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Baroness Hollis of Heigham: My Lords, I assume that we are talking to Amendments Nos. 85, 88, 89, 91, 92 and 93, which I believe was the agreement. We have de-grouped the two sections. I emphasise yet again that when a person is recognised in the acquired gender that person becomes in law of that gender. The person is then entitled in law to marry a person of the opposite gender.
I do not want to go back to the arguments which we have explored as to whether that really happened whether in the eyes of God, man or law. The Bill seeks to state a legal proposition that is in accordance with European human rights law and which has been accepted in all the countries of Europe with the exception, as the noble Baroness, Lady O'Cathain, ruefully noted, of Ireland and Albania. Therefore, should this Bill be enacted a person who gains recognition in the acquired gender will have changed gender in law. Marriage in no small part is an institution defined by law.
Marriages contracted by transsexual people once the change of gender has been legally recognised, will therefore be valid marriages between a male and a female. In such a circumstance, registration officers would have no legal grounds on which to refuse to provide the service, and it would be expected that the service be provided to the same high standard as other services.
We see no reason why a registrar who did not agree in conscience should have the liberty to inquire into it and refuse to exercise his function. I do not doubt that some public officials may very well have private views about the appropriateness of some of the laws they are to discharge. But that is the commitment they have made and the territory they occupy. I suggest that there is and must be no scope for private discretion in the public discharge of the legal requirements of a public post by a public official. Otherwise we would be horrified, for example, if someone began to pick and choose who they would or would not marry or provide with benefits. We would be horrified if a schoolteacher were, because of her beliefs, to treat differently children whose parents are not married. We would be horrified if a lone parent—or a homosexual or transsexual—were refused housing benefit because the housing officer disapproved of their lifestyle on religious grounds.
Earl Ferrers: My Lords, nurses have the right not to participate in abortions if they do not wish to do so.
Baroness Hollis of Heigham: My Lords, my understanding is that nurses are not public officials. I am talking about somebody who is a public official. People discharge the law and it comes with the territory.
Lord Tebbit: My Lords, perhaps I should have stopped the noble Baroness a little earlier because she was enunciating the defence which has been put up by every junior officer concerned with a war crime that he
was only acting on orders. Does not the noble Baroness recognise that she is giving that same defence?
Baroness Hollis of Heigham: My Lords, anyone who feels that their conscience is at odds with the requirements of the job in a civilian and democratic society has the right to resign from that job. That is the point. If one does not accept the full discharge of one's duties as laid down by law, democratically arrived at, and if one begins to exercise discretion, the law becomes a lottery. Where one lives and which official one deals with determines what the outcome must be. That is for Parliament to decide subject to the rule of law. In exactly the same way civil servants may not entirely agree with what Ministers propose. They do the job or they leave it. Local authority employees do the job or leave it and the same applies to registrars.
Lord Tebbit: My Lords, the noble Baroness not only says that there is no defence on the part of a civil servant who leaked information in a particular case a few years ago, which I recollect well. The court upheld that she was acting on her conscience and it was right for her to leak that information although it was clearly contrary to her contract. She is also enunciating the defence which was made by policemen in South Africa under the apartheid regime. She is enunciating the defence which was made by officials and soldiers in the Balkans War. Any public official who feels strongly that it is an issue of conscience has a right to stand up for that.
7 p.m.
Baroness Hollis of Heigham: My Lords, particularly in the light of the events of the past few days, I do not believe that we should introduce the issue of whistle-blowers here. I am referring to a public official who occupies a post which is to be legally discharged within the framework of Parliament. Frankly, the noble Lord is inviting any junior civil servant in a benefit office or any school assistant in a school to take odds with Parliament over the fact that a child or benefit book recipient should be treated in the same way as any other child or benefit book recipient. He is inviting such a person to say, "I put my judgment, which I shall call 'belief', which may or not be religiously inspired, community-inspired or ethnically inspired, ahead of the will of Parliament".
