Police, Crime, Sentencing and Courts Bill Debate

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Department: Ministry of Justice
Baroness Butler-Sloss Portrait Baroness Butler-Sloss (CB)
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My Lords, I had not intended to speak, but I would like to support what the noble Baroness, Lady Falkner, has just said. There are two groups of people who need support. I agree with her that the well-intentioned amendment of the noble Lord, Lord Blencathra, does not actually meet the problem. These two groups are the women who are women at birth and remain women, and those who were men at birth and become women. Both groups, even in prison, need respect for who they are and what has happened to them. I do not think that the prison system is well adapted at the moment to deal with trans women, and the Minister needs to think with some care whether rather more should be done to help that group of women.

However, the help for that group of women should not be at the expense—I venture into dangerous ground —of those who remain women. This is an extremely tricky area, and we know from areas outside the prison system just how tricky is it. I do not envy the Minister or the Ministry of Justice the situation in which they find themselves because this did not exist—as far as we knew—even 10 or 20 years ago but, my goodness me, it exists now. There are two groups, both of whom need not only respect, but understanding and care, even within a prison.

Lord Paddick Portrait Lord Paddick (LD)
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My Lords, I have been engaged in the debate on trans issues for many years and I have the scars to prove it. I have even been criticised for simply engaging in the debate, by some trans people for even listening to radical feminists, and by feminists because I am not a woman. I have met with, listened to, and talked with many people on all sides of these issues, including radical feminists, gender-critical people, trans people and intersex people. I continue to listen, and I continue to try to understand the views expressed by all sides.

I can feel my blood pressure rising when I hear the comments of many noble Lords around the Chamber. Then I think for a while, and I think to myself that it was not that long ago that I perhaps held similar views until I actually started talking to the people whose lives we are talking about—people who honestly and genuinely believe that they are in the wrong body, if you like, and those who genuinely believe that they are women even though they have male bodies, for example. That is when you begin to understand that these things, which appear completely counterintuitive, make sense for those people. I do not condemn people for what they have said because it was not that long ago that I might have thought along similar lines.

Baroness Fox of Buckley Portrait Baroness Fox of Buckley (Non-Afl)
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Can I just clarify one thing? Many trans people do not agree with some of the orthodoxies that have become associated with trans activism. The inference was that some people possibly have a particular view because they have not met any trans people. That is not true. Whole swathes of trans people do not go along with a particular political opinion, for example in relation to prisons, as in this instance. I am concerned that it is not seen that those people who argue a gender-critical view are doing it because they are ignorant and have not got out enough.

Lord Paddick Portrait Lord Paddick (LD)
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I hear and understand what the noble Baroness says. However, on this amendment, I am clear. We oppose Amendment 214 from the Front Bench. We do not support the noble Lord’s amendment, but we understand completely the concerns that he and other noble Lords have. However, we feel that the risks that the noble Lord seeks to minimise are already minimal, and that other risks that need to be managed are not covered by this amendment.

The amendment seeks to amend the Gender Recognition Act to reduce the risk that transgender prisoners present to others. This is neither necessary nor desirable for the following reasons. First, there are very few transgender prisoners. In a data collection exercise between March and May 2018, only 44 of 124 public and private prisons said that they had any transgender prisoners at all. The fact that there are so few transgender people in prison is also an indication of the level of offending by transgender people, the seriousness of that offending and the extent of the threat that they pose.

Secondly, the risk of mental health problems, self-harm and suicide is far greater among the transgender community than it is among those who are not transgender. Clearly, in a prison setting, the risk of mental health problems, self-harm and suicide is likely to be higher for all inmates; for transgender prisoners, it is likely to be very high indeed. In November 2015, an inmate who said that she would kill herself if she was sent to a male jail was found dead. Vicky Thompson, aged 21, died a week ago at the all-male HMP Leeds. Friends said that Thompson, who was born male but had identified as a woman since she was a teenager, had asked to be sent to a female jail in Wakefield. This is the sort of impact that having an unbalanced amendment, such as the one proposed by the noble Lord, Lord Blencathra, can have on transgender people.

