Conversion Practices (Prohibition) Bill

Christopher Chope Excerpts

2nd reading
Friday 1st March 2024 Commons Chamber

[Neale Hanvey]

I will—

[Sir Christopher Chope (Christchurch) (Con)]

Is the hon. Gentleman referring to clause 4 and line 10 on page 3 of the Bill, where there a specific reference:

“to suppress a sexual orientation”?

[Neale Hanvey]

Yes. As I was saying, the document points out that the use of the Sentencing Acts definitions is “problematic” because the definition of

“‘sex’…is not settled in law and a Supreme Court Case on the subject is pending. ‘Transgender Identity’ is similarly problematic because the concept of ‘identity’ is wider than the equivalent protected characteristic”

in the Equality Act.

The document moves on to the ineffectiveness of statutory defences, saying:

“While Clause 1(2) of the bill makes serious efforts to deal with concerns around prosecutions each defence raises serious issues in the following terms:

a. The religion defence is not a statutory defence at all because it cannot apply where a conversion practice has taken place. This means it is not an excusatory defence in criminal law.

b. The ‘approval/disapproval’ defence is vague and ‘disapproval’ is not defined

c. The ‘health practitioner’ defence is a complex three-part defence which places the ‘reverse burden’ on a Defendant. The definition of a ‘health practitioner’ at Clause 4 covers most but not all clinical roles, (unregulated therapists, counsellor, helpline operators or online forum moderators would not qualify). To rely on this defence, a health practitioner must also prove to the civil standard (i) they were complying with regulations (this term is not defined) (ii) that the action they took was reasonable and (iii) that there was no ‘predetermined outcome’. Placing reverse burdens on Defendants (particularly clinicians or similar) is generally considered to be undesirable because Defendants are not expected to prove their innocence. Legitimate clinical practice will sometimes have a predetermined outcome where a confident and clear diagnosis is made.”

I can think of examples where that would apply in clinical practice.

The document continues:

“d. The ‘assisting’ defence is unclear and undefined.

e. The ‘exploring or questioning’ defence suffers from the same flaw as the religion defence, it applies only where a conversion practice is not proved and so is not a statutory defence at all.

f. The ‘parental responsibility’ defence applies only where a person having parental responsibility (i) is exercising it and (ii) where they prove on reverse burden that the welfare of the child was their paramount consideration. As children get older parental responsibility in law is ‘exercised’ less and less. Requiring a parent to prove that welfare was not simply a consideration, but a ‘paramount’ consideration is onerous and likely impossible for a Defendant parent to prove.”

The Gay Men’s Network also addresses the human rights issues we heard about from the two KCs earlier:

“We take the view that the bill as drafted is not compliant with the Human Rights Act 1998 and would likely be declared incompatible with the convention for the following reasons:

Right to a Fair Trial (Article 6)

A prosecution alleging a parent supressed an identity by regulating clothing would require a parent to accept that such an identity exist. That is contrary to Article 6 which requires criminal tribunals be independent. It would also compel belief in the criminal sphere in such a concept while disbelief in such a concept is a protected characteristic in the civil sphere. That would create a serious inconsistency in law.”

That is very clear. The document continues:

“The bill leaves key terms undefined which is contrary to the Article 6 right that a Defendant understand the case against them in ordinary and clear language. The reverse burdens in clause 1(2) impose significant and onerous burdens on Defendants and in some cases do not amount to statutory defences at all.

Right to respect for private and family life (Article 8)

The bill makes significant incursions into family life by potentially criminalising parental guidance or regulation that touches on sexual orientation or ‘transgender identity’. Difficult conversations that parents have”—

as we spoke about some time ago—

“as a matter of course would potentially be criminalised. Further, a parent can only rely on the relevant defence as outlined above. This is highly likely to be viewed as significant state overreach by domestic and supra national courts.

Right to freedom of conscience (Article 9) and expression (Article 10)

This bill would significantly curtail both religious and political expression. A similar bill passed in Victoria, Australia, led to the domestic human rights body regulating public prayer. The fact that criminal liability can trigger from a single incident and the wide meaning of the term “supress” casts the net of criminal liability so widely the offence is likely to be declared incompatible with the convention.”

The document concludes:

“While the member for Brighton Kemptown has made significant efforts to deal with such concerns our position is that a bill based on the self-reported phenomenon of ‘identity’ and the wide term ‘supress’ might, despite best efforts, perversely fuel the very problem that it intends to solve.”

As I mentioned earlier, like section 28, the Bill would likely prevent a young person from securing an explorative conversation with even the most supportive and receptive trusted adult, due to its chilling effect. I have also raised the question of who would then provide the approved therapy.

