Conversion Practices (Prohibition) Bill

William Cash Excerpts

2nd reading
Friday 1st March 2024 Commons Chamber

[Lloyd Russell-Moyle]

I do not believe that the Bill would catch people who express personal reservations about certain processes; it would catch people who have prepared programmes and activities, not ad hoc activities. I will come on to that safeguard in a moment. That is exactly why we need to get the words and safeguards right, and why we need to do so in a Bill Committee. We must not reject the Bill, because the hon. Lady might find that we go out of the frying pan into the fire.

The Bill allows Ministers in Northern Ireland and Scotland to enact it within their jurisdictions, but only with the consent of their respective national legislators. It creates offences in relation to people being sent abroad, and it uses existing language for the law to provide fines to be issued. My aim is not to lock people up but to stop this practice.

The key to the Bill is contained in the definition of “conversion practice”, which must be

“a course of conduct or activity”.

A course of conduct in English law is something that happens more than once, and an activity is not ad hoc but a planned intervention. That does not include one-off, impromptu actions; there must be a predetermined purpose. That is a higher threshold than just immediate intent. The predetermined outcome must have been indicated before the course of conduct or activity started, not during it. That provision protects people having thoughtful conversations, who could of course question people via that process.

The Bill says:

“to change someone’s sexual orientation or to change a person to or from being transgender”

includes

“to suppress a sexual orientation or transgender identity”.

I know some have been nervous about that wording, but I must be clear that suppression must be at the level of negating the identity or orientation. That means that the very being of their orientation must be changed in some way. Many gay people never have sex. Many transgender people do not wear gendered clothes. Those actions do not constitute suppression; they do not negate the orientation or identity in full or in part. It cannot be claimed that this wording is therefore an overreach.

The Bill would use only pre-existing terms from other laws to describe “sexual orientation”, “transgender” and “transgender identity”. I have received an interesting representation in the past few days that we should use the term “being transgender”, rather than the interchangeable terms “transgender” and “transgender identity”, with “transgender” being more clearly defined in the law we have at the moment. If that is better wording, it is the sort of thing I would willingly accept in Committee, after we have had the discussion. That is a real reason for us to get into Committee and work out those details. Sexual orientation is, of course, defined in the Equality Act 2010 in terms of a person having sexual feelings towards

“(a) persons of the same sex,

(b) persons of the opposite sex, or

(c) persons of either sex.”

That definition is used in section 66 of the Sentencing Act 2020, where “transgender” is defined in subsection (6)(e) as follows:

“references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment”.

The term “transgender” is also used in subsection 1(e), which states:

“hostility related to transgender identity”.

Members might not like these terms and they might not think they should be in law already, but they are. It therefore seems strange that we then get caught up in a debate on things that this House has already decided upon.

[Sir William Cash (Stone) (Con)]

The hon. Gentleman has not yet referred to clause 7. I would be most interested to know whether he is going to explain how this review would operate. It applies in different places, with different terms, and it proposes amendments. At the moment, it looks completely unworkable and will put people in a position where they could be criminalised, guilty of an offence, but at the end of the day the amendments could be then made—what on earth do the courts make of all that?

[Lloyd Russell-Moyle]

I will come on to every clause as we go through this, so the hon. Gentleman does not have to worry about that.

This is a contentious area, and we have heard in the debates in the other place about how people are genuinely and understandably worried, so I have sought clarifications on several areas. I believe that the balances are correct, but I of course acknowledge that there is a lot of fear in this area and that sometimes, no matter what reassurance one can give in law, people remain fearful until they realise that the practice actually protects. I hope that Members will look at the wording and application of these clarifications carefully, as they cover all the examples that I have been sent. I still have not found one that is not clear in this Bill.

On the expression of religious belief, I might not like the fact that a priest or another religious figure can stand up on their religious day and say there should not be LGBT people or that they should convert. In my view, that is not a pleasant thing to say, but it is also not conversion practice. We have ensured that as long as it is not targeted to a specific individual and as a course of conduct—a repeated activity towards an individual—it will never be an offence. As Lord Herbert said in the other place:

“We should never legislate lightly in the religious sphere, but Parliament has done so before to prevent harm.”—[Official Report, House of Lords, 9 February 2024; Vol. 835, c. 1896.]

We should do so again. This clause allows full compliance with human rights law and does not restrict the general expression of religious belief.

On freedom of expression, we have a similar clause: the expression of acceptance or disapproval may be distasteful to an individual, but it is not conversion practice. Even repeated expressions to an individual, unless they form part of a predetermined purpose that is planned as a course of conduct, are not captured in this Bill.

We have heard from practitioners who worry that they are currently working in the “wild west”, particularly in respect of counselling and therapy. There are few guidelines about how they can conduct their practice in this area and people on all sides shout at them, saying that one thing or another is conversion therapy. This Bill will, for the first time, give health practitioners the protection they need. Health practitioners are regulated or overseen by the Professional Standards Authority, which is following their professional judgments. The PSA was established by Parliament and regulates the statutory regulators and the non-statutory registers. There are 12 non-statutory accredited registers for counsellors or psychotherapists in the PSA, with the two largest being those of the UK Council for Psychotherapy and the British Association for Counselling and Psychotherapy, but the list includes smaller specialist organisations such as the Association of Christians in Counselling and Linked Professions or the UK Association for Humanistic Psychology Practitioners. Health practitioners are free to choose the relevant body to join. Each accredited register is entitled to develop its own approach to sexual orientation and transgender identity. There is already a diversity of views within those bodies, but none has objected to the Bill going to Committee.

