Legal Analysis of the Commons PMB on Conversion Practices

A criminal law analysis of issues with the draft bill

LEGAL ANALYSIS FOR GAY MEN’S NETWORK IN RESPECT OF THE CONVERSION PRACTCES (PROHIBITION) BILL

23^rd FEBRUARY 2024

Introduction and remit

1.      The non-for-profit group Gay Men’s Network (“GMN”) seeks a legal analysis of a private member’s bill entitled the “Conversion Practices (Prohibition) Bill” (“CPPB”) which is being moved by Brighton Kemptown Labour MP Lloyd Russell-Moyle. The draft bill is available online[1] and this analysis is based on version 7 of the bill published on 23.02.2024, the text of which is appended at Annex A to this analysis.  

2.      The wider political debate around conversion practice legislation variously involves questions as to the necessity of such legislation and its practical political/social and clinical consequences. While such matters are touched on herein, this analysis is principally legal in nature and specifically directed to the efficacy of the bill as a working criminal statute particularly as against the relevant human rights concerns in this area.

Introductory analysis of the bill as a criminal statute

3.      Outside of classic criminal offences (such as gross negligence manslaughter[2]), it is unusual for criminal liability to be countenanced by legislators for clinical, familial or social interactions without demonstrable clear harm and a consensus around that harm (see, for example the Female Genital Mutilation Act 2003). Criminal statutes ordinarily feature a higher harm threshold beyond the sort of conduct that would be dealt with via a professional regulator. Such statutes are also ordinarily drafted with Human Rights obligations in mind and the risk of a party seeking a “declaration of incompatibility” from the High Court via s.4 of the Human Rights Act 1998. The creation of criminal statutes is one of the most serious and important matters legislators deal with, for this reason criminal offences (and defences) are overwhelmingly contained in statute and not secondary legislation such as statutory instruments.

4.      Given the above, the draft bill is an unusual piece of legislation in four respects. First, it exposes a wide range of people in otherwise lawful settings to potential criminal liability. Second, there is no harm requirement at all. Third, it is far from clear how the bill can be reconciled with the following articles 6 (fair trial), 8 (respect for private and family life), 9 (freedom of thought, conscience and religion) and 10 (freedom of expression). The bill contains a wide “Henry VIII” clause which allows a Secretary of State to modify (and therefore delete if he/she wishes) the proposed “carve outs” at clause 1(2). This represents a highly unusual and undesirable transfer of power from the legislature to the executive in the formation of a criminal offence.  

5.      While the bill contains a series of “carve outs” at clause 1(2) which attempt to deal with the third issue of human rights, as drafted these are unconvincing, and in some cases circular or otherwise ineffective.   

Analysis of the core offence

6.      The conversion practice offence is defined in three separate locations: clause 1(1) (the offence itself), clause 4 (interpretations) and the Sentencing Act of 2020 (interpretations of certain words). This is an unusual arrangement for any criminal offence. Criminal statutes will tend to define an offence in a single section, while interpretations sections can feature definitions of core terms (such as in the Protection from Harassment Act 1997), it is unusual for a criminal statute to deploy a term relevant to the sentencing process. This is because finding a fact on sentence to the criminal standard is a task for the sentencing judge who must justify such a finding in sentencing remarks[3], that is quite different to the purpose of the bill here which is to define a term such that a jury could be adequately and clearly directed on what that particular term means.

7.      Clause 1(1) itself is relatively unproblematic and provides for three modes of criminal liability with disjunctive clauses such that offering or undertaking or taking payment for the relevant matters qualifies as conduct caught by the offence. The only caveat is that clause 1(b) provides any “material, advice or guides” must be produced “to conduct” conversion practices. That is a higher threshold than “in connection with” or “related to” and envisages material capable of being specifically deployed in the conversion practice itself.

The definition of a conversion practice (Clause 1(1) and Clause 4)

8.      A “conversion practice” is defied in clause 4 of the bill in the following terms.

“conversion practice” means a course of conduct or activity, the predetermined purpose and intent of which is to change someone’s sexual orientation or to change a person to or from being transgender, including to suppress a sexual orientation or transgender identity so that the orientation or identity no longer exists in full or in part

This must be read in light of the rest of clause 4 which provides:

“sexual orientation” has the same meaning as in the Sentencing Act 2020,

“transgender” has the same meaning as in the Sentencing Act 2020,  

“transgender identity” has the same meaning as in the Sentencing Act 2020

9.      The definition of “conversion practice” in this bill can be summarised as follow:

(i)                  Only one action is required. The definition states that a conversion practice is a “a course of conduct or activity”. In criminal law and common sense, a “course of conduct” comprises multiple instances of wrongdoing[4]. The wording “course of conduct” is rendered otiose by the words “or activity” because the natural and ordinary meaning of the word activity is a singular occasion, and such a conclusion is reinforced by the use of the word “or” which must mean a concept different to a course of conduct.

