asked Her Majesty's Government:

My Lords, we have no plans to do so.

My Lords, I thank the Minister for that reply. Given that up to 20,000 people may have died in the war against Iraq and a similar number may have been maimed or injured, is it not reasonable for people to want an answer to the question which the noble and learned Lord, Lord Hutton, quite understandably, declined to enter into—namely, whether the intelligence on which the decision to go to war was taken was soundly based? Whenever this question has been asked in the past, the Government have said we should wait for the survey group to report. Now that the chairman of that group has resigned, telling a US Senate Committee yesterday that we were almost all wrong, is there not an argument for following the precedent of my noble friend Lady Thatcher after the Falklands War and setting up an independent inquiry?

My Lords, the noble Lord must bear it in mind that there have already been three inquiries. The inquiry conducted by the Foreign Affairs Committee produced its report on the decision to go to war on 7 July. The inquiry conducted by the Intelligence and Security Committee reported on 11 September. I remind the noble Lord that that committee was not in being at the time that the Franks committee was set up—it is important to remember that. In addition, the Hutton inquiry reported yesterday.

Mr Kay was very clear in what he said to the Intelligence Committee in a number of respects. But he also said that his views were partial; they were his own; and that more evidence may become available. So I suggest that we are patient on this issue. I know that there is a bit of disappointment on the Benches opposite over what happened yesterday, but instead of repeating the errors of rushing to judgment in the light of what Mr Kay has said, it would be sensible to wait for the ISG to report.

My Lords, when the ISG reports, will we be given a chance to debate that report as well as the US Congress? Is it the settled policy of Her Majesty's Government that all further inquiries on the wider case for war will be conducted by the US Congress and not by the British Parliament?

My Lords, the noble Lord will know that there may be issues around the report that cannot go into the public domain. He will know that with the interim report, we put as full a report as possible into the public domain. I want to be clear about this because I do not want there to be any misapprehension over what I am saying. In the same way that we have had an enormous number of opportunities to debate the issues around why we went to war with Iraq in the first place—even last night we were debating the issues around the costs of that war—I am sure that there will be opportunities, and the usual channels will be able to fix those opportunities, to debate anything appropriate.

My Lords, does the Minister recall that many of us on these Benches strongly supported the Prime Minister and saluted his courage at the time of the invasion and his decision to ally ourselves with the Americans in invading Iraq? All we questioned at the time was the clarity of some of the justification given by the Prime Minister. We questioned the two dossiers which are now universally reckoned as dodgy—indeed, the second dossier being very much dodgier than the first one.

Would it not now be very helpful to all—including the Government's case, which is not looking very good in Iraq—to have an investigation or inquiry, which, as my noble friend has reminded us, is being proposed in the United States, to show the real and good reasons for regime change in Iraq, for removing the hideous Saddam, and to bring home to all people the considerable achievements which are now taking place in Iraq but which hardly ever get reported? The wheels of commerce are now turning in that country and there are many benefits which we do not hear enough about from the media or the Government.

My Lords, I am bound to say that if the noble Lord had been in his place yesterday evening, he would have heard a great deal about that. I know that there were others taking part in that debate, but the fact is that we debated a lot of the benefits to flow from Iraq, only last night in this House. I, like him, wish that that received more publicity.

I do recall that the noble Lord was among many who—very rightly in my view, but courageously as well, given the politics—supported the Government at the time we went into military conflict with Iraq. I also recall that much of the intelligence we had available was shared at that time. I believe that more evidence will be found of weapons of mass destruction, but let us see what the ISG reveals and whether those programmes existed. At that point, the noble Lord will no doubt be able to make his case again. However, it is important to remember that this was not the sole reason for going to war. The reason for going to war was the way in which Iraq had repeatedly flouted the United Nations—the way in which the whole world believed, in passing United Nations Security Council Resolution 1441, that Iraq was in material breach of its obligations under UN Security Council Resolutions 678 and 687. We had a debate about that in this House before the military conflict started. So to be partial about this is a mistake.

My Lords, does my noble friend agree that rather than spending a great deal of time going back over the genesis of every detail that led to a war which the vast majority of Members of both Houses of Parliament supported, it would be more useful now if we concentrated on winning the peace and heard something from opposition parties calling on all parties in the United Nations fully to observe all the requirements of Resolution 1441? Many of their political friends in other countries are currently ignoring their responsibilities there, and if they called on their political friends to observe that resolution, perhaps we could do something constructive towards securing the peace.

My Lords, I agree with that wholeheartedly. I hope, given what the noble Lord, Lord Howell of Guildford, has said today, that he will be on the front foot on this issue about winning the peace and that the Opposition will be on the front foot about telling the world what a good job we are making of many issues in Iraq. We do not hear that from the party opposite. I remind those who attack the Government on this issue that the United Kingdom's declared reasons for war against Iraq were discussed fully in both Houses, with a vote in the House of Commons, a move unprecedented in modern times. I look forward to what the noble Lord will say as a result of these exchanges, to the media and elsewhere, about how well the coalition is doing in Iraq.

My Lords, when the ISG report or part of it is published, can the Minister assure the House that it will be published in the words of the ISG alone and that there will not be any suggested "adjustments", shall we say, to the wording from any member of the Prime Minister's private office?

My Lords, in the light of the findings of the noble and learned Lord, Lord Hutton, the implication behind that question is totally inappropriate. The noble Baroness is trying to revisit issues around the accusations of spin. The Government were cleared entirely of those accusations by the noble and learned Lord, Lord Hutton. If the noble Baroness does not understand that, she can read the report in full.

asked Her Majesty's Government:

My Lords, the OECD's assessment of the UK economy was published on 20 January 2004. The Government welcome the report and note the positive assessment of the performance of the economy over the past few years.

My Lords, glowing as the report is in parts, nevertheless it points out that the budget deficit will exceed the euro-zone's 3 per cent limit by next year. Furthermore, the report casts doubt on whether the,

"massive spending increases will fully pay off in terms of improved service".

Is not the Chancellor's golden rule on balancing the budget of the economic cycle under serious threat? Should we not be encouraging him to think about cuts in public spending as he himself suggested at the enterprise summit earlier this week, before he increases taxation or we return to the dreaded boom and bust?

My Lords, I heard what the noble Lord, Lord Roberts, said about glowing in parts. My copy of the OECD's statement is festooned with flags to positive comments. It looks rather different from Michael Howard's copy of the Hutton report, I have to say.

On the more serious issue, clearly there is a distinction between the wholly favourable opinion expressed by the OECD about the UK economy at present and its projections for the future. The OECD is entitled to its projections for the future; the Institute for Fiscal Studies has produced comparable projections, which are published today. They are fully entitled to their views; it is the Government's that the Chancellor will not break his golden rules.

My Lords, is my noble friend aware that the report was really very positive about the UK economy, as he rightly mentioned? Should not notice be taken of the fact that in the whole of the past century—if we take that into account—we have had seven years of stability? That was never equalled in the whole of the previous century and for much of the century before then. This is a wholly new phenomenon, and we should pay tribute to the Chancellor for producing it.

My Lords, I am sure that we should, but I cannot resist recalling the view of the bursar of an Oxford college, who criticised the college's investment policy on the grounds that the past 200 years had been wholly exceptional.

My Lords, would the Minister agree that one element of the report that was somewhat critical of the UK economy dealt with the long-term productivity performance? In particular, the report identified the low levels of R&D as being a cause for concern. International comparisons indicate that British industry, with the noble exceptions of the pharmaceutical and aerospace industries, has a very poor record in that regard. The Government have introduced a series of measures, including a rather expensive R&D tax credit, which so far has had very little effect. Has the Minister any suggestions as to other measures that might be introduced, which might help industry to improve its performance?

My Lords, I am grateful for the comments of the noble Baroness, Lady Sharp, on the measures that have been introduced to improve productivity. I am sure that the Chancellor in his Budget, which is the only occasion on which such matters can be announced, will consider further measures if necessary. However, it is worth pointing out that, using the definition of productivity that the OECD uses, we have in fact already caught up with the European average. We are still behind the United States, of course, but we are catching up in relation to Europe and Japan.

My Lords, does the Minister believe that the OECD report would be more or less optimistic if we were already in the euro? Secondly, can he remind us of the latest estimate of the budget deficit for this year and for next year, both in billions of pounds and as a percentage of GDP?

My Lords, the first question is of course, as the noble Lord, Lord Marlesford, knows, a try-on. It is a hypothetical question that invites me to anticipate any future statements about British membership of the euro.

On the second question, yes, I believe that I can give percentage figures, at any rate. The projection in the OECD report for the rest of this financial year—from 2003–04—is that the deficit will be 3.3 per cent. The projections for next year and the year after are 2.4 per cent and 1.8 per cent respectively.

My Lords, will the Minister consider advising the Chancellor that the best contribution he could make to increased productivity in the years ahead would be to promise to introduce much shorter finance Bills than he those he has produced so far?

My Lords, I know from personal experience that the Chancellor is particularly grateful to the noble and learned Lord, Lord Howe, for the work that he does as regards the simplification of taxation and we are sympathetic to it. As I have said on many occasions in this House, complication of taxation arises because of the concentration of legal and financial support for those who wish to find new ways of avoiding taxes.

My Lords, does the Minister agree with the OECD statement that,

"improving the quality of public services in a cost-effective way in such priority areas as health and education will be a major challenge"?

If so, will he explain why the Government's approach to public services is one of more tax, more spending and more failure, rather than enacting any meaningful reforms?

My Lords, on the noble Baroness's first point, the OECD report is very cautious indeed:

"The jury is still out on whether the massive spending increases will fully pay off in terms of improved service".

That is a warning to us. On the second point, I disagree with all of the statements that she makes.

asked Her Majesty's Government:

My Lords, I shall first, unusually, correct the noble Lord. The UK target under the Kyoto protocol is actually to reduce greenhouse gas emissions by 12.5 per cent below 1990 levels. Provisional data show that UK greenhouse gas emissions were 14.9 per cent below 1990 levels in 2002. Therefore we shall meet the Kyoto target. We remain confident that by delivering appropriate policies we can meet the domestic goal of a 20 per cent reduction by 2010. Further step changes will be needed if we are to meet the 2050 target.

My Lords, I am grateful for that minor correction. Is the Minister aware of the growing anxiety that DTI Ministers continue to fight shy of any real conclusion about the need for more nuclear generation? In doing so, they are losing a valuable opportunity that would take them on the way to meeting those commitments, which begin to look more like a PR exercise than real undertakings.

My Lords, the noble Lord has on occasion been with us in Committee on the Energy Bill. He knows that the discussions about a nuclear component of energy policy have been fairly robust and will, no doubt, continue to be so. The point about meeting the Kyoto targets is that we need no new nuclear capacity to meet them. We believe that the policies set out in the energy White Paper, if fully delivered with the energy efficiency and renewables contribution, can ensure that we meet those targets without new nuclear power. Particularly after 2010, this will require some step changes in both consumer and business behaviour. Of course, we are keeping the nuclear option open and constantly under review.

My Lords, does my noble friend agree that, although he is quite right to say that we need no new nuclear capacity, we do need all our existing nuclear capacity unless and until alternatives are in place that generate the same volume of electricity and the additional electricity needed to meet the productivity demands such as those set out in the OECD report?

My Lords, I do not entirely agree with that. Certainly on present policies there will continue to be a nuclear component until the mid-2030s, even if there is no new build. But that will be a diminishing component. Indeed, we can meet our projected energy requirements in 2020, provided that the policies enunciated in the White Paper are maintained, with a much reduced nuclear component by then.

My Lords, in spite of the optimism expressed by the Minister, in order to make sure that we achieve our targets, would it not be prudent for further steps to be taken now to support other energy technologies, apart from renewables, that are likely to lead to a reduction in emissions?

My Lords, further steps are being taken on renewables, on more energy efficient use of carbon fuels and the development of alternative technology. That includes keeping the nuclear option open by research and expertise being maintained, so that we could, if necessary, revert to a nuclear option. But if the various components outlined in the White Paper are delivered on current policies and on policies which are envisaged in that paper, then we do not need to rely significantly on any technology that is not so far included within that calculation.

My Lords, are the Government adopting contraction and convergence as the just and intelligent way forward on global emissions?

My Lords, in energy policy we are not talking about the contraction of economic growth, but of decoupling the demand for energy from economic growth, so that the coefficient for energy in developed countries would become negative. That would allow greater scope for developing countries to grow their own economies at a rate that brings their standards of living closer to those in developed countries. It is not exactly contraction, but it provides for some reduction in the energy take of the northern countries.

My Lords, will the Minister clear up a misunderstanding once and for all? Nuclear is not included in renewables, yet nuclear does not have carbon dioxide emissions. Why can it not be counted in the percentage that is necessary to achieve the Kyoto targets? Surely, on that basis there must be some sense of urgency in going for new nuclear as well as, as the noble Lord said, maintaining existing nuclear.

My Lords, in one sense the nuclear component is taken into account in meeting the Kyoto targets as, as long as we keep a certain nuclear component, it does not contribute to the carbon figures. Although for the future nuclear technology is a low carbon or near-nil carbon technology, it is not a sustainable technology until we have found ways of dealing with nuclear waste. Once that is dealt with in a satisfactory way, then one reopens the question of the contribution of nuclear. But we are not anywhere near that point. It has economic consequences, as the costs of disposal and decommissioning need to be taken into account, which make nuclear power a not very cheap form of carbon saving.

My Lords, it may be that the anomaly arising from the noble Baroness's question is why the carbon levy does not allow a dispensation for nuclear. On the Question that is actually on the Order Paper, is it not timely to remind ourselves that although Britain has gone well ahead of other countries in Europe, and certainly in the world as a whole, in going for Kyoto plus, the fact is that, although competitiveness can be an argument, having given a lead, we now see countries such as India and China starting to move in the direction of signing up to Kyoto? Britain should be congratulated—under both parties, going back to 1992 at Rio—on giving a lead on this question.

My Lords, I agree with my noble friend. The lead given at Kyoto and that given by the UK within the EU in the EU's contribution to Kyoto have been very important. It is also important that we maintain that lead. The UK and Germany are leading the EU contribution to deliver our Kyoto targets. This has not been, and will not be, to the economic disbenefit of UK industry because, if we are ahead of the game in the technologies that are needed for this new era, UK industry will be competitive and will gain as a result of being ahead of the pack.

asked Her Majesty's Government:

My Lords, we are keen to support measures within the UK and across Europe to strengthen the protection of children through the sharing of criminal record and other information. To this end we are putting in place links between the different jurisdictions within the United Kingdom for sharing conviction information, and information about people who are disqualified from working with children. We are also examining with other EU member states how the arrangements for sharing information can be improved.

My Lords, I thank my noble friend for that Answer. However, does he recognise that it is a matter of public concern that better co-ordination of criminal record systems across the United Kingdom should be effected with the greatest dispatch and accuracy? As regards the European Union, does my noble friend recognise that a number of existing states and a number of applicant states still do not have lists of those with criminal records in respect of children? Will he make it a priority of the British presidency of 2005 to ensure that all those 25 countries have proper lists and that there is a proper sharing of information across the European Union?

My Lords, I completely agree with the noble Lord that it must be a priority to work with jurisdictions outside the United Kingdom. I am not sure that we should wait until 2005 to do that although, of course, it ought to be one of our priorities in 2005. As it is, we are working with our European partners to encourage them to have an EU-wide sex offenders register. We already have a register. We are leaders in the field in international law enforcement in this area. I believe it is generally recognised that our EU partners have much to do to catch up with us. We consider that this is an extremely important matter. Although our objective may not be achievable in the immediate and short term, it is one to which we are working.

My Lords, in noting the Minister's reply to the original Question, will he comment on claims that the inability of Disclosure Scotland to access directly certain criminal records in England and Wales has created a legal loophole potentially putting children at risk? Will the Minister also note that, on the evidence of the chief executive of the Irish Society for the Prevention of Cruelty to Children in a recent press article, vetting procedures are grossly inadequate in comparison with the systems in place in England and Wales? Will the Minister therefore bear in mind the potential dangers posed to children in these two adjacent jurisdictions when he is addressing the wider context of harmonisation of vetting procedures across the European Union?

My Lords, I certainly accept the premise of the noble Viscount's question; namely, that our procedures are more advanced than those of other jurisdictions, as I have already said. However, as regards Scotland, important work is being undertaken to ensure that the systems are compatible. It should be remembered that Scotland enters conviction data on the PNC. Although it does not have quite the same concept of recordable offences, in recent years a number of steps have been taken to ensure greater compatibility. Most Scottish cases are recorded on the PNC, so there is that important sharing of information. The Irish system is very much modelled on the United Kingdom system. The Irish are, like us, working towards securing high standards in terms of enforcement. Their model is very much based on ours. We are delighted with the progress that has been made in adjacent jurisdictions but, of course, there is much more to be done.

My Lords, while agreeing with everything the Minister has said, will he ensure that the improved co-ordination applies also to vulnerable adults who are covered by the same procedures and face the same loophole?

My Lords, I note very carefully what the noble Baroness has said. That is an important point. It is something of which we are very mindful and on which we undertake to secure more work.

My Lords, following the question of the noble Viscount, Lord Bridgeman, is the Minister aware of the evidence of the relatively free movement of sex offenders across the border between England and Scotland in both directions? While we are waiting for changes and information-sharing systems to be put in place, what are the Government doing to address that issue in the short term?

My Lords, we have worked extremely hard on this matter. The Government have an extremely good track record in this field. I summarise the situation. In the past five years we have tightened the laws on sexual abuse of children; we have strengthened the sex offenders register; we have introduced new orders to protect children from grooming; we have introduced a new order which requires sex offenders who commit offences overseas to go on the sex offenders register; we have established a multi-agency public protection arrangement; we have introduced sex offender orders which can stop sex offenders being alone with children; and we have introduced post-release supervision. All of those are very important. We work very closely with all of the jurisdictions that make up part of the United Kingdom to ensure proper enforcement. Important steps are being taken to work more closely with our colleagues in Scotland, as I indicated earlier.

My Lords, when will the Scottish and English systems be compatible?

My Lords, my understanding is that work is being undertaken to ensure compatibility. I cannot give the noble Lord a precise date but I am happy to write to him on that point.

My Lords, the noble Lord mentioned—

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

moved Amendment No. 111ZF:

Page 21, line 21, at end insert —

"( ) under Part 4 in relation to all development control matters;"

I have three amendments in this group. All of them relate to the extremely important point about the definition of sustainable development. Part 4 of the Bill relates to development control in England and Part 6 to planning in Wales.

Clause 38 is a potentially beneficial clause of substantial effect in planning decision-making. However, at the moment it fails to achieve its objective on three counts. First, it excludes from its ambit local development orders and statements of development principle, the former being found under Clause 39 and the latter under Clause 41. Although at the moment we object to the statements of principle, they are in the Bill at present. Together with the local development orders they form the bedrock of the Government's local planning decision-making and local development control under the new system.

Excluding Clauses 39 and 41 from Clause 38 would unreasonably limit the statutory requirement for the achievement of sustainable development at a local level in making day-to-day planning decisions. By doing so the Government would be abdicating their responsibility in this respect and causing an apparent anomaly. The requirement would be applicable to the planning of schemes and plans but not to the coal-face, which is development control.

