small numerical group who, even at the medical end, have a low
number of operations. That sits atop a spectrum of a whole range of
people who have concerns or confusion about their gender identity. With
young people—this is particularly supported by the European
Court of Human Rights—there is a great deal of concern about
those who have not reached a decision or found their way in terms of
gender identity. A great many people have gender
issues. In some countries, there is actually a third gender. That
spectrum, which leads from slight confusion to actual medical gender
reassignment at the other end, is very wide. People can find themselves
anywhere on that spectrum. What I would like to hear is that this
Bill—this legislation and protection—is so important that
it is not just there for what can be identified medically, but for how
people feel and where they find themselves in
life. The
amendment to clause 7 defines what we would see as “gender
identity”, not “reassignment”. We use the
protective characteristic to protect all transgender—including
gender variant people—while also allowing for more specific
references to transsexual people, where appropriate. At the same time,
if I leap across to the new clause, it would not have a chilling effect
or prevent offensive jokes on gender presentation from inadvertently
being covered by a protective characteristic.
One wants to
be able to have entertainers such as Dame Edna Everage, for example,
and not chill her out so that she cannot say anything. We think that
the clause, on which Press for Change helped, delivers protection for
all those characteristics and all those people on the spectrum wherever
they find themselves, but does not affect life in terms of
entertainment or
humour. Most
of the amendments are consequent on the lead amendment being enacted. I
disagree with the argument that the amendment is not necessary because
it could be caught by other protections. It is so important, and it
would be wonderful if we could give an explicit and unambiguous
protection for those who are not so definite about where they are on
the spectrum and who are not definite about reaching the other end.
Many people never get to the medical operation or even near it. The
protection extends to how people feel about their gender rather than
what they are
medically. The
new clause would also provide future-proofing for the Bill because,
once amended, it would be in line with the international human rights,
equality and diversity statements, the recommendations of the United
Nations, the Yogyakarta principles, the Council of Europe, the EU and
others, ensuring that the Bill will not suddenly fall foul of a claim
in this area in the next couple of
years. It
is important to include the term “gender variant”,
because it allows the Bill to protect children or adolescents without
requiring them to choose gender reassignment at a stage in their lives
when their identities are still flexible and forming. Much change
happens in those adolescent years. If there is any criticism of the
amendment for not being perfect, which is entirely possible, I would be
grateful if the Government were to ask their officers to look for any
unintended consequences. The intention of the amendment is so
important, I am anxious that we get it right. I am happy for the
Government to take that away, should they be so minded, so that we do
not narrow down the protection to the very few who need it but leave
out the vast number of people who live in a far less certain world in
the process to medical gender reassignment.
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