A bill to ban conversion practices failed to move through Parliament on Friday, after a debate on it ran out of time. I was not called to speak in the time that we had but I was sitting in the Chamber for the duration of the debate, listening closely to the contributions of my colleagues across the House.
Over almost five hours, evidence of abuse, what a ban was aimed at - and who was exempt - were set out. There was time also for these points to be challenged, to identify contradictions, legal concerns - and also to discern and surface ideological underpinnings.
You can watch my intervention here and read my speech below:
I would like to start by thanking the Hon Member for Brighton Kemptown for bringing this matter before the House.
These sentiments are genuine. The debate has achieved much today and certainly increased my understanding of the bill and issues surrounding it.
In particular I cannot help but think that it has succeeded in surfacing the many issues which exist around the bill and explains in part, I suspect, why there has been a delay in the government bringing forward robust legislation. We have also heard how legislation in other jursidictions has not been robust – for reasons I will come onto – and the difficulties that has caused subsequently.
Madam Deputy Speaker –
I would also like to thank my colleagues (across the House) who have contributed to the debate so far.
As I mentioned, I have learned much from this debate. Not least from the Honourable Member for Kirkcaldy and Cowdenbeath who set out his arguments from a very different perspective, that of a gay man, to my own. I also thought it helpful and highly pertinent to surface the influence of Queer Theory on this entire debate. This is highly damaging to much we value, way beyond this bill, and a reason in itself we should look very, very carefully at what is proposed.
Such contributions have helped put on record the real concerns and issues – the dangers even – associated with a Bill like the one before us.
Madam Deputy Speaker –
By way of introduction, lived experience is often raised as a touchstone of truth in debates such as these.
It is right that it is included. Perceptions will have the appearance of reality for many. They have legitimacy. Their voice has a place in our democracy and theirs is the freedom to express it.
However, I have also spoken about the limitations of such an understanding of truth. I refer interested members to my contribution in the Westminster Hall Debate on RSE materials of June 2022.
An existential view of truth – based on experience and personal perspective is limiting and can eventually be consuming and destructive. Failing in its own stated objectives. Not my conclusion but the conclusion of philosophers. Now that is advice and learning we must give credibility to – just as we would listen to experience lived today.
What then the place of experience? I should share my own.
In Wales the curriculum mandates a discussion of identity. Indeed “RSE” in Wales refers to Relationship and Sexuality Education. So it is no surprise that I have met with young people in Aberconwy and heard from them about their concerns for the identity of themselves, their siblings their friends and others. I have been interrogated closely by them on points of law, including the matter of conversion therapy.
And I have listened to parents – sometimes in tears – as they have shared their love for their children and their feelings of powerlessness as they see their child wrestle with these questions.
As they see them making harmful decisions, on the advice and with the encouragement of others, outside the family.
I have also heard from teachers – confused, fearful, lacking support and guidance – on these critical matters. Asked to make judgments that are beyond them. Judgments perhaps only possible with psychological expertise.
And I have heard from governors motivated to make a difference within their community but who feel they have suddenly been engulfed in a storm of challenges and questions they had thought were settled.
And I have received emails from residents who have expressed views about what they see in society and their concerns for the influence on law making. Some believe we do in fact need a ban on so-called conversion practices, while others have expressed their fears around what a ban could mean for their rights and freedoms as parents, teachers and clinicians.
One thing has been clear throughout all these conversations, however – something I have made clear each time. As legislators, we are expected to understand what constitutes ‘good law’ and to legislate accordingly.
But what makes a law ‘good’?
Madame Deputy Speaker –
That is where I want to direct the bulk of my remarks today.
The Office of Parliamentary Counsel has previously described ‘good law’ as law that is “necessary, effective, clear, coherent and accessible”.
Now I have had the privilege of introducing my own Private Members Bill. I think I have some understanding of the complexities and intricacies involved in the law-making process therefore. And I commend the hon member for Brighton Kemptown for the work I know he has put into this.
It is not an easy task by any means. It involves a lot of time and consideration. Consultation with all sorts of stakeholders – after they have been identified. And those that they also say should be consulted. The circle is ever expanding.