(ii)                A defendant must have the requisite “purpose and intent”. The term “intention” is well known and fundamental to criminal law[5] and, in broad terms, it means that a person intends to cause a result if he/she acts in order to bring it about. Important caselaw on the point emphasises that it is also a term not to be confused with the concept of “motive[6]”. “Purpose” is an unusual term to see in a criminal offence and on the face of it close to the concept of motive[7]. It is significant here that intention to carry out a conversion practice is not enough to trigger criminal liability because the term is defined conjunctively alongside “purpose” which suggests a broader motive.

(iii)              One criminalised activity is a conversion practice with the intent and purpose to “change someone’s sexual orientation”. On the face of it these words are unproblematic and might be thought to capture the sorts of classic examples of conversion practices that rightly attract opprobrium such as historic torture adjacent examples like corrective rape or electroshock aversion “therapy”. There is however a difficulty here because clause 4 says the term “sexual orientation” has the same meaning as in the Sentencing Act 2020. This can only be a reference to section 66 of the Sentencing Act which provides at s.66 (1) than an offence on sentence may be aggravated by “hostility related to sexual orientation”. Crucially, s.66 does not define the term “sexual orientation”[8]. This means a key term in this bill is left undefined.

(iv)              Clause 4 and 1(2) criminalises an activity, the purpose and intent of which is “to change a person to or from being transgender”. It further provides that the word “transgender” has the same meaning as in the Sentencing Act 2020. In this case the sentencing act does define the term “being transgender” as follows, “references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment[9]”. In the context of the Equality Act 2010 this is generally regarded as a wide protected characteristic because it encompasses those who “propose” the relevant process. That width presents issues in criminal law thus. A child might contact a message board or helpline with a firm proposal such that they meet the definition of “being transgender” under the bill by virtue of their proposal. This raises the problem of a counsellor, volunteer or similar now facing potential criminal liability should they engage in any activity, the purpose and intent of which is to dissuade or question that proposal. An example might be a counsellor who formed the view that co-morbidity issues and diagnostic overshadowing were relevant factors. Conversely, this clause will trigger criminal liability only where a victim “proposes” to “undergo a process or part of a process”. This would render criminal liability contingent on a “proposal” (rather than a standard criminal law harm requirement) which in some cases could  be no more than a self-reported phenomenon and could conceivably be short lived, insincere or in the case of a young person, an expression of a transient identity. It therefore means the net of criminal liability would be cast widely potentially across both sides of the gender debate. Thus, a gender identity ideology supporting charity with a forum notice board with active moderators or a counsellor adopting an exploratory therapy method might both be at risk for variously cultivating or questioning a “proposal”. This is a very wide approach to criminal liability.

(v)                Clause 4 and 1(1) criminalise actions including those which amount to suppression. The term suppression is a wide one and in comparative Scottish proposed legislation it is specifically said that it is intended as such:

“In this context we define suppression, as acts that seek to repress, and/or prevent the development or manifestation of another person’s sexual orientation or gender identity. Repress means to prevent or subdue something (often through force). Manifest means to show, through acts or appearance.

50. Some examples of the types of acts that could be motivated by an intention to suppress another person’s sexual orientation or gender identity are:

·         prescribing medication to suppress a person’s sex drive

·         therapy or counselling that requires a person not to act on their same-sex attraction, including through celibacy

·         controlling a person’s appearance (e.g. clothes, make-up, hairstyle)

·         restricting where a person goes and who they see”

The four examples cited in the Scottish consultation provide an indication of just how wide the term “supress” reaches in practice[10]. The following points are noteworthy:

·         “Prescribing medication to suppress a person’s sex drive” could in theory criminalise all prescription of puberty blockers and cross sex hormones (where the purpose and intent of which was to supress a sexual orientation). Though please note, as sexual orientation is not defined and the meaning of legal sex in law is currently being appealed to the supreme court, it is unclear what “sexual orientation” might mean.  

