Gender Recognition (Approved Countries and Territories and Saving Provision) Order 2023

Debate between Baroness Thornton and Lord Henley

Tuesday 12th March 2024 Grand Committee

[Lord Henley (Con)]

Before the Front-Benchers intervene, I wondered if I could ask my noble friend a question.

[Baroness Thornton (Lab)]

This is not the end of the debate; it is just that I have chosen to speak at the beginning.

[Lord Henley (Con)]

I give way to the noble Baroness. I will come in later.

[Baroness Thornton (Lab)]

As the noble Lord is aware, it is perfectly all right to speak now, but I always think when doing statutory instruments that, if you have a lot of questions, as I have, it is only fair to put them in first, so the Minister and the team can think about them.

I thank the Minister for her explanation. I would like to make one little prod or poke, as it were, to the Government over this matter because it was the subject of the first Statement that the Secretary of State for Women and Equalities chose to make in her job. She did not choose to talk about why more black mothers and babies die in the maternity units in our hospitals or why we have huge misogyny in our uniformed services. She did not choose to talk about the increase in violence that our LGBT+ communities are experiencing or the problems that disabled people have with our train service and in getting jobs. She chose not to speak about those things and the fact that she chose to speak about this issue says something. Reading that debate, I think that it probably achieved the exact political purpose she wanted.

However, we can agree, I think, that it is important that this list of approved countries is kept up to date, as the Labour Government provided for when we passed the GRA in 2003. I was there and involved in the discussions around the then Bill; I helped to put it on the statute book. The list was last updated in 2011. The Government at the time said that they expected to update it within five years, but that was 13 years ago, so it is timely that we should be doing this now. My first question is: have the Government stated when they expect this order to be updated next? What is the intended timescale as we move forward? The reason why we wanted to do this in 2003 is that we knew that the world was changing constantly in this area.

With the limited information on the criteria that have been adopted by the Government in making these decisions—there is a headline list included in the Explanatory Memorandum but no further detail—can the Minister give the Committee more detail on what criteria will be applied and an assurance that they will be consistent across each case? For absolute clarity, will the changes made by this instrument have an impact on those in the UK who already hold a GRC via the overseas route? What about the applications that are currently outstanding but were initiated before this order comes into force? Can the Minister give details on how the countries affected by this instrument were both consulted ahead of the change and notified that the change was being made?

Will the changes in this instrument have any impact on the mutual recognition of UK GRCs in other countries? Further, what discussions have Ministers had about mutual recognition in other areas including equal marriage, adoption and pensions, and whether they may be impacted? Can the Minister assure the Committee that those rights are safeguarded and that discussions have been had with the relevant countries on those issues? The Explanatory Memorandum confirms that the Northern Ireland Executive and the Scottish Government were consulted; I would like to know what the outcome of that consultation was.

Finally, my colleagues in the Commons asked about Germany. There seems to be some confusion as to whether it is being removed from the list. Can the Minister give us an update for clarity? What changes are being made to the German system and when will those changes come into effect? Will there be further changes to this list in the near future to respond to those changes?

Those are my questions. If the Minister cannot give us all those details in her answer, I would be quite happy for her to write to us and put her answer in the Library.

[Lord Henley (Con)]

My Lords, I apologise to the noble Baroness, Lady Thornton, for trying to get in to speak before her. I want to make only a brief intervention in this debate, merely because I am intrigued to know about the list of approved countries and territories and what is included. We have in the Explanatory Note a list of the countries that were included in 2011. It includes quite a lot of Australian states and territories, some of which have, I think, been added to this list. It then goes on to include others, including—as one would expect—countries of a progressive sort, such as Sweden.

What I find particularly peculiar is that it then includes countries such as Iran. What is the Iranian legislation on this matter? Are we allowed to see it? Is it appropriate? Is Iranian legislation really fit for purpose on a matter of this sort? I appreciate that, as my noble friend put it, only 4% of applicants are using the overseas route, so we are talking about tiny numbers, but the inclusion of countries such as Iran and one or two others—I shall not mention them, but Iran is probably the most obvious—requires some proper explanation from the Government about why they are there and what is the Iranian legislation behind it.

Protection of Freedoms Bill

Debate between Baroness Thornton and Lord Henley

Thursday 12th January 2012 Grand Committee

[Lord Henley]

My Lords, I welcome the noble Baroness to this Bill. When I saw she was going to be moving this amendment I wondered whether I should have asked my noble friend Lord Howe to step in and deal with it, but I think he has quite enough on his plate at the moment. As the noble Baroness made quite clear, she does not want me to deal with this from the point of view of the Department of Health. She accepts it has every right to appeal the issue and that the Government can appeal it further through all the appropriate courts. Although this is a matter for the Department of Health, it obviously has implications for wider government. Therefore it is of concern and they have the right to appeal these matters.