Moving on to therapists, in a recent paper, educational psychologists Dr Claire McGuiggan, Dr Peter D’Lima and Lucy Robertson highlight the assumption that psychologists will be the ones who will guide the response and who have the skills to do so, but observe that psychologists are divided on this issue, too. They note the following:

“In response to the interim findings of the Cass review…the Association of Clinical Psychologists-United Kingdom…published a statement demanding a radical shift in the support for young people with gender concerns. They called for more comprehensive multi-disciplinary assessments and increased consideration of sociocultural factors, such as homophobia. The ACP-UK also strongly conveyed the uncertainty about how best to intervene related to the dearth of robust and high-quality data on the safety and effectiveness of medical transition, and the inability of clinicians to ascertain clearly who will persist or desist in their gender dysphoria…The ACP-UK statement was met with a rebuttal from a group of clinical psychologists in an open letter to the ACP-UK…They disassociated themselves from the ACP-UK response…Within educational psychology professions, however, only two educational psychologists have publicly referenced the concerns reflected in the Cass review.”

Apart from those two voices, the psychologists claim that there is silence, avoidance and suppression.

Silence: there is no response from the Association of Educational Psychologists or the Division of Educational and Child Psychology, and no guidance or caution, despite it being reported that educational psychologists are expertly placed to support trans-identified young people. Avoidance within the profession: it almost appears as if the Cass review did not happen at all, and that there is clear consensus on how best to support trans-identified youth. Their approach is affirmation, and that is the problem. Alongside that, there is suppression. That is being enacted on social media, where clear messages have been put out that if anyone asks a difficult questions, they are to be shut down and reported to the regulator and will face disciplinary action. That is the culture at the back of all of these pieces of legislation. That is the risk: professionals cannot become activists. That is happening in education and in educational psychology.

The paper led the authors to raise the fundamental position—I absolutely agree with it, and it applies to so many disciplines—that surely a healthy profession, a profession which prides itself on child-centred, evidence-based reflective practice, cannot continue to avoid, ignore or suppress the issue any longer. It must openly, explicitly and deeply engage with it. Disagreement must be tolerated and explored. The alternative is avoidance of the issue to protect educational psychologists from discomfort at the expense of the needs of children.

--- Later in debate ---

[Sir Liam Fox]

If the point the hon. Gentleman makes is valid, it is valid in the other direction, too. It should be wrong and, in his case, criminalised to tell any young person that they are definitely something when they are unclear about what they are. If that is what comes out of our debate today, that is a step forward in the wider debate.

[Sir Christopher Chope]

Will my right hon. Friend give way?

[Sir Liam Fox]

I will give way briefly because other Members still want to speak.

[Sir Christopher Chope]

Does my right hon. Friend agree that the noble Lord Winston put it well in the other place when he said,

“The basic problem is this: we are at risk of legislating for a piece of biology that we really do not understand. We do not understand the underlying mechanisms”?

—[Official Report, House of Lords, 9 February 2024; Vol. 835, c. 1847.]

[Sir Liam Fox]

I would not want to contradict the noble Lord in any way whatsoever, but there are other elements of the Bill that give me cause for anxiety. I know those are part of the reason the Government have found bringing forward legislation difficult. We have talked on both sides of the House about the concept of the harm that could be done by these processes, but there is no test of harm in the Bill. If all forms of conversion therapy covered by the Bill can be harmful, surely it would not be unreasonable to have a test of intent to do harm prior to any prosecution being brought under the legislation, and yet that is not in the Bill. That is a vital part missing from the Bill, because that is about second-guessing people’s intent, rather than any concept of their wishing to do harm. That casts our net far too wide in law.

There are two other points about the drafting. The first is that the use of the term “activity”, as well as referring to a “course” of action, means that a single event—a one-off event, or a one-off conversation—could, if interpreted in a particular way by a prosecutor, bring people within the scope of the law. That needs to be tightened, and I say to my hon. Friend the Minister that if the Government are bringing forward legislation, that is something we need to look at, as is use of the term “suppress” alongside

“orientation or identity…in full or in part”.

Again, this loose language potentially comes unstuck when a parent has a strong and necessary challenge to make against their child in order to give them a different view. It could be interpreted very wrongly if this was the wording of any legislation.

Finally, I will say this: we are here to produce good law in the House of Commons; we are not here to signal to any one part of the population that we are on their side. We have to ensure that the law we produce has the intended effect and that that law is necessary. I hope my hon. Friend the Minister will look at these elements closely in the days and months to come.