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Lord Lester of Herne Hill: My Lords, it may be helpful if I draw to the attention of the House the fact that the Joint Select Committee on Human Rights

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dealt with this matter in our fourth report, when we considered a complaint by the Evangelical Alliance. Those who lead the sort of sad lives that involve reading such documents might be interested to know about the issue. Paragraph 4.38 states:


    "the Evangelical Alliance argued that the provisions protecting the privacy of those who have acquired a new gender would violate the right of others under ECHR Article 10"—

the free speech guarantee—


    "to receive truthful information about a person's gender".

We unanimously—all-party and beyond party—concluded that that argument was unpersuasive.

We first dealt with why Article 10 was not really triggered. We then came to the view that free speech rights had to be balanced against the Article 10 rights of the transsexual person and decided that any court would probably conclude that the clause is,


    "a proportionate response to a pressing social need . . . for the purpose of protecting the right of the transsexual person to respect for his or her private life under that paragraph, as determined in judgments of the European Court of Human Rights".

I listened very carefully to the noble Lord, Lord Marlesford, and respectfully say that I do not agree with him. This type of provision is particularly necessary in this Bill because we are concerned with respect for the private lives of this small category of vulnerable persons against the possibility of information being transmitted by persons in an official capacity or by employers in an unnecessary or disproportionate way. Clause 22 carefully balances the need to respect personal privacy against other rights and interests, because Clause 22(4) sets out a variety of circumstances in which it would not be an offence to disclose protected information relating to the individual.

I have carefully considered—as has the Joint Select Committee on Human Rights—the way in which the clause is drafted. We believe that the Bill as a whole is designed to promote rather than invade fundamental rights and freedoms. We conclude that the clause strikes a fair balance and is necessary in order to comply with Article 8 of the convention.

Lord Tebbit: My Lords, I rise briefly to support my noble friend Lord Marlesford. When the matter was discussed at an earlier stage, fears were aroused that reporters from the tabloid press would go fishing around trying to discover from registrars of births and deaths whether they knew of anyone who fell into the category of transgender persons who had been issued with new birth certificates falsely purporting that they had been born male when they were born female, or vice versa.

The Government have decided that they must ensure as best they can that no registrar or any other person in possession of such information in an official capacity should leak it. I do not know how many noble Lords know very much about the tabloid press. I confess that I have a nodding acquaintance with it—a closer one than the Secretary of State for Defence does, as recent events show. Most of the information that the tabloid press has is picked up in the pub from people who have picked it up somewhere else along the way.

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Who will know and be legally empowered to pass on such information? They will be the workmates, friends or the family of such a person. That is the very area where the reporter or stringer from a tabloid paper picks up his information. Above all, Clause 22 will be ineffective in protecting the person. All it will do is punish an official, such as a registrar of births and deaths, for revealing the fact that somebody was born a girl although the birth certificate says that the person was born a boy.

That is it. It is a very heavy sledgehammer to attempt to crack a nut, particularly when the people most likely to discuss such matters and to talk about them to the press are not covered by the clause. The noble Lord is right that the clause is objectionable and needs to be thrown out.

Lord Selsdon: My Lords, I am a little worried because of the international requirements regarding birth certificates. For example, in the Middle East where I have been many times, one often has to produce one's birth certificate and that of one's parents. If someone changes his birth certificate, it has to be changed all the way back through the line.

I do not want to make a speech like that of the noble Earl, Lord Ferrers, on such issues, but it is complicated to know who you are these days. Around the continent of Europe there are only two names. The noble and learned Lord the Lord Chancellor, would be known as "Falconer, Charlie". His birth certificate would also be required—but he was probably not a Lord at that time—because a passport is not necessarily proof of identity. I have found that because the first part of my name is sometimes given as, "The right", I am known as "Monsieur Right The". The last bit of my title is "of Croydon", so I am called, "Croydon Of"—Of being a Norwegian Christian name.

We therefore need to think right the way through the history of the birth certificate. That applies inevitably to some hereditary Peers whose father at the time of their birth were not called "Lord this or that" because their grandfathers were alive. Once the chain is broken by a change in a birth certificate it could be deemed to be extremely fraudulent in certain countries.

I believe that such a clause should not be necessary because common decency should prevail. It is only when people follow indecent thoughts that decency does not prevail. I am therefore inclined to support my noble friend Lord Marlesford as the provision seems extraordinarily complicated. I wonder whether the Government have thought through the question of proof of identity and the requirement for the birth certificates of two or three generations.

Lord Stoddart of Swindon: My Lords, this is the first and only time that I shall speak in this debate. I do so simply to say that I believe that the Bill is entirely unnecessary, and has proved to be divisive. I wish that, in considering the interests of minorities, we might also

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consider the interests of majorities. Perhaps we ought to have a conglomerate Bill to protect the interests of majorities.