Secondly, an undeniably important part of the planning system in this country is to stimulate economic activity and regeneration. The Department of Trade and Industry relies on it. It is recognised by the Office of the Deputy Prime Minister and by the Department for Environment, Food and Rural Affairs. Adherence in the clause to sustainability alone gives insufficient weight to economic regeneration. It is a vital component of planning decision-making for business and commerce, and hence the amendment to ensure sufficient recognition of economic regeneration factors in the decision-making.

Thirdly, sustainability can mean all things to all men. However, it is capable of definition as we demonstrate in our succinct new clause. But to leave the definition to secondary legislation or policy made by the Secretary of State, or to leave it to the courts to sort out later, would be to shirk responsibility within the terms of the Bill and it is unwarranted.

A definition is important to give guidance to the public and those in the planning system as to what the Government and, more importantly, Parliament means by this otherwise potentially nebulous word. As it carries a couple of clauses with it, it is important for people to know what it means.

The meaning that we propose in our new clause has legal basis. It has as its derivation the definition concluded at the UN Human Environment Conference 1972 in Stockholm. It appears on the Government's own website. As time passes and definitions become more and more extensive and complicated, as Amendment No. 112 demonstrates, our amendment takes us back to the root definition of 1972, updated by the words "and natural". It is simple, universal and it has been recognised for the past 30 years. We believe, therefore, that this is a definition which will stand not only the test of time, but put on the face of the Bill, will stand as the definition of sustainable development which, after all, is what the Government are seeking to achieve in many ways in this planning Bill.

I have two amendments in this group—Amendments Nos. 112ZA and 112ZB—which are amendments to Amendment No. 112 in the names of the noble Baroness, Lady Wilkins, and my noble friends Lady Hamwee and Lord Addington.

As I understand it, Amendment No. 112 has been tabled in order to engender a discussion on the aspects to be included in the concept of sustainability. The noble Baroness, Lady Hanham, has just said that sustainability is very often all things to all men; I would no doubt add "to all women, too". However, that is the precise difficulty. What "sustainability" means to a business person and what it means to an environmentalist are entirely different. It risks becoming a weasel word about which everyone says, "Yes, it's a wonderful idea. It's like motherhood and apple pie, and we are all against sin". But, unless we talk about what it means, it becomes relatively meaningless.

Amendment No. 112 talks about social progress and the environment. Paragraph (c) refers to,

"prudent use of natural resources",

and paragraph (d) talks about,

"maintaining high and stable levels of economic growth and employment".

All those things are important. Yet neither in this amendment nor in the debate about sustainability is there a recognition of the ways in which different types of sustainability may conflict and the best ways in which they can be maximised in order to provide the best possible outcome involving trade-offs, compromises and, inevitably, priorities.

My first amendment would merely add the word "communities" to the concept of social progress. I am not sure that it would provide the most elegantly worded amendment in that there would then be a reference to "access to communities". However, at this stage, these amendments are for discussion and not for writing into the Bill. Therefore, I am not too concerned if the wording is not as elegant as it might be.

However, it seems to me that communities are the most fundamental part of the concept of social sustainability. Ultimately, everything else—whether public services or access to education and employment or housing—comes down to the local communities of which they form an important part.

My second amendment—Amendment No. 112ZB—is rather more important. It is an attempt to tease out from the Government what they see as the priorities between economic growth and all other desirable issues, particularly environmental ones. We cannot get away from the fact that a conflict often arises there and one must make a choice. You can engage in some form of development which results in higher economic growth in the short term or you can say, "No. Considerations of protecting the environment", in this case, "or perhaps longer-term sustainable economic growth must take priority over the immediate—perhaps selfish—interests of those of us who live here and now and would benefit from that immediate economic growth".

There are conflicts. Most of the arguments surrounding major planning applications encapsulate the conflict between people who say, "This has to happen because it produces more jobs or more housing for people", and those who say, "Yes, no doubt it may do that, but the environmental or ecological consequences, or whatever, are not worth it. The short-term economic gain is not worth the longer-term environmental loss". Therefore, this amendment suggests that the emphasis should be firmly on the environmental aspects and the prudent use of natural resources rather than on short-term economic growth. That is certainly where I stand.

I tabled the amendment to find out what the Minister has to say about it and to tease out again just how far this Planning and Compulsory Purchase Bill is intended to stimulate economic growth at the expense of other factors, such as the rights of people to object to that growth or to take part in the system. In particular, I want to find out how far it is intended that the planning system, as amended by the Bill, will make economic growth easier at the expense of other factors, such as environmental ones.

This group of amendments highlights the problem that exists in respect of planning law in deciding what should be on the face of the Bill—that is, in primary legislation—and what should be in secondary legislation. I believe that the old system of PPGs, which is now the system of PPSs, has served us well. It has two big advantages. First, it is possible to put into the PP system far more detail than one can ever really put into a Bill. Secondly, as the world moves on, it is possible to amend the PP system in a way in which, on the whole, one cannot amend primary legislation.

I believe that primary legislation should give an indication of the major considerations to be taken into account in framing secondary legislation. It should be an indicator of the constraints and of the areas to be addressed by such secondary legislation. However, I do not believe that it should be too tight. That is why I support my noble friend's Amendment No. 111B. It would merely add the words "and economic regeneration", whereas I consider Amendment No. 112, for example, to be far too detailed to be included in primary legislation. It would be quite unsuitable. There are many good aspirations in it but it is not suitable for primary legislation. Frankly, it could lead to endless examples of judicial review and other problems, which would be a barrier to making any kind of progress.

I speak, of course, with an environmental hat on due to my concern for rural England. However, I recognise that, if the Bill is eventually to come out well, it must help, where possible, to speed up planning legislation and make it more efficient. That is why I hope that the Government will feel able to support my noble friend's amendment as an appropriate insert into the Bill. It is merely one of the factors to be taken into account in framing the secondary legislation, which I believe will always have to give the detailed indications of the planning policy.

I am one of those who has serious problems with the concept of sustainable development. I am afraid that I cringe every time I hear the word "sustainable" mentioned. It seems to me to be a classic bureaucratic mantra. It is planning-speak for "good intentions". How long will anything be sustained? Who is to sustain it? How is it to be sustained? To me, sustainable development can only be a subjective concept; it defies objective definition.

Amendment No. 112 attempts to provide a definition but it lists only a range of factors against which development plan documents and development plans should be judged, many of which, as has already been said, by their nature are conflicting. One person's or one authority's desire to maintain high and stable levels of economic growth and employment is likely to conflict with another's effective protection of the environment, as the noble Lord, Lord Marlesford, has just noted. At the extreme, airports or motorways and wind farms generate fiercely opposing views.

Clause 38, as it stands, contains no definition of "sustainable development", perhaps because the Government recognise that it is impossible to define. Yet, elsewhere in the Bill, as we have already seen—namely, in Clause 18(5)—local planning authorities are required to carry out an appraisal of the sustainability of their proposals and to prepare a report on their findings. That seems to me to be an unnecessary piece of bureaucracy.

The origin of the phrase "sustainable development" was, I believe, from a 1994 paper entitled Sustainable Development: The UK Strategy. But the most common definition is in PPG1, which describes sustainable development as,

"development which meets the needs of the present, without compromising the ability of future generations to meet their own needs".

That definition has the beauty of brevity, but leaves plenty of room for disagreement on whether a particular development is or is not likely to compromise the needs of future generations. It is hard to see how any appraisal of success or failure can be made without the benefit of an opinion from those future generations.

Planning is an art form. No one can accurately predict the future. Planning is the art of reconciling a range of competing and often conflicting aspirations and finding the optimal compromise between various interests in any particular situation. The noble Baroness, Lady Hanham, was right to call for objectives to be set out in planning and to attempt to meet them. But objectives will vary from one part of the country—region, county or district—to another. I believe that the Bill should set out a range of objectives against which planning documents and applications should be measured. That could be done in secondary legislation, as the noble Lord, Lord Marlesford, suggested, rather than on the face of the Bill. One of those conditions should have to be good design, as has been mentioned.

Local authorities would then need to prioritise the objectives and criteria that they deem to be important in their development documents and plans, against which planning proposals would be judged. But there is likely to be a variation in the relevance of different objectives to different parts of a district. Flexibility and judgment must always have a place in the planning process.

I hope that the Minister will at least acknowledge the impossibility of providing an objective definition of "sustainable development", but I expect it is too much to hope that the dreaded phrase can be completely left out of the Bill.

Will the noble Lord take it from me that "sustainability" goes back earlier than 1994—it comes from the United Nations conference in Stockholm in 1972? The exact effect of my amendment was agreed in Stockholm and is on the Government's website—I can tell the noble Lord how to find it. But the phrase dates from much earlier than 1994. I, too, agree with him that sustainable development is subjective.

I am attracted to Amendment No. 113B, tabled by my noble friend, because it gives the first definition of sustainable development that I have seen anywhere that can be evaluated in individual planning applications. There is so much guffery surrounding the subject. If one is trying to balance the benefits to the current generation against the benefits or costs to future generations, how can that be evaluated when someone wishes to put an extension on the back of their house? In Amendment No. 113B one can make that equation. For example, someone can be given permission to extinguish a small amount of grass, with the loss of life of a few ants, because his proposal to put up bat boxes would be acceptable as a reasonable compromise. Something practical would have been agreed. In any case, if the amendment is accepted, we shall need secondary legislation to ensure that enough information is available, so that people making planning applications can understand how they are to make their proposals, and, taken as a whole, contribute to sustainable development. It will be a difficult piece of secondary legislation to write, but I hope that the Minister will indicate some of its contents and the practical effects of Clause 38, of which I thoroughly approve.

My own Amendment No. 112A looks at one aspect of the way in which the introduction of Clause 38 might affect the way that we look at planning decisions. It goes back to points raised by the noble Lord, Lord Rogers of Riverside, at Second Reading. He said that a sustainable city is a multi-centred city. Yesterday, I had the dubious pleasure of spending a considerable time in Willesden Junction, where the undertaker seems to be the most prosperous business. It is probably the happiest, too, because at last one could leave Willesden Junction if one was a customer of the undertakers. But it should not be that way. It is reasonably accessible to the centre of London and has plenty of space. London has become too centre-heavy. The parts around the periphery rely too heavily on the centre and become as denuded, desolate and unkempt as Willesden Junction. I have been in smarter streets in Kabul than in Willesden Junction. It is a decrepit place. That it should be part of our capital city is not what is meant by sustainable development.

We should develop concepts of the type espoused by the noble Lord, Lord Rogers, which seem to encapsulate the idea of sustainable development. That concept should also apply to little villages. My home in Hampshire is not in a sustainable village. It relies heavily on facilities provided outside. It no longer has a shop or a school; one cannot exist there without relying on a car for transport. Every need other than having the house is supplied from outside the village. If we are looking at sustainable communities, we must develop villages in a more sustainable way and make them large enough to command some level of local provision. I would like to see practical evolution of that concept and its effects on the development of the countryside and towns. When we consider the secondary legislation, the Government will have to give many steers and pointers on how Clause 38 will work in practice if we are to use it effectively. Otherwise nothing will happen, because it will be possible to argue any case in any way and there will be no way of reaching even decisions around the country.

Like many noble Lords, I supported Clause 38 at Second Reading. Most of us probably regarded it as a starting point to the debate we are having now. I will not speak to all of the amendments in the group as there are many of them. Amendment No. 111ZG, tabled by noble Baroness, Lady Hamwee, is important because it makes Clause 38 operational rather than a pious hope. I do not particularly mind Amendment No. 111B, tabled by noble Baroness, Lady Hamwee, on economic regeneration. Although I am not sure that it sits comfortably in a clause about sustainable development, it is there and I do not mind it.

Regarding Amendment No. 112, like everyone who has spoken, I agree that it goes too far in trying to define that elusive and developing concept of sustainable development. It is far too ambitious and detailed and for that reason alone is dangerous, because it ties the legislation down in many odd areas.

The noble Baroness, Lady Hamwee, talked about access under paragraph (a). I agree with her. The noble Lord, Lord Marlesford, spoke about the issue in general terms and I agree that it is not right. The proposal embroiders far too much and muddies what I understand to be the Government's definition. It calls for,

"social progress which recognises the needs of everyone … effective protection of the environment … prudent use of natural resources … maintaining high and stable levels of economic growth and employment".

That is better, but it goes a little too wide.

I agree with the noble Baroness, Lady Hanham, that we need to return to the original concept of the Stockholm conference of 1972. All things considered, I would prefer that route and not the Government's definitions.

Finally, I want briefly to comment on the amendment tabled by the noble Lord, Lord Lucas. When I read it, I thought that he was somewhat dotty—if he will forgive me saying so—because I did not understand what he was getting at. I now understand, but I am not sure whether his amendment achieves his aim. I like the concept of the noble Lord, Lord Rogers, that properly designed cities are the only way forward for sustainable development, but I do not know whether it is worth putting that into the Bill. I like the idea of the importance of design, contained in the amendment tabled by the noble Lord, Lord Lucas, and probably I would leave it at that.

I support Amendment No. 111ZG tabled by my noble friend Lady Hamwee because it is important to try to beef up what is contained in the clause, however difficult that may be. At Second Reading, that seemed to be the desire of many noble Lords. If we can include sustainable development as an objective, that will be a step forward and perhaps during forthcoming debates we can agree measures that will make it more forceful.

I agreed with much of what was said by the noble Lord, Lord Lucas, and I want to comment on the sustainability of our housing. The Minister has said many times that one of the objectives of the Planning and Compulsory Purchase Bill is to speed up the process by which we provide homes. We have been creating households at a much greater rate than we have been building homes. All of us share that objective. However, we have seen what has gone wrong in the past and we have demolished some of the developments of the 1960s.

It is important that we address that issue and that in drawing up plans at whatever level we are aware of the problems. Today we need to think about the different tenures which make a community sustainable; about the materials that are used in construction; how much waste we create; and what its removal means in traffic movement.

We also need to think about the natural resources that our homes use. I am concerned in particular about water, on which I have spoken previously. Climate change brings an increased risk of flooding, yet we build many estates on ground that does not allow water to drain away and where there is much more hard-standing. We still install in houses water and sewerage systems that are uneconomical in their use of resources. As the noble Lord, Lord Lucas, said, when we are designing new home developments we must be aware that people need to be near to schools and hospitals.

However we resolve the issue of sustainable development today or at later stages of the Bill, I hope that the Government will ensure that the points I and other noble Lords have raised appear in all other aspects of the Bill, whether in guidance or in secondary legislation. We all want to ensure that the issues we have raised today improve the Bill as it passes through your Lordships' House.

I am genuinely grateful for all the speeches that have been made today. Most were extremely helpful to the debate. I take note in particular of what was said by the noble Lord, Lord Marlesford, about separating out the primary legislation and deciding what detail we want. For obvious reasons, it is easier to change that. I was speaking at a conference earlier today when that very issue arose in terms of planning policy guidance. It can be changed and does not necessarily require a legislative slot.

This is an important debate on an important part of the Bill and I want to make a few preliminary comments. But one thing I will say—and this gives nothing away because I am in no position to do that—is that I do not want to be dogmatic. I do not want to sound dogmatic. I have to resist these amendments at this stage, but that is not to say that we have finished looking for other forms of wording.

I have previously explained why Clause 38 is drafted in the way that it is. We accepted at the outset that there were strong arguments to have in the Bill a statement of what we are planning for. We wanted something that would work and be practical. There are two extremes. We could include a lot of fine words that will look good and make us feel good, but which are quite meaningless—I have seen drafts of such paragraphs—or we could attempt legal definitions which could get us into all kind of problems. There is one that I will share with the Committee when I come to address a particular amendment because it is an example of a possible problem over legal definitions.

We decided not to tie the requirement to specific functions. We have a planled system, so the right place for the duty is at the plan-making level. That is how the clause is currently drafted. It bears on the regional planning body and local authority when they are preparing a revision to the regional spatial strategy or preparing local development documents. The planled system provides for decisions to be taken in accordance with the local plan unless there are other material considerations.

The local plan provides the policy framework for the planning decisions and, as a consequence, does not specifically cover development control, as would happen under Amendment No. 111ZF, or any of the procedures covered by Part 4, such as those referred to in Amendment No. 111ZFA. It simply does not need to do that.

A plan in itself cannot achieve sustainable development, as noble Lords will accept. It sets out a framework, but it is the actions that follow which lead to sustainable development. That is why we used the "contributing to the achievement of wording.

We used the words "with a view to" in order to make it clear that the regional planning body or local planning authority should have a positive intent towards sustainable development in exercising the duty. If we had simply said, "with the objective of achieving", there would be a risk that we would place a weight on the plan-making function that we do not believe that it could bear.

Achieving sustainable development will require action on a far wider front than is provided for by what we can do through planning and the planning system. People may argue that the plan has not achieved sustainable development because of issues that the plan could not hope to have addressed. On the other hand, issues that were covered in consultation or the examination, but which were rejected by that process, could be reopened through a legal challenge under the terms of the amendment. That is what we seek to avoid.

We are keen to ensure that the wording in Clause 38(2) is effective. We want to ensure that it works and sends the right message as well as being robust legally. So we shall study the words,

"with a view to contributing",

further, to see whether they can be improved. That is why I can say I am not being dogmatic. I also have to say—because it says it in the brief—that after the work it took to get to where we are, I cannot give any guarantee that we shall be able to find better words.

I can genuinely assure the Committee—of course in the early days the Bill was in my policy ownership—we spent an enormous amount of time with various drafts on this aspect of the Bill and that has continued with the current planning Minister, Keith Hill.

The varying definitions offered up in contribution to this debate all help to underline the point that I am sure Members will expect me to make. That is not to belittle the amendments or the importance of the subject matter. To take the amendments as they stand, the issue is whether one puts a definition on the face of the Bill or whether one uses guidance. The specific amendments use words that are fine in guidance—giving advice on when the concept of sustainable development could apply. None of them causes me any problems in the sense of what is implied behind the words.

The problem is the idea of putting them on to the face of the Bill. They would bring uncertainty in legislation. If the matter went to court, a court would be required to define "social progress", or there could be a debate in a court about maintaining high and stable levels of economic growth. We have the problem of putting words in the Bill that could be used to delay and tie up the planning system in the courts.

Recently—last week or the week before—we published a consultation paper on a proposed urban development corporation for west Northamptonshire. The areas covered in the document included Northampton, Daventry and Towcester. By common consent, when we discussed this matter with our partners in the area, there was a concern that Brackley should be included in that list. Frankly, we wanted to include it, but we were prevented doing so on legal advice. The reason was that to set up an urban development corporation under the current legislation there has to be a regeneration reason. The point was that the case could not be made strongly enough in legal terms to put Brackley on the list, although in that general area it would be impacted by other changes.

In regard to the words of Amendment No. 111B—"and economic regeneration"—I can give one example, on which I have not taken advice. It is an example that I have dealt with recently, in which we could not make the case for regeneration for Brackley, but that does not mean that it should be excluded from the benefit of being in the growth area and what we will operate with the UDC in the other areas. It came down to the fact that there was a problem with the legal term "regeneration"; we could not satisfy the requirements of legislation that has been put on the statute book for those reasons.

I give that as one example, but that is not the reason why we shall not look at it. Certainly it is an example that comes to mind and it appears to be a good idea—we all agree with economic regeneration in areas—but putting it into principal legislation could give rise to all kinds of difficulties if it ever came to court. That is why we should make it clear what we mean by "sustainable development" and why it should be put in guidance. That is the purpose of subsection (3), that in fulfilling the duty the regional planning body and the local planning authorities should have regard to the guidance issued by the Secretary of State. That guidance will explain what we mean by "sustainable development" in this context.