·         Criminalising an activity “that requires a person not to act on their same-sex attraction, including through celibacy” would render some mainstream religious teaching unlawful.

·         Criminalising “controlling a person’s appearance (e.g. clothes, make-up, hairstyle)” and ““restricting where a person goes and who they see” would represent a fundamental state interference with private and family life so far as children and young people are concerned contrary to Article 8 of the EHRC.

Given GMN’s principal area of concern is the high incidents of same sex attracted youth presenting at gender clinics and failures of those services to adequately guard against institutional homophobia, it is relevant here to remark that this definition of suppression would criminalise Dr. Hilary Cass’s interim report advice to the effect that “social transitioning is not a neutral act”. By this definition of suppression, this would amount to controlling an appearance or supressing the manifestation of an identity.

(vi)              Clause 4 states that the term “transgender identity” has the same meaning as that contained in the Sentencing Act 2020. The Sentencing Act contains no definition of this term. As such the draft bill contains a serious and potentially dangerous lacuna. Attempts to define “identity” in law, and particularly criminal law, are fraught with difficulty because the concept of identity is a self-reported phenomenon that cannot be tested in evidence. The comparable Scottish Government proposed legislation has been widely criticised on this basis, the relevant consultation offers this definition (emphasis added):

“Gender Identity: an individual’s personal sense of being or belonging to a particular gender or genders, or of not having a gender.”

This presents fundamental difficulties in criminal law as regards Article 6, the right to a fair trial for a number of reasons. In the first place, it is settled law that a person has a protected characteristic where they reject gender identity ideology and reject the notion that “gender identity” (or here the same concept “transgender identity) exists[11]. It would be a striking and exceptional anomaly to have the right in a civil court to reject the notion that such an identity exists but not have the equivalent right when at jeopardy of conviction and punishment in a criminal court. This would be a highly unusual and reverse state of affairs because protections in criminal courts (given the risk of adverse consequences) are ordinarily higher.

(vii)            In the second place Article 6 provides[12] (so far as is relevant/emphasis added):

“Right to a fair trial

1             In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law……

                                                …..

Any bill criminalising an activity, the purpose and intent of which is to supress a transgender identity presumes (prima facie) such an identity exists or is capable of existing. This is a radical departure in law from the present position in the Equality Act 2010 where such identities are not protected characteristics. Following Forstater, it is also clear that such identities are contentious political concepts. It would therefore be a radical departure in terms of the independence of domestic criminal tribunals to try cases on the basis such identities are capable of existing and impermissibly contravene article 6 by compromising the political character of the court. In requiring a court to embrace a politically contested concept where one side of the debate believes in the existence of that concept and one does not, the court becomes, in effect a religious court siding with those who have such a belief. This poses grave and serious questions regarding Articles 9 (freedom of belief) and 10 (expression).

There are serious practical implications to the inclusion of a contested belief in criminal courts. The following points arise:

(i)                  No juror or Magistrate with the protected characteristic in Forstater could fairly try the proposed offence because they would reject any contention “identity” existed, if such were excluded this would skew the tribunal such that only those believing in the concept of “transgender identity” would be try such cases. That would represent a political selection of a tribunal which is unheard of in law.

(ii)                The Crown at law must prove a case beyond a reasonable doubt/so that a jury is sure. As identity is a self-reported phenomenon, only the evidence of a complainant could directly speak to this fact. The defence would be incapable of challenging this evidence beyond obvious instances of self-contradiction or concession. This is highly unusual. The Defence in a criminal trial are ordinarily entitled to call evidence on “facts in issue” as fairness demands both Crown and Defence have an opportunity to be heard on the relevant matters.

(iii)              It is unclear whether the Defence might be entitled to call evidence to suggest that “transgender identity” exists or not. If the Defence were so permitted, and called, for example, gender critical authors or thinkers, the jury would be left with the political question as to whether the contested concept were proved. If the Defence were not so allowed, the court would, in effect, be directing the Defence that belief in gender identity ideology was mandatory (and if so the Defendant themselves would be prevented from giving evidence on the point according to the principles of relevance). Both are highly unusual outcomes in criminal courts.

(iv)              The bill contains no definition of transgender identity at all. That is highly unusual for a criminal offence to feature a contested and key term and not to define it.

