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Baroness O'Cathain: My Lords, I thank the Minister for his reply. As always, he listens carefully to my arguments, and I to his. The onus is on the panel. My simple amendment would be helpful to the panel, so that another client could never come back, and would remove any doubt about it. The Minister and I are at one on the point that there should be a limit. However, the Minister is placing the onus on the panel, whereas I believe that it would be better to have it on the face of the Bill so that we could help the panel.

The Minister made the point that the amendment would fetter the role and judicial competence of the panel. I say that it would be a belt and braces measure to ensure, first, that the panel is not put into a very difficult situation and, secondly, that it could not happen, which I am sure neither of us wants.

I will read carefully what the Minister said. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 3 [Evidence]:

[Amendments Nos. 20 to 23 not moved.]

Lord Goodhart moved Amendment No. 24:

Page 2, line 42, after "required" insert "by order made"

The noble Lord said: My Lords, this amendment concerns Clause 3(6)(b) of the Bill, which states:

"Any application under section 1(1) must include any other information or evidence required by the Secretary of State".

It does not specify the form in which that requirement is to be made. It is a general requirement, not a specific requirement relating to a particular case. Presumably, therefore, it must be made in some kind of document that will be circulated to all people who need to know about it.

The purpose of Amendment No. 24 is to provide for the requirement under Clause 3(6)(b) to be made by statutory instrument, but not one that involves any parliamentary procedure. The requirement that it should be made by statutory instrument reflects the concerns of the Delegated Powers and Regulatory Reform Committee. As was explained when I raised the question in Grand Committee, in paragraph 7 of its report, the Delegated Powers and Regulatory Reform Committee said:

"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".

Paragraph 8 continues:

"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".

The report makes further comment, which I shall not read now.

In Grand Committee, the noble Lord, Lord Evans of Temple Guiting, the Minister speaking to this amendment, said:

"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". [Official Report, 13/1/04; col. GC 31.]

The difficulty is that the power could be used to cover fields very much wider than those referred to by the Minister on that occasion. It could, for example, be used to bring into effect a provisions similar to those contained in Amendments Nos. 15 and 23, tabled by the noble Lord, Lord Chan—the requirement that

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evidence be given of a particular fact by two witnesses. Although the Government may intend to use it simply to specify what is put on the application form, if one looks at the language, it is quite clear that it could be used to set out the nature of the evidence that the Secretary of State will require for presentation to a panel in order to prove any of the conditions that have to be satisfied before a gender recognition certificate can be granted.

I am not suggesting that there should be a parliamentary procedure. However, it seems to me that we require a degree of formality and accessibility to Government websites, which would be provided if the matter is dealt with by means of a statutory instrument rather than a circular. I hope that the Government will feel able to think again about that issue. I beg to move.

Lord Filkin: My Lords, in preparing for today's debate, it struck me, perhaps belatedly, that that may have been what was behind this amendment, so that the Bill would not be open to being twisted and turned in the future. I shall reflect on that point. In so doing, I do not want to raise any optimism, but I believe that that will probably short-circuit our discussions.

Our argument is as set out by the noble Lord, Lord Evans, in terms of the benefits of flexibility. We also believe that the ability to ask for information is clearly circumscribed by the three criteria set out in the Bill by which the panel will have to be tested. Nevertheless, that does not satisfy the point made by the noble Lord, Lord Goodhart, that it could be taken away over the hills. Therefore, without for a moment signalling that we shall accede to it, I should like to reflect on the point.

Lord Goodhart: My Lords, I am grateful to the Minister and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe moved Amendment No. 25:

Page 3, line 2, at end insert—

"( ) In the case of an application under section 1(1) from a person who is married, a Gender Recognition Panel may take evidence from the spouse and children of the applicant before making any determination under section 1.
( ) Evidence from the spouse or children may include a report from a chartered psychologist or a registered medical practitioner on the effect of issuing a certificate on the spouse or children of the applicant.
( ) The spouse or children of an applicant shall have the right to offer oral and written evidence to a Gender Recognition Panel and, before issuing a certificate, the Panel shall have due regard to the effect of issuing such a certificate on the spouse or children of an applicant.
( ) In the case of an application under section 1(1) from any unmarried person, a Gender Recognition Panel may take evidence from the partner or children of the applicant before making any determination under section 1.
( ) In the case of minor children, evidence may be given by a representative appointed on their behalf."

The noble Baroness said: My Lords, I begin by suggesting to the Minister that in order to overcome his dilemma or compromise position of having to be in

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two places at once because he is involved with another Bill, which is in Grand Committee, if we did not have Grand Committees and all our legislation was considered on the Floor of the House, that problem would not arise—

Lord Goodhart: I thank the noble Baroness for giving way. I intervene to say that I am also involved elsewhere at this time. I am rather pleased at that, because it spares me from having to spend another day on the Committee stage of the European Parliamentary and Local Elections (Pilots) Bill.

3.30 p.m.

Baroness Buscombe: My Lords, I return to what I consider to be the issue of paramount importance: that of the family of the applicant. As noble Lords will have noticed, I have altered the amendment tabled in Grand Committee to introduce the element of choice, so as to enable the gender recognition panel to be able to take evidence from the spouse and children of the applicant before making a determination under Clause 1. That evidence could take different forms, as proposed in my amendment.

We had a good, thoughtful debate on the issue in Grand Committee. I was grateful to all noble Lords who took part. Some points raised gave me pause for further thought. I said then, and still firmly believe, that the concerns of the family should be taken into account during the process of gender reassignment; that a holistic approach to the process is the right route; and that my amendment would help, rather than hinder, the process. That said, I take on board the cautionary note proffered by the noble Lord, Lord Carlile, in Grand Committee. I would not want to encourage a climate similar to that of the contested divorce. In most instances, that would be unhelpful.

The trouble with the Bill is that only the interests of the applicant appear to matter. When I first read it, I could find no reference to children, spouses or partners of the applicant, except in two lines of Clause 12. I found that deeply disturbing.

I am reminded of the words of the right reverend Prelate the Bishop of Winchester in Grand Committee, when he said:

"At this point it seems crystal clear that the Government are, without remainder, giving rights to one set of people and taking no notice of the rights of another".

In response, the Minister was also crystal clear. Although confirming that central to human rights legislation is the balance between rights and responsibilities, he said:

"The tough answer is that the right which the panel will decide whether or not there is evidence in the application to grant"—

gender recognition—

"is not a right that can be balanced".—[Official Report, 13/1/04; cols. GC36-39.]

That is tough, and I keep returning to the fact that our hands are tied.

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We have no choice but to respond to a judgment of the European Court of Human Rights. We have obligations under human rights law. In Grand Committee, the Minister offered to consider the matter further. I am pleased to confirm that we had a helpful meeting; the Minister has encouraged me to listen to what he has to say today in response to the amendment.

We have considered the matter at great length. I, and several other noble Lords, want to be reassured that the rights, interests and concerns of the family will be taken on board throughout the process of gender reassignment and should be considered by the gender recognition panel. I beg to move.

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