Police, Crime, Sentencing and Courts Bill Debate

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Department: Home Office
Motion D1 (as an amendment to Motion D)
Lord Russell of Liverpool Portrait Lord Russell of Liverpool
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Moved by

As an amendment to Motion D, at end insert “and do propose Amendment 72B in lieu—

72B: After Clause 54, insert the following new Clause—

“Intimidatory offences aggravated by sex or gender

(1) A person must not commit an act—

(a) which amounts to harassment or intimidation of another,

(b) which he or she knows or ought to know amounts to harassment or intimidation of the other, and

(c) which is aggravated by hostility towards sex or gender.

(2) For the purposes of this section, the person whose act is in question ought to know that it amounts to or involves harassment or intimidation of another if a reasonable person in possession of the same information would think the act amounted to harassment or intimidation of the other.

(3) Subsection (1) or (2) does not apply to an act if the person who pursued it shows—

(a) that it was pursued for the purpose of preventing or detecting crime,

(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

(c) that in the particular circumstances the conduct was reasonable.

(4) A person who commits an act in breach of subsection (1) is guilty of an offence.

(5) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

6 Police, Crime, Sentencing and Courts Bill

(6) An offence is “aggravated by hostility towards sex or gender” for the purposes of this section if—

(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s sex or gender (or presumed sex or gender); or

(b) the offence is motivated (wholly or partly) by hostility towards members of a group based on their sex or gender.

(7) The Secretary of State must make regulations within six months of the passing of this Act requiring the chief officer of police of any police force to provide information relating to—

(a) the number of crimes reported to the police force which, in the opinion of the chief officer of police, fall under subsection (6), and

(b) the number of crimes reported to the police force which, in the opinion of the chief officer of police, do not fall under subsection (6) but in which the victim indicated they believed they were targeted due to their sex or gender.”

Lord Russell of Liverpool Portrait Lord Russell of Liverpool (CB)
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My Lords, the noble Baroness, Lady Newlove, who would have been presenting this amendment and making the argument for it—which is why on Report the precursor to this amendment became known as the Newlove amendment —is today receiving, rightly, yet another honorary degree to add to her rather large handful of them, and thoroughly deserved it is. However, she is here in spirit and if we were still able to vote virtually, she would be voting in favour.

This Amendment 72B in Motion D1 is a response to the rejection by another place of that amendment, which, in essence, argued that we should make misogyny a hate crime. The debate about misogyny—what it is and what we should do about it—was discussed at length in the passage of the Domestic Abuse Bill last spring. One result of that debate was that, in return for particular amendments not being pressed, as the Minister indicated, Her Majesty’s Government agreed almost exactly one year ago—which is also the anniversary of the murder of Sarah Everard—at the Dispatch Box to mandate all police forces in England and Wales to undertake a trial period of recording misogynistic hate crimes. That undertaking was given with an undertaking that it would begin in autumn 2021—not 2022, not 2023, not 2024 but autumn 2021. Noble Lords will not be surprised to hear that I will be returning to that subject later.

To summarise what happened in another place the other week, I will use the words of the Minister, Kit Malthouse, to summarise the Government’s view:

“On the misogyny issue, I commend the motivation behind the set of amendments that we are sadly declining. We understand people’s genuine concern about the safety of women and girls in the public sector”—

I suspect that when one is at the Dispatch Box one occasionally says things that when you read them do not make complete sense. I do not think he meant only women and girls in the public sector; I think he meant women and girls in general in public—

“and indeed we share it. We are determined to make significant inroads in this area … we cannot in all conscience support an amendment that the Law Commission and other large groups interested in this area believe runs the risk of damaging the cause of women’s safety. That puts an obligation on us to bring forward alternatives that will do something positive for women’s safety. That battle is under way, and we commit to doing exactly that.”—[Official Report, Commons, 28/2/22; col. 786.]

So today the battle recommences.

I am very glad to see the noble Baroness, Lady Kennedy of The Shaws, in her place, because I would like to recommend that all noble Lords who have not had the opportunity to do so read her report Misogyny: A Human Rights Issue, published last week by the Scottish Government. It recommends a much more proactive and focused approach to this problem than we are at the moment able to consider in England and Wales.