The proposed “Carve Outs” at Clause 1(2)

10. Clause 1(2) lists a number of circumstances where a Defendant could rely on a statutory defence to rebut the Prosecution case. These defences reflect areas of concern raised with similar legislation and represent an effort to confine the width of the core offence. While the carve outs make some progress in this area as compared to other similar bills, there are still highly problematic areas, some of which render the carve outs ineffective or limited in scope.

Religion

11. Clause 1(2) (a) provides that a no offence is committed where (emphasis added) “a person expresses a religious or other belief, provided that it is not directed to an individual as part of a conversion practice”. As demonstrated above the concept of a “conversion practice” is a wide one which includes a single activity, the intent and purpose of which is to supress a particular status. A religious instruction to abstain from sexual activity will meet this definition, because it will by its very nature likely qualify as an instance of suppression. This clause amounts to the elision of church and state with the balance tipped in the state’s favour which by this legislation would prescribe what can and cannot be taught as a matter of doctrine.

12. Support from this analysis is found in a similar piece of legislation in Victoria, Australia which prescribes acceptable means of public prayer recently cited by Baroness Foster in the House of Lords debate on a similar bill thus, “The Victoria commission has even issued guidance on how to pray. It says that prayers that talk about a person’s “need to repent” are likely to be illegal”.[13] As groups approaching this matter from a religious standpoint have commented, this is highly unlikely to be considered compliant with basic human rights.

Approval/disapproval

13. Clause 1(2) (b) provides that no offence is committed where “a person expresses to another person their disapproval of, or acceptance of, that person’s sexual orientation or transgender identity or lack thereof”. Acceptance and disapproval are not defined within the bill, and it is very difficult to see how an instance of “acceptance” could possibly meet the definition of a “conversion practice” given that concept is predicated on an intent and purpose to change or supress a status. It is likely the word “acceptance” here is otiose.

14. The word “disapproval” in this defence sits in tension with the word “supress” in the interpretation section. By way of an example, a parent of an autistic child wishes them not to privately source puberty blockers and is prosecuted for an activity which is intended and has the purpose of supressing a transgender identity. At trial, the parent relies on the Clause 1(2) (b) defence and invites the tribunal of fact to acquit on the basis they were simply showing “disapproval”. It is unclear how that fact pattern would be resolved by this draft legislation. Accordingly this defence is vague and potentially either very wide such that it would provide a defence in these circumstances or it is very narrow and would extinguish a parent’s rights in these circumstances. In the latter case, such a situation would raise clear Article 8 issues around the right to respect for private and family life.

Health practitioners – a three-part defence

15. Clause 1 (2) (b) provides that no offence is committed where:

a health practitioner takes an action in the course of providing a health service, provided that—

(i) the health practitioner complies with regulatory and professional standards and considers in their reasonable professional judgement that it is appropriate to take that action, and

(ii) there was no predetermined outcome in terms of sexual orientation or transgender identity or lack of it at the start of any course of treatment

This is a complex defence which consists of three concepts, first the meaning of “health practitioner, second the clause 1 (2) (b) (i) requirement of reasonableness and compliance and third the clause 1 (2) (b) (ii) requirement that there be no predetermined outcome.

Health practitioner defence part 1 – meaning of “health practitioner”

16. Clause 4 of the bill provides that a “Health Practitioner” “a person who is a member of a body overseen or accredited by the Professional Standards Body for Health and Social Care[14]”. The Professional Standards Body for Health and Social Care is an umbrella organisation that oversees the following 10 regulators:

(i)                  The General Medical Council

(ii)                Social Work England

(iii)              General Pharmaceutical Council

(iv)              General Optical Council

(v)                General Dental Council

(vi)              The Nursing and Midwifery Council

(vii)            The Pharmaceutical Council of Northern Ireland

(viii)          The General Osteopathic Council

(ix)              The Heath and Care Professions Council

(x)                The General Chiropractic Council

It is important to note that none of the bodies mentioned here regulate counselling or therapy, while the Health and Care Professions Council (ix above) regulates practitioner psychologists the wider fields of counselling and therapy are not regulated in the UK and would fall outside this defence. That absence presents serious issues in terms of the proposed legislation and places counsellors and therapists at jeopardy of criminal prosecution for actions that meet the low test of a conversion practice.

By way of example, a private counsellor who told a young patient to their professional view was that they were suffering internalised homophobia and manifesting a transgender identity as a result could in theory be prosecuted for a single activity intended and having the purpose of supressing a transgender identity. Given the interim Cass report[15] emphasises the importance of multi-disciplinary intervention, counselling and therapy, it is surprising that such services are placed in jeopardy of criminal prosecution.