I say to people that they have the right to make that choice but, if they do so, they should not do that job. It is their choice. If they feel that they cannot, in good faith, undertake the responsibilities of a public post and discharge public responsibilities within the framework of a law laid down by Parliament, they have the choice that we all have—to walk away from that job. Anything else becomes a lottery concerning where you live, whether you receive your housing benefit or whether the person dispensing it approves of your lifestyle. I know that the noble Lord, Lord Tebbit, would not wish us to follow that route.
Earl Ferrers: My Lords, I understand that the noble Baroness is saying that other people have to do the jobs that they are given, whether they are civil servants or whatever. But, in this case, people are being invited to tell lies. Surely if one has a conscience about that, one should be permitted to say, "I can't fill that in because I shall be telling a lie and I don't want to do that".
Baroness Hollis of Heigham: My Lords, at the heart of this debate is the fact that these will be valid marriages in the eyes of the law. Therefore, no one who was asked to solemnise such a marriage, being a public official, could in any way say that, in terms of the law, that was a lie. I believe that many people would find such a view offensive.
If that person, through religious beliefs, considers that he should not authorise such a marriage, he need not hold that job. That is his choice. But these are not lies; they will be marriages validly contracted within the framework of the law, should your Lordships and the other House so agree. If that is not the case, then, frankly, we might all just as well go home. That is the nature of law. One may disagree but, if Parliament has so determined, one then has the choice of either doing the job or walking away. No one is putting a gun to one's head. A person does not have to do the job. But no parliamentarian could accept that a decision of Parliament should be subverted by the private view of any public official. We cannot organise ourselves in such a way. On reflection, I am sure that your Lordships would not wish to go down that route.
In Committee, I also said that I was sure that a registrar could find a way around the issue if it was so troublesome to him. Of course, any couple could go to any registrar's office in the country if it was felt that the strong views held by an official in one particular office would cast a shadow over the marriage. We explored that point in Committee and I believe that it is still valid.
The amendment also seeks to go beyond providing an exception for registrars. It seeks to provide an exception for any person who is under a legal duty to solemnise a marriage. As was made clear in Grand Committee, no other religious minister is obliged to solemnise a marriage. He or she may be an authorised celebrant—that is, if he or she solemnises the marriage, no separate civil ceremony is necessary. Nevertheless, there is no obligation on that registrar to solemnise a marriage and he or she is therefore free to conduct or to refuse to conduct the marriage of a person who has changed gender. That is why the existing provision in Schedule 4 extends only to ministers of the Church of England and the Church in Wales. All others already have that right.
It has been argued that ministers of other religions may be "public authorities" within the meaning of the Human Rights Act. They may therefore be vulnerable to a claim on the basis of human rights law. "Public authorities" within the meaning of the Human Rights Act include any person,
- "certain of whose functions are functions of a public nature".
On that basis, we suggest that nothing would make a religious body a public authority for the purposes of the Human Rights Act. The receipt of occasional grants from English Heritage or the lottery fund—the example that I was given in Committee—would not convert a private body into a public authority. The cross-reference that I have is to the Appellate Committee of the House of Lords, recognised in Aston Carlow PCC v Wallbank. So there appear to be perfectly secure grounds on the matter.
In addition, people should not be allowed indiscriminately to reveal information about a person's gender history in the form of malicious gossip or damaging rumours, which is why the prohibition on disclosure is required. We have to be careful to understand the scope of that prohibition. Disclosure is prohibited when the information has been acquired in an official capacity. For example, if an employer acquires information about a person's gender history, he or she is not permitted to disclose it, unless the disclosure falls within one of the exceptions in Clause 21; for example, criminal activity and so forth. Clause 21 does not involve the criminalisation of activity that is purely in the private sphere. That would not be appropriate. The Government are, therefore, firmly of the view that Clause 21 is necessary, that it is drawn up in the right terms and I hope that your Lordships will continue to support it.
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