The working group underneath the noble Baroness agreed on a definition of misogyny to help focus its investigations and recommendations. I think it is worth reading it out for your Lordships, because it encapsulates pretty accurately what it is that we are talking about when we talk about misogyny—because, depending on who you talk to, you might get different definitions. The definition used by the group led by the noble Baroness, Lady Kennedy, is:

“Misogyny is a way of thinking that upholds the primary status of men and a sense of male entitlement, while subordinating women and limiting their power and freedom. Conduct based on this thinking can include a range of abusive and controlling behaviours including rape, sexual offences, harassment and bullying, and domestic abuse.”

Motion D1 is designed to focus on two key areas. First, it is a direct response to Minister Kit Malthouse’s undertaking to bring forward alternatives: we decided to bring forward our own alternative, which reinforces the commitment to ask all police forces across England and Wales to record misogynistic hate crimes. It also addresses the category of public order offences, ensuring that stronger sentences are handed down when an offence is motivated by hostility towards the sex or gender of the victim. This would allow the police and courts to take stronger action against gateway offences, which may lead on to serious violent or sexual offences if they are not properly addressed at an early stage. By bringing the treatment of these offences into line with the approach taken to racially or religiously aggravated public order offences, this amendment would enable the courts to raise the maximum sentence, allowing a range of factors to continue to be considered such as the degree of culpability and the degree of damage to the victim.

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Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, I agree with the noble Lord, Lord Ponsonby, that this has been a very interesting debate. Part of what has been interesting for me is hearing the differing views on misogyny across the House. This goes to the heart of the difficulties of this issue. The noble Baroness, Lady Jones of Moulsecoomb, asked if my noble friend Lord Wolfson was making prestigious notes. I wondered if he was making prodigious notes, but they might be both prestigious and prodigious—I do not know.

I thank all noble Lords who have taken part. I will restate three important points that I made in my opening remarks, as well as make some further points that were asked about. First, we are still pursuing the commitment that we previously made on data recording. I quote the comments that I made this time last year:

“I advise the House that, on an experimental basis, we will ask”—

not mandate, but ask—

“police forces to identify and record any crimes of violence against the person, including stalking and harassment, as well as sexual offences where the victim perceives it to have been motivated by a hostility based on their sex. As I have said, this can then inform longer-term decisions once we have considered the recommendations made by the Law Commission. We will shortly begin the consultation with the National Police Chiefs’ Council and forces on this with a view to commencing the experimental collection of data from this autumn.”—[Official Report, 17/3/21; col. 371.]

As the noble Lord, Lord Russell of Liverpool, pointed out, that was autumn 2021. I have absolutely voiced my disappointment on that. I am pleased that the wheels are in motion, albeit moving more slowly than I had hoped. We are making some progress.

The second point is that, before the Summer Recess, we will launch the public consultation on a new offence of public sexual harassment. I think that that reinforces the point made by the noble Baroness, Lady Fox.

Thirdly, the Law Commission, having studied this issue and a variety of possible solutions, recommended against making misogyny a hate crime. I am grateful to the noble Baroness, Lady Kennedy of The Shaws, for her points. I know that that is a source of regret for some noble Lords, but we cannot ignore the firm advice of experts that legislating in this way could do more harm to women than good. No one wants that outcome.

The noble Lord, Lord Russell of Liverpool, made an interesting point about Cara McGoogan’s article in the Daily Telegraph. The points that he raised about racism, misogyny and domestic violence within the police are being looked at by the noble Baroness, Lady Casey, and Dame Elish Angiolini. I know that we will get on to Child Q this afternoon when I repeat the Urgent Question. It is not a point that I dismiss at all; we all have to get to grips with the culture of the police.

The noble Baronesses, Lady Fox and Lady Kennedy of The Shaws, talked in different ways about the internet translating into real life. Obviously the online harms Bill is coming up. I do not want to give a complete prequel to that, but in that Bill we will need to consider the balance between free speech and protecting our children, women and girls. The noble Lord, Lord Ponsonby, referred to this and, as a parent, I am glad that my children had grown up by the time these problems began to surface, but I worry for the children, women and girls of the future.

To conclude, we are continuing to explore all options to tackle violence against women and girls and we are taking forward real change to achieve that. I invite the noble Lord to withdraw his amendment and I commend Motion D to the House.

