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Pensions Bill [HL]

I am conscious of the hour and will try to be as succinct as I can. The Committee will know that I served previously for 23 years as the Member of Parliament for Daventry, and would not wish me to rehearse too many experiences from that time. However, I would say that this is one of the perhaps two handfuls of cases that I encountered as a constituency Member which struck me as having a particular interest or relevance, which influenced my subsequent actions and interests and in which I became personally involved. It is for that reason that I have brought forward this amendment. I refer to the situation of a then constituent who was well known to me, who is now a senior and respected member of her local community, having transgendered from being a male and having in that capacity been a senior civil servant—and therefore well able to write a brief for me on this subject, though she is not the sort to do so in this case. I know that the Minister is aware of her identity, as is my successor as the Member of Parliament for Daventry, with whom I have discussed this case and who was enthusiastic that I should take it forward. We happened to discuss it by chance, and I said, ““Ah, the Pensions Bill is on; a new clause will be following immediately, because we ought to chase this””. The background to this situation, which involves the comparatively small number of people in this country who are transgendered, perhaps 5,000 or something of that order, was an adverse judgment of the European Court of Human Rights against the UK for not really handling the problem. It is a matter, both in the application of the judgment and more generally, that continues to attract its attention. Purely by coincidence, I happened to notice as the result of some representations that I had this week by e-mail, that the ECHR is going heavy on Lithuania, which has a rather more punitive attitude than the United Kingdom has ever typically shown on the matter. The issue is not about punitive intervention; rather, it is essentially about the lack of a legal regime and, to some extent, a lack of interest in handling our problem. The previous Administration rightly sought to respond to the ECHR judgment by introducing a Gender Recognition Bill. Because of my involvement with those issues, I volunteered to lead for my own party in the Standing Committee and the detailed consideration of that Bill. I found the situation fascinating and complex, although there was a wide measure of consensus across the committee. These are complex and sensitive issues for the people involved. People often get the wrong end of the stick if they have had no interest or involvement in this area; they get confused by issues of surgery and so forth. Those matters were rehearsed at some length and in some depth in the committee. The criterion under which we were operating was living in the acquired gender as the main test, rather than some purely mechanical procedure, and proof that that had been taking place for a substantial period of time and had not been reversed and was not equivocal. Under the 2004 Act, that led the individual involved to have the right to apply for an interim, and then for a final, gender recognition certificate. I should make the point that this is substantially a matter of law, and it would have been nice if the Ministry of Justice, in the shape of my noble friend Lord McNally, had stayed behind. I am sure that my noble friend Lord Freud will want to have consultations with the Ministry of Justice—indeed, I hope that in formulating his response to this he has done so—because it is primarily an issue of law and legal status. There were some difficulties, and therefore there is only a limited amount of retrospectivity. If I may give an example from outside this context in relation to registrations of birth, there was an understandable reluctance to tear up the birth registration if someone had altered gender, and special provisions were made for the registrar to record separately any subsequent applications and the grant of gender recognition certificates. We cannot unwrite the past or the previous gender—perhaps some of the people involved would not wish to do so—but we record as we move on. As I said to the committee, there was a strong emphasis on law and a tacit understanding that, once the certificate had been given, that would alter the legal status, but it did not convey benefits retrospectively back to the cradle in the new acquired gender. It would be fair to say, with no disrespect to either Ministers or officials from the Department for Work and Pensions in their briefing on the Bill, that the provisions for pensions and state benefits were grafted on. It would also be fair to say that Members of the committee like myself did not focus as intensely on them as we did on some of the other issues that we had already debated. It is self-evident that the situation in relation to pensions and benefits—we are, of course, dealing with a time before the beginning of the coalescence of the state pension age between female and male had even been initiated, although it had been legislated for—would be different for persons who had moved their gender from female to male, as they would have to wait longer before they could collect their state pension as a male. On the other hand, those who had moved—as my constituent had done—from male to female would in principle benefit—but then, of course, there are critical issues about how far back you can go, if at all. This is the essence of the amendment and the difficulty in which, I think it is fair to say, the department has found itself. Having attended a meeting with representative bodies and a Minister in the previous Administration, I cannot say that there are any villains in this matter, but it is extremely difficult to resolve. I make it clear that I understand the constraints under which any Minister will operate when dealing with this issue. The first one is in defining the moment when entitlement shifts—if it shifts at all—between male and female gender in relation to pensions or other benefits. It may be appropriate to establish a judicial process in this regard. Indeed, the department may be forced to do so as a result of action taken by potential beneficiaries. The department may say, ““This is too difficult to resolve”” or ““We are obliged to take this to court in order that it can be resolved””. I am sure that everyone here will understand the sensitivity for the individuals involved, given that they will already have gone through a very sensitive personal situation and will then have to become embroiled in a judicial process as well. Secondly, I concede that it is very difficult to introduce an element of retrospection if the Bill—or the Act as it will become—has not provided for it. Thirdly, I again concede that Ministers in charge of the benefit system—probably in their own defence, to be fair—will not want the ability to hand out ex gratia payments like sweets just because they think that people have a good case, because there might be others in the queue and the situation might get out of hand. On the other hand, we can dismiss the read-across that this is, as it were, the thin end of a wedge, because the number involved—the figure of 5,000 that I gave is the total estimate of transgendered persons—in this benefits difficulty constitutes a handful of people—less than 50, I think. Therefore, we do not have a great issue in this regard and, if we did, it will be resolved by the approximation of male and female pension ages. I do not think that there is a read-across to wider issues in benefits legislation which should trouble the Minister. In rehearsing this issue, I simply ask my noble friend to update the Committee, if he can, on what is happening in this area. I hope that he can go a little further and give some encouragement that he will work with his colleagues to try to get the matter resolved. As I indicated, the relevant Act has been in place for more than six years. People such as my former constituent are now in their 80s. This matter involves a very small number of people in a very sensitive position who feel that they have been unfairly treated and would like at least a resolution of where they stand and who, to use a fashionable phrase, seek closure on this outstanding issue in what was a very humane piece of legislation, which has been thoroughly successful.