Baroness Fox of Buckley:

Moved by Baroness Fox of Buckley

148E: After Clause 47, insert the following new Clause—“Change in gender recorded in relevant police register(1) A condition of the release on licence of perpetrators of criminal conduct of a sexual nature is that criminal justice bodies must take all reasonable steps to identify and record any change of legal gender by such perpetrators at the point at which they are released on licence.(2) Criminal justice bodies must ensure the sexual offences register and police database record accurate name and birth sex information for perpetrators of criminal conduct of a sexual nature at the point at which the perpetrator is released on licence.

My Lords, I dedicate this speech to Lord Cormack because, the last time I spoke to him, we discussed this very issue. I make no claim that he would agree with me; it is just that, as was his wont, he was very supportive of me tabling this amendment. I acknowledge that he did not agree with me on many things but he was still a great Peer.

Amendment 148E looks at identity changes and recording on registers. On the front page of Scottish newspapers over the weekend was the story of Marc Sherland, the head of the Robert Burns World Federation, who has been unmasked as a convicted sex offender who abused two boys in the past. He exploited a legal loophole that meant that Douglas Hammond, which was his name when he committed earlier offences, could change his name to get the job. Chillingly, his role at the federation allowed him access to children.

Thankfully, instances of sexual offenders changing their name to escape their past are being tackled, not least by the efforts of campaigners for Della’s law, named after six year-old Della Wright, who was raped by a man who had legally changed his name five times. I am glad that the Government have endorsed amendments to the Criminal Justice Bill that will block offenders from, for example, using deed poll to obtain a new identity.

I particularly congratulate the honourable Labour MP Ruth Jones, whose Private Member’s Bill, the Community and Suspended Sentences (Notification of Details) Bill, passed its Second Reading in the other place only on Friday, 23 February. I congratulate the Government on signalling their support for that Bill. It is designed to tackle the hundreds of sex offenders across the UK who slip off the radar because they lawfully change their names and then apply for fresh identity documents, allowing them to escape the authorities and their past and, potentially, to secure jobs working with children.

Now, you might say that, because of the Private Member’s Bill that I just mentioned and the Government’s support for it, which deal with my worries, there is really no need for my amendment. However, we are told that the Bill will mean that all offenders will have to notify their probation officers and others about any name changes, online aliases or changes in contact details when, actually, perhaps not all offenders are covered by this. My amendment probes another loophole that seems to have gone beneath the radar. I hope that the Minister will address this—I do not necessarily mean this evening, but before we get to Report.

The new arrangements that I have discussed are about not allowing sex offenders simply to change their identity to escape their past crimes. Offenders will not simply be able to change their identity on official documents. This is true for everyone, except for when a little-known exemption applies. It relates to a sensitive applications clause that applies to those who have changed their identity not simply via deed poll but via transitioning gender. This sensitivity clause can be utilised by convicted male sex offenders who change gender after committing a crime, once they are incarcerated.

I discovered this loophole from a bizarre tale that ended up being rather personal to me. Ceri-Lee Galvin is now a delightful 25 year-old mum who is training to be a paramedic, but she had a traumatic, hellish childhood. From the age of eight, she was sexually abused and raped by her own father, Clive Bundy. This horrendous ordeal went on for eight years until, eventually, in 2016, Bundy was arrested and sent to prison for 15 years. Having served only half of his sentence, Bundy was released on licence less than a year ago.

Whatever the rights and wrongs of this seemingly early release—I think it was unseemly that Bundy was released so early—one would think, after his release had been agreed, that at least Clive Bundy would be in clear sight of the relevant criminal justice agencies for protection and safeguarding. But there is a catch. Two years prior to Clive Bundy’s release, he declared himself a woman and changed his name to—wait for it—Claire Fox. For those of you who know me only as the noble Baroness, Lady Fox, my name is Claire Fox, so I noticed when I heard this story.

Think about what that means. A “Clive Bundy” might well be on the sex offenders register, but Clive Bundy does not exist anymore—Clive Bundy is Claire Fox. Clive Bundy was not let out of prison early on licence—Claire Fox was. What is more, the proposed new changes on restricting identity and name change via deed poll, which I have already discussed, will not apply to Clive Bundy, because when someone changes gender as part of changing their identity—it makes no difference whether that is achieved by self-declaration or in accordance with the provisions of the Gender Recognition Act—they are afforded an extraordinary, enhanced right to privacy, wholly unlike those granted to any other individual.

These special protections, given to them by the state, represent a concrete safeguarding risk. It means that a loophole has been created, whereby an individual is able to conceal their past identity for the purposes of, for example, the Disclosure and Barring Service checking processes. An individual such as Clive Bundy can request, based on this special category of privacy, that his past identity or name is not displayed. I am confusing myself, because it is not Clive Bundy who can request that but Claire Fox. Claire Fox can say, “I don’t want the name Clive Bundy to be displayed on any DBS certificate issued to me—my name is Claire Fox”.