Health practitioner defence part 2 – reasonableness and compliance

17. It is a defence for a “Health Practitioner” meeting the definition in part 1 to show that they were complying “with regulatory and professional standards and considers in their reasonable professional judgement that it is appropriate to take that action”. Placing a requirement on a Defendant in a criminal matter is known as a “reverse burden of proof” (because the burden of proof ordinarily rests with the prosecution). Reverse burdens are generally considered undesirable as a matter of principle, though it is correct to say that despite this many offences do impose them. Reverse burdens in crime are discharged by a Defendant if they meet the civil, rather than criminal standard of proof, that is to say a Defendant would succeed in discharging this burden where they can prove that their case is more likely than not (“the balance of probabilities”).

18. In this case a Defendant must show (i) they complied with regulatory and professional standards and (ii) that their judgment was reasonable. In respect of (i) pronounced difficulties are likely to arise as to what qualify as the “appropriate regulatory and professional standards”. In the field of paediatric gender medicine globally there are two competing standards of care which are diametrically opposed in approach. One approach is that of an organisation known as “WPATH” (The World Professional Association for Transgender Health[16]) which promotes a clinical approach known as “affirmation only” whereby a child’s self-diagnosis is determinative of treatment. An example of the contrary approach is found in the NHS England Interim Service Specifications (“NHS ISS”)[17] which promote a clinical approach variously described as “watchful waiting” or “exploratory therapy”.

19. Many private providers in this field follow the WPATH model, NHS practitioners are expected to follow the NHS ISS. The draft bill presently fails to say which standard is intended to ground the Health Practitioner defence. If WPATH service standards constitute a defence, the bill risks entirely undermining the Cass review and thwarting the objective of criminalising a situation in which a young person is subject to a conversion practice whereby cross sex ideation is induced or cultivated. If the NHS ISS service standards are intended to constitute the defence this should be stated in terms, (though it would have the effect of making non-NHS approved practice in this area subject to potential criminal liability, rather than it being a regulatory matter). The second limb of this part of the defence requires that the judgment of the Health Practitioner be reasonable. This is likely to be duplicative and add very little to the first requirement that a Health Practitioner be acting according to regulatory and professional standards.   
 

Health Practitioner Defence Part 3 – no predetermined outcome

20. A Health Practitioner completes this defence where they show, on reverse burden, that “there was no predetermined outcome in terms of sexual orientation or transgender identity or lack of it at the start of any course of treatment”. This is a potentially stringent requirement both in the case of clinicians subscribing to the “affirmation only” approach and those adopting the NHS ISS “watchful waiting” approach. In the former case an adherent to “affirmation only” will conceptualise a child’s self-diagnosis as definitive and seek to accelerate progress onto puberty supressing drugs and cross sex hormones, they will in other words have in mind that predetermined outcome. Conversely, a clinician following the NHS ISS may quickly come to the conclusion that diagnostic overshadowing and comorbidities are at play and have the predetermined outcome of avoiding precisely such a medical pathway.

21. In both cases neither has a defence in criminal law under the Health Practitioner exception. The effect of the section in total is to take a regulatory matter and cast the net of criminal liability over it. This could have the effect of chilling both kinds of practice in an area already well known for patient demand outstripping clinical capacity.

The ”assisting” defence

22. Clause 1(2) (d) provides that no offence is committed where “a person is assisting another person who is undergoing a regulated course of treatment”. The meaning and intention of this defence is not immediately obvious. The bill does not define the meaning of the term “regulated course of treatment” and contrary to the Health Practitioner defence above there is no requirement of being regulated, reasonable judgment and there being no predetermined outcome. It may be this defence is intended to cover parents or those exercising caring responsibilities, but as drafted it is very difficult to discern what this defence means and who it intends to cover.