Thirdly, if the Prison Service thinks that the risk presented by a transgender prisoner is such that they should be housed in a prison contrary to their legal gender, it can allocate them to a part of the estate that does not match their legally recognised gender. The decision must be taken after consultation with experts and at a high level, but it is possible.

A number of noble Lords have referred to the High Court judgment in July 2021, where lawyers for a female inmate in the female prison estate brought a judicial review against the MoJ. The MoJ argued that the policy pursues a legitimate aim, including

“facilitating the rights of transgender people to live in and as their acquired gender (and) protecting transgender people’s mental and physical health.”

It is interesting that I am actually quoting from the same case as other noble Lords have quoted from. Lord Justice Holroyde said:

“It is not possible to argue that the defendant should have excluded from women’s prisons all transgender women”—

as this amendment proposes. He continued:

“To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender.”

The case was not actually about excluding all transgender women; it was about challenging how policies applied to those who had been convicted of serious or violent offences against women—as the noble Lord’s amendment does.

The Lord Justice went on to say that trans women’s offending history was a factor that the existing policies were required to consider. He said:

“the need to assess and manage all risks is repeatedly emphasised”

throughout existing MoJ policies. He continued:

“In an exceptional case, a high risk transgender woman, even with a GRC, can be transferred to the male estate because of the higher level of security which is there available.”

Therefore, there is a mechanism to do exactly what the amendment is seeking to do, but on a risk-assessed basis.

The court also heard that expert panels are also involved in the process when allocating transgender prisoners and are “expressly required” to consider the trans woman’s offending history, her anatomy and her sexual behaviours and relationships. The Lord Justice said:

“They can in my view be expected to be astute to detect any case of a male prisoner who, for sinister reasons, is merely pretending to wish to live in the female gender.”

He concluded:

“the policies require a careful, case-by-case assessment of the risks and of the ways in which the risks should be managed. Properly applied, that assessment has the result that non-transgender prisoners only have contact with transgender prisoners when it is safe for them to do so.”

This is the same case that noble Lords have been quoting from.

Yes, the Lord Justice said:

“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence.”

He added that some women prisoners,

“may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender woman who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.”

This amendment says nothing about whether the person has had sex-reassignment surgery, and there are trans women with gender recognition certificates who have not undergone gender reassignment surgery. The amendment, therefore, is not fit for purpose.

There are two sorts of risk that need to be managed here. There are the risks to the transgender prisoner, either from themselves, in terms of mental health, self-harm and suicide, or the risk from other prisoners, such as the risk of a transphobic attack or an attack based on their acquired gender if they present as a woman in a prison housing men, for example. There may be risks that the transgender person poses, perhaps because of a previous history of violence or sexual offences, but those falling into this category are few and far between and can be dealt with under the law as it stands. Any attempt to stereotype all transgender women as a threat to women flies in the face of the facts and needs to be robustly challenged.

The implication that transgender women are a threat to children reminds me of the sort of abuse that was directed towards me as a gay man a few decades ago.

Lord Blencathra Portrait Lord Blencathra (Con)
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The noble Lord is looking at me and implying that I suggested that transgender men were a threat to children. I said no such thing at all. I quoted the case of a male rapist who had raped two children. I was not suggesting that this was endemic in the transgender community, or that they are a threat to children at all. That is not what I said, not what I implied, not what I intended.

Lord Paddick Portrait Lord Paddick (LD)
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I am grateful for the clarification that the noble Lord has given, and I will allow noble Lords to read the official record and draw their own conclusions from what he said.

The noble Lord’s amendment manages only one of these risks—arguably the much lower risk. Each case should be, and is currently, managed on a case-by-case basis, and that should continue. We oppose the amendment.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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We, too, oppose the amendment. I think we all accept that transgender women are entitled to live in their chosen gender. The law protects transgender women and transgender men from discrimination because they are transgender men or transgender women. The position that is outlined in this amendment leads all transgender women to be consigned to the male prison estate—a point made very forcibly by the noble Lord, Lord Pannick. The moment one says that, one sees the total unthought-out nature of the amendment.