On a number of occasions, in earlier debates, I have mentioned what the Government see as the four broad objectives for sustainable development that will be set out in the forthcoming consultation draft of planning policy statement 1. I shall say more about that in a moment. The four objectives are sustainable economic development, social inclusion, protection of the environment and prudent use of resources. I am extremely disappointed that I have not been able to provide a draft of planning policy statement 1 before now. It is a document that we have to get right. From what I know about it so far, I am confident that it will meet many of the concerns expressed in today's debate.

Without talking out of school or misquoting anyone in particular, in an interview in Planning on 5 December, Jonathan Porritt, who is the chair of the Sustainable Development Commission and one of the Prime Minister's advisers on the issue, indicated that,

"he has seen a draft of PPS1 and is happy with what he saw".

That comes from a rather long article. In other words, the early drafting meets the point. It comes down to the main argument of whether one puts it into principal legislation or into guidance.

Another question is whether one has it right in the first place. First, we need to get it right; whether in guidance or in primary legislation, we have to get the definition of what we are talking about right. Secondly, there is the practical issue, in terms of the legal process and the parliamentary process, of putting it in guidance or on the face of the Bill.

I hope that in due course we shall be able to convince the Committee that we have the matter right. I can give a firm promise to have a draft of planning policy statement 1 ready for the next stage of the Bill. That means that we need it before Report stage so that people can look at it and table amendments. I must not just give it out as we start Report stage. It must be available before Report stage.

Planning policy statement 1 will make it clear that planning authorities should facilitate and promote sustainable patterns of urban and rural development by making suitable land available for development in line with economic, social and environmental objectives to improve the quality of life; by contributing to sustainable economic growth; by protecting and, where possible, enhancing the natural environment and the quality and character of the countryside and existing successful communities; by ensuring good quality and good design; and by ensuring that development supports existing communities and contributes to the creation of safe, sustainable and liveable communities.

I hope that that gives a flavour of the way in which we are working. Although I have not referred to them specifically, each set of paragraphs has covered a group of amendments. I am afraid that Amendment No. 112ZC is unacceptable. It would result in different types of guidance based on the way they impact on the planning authority. Currently, planning authorities must have regard to guidance. That is right because it recognises that, however comprehensive and up to date, there are likely to be situations that the guidance has not foreseen or that the guidance has not addressed in detail, or other issues may need to be considered. That is why the concept of material considerations allows the planning authority to take account of those situations so it is not forced to follow only guidance in developing policies or making decisions. That is crucial. The guidance is important but that concept of material considerations allows a degree of flexibility at local level.

The effect of the amendment would be to remove any discretion from the planning authority. I understand that the term has been used in other legislation, but it would send an unwelcome precedent in planning legislation. I understand also that case law has confirmed that the effect of this formulation is to remove all discretion from the relevant authority. That is a highly dangerous way to operate. We could find ourselves in a position where local authorities are forced to follow the guidance come what may, even when they know it is the wrong thing to do because there are other issues that need to be addressed. We could also end up with a different hierarchy of guidance depending on whether it is guidance which must be followed or guidance to which regard must be had. This is a recipe for confusion and challenge and yet more time in the courts.

I regret that I do not have available the draft guidance. I hope that I have said enough to indicate that we are on the right track. In the end it will come down to the issue of whether or not we put the wording in the legislation. I have given an example of Brackley and regeneration. In order to sustain my argument, before the next stage I shall try to find examples where there has been a court case about such words as are used in the amendments so that I can explain to the Committee why it might be a dangerous route to follow.

We do not want a form of words which those who wish to stifle development out of a principled ideological argument can use to frustrate. I do not claim that any noble Lord has remotely hinted at anything like that; nor do I cast aspersions on outside bodies. But the law is for everyone to use. Therefore, we have to be very careful how the Bill is drafted. We are in some ways in uncharted waters because we have not attempted anything like this before. A planning Bill comes along about once in a decade. We need to get it right, therefore, so that we do not have to wait a decade before correcting a mistake.

I hope that that gives a flavour of the Government's approach. I hope that we shall have available more substance before the undoubted debates on Report.

I was encouraged by the noble Lord's remarks. As I listened, I considered again Amendment No. 113B. From the Minister's remarks on PPS1, I understand that most of that amendment will be included. However, I hope that he will include "and" which is a crucial piece of drafting. It provides that any development must enhance the natural environment. That is "do-able" already at the big end. If one wants to build a new port facility on the Solent, displacing some ducks and wading birds, one has to include in the development another bit of coast which one spends some time enhancing. I cannot see why that would not be a constructive way of looking at development in the future.

if one wished to add 300 houses to a village, by building them in a wheatfield one does not harm the environment very much, a wheatfield being a pretty desolate thing as regards the environment; the odd pond would probably satisfy. However, if one were developing on a more slightly attractive area (in environmental terms), why not be obliged to improve some of the neighbouring woods and meadows so that the environment as a whole was improved by the development? I cannot see why that would not be a good route to follow. It has been adopted very constructively for some big developments and, I would hope, for small ones too.

I thank the Minister for his response. It was excellent. He understands the problems that we have with this clause.

I am sorry that the Minister did not reflect a little more closely on Amendment No. 113B about which I am most interested and concerned. If it would be helpful, I am happy to give the Minister's researchers the website on which this definition appears. While the words "and natural" have been added to help with exactly the matters the Minister spoke about which will appear in draft PPS1, the definition is universally accepted and has been since 1972. It seems a great pity that we go round trying to reinvent the wheel.

Economic and social exclusion and prudent use of resources are all encompassed in the amendment. I accept that the Minister refers to draft PPS1. The amendment would put on the face of the Bill a definition of sustainable development and it would then be explained in the guidance. At present, the real flaw is that it is just a heading. If we are not careful, "sustainability" becomes jargon. Everyone uses the word without having the faintest idea what they are talking about. It is a wide definition. The amendment confines it to areas about which we are concerned: housing, education, health, land, newts, trees—it encompasses everything.

I do not want the Minister to think that I was so clever that I found this definition myself—perhaps I should say that that was so—but I have been guided towards it. I have also had checked by planning counsel how they would handle it if they ever had to defend it in court. The planning counsel I have asked see it as acceptable.

I am pushing the Minister slightly. As it stands, "sustainable development" in Clause 38 is unacceptable. It gives no clues as to what is being talked about. One can hardly put on the face of the Bill, "Please see draft PPS1" because that will not work either.

"Sustainability" is mentioned not only in Clause 38 but throughout the Bill. Somewhere along the line there has to be a broad definition of it. I urge the Minister to think again about the amendment to which we shall return and perhaps have a longer discussion on it. I believe that it does exactly what the Minister suggested it needs to do and is then susceptible to guidance thereafter if that is what is required. But to leave the Bill without any clues about the meaning of "sustainable development" will probably be unacceptable. I leave the website with the Minister, if it is helpful for him. It is based on the conclusions of the United Nations meeting in Stockholm in 1972 which were agreed by the entirety of the United Nations so for once I have other people on my side.

It is tempting to start the discussion all over again. I shall indulge myself to this extent. The way in which my noble friend Lord Greaves raised the important issue about communities was helpful although he said that it was his secondary point. I have always considered that one could not achieve sustainable development without including economic issues and economic regeneration as part of the whole approach.

The Minister has been helpful. No doubt messages are winging their way to many organisations that he is not dogmatic and that the Government are still looking for the best way. We all look forward to seeing the draft PPS1.

I turn to the particular amendment. I should be willing to forgo Amendment No. 112ZC if we can make Section 38(2), as the Minister said, both robust and send the right message. That is one aspect of the matter to which I am sure we shall want to return, but it is perhaps time to move on. I beg leave to withdraw the amendment.

moved Amendment No. 113D:

Page 22, line 23, at end insert "following the expiration of the period of one year commencing on the date on which it shall have given notice of the intended revocation in accordance with regulations under Schedule 4A"

Our Amendments Nos. 113E and 113F are grouped with the amendment. Amendment. No. 113E seeks to clarify the basis on which the Secretary of State or the National Assembly for Wales should review a local development order which has been called in for approval. In new Section 61B, subsection (3) requires account to be taken of any matter which the appropriate authority thinks is relevant. I am advised by the Law Society of its concern that the wording is too vague. The Minister has talked this morning—quite rightly—about the dangers of vagueness and how that can give rise to legal challenge. Is the Secretary of State right to think that an issue is relevant? The term "material considerations", contained in Amendment No. 113E, would narrow the factors to be considered to purely planning considerations.

In Standing Committee, the Minister said that there was nothing magical about this—although he accepted that it is an accepted phrase—in dealing with individual applications. He went on to say:

"The reason why the clause is slightly broader is that broader issues may well arise".—[Official Report, Commons Standing Committee G, 21/1/03; col. 313.]

He also said that those matters might not be captured by a narrower definition of "material considerations". They are captured by using the word "relevant", although that is a clumsy phrase. As the Minister then said that he would look at the wording again, can he take the matter any further now?

Amendment No. 113F seeks to require the Secretary of State to give reasons for any direction to a local planning authority to modify a local development order. I accept that the Secretary of State or the National Assembly for Wales will give reasons. I again refer to what the Minister said. He stated:

"When informing the LPA of the changes that it should make, the appropriate authority will need to explain how the document is deficient. How can it ask the LPA to modify what it considers to be deficient if it does not point out the deficiencies, which are the reasons for the directions?".—[Official Report, Commons Standing Committee G, 21/1/03; col. 315.]

Indeed. But one needs to be sure that the reasons are adequately explained. There seems to be no burden on the Secretary of State or the National Assembly for Wales to be required to give reasons. When a similar point was raised on Tuesday by the Conservative Front Bench, in a different context, the noble Lord, Lord Bassam, said that there was,

"comity … with a measure of agreement".—[Official Report, 27/1/04; col. 141.]

He also said that he would consider how to deal with the matter. Perhaps the comity can also extend to this provision.

Noble Lords on these Benches have indicated an objection to Clause 39 standing part of the Bill. Perhaps I can address that now. This is not least because when the matter was dealt with in the Commons, the honourable Member for Cotswold read into the record some extensive comments by the Law Society. It appears from reading Hansard that the Minister had to leave the room. On his return he merely referred to "LDOs"—he does not have the same distaste for acronyms as the noble Lord, Lord Rooker. He continued:

"LDOs in no way impinge on the environmental impact assessment process … [and] I am grateful for the committee's acclamation of the clause".—[Official Report, Commons Standing Committee G, 21/1/03; col. 318.]

I am not quite sure about that point.

I understand that local planning authorities already have the power to make local development orders covering a specific area or about a particular type of development—for instance, they can provide that there should be no restriction on development for industrial use within the area of the business park; but it is not a widely used power. I thought that it might be worth tabling an objection to the Question whether the clause should stand part in order to give the Government an opportunity to explain their thinking and the need for the provision, particularly given the retention, in effect, of powers by the Secretary of State and the National Assembly to direct the local planning authority to submit the local development order for approval and to bar the local planning authority from making the order unless it is specified as necessary by its local development plan or a development plan document.

I am not clear—I do not know whether the Minister can help me on this today—about the extent of a local planning authority's powers. For instance, could it amend a general development order to vary the amount of floor space that could be added to an existing building? At present the amount is 10 per cent. Could it be changed locally to a different percentage?

Other concerns have been voiced about whether, because of different arrangements in different areas, local development orders will create and add to the confusion that we have already outlined in our concerns relating to a good deal of the Bill. Of course, we must always be aware that that may damage public understanding of and confidence in the planning system. It has also been said—I do not wholly share the view—that local development orders could lead to widespread environmental damage. Clause 38 certainly needs to be robust enough to protect from such damage.

We all know that relatively small developments and a disproportionate amount of time spent on them by planning officers, local councillors and Members of Parliament can cause enormous anxiety to neighbours. Therefore, a local development order could be a helpful or very unhelpful tool in the new tool kit.

I rise to support my noble friend Lord Hanningfield in his approach to this section. General permitted development orders have proved very successful in helping householders to undertake minor alterations to their properties without the need and cost of applying for planning permission. It appears that local development orders extend that principle on a locally determined basis and should be given a cautious welcome. Until now, the Bill has taken away from local authorities much of their present power of determination. Development plans approved by an inspector must be adopted, and the Secretary of State, even at the end of the road, can adopt a plan on behalf of a local authority. They should therefore be given a cautious welcome.

However, as the noble Baroness, Lady Hamwee, has just said, it is unclear on the face of the Bill what can be undertaken under a local development order. If such an order is to provide for minor relaxations of planning control that everyone can understand, albeit variably applied across the country, so be it. However, will the Minister confirm that, perhaps under new Section 61 A(2)(b) of the principal Act, structures such as wind turbines will not be included in a local development order? Structures of that nature would be most worrying. I understand that, when first erected, mobile phone masts were allowed under general development planning orders.

Before the Minister replies, I clearly support what my noble friend Lord Hanningfield said about welcoming greater power for local authorities. However, prompted by my noble friend Lord Ullswater, I have two questions.

First, it seems that local development orders will be local Article 4 orders, in that they will grant permitted development by way of a local development order. Perhaps the Minister will confirm whether that is correct.

Secondly, what sort of consultations will have to take place with local communities before a local development order grants planning permission? Under Section 61 A(2), a local development order may grant planning permission, which may relate to all land in the area of the relevant authority, any part of that land and a site specified in the order. In relation to wind turbines and large areas of land, therefore, it would have very wide powers that may affect people quite substantially. At the moment Article 4 directions are sometimes applied to prevent nearby buildings being composite, but also to stop development that would affect other people. I should like to know the extent of that power and what kind of consultation it is expected will take place before those orders are made. If it is correct that the order itself will grant planning permission, what redress will there be by way of appeal?

To set matters in a useful context, I am tempted first to describe the effect of Clause 39 before I deal with the various amendments.

Clause 39 allows local planning authorities to introduce local development orders that grant planning permission for development without the need for a specific planning application. In effect, it introduces local permitted development rights—a point made by one Member of the Committee—which extend those set nationally in the general permitted development order.

Local development orders can be used by local authorities to implement only policies set out in an adopted development plan document. For example, a development plan document may contain policies aimed at reducing the number of offices in a town centre and increasing the number of shops. A local planning authority might implement that policy by granting specific planning permission by a local development order for the change of use of an office to a shop anywhere in the desired area.

The use of local development orders would have benefits for both local planning authorities and developers, because it would reduce the number of applications that an authority would have to determine, but where its consent was expected to be given. It has that streamlining beneficial effect. It will be entirely up to a local planning authority whether to introduce a local development order. Therefore, that important element of local autonomy—the useful expression used by the noble Lord, Lord Hanningfield—will be preserved.

An authority may also revoke an order at any time, although it will be liable to pay compensation if an application for development that would have been allowed under the order is submitted within a year of the order being revoked and is refused or approved subject to conditions.

Clause 39 also introduces Schedule 1, which sets out the procedure for making local development orders. The clause inserts new Sections 61A to 61C into the Town and Country Planning Act 1990. Section 61 A(5) allows the Secretary of State or the National Assembly for Wales to make an order to specify areas or kinds of development for which a local development order may not be made. At present we expect to use that provision to exclude development related to listed buildings, conservation areas and development for which an environmental impact assessment is required.

Section 61B provides the Secretary of State or the National Assembly for Wales with an opportunity to intervene before a local development order is adopted. In such cases, the Secretary of State or the National Assembly for Wales may approve or reject an order or may direct a local planning authority to modify it. New Section 61B also allows the Secretary of State or the National Assembly for Wales to revoke a local development order that has already been made by an authority. That power would be used only in extreme cases, but may be needed where, although the policy in a development plan is acceptable, the effects of a related order had unwanted, adverse impacts that became apparent only after it had been made. So it is a fall-back provision.

New Section 61C enables planning permission granted by a local development order to be granted unconditionally or subject to conditions specified in the order. That may answer the noble Baroness, Lady Hamwee, who asked whether the local development order can be varied. Conditions may be placed or it may be granted unconditionally.

Schedule 1 introduces a new Schedule 4A to the Town and Country Planning Act 1990. Paragraph 1 of Schedule 4A allows the Secretary of State and the National Assembly for Wales by regulation to make provision for the procedures to be followed in preparing, submitting, approving, adopting, revising and withdrawing a local development order. It also allows the Secretary of State and the National Assembly for Wales to introduce requirements in respect of notice, publicity, inspection and consultation—consultation is important so that there is transparency to the order.

The processes from preparing to adopting a local development order will generally mirror those for the local development plan document to which it relates, although independent testing will not be required. It is generally expected, although it is not a requirement, that an order will be prepared at the same time as the development plan document to which it relates, so the burden of preparing an order should be minimal.

Paragraph 2 of Schedule 4A concerns the revision of a local development order. An authority may revise an order at any time. It must do so if so directed by the Secretary of State or the National Assembly for Wales, or if a policy in a development plan document that the order implements is revised or revoked.

I hope that that context has given some reassurance to Members of the Committee who have asked questions, because it explains quite well how we see the process working. I shall now go back through the amendments.

Amendments Nos. 113D and 113G would require a local planning authority, the Secretary of State or the National Assembly for Wales to give a year's notice of an intention to revoke a local development order. I understand the caution that motivated the noble Lord, Lord Hanningfield, to table those amendments, but they would allow developers who intend to take advantage of the permitted development rights granted by the order the opportunity to carry out works before the rights were withdrawn. We cannot agree that any notice should be required. The local planning authority, the Secretary of State or the National Assembly may discover that a local development order has unwanted impacts that were apparent only after it had been made. Orders should be revoked as soon as possible in such situations.

The Bill has already been amended in response to concerns raised about what should happen where a developer had already started work permitted by a local development order only to find that the order had been revoked before the development had been completed. Clause 40 allows a local development order to provide that any development started under the order power may be completed even if the local development order is revoked. There is no time limit on when such development should be completed. That ensures that if development is permitted at the time it is started, it remains valid if a local development order is revoked.

Revoking a local development order does not mean that the development cannot take place, merely that planning permission will be required. As I said, compensation is payable under Section 108 of the Town and Country Planning Act 1990 if an application for development that would have been allowed under the local development order is submitted within a year of the order being revoked and is refused or approved subject to conditions other than those imposed by the order. That will ensure that a developer is not disadvantaged if local permitted development rights are withdrawn.

I turn next to Amendment No. 113E, tabled by the noble Baroness, Lady Hamwee. It is not directly consequential on the other amendments, and I am unclear why the noble Baroness proposes it. I assume that she wants to narrow the effect of that part of the clause. It is certainly true that the words "material considerations" are well known. They are used in the context of determining planning applications, as Section 70 of the 1990 Act requires regard to be had to the development plan,

"so far as material to the application, and to any other material considerations".

It may be thought that it would be helpful to use the same words in new Section 61 B(3). We think that to be mistaken. The matters to which the appropriate authority may wish to have regard in considering a local development order made by a local planning authority may not be the same as the material considerations that need to be taken into account in a planning application.