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[Chris Green]

My hon. Friend is entirely right. Just because the state services are often slower than private services, we should not be satisfied that the 10-year delay is sufficient time for people to reconsider.

There is a question of equality on this matter and, again, we have to understand society as it has changed. A key thing in society, which was certainly not a concern when I was growing up, is the internet, emails and social media. Social media is powerful, and children and young people spend a great deal of time on social media. In other debates in this Chamber, people would be raising concerns about bulimia, suicide and other things that children are influenced by on social media. Those are the challenging issues raised on social media. Parents have to understand that the influences on their children can often be supportive and encouraging, but not all the influences on social media are. The Bill almost introduces an inequality: certain people can encourage and support children, young adults and others to go down a certain track, whether they meet in person or online, but the people with whom they have personal contact and will spend the rest of their lives—the family unit, their friends and the wider community—almost have their ability to communicate with their loved one curtailed.

[Sir William Cash]

Does my hon. Friend also accept that it would be impossible for a criminal trial determining whether an offence has been committed to go through all these variations to work out the nature of the evidence that should be received? It is incredibly invasive; it is based on privacy and people being able to talk to others in a mentoring context or a manner that would enable the person to understand better what is going on. For a trial to determine whether an offence had been committed would be mind-bogglingly difficult and very invasive—in practice, it would be impossible.

[Chris Green]

I agree. If the courts, prosecutors and others can go into the family home to find evidence for a successful prosecution, that would cause substantial disruption to family life. Remember that this has to be a successful prosecution for something that is not covered by existing legislation. There are already a huge number of protections in law for people right across society. As I said, this Bill ought to be able to point out compellingly and clearly areas of life that we want to be protected but are not already covered by existing legislation.

The punishment allowed under the Bill is a level 5 fine. I am not terribly familiar with the fine categories, but the House of Commons Library has provided a bit of information. It is an unlimited fine, which would be a huge cost to anyone suffering it. It is important that families are aware of the category they have been put into. Level 5 crimes include harassment, stalking, imprisonment, controlling or coercive behaviour, and exposure—commonly known as flashing. This Bill seeks to put families who believe they are having a normal conversation about their children growing up and exploring ideas about themselves and their identity, if they are not clear about what their identity is, into that category. Families having what they consider to be a normal, reasonable and balanced conversation with their children are being put in the same category as flashers. That is what the level 5 fine does, and that places a serious burden on families.

I want to reflect on the fact that Justin Webb fell foul of current legislation for remarks that came out earlier today, or perhaps yesterday, so it would be challenging for a family member, a friend, a religious leader or anyone else in wider society. If someone who deals with these issues day in, day out, as a presenter on one of the most prestigious news programmes—BBC Radio 4’s “Today” programme—can fall foul of current legislation, we should think about what we are doing when we seek to tighten up legislation. I appreciate the arguments that the hon. Member for Brighton, Kemptown made—he gave a powerful, dignified speech—but if Justin Webb can fall foul of the current legislation, how vulnerable will parents and others be who do not follow the nuances and details of these issues day in, day out? There will be a lot of concern. It will be damaging in many ways for families to feel that they will be scrutinised, under the microscope and vulnerable when doing what they can to care for their children. On that note, I oppose the Bill, but I look forward to the rest of this positive debate.

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[Neale Hanvey]

Well, that is a matter of fact. If Members want to engage with the KC, please go right ahead.

[Sir William Cash]

Vicariously, this is about criminal law, not matters relating to the European Union’s general administrative arrangements.

[Neale Hanvey]

I take the hon. Gentleman’s point, but the opinion of the King’s counsel is that enacting the legislation would have the effect of infringing those European convention on human rights freedoms that we all have every right to expect within extant legislation.

--- Later in debate ---

[Maria Caulfield]

The hon. Member for Brighton, Kemptown has made that argument as well, but we feel it is important to get the details right at the start of the legislative process rather than towards the end.

[Sir William Cash]

Would the Minister be good enough to give some indication of what such a draft pre-legislative Bill would look like? The arguments presented from our side of the equation demonstrate manifestly that it would be impossible for the Bill to overcome its difficulties in relation to criminal law and the like in Committee.

[Maria Caulfield]

I take my hon. Friend’s point. That is why the Government propose to publish our Bill and take it through pre-legislative scrutiny in both Houses before it follows the normal processes in Committee. We will be able to shape the legislation in a way that deals with many of the concerns that have been raised today.

As the House is well aware, this policy area is complex and nuanced. It is clear from today’s discussion that colleagues are listening and thinking carefully about the challenges the Government have encountered in preparing legislation in this space, notably ensuring that legislation is clear, balanced and respects freedom of speech, belief and religion, and does not cause unintended consequences for parents, clinicians, teachers or religious groups.