Delegated Powers and Regulatory Reform Committee report

Introduction

1.  This bill is to give transsexuals the opportunity for full legal recognition in their acquired gender.

The Delegated Powers

2.  There are delegated powers to make orders or regulations at clauses 2(4), 21(5) and (6), 22(1) to (3) and 25 and paragraphs 3, 14 and 23 of Schedule 3. There are minor extensions of existing powers at paragraphs 12 and 13 of Schedule 5 and paragraphs 16 and 17 of Schedule 6. There are also powers at clauses 3(6), 4(5) and 7 which could be considered legislative powers.  The Department for Constitutional Affairs has provided a memorandum for the Committee. The memorandum is printed at Annex 1 to this Report.

3.  Although in most instances we take the view that the delegations are appropriate and subject to an appropriate level of Parliamentary scrutiny, three of the delegated powers raise issues to which the Committee wishes to draw the attention of the House.

CLAUSE 2

4.  Under clause 2(1), a person applying to a Gender Recognition Panel on the basis of living in another gender must satisfy the panel on four matters, set out in paragraphs (a) to (d). But a person applying on the basis of having changed gender in another country has to satisfy the Panel only that the country is an "approved country", with greatly reduced evidential requirements (clause 3). Clause 2(4) provides that countries are "approved" for the purposes of clause 2 by order made by the Secretary of State subject to negative resolution procedure.

5.  It is appropriate that approvals should be given by order, as the list of approved countries will change from time to time. The Government state, in the memorandum to this Committee, that the power "will be used to prescribe those countries that have criteria equivalent to our own". But the power is not limited on the face of the bill to prescribing such countries. Should the policy change in the future, the power might be used for prescribing also other countries, thus extending the cases in which an application could succeed without the need to satisfy the Panel about the specific matters in clause 2(1) (a) to (d), and without the need to satisfy the evidential requirements of clause 3(1), (2), (3) and (4). In view of this, we conclude that the negative procedure does not provide an appropriate level of Parliamentary scrutiny for a power of such potential significance in the context of the bill. We recommend that the affirmative procedure should apply.

CLAUSES 3(6) AND 7

6.  Clause 3(6)(b) provides that applications for determination by a Panel should include, as well as a statutory declaration about marital status, "any other information or evidence required by the Secretary of State".

7.  The prescription by central government of the particulars or evidence to accompany applications as part of a formal procedure is often made the subject of rules or regulations, whether or not subject to a Parliamentary procedure. This accords with the view that the prescription of general rules about these matters has the characteristics of a legislative, rather than a purely administrative, act. For this reason we considered whether, in this instance, the particulars and evidence should be specified in a statutory instrument, to which the usual publication requirements will apply.

8.  The reason given by the Government for wishing the matter to be left to "administrative" action only is that the details are likely to change. We recognise that this is a good reason why the details should be left to regulations, but, given the flexibility of the delegated legislative procedure, it does not provide an explanation why there should be no formal procedure of any sort. However, we recognise that the number of applications is likely to be small. We suggest, therefore, that the House may wish to invite the Government to explain more fully why, in this case, the general requirements about information and evidence to accompany applications should not be set out in regulations, whether or not subject to a Parliamentary procedure.

9.  We believe that the same point applies to fees payable on the applications (clause 7(2)) and to the form and manner of the applications (clause 7(1)), and suggest that the House may similarly wish to invite the Government to provide a further explanation in relation to these provisions also.

SCHEDULE 3, PARAGRAPH 11

10.  Schedule 3, Part 1 sets out the registration procedure for England and Wales. There is a Regulatory Reform Order in progress, which it appears will be ready for "first stage" scrutiny early in 2004 which will reform the legislation relating to the registration of births, marriages and deaths. Schedule 3 to this bill reflects the provision for births, deaths and marriages as it now is. If the Regulatory Reform Order is passed and made, we think it likely that the Government will wish to use the Regulatory Reform process to amend Part 1 of Schedule 3.

11.  The "two year" rule in the Regulatory Reform Act 2001 would prevent a Regulatory Reform Order amending Schedule 3 from being made for two years following this bill’s enactment. So paragraph 11 of Schedule 3 overrides the two year rule for amendments to Part 1 of Schedule 3. We have commented in the past that we do not expect to see this sort of provision frequently in legislation. On this occasion, however, we raise no objection.

12.  Paragraph 11(b) of Schedule 3, however, raises a different order of questions. Paragraph 11(b) disapplies both the consultation requirements of the 2001 Act and the "first stage" scrutiny, so that the order amending Schedule 3 would proceed as an ordinary affirmative resolution order. Bearing in mind the limited scope of Schedule 3, we do not suggest, in this case, that the resulting level of Parliamentary scrutiny is inappropriate. But we are concerned about the underlying point of principle. The consultation and scrutiny requirements are normally an essential part of the Regulatory Reform Order process and such orders undergo a different Committee procedure in Parliament to other orders. If the effect of the bill is to shorten the process, in this particular case, so that it is equivalent to the ordinary affirmative procedure, then we take the view that the bill should provide a particular power (subject to affirmative procedure.) limited to amendments to Part 1 of Schedule 3.

Conclusion

13.  We draw to the attention of the House to the recommendations in paragraphs 5 and 12 and the suggestions for further explanation in paragraphs 8 and 9. There are no further matters in relation to the delegated powers in this bill on which we wish to report to the House.