The Secretary of State may want to take a wider view. He may, for example, want to take account of public opposition expressed through the consultation process that he may consider relevant to the issue of approval of a local development order, but which has been held not to be a material consideration in relation to a planning application. It is for such reasons—so that a broader view can be taken of wider public opinion—that our wording is superior and more flexible. He may also want to take account of emerging policy that has not yet reached the stage of being a material consideration.

Finally, I turn to Amendment No. 113F, which was also tabled by the noble Baroness. I have read it and am attracted to it. We want greater transparency in the planning process. In general, the Government's view is that reasons should be stated. If the noble Baroness will agree not to press the amendment today, I am happy to take it away to see how we can meet the concern that has been raised and add an extra layer of transparency.

Those are my considered views on the issues raised. I think that I have answered most of the questions posed. The noble Viscount, Lord Ullswater, asked what could be done under local development orders. Our view is that they can be used only to implement policies as part of the local development plan document. I think that his example and particular concern was wind turbines. We do not think that the practical working of the legislation would be likely to include wind turbines. I understand his caution: he does not want the general capacity that the LDO creates to be exploited. I think I made clear when speaking generally that because of our concern about environmental impact, and so on, we envisage such things being ruled out by the working of the process. I hope that provides the reassurance that he sought.

I hope that the amendments will not be pressed.

I, for one, want to reflect on what the Minister said about the scope of local development orders. They are clearly important, and I want to think further about what he said. He said that he was unsure why I tabled Amendment No. 113E. It was tabled because of concern that the Bill's wording was a little vague, and because the Minister in the Commons said that the Government would reconsider. One always wants to give the Government the opportunity to say that they have reconsidered, just in case they do not volunteer that information themselves.

In planning matters, I always find the extent to which we take account of emerging policy a difficult issue. It emerges through consultation processes, and so on, but how far should it bite until it is finally adopted? So that again goes to the heart of the issue about the scope of a local development order. Having said all that, I am grateful to hear that the Government will consider the points made under Amendment No. 113F and of course I do not intend to press it today.

I thank the Minister for that reply. As I said right at the beginning, I welcome anything that gives more autonomy to local government. This is one of the better parts of the Bill. As the Minister has explained, as long as the local development order is very much tied into the local development plan, it removes some of the fears that my noble friend Lord Ullswater highlighted. I reiterate my noble friend's remarks and give this a cautious welcome. It is important that it does not increase confusion about the changes in planning legislation. It needs to be presented and explained well. However, I thank the Minister for that answer. He has covered the points raised and I beg leave to withdraw my amendment.

I apologise for not warning the Government of this. I certainly do not expect an answer today. This is another of my lawyer's points which I apologise for in advance. Late last night I realised that the term used in Clause 40 for the start of development was that the development is "started". But the principal Act in Section 56 uses the terms "initiated" and "begun". There may be no subtle difference, but can I raise it—certainly not expecting an answer now—because if we do not address it, it could earn a lot of other people a lot of money in the future?

Ten out of ten. I guarantee that I will get an answer and I will not wait for Report before I tell the noble Baroness.

moved Amendment No. 113H.

Page 25, line 11, leave out "must" and insert "may"

I am happy to support the amendments. I realise that we are under pressure of time, but I am afraid that I have a lot of comments to make.

As has been said, we welcome some of the changes that the Government propose in Part 4. Nevertheless, Amendments Nos. 113H to 113M and 132B are necessary, as the Government have not thought through properly the introduction of statements of development principles.

Amendment No. 113H would give local authorities more discretion in the issue of statements of development principles than is proposed in the Bill. Amendments; Nos. 113Kand 113L are complementary to that aim, in that they support specific aspects of local authority discretion. The three amendments would enable local authorities to decline to issue statements of development principles on the basis of insufficient information.

Amendment No. 113J is a probing amendment. With the amendment, we simply seek clarification from the Government of whether it will be local authorities that ultimately decide whether the development plan is material to the request for a statement of development principles.

Amendment No. 132B would mean that provisions for outline planning permission would not be omitted, at least not yet, from the Town and Country Planning Act 1990. Finally, Amendment No. 113M is a probing amendment designed to test the Government's thinking on how they propose to minimise the level of deliberate frustration in the planning system. If Amendment No. 113H were accepted, Clause 41(5) would be unnecessary anyway.

As far as I can judge, the statement of development principles is being introduced as an eventual replacement for outline planning permission. Apparently, that will provide speed and certainty for a developer, when considering a project. The Government should explain exactly why they believe outline planning permission to be deficient in either speed or certainty. We strongly believe that the Government have not yet made the case for how statements of development principles will add value to the planning system in this country. We have met a lot of developers and have heard a lot of concern. They use outline planning permission to obtain finance and acceptance for the development. They borrow from the bank on the basis of outline planning permission, but they are not certain that they will be able to do that under the new process. There is a lot of fear in the system.

We appreciate and support the Government's aim of adding transparency and, by extension, more certainty to the pre-application process, but it seems doubtful that statements of development principles will achieve that. As far as I can see, there is no discernible benefit to applicants, local authorities or the public. If the overall aim is to address the weaknesses associated with outline planning permission, why not address those problems directly—for example, by encouraging earlier discussions in the application process between developers and planning departments? Why must we get rid of the outline planning permission process completely, albeit not immediately, to achieve more certainty? It is worth pointing out that developers and planning departments have not been persuaded that statements of development principles will add more certainty to the process, as I said.

Amendments Nos. 113H and 113K would ensure that local planning authorities will not feel compelled to approve or refuse applications, when they simply do not have sufficient evidence by which to judge the merits of an application. That could happen because, as the Bill stands, there is no provision to allow the local authority to decline a request to issue a statement of development principles on the grounds of insufficient information. Local authorities may be put in a position in which they do not have the confidence in their legal position to say that an application is entirely unacceptable, which, I believe, is the only ground on which they can decline to issue a statement of development principles, even if they also feel that they have not been provided with sufficient information—for example, information about design or infrastructure—on which to base their decision.

As organisations such as the Campaign to Protect Rural England have pointed out, that would put pressure on local authorities to issue statements of development principles that agreed with the proposed developments and then spend valuable time and resources trying to decide what safeguards and conditions should be placed on them to meet any eventuality. With a national shortage of skilled planning personnel, the Government should not be devising extra unnecessary work for planning departments. It will simply clog up the system, and we are trying to speed it up. Of course, it is important that a statement of development principles is not used inappropriately. Just as with outline planning permission, it may be an important material consideration in the final decision on planning permission.

Amendment No. 113L would address our concern that the statement of development principles does not have to take into account whether a proposed development would require an environmental impact assessment. We are aware that the Government have stated that, because the statement of development principles does not itself grant consent to allow a development to go ahead, an environmental impact assessment is not a requirement. We would like reassurance from the Minister that this arrangement, whereby the principle of a development has been agreed prior to the outcome of an environmental impact assessment, will not undermine the integrity of the environmental impact assessment and its capacity to reach a different conclusion from the statement of development principles.

As I have already mentioned, with regard to the workload of planning departments, we also believe that statements of development principles would mark an unacceptable shift in the burden of planning applications away from the applicant to the local authority.

This is not simply an argument about planning authorities having had insufficient information and then dealing with the consequences. It is also partly because the number of requests for statements of development principles will be much higher than outline planning applications. It flows from the fact that anybody can ask a local authority for a statement of development principles.

Thus, in relation to Amendment No. 113M, I would like some reassurance from the Minister that the new procedures for statements of development principles will not be used to frustrate legitimate development. Our concern is that in some circumstances, local authorities might be asked to determine requests for statements of development principles before the information on which requests should be judged is available.

New Section 61E(5) states that,

"a local planning authority may decline to issue a statement of development principles before the end of the period of two years",

if it disagrees with the principles of the development. Thus, a local planning authority could quite legitimately issue a new statement of development principles that agrees with the developer's proposal before the end of that two-year period.

As I said earlier, I am really probing the Government's thinking at this late stage about whether they see the discretion afforded local planning authorities in subsection (5) as a mechanism by which to deal with any potential exploitation of statements of development principles by those who just want to stop all development, regardless of its benefits. I would be grateful for clarification on that.

I also believe that deleting subsection (5) of New Section 61E would be in line with the preceding amendments, the fundamental point being that it would be much simpler and more democratic to give local planning authorities the discretion to decide whether to issue statements of development principles to any particular development.

This is a very complicated process. We will obviously have to discuss it further, but I have put it on the record, and I would like the Minister to give us some assurances on these issues.

I will not detain the Committee. However, as I heard the Minister say a moment ago when my noble friend rose to speak, this is a very important clause and a very important matter. Although one commends the Government for devising the statement of development principles as a means of increasing transparency, and so forth, it could be very dangerous. Ultimately, what matters is that developments do not take place if they should not take place. That is what this should be about.

I fear there are echoes in the way in which the clause could be used that might result in that happening. I have one example; it is not directly related but it has often been a worry to those of us who are concerned with these matters. I refer to the way in which, so often in the past, local authorities have been intimidated by developers in certain cases more or less threatening to claim damages in instances where a planning application is refused and then granted on appeal. That philosophy could be used by people in getting these outline permissions without having given sufficient information so that a proper decision can be made by the local authority. So I would be happier without the clause, unless it can be reworked.

The clause says that the local planning authority must issue a statement of development principles in relation to a proposed development. My noble friend suggests that "must" should be replaced by "may". In that context, will the Minister explain how this clause interacts with the policies of the local authority under the Licensing Act 2003? So far we have not had the guidance under the Licensing Act, and we do not know to what extent local authorities will be allowed to impose limits on the number of licensed premises to which planning permission will be awarded. Until that guidance is published, I cannot see how the local authority would be able to interpret a requirement that it must issue a statement of development principles. If it does not have guidance under the Licensing Act, it does not know to what extent the local authorities may impose some numerical limits on the number of licensed premises to which planning permission is awarded.

As the Minister will be aware from the debates on the Licensing Bill many months ago, there is considerable anxiety among local authorities about the extent to which they can exercise limits on the number of licensed premises by means of planning controls.

In answer to the question about licensing from the noble Lord, Lord Avebury, I do not have a clue but I will find out and write to him. I will not be able to give him an answer today.

I am delighted with the new-found interest in the proceedings of this Bill, given the greater attendance in your Lordships' House at this part of our proceedings. On the other hand, if I was misunderstood and anyone has come for the other Bill, I suggest they go and get a cup of tea, because I have the largest speaking note on this group of amendments than on any other.

As the noble Lord, Lord Marlesford, heard me say, this clause is very important. To keep everyone happy, my officials have ruthlessly edited the speaking note, so it will not be the 17 pages that I had planned to use, but I will do my best. I will not curtail my speech unnecessarily because this is a crucial part of the Bill. It is where the Bill starts to get interesting and sexy, if you like. It has been a little boring until now, but when we get on to outline planning permissions and situations such as this it becomes much more interesting.

The statement of development principles is a new procedure for anyone wishing to obtain an indication from a local planning authority about whether all or part of a proposed development would be acceptable in principle. The statement of development principles is halfway between an officer's informal view and an outline planning permission. A statement of development principles will be a material consideration for the purposes of determining an application for planning permission for a similar development that is submitted within three years. A statement of development principles does not grant the applicant any consent to do the works. That being the case, it may stop the applicant raising finance, and I fully accept the point made by the noble Lord, Lord Hanningfield.

As far as the relationship between the statement of development principles and outline planning permission is concerned, there has been much debate about this proposal. Statements of development principles will at first supplement and might eventually replace outline planning permission. We believe that the way in which outline planning permission is currently handled by some authorities has significant faults. At its worst, it allows redlining on a map of an area or site for development for a particular use or uses of land with no detail shown. This is not an acceptable state of affairs. Local communities should have early opportunities to engage in discussion of proposed developments. The Government are laying increasing emphasis on the importance of pre-application discussions. Good developers will undertake such discussions. The Government want this best practice to become standard practice. A statement of development principles is one means of formalising the dialogue between a developer and a local planning authority.

We said in a Written Statement on 15 December—I cannot go further than that today—that if we retain outline planning permission, we will need more detail. We are waiting for a response from the development industry. I certainly hope that by the time we reach Report we will be able to have better particulars in that respect.

The outline planning permission would need to provide sufficient information for a local authority to make an informed decision about whether an environmental statement is required. On community involvement, the Government consider that a local planning authority statement of community involvement should set out how the community should be involved in significant planning applications. Outline planning applications should provide sufficient information to allow the community to comment in a meaningful way.

We are considering possible mechanisms for ensuring that additional information is required at the stage of application for outline planning permission. One mechanism might be guidance; another might be the use of secondary legislation.

Clause 42 allows for a development order to make provision as to documents or other materials that are to accompany a planning application. The general development procedure order might be used to require a design statement to accompany an application for outline planning permission. That is by way of an example that could be given. If we were to pursue that approach, the new system of development control could include both statements of development principles and outline planning permission. Statements of development principles would provide developers and local planning authorities with an additional tool for building up an agreed development prospectus for a site. Outline planning permission could be used either after or instead of a statement of development principles. That would be for the applicant to decide. I understand that the issue of being able to raise the funds necessary is a crucial link, but the developer would have the opportunity to decide. Full planning permission, requiring the submission of all details of the proposed development, would not change. It would therefore remain the case that development could not commence until reserved matters had been approved.

We do not agree with Amendment No. 113H. If an application for a statement of development principles is received, a local planning authority should be required to come to a decision. In issuing its decision, the local planning authority will have to indicate whether it agrees with the principle of all or part of the proposed development.

Amendment No. 113J would require the local planning authority to have regard to the development plan rather than having regard to the plan so far as it was material to the request for a statement of development principles. The existing wording mirrors existing provisions such as Section 70 of the Town and Country Planning Act 1990, which requires local planning authorities considering planning applications to have regard to the development plan,

"so far as material to the application".

The deletion of those words cannot be right, because it cannot be right for a local planning authority to have regard to the development plan if it is not material to the application.

Amendment No. 113K is coupled with Amendment No. 113H. It would give the local planning authority discretion whether to decide on a statement of development principles depending upon the adequacy of the information submitted. By itself, it would have no effect, since the authority would be obliged to issue the statement of development principles whether or not sufficient information had been provided. I consider it right that a local planning authority must issue a decision, but it can only make its decision on the basis of the information submitted by the applicant. If the application lacks detail, so will the statement of development principles. But in issuing its decision, the local planning authority would be able to include details of any information that it would require to accompany an application for planning permission.

Amendment No. 113L would make an environmental impact assessment a possible requirement and a possible material consideration for a local planning authority in considering a statement of development principles. We see no need for that. An environmental impact assessment will not be required on an application for a statement of development principles, because such a statement is not a development consent. We propose to provide in the secondary legislation that if a local planning authority considers that a proposed development would require an environmental impact assessment, it must state in the statement of development principles its opinion as to the information to be provided in an environmental statement. Its agreement to the principle of the development would be subject to such information being provided with an application for planning permission.

Amendment No. 113M would prevent a local planning authority from declining to issue a statement of development principles where it had issued a statement disagreeing with the principle of all or part of a similar development within the previous two years. I can understand the concern that an authority might decline to issue a statement even where a potential developer has changed some factors of a proposed development in order to address concerns raised by the local planning authority in the first statement. However, it would be illogical to require an authority to deal with repeated requests for statements of development principles when, elsewhere in the Bill, we are proposing to provide them with the power to decline to determine repeated requests for planning permission. That is an issue that we shall come to, though certainly not today.

Amendments Nos. 132B and 134A would retain outline planning permission in the Town and Country Planning Act 1990. We are considering the retention of outline planning permission. That would be on the basis that it provided a level of information that would enable local authorities to assess all the significant environmental impacts from proposed developments. Discussions with representatives of interested parties, including the development industry, are ongoing as I speak—but probably not at the rate of pace at which I am speaking. But it will be okay, Hansard—honestly—because I stuck to the script.

I hope that I have given a flavour of how we want to proceed. This is an issue on which we do not have a closed mind; we made that clear in the Statement on 15 December. There are important financial aspects; nevertheless, we wish to get over the problem that exists at present, with the sometimes scandalous situation that arises regarding outline planning permissions. I had that as a constituency Member in the other place. Some of the issues that arise as a result of an outline planning permission being granted are quite disgraceful. The noble Lord, Lord Rogers, or another noble Lord, made the point that the development that turns up later may have no relation whatever to what people believed was in the outline consent. We have to deal with that, and we are trying to find ways in which to do so; I hope that, by the time the Bill reaches the statute book, there will be an agreed way by consent across the Floor to find a solution. Therefore, I hope that the amendments can be withdrawn.

I thank the noble Lord for that answer. He had a lot to read, just as I did when I had my notes to read through.

Many concerns were raised, and I am sure that the noble Baroness, Lady Hamwee, will address some of them in a moment. The Minister said that discussions were ongoing, but discussions must speed up, because before we get to Report stage we would like to know more of how the Government can accommodate many of the fears within the industry and a lot of the bureaucratic nature of the work for the planning authorities. Those hard-pressed authorities will not have the resources to fulfil some of the Government's requirements. However, the fears are there in the development industry in particular. As the Minister said, discussions are going on, and Report stage will be the next opportunity to discuss those matters in detail. I hope that the Government are then able to accept some of our amendments.

I do not believe that the Minister dealt with my question about charging, but I do not blame him for that.

No, I can do—at least, I did have a note on that, although I seem to have lost it. We retain an open position on the work under the statement of development principles. It may be that there will be an element of charging, but no final decision has been taken. I am sorry that I do not have an answer to the noble Baroness's question.

I am grateful to the Minister, and hope that the open mind comes to the right decision.

At this point, I do not want to go through the Minister's comments in detail. I do not want to impugn the Government's good faith in pursuing the issue—and I take the Minister's point about the difficulties regarding outline permissions. Some people refer to them as "trophy architects". However, that strongly suggests to me that Clause 39 should not remain in the Bill and that Section 92 of the 1990 Act should not be subject to abolition when the Secretary of State decides, unless the matter has progressed very considerably by the next stage in the Bill.

The Bill began its passage in October 2002, and I cannot remember how long before the Bill the Green Paper was published. Of course, I do not for a moment object to consultation; it is absolutely essential to hold consultation with everybody who is concerned. However, it would be quite wrong for the House to be asked to agree to take a very substantial step in the absence of something much closer to a conclusion about what will be put in place. We shall put that to the House next time, unless there is a lot of progress before then. I beg leave to withdraw the amendment.

I beg to move that the House do now resume.

moved Amendment No. 1:

Page 1, line 3, leave out "gender" and insert "sex"

My Lords, this is the first time that I rise to speak on Report. I am distressed that the minimum allowable time between Committee and Report has been applied to the Bill. There were a number of difficult issues raised in Committee, which really demanded much more discussion, dialogue with officials and consultation than has been possible—except for a meeting, for which I was very grateful, that I had with the Minister yesterday evening. In no way do I wish to appear churlish, but I suggest that consideration should be given to those of us who do not have hordes of officials to support us and who, as in my case, could be involved with another Bill at the same time. It is in the interests of the House that greater thought should be given to the logistics and practicalities involved in ensuring that such complex legislation is thoroughly considered on its passage through this House.

My Lords, it may be of help to the noble Baroness, Lady O'Cathain, for me to comment that my understanding is that the timing of Bills is a matter that is discussed through the usual channels. Her Front Bench will have been involved in those discussions. I am sure that those concerned will take note of the point that she has raised.