The “exploring and questioning” defence

23. Clause 1(2) (e) appears to be principally aimed at the fields of counselling and therapy which are not otherwise exempted by the three-part Health Practitioner defence. It goes much wider than counselling and therapy and provides that any person has a defence where they are “facilitating or offering support to a person who is (i) exploring or questioning their sexual orientation or transgender identity or lack thereof, or (ii) seeking to develop coping skills in relation to their sexual orientation or transgender identity or lack thereof. While this defence might appear to meet the concerns around the Health Practitioner defence there is one clear and substantial problem. This defence is only available where exploring, questioning or developing “coping skills” occurs “other than as part of a conversion practice.” As with the religious defence at clause (1)(2)(a) this defence gives with one hand and takes with the other because “conversion practices” are so broadly defined that they include a single incident where the intent and purpose is to supress a status. To take the example of the counsellor who firmly believes and says that a young client is suffering internalised homophobia rather than professing genuine and enduring cross sex ideation. It will be no defence for the counsellor to present theraputic discussions as qualifying under this clause because the very fact of communicating a professional judgment is itself a “conversion practice” under the bill.

The “parental responsibility” defence

24. By clause 1(2) (f) no offence is committed where a Defendant is “a person is exercising parental responsibility for a child” so long as they discharge a reverse burden of showing that “the child’s welfare is the person’s paramount consideration”. There are three clear issues with this defence. First, not all those with caring responsibilities have parental responsibility[18], by law all mothers do, a father will obtain parental responsibility either by marriage prior to the birth or if listed on the child’s birth certificate[19]. It follows that family members outside of the concept of parental responsibility may not rely upon this defence which raises clear Article 8 issues as to respect for private and family life. Second, the defence requires that parental responsibility be “exercised”, parental responsibility is broadly speaking the duty to provide a home for and maintain a child and see to their day-to-day welfare. As children get older, they become more and more competent at law to look after themselves and parental responsibility is thus exercised less. It follows from this that not all Defendants who have parental responsibility under the relevant legislation will necessarily be exercising it.

25. Third, a reverse burden is placed upon a Defendant to show to the civil standard that “the child’s welfare is the person’s paramount consideration”. This is a remarkable and unwelcome innovation in criminal law. No child protection statute places such burdens on parents nor is it easy to see how a parent might discharge this duty. The language here is borrowed from the Children Act 1989 which provides that the welfare of a child is the court’s paramount consideration in discharging the serious functions under that act. This is the standard against which contact, adoption and care orders are judged. It is quite different as a matter of law to take a guiding principle for a court and place that obligation on a parent in the context of a reverse burden criminal defence. This is highly likely to be considered an egregious and unusual breach of Article 8.

Clauses 1(3-6) – The Henry VIII clauses

26. Clause 1(6) provides that the Secretary of State may amend clause 1 (2) (the “carve outs”) by issuing regulations. This is to be read alongside clause 5(3) which provides that the regulations are by way of statutory instrument and clause 5(4) which provides that statutory instruments are to be laid before and approved by each House of Parliament. This is highly unusual legislative practice so far as criminal statutes are concerned because ordinarily the power to add, delete or re-draft criminal defences is by tradition considered the business of the legislature and not the executive. Statutory Instruments are secondary sources of legislation and can be passed into law without debate or division.

27.  Statutory instruments are traditionally used in criminal statutes for matters of an administrative nature (such as the sequential coming into force of parts of large pieces of legislation such as the Criminal Justice Act 2003) or for matters such as the production of guidelines or classification of controlled substances. It is highly unusual for a regulation to provide for what does and does not constitute a valid defence to a criminal charge.

28. Given the contentious nature of this sort of legislation and the wide drafting of the core offence, it is highly undesirable as a matter of constitutional practice that the power to create or delete defences is vested in anything other than the legislature.

Clause 2 – Assisting a person outside the UK to perform a conversion practice

29. Clause 2 imposes extra territorial secondary liability on a defendant who aids, abets, counsels or procures someone outside of the UK committing a clause 1(a) offence on a UK national or resident. It is unclear what the conjunctive Clause 2 (1) (b) is intended to add to this (it reads “it would, if done by such a person, constitute an offence under section 1”).

Clause 3 – Penalties and DPP permission

30. Clause 3 (1) provides that the Conversion Practices offence is summary only (that is to say it may only be tried and sentenced in a Magistrates Court and not a Crown Court) and that the offence is non imprisonable but may be punished by an unlimited fine.

31. Clause 3 (2) provides that proceedings for this offence may only be brought with the permission of the Director of Public Prosecutions. As the bill does not specify that the DPP must personally give permission, it can be taken that the normal rule would apply and that any Crown Prosecutor can give the relevant permission pursuant to s. 1(7) of the Prosecution of Offences Act 1985. The effect of this section would be to severely restrict the likelihood of private prosecutions by in effect requiring CPS approval. The CPS generally takes a far more cautious approach to mounting prosecutions as compared to their private counterparts and they will apply the Code for Crown Prosecutors which requires that any prosecution (i) be in the public interest and (ii) have a more than likely chance of conviction on the evidence[20].     

