Contribution
I thank the noble Viscount, Lord Camrose, for his Motion 32A and Amendments 32B and 32C, and Motion 52A and Amendments 52B and 52C. I reiterate that this Government have been clear that we accept the Supreme Court judgment on the meaning of sex for equalities legislation. However, as the noble Viscount, Lord Hailsham, says, it is critically important that the Government work through the effect of this ruling with care, sensitivity and in line with the law.
When it comes to public sector data, we must work through the impacts of this judgment properly. This would involve considering the scope of the judgment and the upcoming EHRC guidance. Critically, the Equality and Human Rights Commission has indicated that it will be updating its statutory code of practice for services, public functions and associations in light of this ruling, which will include some of the examples raised this afternoon, including by my noble friend Lady Hayter.
Ministers will consider the proposals once the EHRC has submitted its updated draft. It is right that the Government and, indeed, Parliament fully consider this guidance alongside the judgment itself before amending the way that public authorities collect, hold and otherwise process data—a point made by the noble Lord, Lord Clement-Jones, about the EHRC ruling.
I set out in my opening speech that this Government take the issue of data accuracy seriously. That is why, as I outlined, there are numerous existing work streams addressing the way in which sex and gender data are collected and otherwise processed across the public sector.
The digital verification services amendments that we have discussed today are misplaced, because the Bill does not alter the evidence and does not seek to alter the content of data used by digital verification services. Instead, the Bill enables people to do digitally what they can do physically. It is for organisations to consider what specific information they need to verify their circumstances, and how they go about doing that. Any inconsistency between what they can do digitally and what they can do physically would cause further confusion.
While this Government understand the intention behind the amendments, the concerns regarding the way in which public authorities process sex and gender data should be considered holistically, taking into account the effects of the Supreme Court ruling, the upcoming guidance from the equalities regulator and the specific requirements of public authorities. It is very unlikely that the digital verification services would be used for many of the cases specifically raised by or with many noble Lords. We expect DVS to be used primarily to prove things like one’s right to work or one’s age, address or professional educational qualifications.
The noble Viscount, Lord Hailsham, rightly highlights that the proposals have the potential to interfere with the right to respect for private and family life under the Human Rights Act by, in effect, indiscriminately and indirectly pushing public authorities to record sex as biological sex in cases where it is not necessary or proportionate in that particular circumstance. I raise the example that has been brought up several times, and again by the noble Baroness, Lady Fox: it is not relevant for the French passport officer to know your biological sex. That is not the purpose of the passport.
We acknowledge, however, that there are safeguards that address the concerns raised by noble Lords, including those of the noble Viscount, Lord Camrose, and the noble Lord, Lord Arbuthnot, regarding information being shared under Clause 45 but without presenting issues that could cut across existing or prospective legislation and guidance. I remind the House that the data accuracy principle is already included in law. The principle requires that only data accurate for the purpose for which it is held can be used. Again, there are workstreams looking at data use to answer the points raised by the noble Lord, Lord Arbuthnot, and indeed by the noble and learned Baroness, Lady Butler-Sloss.
The noble Baroness, Lady Ludford, asked why it was not accurate for 15 years and what that means about our reliance on this accuracy. I am afraid the fact is that it was accurate for 15 years because there was a muddle about what was being collected. There was no requirement to push for biological sex, but that is the case now. In response to the question of whether you could end up with two different sources of digital verification showing two different biological sexes, the answer is no.