My Lords, I thank the noble Baroness for those remarks. It is really for poor, humble, little Back-Benchers who do not have the resources to deal with these matters that I made the point.

My Lords, the noble Baroness stretches my imagination to breaking point by describing herself as a poor little Back-Bencher.

My Lords, I echo what my noble friend says. I attended some of the Committee sittings and it was a Bill that, for all kinds of reasons, revealed the defects of considering legislation in Committee. That makes the point that my noble friend has brought to our attention more relevant.

My Lords, having made that point, and after thanking the Minister for accepting it, I shall move on.

I support my noble friend Lord Tebbit in his amendment. He needs no assistance from me, because he is doing a masterful job, as he did in Committee. He has the advantage of having truth and logic on his side because the basic proposition of the Bill is mistaken. A man cannot become a woman. A woman cannot become a man. He also has the advantage of being able to point to considerable disagreement among the medical profession world-wide. I have made the point before that we normally legislate only when we are sure about the science and when we can be sure that what we are doing is the best thing for the people affected. Psychiatrists and psychologists are far from being of one mind that attempting to change sex is the best solution.

The Minister will probably say that the European Court of Human Rights compels us to legislate in this way. But it causes one to ask whether, if Europe required us to legislate that sheep could become goats and goats sheep, we would do it. Is there no point at which common sense would override and the Government would say, "No, that is simply too much. Enough is enough"?

Amendments Nos. 1 to 4 and 6 to 11 in the name of the noble Lord, Lord Tebbit, and his proposed Amendment No. 132 to the Title have the virtue of at least making it plain on the face of the Bill that we are not just saying that a person can change his or her gender in law under this Bill but rather his or her sex.

Amendment No. 128 gives a succinct explanation of the difference between gender and sex. As has been pointed out, sex is a clear biological categorisation. Save in a tiny number of cases worldwide, doctors have absolutely no difficulty in determining a person's sex by reference to physical indicators. Gender, on the other hand, is really a modern invention. It conveys the idea of a fluid, changeable view of your own sexual identity that is governed not by any physical, medical or biological criteria but solely by perceptions—your own and those of other people.

I have said before and say again that I feel genuine compassion for those who struggle with their sexual identity. The overwhelming feeling of being trapped in the wrong body must be just awful. However, sex change is not the only solution. During our debates there has been little consideration of the possibility that a person who feels this way might overcome it by reconciling with reality. Transsexual rights groups obviously promote the idea that a sex change is the answer, but others disagree, especially the families who get left behind.

Let me quote from an account of the struggle faced by a family when a husband became obsessed by the idea of becoming a woman. The wife tells how selfish he became, including spending the family budget on makeup and beauty treatments for himself. Mercifully, he changed his mind after being challenged by a sermon. The wife says:

"We had 2 weeks of battling and anguish, and he clearly was in turmoil, but it did make him realise that he had a family that cared for him and wanted the best for him. He decided to stay and change, realising that he was about to destroy everything he had worked so hard for over thirty plus years … The thought of what could have been leaves me cold. If he had been encouraged by others, or legislation to pursue his own way, he would have left six devastated lives in his wake".

Clearly, that family could all have saved themselves a lot of grief if they had just gone along with him. There would have been a form of resolution if the wife had been willing to pretend to be his lesbian lover, as he wanted. But they could not. They did not believe it was true that a man could become a woman. They could have avoided conflict by abandoning their absolute beliefs about sex and gender, but it was unthinkable for them to do so.

This Bill abandons absolute beliefs about sex and gender. In so doing it makes it more difficult for people who are not willing to do so. I hope that by having this debate again on the basic mechanism employed by the Bill, the Minister will again address his mind to the impact this Bill will have on third parties.

I believe we may hear that some consideration is to be given to wives and children in the gender recognition process. This is a concession which has to be welcomed warmly, but the Bill itself is wholly misconceived. I remind the House again of the words of that tortured wife who believed that if legislation had encouraged her husband to believe that he could change his sex,

"he would have left six devastated lives in his wake"

My Lords, I must first apologise to your Lordships for not being able to be present during the earlier stages of the Bill. I regret that but I say in mitigation that I have read every word of those debates in great detail and very carefully. Therefore, I hope that noble Lords will forgive my intervening in this set of amendments. I should express my interest as a retired physician and retired professor of medicine, but in neither capacity have I been involved in the care of transsexual people, so to that extent I am neutral.

In earlier debates and today the noble Lord, Lord Tebbit, made a robust case for the belief that a person's sex is determined at birth by the genes on their chromosomes and that it is these which determine the development of those characteristics which we recognise as male or female—sexual organs and other characteristics. It all seems so straightforward and black and white, but unfortunately that is not quite the whole picture. One's sex is only a part of one's gender. It is an important and essential part but not the only part as it is now clear that genes, although having a strong influence on a person's inherited characteristics, are not the only determinant. We now know that genes determine only the likely trajectory of development and not the final picture. In the case of a person's gender that is certainly the case. For example, hormonal makeup, psychological development and probably some features of brain structure do not necessarily follow a specific set of genes. Indeed, other genes on other chromosomes all play a role in determining sexual characteristics, and this says nothing of the role of environmental factors which we cannot ignore.

In the case of the genes on the X and Y chromosome it is, of course, undeniable that they are extremely strong determinants of gender, but even there we know that there is an infinite variation in the degree of masculinity and femininity which an individual displays. The point here is that in a very small minority of individuals it is clear to them and often to others that the X and Y genes which determine their perceived sex at birth are quite out of sync with everything that they feel and know about themselves now. That is determined by a whole host of genetic and non-genetic factors. Therefore, I am not convinced by the noble Lord's arguments for these amendments; namely, that the X and Y chromosomes are the final arbiters.

The Bill has nothing to do with whether such individuals should or should not change their gender—they have already made their decision and gone ahead and done it—it is about whether, having done it, they can be recognised in law. These are people who have suffered torments about their identity for years until they are convinced that they are expected to behave in one gender when they know in their hearts that they are another.

My Lords, I am most grateful to the noble Lord for giving way. I think that I would be able to follow him even more closely were he to say how he defines "sex" and "gender". It seems to me that he is using the words in a rather muddled fashion.

My Lords, what I am suggesting is that sexual determination does not necessarily coincide with gender determination. Sex plays a part but it is not the whole part. Sex is determined by one particular set of genes whereas gender is determined by a whole host of genes together with other factors.

My Lords, I am most grateful to the noble Lord but that is not the point. I understood that to be the case that he was making but what he has not told me is what is his definition of the words "sex" and "gender".

My Lords, that can mean a variety of things. The noble Lord is talking about a person's sex. That you may define biologically if you so wish—that is determined by X and Y chromosomes—but even that is not distinct. Some people are born with two Xs and a Y. In any event it is not as clear cut as the noble Lord suggests.

I am talking now about the people who have gone through the process and have decided at long last after a long struggle that they are another sex than the one they had at birth. When they accept the need to change, it takes enormous courage. It is not a trivial pursuit. Then they have to go through an elaborate and searching set of procedures over a prolonged period of time. That, again, is not trivial. These are the people we are talking about who have made enormous sacrifices. I can see absolutely no reason why such individuals, having already made an irrevocable decision, should be deprived of the status and rights that this Bill would allow them. I am afraid that I cannot support the noble Lord's amendments.

My Lords, what a pleasure it is to follow the noble Lord, Lord Turnberg, who stated his position so clearly—a position that I think helps many Members of this House to understand the issues in this Bill. At this early stage of our debates this afternoon I apologise in advance—as I already have to the noble Lord, Lord Filkin—for my unavoidable absence after about six o'clock this evening.

I thank the Government for the very intensive, high quality and continuing level of consultation that has taken place since the Committee stage of the Bill. It is entirely unreasonable to complain about the short time that has passed. I believe that we have all had plenty of time to consider this Bill over the months since we knew it was going to be introduced. Compared with many Bills there has been a predictable type of correspondence at a predictable level which has not overwhelmed us. I believe that we have had plenty of time for consultation.

I invite the Government to adhere to a now almost classical adage. I hope that I shall be forgiven for using a few words of Latin: Et timeo Tebbitos et dona ferentes. I am perfectly prepared to translate for the noble Lord if he would like me to.

The noble Baroness, Lady O'Cathain, spoke with her usual persuasiveness, candour and conscientious approach to what she really believes. She is wholly opposed to the Bill, as is the noble Lord, Lord Tebbit. They have made that clear on numerous occasions. Understandably from their viewpoint, they would wish to find a way of wrecking the Bill at any stage including the present one. One accepts that that is a conscientiously held view.

However, I say to the noble Baroness that what she has said was not fair to the legal profession. The anecdote she used illustrated the danger of using carefully chosen anecdotes which misrepresent what occurs in the very real and difficult world of those who make the extraordinary decision to have gender reassignment. The idea that it is made over a short time is completely unrealistic.

I have the advantage shared by one or two other Members of the House in having been a lay member of the General Medical Council for 10 years. A number of other Members of this House have been professional and academic members of the General Medical Council in its old, unwieldy, massive and thankfully now over-and-done-with form.

The Conduct Committee of the General Medical Council, of which I was an active member for five years, would take an extremely dim view, I am sure, of any doctor or group of doctors who did not start from the viewpoint, as they always do, of trying to discourage people who are interested in the possibility of gender reassignment from going through that process. The psychological profiling and the social as well as medical care that is given to people who go through the process starts from the viewpoint that it is all extremely painful, literally; that it involves enormous adjustments to one's body and one's life and that one should have it done only if absolutely certain. It is a process which lasts not one minute less than a few years. They have to live in their acquired gender for a period of two years at least. That is enshrined in the proposed legislation.

My Lords, I thank the noble Lord for his comments about the approach I have taken to the Bill. There is a slight misunderstanding here which I would like to clear up. It is not necessary to have the gender assignment process to get to the stage in the Bill where one obtains a gender recognition certificate. It is not necessarily true that in cases where there have been problems, as I have indicated, they would be the result of the operation or the gender assignment process. There a great deal of difficulty arises. If people say that they have always felt that they wanted to be man and that they will live as such for two years, they can then go to the gender recognition panel and say, "I am a man, please give me recognition. That is the way I feel". That is my understanding of the matter.

My Lords, with respect to the noble Baroness, she should re-read the Bill because that is not what it says. It is an extremely difficult process which includes two years of living in the acquired gender to obtain a gender recognition certificate. One of the requirements of the Bill is that the tribunal which hears the case should be satisfied that there is a permanent intention to live in the acquired gender.

I am saying that there are guarantees in the medical and legal processes that protect members of families from a temporary whim. The ways in which the human mind works, even within the bounds of what is generally called "normality", are extraordinary and unpredictable. As I say, the protection is built in. I am sure that the General Medical Council would take a very severe view of any doctor practising in this area who did not use the utmost care.

One should not forget that if a person undergoes severe and detailed psychological treatment or, even more to the point, major surgery without the proper procedures being gone through by the medical profession, the perpetrators of the changes would be committing very serious criminal offences for which undoubtedly they should be convicted by criminal courts. We say to the Government that this is an issue about which they should stand firm and hold to the purpose of defining gender as a matter of law.

The noble Lord, Lord Tebbit, seems unable to distinguish sex from gender. I suggest to noble Lords that it is a male, female or ambiguous biological component of humanity whereas gender is the legal status of a person as a man or woman in law. Surely, that is a difference which anybody can understand.

My Lords, I do not know what is the inability which causes the noble Lord not to understand, not to be aware of or to ignore the fact that I have tabled amendments to precisely define the difference between sex and gender. The noble Lord will have heard the exchange I had with the noble Lord, Lord Turnberg, on the subject. How can the noble Lord then say that I seem to believe that they mean the same thing?

My Lords, the noble Lord has made an attempt to create a distinction, but I do not accept that he makes it. Furthermore, with great respect to the noble Lord—and I mean that because I respect him enormously especially as a parliamentarian—it is the purpose of this legislation to provide for the legal status of a group of people who have been defined by national and international courts, as well as by the usual political process, as requiring not just the protection of these Houses of Parliament, but also definition in law. The clarity of the definition offered in the Bill is considerable. In so far as there is any clarity in the definitions offered by the noble Lord, it is not a clarity that would offer anything to anyone except myself and my learned friends.

My Lords, I rise to return to this interesting element to our Bill about which we have spoken on a number of occasions. I have even less confidence that there will be a meeting of minds at the end of the debate. I perhaps signalled my dubiety when we spoke about it at Second Reading. Nevertheless, the noble Lord, Lord Tebbit, is entitled to hear the Government's position on these issues even though neither he nor I expect that we will necessarily agree or rejoice in that.

I share some of the pain that the noble Baroness, Lady O'Cathain, feels about parliamentary timetabling. This is one of three Bills that I am currently taking through this House. Two of them are being debated at the same time this afternoon. I find it difficult to be in two places at once and therefore I am being helped in relation to the other Bill. I am told by the Chief Whip's Office that, when it comes to taking any notice of people on timetabling considerations, the government Minister's view is about the last in the queue. That is perhaps for good reasons.

The noble Baroness spoke about the ECHR. She is quite right. As we said previously, we have an obligation—it is one with which we are perfectly comfortable—to adjust our domestic law in order to be compliant with ECHR law. That is not the centrality of our position and, even if there were no ECHR obligation, we believe that it would be right to act in that way. We consider it right to give legal recognition to the very small number of people in our society who, I believe, currently suffer an injustice. I shall develop that argument later.

The noble Baroness is also right to trail the subject of third parties. I hope to be able to say something helpful about that when we reach later amendments. I thank the noble Lord, Lord Carlile, for his kind offer to translate the Latin. However, even my hopeless Latin was just about good enough to give me the gist of his sentence.

I turn to the centrality of this issue. In essence, the Government's view is that a person's sex, as the noble Lord, Lord Turnberg, signalled, is more than his or her chromosomes. I do not want to detain the House for too long on this matter but I believe that the Oxford English Dictionary gives about four separate meanings for the word "sex", none of which is reduced simply to "chromosomes".

There is not a great deal of fruit in spending a lot of time on trying to define the meanings of those words, although there are distinctions between them. The meanings have changed over time and are still changing. The word "sex" now has more of a social and psychological connotation than it would have had 20 or 30 or so years ago. As we all know, language is mobile.

However, the reason that I do not consider this matter to be central to our deliberations or that we should spend a great deal of time debating it is that I suspect it is not the central dividing issue between us. While I accept that chromosomes are one of the primary sexual characteristics, there is also a range of secondary sexual characteristics. Gender identity is also determined by a range of psychological factors.

In Committee, I quoted a little from the judgment of Lord Justice Thorpe in the Court of Appeal on the Bellinger case. With the patience of the House, I shall repeat it because it may have relevance for those who were not present on that occasion. Lord Justice Thorpe said:

"Can the legal definition of what constitutes a female person be determined by only three of the criteria which medical experts apply? Are judges entitled to leave out of account psychological factors? For me the answers do not depend on scientific certainty as to whether or not there are areas of brain development differentiating the male from the female. In my opinion the test that is confined to physiological factors, whilst attractive for its simplicity and apparent certainty of outcome, is manifestly incomplete. There is no logic or principle in excluding one vital component of personality, the psyche".

I believe that there is eminent sense in that and the Government consider it to be good advice to us in our deliberations.

We do not believe that continuing disputes about linguistic terminology is a reason for delay. The Government's position is that there is an injustice for a very small number of people in our society who are absolutely convinced that their real-life gender, as they believe it, is out of congruence with what is recorded on their birth certificate. After a very thorough, careful, proper and patient process of testing and validation by the state and by medical experts, the state believes that it is right and fair, as well as in accordance with European law, to adjust that anomaly in the very limited number of circumstances in which it applies. Perhaps I may remind the House that that is relevant. Our best estimates—no one has a final figure—are that probably about one in 17,000 people suffer from gender dysphoria. The fact that there are so few does not mean that as a society or a state we should not be concerned with trying to give them the legal recognition that they believe they are owed.

Therefore, the Bill is about legal recognition and it will define a person's sex in law. We consider the arguments about the meaning of the words "sex" and "gender" to be beside the point. There is no stark dichotomy between the meaning of the words. Language, as I said, is fluid. Our sense of the words "sex" and "gender" has changed over time and no doubt will do so in the future. While the meaning of the word "sex" is not the same as that of "gender", the word "sex" is increasingly in use in ways that go beyond a narrow biological definition.

In addition, medical recognition of gender dysphoria has never been wider. The Chief Medical Officer recognises that, and treatment has been available on the National Health Service for many years. A small number of people are convinced that their real-life gender is out of congruence with what is recorded on their birth certificate as their legal status. We believe that, after a process of proper testing and validation, it is right and decent, as well as in accordance with law, to close that discontinuity.

I also say, with courtesy, that, while I respect the differences of opinion, I struggle to see the great mischief or harm in what we are doing in this respect. It seems to me that it is an act of a civilised society and I cannot see the damage that would result to others. By that, I do not seek to provoke those who have put many hours of debate into these issues because I respect their difference of view. However, at this point, I should state my view on this as well. Therefore, with regret, I cannot accede to the amendments proposed by the noble Lord, Lord Tebbit.

My Lords, I am, of course, disappointed but not unduly surprised by what the Minister said. He tempts me to enter into a Second Reading debate. It is a temptation that I shall resist manfully. As we proceed through some of the other amendments, he may see more clearly my objection to the Bill—not least the objection that it would require officials to certify something which was simply not true.

On the subject of the way in which the business is managed, which has received some criticism today, I should say that I am extremely grateful to the Government Whips' Office for moving out of this group Amendment No. 86, which I did not believe belonged there. We can deal with it later. Therefore, I am grateful for that.

I understand the dilemma facing the noble Lord, Lord Filkin, who is expected to be in two places at once. It is a very difficult situation. I can only offer him the possibility of the judgment of Solomon as one way out, although I do not think that he will be particularly keen to take it.

The Minister seemed to introduce a new concept, which I believe we might call "linguistic relativism". It seems to have led him to the conclusion that we should legislate using words whose meanings we do not understand and which mean different things to different people. I do not believe that that is a good way in which to legislate. If we use a word in legislation, we should be prepared to state its meaning clearly and unequivocally and say how it differs from the meaning of other similar words which might be used as a substitute for it in legislation.

The noble Lord, Lord Turnberg, suggested that I might not understand the relationship between the words "sex" and "gender". However, sadly, when it came to the point, he could not define either of those words, which he used quite freely, nor say what he meant by them. Again, if I may say so, it seems to me that that is a lacuna in his argument.

I was brought up in a profession which, like that of the noble Lord, places human life in the hands of its practitioners. However, it was one in which we were expected to know precisely and absolutely the meaning of the words that we were using because, if we did not, it would prejudice life. Recently we have seen in the medical profession one or two spectacular cases where doctors did not understand the meaning of the words "left" and "right", let alone anything else, and thereby prejudiced life.