The way forward was, I believe, charted by the noble Lord, Lord Pannick, and the noble Baronesses, Lady Falkner and Lady Brinton. The noble Baroness, Lady Falkner, indicated in a powerful speech that one is dealing, in effect, with rights that may conflict: on the one hand, the right of a transgender woman to be properly protected, including in her choice to be a transgender woman, and on the other, the possibility that certain prisoners, including transgender women, can be a threat to other prisoners in the women’s estate. The way that that is dealt with at the moment was well outlined by the noble Baroness, Lady Brinton, in her excellent and detailed speech. The prison authorities deal with it on a case-by-case basis using a series of detailed processes. Should we continue with that, or should we condemn every gender recognition-certificated transgender woman who is charged—maybe not convicted —of a violent or sexual offence to being in the male estate?

For my own part, it is pretty obvious that one should continue with the current arrangements. I am sure that they could be improved—I am not in a position to detail any improvements that could be given to them—but that case-by-case basis must be a better approach than that adopted by the amendment in the name of the noble Lord, Lord Blencathra. I would go further and say that I do not suggest to the noble Lord and those who have also supported the amendment that they come back with something else. This is much better dealt with on a case-by-case basis, so we on this side of the House oppose the amendment. We do not think it is appropriate; we do not think it even tries to balance rights, and we would not support it coming back on Report.

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Lord Paddick Portrait Lord Paddick (LD)
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That is exactly what the noble Lord said. He said that gender reassignment is a protected characteristic under the Equality Act and gender is not, which is what this amendment addresses.

Lord Russell of Liverpool Portrait Lord Russell of Liverpool (CB)
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I thank the noble Lord. If anyone else wants further clarification, I am sure other noble Lords who have read the Equality Act will come in and back me up.

A particular point that I think my noble and learned friend Lord Judge would have made, were he able to be with us, is that he is clear that this amendment and change to the Sentencing Act would be welcomed by the judiciary, who are often asked to make quite difficult judgments. This would make their ability to do so a great deal easier.

There is another important point. The noble Baroness, Lady Newlove, mentioned how some police forces around the country voluntarily started recording alleged misogynistic acts, primarily against women. We had a briefing last week, which I attended online, in which two of the police forces involved—Nottinghamshire Police and South Yorkshire Police—gave evidence, several years on, about how effective that was. The thing that came out clearly, which they find very frustrating, is that having amassed this information and passed it on to the Crown Prosecution Service, the way in which the CPS deals with the information and data that has been recorded and given to it as additional evidence when considering or making prosecutions is wholly inconsistent between different offices and areas. One of the virtues of inserting this amendment into the Sentencing Act is that it would make it crystal clear to the Crown Prosecution Service that information must be part of any case that is potentially brought before the judiciary, because this data is required to be considered when thinking about sentencing.

I commend this amendment to the Committee. It is simple, unambiguous and protects everybody.

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Baroness Noakes Portrait Baroness Noakes (Con)
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I will tell the noble and learned Lord what I know, which is that the Law Commission said that it hopes for a final report by the end of this year. It is then normal to give a period of time for the Government to consider their response and then there is a period after that for deciding on a legislative route.

My amendment offers a fast way through. If the Law Commission makes certain recommendations and the Government decide to accept them, my amendment gives the Government the power by regulations to amend Section 66 of the Act to achieve those recommendations. That is the best I can offer. I am sure the noble and learned Lord, Lord Falconer of Thoroton, can give me a long lecture on all those Law Commission studies that have never ended up in law and the length of time taken. But this is another good reason why we should not, I think, proceed in haste on this.

I was about to move on to the second reservation I have with Amendment 219, which is whether, if hate crimes were extended to sex, they should also include gender. Amendment 219 includes the formulation “sex or gender” and that was, indeed, the Law Commission’s provisional view. However, its conclusion was rather more tentative than some of the other conclusions in the consultation document, and I think this is an area where its final views will be particularly important. In its very large consultation document on hate crime, it did not spend very much time on whether gender should be included as an addition to sex, and I suspect there will be a fuller examination on the basis of the responses to its consultation.

