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Lord Evans of Temple Guiting: As we have heard, the Delegated Powers and Regulatory Reform Committee has made two recommendations in respect of this Bill. It recommended that the power to specify "approved countries" in terms of applications from individuals who already have recognition overseas be subject to the affirmative rather than the negative resolution procedure. It also recommended a change to the provision in Schedule 3, paragraph 11, which seeks to accommodate a regulatory reform order relating to the registration system for England and Wales, which is already in progress. The Government will accept both recommendations of the committee. Amendments will be tabled on Report and I hope that they will find favour with the House.
These amendments concern the same delegated power as the first of the recommendations. The Bill provides a straightforward mechanism by which those who already have recognition of their acquired gender overseas may apply for recognition in the UK. An applicant has to establish that he or she has recognition in an "approved country or territory".
The Secretary of State has the power to specify a list of approved countries or territories. The power will be exercised only after consultation with the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland. I take this opportunity to remind the Committee that this is not a devolved matter in Wales.
Only those countries that have criteria for recognition equivalent to those in this Bill will be approved for these purposes. This is to ensure that all those who have recognition of their acquired gender in the UK have met the criteria set out in the Bill; that is, taken decisive steps to live fully and permanently in the acquired gender. Without this mechanism, individuals could go abroad to another country that may have less rigorous criteria for recognition and that recognition would be valid in the UK.
As I have said, the Government accept the recommendations of the Delegated Powers and Regulatory Reform Select Committee, that just as Parliament is now exercising proper scrutiny over the criteria in the Bill, it should in the future be able to exercise proper scrutiny over the criteria by which the list of approved countries or territories is drawn up.
As I said, the Government will bring forward an amendment on Report to ensure that this power is subject to the affirmative resolution procedure.
Baroness Buscombe: I thank the Minister for his response. I am only sorry that he feels unable to accept our amendments as they stand. I hope that we shall find that the amendment tabled on Report will be complementary to what we have tried to achieve today. For now with pleasure I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart moved Amendment No. 21:
- Page 2, line 42, after "required" insert "by order made"
The noble Lord said: Clause 3 specifies the evidence and information that must be provided in support of an application for a certificate under the Bill.
Clause 3(6)(b) empowers the Secretary of State to require further information or evidence. As the Bill now stands, those powers can be exercised without a statutory instrument or, indeed, any parliamentary procedure although the Secretary of State has to consult the Scottish Ministers and the Northern Ireland Department of Finance and Personnel. Quite
why the Northern Ireland Department of Finance and Personnel is the relevant department I am not altogether clear.This was a matter of some concern to the Delegated Powers and Regulatory Reform Select Committee. Although it did not make a definite recommendation that parliamentary procedure should be adopted, it was rather critical of the matter. Paragraphs 7 and 8 of the committee's report state:
- "The prescription by central government of the particulars or evidence to accompany applications as part of a formal procedure is often made the subject of rules or regulations, whether or not subject to a Parliamentary procedure. This accords with the view that the prescription of general rules about these matters has the characteristics of a legislative, rather than a purely administrative, act. For this reason we considered whether, in this instance, the particulars and evidence should be specified in a statutory instrument, to which the usual publication requirements will apply.
- The reason given by the Government for wishing the matter to be left to "administrative" action only is that the details are likely to change. We recognise that this is a good reason why the details should be left to regulations, but, given the flexibility of the delegated legislative procedure, it does not provide an explanation why there should be no formal procedure of any sort. However, we recognise that the number of applications is likely to be small. We suggest, therefore, that the House may wish to invite the Government to explain more fully why, in this case, the general requirements about information and evidence to accompany applications should not be set out in regulations, whether or not subject to a Parliamentary procedure".
I naturally agree with the comments of the Delegated Powers and Regulatory Reform Committee, and indeed I would go somewhat beyond them. The fact that few people are likely to be involved is not in itself a sufficient answer or a relevant factor. The new requirement on evidence may have a serious effect on the ability of transsexual people to exercise their rights under the Bill. I would suggest that Clause 3(6)(b) should indeed require a parliamentary procedure and should require the negative resolution procedure. I am not suggesting that the matter is important enough to require the affirmative procedure, but it does seem that the negative procedure would be appropriate. Having said that, I shall wait with interest to see how the Minister responds to the challenge laid down by the Delegated Powers and Regulatory Reform Committee to explain why the Government think that no form of statutory instrument is required in this case. I beg to move.
Baroness Buscombe: I wish to speak to Amendment No. 22, which is grouped with these amendments. This amendment also refers to the suggestion from the Delegated Powers and Regulatory Reform Committee in that it requires that the Secretary of State must write and publish regulations outlining his expectations of an individual applying for a gender recognition certificate. That would involve details of what other information or evidence he may require as part of the application procedure. We believe that these measures would greatly enhance the transparency of the panel's decision-making process and allow an applicant to know what they may be letting themselves in for. In this way they could make a fully informed decision and there could be no unpleasant surprises as to the nature of the information they will be called on to disclose.
It is likely that the type of information required by the Secretary of State will change over time. For that reason, we think that it would be inappropriate to have it laid out on the face of the Bill. There is nothing, however, to prevent the publication of regulations that could be updated as often as necessary by the Secretary of State. Similarly, it is not as if the details of each case will be so wildly different as to make any attempt at generalisation, as would be required in regulations, impossible. I can see no reason, therefore, why this amendment should not be accepted.
Lord Evans of Temple Guiting: I shall try to rise to the challenge that has been laid down. It might help if I clarified what the power will be used for. It will be used to set the questions that are asked on the application form. Its purpose, therefore, is very narrow. That is why we do not believe that any parliamentary scrutiny is necessary. The application form will ask questions that will enable the panel to determine an application. Contact details, for example, will have to be requested. At the same time, the application form will contain questions relating to the criteria in the Bill. The application form may, for example, ask an applicant to specify what evidence is being supplied to satisfy the panel that the applicant has lived in the acquired gender for at least two years.
The power is therefore already constrained by the criteria in the Bill. If the application form is used to ask for information that does not pertain to the criteria in the Bill, the applicant will be able to challenge that request and, ultimately, if he or she remains unhappy with the request, to apply for judicial review.
It is not typical for legislation to be used to specify the content of an application form. There are many advantages to taking an open approach and to allow ongoing refinements. This will, we believe, be to the benefit of transsexual people and will facilitate the process. For example, 10 years ago, no application form would have asked for an e-mail address, but e-mail is now a very important form of contact. If the amendments were accepted, a change in the application form to ask for an e-mail address would have to be scrutinised by Parliament. In effect, subsection (6)(b) allows the information requested on the form to be altered to suit the panel's or the applicant's needs. The criteria for recognition cannot be changed by the subsection so the use of the subsection is clearly limited. We therefore believe that the amendments proposed are unnecessary.
5.30 p.m.
Lord Goodhart: I am grateful to the Minister for that reply. I will study what he said and consider whether this is a matter that can be left as it is or it should be returned to on Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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