Lord Russell of Liverpool Portrait Lord Russell of Liverpool (CB)
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My Lords, this has been an interesting 55 minutes or so. We always seem to be at our finest when we discuss problems that a lot of people seem to agree are insoluble, which is disappointing in a way. It would be nice to talk about problems that are solvable.

I am grateful to all noble Lords who have spoken and to the three men who managed to stand up. Essentially, to some extent I apologise, as I feel I must, on behalf of many of my sex. The attitudes of an awful lot of males are a concern and are shaming. Unless more of us stand up and talk about it, it probably will not go away.

The noble Baroness, Lady Kennedy, is a pioneer in this area. I again recommend that all noble Lords read her report. When I started reading the preface, I realised that I was reading a report unlike most others I have read—and, in talking to her before we came in this morning, I discovered why: the noble Baroness wrote it herself and that does show. It is cogent, it is spirited, it is clear in its intent and it communicates brilliantly. So I recommend that more Ministers and noble Lords, when they put their names to a report, should write the preface themselves rather than get somebody else to do it. The noble Baroness’s point that what she is trying to do in her report is focus on egregious, unpleasant, aggressive and harmful actions, not thoughts, is also really important. We all think things that perhaps we should not from time to time. Mercifully, most of us do not act on them—or, if you get to my age, you probably forget them. At my age, the most important thing is to learn new things more quickly than you forget old things.

I take the point made by the noble Baroness, Lady Fox, about women’s freedom. But to suggest in some way that what we propose is potentially to label all men as misogynistic—and to send a message to all women that all men are basically misogynistic—is perhaps, might I suggest, slightly decrying the intelligence and perspicacity of members of the female sex to work out for themselves when something is genuinely misogynistic in a very unpleasant way and when it is less harmful. The noble Baroness is particularly skilled at talking about absolutes and problems. It would be great if we could move on and perhaps focus more on solutions than on the problems that are in the way of trying to find solutions.

My noble friend Lady D’Souza made an excellent point. We need to be careful that the law of unintended consequences does not lead us, in a sense, to suppress when what we are trying to do is liberate. I say to the noble Baroness, Lady Jones, that if she sees that taxi driver again I am sure she will give him a piece of her mind—or will change her accent to talk a bit more like me, so he will think that she is even posher than she really is.

I say to the noble Baroness, Lady Bertin, that it is always good to hear from the Government Back Benches. She made the good point that if you make a commitment, you should be able to keep it. The Minister has been frank and honest about some of the problems the Government have encountered, but I come back to the point I made earlier: this should and would have been foreseeable if they had done the proper analysis much earlier of what was implied by the commitment they were making.

The noble Lord, Lord Paddick, is far more skilled in these details than I am, and in particular on the law of unintended consequences in how one puts laws together and applies them. He makes a very good point but, again, there is the incredible importance of recording misogynistic data, so we actually know what we are talking about instead of just guessing.

The noble Lord, Lord Ponsonby, shared his direct experience as a magistrate and it was very compelling. If it is racially motivated, you have to fess up and say that up front, but if it is equally or more egregious, you do not have to. The fact that it is optional tells you that we are barking slightly up the wrong tree.

Finally, I turn to the noble Baroness’s contribution. What is so frustrating is that we spend so much time talking about all the problems that get in the way of trying to do something about this. We do not hear very much about prospective solutions. To some extent that is what Kit Malthouse invited us to do and committed the Government to doing—trying to find solutions.

On the point about asking police forces to comply with this rather than mandating them, I disagree with asking them. I actually think that we should mandate. Police chiefs are used to having a variety of things mandated by the Home Office, so would not be surprised or shocked. They might not particularly like it if the Home Office did so in this case, but I would strongly encourage the Government to think about doing that.

It is worth reading Hansard to see what happened when the Commons was considering our amendments. The vast majority of time in the early part of that debate was spent on the Newlove amendment, with speakers from all sides of the House, including a considerable number of Conservative Back-Benchers, particularly women. There was also a prominent man, the ex-Secretary of State for Justice, Robert Buckland. He has been intimately involved in helping to develop this amendment. I have also involved the noble and learned Lord, Lord Judge, in thinking through the validity and force of what we are talking about.

There is a growing concern and voice in another place that we need to stop talking about problems; we need to commit to doing solutions. So, for the reason that I feel that the soles of the feet of Kit Malthouse deserve to be subjected to a rather higher temperature than I think he feels at the moment, I would like to test the opinion of the House.