Just when you think progress is being made a new issue is uncovered. Discovery, consideration and careful thought are all required. And they take time and effort. (As an aside while I therefore accept the claim made by the Hon Member for Brighton and Kemptown that this is a “uniquely crafted” bill, I cannot reconcile that with the claim that, for the purpose of understanding relevance of the CHR, it is “the same” as laws in other jurisdictions of the EU.)
And why? We must not take for granted – or forget – that the decisions made here, and printed in black and white behind the scenes, have real implications for people across the country, for better or for worse.
It is for this reason that I have previously said that good law cannot be pushed through or made in secret, and it must be open to careful scrutiny.
So after four years of speaking with constituents in Aberconwy and my colleagues here in Westminster on a wide range of issues and being involved in the process of drafting legislation, I have come to settle on three tests that I must satisfy to ensure whether a bill before me is has the characteristic of good law.
Simply it must be necessary or sufficient for its intended purpose, evidenced and deliverable.
Now I am most certainly not a legal expert or scholar, I am an engineer and a law maker. Both use a practical lens and so I make no apology for that.
These three qualities are obviously linked but I will use these measures now to offer comments on the Bill put before us today.
Madam Deputy Speaker,
The first test then for any proposed legislation is to demonstrate that it is “necessary” or sufficient for its intended purpose.
First in that it should prevent a particular crime from occurring. It should not create a new class of harm where there is none.
Clause 1(1) identifies the “offence”. Yet strangely it contains no reference to harm or abuse. In other words a very wide range of possible activity falls within its scope.
Clause 1(2) inevitably and necessarily then seeks to create ‘carve outs’. This reflects legitimate cause for people – parents, medical practitioners and others – to discuss and consider the behaviour and feelings of others. The list of attempted exclusions from the offence, includes for expression of religious beliefs and for parents. These are also necessarily broad. But are they sufficient to mitigate the sweeping scope of activity encompassed in Clause 1(1)? I think not.
There are also some inconsistencies (contradictions even). The attempt to carve out religious belief in Clause 1(2)(a) creates a circular logic. It states that no offence is committed where “a person expresses a religious or other belief, provided that it is not directed to an individual as part of a conversion practice”. This effectively says that the expression of religious belief is not a conversion practice when it is not a conversion practice.
Second in that a law it should not duplicate measures for an existing class of harm.
Advocates for a ban on conversion practices regularly cite a breadth of distressing crimes, including corrective rape and electroshock therapy, when seeking to justify a change in the law. I will come to the matter of evidence in a moment.
We are extremely privileged to live in a country, however, that has laws which criminalise ‘hate’, discrimination and abuse in their various guises. From coercive or controlling behaviour to physical and sexual violence, the police and judiciary already have powers in place to ensure that minority groups are protected and that perpetrators against them are successfully prosecuted.
Whether or not these laws are effective is its own topic of debate entirely – or indeed the preventative effect of the law to the hardened criminal – but it is important to recognise that these laws are currently in place.
If then, new legislation is intended to fill potential gaps within existing law, we are posed with several questions when establishing if such a gap does exist and if it needs filling – what are conversion practices? Where are they happening? And how often?
An agreed definition then is vital – central even – to this legislation and so far it has proved elusive.
Madam Deputy Speaker,
Second to the point of evidence. On what basis is the bill and the measures it contains being brought before us?
Now I concur with the Hon Member for Carshalton and Wallington on the importance of evidence. However he must see the logical fallacy of gathering evidence against no definition in order to assert a definition. There may be an argument for reconsulting on the basis of a definition but his reasoning that this can be developed at the next (Committee) stage does not persuade me. I do not think he will find evidence of the kind needed in a Committee Room full of MPs.
First then in considering evidence, it would be remiss of us not to consider the body of evidence that has been used as justification for this Bill in assessing its effectiveness as a piece of draft legislation.