Remaining clauses not covered in detail

32. The remaining clauses cover administrative matters such as the short title of the bill if it becomes law and a requirement that the Secretary of State conduct a review of the operation of the act. Neither are matters which affect this analysis of the operation of criminal liability.

Conclusion

33. This bill is markedly different to the wide and potentially dangerous House of Lords and Scottish Government equivalents and makes real efforts to accommodate serious questions over the unintended consequences of legislation such as this. While the bill is plainly the product of consultation and discussion, as a criminal statute it falls short in important respects that fundamentally pose serious risks to human rights.

34. Key terms in this bill are such as “transgender identity” are left undefined and even if defined are unlikely to be workable in criminal courts. The offence itself is potentially extremely broad including as it does a single act of “suppression” as a trigger for criminal liability. The carve outs/statutory defences are as yet unconvincing because (i) they are rendered ineffective by their repetition of the broad “conversion practices” definition and requirement that defence activity not qualify as such and (ii) they fail to adequately account for Article 8 (family life), Article 9 (conscience) and Article 10 (expression).

DENNIS NOEL KAVANAGH
23rd FEBRUARY 2024

ANNEX A           FULL TEXT OF VERSION 4 OF THE CPPB

BE IT ENACTED by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

1 Conversion practices: prohibition

(1) An offence is committed if a person—

(a) offers, undertakes or takes payment for conversion practices, or

(b) offers, provides or takes payments for materials, advice or guides to conduct conversion practices,

(c) advertises, or takes payment for advertising, conversion practices.

(2) No offence is committed under this section where—

(a) a person expresses a religious or other belief, provided that it is not directed to an individual as part of a conversion practice,

(b) a person expresses to another person their disapproval of, or acceptance of, that person’s sexual orientation or transgender identity or lack thereof,

(c) a health practitioner takes an action in the course of providing a health service, provided that—

(i) the health practitioner complies with regulatory and professional standards and considers in their reasonable professional judgement that it is appropriate to take that action, and

(ii) there was no predetermined outcome in terms of sexual orientation or transgender identity or lack of it at the start of any course of treatment,

(d) a person is assisting another person who is undergoing a regulated course of treatment,

(e) a person is, other than as part of a conversion practice, facilitating or offering support to a person who is—

(i) exploring or questioning their sexual orientation or transgender identity or lack thereof, or

(ii) seeking to develop coping skills in relation to their sexual orientation or transgender identity or lack thereof,

(f) a person is exercising parental responsibility for a child—

(i) in England and Wales, under the Children Act 1989,

(ii) in Scotland, under the Children (Scotland) Act 1995,

(iii) in Northern Ireland, under the Children (Northern Ireland) Order 1995.

                                provided that the child’s welfare is the person’s paramount consideration.

(3) In this section “appropriate national authority” means—

(a) in relation to England and Wales, the Secretary of State,

(b) in relation to Scotland, the Scottish Ministers,

(c) in relation to Northern Ireland, the Department for Communities in Northern Ireland (DfC).

(4) The appropriate national authority must publish guidance about the offence in this section.

(5) The appropriate national authority may revise guidance published under this section.

(6) The appropriate national authority may by regulations amend subsection (2).

2 Offence of assisting a non-UK person to conduct conversion practice

(1) An offence is committed if a person aids, abets, counsels, or procures a person who is not a United Kingdom national or United Kingdom resident to offer, undertake to take payment for a conversion practice outside the United Kingdom and—

(a) it is done in relation to a United Kingdom national or United Kingdom resident, and

(b) it would, if done by such a person, constitute an offence under section 1.

(2) Proceedings for an offence committed under this section may be taken, and the offence may for incidental purposes be treated as having been committed, at any place in the United Kingdom in which this Act is in force.

3 Penalties

(1) A person guilty of an offence under this Act is liable on either way conviction to a fine not exceeding level 5 on the standard scale.

(2) No proceedings are to be brought for an offence under this Act—

(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;

(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

(3) In section 178(1) of the Charities Act 2011, after Case K insert—

“Case L

P has been found guilty of an offence under the Conversion Practices (Prohibition) Act 2024.”

