Protection from Sex-based Harassment in Public Bill

Stella Creasy Excerpts

Committee stage
Wednesday 22nd February 2023 Public Bill Committees

[Greg Clark]

It is a great pleasure to serve under your chairmanship, Sir Gary. I am grateful to colleagues for agreeing to serve on the Committee. We have great experience represented, including several fellow Select Committee Chairs, but the membership also covers the whole breadth of the House; we have some of its newest Members, and it is a pleasure to have them here.

The Bill is a short and simple one, but it is historic. It creates, for the first time, a specific offence of public sexual harassment, and provides for the possibility of that being punished on conviction at the higher tariff. I will not repeat the arguments made for the Bill on Second Reading, as this is its Committee stage, but it is fair to say that on Second Reading it commanded the unanimous support of the House after a debate that showed Parliament at its best. Indeed, many members of the Committee spoke in that debate, and did so powerfully. They drew in some cases on their own personal experience, and on those of their constituents, recounting the all too frequent reality of life for many women, in particular, of enduring being followed, obstructed, shouted at and having obscene gestures made at them because of their sex. The Bill aims to make it clear that such behaviour is a serious criminal offence, and to make it as obviously unacceptable to harass someone on the grounds of sex as to do so on the grounds of race or disability, for example.

I will concentrate in my opening remarks on the amendments I have tabled. If you will allow me, Sir Gary, I will say something about the other amendments that have been selected for debate, especially those from the hon. Member for Walthamstow, once she has made her opening remarks later in the debate. I am grateful for the support of the Government, and I thank the Minister and her excellent officials in the Home Office for their help in tabling the four amendments that I have tabled and that are before the Committee. They are designed not to alter the purpose of the Bill, but to improve its working in practice.

Amendment 1, by deleting the words “in England” in clause 1, will extend the Bill’s application to Wales. The subject matter of the Bill—the Public Order Act 1986—is devolved to Wales, but the House can legislate to extend it to Wales if the Welsh Government wish and the Senedd passes a legislative consent motion to that effect. I am pleased to say that the Welsh Government wish to apply the Bill to Wales, and they will table a legislative consent motion in the Senedd in time for it to pass before Report.

I hope the Committee will agree that it makes legal sense to expand the new offence to include Wales, because the Public Order Act on which the offence is based already applies to Wales. I am grateful to officials in the Welsh Government for their alacrity in supporting the Bill. By contrast, the section 4A offence in the Public Order Act does not extend to Scotland or Northern Ireland, so it would not be practical to expand the new offence to those countries, given that the Act on which it is based does not apply there.

New clause 2 picks up on the fact that the existing section 4A offence in the Public Order Act 1986 is referred to in three other Acts of Parliament: the Football Spectators Act 1989, the Police Act 1997 and the Elections Act 2022. Without the new clause, if in future someone were convicted under the new section 4B offence of sex-based harassment, they would no longer be covered by the sanctions that those other Acts contain for convictions under section 4A of the Public Order Act. Those relate to football banning orders, the disclosure of criminal records in Scotland and disqualification from elected office, which follow currently from conviction under section 4A of the Act. Amendments 2, 3 and 4 are consequential on new clause 2, providing, for example, for commencement regulations to be the same for new clause 2 as for clause 1.

I hope that my explanation of the amendments will command the support of the Committee. I look forward to the debate that follows and to hearing the case made by Members, particularly the hon. Member for Walthamstow on her amendment 5 and new clause 3. Having expressed gratitude to Members for being here, I remind them that this is a private Member’s Bill to which limited time is attached. We have an opportunity to right a historic wrong with this legislation, and I hope that we can approach the debate in a pragmatic fashion with the common purpose of achieving the change in the law that was so clearly the House’s wish on Second Reading.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

It is a pleasure to serve under your chairmanship, Sir Gary, and to continue to work on the Bill. I thank the right hon. Member for Tunbridge Wells for his diligence on this legislation. Many of us feel very passionately about the issue, and we are grateful for his commitment and the work he has done to bring so many people together around what has historically been quite a difficult issue to make progress on.

I was watching my three-year-old daughter gambolling down the street the other day. “Gambolling” is the right word; she was in a party dress, half dancing and half singing, and she was joyful. She was walking down the same street that I walk down when coming home from work, with my keys in my hand, looking around, nervous about who else might be on the street. It struck me how important it is that we do not give into those who say that this is too complicated an issue to make progress on.

The honest truth about being a woman is that you learn to live in fear. You learn in our society and our culture to be half aware of what is going on around you at all times, because you know that there is danger out there. When I look at my little daughter and think about what is to come, I know why this legislation is so important. I wager that everybody who has young children in their life thinks about these issues. In particular, tackling the public harassment that women face on a daily basis is long overdue, and many of us in this place have worked on it. That is why it is so important that we take the opportunity to get this right, because they come along so rarely. New clause 3 and amendment 5, which I tabled, and new clause 1, tabled by the right hon. Member for Romsey and Southampton North but not selected for debate as it was not in scope, all get at the same point about ensuring we take this opportunity we finally have to recognise in law the fact that misogyny is driving crimes against women and to act on it.