Constituents emailing me about this have often cited the National LGBT Survey from 2017. This survey purported to show that 2.4% of LGBT people had undergone some form of conversion therapy, with a further 5% people being offered conversion therapy. 51% of those who received conversion therapy said it had been conducted by faith groups and 19% by healthcare providers or medical professionals. The statistics were slightly higher for those identifying as transgender in Wales.
At first glance, these data may be alarming.
However, no definition was given of ‘conversion therapy’ within the survey. The questions simply asked whether the respondents had ever had or been offered so-called ‘conversion’ therapy in an attempt to ‘cure them of being LGBT’. Respondents were left to interpret the terms for themselves and were not asked to state when or where they had undergone these undefined practices. As the Government-commissioned research found: “respondents will have responded with their own view of what they consider to be conversion therapy”.
Despite this, the survey concluded that conversion practices “can range from pseudo-psychological treatments to, in extreme cases, surgical interventions and ‘corrective’ rape.”
It remains unclear on what basis this claim is made and if it is actually true.
Even more concerningly, the survey sample was self-selected. As the Government’s research concluded: “there is no representative data on the extent of conversion therapy in the UK”.
There are many other surveys – including the government’s own, oft-cited “Coventry Study” – however they all have common weaknesses or limitations: self-selection of respondents, a lack of definition and ambiguity or lack of clarity about the nature of the coercion or abuse experienced.
Indeed the twenty year review cited by the Hon Member for Carshalton and Wallington found only “five articles that specifically express conversion therapy to change gender identity.” Of these only four were found to have useful data and two drew on the same dataset. The accompanying qualitative study had a sample of just six transgender and non-binary interviewees, two of whom reported seeing a psychiatrist for serious co-morbidities. The report further concedes “relatively little evidence in gender identity change effort”.
I will also mention, the often-cited “Faith and Sexuality Survey” from the Ozanne Foundation in 2018 which is also frequently mentioned in this debate. The sample for this was also self-selected and included a broad definition of conversion therapy which also included ‘private prayer’ and ‘prayer with close friends’.
But, as the organisation Sex Matters has articulated: “it is hard to see how the government could step in to dictate a person’s religious beliefs about the nature of sin, or the attitude of their family towards sexual ethics or their gender identity. These are personal stories of spiritual turmoil, not evidence of abusive practices”.
This I find compelling because it characterises so much of the conversations I have had and referenced at the start of my remarks.
More recent anecdotal evidence of conversion practices tends to involve opposition towards traditional religious teachings.
This may necessitate theological debate – and careful treatment of cultural habits, norms and practices – however, it need not result in legislative reform. And I would argue that that kind of conversation ought not to happen first and principally on the floor of this House.
Second it is important in debate that we are accurate.
For example a claim has been made here today that the Cass Review and interim findings should not be used. However it is useful to weigh these claims against the terms of the review – which exclude legislation. And the conclusions which does stress the “paramount importance” of legislation for building the confidence of clinicians working in this area.
Simply then without knowing what was being described as conversion therapy within these studies, we cannot determine if it was covered by existing legislation and, if it was not, whether it ought to be legislated against.
Madam Deputy Speaker,
This brings me to my third point - is this Bill deliverable?
Now I do want to acknowledge at this point that the Bill before us references “conversion practices” but these have been principally historical references. I welcome that change but do not see it has removed the concerns above, effectively.
Conversion practices remain loosely defined under Clause 4 of this bill. We are still left unable to ascertain the nature and scope of the issue that it claims to solve.
Courts typically assess words or actions against a clearly determined threshold of harmful criminal behaviour. Indeed, it is a long-standing requirement in British common law that there is certainty in criminal law so that people know how to modify their behaviour to avoid prosecution. The Bill does not offer such certainty.
As it currently stands, there is no distinction between consensual and non-consensual behaviour, - surely an essential differentiation?
Nor does the Bill require proof that any harm was intended or caused by the conduct. Such questions of motive and intent are a key part of the deliberations of any judge.
Instead, the offence focuses on intuiting the accused’s thoughts: the “predetermined purpose and intent” to “change” or “suppress” someone’s sexual orientation or transgender identity. Any verbal expression of caution or criticism, no matter how reasonable or compassionate in its delivery, could risk constituting a crime.
