Crime and Policing Bill

Baroness Fox of Buckley Excerpts

Wednesday 4th March 2026 Lords Chamber

[Lord Pannick (CB)]

I am grateful to the noble Lord, but he is running two inconsistent arguments. He is saying first that the law already allows this, and secondly that this amendment to make the position clear is fundamentally objectionable on grounds of principle. He cannot run both arguments, nor say that it is objectionable for one of the factors that the court should take into account to be whether the hostility is based on sex. Why should we exclude sex? Why does the law currently allow the victim’s membership, or presumed membership, of a racial or religious group to be a factor that the court can take into account, but not sex or transgender status? That makes no sense whatever when the Equality Act deals with all these protected characteristics.

I emphasise that whether it is right or appropriate for the judge to take these factors into account in the circumstances of a particular case, and to what extent, will depend on the discretion of the sentencing judge, which will inevitably depend on the circumstances of the crime. Therefore, to exclude entirely the factor of the victim being, or being presumed to be, transgender, as the amendment from the noble Lord, Lord Young of Acton, seeks to do, seems arbitrary.

Of course, I agree with the noble Lord, Lord Young of Acton, that we must be very careful indeed to ensure that people are not punished for the exercise of free speech, but the law protects that exercise. It protects it by reference to Article 10 of the European Convention on Human Rights, which the sentencing judge must take into account in all cases. I do not know the circumstances of the case that the noble Lord referred to, where there was an acquittal at the appeal stage, but I strongly suspect that Article 10 had something to do with it. I support the Government’s amendment.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have serious reservations about the Government’s amendments on aggravated offences. I appreciate that this puts me at odds with the Minister, but I knew that long before today, because in Committee he made a passionate speech, as he has today, telling us how proud he would be to move these amendments and claiming that they show a Government prepared to protect LGBT and disabled people.

If this is such an important change in the law for the Government, and a principled flagship for progressive Labour that appeared in its manifesto, we have to ask why the Government waited until Report in the Lords—so late in the Bill’s passage—to table the amendments. They must have thought that they were principled and important before, so why are we seeing them only now? I am afraid that, as the noble Baroness, Lady Cash, explained, this denies this House the constitutional right to properly scrutinise and mull over the complex details of the amendments—let alone the fact that that was denied to the elected Chamber.

In the limited space that we have here, I will start by raising some general concerns I have with aggravated offences. Some people might say that this is a Second Reading speech; if it is, it is because the Government did not bring the amendments forward until now, so I will say it anyway. In my view, the state’s job, via criminal justice, is to prosecute material, clearly defined offences. When the authorities attempt to either infer or impute motivation for a crime, seemingly to signal its particular gravity, that is a dangerous move towards punishing ideas, beliefs or attitudes. Some of those ideas, of course, might be bigoted or abhorrent, but they are none the less ideas and opinions. We need to be wary of inadvertently stepping towards thought-crime solutions just to signal our moral virtue, and I am worried about expanding that regime.

This has consequences. Offences such as these carry higher maximum penalties when offenders demonstrate hostility, and this can mean prison. But hostility can be interpreted broadly in the law as ill will, antagonism or prejudice. Let me be clear: violence, harassment, assault or whatever against a disabled person, a trans person, a woman or anyone should be punished appropriately—severely, if that is your take—and certainly uniformly, regardless of motive. But aggravated sentencing can lead to some perverse outcomes.

On hate crime aggravators, in Committee I used an example from the CPS report Our Recent Hate Crime Prosecutions. A man was put in jail for 20 weeks for

“assaulting his father, sister and a police officer, and using racist slurs against his sister’s partner”.

But the CPS notes that, without the racist slurs, he would have only received a community order. So for the assault he would have retained his freedom but, with the racist words, he got 20 weeks in jail. What is more problematic is that many of the offences we are talking about are not actually those kinds of aggressions but often speech that is promiscuously criminalised.

This sentencing anomaly really hits home when it comes to the much boasted-of addition of sex into the aggregation. “At last”, people will say; “misogyny taken seriously”. But, during the Sentencing Bill, the Government refused to accept a perfectly reasonable amendment exempting sexual assault offences and domestic violence offences from the early release scheme. Surely, a real, material commitment to women would be to have accepted that amendment, not increased sentences for offences deemed driven by hostility to women.