A prospective employer is not entitled to know whether a candidate has used this sensitivity clause to cover up who they are. I remind noble Lords that DBS checks are supposed to play an important role in safeguarding, by helping organisations make safer recruitment decisions. They are designed to deter unsuitable people from applying to work with vulnerable groups, and to assist organisations in identifying and rejecting such people. But organisations are able to rely on the DBS checking process only to the extent that checking systems are robust, and that the information displayed on DBS certificates is both accurate and complete. Thanks to the work of people such as Kate Coleman and the campaign group Keep Prisons Single Sex, or KPSS, we now know that these sensitive application loopholes mean that organisations have no way of knowing whether information displayed on DBS certificates presented to them is an accurate or complete record concerning any individual.

Think about what that means for Ceri-Lee and her paedophile father. Since his release, Clive Bundy—Claire Fox—has gone to live in the same town as his daughter. That means that he could apply for jobs locally working with children, even with Ceri-Lee’s own daughter, and his past would be hidden. It is worth noting that, due to the special privacy rights afforded to Bundy, the victim, Ceri-Lee, had no right to know about Clive’s gender transition and found out only when Bundy gave permission for the information to be passed on via Ceri-Lee’s victim liaison officer—part of what writer and activist Julie Bindel described as an example of “coercive and controlling tactics”.

The key issue is that there is no legal requirement for a victim to be warned. Ceri-Lee would not have had any idea that Clive Bundy had been erased and that the new person who had entered the town—Claire Fox—was in fact her father. Therefore, there would have been no alert given to the family children if they were being shown attention by a local employee called Claire. I stress the familial connections point because, grossly, Clive Bundy’s argument at the Parole Board as to why he did not represent a threat to wider society was that his incestuous abuse had been kept within the family. Think about that as a sick retort.

In rounding off my remarks, I am keen that your Lordships note that this amendment is driven by Ceri-Lee’s experience, rather than my own views on gender identity, which I know not all noble Lords will agree with me on. Ceri-Lee is not involved in gender politics. She got dragged into this by her paedophile rapist, noting that:

“My father wasn’t dysphoric about his male genitals when he was abusing me”.

In a way, I have been dragged into this issue by Clive Bundy using my name. When the story was first made public in the other place, and then in the press, I was mortified and wished it would go away. It was so embarrassing to have my name being sullied by such an association with a perpetrator. But when I thought about it, and heard that Ceri-Lee had broken her own anonymity, it gave me a jolt. She appealed to those of us with influence to help her expose the loophole that could allow dangerous sexual predators to evade detection and potentially target other child victims, perhaps in female-only settings. Ceri-Lee knows that it is too late in her case, but it does not have to be for others. I hope, therefore, that we can perhaps create a “Ceri-Lee’s law”.

My Lords, the noble Baroness, Lady Fox, started her speech by talking about sex offenders changing their names frequently, and there is no doubt that this happens. I will come on to explain why I think that there is help in that. However, her amendment seems to be intending to strengthen identification of individuals on licence who have a different gender assignment from that given at birth. It implies a perceived need to know that person’s birth gender, legal gender and legal identity, and that they are relevant to the prevention of a sex crime. This is, as I think the noble Baroness is aware, highly contentious and a sensitive topic, with implications for the equality, dignity and fair treatment of transgender people.

His Majesty’s Prison Service estimates that there are approximately 2.9 transgender prisoners per 1,000 in custody. There were 281 prisoners living or presenting in a gender identity different from their birth sex as of 31 March last year. At the same time, the number of prisoners with a gender recognition certificate was only 13. HMPPS already has robust arrangements in place for identifying individuals who have undergone gender change at the point of entry to custody. That is because there are already rules inside prisons for making sure that there are no risks to the prison population—or indeed to those who have changed their gender, who sometimes are attacked as well.

Nevertheless, even if an individual somehow managed to slip through the net, establishing it would require staff checking the legal gender of every person convicted of a sex event who was released from prison—effectively trying to prove that they do not have a GRC by asking the gender recognition panel. Proposed new subsection 2 of the noble Baroness’s amendment is about the database recording absolutely everybody who has committed a sexual offence in their gender at birth. Data published on 31 December last year shows there were 14,152 people serving a sentence in prison for a sex offence. I wonder whether the Minister cares to hazard a guess at how much time would be spent if HMPPS and the GRC trawled through that lot. HMPPS is required to accurately record a person’s legal gender upon entry to custody, and the policy states that, where legal gender has not been confirmed, efforts to establish legal gender must be recorded separately when different—so both are still recorded.

Furthermore, I remember that during the course of the then Police, Crime, Sentencing and Courts Bill in 2021, the noble Baroness, Lady Williams, on behalf of the Government, said:

“There are no other instances across government where there is a mandatory requirement to record both a person’s sex as registered at birth as well as their acquired gender, if that is applicable. The Office for Statistics Regulation is clear that it is for each department to decide when and how it collects data, including data on both sex and gender.

