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Baroness Buscombe: I thank the Minister for his response to these amendments. In relation to Amendment No. 23, the Minister made clear—of course, he was absolutely right—that, in bringing forward this legislation, the Government are seeking to respond to the UK's obligations under European
law. But that does not mean that we cannot improve upon the law and ensure that we have a better law in this country than our European Union partners.I am grateful, in particular, to the right reverend Prelate the Bishop of Winchester for immediately pointing out that the amendment is defective in the sense that we are wrong to use the word "must". As I made clear in my opening remarks, we are talking about an opportunity for the family to be a part of this very difficult process.
I hear what the Minister said about this situation not necessarily happening overnight; in most circumstances, it will take place over a long period. However, I cannot accept that that means that the family should be denied the opportunity to take part in what is a very difficult process at this stage.
I thought that the Government were interested in a holistic approach to supporting families, and that is what I seek in these amendments. The Government have often talked about supporting victims of crime and wanting to give victims the opportunity to have their say about an issue that has affected them. While I do not even begin to say that this matter can be related to the criminal law, I do say that no issue such as this should affect the family so intrinsically that some may feel that they are victims. That may be the case if the legislation allows them to have no opportunity to state their case. Indeed, as we suggested in the second paragraph of our amendment:
- "Evidence from the spouse or children may include a report from a . . . psychologist or a registered medical practitioner on the effect of issuing a certificate on the spouse or children of the applicant".
I am very grateful for the contributions from the noble Lords, Lord Carlile and Lord Goodhart, who made it clear that there is no public interest test in Clause 2. The Bill does not seek to include the feelings, if I may express it that way, of the family, but I believe that it should do so. The right reverend Prelate used the word "mediation". I believe there is a strong possibility that giving the family the opportunity to take part in the process, even at this stage, could help the process rather than hinder it.
I tried to put myself in the position of a person who is going through this process. Perhaps one reason that so many of the few who are involved in this issue are able to bring with them the support and love of their spouse, notwithstanding that they want to go through a gender reassignment, is that there has been good ongoing communication, however tough, between those couples. I honestly feel that our amendment is saying, "Let's see that strength of communication through to the final process of the change". I also believe that, as a member of the gender recognition panel, I would want to know what was going on in the minds and hearts of the families involved.
Therefore, I hear the Minister's response and the helpful contributions from other noble Lords but I want to think very carefully about this amendment. I would certainly seek to amend the wording to give the spouse and the family a choice rather than use the word "must". I believe that the use of that word is a mistake.
The noble Lord, Lord Chan, also raised the reality of some people going through the process to some extent and then changing their minds. Surely there cannot be too much discussion or communication between families before the final certificate is received. I shall leave it at that with regard to Amendment No. 23. However, I want to give the matter further consideration, perhaps with a view to returning to it on Report.
With regard to Amendments Nos. 61, 69 and 74, I want to ask the Minister a question. I apologise for extending the debate in this way. The Minister reassured me to the extent that he said that the spouses and families of such individuals would be able to obtain a copy of the original birth certificate. Would they be able to do that while the person was still living?
Lord Filkin: Yes. If they knew the name and the date of birth, they would be able to obtain a copy of the original birth certificate.
Baroness Buscombe: I thank the Minister. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.15 p.m.
Lord Goodhart moved Amendment No. 24:
- Page 3, line 5, at end insert—
The noble Lord said: This amendment concerns a fairly short point raised by Liberty. Clause 3(6)(c) enables the panel to require further information or evidence. In these cases, information can, of course, sometimes be intrusive and distressing. It is therefore desirable that the panel should require further information or evidence only where there is a justifiable reason for doing so.
A decision to require information or evidence will potentially be subject to judicial review. But judicial review is far more effective if the panel is required to give reasons which can be reviewed by the High Court. The purpose of the amendment is to require that when a panel needs further information or evidence, which obviously must be specific to the case, it must give reasons for doing so. I beg to move.
Lord Evans of Temple Guiting: It is not uncommon for judicial panels to request further information when they are considering a case on the papers. The gender recognition panel may, from time to time, need to ask the applicant for further evidence in support of his or her application. It is good practice for a panel to give reasons for such requests—not only to assist the individual in providing the correct information but also to reassure the individual that it is necessary.
It has always been the intention that members of the panel will give their reasons if they need to request further information. An amendment to the Bill will enshrine that requirement in law and will strengthen trust in the panel.
I thank the noble Lord for his consideration of this issue and I undertake to table a government amendment on Report to achieve the change that he has suggested.
Lord Goodhart: I am most grateful to the Minister. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Successful applications]:
Lord Goodhart moved Amendment No. 26:
The noble Lord said: This is the first amendment in a very long group which takes up two lines on the groupings list. In moving Amendment No. 26, I shall speak also to all the amendments in the group, apart from Amendment No. 53 in the name of the noble Baroness, Lady Buscombe.
The question of the effect of a gender recognition certificate on an existing marriage has been a matter of great concern, not least, of course, to transsexual people. Where an applicant is married at the date of the hearing, under the Bill as it now stands the panel can grant only an interim certificate. That will be converted into a full certificate only if the marriage is dissolved or annulled in proceedings commenced within six months of the grant of the interim certificate. Meanwhile, the interim certificate has no effect, except to give an additional ground for annulling the marriage.
It is known that in some cases—it will certainly be a minority but there will be some—both parties to the original marriage will wish to remain married to each other in spite of one of them having acquired a new gender. The question is: why should they not be allowed to do that? The Government say that the law must not recognise a marriage between a couple who are seen in law as being of the same sex. It may well be justifiable to say that marriage can be entered into only between a couple of the opposite sex, but it does not follow logically that a marriage validly entered into must be annulled before the gender change can be recognised by law. If the couple were legally married originally and wished to continue their marriage, I believe that it would be wrong to present them with the dilemma either of having to terminate the marriage, which both wish to keep, or of depriving one of them of the right to legal recognition of gender change.
After the Second Reading debate, the noble Baroness, Lady Hollis, explained that the Government had problems with the effect of a continuing marriage on the right to benefits and pensions. I accept that those problems exist. That is why we included in this group Amendment No. 82, which treats a marriage as having come to an end for benefit and pension purposes on the date of the issue of the certificate. For other purposes—for example, for relief from inheritance tax on the property passing from one of the original spouses to the other—the marriage would continue.
The Government say that the problem will be solved when the civil partnerships Bill is enacted and comes into force. The parties can annul their marriage one day and enter into a civil partnership the next. I believe that that is not an adequate answer. First, at this stage, the civil partnerships Bill is simply a hope for the future. We have been told that it will be introduced this Session but we cannot be certain that that forecast will be satisfied; nor can we be satisfied as to when the civil partnerships Bill will be enacted.
Secondly, I suspect that couples in that situation would also greatly prefer the continued recognition of their existing marriage to entry into a new and different legal relationship.
There are a large number of amendments in this group, but I do not propose to go through them in any detail because most of them are merely consequential. This group of amendments proposes to abolish the entire concept of interim certificates and to enable the panel to proceed directly to the grant of a full certificate where there is a subsisting marriage. That will leave the grant of the certificate as grounds for annulment of the marriage under Schedule 2, if either party wishes that course to be taken. It is obvious that if either party wishes to terminate a marriage in those circumstances, they should be allowed to do so.
The Government require the termination of the existing marriage as a precondition to legal recognition of the gender change. That is not logical, necessary or compassionate, and I ask the Government to reconsider the matter. I beg to move.
"( ) The Panel shall give reasons for requesting information or evidence under subsection (6)(c)."
Page 3, line 9, leave out subsections (2) and (3).
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