Instead, my view is that we should prosecute actual offences committed against any woman. When those offences involve, for example, sexual violence or domestic abuse, we should give appropriate sentences to perpetrators and then not let the offenders out early to free up prison places. That would help women far more than this amendment, the wording of which says that the aggravators must be announced in “open court” to declare an offence aggravated—if ever there were an indication of the performative nature of this, that is it.

One worry is that many of the offences to which “aggravated” will be attached will be the tangled plethora of hate speech crimes, already leading to the scandal of Britain’s declining free speech reputation internationally, with so many arrested for speech crimes, as we have heard about. So many of these offences are wholly subjective, because hostility can be defined by the victim. We have seen the recent weaponisation of speech against those who do not share the same views, the whole cancel culture and toxicity that has proliferated, and identity groups and those with protective characteristics pitched against each other in grievance complaints.

Although it was not in the criminal law, we saw a gross example of this when John Davidson, a man with Tourette’s and the subject of an award-winning sympathetic film, involuntarily ticked and shouted out the N-word. Subsequent commentary refused to accept that there was no intent to offend. Race and disability were put at odds, rather than empathetically understanding the issues, and that is one of the problems with playing the identity politics issue. Increasing aggravated offences will just add to this toxic mix, and that, combined with public order and communications arrests—if not prosecutions for speech crimes, as described by the noble Lord, Lord Young of Acton—will make this issue really difficult.

The issue of hostility to transgender identity is likely to stir up further tensions. I want to ask: what is transgender identity? At best, it is a subjective category. It is a self-defined description. That is not a criticism; it is just an observation. Transgender identity does not require a gender recognition certificate or surgery. By the way, the wording in the amendment is confusing here: it gives credence to the fact that surgery might be a key, but then it says “proposing to undergo” gender reassignment, which is a very odd phrase. That is why the amendments of the noble Lords, Lord Davies of Gower and Lord Cameron of Lochiel, are right to query and probe it, which is what we should be doing, even though it is so late in the day. How transgender people are defined will matter to how these amendments will be understood.

The clarification of the noble Lords from the Official Opposition, in Amendments 337, 350, 351 and 352, establishing what sex means in the Bill, is also helpful. Emphasising biological sex—sex at birth—is necessary to ensure that the cultural clash between gender identity and sex is not muddled up in this Bill or in these amendments. The noble Lord, Lord Young of Acton, in his Amendment 334A, also hopes to ensure that the proposed changes do not criminalise misgendering.

I just note that I hate the word “misgendering”. If a male identifies as a female, even if he has a certificate or has had surgery, he is still a man. Saying that is not misgendering; it is factually accurate. Asking me to call him a woman is compelled speech, asking me to repeat misinformation. But would that statement, which I am very nervous about making, be seen as evidence of hostility to someone based on their gender identity? Guess what: too often, those accused of, and punished for, so-called misgendering offences are women. Police criminalised Sex Matters’ Helen Joyce for some tweets referring to Freda Wallace by his former name Fred and using he/him pronouns, and the police recorded that as “criminal harassment” with “transgender aggravators”.

What about the young lesbian who says that she is not attracted to a male—a man who thinks that, by wearing stilettos and a dress, he is a woman and should be allowed into a lesbian-only group at a workplace—

[Lord Hanson of Flint (Lab)]

I do not wish to disturb the noble Baroness’s train of thought, but how we frame this debate is important. It is an aggravated offence if the individual has committed an offence that I outlined earlier, such as grievous or actual bodily harm, public order offences, harassment, stalking or criminal damage. It is not about the issues the noble Baroness is speaking to.

[Baroness Fox of Buckley (Non-Afl)]

To clarify, in the first example I gave, of Helen Joyce, it was called criminal harassment for the tweets and the aggravated factors. The police actually dropped it in the end, but they—not me but the police—called it criminal harassment with transgender aggravators. In the example I was giving, the lesbian in her work group was then labelled a bigot. In other words, it is the L in LGBT, not the T, that will often take the hit. I mentioned that because she was threatened by the person, who said they would go to the police, and then she was visited by somebody who said that the police would be involved. I am making this point because I am worried about it spiralling out of control. I would say that that is misogyny: demonising a biological woman for expressing her sexuality as same-sex attracted. I want to be sure that the amendments in this group navigate such clashes and do not avoid them.

[Lord Katz (Lab)]

My Lords, I apologise but, a little unusually, this is a convenient time to break for dinner break business. It is mid group, but I assure noble Lords that we are taking a note of who is in the Chamber so that we can continue the group in an orderly fashion after the dinner break business. Before I hear some sedentary tutting, I note that this has been agreed through the usual channels.