There is also no explanation of how the “predetermined purpose” of the practice would be determined. And by using both ‘change’ and ‘suppress’, the Bill mimics the Change or Suppression (Conversion) Practices Prohibition Act 2021 in the Australian state of Victoria.
The Victoria Equalities Commission said a parent “refusing to support their child’s request” for puberty blockers was illegal – until it was recently forced to remove the claim following a backlash.
This would be deeply alarming for many parents in my constituency to learn. The fact the Victoria Equalities Commission could suggest this highlights the breadth and vagueness of the term ‘suppress’.
Madam Deputy Speaker –
If we cannot clearly or coherently define what constitutes a legitimate ‘conversion practice’, and what does not, how are enforcers of the law (the police) expected to respond to reports of it?
Laws, and changes to them, are most effective when they are targeted – they cannot operate in grey areas. There are several examples of where ‘grey areas’ have caused police officers to misuse their policing powers. Street preachers have been wrongfully arrested under section 5 of the Public Order Act 1986 for words which allegedly caused harassment, alarm or distress but instead constituted a legitimate exercise of their freedom of speech and religion. I will make the point again, the law – and misuses of it – have implications for real people.
Now the points have already been made by the Hon Member for Kirkcaldy and Cowdenbeath on the Equality and Human Rights Commission which has urged care in the drafting of legislation banning conversion practices – clear definitions and language are key to this.
In response to a government consultation in 2021, the EHRC advised: “The legislation must be carefully drafted in order not to catch legitimate and appropriate counselling, therapy or support which enables a person to explore their sexual orientation or gender dysphoria, and to avoid criminalising mainstream religious practice such as preaching, teaching and praying about sexual ethics”.
Vague definitions, a lack of clarity and confused language all have the potential to undermine the deliverability of a bill, much like we see here. This Bill does not given due regard to its use of the term ‘conversion practice’ and therefore encompasses a range of legitimate behaviours which could be unduly criminalised.
Jason Coppel KC’s legal analysis is more stark: “It is very difficult to see how the wide ranging interference with fundamental rights contemplated by the bill could be justified… it would criminalise expressions of personal conviction even if they are made without expression of hatred or intolerance or improper purpose or coercion or abuse of power.”
In other words, unworkable and non-compliant with established human rights.
With all of this said, Madam Deputy Speaker, the Bill leaves us with more questions than it answers.
My concern is that we have a bill before us that is poorly evidenced, unnecessary and which cannot, therefore, be delivered effectively. It is simply not good law. The base offence is too low a threshold. In focussing on beliefs and intentions, it risks creating a thought crime. These are beyond simple amendment.
Allowing it to progress today risks it making its way into the statute books and negatively affecting families, professionals and religious groups across Aberconwy.
Madame Deputy Speaker -
In my opening remarks I said I would mention the state of affairs in Wales.
This time last year the Labour government in Wales committed to a full ban on ‘all aspects’ of conversion practices in their LGBTQ+ Action Plan.
As this area of law remains reserved to the UK government, the government in Cardiff would have to seek the relevant powers to achieve this. Many of my residents were relieved to learn that additional powers would not be devolved to the Welsh government for such a ban to be put in place.
But now this legislation is being proposed in this House. And I continue to hear from constituents in my inbox and on the doorstep about their concerns of what this kind of legislation would mean for their rights and freedoms as clinicians, teachers and parents –my speech today is a reflection of their concerns and my own.
In closing I will draw on the remarks I made at the beginning of my speech. As legislators, we are elected to make good law. Ever before the lawmaker dangles the temptation to rush, to please, to declare sides – ever behind the force of good intention.
Yet, in our eagerness to be at the vanguard of history, we risk undermining the immense burden of responsibility with which the public has entrusted us. To exercise the powers, we have without evidenced justification, and without a clear idea of its necessity and intended target, is to betray our voters and the positions we hold.
It is for this reason, that I urge all members to vote against this bill.