4 Interpretation

In this Act—

“conversion practice” means a course of conduct or activity, the predetermined purpose and intent of which is to change someone’s sexual orientation or to change a person to or from being transgender, including to suppress a sexual orientation or transgender identity so that the orientation or identity no longer exists in full or in part,

“health practitioner” means a person who is a member of a body overseen or accredited by the Professional Standards Body for Health and Social Care,

“sexual orientation” has the same meaning as in the Sentencing Act 2020,

“transgender” has the same meaning as in the Sentencing Act 2020,  

“transgender identity” has the same meaning as in the Sentencing Act 2020.

5 Extent, commencement and regulations

(1) This Act extends to England and Wales, Scotland and Northern Ireland.

(2) This Act comes into force—

(a) in England and Wales, at the end of the period of six months beginning with the day on which it is passed,

(b) in Scotland, on such day as the Scottish Ministers may by regulations appoint,

(c) in Northern Ireland, on such day as the Department for Communities may by regulations appoint.

(3) The power to make regulations under this Act is exercisable—

(a) in the case of regulations of the Secretary of State, by statutory instrument;

(b) in the case of regulations of the Scottish Ministers, by Scottish statutory instrument.

(c) in the case of regulations of DfC, by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

(4) A statutory instrument containing regulations under this Act may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.

(5) A Scottish statutory instrument containing regulations under this Act may not be made unless a draft of the instrument has been laid before and approved by resolution of the Scottish Parliament.

(6) Regulations may not be made by DfC under this Act unless a draft of the regulations has been laid before and approved by a resolution of the Northern Ireland Assembly.

(7) Regulations under this Act may make—

(a) different provision for different purposes;

(b) consequential, supplementary, incidental, transitional or saving provision.

6 Short title

This Act may be cited as the Conversion Practices (Prohibition) Act 2024.

7 Review

(1) The Secretary of State must make arrangements—

(a) for a committee to carry out a review of the operation of this Act and,if appropriate in consequence of its findings, to make recommendations for the amendment of this Act, and

(b) for the publication of the committee’s findings and recommendations (if any).

(2) A majority of the members of the committee are to be members of the House of Commons.

(3) Arrangements under subsection (1) are to be made no later than four years after the coming into force of this A

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[1] https://www.russell-moyle.co.uk/conversion/

[2] By way of example, see R v Adomako [1994] UKHL 6 (30 June 1994)

[3] For an example of a Judge finding “transgender identity” sentence aggravation see Yipp J in R v Jenkinson and Ratcliffe at https://www.judiciary.uk/judgments/r-v-scarlett-jenkinson-and-eddie-ratcliffe/

[4] See s.7 Protection from Harassment Act 1997 for an example

[5] See Crown Court Compendium 8-1 for detailed analysis at https://www.judiciary.uk/wp-content/uploads/2023/06/Crown-Court-Compendium-Part-I-June-2023-updated-Feb-2024.pdf

[6] Per Lord Bridge in R v Moloney [1984] UKHL 4

[7] For an example of “purpose” featuring in a criminal defence see s.328 6 (b) (ii)  Proceeds of Crime Act 2002

[8] Compare to s.12 Equality Act 2010 which provides a definition

[9] In effect reproducing the wording of the Equality Act 2010

[10] https://www.gov.scot/publications/ending-conversion-practices-scotland-scottish-government-consultation/pages/6/

[11] See Choudhury J in Forstater v GCD UKEAT/0105/20/JOJ  https://www.gov.uk/employment-appeal-tribunal-decisions/maya-forstater-v-cgd-europe-and-others-ukeat-slash-0105-slash-20-slash-joj

[12] https://www.legislation.gov.uk/ukpga/1998/42/schedule/1

[13] https://hansard.parliament.uk/lords/2024-02-09/debates/DB690A34-D945-4EDA-9178-DD6357498F45/ConversionTherapyProhibition(SexualOrientationAndGenderIdentity)Bill(HL)

[14]

https://www.professionalstandards.org.uk/

[15] https://cass.independent-review.uk/publications/interim-report/

[16]

https://wpath.org/

[17] https://www.england.nhs.uk/publication/interim-service-specification-for-specialist-gender-incongruence-services-for-children-and-young-people/

[18] https://www.gov.uk/parental-rights-responsibilities/who-has-parental-responsibility

[19] Where a birth has taken place after 01.12.23

[20] https://www.cps.gov.uk/publication/code-crown-prosecutors