Sex is a concept that is easily defined: it is binary, based on biological reality and recorded on everyone’s birth certificate. Sex, as we have been debating, is a protected characteristic in equality legislation. Gender, on the other hand, is a social construct. It has no ready legal definition and is most definitely not a protected characteristic. While gender is sometimes used in legislation, it has in the past genuinely been as a synonym for sex. However, I believe that it is increasingly problematic for the word “gender” to be used in that way because it is being used by those who claim that gender is different from—and sometimes more important than—sex, and it is not binary. Some describe gender as a spectrum, some say that there is a finite number of genders, but there is no consensus on how many genders there are, with claims in excess of 100 genders.

I can illustrate how difficult the use of “gender” is becoming from something I discovered called nominalgender. Nominalgender means,

“a gender where the person’s gender is so much just them that no one else can even experience it. Most nominalgender people will define their gender as a mashup between other genders of a certain kind (like beegender, angelgender, etc) but it’s not a multiple gender, it is one”.

Who knew, my Lords? This new lexicon of gender is part of a gender identity theory. It is a controversial issue and has not hitherto found its way into legislation for very good reason. I believe that legislating for hostility towards gender would make for very uncertain law. The use of the word “gender” has moved well beyond an attempt to achieve drafting neutrality and has started to acquire a very different meaning.

There was discussion earlier about where transgender fits in. I do not believe adding “or gender” is necessary to meet any needs of those in the transgender community. Hostility related to transgender is already included in hate crime legislation. If the term “sex” was added to Section 66, hostility towards, say, a transgender woman would be automatically covered, either because she is transgender or because she is presumed to be of female sex. Therefore, there is no need for the ambiguity of “gender” to be introduced into the definition of the hate crime because there were no people excluded from that.

I have deliberately not addressed the substance of Amendment 219, which is whether misogyny should be added to the list. I am personally not convinced that the case has been made, but I did not table Amendment 219A to oppose the extension of hate crime to sex. Indeed, my amendment would allow a fast-tracked route to legislating for it if that were the outcome of the recommendation from the Law Commission. I believe that Parliament would be negligent if it rushed through a solution without waiting for the Law Commission to report on this difficult subject. I know that many noble Lords feel strongly about misogyny, as I do as a woman, but I entreat noble Lords not to legislate in haste.

Lord Paddick Portrait Lord Paddick (LD)
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Could I ask the noble Baroness a question on her remarks? She said that sex was binary, male and female, as recorded on birth certificates. How does she account for people who have a gender recognition certificate, who are able to change the sex on their birth certificate in those circumstances?

Baroness Noakes Portrait Baroness Noakes (Con)
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My Lords, that is dealt with by the Gender Recognition Act. In that case, the birth certificate is altered and for many purposes, though not for all, that person is treated as a woman.

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If the promoters of Amendment 219A think that there may be other groups that need to be added and should not be left out, they can promote their amendment in addition to the one tabled by the noble Baroness, Lady Newlove. They certainly cannot suggest that it is an alternative, because sometimes the law needs to send a signal as well as work. This Bill is before us and we do not know when another one will come our way. We do not know when the Law Commission will report; we do not know what the reception to that report will be; we certainly do not know whether another Bill will come our way. How can we possibly, in good conscience, leave a status quo where an assault aggravated by race is covered, but an assault aggravated by the offender targeting a woman is not covered? I certainly cannot find that in my heart or in my conscience.
Lord Paddick Portrait Lord Paddick (LD)
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My Lords, I thank the noble Baroness, Lady Newlove, for so ably and comprehensively introducing her amendment. We return to an issue that we debated during the Domestic Abuse Bill, making misogyny a hate crime. From the Front Bench, we support Amendment 219 and oppose the alternative Amendment 219A.

When we debated the Domestic Abuse Bill, I talked about the appalling kidnap and murder of Sarah Everard by a serving police officer, and, as the noble Baroness, Lady Newlove, has said, many more women have died as a result of male violence since then. As the chair of the Police Federation of England and Wales said a few weeks ago, there is a problem with sexism and misogyny in the police service and in society as a whole. Urgent action is needed. Some changes will take a long time, such as changes to social attitudes and police culture, but some changes can happen now. We have an opportunity with this amendment to make one of those changes now.