The noble Lord, Lord Carlile, says that to substitute the word "sex" for "gender" would wreck the Bill. It must be a very delicate Bill if it would be wrecked by substituting a word that we can not define with another word that we can not define—but which says pretty much the same thing anyway. That does not seem to have the savour of a wrecking amendment. I find the matter profoundly unsatisfactory. Of course, I am a realist and we need to move on with the debate on other amendments. I do not propose to divide the House on this amendment, and I beg leave to withdraw it.

moved Amendment No. 12:

Page 13, line 11, leave out "or chartered psychologists" and insert "recognised as currently practising in the field of gender dysphoria in the United Kingdom, or who have an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service"

My Lords, I apologise to the House that I have been unable actively to participate until this stage. I want simply to reinforce most strongly the points made by the noble Lord, Lord Chan, particularly that of protecting the patients and the medical member of the panel. The wording of the Bill strikes me as containing a small wording conflict in that it includes clinical psychologists as medical rather than clinical members of the panel. That might have been a more accurate description. But the importance of being trained in this very small and highly specialised area, dealing with people who are undertaking complex decisions—the rigors of which were eloquently outlined by the noble Lord, Lord Carlile—indicates that Amendment No. 13 in particular is crucial to protect all involved in the process.

I want specifically to address the amendment moved by the noble Lord, Lord Chan, which introduces the need for surgical intervention. I can well understand the noble Lord's desire to be absolutely convinced that the people who wish to be given a gender recognition certificate should have demonstrated beyond doubt that they are sufficiently determined by having surgery to change their gender. But I am afraid I cannot accept that as being a mandatory procedure.

Of course many will have had surgery, but it is worth remembering just what this type of surgery entails. In a woman who wishes to be regarded as a man, it would involve the removal of the uterus and the ovaries, probably a bilateral mastectomy, and possibly plastic surgery to construct a phallus. In a man, it would involve removal of the penis and testes, with the possible construction of a vagina.

I am sorry to be so graphic, but I want to emphasise that these sorts of operations are not undertaken lightly. And as with all operations, they are not without risk. Most individuals are likely to be fearful and others may simply not be fit. The fact that most do go through with all this is a testament to their determination, but to insist that they all do so seems quite unnecessarily cruel. To demand surgery to confirm a diagnosis of dysphoria also seems perverse: we do not insist in law on surgery to make any other sort of diagnosis—cancer and the like. I am afraid I cannot support that particular amendment.

Perhaps I may be forgiven for returning to the dilemma of the noble Lord, Lord Tebbit, over sex and gender. The sex of an individual may be defined entirely in biological terms as possession of X or Y, or both, genes. It cannot be defined in terms of other sexual characteristics such as external genitalia because they do not always coincide at birth with the chromosomal determinates. Some babies at birth are difficult or impossible to sex. So if we are to be entirely clear, it is the chromosomal features only.

When we come to gender, this is the state that can be defined only in terms of possession of multiple factors which take into account the physical and psychological make-up of an individual, which can be defined and which make up the totality of that individual.

One does not have to support the Bill to support these amendments, which impose a much more rigorous standard of testing on those who wish to go forward for gender recognition. There is evidence that there are people who have been railroaded through sex-change operations without any consideration of the alternative. The noble Lord, Lord Turnberg, has just given us a graphic description of what is involved in all this. I touched on the subject when I spoke to the amendment tabled by my noble friend Lord Tebbit and I shall return to the point when I move my Amendment No. 19.

It is an obvious failing that the Bill as drafted contains no requirements of psychiatric evidence. It could be that there are severe psychiatric reasons why such a change should not be made. Yet such evidence could be excluded. The panel may never see it and I do not believe that that is right. Furthermore, these amendments would create a system of assessment which was left open to abuse. By selecting the right medical expert and learning to say the right thing at the right time, transsexuals could quite easily pass the test laid down by the Bill at present.

I read recently that there are websites which teach transsexuals the right things to say when being interviewed by medical professionals. They advise them, basically, on how to cheat; on how to present the classic symptoms of gender dysphoria in order to get the operation they feel they want. I have no doubt that with the growth of cyberspace there will soon be websites advising on the best way to get a gender recognition certificate. We must take steps to limit the scope of that kind of abuse.

A more rigorous regime is all the more necessary because the medical profession itself seems to be in turmoil over the appropriate standards to be applied in these cases. Some medical professionals working in this area feel that some of their colleagues are less than rigorous in assessing people. Indeed, the noble Lord, Lord Chan, has given us a description of one such case. Perhaps some professionals feel that their duty is simply to give the patient what he or she wants. I suggest that that is a dangerous approach to take. Not only is it a dangerous approach, but it is an enormous step to take.

Sadly there is plenty of evidence that people regret having a sex change. Only today my attention was drawn to a television programme broadcast in September of last year on ABC, the Australian broadcasting network. It was called "Boy Interrupted" and was about Alan Finch who, with the support of health professionals, had sex-change surgery at the age of 19. He now says,

"Anatomically, I was never a woman … Everything was fake about it from top to toe".

At age 31 he decided to change back to his biological sex.

There are many unresolved issues and many uncertainties about the whole process. That goes back to the points that I made at Second Reading and in Grand Committee. Today, just as an aside, we have another uncertainty: the noble Lord, Lord Chan, and the noble Baroness, Lady Finlay, suddenly made me realise that as a lay person I did not have the definitions clear in my mind. I would like confirmation that a medical doctor is a member of the medical profession, but that a consultant clinical psychologist is not a member of the medical profession. Is a consultant clinical psychologist a member of the health profession? There are health professionals as well as medical professionals. It is just so complicated.

In the Bill the least we can do to try to make matters less complicated is to ensure that the medical assessment through which applicants go is thorough and genuine and not just a rubber-stamping of their current wishes.

I thank the noble Lord, Lord Turnberg, for his post-mortem comments on amendments that have already been debated. Turning to the present matter—Amendment No. 12 in the name of the noble Lord, Lord Chan—it seems to me that the extra precautions that he would insert as regards additional members of panels and matters of that kind, are thoroughly sensible and reasonable. But, like the noble Lord, Lord Turnberg, I hesitate to follow him on the subject of Amendment No. 16. He said that it would indicate whether a person had been willing to undergo the sex reassignment surgery, which I prefer to call sexual mutilation. In parenthesis, we Westerners criticise primitive tribes for their sexual mutilation practices, but perhaps those people should read the Bill and consider this kind of matter.

The noble Lord, Lord Chan, said that a person would have to be convinced that he or she really was a transsexual. Yes, but that conviction could come about through a serious psychological disorder. I do not believe that it would be appropriate to persuade people who were suffering from a severe psychological disorder, which may perhaps be temporary or which certainly may not be completely permanent that, to achieve the objective which their disorder told them to follow, they should be subjected to irreversible surgery. That would be going too far. I go along with the noble Lord, Lord Chan, on all the amendments in this group, barring Amendment No. 16. I believe that that amendment goes too far and that it would be unduly cruel to people for whom we all have very great sympathy in their dilemma.

Before the moment passes, I celebrate the fact that the noble Lord, Lord Tebbit, and I agree on one point. That is a comfort to me, if not to him.

The problem with these amendments is that while I respect the objectives behind them in terms of trying to ensure that there is a credible process, they tend to add to the complexity and they tend to focus on the process rather than on the outcome. By doing that, they attempt to fetter the discretion of the panel. I shall return to why I believe that the panel needs to carry the burden that we. as legislators, will impose on it, rather than us over-specifying the mechanisms by which it is to fulfil those duties.

The panel must be satisfied that the criteria set out in the Bill have been met. That is its job. First, it has to be convinced that the person has or has had gender dysphoria. I shall not speak at length about the process of diagnosing and treating gender dysphoria. The noble Lord, Lord Carlile, spoke about that earlier and we may have spoken about it also in Committee. In essence, it is not a sudden process; it takes many years. It requires an initial diagnosis which is likely to involve psychotherapy, psychological tests and other medical tests. That is followed by a process of real life experience, so that before further medical treatments are given, the reality of the person's conviction is tested in the fierce crucible of living out in the real world in the gender that they believe to be true for them.

After that process has been under way for a good period of time and if it is appropriate after a further assessment process, hormone treatment can be undertaken. Subsequently—again if it is appropriate and advisable—there can be surgery. I shall not go into detail; the process is available from a number of sources, and I stress how necessarily cautious and lengthy it should be and needs to be.

Clearly, the test of gender dysphoria has to be carried out by a specialist. A person working in the area of gender dysphoria will have to make the critical judgment of whether a person has gender dysphoria as a precondition of an application to succeed. Amendments Nos. 20 and 22 provide that there must be two diagnoses of gender dysphoria, one from a registered medical practitioner and one from a consultant psychiatrist. We do not see the need for that. The panel will not simply take the diagnosis of gender dysphoria from anyone at large. It will have a list of people who work in the area of gender dysphoria, which will be drawn up in conjunction with the professional bodies to ensure that evidence comes from reliable sources. If there is any doubt in the minds of the members of the panel they will make further inquiries. Therefore, the burden is on the panel to be satisfied that the diagnosis of gender dysphoria is one on which they can lean and if in doubt they should not do so.

Next, the person must prove that he or she has lived in the acquired gender for at least two years and provide medical evidence of treatment that has been received. That evidence will be considered by the panel. So a person will have a diagnosis of gender dysphoria from a specialist and evidence of living in the acquired gender for at least two years. A person must provide evidence of medical treatment and will have to convince the panel that he or she intends to live permanently in the acquired gender. That is a proper and substantial process of testing.

Amendment No. 15 would add that a person must have lived successfully in the acquired gender. I do not know what weight to put on that, but it also adds that two witnesses must attest to the fact that the person has lived for at least two years in the acquired gender.

Quite rightly, the approach taken by the Bill is that the panel has to satisfy itself that an applicant has lived in the acquired gender for the past two years. It leaves open the evidential requirements, which is how one should treat judicial panels. They should be at liberty to decide what evidence they believe will satisfy them; if they are not satisfied they should ask for further evidence; and if they are still not satisfied they should refuse the application. We do not need to specify exactly how they go about their business. The panel will be chaired by a circuit judge. Such people are not unaware of proper process.

The panel must satisfy itself that an applicant has lived in the acquired gender for the past two years, not two witnesses. The applicant can submit further evidence if he or she wishes; or the applicant can be required to do so if the panel is not satisfied.

Finally, the amendment also requires that the two witnesses attest to the applicant's assertion that he or she intends to live permanently in the acquired gender. Again, we think that it is the job of the panel to take what tests, measures, evidence or inquiries it thinks appropriate to meet that test. It is not a good use of our time to seek to fetter the discretion or specify the processes by which a judicial panel should meet the burden the legislation imposes on it.

If, on the sum of the evidence, the panel is convinced that an applicant has taken decisive steps to live permanently in the acquired gender, has or has had gender dysphoria, and has demonstrated a commitment to live in the acquired gender, only then will it give a certificate. If it is not satisfied, it will not do so, nor should it.

Amendment No. 16 seeks to add an additional criterion: that a person must have first undergone reassignment surgery. I do not wish to add much. A number of noble Lords have said why they believe that that is wrong. I start with an explanation. Most people who have gender dysphoria undoubtedly wish to have surgery. The individual wishes to bring his or her bodily state into alignment with that person's profound belief. Most will have done so. To require those persons to do so is wrong for all the reasons given by the noble Lord, Lord Tebbit, and others. One should not force that process on people as a necessary test.

Some people may be too old to be able to cope with the rigours of surgery. It would be wrong to deny them legal recognition if the three tests in the Bill were met. Let me not labour that point.

I turn the argument round the other way. It does not mean that the process is any the less severe. Clearly a person who has gone through the horrors of surgical realignment in this way does in a sense demonstrate how severe his or her conviction is that there is a problem which needs to be remedied. I signalled in Committee that where a person has not had surgery I would expect the panel to be more alert in inquiring whether there were sufficient evidence of commitment to a permanent change. That is not the same as saying that a person who has not had surgery should not be recognised. It is to say that the panel would want to inquire why the person had not had surgery. If it was because at heart there was doubt in the person's mind about whether he or she was going to make a committed and permanent change the panel would not grant a gender certificate. I do not think that we are at risk in this respect. The panel is likely to want to inquire more in such circumstances.

My Lords, I thank the Minister for giving way. That is my point. If a person goes to a gender recognition panel, the individual can have in mind the fact that he or she wants to change gender but does not want to undertake surgery for all the reasons that have been explained. That person can convince the panel yet be in a situation where he or she was going to cheat. I am sorry, but that is the reality. When I made the point earlier, the noble Lord, Lord Carlile, chided me.

One of my great concerns about the Bill is that an individual can have a gender recognition certificate without having surgery. It depends on how determined that person is in his or her own mind about the belief that he or she is of the opposite sex. I find that very distressing.

My Lords, I do not want to labour the point because we have given these issues considerable attention in Committee and today.

Such people who do not have surgery are few. There are usually good reasons for them not having done so. If the panel is not convinced that those persons are committed to living in a permanent state it will not grant them a gender certificate. However, to turn it the other way, for the state almost to say that unless people go through a process of bodily mutilation they will not have a legal recognition is wrong. I regret that we shall not agree on that issue.

I turn next to the composition of the panel. The medical member is not there to make a diagnosis. The diagnosis is to be provided by the person practising in the field of gender dysphoria. The medical member is on the panel to ensure that the medical evidence is properly understood and can be inspected or further inquires made if appropriate. The panel will be working with a list of medical practitioners and chartered psychologists who practise in the field of gender dysphoria.

With regard to there being several on the panel, few practitioners could be described as working in the field of gender dysphoria. Putting two on the panel would have significant disadvantages. It would also mean that they would frequently be seeking to make judgments on their own clinic or clinical work which, again, is clearly judicially flawed and, therefore, there would be further practical problems. So they are there to inquire into the medical evidence not to make the diagnosis.

On the interesting point about members of the medical profession raised by the noble Baroness, Lady Finlay, clinical psychiatrists are covered in Clause 3 under the term "registered medical practitioner". Chartered psychologists are members of the British Psychological Society, a professional body with which we shall work in developing the process. Having said that, I shall look further at what the noble Baroness said. If I have missed the point and dropped the ball, I shall come back to her before Third Reading.

I am sorry to have spoken at length but it is an important group of issues. I hope that I have stated clearly the Government's position.

My Lords, I thank the Minister for that reply and all noble Lords who spoke. I accept that surgery is the end point and should convince anyone that the applicant is genuine. I concede that it would be difficult to make it a ground on which to provide a certificate. That would be seen to be cruel.

However, with regard to evidence and diagnosis, as I sought to outline, there are suspicions that within the medical profession medical opinions are given which may be extreme and not necessarily balanced because the medical practitioner is convinced of a certain point. With two medical members on the panel that issue would not arise.

Whether or not we like it, the ultimate issue is the diagnosis—being convinced—particularly if the applicant has not had surgery and there are other issues to consider. I admit that I am not familiar with the process and legal composition of a panel but that was the main purpose underlying Amendment No. 13. I beg leave to withdraw the amendment.

moved Amendment No. 13:

Page 14, line 7, leave out "one medical member" and insert "two medical members including

(i) a registered medical practitioner recognised as currently practising in the field of gender dysphoria in the United Kingdom, and

(ii) a registered medical practitioner recognised as currently practising in the field of gender dysphoria in the United Kingdom, who has an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service."

moved Amendment No. 19:

Page 2, line 10, at end insert—

"(4) The panel must reject an application under section 1(1) if the panel has issued a gender recognition certificate to the applicant on two previous occasions."

My Lords, I thank the noble Baroness, Lady O'Cathain, for clarifying almost the double elements of this issue. The first element—and I do not think there is an issue between us about whether it is possible—is on the limited number of tragic cases where a person who might, after having gone through this enormously difficult and traumatic process, decide that they had made a mistake and wish to revert. Let me put it on record that while the number of such cases is likely to be extremely small, under the Bill it is completely open for the panel to grant the application to revert if it is convinced. The panel will be applying those three tests very seriously, and it will be applying them even more seriously because the person is reverting back.

On the second element, the noble Baroness suggested that we should put a provision on the face of the Bill to stop people making changes back and forth. I do not think that is necessary. The panel is there with expertise to make judgments. The central judgment it has to make in this respect is whether it is convinced that the person is committed to living permanently in that gender. I cannot think of circumstances—for example, in the extreme case of a person who has changed once and then has changed a second time—in which a panel would be convinced that it would grant legal recognition for a third change. I cannot conceive of a situation where a panel would be open to persuasion that that was possible.

One might ask, "Why not put the provision on the face of the Bill?" But why should we fetter the role and the duty of a judicial panel? We will give it clear criteria and through this legislation it should be left to get on with that job. Therefore, I think the law will allow exactly the change the noble Baroness wishes to allow. If the panel is convinced that a person has genuinely made a mistake then reversion is possible. I cannot see that there is a need to go further than that in the legislation.

My Lords, I thank the Minister for his reply. As always, he listens carefully to my arguments, and I to his. The onus is on the panel. My simple amendment would be helpful to the panel, so that another client could never come back, and would remove any doubt about it. The Minister and I are at one on the point that there should be a limit. However, the Minister is placing the onus on the panel, whereas I believe that it would be better to have it on the face of the Bill so that we could help the panel.

The Minister made the point that the amendment would fetter the role and judicial competence of the panel. I say that it would be a belt and braces measure to ensure, first, that the panel is not put into a very difficult situation and, secondly, that it could not happen, which I am sure neither of us wants.

I will read carefully what the Minister said. In the mean time, I beg leave to withdraw the amendment.

moved Amendment No. 24:

Page 2, line 42, after "required" insert "by order made"

My Lords, in preparing for today's debate, it struck me, perhaps belatedly, that that may have been what was behind this amendment, so that the Bill would not be open to being twisted and turned in the future. I shall reflect on that point. In so doing, I do not want to raise any optimism, but I believe that that will probably short-circuit our discussions.

Our argument is as set out by the noble Lord, Lord Evans, in terms of the benefits of flexibility. We also believe that the ability to ask for information is clearly circumscribed by the three criteria set out in the Bill by which the panel will have to be tested. Nevertheless, that does not satisfy the point made by the noble Lord, Lord Goodhart, that it could be taken away over the hills. Therefore, without for a moment signalling that we shall accede to it, I should like to reflect on the point.

My Lords, I am grateful to the Minister and I beg leave to withdraw the amendment.

moved Amendment No. 25:

Page 3, line 2, at end insert—

"( ) In the case of an application under section 1(1) from a person who is married, a Gender Recognition Panel may take evidence from the spouse and children of the applicant before making any determination under section 1.

( ) Evidence from the spouse or children may include a report from a chartered psychologist or a registered medical practitioner on the effect of issuing a certificate on the spouse or children of the applicant.

( ) The spouse or children of an applicant shall have the right to offer oral and written evidence to a Gender Recognition Panel and, before issuing a certificate, the Panel shall have due regard to the effect of issuing such a certificate on the spouse or children of an applicant.

( ) In the case of an application under section 1(1) from any unmarried person, a Gender Recognition Panel may take evidence from the partner or children of the applicant before making any determination under section 1.

( ) In the case of minor children, evidence may be given by a representative appointed on their behalf."

I thank the noble Baroness for giving way. I intervene to say that I am also involved elsewhere at this time. I am rather pleased at that, because it spares me from having to spend another day on the Committee stage of the European Parliamentary and Local Elections (Pilots) Bill.

My Lords, I return to what I consider to be the issue of paramount importance: that of the family of the applicant. As noble Lords will have noticed, I have altered the amendment tabled in Grand Committee to introduce the element of choice, so as to enable the gender recognition panel to be able to lake evidence from the spouse and children of the applicant before making a determination under Clause 1. That evidence could take different forms, as proposed in my amendment.