As she asked me to do, I will confine my remarks—particularly when I get on to Amendment 151F, the second of her two amendments—to the broad principles, because that is what she wants me to address on this occasion. No doubt she has had and will find ways of debating these matters further, and at some length, when she continues the debates on the health Bill. I want to deal first, rather briefly, with Amendment 151E, which proposes that where a response to a freedom of information request is not issued within 20 working days the applicant must be given the option of requesting any updated or new information,

“unless there are grounds for significant new concerns as to the exempt nature”

of such material. I want then to deal with the broad principles relating to Amendment 151F, concerning,

“Appeals against information notices by public authorities”,

and why we do not accept that her amendment is an appropriate way of dealing with this.

First, with regard to Amendment 151E, I accept that we would certainly want to encourage all public authorities to provide the most up-to-date information in such circumstances where it is appropriate and reasonable to do so, but the proposal we have here is fraught with difficulties. It could make it very difficult to conclude a request taking more than 20 working days, even where the deadline has been extended for legitimate reasons, given that new information might continuously be produced and the existing information would be continuously updated. That could have real disadvantages for the requester of that information if previous versions of the information that they might be interested in seeing were not ultimately disclosed because the obligation to disclose those versions had been superseded by an updated request.

Further, the effect of the option to request updated information being exercised will be to create in effect a rolling request for information each time the 20-day limit is exceeded. That might delay the information originally requested from reaching the requester, and will mean that the public authority expends time answering one version of the question only to see that work disregarded if it is superseded by an updated request. Neither of those are sensible results. I also believe that the amendment could lead to the undesirable outcome where public authorities rush decisions to complete cases within 20 working days, even where there are legitimate grounds to take longer. Therefore they either withhold uncontentious information or release sensitive information inappropriately.

I turn now to the second of the amendments—

[Baroness Thornton]

I would be grateful if the Minister could address the issue. The register of risk is a very good example of this. Were my honourable friend and the Evening Standard to have succeeded ultimately and were the Government to have acceded to the Information Commissioner’s ruling to release the information, the register of risks of November 2010 would not have been the relevant document. It was mentioned that it would not be very much use to my honourable friend because it would be that of November 2010, not November 2011. There is a genuine issue here which I would be very grateful if the Minister could address.

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[Lord Henley]

I do not really see how it applies in the particular case that the noble Baroness is referring to, when she is talking about a 20-day limit and, if that is exceeded, how it would affect the November 2010 or November 2011 health risk register.

I shall come on to what I think is the more important part—

[Baroness Thornton]

I am very sorry to press the Minister on this matter, but I think I have been completely clear about this. I explained that a register of risks is a living document. It is a traffic-light process of red, amber and green in terms of the risks in any given policy area. The Minister must be very familiar with it because all government departments use them. A register of risks published in November 2010 would not be relevant in November 2011 when we in the House of Lords were discussing the health Bill.

I am perfectly happy to accept that this may be an incompetently worded amendment, but the Minister has not answered the question. Are the Government saying that when, under freedom of information, people ask for information that is then outside the 20 days and it goes to appeal, and the Government lose that appeal and the information may therefore be a year old, the Government will ensure that the up-to-date information is made available, if that is relevant?

[Lord Henley]

Obviously we want to provide the most up-to-date information that is appropriate. If this goes to appeal and it is found that we should be providing this information, we would provide that November 2010 information, but it would then be open to the noble Baroness to put in a request for the later information. Having had that decision by the tribunal, the court or whatever, that information would then be provided in the appropriate manner, because we would have lost that case and it would have become clear that that sort of information was that which should be provided.

[Baroness Thornton]

For the record, if the Government lose this appeal and publish this register of risks on this Bill, it will be not the November 2010 register of risks but the November 2010 risks plus the up-to-date version. Is that what the Minister is saying to me?

[Lord Henley]

I am not going to give an absolute guarantee of that sort without proper notice at this stage. However, I would have thought that it is fairly obvious that if something has been through the courts or the tribunal, or at whatever stage the Government decide that they are not going to appeal any further, and the courts have decreed that that sort of information ought to be available, it would be proper to provide the later information because it would be the same information that was being requested, other than the fact that it was at a later time. It would still be the same request being made, and it would have been decreed that that was appropriate. We would be bound by that decision.

Perhaps I might move on to the noble Baroness’s second amendment, with which I have even greater problems. In Amendment 151F, she proposes that no Bill may be submitted for Royal Assent where information directly relevant to that Bill has been requested under the Freedom of Information Act and where an appeal against an information notice issued by the Information Commissioner in the course of an investigation into the handling of the request is under consideration.