I did not support the amendment to the Domestic Abuse Bill because I did not believe that that amendment made misogyny a hate crime. This amendment does. In the Domestic Abuse Bill debate, I suggested, as Amendment 219A does, that we should wait for the Law Commission report on hate crime laws. As the helpful briefing from the office of Stella Creasy MP says:

“Since 2010, more than half of Law Commission reviews have not been implemented at all, including the last review of hate crime legislation in 2014.”

I agree with the briefing’s assertion that this is an area where delay has tangible consequences. The evidence that there is a problem is overwhelming. In the wake of the tragic and horrific murders of Sarah Everard and Sabina Nessa, there is an opportunity to strike while the iron is hot, while public opinion is behind us, and where the issue is high in public consciousness. We need to seize that opportunity with Amendment 219.

I did not support the amendment to the Domestic Abuse Bill because I believed that it was the wrong Bill, where one third of domestic abuse victims are male. I believed that it was the wrong Bill because domestic abuse is one of the worst possible crimes, because if there is only one place where someone can feel safe, it should be in their own home—that domestic abuse could not and should be treated as any more serious than it already is.

I also said:

“If noble Lords or Members of the other place do not think we should wait for the Law Commission’s report, there is an imminent legislative opportunity to make sure that hatred of women is treated in every way as a hate crime. We could work cross-party to amend the Police, Crime, Sentencing and Courts Bill, which is being debated in the Commons, to make misogyny a hate crime in every sense of the term. Even if the noble Baroness is not convinced by the Government’s concession, we do not need to rush this amendment through now when the ideal legislative opportunity is at our fingertips.”

The ideal legislative opportunity is at our fingertips—it is here and now, and we should do it.

I have to say that I found the arguments in the briefing that noble Lords have been provided with less convincing on the issue of sex and gender. I refer again to what I said on the Domestic Abuse Bill:

“If the Government only require police forces to record crimes where the victim perceives them to have been motivated by hostility based on the victim’s sex … it does not go far enough. Current hate crime offences are recorded when anyone perceives the offence to have been motivated by hatred, not just the victim. The amendment includes sex and gender, and this is important. If an offender believes the victim is a woman, and anybody perceives that the offence was motivated by hatred of women, it should be recorded as a crime motivated by hatred of women. It makes no difference … whether the victim is a transgender woman.”

There may of course be circumstances where an attack on a transgender woman might be more appropriately recorded as a transphobic hate crime, but:

“Where the victim or a witness believes that they were attacked because they were a woman because they perceive the offender believed the victim was a woman, it should be recorded as such. The use of the term “sex” on its own may exclude some offences”.—[Official Report, 17/3/21; col. 363-64.]

It has been argued that, legally, such offences would not be excluded, but we need to consider the practical implications of excluding gender, as Amendment 219A seeks to do.

There are some who believe that trans women are not women but men. Some of those people are very strident in asserting that view. I want to avoid that debate if possible, but the fact is that people are saying this, and that view may influence victims, witnesses and police officers. Some people may not accurately report crimes motivated by misogyny if they believe that this does not apply to trans women. If we are to protect women and record all crimes motivated by misogyny, gender must be included. A proposal such as Amendment 219A, which makes life more dangerous for some women, makes life more dangerous for all women. From the Front Bench, we support Amendment 219 and oppose Amendment 219A.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, the Labour Party has been at the forefront of calls to make misogyny a hate crime. Former Nottingham police and crime commissioner Paddy Tipping ensured that it was recorded as a hate crime there, and we have heard from my noble friend Lady Warwick about his work with Chief Constable Sue Fish in that regard. During the passage of the Domestic Abuse Act, we secured the piloting of the recording of misogyny as a hate crime among crimes of violence against the person, including stalking, harassment and sexual offences. Police forces recording misogyny as a hate crime is an important step forward, but we want to go further by including sex and gender in the list of protected characteristics in hate crime laws for the first time.

I shall speak only very briefly because of the hour, but I want to conclude by saying that I thought that my noble friend Lady Chakrabarti encapsulated the decision before us. We in the Labour Party support Amendment 219 and oppose Amendment 219A. As my noble friend said, first of all, this relates to where an offence has already taken place. Secondly, it is already the case that race and religion are aggravating factors, and they have been for many years. We believe that misogyny should be added as an aggravating factor when sentencing.