We had a good, thoughtful debate on the issue in Grand Committee. I was grateful to all noble Lords who took part. Some points raised gave me pause for further thought. I said then, and still firmly believe, that the concerns of the family should be taken into account during the process of gender reassignment; that a holistic approach to the process is the right route; and that my amendment would help, rather than hinder, the process. That said, I take on board the cautionary note proffered by the noble Lord, Lord Carlile, in Grand Committee. I would not want to encourage a climate similar to that of the contested divorce. In most instances, that would be unhelpful.

The trouble with the Bill is that only the interests of the applicant appear to matter. When I first read it, I could find no reference to children, spouses or partners of the applicant, except in two lines of Clause 12. I found that deeply disturbing.

I am reminded of the words of the right reverend Prelate the Bishop of Winchester in Grand Committee, when he said:

"At this point it seems crystal clear that the Government are, without remainder, giving rights to one set of people and taking no notice of the rights of another".

In response, the Minister was also crystal clear. Although confirming that central to human rights legislation is the balance between rights and responsibilities, he said:

"The tough answer is that the right which the panel will decide whether or not there is evidence in the application to grant"—

gender recognition—

"is not a right that can be balanced".—[Official Report, 13/1/04; cols. GC36–39.]

That is tough, and I keep returning to the fact that our hands are tied.

We have no choice but to respond to a judgment of the European Court of Human Rights. We have obligations under human rights law. In Grand Committee, the Minister offered to consider the matter further. I am pleased to confirm that we had a helpful meeting; the Minister has encouraged me to listen to what he has to say today in response to the amendment.

We have considered the matter at great length. I, and several other noble Lords, want to be reassured that the rights, interests and concerns of the family will be taken on board throughout the process of gender reassignment and should be considered by the gender recognition panel. I beg to move.

My Lords, we have sympathy with the aims of the noble Baroness. It is vital that in the process—and at the right stage—the views of the family, if it has views on the matter, should be taken into account in an assessment of whether the person who makes the application is appropriate for a certificate.

It is to be noted that one test under Clause 2—indeed, the primary test under Clause 2(l)(a)—is that the panel must be satisfied that the applicant has, or has had, gender dysphoria. One would assume that if a proper medical and psychological process is carried out, an assessment of the views of the family will be part of the evidence-gathering of that process. By the time the case reaches the panel, there will have been detailed psychological and psychiatric assessments—as already happens in all such cases.

Further, what the noble Baroness asks for is already provided under the Bill in appropriate cases. Clause 3(6)(c)—Clause 3 being entitled, "Evidence"—states that an application must include

"any other information or evidence which the Panel which is to determine the application may require".

If that means what it says, if the panel has any doubt about evidential aspects of the process that has led the applicant to the panel, the panel has absolute discretion to inquire into those matters set out—or summarised, at least—in the amendment.

The hearing before the panel is too late for the evidence for which the noble Baroness provides in her amendment to be considered. In making its decision, the panel must decide on the four criteria set out in Clause 2(1). In a few cases, the family may remain implacably opposed at that stage. Nevertheless, if those criteria are satisfied, the determination of legal status must be made; that is a requirement placed on the panel.

What I have said, in a rather long-winded way, is that the Bill already provides for the process that the noble Baroness has in mind in the disciplines that are applied to each applicant before they ever reach the panel. I therefore suggest that, although I agree with the spirit behind the amendment, it is superfluous.

My Lords, I welcome the fact that the noble Baroness, Lady Buscombe, has retabled the amendments. Notwithstanding the points made in Grand Committee by both the Minister and the noble Lord, Lord Carlile, and what the noble Lord just said—I have read Hansard and listened carefully to him now—it is important that in the second line of the first paragraph of the amendment, we now have the word, "may", not "must". I welcome that change.

It is still important that written in the Bill should be the clear encouragement to the panel, even at what the noble Lord, Lord Carlile, is right to say is a late stage, to take seriously the concerns of the spouse, partner or children, and for them to know that they are being taken seriously. The panel should be required to take them seriously, and they should have the opportunity to be heard.

It is not simply a matter of a family being, as the noble Lord, Lord Carlile, suggested, implacably opposed. That puts the whole matter in far too adversarial a context. It is entirely possible and, to my knowledge, sometimes the case, that there is profound concern and anxiety about the mental, spiritual or physical well-being of the person—who may indeed be well down or through the process of gender change; or of that of the children, spouse or relatives; or of both intermingling.

It is worth noting that the amendment does not suggest that the panel must do what it is asked by those to whom the amendment would give the right to offer advice—to whom the panel would be asked to listen. It states that the panel should have "due regard". As I understand it, that phrase makes entirely clear that it must take note of, but need not be bound by, that advice. It means that it must listen to what is being said to it; not that it must agree with it or, in the end, that its decisions must be bound by it.

That seems to me both proper in itself and—to take another element in the amendment—because I take the noble Baroness to be testing, I believe extremely importantly, whether in the Bill the Government really are committed to what she correctly reported as the Minister's tough line in Grand Committee. To the extent that I as a lay person in these matters can read the human rights legislation—in Grand Committee I pointed to some parts of it that were quoted by the Court of Human Rights in the Goodwin case—it requires all concerned to be engaged in a balancing act, or a holding intention, of one right and another.

I was surprised, even shocked, by the Minister's tough line because as a layman in this regard it seemed to me deeply questionable. It is extremely important that this should be explored both in this matter and others. If the Government are prepared to note this tension between rights and duties in the matter of sport, and I judge them to be doing so correctly, they also need to be seen to be doing so for their own good, let alone for straight justice, in relation to children—in other legislation, the rights of children are said to be paramount—spouses, partners and the proper concerns of the churches and faiths, which are reflected in a series of amendments to the Bill. I am grateful that the noble Baroness, Lady Buscombe, has brought these amendments back in this slightly revised form. I will listen to the Minister with great interest. From her discussions with the Minister, she has whetted my appetite and I hope that he may have something of real interest and significance to say.

Finally, I. too, am required to be in two places at once. I made my apologies to the Minister earlier and I apologise to your Lordships' House now. There is a point beyond which I shall have to attend an unavoidable engagement in a church in my diocese this evening.

My Lords, I am very pleased to be able to support my noble friend's amendment. One of the obvious gaping holes exposed during Grand Committee was that the gender recognition process gave no right to the family of a transsexual to have any say. I said that this emphasised that the Bill was about the rights of transsexuals and nobody else. Whispers have told me that there is likely to be some movement from the Government on this.

I hope that this bodes well for some other concerns we have about the Bill. I do not intend to rehearse all the arguments again. Suffice it to say that it seems unthinkable that a wife and children of a man—or indeed the husband and children of a woman—who went forward for gender recognition would be denied a say. I refer back to the story I read earlier about the terrible pain endured by the family of the transsexual man who thankfully changed his mind before it was too late. It was clearly tortuous for all of them, not just for the man involved. It is right that at the very least people in that situation should be allowed to put their views before the gender recognition panel.

It is possible that the Human Rights Act will come into play. I understand that the European Convention on Human Rights includes a right to fair trial and a right to be heard when a tribunal determines one's rights. I am sure there are some good legal minds who would be able to extend that to encompass the family in relation to the gender recognition panel. A wife whose husband was being changed in law to a woman could make a convincing case that her human rights were being breached if she were denied a right to be heard. Her rights would be very seriously affected by the decision of the panel. I do not believe that the panel should have absolute discretion.

The noble Lord, Lord Carlile, drew our attention to the Bill. It does not make it clear that the family would necessarily be encompassed in that consultation. I welcome the right reverend Prelate's great contribution that due regard has to be taken. I have absolutely no hesitation in congratulating my noble friend on her amendment. I hope that I can welcome the Government's willingness to think again.

My Lords, before the Minister responds, may I say that I very much hope that he will agree to the amendment. It seems almost impossible to believe that in the case of a man changing to a woman, his wife or children should not at least have access to the gender recognition panel so that they can give their views. The panel does not necessarily have to accept them but at least they ought to be heard. I hope the Minister will agree to the amendment.

My Lords, this is probably one of the most interesting and difficult issues we have to address in relation to the Bill, although there is probably some fierce competition for that title. When I talked about toughness in Grand Committee I was not talking about social toughness; I was talking about intellectual toughness. What I meant by that was that, under the statute that we are considering, the panel had a duty to make a decision as to whether the tests had been met to grant a change of legal gender to the applicant. Those three tests have been discussed many times. What I said was tough and difficult—whilst being emotionally sympathetic to the issues we have discussed—was having a process by which a judicial panel was asked to make a decision as to whether a person met those tests for their gender to be recognised and then to decide not to give it because the wife was unhappy. That was the toughness of the issue which we face and which we have been reflecting on in Government to see if nevertheless we can find a way of addressing what one has respect for—the human issues that lie behind that.

I shall now set out our thinking on this. I will also write to participants about this issue because it is important. That will give a little time for us to reflect on it before Third Reading. However, I can at least set out the position. In summary, there is not much problem in principle with allowing wives' and children's views or evidence to be put into the panel. The problem is about whether that should affect the decision of the panel. I am relieved to see the noble Lord, Lord Tebbit, nodding and agreeing with me on the intellectual toughness of that. We have been thinking about finding a way, which is consistent with the tests that the Bill sets out—including dysphoria, permanence, the two-year requirement and so on—of ensuring that the interests of the wife and child are properly considered at a time when it is possible for them to have an effect on the process. To put that at its shortest, we think it hinges around the consideration of permanence. By that I mean the panel has to be convinced that the test is permanent. There is a line of thought that goes that a person who applies for gender change to be recognised and is married and may have children, is in probably the most difficult situation. We want to ensure that that person and their family have fully considered the very painful and difficult implications of what the person wishes to go through throughout that process.

In short, the process of testing for gender dysphoria and treating it—the process set out in the Harry Benjamin International Gender Dysphoria Association standards—emphasises that professionals should discuss all the consequences of a change in gender for the person, their family and their work colleagues. It further says that the therapist should work with a transsexual person to accept the need to maintain a job, provide for the emotional needs of children, honour a spousal commitment or not to distress a family member as currently having a higher priority than the personal wish for constant cross-gender expression. So, good clinical practice already sets the issues out.

The issues should be explored as part of the therapeutic investigation early in the process. That seems right. In a sense, it is too late, two or three years down the line, when the case is with the panel, for that to be dealt with effectively, apart from allowing the family to give supportive evidence that may be relevant to the application to the panel. In many cases, applicants will wish their family to give evidence in that way.

In the guidance that will be given to the panel, we will make it clear that, if an applicant is married and/or has children, it is particularly important to recognise the burden placed on that person by the social situation that they are in and to test whether they have thought through the seriousness of the change that they are making and the effect that it will have on others, as well as themselves. Therefore, if there is guidance to the panel that it is to look for evidence that that has been properly tested, it leaves the door wide open for the applicant to put evidence from the wife and child into the panel's processes. More importantly, it gives a clear signal, at the start of the process, that the applicant will be tested at the end of the process on whether the issues of concern to the family have been properly considered as part of a therapeutic process. That will not be done in order to balance the interests of the family against the application—that cannot happen, for the reasons that I gave—but to see whether there is a greater risk of impermanence because of the social pressures on the applicant as a consequence.

I fear that I have spoken at length, but I hope that I have set out the argument clearly. I will put it in letters to noble Lords. Without completely impossibly corrupting the responsibility of the panel, one can build into the process a mechanism to ensure that the interests of the wife and children are given proper consideration. In any event, any decision by the panel is only an interim one, for a married couple. A divorce cannot take place until the court has considered whether appropriate ancillary relief decisions have been made and the interests of the children recognised. The court process for married applicants also has a check. Unless the court is satisfied that the normal divorce tests of ancillary relief and care for the children are met, the applicant cannot change the interim gender certificate into a permanent one. There are, in a sense, two tests. That allows us to build up a robust process that is fair to the applicant but is also fair to the wife and children.

As the House will have noticed, I speak without looking at my notes. I would welcome the House's liberality and ask it to reflect on the matter. I shall put it all in writing to the House, so that we can see whether we have found a way through the difficult moral dilemmas that does not corrupt the integrity of the process. I thank the noble Baroness, Lady Buscombe, for her thoughtfulness on the matter, but I ask her to withdraw the amendment, at least at this point, for the reasons that I have given.

My Lords, I thank the Minister for his response. I also thank particularly my noble friends Lady O'Cathain and Lord Ferrers for their support. I thank the noble Lord, Lord Carlile of Berriew, for his sympathy for the spirit of the amendment, although I cannot agree with the noble Lord that the amendment is otiose. In a sense, I am considering the perspective of the spouse and the children. I believe that Clause 3(6)(c) focuses on the perspective of the panel and the information that the applicant might wish to include, as opposed to the information or evidence that the spouse or children might wish to include.

That said, I am grateful to the Minister. I welcome also the support of the right reverend Prelate the Bishop of Winchester, who has clearly thought the matter through in a way similar to the way in which I have done with regard to the difficult dichotomy between rights and responsibilities. When we come down to it, the Bill focuses on the rights of the applicant.

There is no question but that the Minister has responded to our concern. Of course, I would prefer to see our amendment made. I accept the difficulty that the Minister highlighted with regard to including in the Bill a provision that relates to a late stage in the process. I hope that the Minister will assist me and other noble Lords by writing to us, first, with regard to the timing of the introduction of the guidance that will be attached to the legislation and, secondly, to help us to understand better how the process will be effected, such that the interests of the spouse and family, where they exist, are tested. In other words, at what stage will their evidence be included? Will it be an ongoing process, leading up to the application to the gender recognition panel? Will it be enough for evidence from a wife, spouse, partner or family to be offered once, or will consideration of the interests of the family continue right through the difficult process leading to gender re-assignment and the application to the gender recognition panel?

I am grateful to the noble Lord for the opportunity between now and Third Reading to consider what he tells us in writing before deciding whether it is enough to have the matter dealt with simply in guidance—I accept why he wants to do that—as opposed to having it in the Bill. I am grateful that the Minister and his officials took considerable time to tackle such a difficult and important issue. On that basis, I beg leave to withdraw the amendment.

moved Amendment No. 26:

Page 3, line 5, at end insert—

"( ) If the Panel which is to determine the application requires information or evidence under subsection (6)(c) it must give reasons for doing so."

My Lords, just to put the record straight, the noble Baroness referred to Amendment No. 122 when I think it should be Amendment No. 121.

My Lords, whenever the noble Lord, Lord Goodhart, has challenged parliamentary counsel, as he has done on at least three previous Bills, he has been proven to be correct. I am sure that he is correct about this, too, in which case I apologise.

Applicants who already have recognition overseas may apply on a simpler procedure. As the Bill stands, under Clause 2(4) the Secretary of State has the power to specify a list of approved countries or territories. The power will be exercised only after consultation with the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland.

At present, Clause 23 provides that countries are "approved" by an order made by the Secretary of State subject to the negative resolution procedure. In its report, the Delegated Powers and Regulatory Reform Committee agreed that it is appropriate that approval should be given by order, as the list of approved countries will change from time to time. However, it was concerned that on the face of the Bill it was not explicit that only those countries that have criteria equivalent to our own would be approved. It was concerned about future policy changes which might change the criteria by which other countries were approved for these purposes. The committee therefore concluded that the negative procedure would not provide an appropriate level of parliamentary scrutiny for a power of such potential significance in the context of the Bill and recommended that the affirmative resolution should apply.

Taking into account the views of those noble Lords who, in Grand Committee, expressed similar reservations and the recommendations of the committee, we are proposing an amendment to Clause 23 which I hope will find favour. It will provide the assurance sought. The power to prescribe approved countries will now be subject to the scrutiny and approval of both Houses.

Let me turn to the amendment as it relates to paragraph 11 of Schedule 3. At this point, Amendment No. 71 is also relevant. The Delegated Powers and Regulatory Reform Committee recommended a change to the provision in Schedule 3, paragraph 11. That provision seeks to accommodate a regulatory reform order that is already under way and which relates to the registration system for England and Wales. We explained that the original purpose of the paragraph was to enable the registration provisions contained in the Bill to be amended so that the gender recognition register conforms to the forthcoming changes being brought about by the General Register Office in England and Wales. I think this is a matter of some concern to the noble Baroness, Lady Buscombe.

The Delegated Powers and Regulatory Reform Committee accepted this argument and that the scrutiny process for the order could be shortened as proposed. However, rather than altering the requirements for an order under the Regulatory Reform Act 2001, the committee recommended that the Bill should give an express power for Part 1 of Schedule 3 to be amended, and that any such amendments should be made by affirmative resolution.

The amendment to paragraph 11 of Schedule 3 fully meets the committee's recommendation and I hope that it finds favour with noble Lords who, in Grand Committee, drew our attention to the matter.

The final amendment in this group, Amendment No. 125, is, again, a drafting amendment. Clause 21 includes the power to specify further exceptions to the prohibition against disclosure. Clause 21 provides that the power may also be used by Scottish Ministers in areas within their competence. Unfortunately, however, the present version of Clause 23 does not subject this power, in contrast to the power given to the Secretary of State, to any parliamentary procedure. The amendment corrects this unintended omission.

I hope that your Lordships will agree that we have sought to meet the concerns expressed in Grand Committee and by the Delegated Powers and Regulatory Reform Committee and are happy to accept these amendments. I beg to move.

My Lords, as a number of the amendments result from points made by us in Grand Committee, we naturally welcome them. The amendments on points that we did not make ourselves all seem perfectly sensible. We are therefore entirely happy with all the amendments.

My Lords, I also welcome the Minister's response to the concerns that we raised in Grand Committee, and entirely agree with the noble Lord, Lord Goodhart, that the other matters that the Minister raised today make sense. We support the amendment.

My Lords, I remind the House that if Amendment No. 28 is agreed to I cannot call Amendment No. 29 due to preemption.

moved Amendment No. 28:

Page 3, line 9, leave out subsections (2) and (3).

My Lords, I identify myself with everything that the noble Lord, Lord Goodhart, has just said. I thank him and the noble Lord, Lord Carlile, for their graciousness in agreeing to me adding my name to their amendment.

The noble Lord has excellently expressed the needs of this small number of people—I have been made aware of some seven or eight couples, as I think he has. I noted the letter that he quoted from the Minister, but this situation cannot possibly be beyond her well-known skill and ingenuity and that of her officials if they set their minds, as I am sure that it is their nature to do, to seeking to assist this tiny group of people whose situation, if the Bill goes through in this form, is simply deplorable; indeed, the proper word is cruel.

if people have committed themselves to a marriage, whether or not out of a religious understanding, of any faith, it is part of the Government's responsibility to sustain that marriage if they wish to sustain it; I have made this point in other circumstances in this House. To force them to be broken apart and then to suggest that they be placed in some other legal relationship which—quite apart from the fact that it does not yet exist—if it were to exist, they do not want, is not a sustainable way of behaving on the part of the Government. I think the Minister knows my reasons for disagreeing with him—I shall not repeat them— that what we are discussing necessarily constitutes a same sex marriage.

I want also to underline the point that the noble Lord, Lord Goodhart, made that there is an extraordinary retrospectiveness in this element of the Bill. We are talking about couples, many of whom have been married for years and a significant number of whom have begotten children and brought them up, in which case children are involved too. I refer to the earlier comments of the noble Baroness, Lady Buscombe, in that regard.