I was surprised when I received a Written Answer to a Question asking the Government to provide information on how many new criminal offences had been instituted and passed by Parliament since 1997, because that information was not kept centrally. In fact, we are going along willy-nilly, making more and more offences and increasing the penalties for offences, but the Government—and probably the previous government as well—simply do not know how many offences there are for people to commit and what offences have had their penalties increased. I find that impossible to believe, but it is unfortunately the truth.

I am concerned about the Bill and the unjoined-up government that brings forward such Bills. I am against the Bill; I have been against the Bill since it had its First Reading. However, I have kept relatively quiet about it because, if I objected to every Bill, I would be up 24 hours a day examining them and making speeches about them, either in Grand Committee or here. I shall concentrate my attention on the amendment, which I shall support for the reasons put forward by the noble Lord, Lord Marlesford, and others.

The only point that I want to make about the clause is about its subsection (5), which states:


    "The Secretary of State may by order make provision prescribing circumstances in which the disclosure of protected information is not to constitute an offence under this section".

That sounds very reasonable—except that everything else that the Government have not thought to put in subsection (5) will be an offence. I would like an explanation from the Minister about what that subsection means. A court that looked at it and the list of offences that are excluded would be bound to conclude that every other possible offence was included. After what I have said, I hope that he will be able to help me on that small matter.

6 p.m.

Lord Filkin: My Lords, those who have contributed to debates on the Bill in its earlier stages will be well aware why the clause matters. In itself, it goes to the heart of why the Bill matters, as it essentially deals with the importance of ensuring—albeit belatedly in the United Kingdom's case—that the gender change of people who have had or have gender dysphoria and have been in that condition for a period of time should, after a proper process of testing, be recognised by the state. We are one of only two members of the European Union that do not do that now, and it is about time that we rectified that.

The clause is an important part of the Bill because the Bill is essentially about trying to allow people who meet its tests to live their lives in peace, quiet and decency in future. There is a limit to what the state can do in that respect, as I signalled in the letter to the noble Lord, Lord Marlesford. However, what we can do, we should do, which is why the clause is in the Bill.

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Let me set out why it is necessary and why, as the noble Lord, Lord Lester, so clearly said, it is also proportionate to meeting our human rights obligations.

The clause is intended to ensure that the disclosure of personal information without the consent of the person in question must be restricted; if not, we would fail the person's right to respect for private life under Article 8. As the Bill is clearly structured, it signals that all human rights legislation has to strike a balance between one set of rights for one individual with rights and freedoms for others. Therefore the right and freedom in this respect are governed and limited by the prohibitions on disclosure in a number of important respects. The privacy protection does not hamper the detection or investigation of crime; it does not prevent the Criminal Records Bureau from carrying out its functions. The prohibition will not, therefore, assist a transsexual person who is also committed to a life of crime from being identified or detected. Similarly, disclosure is permitted where it is for the purpose of proceedings before a court or tribunal. It is also permitted where it is made in accordance with or by virtue of a statutory provision. Clause 22 will therefore not prevent members of the Civil Service or other public bodies from carrying out their statutory functions.

Clause 22 makes quite clear that disclosure may be made with the consent of the person to whom the information relates. This means that a person may be asked as to his or her gender history and, with his or her agreement, the information may be passed on to others who may need it.

Clause 22 also has another important limit. Not only does it enumerate a list of exceptions that allow disclosure where it is justified in public policy, it also extends only to information that is acquired in an official capacity. Clause 22 does not, therefore, cause harm to the liberty of individuals acting in a private capacity. It does not intrude into the private sphere. It would not be proper for the state to start poking into the content of conversations, as I indicated in the letter that I wrote to the noble Lord, Lord Marlesford.

On the one hand, there is the right of transsexual people to respect for their private lives, their interest in personal security and some level of control over what is sensitive personal information. On the other hand, by including specific exemptions and by staying out of the private sphere, the rights and freedoms of others are protected. Clause 22 and its subordinate limits have been carefully balanced to meet both our obligations under the Human Rights Act and our obligations in terms of decency and the rights of others.

Why does it matter? I can do little better than to draw the House's attention to a tragic article in the Guardian on 12 May. With the leave of the House, I shall refer to it briefly. It is about prejudice against a transsexual who committed suicide as a result of 10 years of prejudice against her. I do not claim that the clause will stop gossip, malice, evil or ordinary human beings from behaving in thoughtless ways that do

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damage, but we have an obligation as a state to seek to ensure that public officials or people acting in a public role are not part of that process. In that small and limited way we should so act.

I will not weary the House, but it is a tragic example of a person who experienced 10 years of harassment, vilification, physical assault and abuse on her house, which eventually drove her to commit suicide. In our small way— this is what the clause does—we have an obligation to act. Therefore I hope that the noble Lord, Lord Marlesford, will respect why we believe that this is an important measure and that, therefore, we do not support his amendment.


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