We have already stated that we do not plan to require biological sex to be recorded across the criminal justice system in our response to a recent petition calling for the biological sex of violent and sexual offenders to be so recorded”.—[Official Report, 22/11/21; col. 724.]

Given that, and given the protections that the Prison Service must follow through with every transgender prisoner, I wonder if there is actually a real reason for the need for this amendment. I appreciate the tale that the noble Baroness, Lady Fox, gave us from the individual, but I am not sure that what she requires in this amendment would actually help the victim in this case.

My Lords, I echo the worry of the noble Baroness, Lady Brinton, about this, partly exactly because it may not solve the victim’s problem that the noble Baroness, Lady Fox, outlined in proposing this amendment. We have also talked a lot about the unevenness of the criminal justice system’s data collection and everything else; I wonder how on earth it would do this, to solve what is probably a very small problem—but a challenge, absolutely—and whether there may be another way of resolving it. I look forward to the Minister’s remarks.

My Lords, I am grateful to the noble Baroness, Lady Fox, for explaining the background to her amendment. It would require by law that the criminal justice agencies—the police, prisons and probation—identify and record any change of gender identity by a sex offender as a condition of their release on licence. It would also require the police to record the offender’s name and birth sex as a condition of their release on licence.

It may help if I outline the measures we already have in place, which I think address the spirit of this amendment. Part 2 of the Sexual Offences Act 2003 requires sex offenders who have been convicted of an offence in Schedule 3 to that Act to notify the police of their personal details annually and whenever they change. Those details include information such as names, including aliases, and addresses. They also include details of activity such as foreign travel and residence in a household with children.

Sex offenders subject to the notification requirements in Part 2 of the 2003 Act are managed under the Multi Agency Public Protection Arrangements. MAPPA is a statutory arrangement, through which the responsible authority—the police, prisons and probation—work together and with other agencies to discharge a statutory duty to co-operate, to assess and manage the risk posed by registered sex offenders and others living in the community.

In February 2023, the Ministry of Justice and His Majesty’s Prison and Probation Service created a presumption that all transgender female prisoners, whether they have a gender recognition certificate or not, would not be held in the general women’s prison estate. The Prison Service is able to verify, with the gender recognition panel, whether an offender has a gender recognition certificate. Any difference between an offender’s birth sex and assumed gender will therefore be recorded and made known to the probation and police services through their co-operation under MAPPA.

The MAPPA responsible authorities use the VISOR database to share information about registered sex offenders. VISOR enables the recording of sex, gender identity and gender presentation. An offender’s legal sex will be changed on VISOR only if they have provided a GRC to the police, probation or prison service. However, MAPPA agencies are still able to have regard to an offender’s change of gender where it is necessary to manage their risk, or prevent or detect crime.

While Section 22 of the Gender Recognition Act 2004 makes it an offence to disclose information about an individual’s application for a gender recognition certificate, there is an exemption for this where disclosure is necessary to prevent or detect crime. Accordingly, should the police or any of the other responsible authorities require information about an offender’s application for a gender recognition certificate, this can be obtained by working with relevant “duty to co-operate” bodies, such as medical professionals.

I hope that the noble Baroness, Lady Fox, will find this information helpful. While I am of course willing to write to her if I have not picked up any subtleties of the points she raised, I hope she will feel comfortable at this stage in withdrawing her amendment.

My Lords, I thank noble Lords for the responses I have received. I will take what the Minister has said, and look at it myself, and maybe we can both clarify whether we have missed anything. I do not want to delay us too long now. I will say to the noble Baronesses, Lady Thornton and Lady Brinton, that if the wording of this amendment will not correctly pick up the problem I have identified, I would be happy to take their advice on how to improve it.

I think that a genuine loophole does exist, however. I was a bit concerned when the response seemed to be to suggest that there would be a lot of work involved in solving a small problem. I have listened to such passionate speeches from the noble Baronesses, Lady Brinton and Lady Thornton, about threats to women and girls, from stalking in particular, and about the importance of child protection and so on; I would have thought that they would have grabbed any opportunity to close down a loophole on safeguarding. I hope they will work with me.

The loophole in general of sex offenders changing identity has been identified by the Labour MP and backed by the Government. I have simply drawn attention to a loophole within that loophole that was being closed. I have used particularly the examples of DBS checks. They are very important; I have always thought that the Government went slightly over the top with DBS checks for people volunteering with the Brownies or what have you in the past but, if you are going to have them, you need to be able to rely on them. When the Minister gave his assurances, I did not feel they would capture the DBS point. That is what I have tried to do in the amendment. It will be improved; I will be back on Report. In the meantime, I withdraw the amendment—and I am glad that people appreciated the spirit of it.

Amendment 148E withdrawn.

House resumed.