[back to previous text]

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]
Baird, Vera
Brown, Lyn
Drew, Mr. David
Featherstone, Lynne
Foster, Michael Jabez (Hastings and Rye)
Griffith, Nia
Harris, Dr. Evan
Hesford, Stephen
Hodgson, Mrs. Sharon
Mason, John
Sheridan, Jim
Thornberry, Emily
Baron, Mr. John
Boswell, Mr. Tim
Harper, Mr. Mark
Penrose, John
Question accordingly agreed to.
Clause 1 ordered to stand part of the Bill.

Clause 2

Power 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.
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 4

The 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.
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2009
Prepared 12 June 2009