I applaud the fact that the Government are making clear that they do not support same sex marriages. The Minister will know that for me the illogicalities of the Bill in principle are revealed if it says that a marriage which has not been a same sex marriage for many years suddenly at a certain point becomes one. However, that is not the main point at issue here—that concerns a quite unnecessary piece of cruelty. Noble Lords opposite and I are to a great extent in agreement on the matter for similar reasons. I hope we shall hear that the Government have had further thoughts on the matter and that they will not be thrown off course in that regard by looking to the kind and gracious nature of the noble Baroness, Lady Hollis of Heigham, to find a way through the detailed problems.

My Lords, in Grand Committee I spoke in support of this measure. I should like to thank the Minister for the letter that he sent in response to my intervention. I am very grateful to the Minister for what he said in that letter but it still does not cover the concerns that I sought to express, which have been put before the House very forcefully this afternoon by both the noble Lord, Lord Goodhart, and the right reverend Prelate.

I think of the couple who have been happily married as man and wife and one of whom has, as a consequence of the change that we are discussing, become of the same gender as the other. However, both are anxious to continue the marriage with all that goes with it, not merely in terms of a social relationship but also in terms of the legal rights that go with it. What the Government propose is that the courts have to interpolate themselves into this relationship by way either of a decree of nullity in England or a decree of divorce in Scotland. Noble Lords will be well aware that a divorce involves the question of division of property. Indeed, one of the issues involved in property is that the property that is to be divided is not necessarily the whole of what each party has. There is something in Scotland called matrimonial property. The consequence of that is there has to be a division of that which the parties do not want to divide in order that they then may, as it were, resume the relationship but call it a civil partnership. It seems to me that that is a very odd way of going about dealing with a problem which exists even now. The Bill will, of course, have consequences for all those who in future undergo the whole process of gender reassignment.

I feel very strongly that issues such as those which have been mentioned by the noble Baroness, Lady Hollis, are matters that we shall have to look at again anyway in another context. Today I received the transcript of a judgment of the European Court of Justice in the case of KB v National Health Service Pensions Agency. The facts are different because in that case they were two persons. One was transsexual in an established partnership. KB was entitled to an occupational pension under the National Health Service, which gave rights to a widower. But the partner, not being married or being capable of marriage, was not so entitled. That is precisely the kind of thing which arises on a decree of divorce. The person cannot be a spouse at the time of death in that relationship. These are the kinds of much deeper factors which we shall have to look at in another context and no doubt will have to make changes to the various schemes and the like which attach to these new relationships brought about by gender reassignment. But for the moment it is enough to say that I strongly support the amendment.

My Lords, I disassociate myself from this amendment because I cannot support it for all sorts of reasons. It is one of the trickiest issues in the Bill. One can say on the one hand that we have a Bill which will force divorce and, on the other, that we have a Bill which creates same-sex marriages. Many noble Lords will have received a letter from Janet and Sarah Wood. Clearly, Janet has chosen to reconcile herself to her husband's wish to be a woman. He would like to change his sex in law, but he also wants to remain married to Janet.

Surely, he must choose between being a woman in law and being married to Janet. Many will feel huge sympathy for him, but that is the situation which pertains at the moment before the Gender Recognition Bill becomes an Act. Some have said that they must simply make the choice and some argue that the Bill is already bending over backwards. It might be said that transsexuals in this position want to have their cake and eat it.

Legalising same-sex marriage in law is obviously a step too far even for the Government. That ignores the fact that they are already creating same-sex marriage if this Bill becomes an Act, where a person who was born a man will be a woman and will be able to marry a man who was born a man. That is same-sex marriage.

My Lords, I am saddened because I thought that I was going to have the opportunity of saying that I agree with everything that the noble Baroness has said. She has spoilt my fun.

My Lords, I do not believe that it is fun. We are dealing with it in a slightly light-hearted way, but it is a very serious issue. The Bill allows a biological man to marry another biological man. That is my contention. I know that is not agreed by other noble Lords. Returning to the amendments tabled by my noble friend Lord Tebbit, just because a woman wants to be a man, whatever gender recognition certificate the person has they were born either as a man or woman and they will always be so.

My Lords, the Bill allows two persons to marry, both of whom have borne children and are still capable of bearing children, and who might do so in future. If that is not same-sex marriage then I am deeply puzzled to know what is.

My Lords, I thank my noble friend for his intervention. Perhaps I should not have caught his eye at the beginning of what I had to say. The matter is becoming more and more complicated.

There is real concern that if we create same-sex marriages, every other group of whatever kind will say that they want same-sex marriages. The option is simply for people to stay the way that they are and, if they want to go that far, they do not apply for a gender recognition certificate. People may be in a close, harmonious relationship which has existed for 20 or 30 years and they may have two, three or four children and even grandchildren. If they cannot bear the thought of breaking up and divorcing, with the assets being split and the family being torn apart, is it not better that they do not go through the process in the first place? I really cannot support the amendment.

My Lords, in rising briefly to support the noble Baroness, perhaps I may urge your Lordships to bear in mind the well known maxim "Hard cases make bad law".

My Lords, I recollect that on this issue in Grand Committee, I started by quoting the old adage that our mothers taught us:

"O what a tangled web we weave. When first we practise to deceive!".

I then went on to get myself into a thoroughly big tangle over the difference between dodos and doornails.

I find this an extraordinarily difficult issue. I take on board entirely what my noble friend Lady O'Cathain said, as I do what I am sure the noble Lord, Lord Filkin, is going to say. But then I think to myself that, in my view, the certificate and the amended birth registration are both lies. They are simply untrue. The individual concerned has not changed sex. I might go so far as to please some other Members of the House by wondering whether he or she has changed gender. But I am sure that the person has not changed sex.

If the individual has not changed sex but, through the process of a perverse piece of legislation, he or she has been issued with a false certificate stating what is demonstrably a lie—that is, not only that that person is not of the sex that he or she is but that he or she never was—where does that take me? It might easily take me to the position where I would say, "There is no ground for annulment because nothing has happened. This man and this woman are still a man and a woman. In that case, why should the marriage be annulled?" That would get me off an awkward hook because I have the greatest sympathy with people who are in that position. I believe that if this matter were to go to a Division, I might plead for extra time so that I could sit here and finally make up my mind as to which Lobby to enter. I hate to say that because it is not a problem that I normally have. Perhaps I am suffering from voting dysphoria.

My Lords, the names of Janet and Sarah Wood have already been mentioned in this debate. I was very surprised to see a copy of a letter to them from an official in the Gender Recognition Division of the Department for Constitutional Affairs. That letter, in part, said:

"The issue of what to do with existing marriages is a complex one"—

well, that is what the whole debate is about; of course it is complex—

"and the decision to require that existing marriages should be annulled was not an easy one to make. The Government is not about undermining strong and stable relationships that have survived the upheaval of one of the parties going through the transition to a different gender. It is the marriage that cannot continue, not the relationship".

We are not talking about same-sex marriages here; we are talking about same-sex divorces, which are an entirely different thing. This sparked my interest for a totally different reason. Many of us—most of us, probably—who are present in this Chamber are, or have been, married and we went through the marriage service, part of which, I seem to remember, said:

"Those that God has joined together let no man put asunder".

That is extremely important to me. It is clear that such people and many like them are strong and committed Christians. Why should the law make them divorce? That is the issue.

My Lords, I agree with the comments of my noble friend Lord Skelmersdale, particularly his last quotation. That is what is happening. I am also sympathetic to my noble friend Lord Tebbit, who said that the longer he listens to the debate the longer he wants it to continue, so that he can make up his mind. I may not be able to help him with that, but the issue is a deceit whichever way it is looked at. We all know the reasons for it and we have sympathy for them, but it is a deceit. If a person is born a girl and has a birth certificate to say so, but later decides to become a man, the registrar has to say that the certificate was wrong and "You are now a man and you always have been". That is wrong and is a lie. The registrars are being forced by law to make a lie.

What happens if a person who was born a man, decides to change sex and become a woman, but has been living with his partner as her husband? What happens if that man, who is still biologically a man, contracts and subsequently dies from, for example, cancer of the testicles? What does the doctor put on the certificate—that the woman has died of cancer of the testicles? That is curious and one of the sort of absurd cases that will emerge. It comes back to the basic point of my noble friend Lord Tebbit—it is a deceit whichever way one looks at it.

My Lords, I support the amendments, yet I find myself supporting my noble friend Lord Tebbit at the same time. I agree entirely with my noble friend Lord Skelmersdale. The key is the sanctity of marriage and the vows that are taken and supported by the state at the time of marriage—although I am still annoyed that I was not allowed to use the Anglican vows of marriage in my civil marriage service, which was an affront that I may attack on another occasion. People are married on the basis of "'til death us do part", or many of us are, and that is the basis on which marriage holds its privileges and should be respected. There are other circumstances where marriage has caused problems. There was another such problem of gender recognition when the Church of England agreed to have women priests, which led to some male priests moving to the Roman Catholic faith. They were accepted as priests with their wives, despite the rule that Roman Catholic priests are forbidden to marry. However, the sanctity of marriage was respected. It was the right decision although it created a class of married Catholic priests who could not have first become Catholic priests and then been married.

Marriage involves an important set of vows. It is an important relationship and should not be broken in such a way—even if it involves surgery. So what? A person who has his testicles shot off is not then compelled to become unmarried. It is a matter of tiny importance compared with the importance of the vows that have been taken. As my noble friend Lord Tebbit says, the reality is that they are still a man and woman married to each other, whatever they may call themselves or whatever lie may have been put on the statute book and the birth certificate. To separate and destroy that, when both parties wish to continue with the commitment that they have given, is entirely wrong.

My Lords, I did not take part in the debate during Grand Committee. I want to make it clear that, bearing in mind that members of the Conservative Party have a free vote on all aspects of the Bill, I am offering my personal view of the matter.

At Second Reading, I said that to legislate for divorce goes very much against the grain. I suspect that I speak for all noble Lords on that and all will have great sympathy with the view of the right reverend Prelate the Bishop of Winchester in that regard. However, these amendments, if accepted, would mean in law same-sex marriage. That is clear and I cannot accept or support it.

I am sure that all noble Lords have sympathy for everyone who has written in. Several have referred to Janet and Sarah Wood, who wrote to a number of noble Lords. In their letter, they say:

"To allow such marriages to continue will not undermine the principle against same-sex marriage any more than the main thrust of the Bill for allowing transsexual marriages".

That simply is not true. There is a point which I am sure the Minister will make clear in response. It is that if people like Janet and Sarah really do not want to divorce, they have a choice: they do not have to undertake this process; they do not have to seek legal gender recognition. I accept that it compromises what they had sought to succeed in through the process of this legislation, but there is that strong element choice. As my noble friend Lady O'Cathain commented, they can continue just as they are. I support everything my noble friend said.

In any event, I am more persuaded by the Minister, the noble Baroness, Lady Hollis, than by the noble Lord, Lord Goodhart, with regard to the enormous difficulty of creating a whole system of welfare and benefits for what in fact will be a small number of people.

I return to relying on our obligations under the ECHR. Perhaps it is because I am a lawyer and because of those obligations that I am just able to justify what we are doing in passing this legislation.

My Lords, perhaps I may speak from these Benches with just a touch of Episcopal dysphoria. I do not quite agree with my noble friend the right reverend Prelate the Bishop of Winchester. He was sorry to have to leave for a diocesan appointment this evening. It is such a difficult issue.

I believe that it comes down to which decision would best uphold the dignity and institution of marriage in our country. We are caught between our absolute sympathy for the individuals concerned, which the noble Lord, Lord Goodhart, and my noble friend expressed, and an unholy alliance. They come at the issue from totally opposite points of view, which reminds one of some of the alliances we hear about in the other place between those on the more Right-wing Conservative Party and those on the more Left-wing of the Labour Party.

What will uphold the dignity of marriage by making every concession, which our emotions draw us to do, to the small number of individuals who are affected? Will we simply put one more nail in the coffin of the institution of marriage and the way it is perceived in society at a time when the institution of marriage is under huge pressure? That ultimately leads me to the position expressed by the noble Baronesses, Lady Buscombe and Lady O'Cathain.

I have an anxiety that to agree to these amendments now might subtly pre-judge some of the debates that need to happen under the civil partnerships Bill. The Government's consultation papers have gone too close to the notion of same-sex marriage in the way that has been set out. That representation has been made by the Churches—it is not just me saying it now. When that Bill comes before us, there is a real discussion to be had as to how civil partnerships are to be construed.

I speak as someone who is very much in favour of having a system of civil partnerships in our country to remedy injustice and bring better order into our social relationships. But the devil is in the detail in that Bill as to how those partnerships are construed. If we agree to this amendment, we could be seen to be pre-judging some of those discussions.

My Lords, I am grateful to the right reverend Prelate. I think that he has just about brought me back on side.

My Lords, this is one of the really difficult issues. I find it even more difficult because part of the privilege of being a Minister for such a Bill is that at times it is important to meet people who feel passionately about these dilemmas. Therefore, in a number of meetings people have explained to me their passionate feelings about wishing to have the gender change and, at the same time, the status of marriage. I have had the unpleasant duty—I believe this is right as well as being our policy—to look them in the eye and say, as I said at Second Reading, "We are not going to do that".

The reasons why we are not going to do that have already been stated, eloquently and clearly, by the noble Baronesses, Lady O'Cathain and Lady Buscombe, and by the right reverend Prelate the Bishop of Chester. Fundamentally, marriage means something to everyone in our society—a legal union between a man and a woman. It is a sophistry to play games and to pretend that because one does not think that the Bill is a good Bill, in some sense the two people are not married and so we can pretend that it is not a same-sex marriage. In law the position is absolutely clear: if the state, through the processes that the Bill sets out, gives legal recognition to a change of gender, then that will be, in law, the gender of that person. If we allow a marriage to continue we shall allow a same-sex marriage to continue.

One could argue that this concerns only 50 people, but I am sorry, that will not do. We are not going to allow same-sex marriage; I said that very clearly at Second Reading and that is our position. However, we shall do our utmost to make the process of change, for those who wish to continue a close relationship into the future, clear and possible. They will have to have a divorce; and they will receive an interim gender recognition certificate which will be turned into a final gender recognition certificate only after they have been through the divorce courts and received a divorce.

We also signalled at earlier stages of the Bill that we intend to bring in the civil partnership Bill. When that is enacted, if people so wish, they can have a legal relationship, sustaining their emotional relationship, but it will not be marriage. On the timing of that, we intend to bring that Bill into the House as a substantive Bill before Easter and, if it passes, it will become legislation and implementable by about October 2005. This Bill, if and when it passes, will become legislation by April 2005. Therefore, there will be a short gap of some six months between our best forecast of when the two Bills will be in place. Those who do not want to go into a legal limbo, awaiting civil partnership, after their divorce as a result of gender change recognition, will not need to do so; they can wait until the civil partnership process is in place. They will still be able to have the fast-track process of gender recognition, of which we have spoken. As noble Lords will know, in later amendments we shall allow the fast-track process to run for two years.

Therefore, we come back to the point that we are not forcing people to get divorced. We are giving them a choice, which is what the state should do in such a situation. It should say to people who believe fundamentally that they have a discontinuity in their gender, "We are giving you the option of legal recognition of your change of gender; you can take that if you want to; we are not forcing it on you, but you cannot pick-and-mix; you cannot have both at the same time; if you want to stay married you can"—God bless them; long may they do so—"but you cannot have gender change". If they want gender charge that is their choice. There will be a facility for doing so. But they cannot stay married at the same time. That is the Government's position which we shall stay with. For those reasons—with concern for humanity, respect for the people who move the amendments and understanding of the pain of people in that situation—I believe that that is a right and principled position.

My Lords, it has been an interesting debate to which many noble Lords have made contributions about which they feel strongly. I respect the views of everyone who has spoken.

I welcome the fact that the amendment received support from the Bench of Bishops, the Cross Benches and the Conservatives Back Benches. I regret that the right reverend Prelate the Bishop of Winchester—for reasons he explained to me—has had to leave in order to attend a function in his diocese.

I found the objection of the noble Baroness, Lady O'Cathain, somewhat difficult to understand. She plainly regards a gender change as not having taken place. Therefore, there should surely be no obstacle to people remaining married who were married in the birth gender of both of them.

My Lords, I thank the noble Lord for giving way. That is not the point. I certainly did not want to force divorce. But individuals do not have to go down the gender recognition route. They can stay married with their own family surroundings and behave exactly as they do now. Were it not for this Bill, this future as regards divorce would not face them.

My Lords, perhaps I may respond to the speech of the right reverend Prelate the Bishop of Chester. He clearly regards it as a difficult issue, as I do. He thought that the sanctity of marriage was best preserved by the defeat of the amendment.

My Lords, I do not think that I used the term "sanctity of marriage" but referred to the social standing of marriage. That is a slightly different concept regarding the place of marriage in our society. However, I shall not delay the noble Lord unnecessarily.

My Lords, if the right reverend Prelate is right, the couples who are now married but where one of them wishes to change gender will divide into three classes. The first will be people who decide to retain their marriage and forgo a gender recognition certificate. They would have retained their marriage anyway. The second group will be those who divorce and enter into a civil partnership. That means giving up a marriage which is recognised by Christians as a sanctified relationship and entering into an unsanctified relationship. The third group will divorce and enter into no form of new relationship. None of those solutions advances or protects the role of marriage in any way. In this case I would much prefer to see the marriage continuing.

I have made the arguments for the issue. It is one on which I feel strongly and on which Members of my party, as well as others, have views, which they are—of course for reasons of conscience—free to express. But on this issue, I wish to test the opinion of the House.

My Lords, I call Amendment No. 44.

moved Amendment No. 44:

Page 4, line 7, leave out from first "person," to "for" in line 8 and insert "an application may be made"

My Lords, I shall not repeat all our discussion in Grand Committee. The noble Lord, Lord Tebbit, has helpfully focused on the thrust of his concern. As I probably said in Grand Committee—I am racking my brains to recollect it—I have not yet seen the force of the problem. I agree with the noble Lord that it is right and proper that there should be a process for inspecting, addressing and, if substantiated, redressing a fraud that someone discovers. However, such a process will exist because Clause 8 contains provision for quashing fraudulently obtained certificates.

I therefore genuinely believe that if evidence is brought to the Secretary of State that a fraud has been committed, he would be obliged to inspect the case and decide whether to exercise his powers under the clause. I should like to reflect further on that. It may be efficient for us also to have a few words to see if he would tell me what he thinks is wrong with that process or whether there are things that I can say to emphasise how that process would operate. I am with him on principle, but am struggling to see how the current legislative framework does not achieve the objective that he and I want. Can I leave that invitation to him?

My Lords, before the Minister sits down, if such an application was necessary, to whom would that application be made? I am not clear on that.

My Lords, the Bill specifies that the application would be made to the Secretary of State.

My Lords, I am most grateful to the noble Lord. It seems to me that the nub of it is whether the application should go direct to the panel or to the Secretary of State who, if he thought there was a case to be made, obviously after discussion with the panel, would seek to quash the certificate under the powers in, I think, Clause 8(5). On the basis that he said that he would turn his mind to it, I am happy to beg leave to withdraw the amendment.

moved Amendment No. 46.

Page 4, line 25, leave out from "amount" to "for" in line 27 and insert "prescribed by order made by the Secretary of State unless the application is made in circumstances in which, in accordance with provision made by the order, no fee is payable; and fees of different amounts may be prescribed"