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[Baroness Thornton]

I am sorry to interrupt the Minister again but did I understand him to say that it was disproportionate to delay the passage of a Bill? But what if the information is relevant to the passage of the Bill? This is the problem we have now. I am sure the noble Lord intends to enlighten me on that point.

[Lord Henley]

Yes, I think it is disproportionate to use the FOI process to delay the passage of a Bill and I do not draw back from those remarks— particularly when the appeal is under way for entirely legitimate reasons, as my colleagues in the Department of Health have made clear.

Perhaps I may go on, if the noble Baroness will let me. It also brings a political dimension into the process. The commissioner, who again I stress is independent of government, would obviously have to be mindful of the likely impact on the passage of a Bill were he to issue an information or decision notice during the passage of related legislation that he might expect to be appealed. Given that a decision on whether and when to issue a notice might indirectly impact on the passage of legislation, there is a real risk that his actions could be viewed through a political prism. That is not what we want and would have an adverse effect on his ability to act in a way that is—and is seen to be—both proper and impartial.

[Baroness Thornton]

Is the noble Lord saying that the ruling of the Information Commissioner—and the words he used, which I quoted to the Committee earlier in my remarks—was political in some way?

[Lord Henley]

I have not said that at all. I have said that what the noble Baroness is saying in her amendment would bring in a political dimension because it could cause delay to the passage of that Bill.

Obviously that risk could be avoided by the commissioner simply refusing to issue a notice while any Bill that he thought was related to the request was passing through Parliament. However, that would then cause even greater delay in him deciding whether or not to issue the notice, with an obvious disadvantage to the parties involved, particularly to the person who has requested the information. In either case, this would be to the potential detriment of the effective operation of the Freedom of Information Act and to the perception of the commissioner’s independence.

[Baroness Thornton]

This is really very important. Is the Minister saying, suggesting or even inferring that the use of freedom of information by Members of Parliament—and I have put the odd one in myself, and been a victim of it, from time to time—is not appropriate during the passage of any legislation, because a Member of Parliament may want that information to assist them in their deliberations or their input into that scrutiny?

[Lord Henley]

I regret to say that the noble Baroness is now getting to the stage where she is deliberately trying to misunderstand me on every occasion. There is no desire to stop people putting in a request for freedom of information. All we are saying is that her amendment, which in effect delays the passage of the Bill while that process is going on, is not an appropriate way in which to deal with it, and brings in the political dimension to the Bill. The amendment also undermines the premise that the Freedom of Information Act is motive blind by introducing a requirement to consider whether information has been requested in connection with a particular Bill.

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[Lord Henley]

I can give the assurance that the coalition Government have given again and again of our desire for genuine transparency. That is why we were committed to making the Freedom of Information Act work as well as it can, which is why we have brought forward amendments to the Act in this Bill. I can go no further than that in trying to reassure the noble Lord. There is a genuine commitment by this Government, and I do not believe that any Ministers would wish to subvert our processes by deliberately withholding information as the noble Lord seems to suggest. He will just have to take my word for it.

The noble and learned Lord put it best. It would be a novel and dangerous proposition and one that I cannot believe is in the best interests of Parliament that some outside party could restrict the passage of legislation through Parliament and in effect govern how Parliament does its business by putting in requests of this sort and causing delays. Therefore, I hope that the noble Baroness at this stage will not press the amendment—well, she cannot do so because we are in the Moses Room. I hope that she is content to withdraw the amendment, but I also hope that she has further discussions with my noble friend Lord Howe. No doubt they will keep those discussions to the Health Bill as it proceeds through this House.

[Baroness Thornton]

I cannot guarantee the last bit from the Minister—that this issue is over for this Committee or for the progress of this Bill. This is a matter of constitutional importance to this House and an issue between the Government and Parliament. The Government had a choice. When the Information Commissioner ruled that this information on the register of risks was relevant to the passage of this Bill, he made a very important constitutional point. By denying the House that information, the Government are asking the House of Lords to consider a Bill without the information that it needs to do so. We are not saying that any third party should seek to stop the passage of any legislation—and I am perfectly happy to take advice and redraft the amendment. But the Minister has completely failed to address the constitutional point that it raised here, which is not about the Health and Social Care Bill but about what happens if an Information Commissioner says that some information is relevant to the passage of legislation through this House and any Government deny it to the House. That is a very serious matter indeed. Of course, I will withdraw the amendment, but I do not think that the matter ends here or that it is limited to the Health and Social Care Bill.