I was thinking about some of the euphemisms we use and the things that are part of the culture we grow up in. We become so used to the fact that women are at risk and face harassment and abuse on a daily basis that we minimise it. I remember when I was younger being very concerned about somebody I was told had “deserts disease”, because I did not understand what it meant, until somebody explained to me that they meant wandering palms. We talk about people being handsy, and we talk about “creepy”, but all these behaviours are criminal.

What this legislation does is so powerful, because it says that the criminal offences that have been so much a part of women’s daily experience of public life should be acted on. For many of us who have campaigned on the issue for years, one of the biggest frustrations has been being told that we could not act on these things, because if we did, so many people would be prosecuted that the system could not cope, so it was up to women to take the abuse and find ways of minimising it and protecting themselves, carrying their keys in their hand and making sure they were alert at all times when they were in public, rather than us stopping it. What this legislation does that is so powerful is to say, “No, actually, it is not women’s job to protect themselves; it is society’s job to stop the people doing this.” The amendments I have tabled speak to that culture and the challenge we face in getting this right.

As the right hon. Member for Tunbridge Wells said, this is based on public order offences. There are other pieces of harassment legislation, which I am sure many people are familiar with. I had the fortune in a previous lifetime to work on some of them, which is why, on reading the Bill, I was concerned to identify some of the challenges with using the public order offence. I hope the Minister recognises that I want us to get the legislation right. My amendment are probing amendments, but I hope that by the time we get to Report, the questions they raise can be answered by the Government, because this is not a partisan issue; I think that Members across the House recognise the point I am making.

Public order offences are based on the concept of intent—did someone intend to harass somebody? They therefore give the person who is accused of it a defence that says, “Well, I thought my behaviour was reasonable.” The concept of reasonable behaviour is contained in other pieces of harassment legislation, but in that legislation it is also defined by whether someone ought to know it was reasonable. The Protection from Harassment Act 1997 refers to conduct that

“occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person.”

In contrast, public order offences simply allow the perpetrator to define whether they thought their behaviour was reasonable. Every woman in this room will recognise the challenge that that presents, because I wager that all of them have probably experienced unwanted touching and unwanted behaviour. I pay tribute to the Clerks, who have been fantastic in working with me on how we address that challenge.

Let us put it in the simplest phrases: “Cheer up, love! I was just trying to chat you up.” “Can’t you take a joke, love?” “It’s a compliment.” “Don’t get your knickers in a twist!” We have all heard those phrases when we said to somebody, “Stop.” We have all had the experience of somebody feeling they are entitled to touch us and harass us because they think their behaviour is reasonable. These amendments speak to a simple point. Most men in this country know how to approach a woman if they find her attractive. They do not feel the need to touch her breasts or her bottom or to harass her and abuse her, but some do. If we do not close this legal loophole, a commonplace experience for women—being challenged when they speak up for themselves and say, “No, don’t touch me in this way. Don’t speak to me in this way. Don’t harass me. Don’t abuse me”—will become a legal defence, because in contrast with other pieces of harassment legislation, there is no provision that says someone ought to know their behaviour is unreasonable in the definition of intent in the Public Order Act.

My amendments will do something very simple. They will introduce the concept of “ought to know” that is contained in other pieces of harassment legislation. I hope the Minister recognises that that will help to create consistency in how we define harassment in law. More importantly, none of us wants to see those women who are brave enough to come forward under this legislation and say, “This person did this to me” be put on trial about whether they can take a joke. Nine times out of 10, that person will be a man. I recognise that the Bill does not specify gender, and that is important, but we know from the 11 police forces that are defining misogyny as a hate crime and recording the gender of victims that the victims are overwhelmingly—80% to 90%—women.

We do not want victims to be put on trial about whether their response—their statement that such behaviour was not acceptable—is reasonable, because that would bring into play the very simple concept of whether anybody else would think it is reasonable. That concept exists in other harassment legislation—not just the Protection from Harassment Act 1997, but the Serious Organised Crime and Police Act 2005. The Crown Prosecution Service guidance says:

“In determining whether the defendant ought to know that the course of conduct amounts to harassment, the question to be considered is whether a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.”

It is important to clarify, in relation to the Bill, that in public order offences a judge can give what is called an oblique direction to a jury, so they can say: “This concept of reasonableness is not necessarily right.” That is there as a precedent, but reasonableness is not defined in every single case.

There is a risk that if we do not clarify that we want those same protections and the same questions in this Bill, that will create a legal loophole. My amendments are about that. I am sure the Minister will argue that they are not quite at the level they need to be. I completely understand that; this is a first attempt to flag the issue. If the Minister can suggest other ways to set out in law the fact that we need consistency and that we want to close the loophole, I would be very open to that, but the Bill will not do all the things we want unless we are clear that it does not matter that a person thinks it is reasonable to grab a woman by her breasts to express their sexual interest in her—most other people would not. This Bill is about those commonplace forms of public harassment—24,000 women every single day experience harassment—and it needs to be tightened up.

I hope Committee members understand where I am coming from with these amendments, and I hope they will find common cause across the House. I look forward to what the Minister has to say and to hearing how we might take the issue forward.

[Caroline Nokes (Romsey and Southampton North) (Con)]

It is a pleasure to serve under your chairmanship, Sir Gary. I pay tribute to my right hon. Friend the Member for Tunbridge Wells, who has done an enormous amount of work to bring together a coalition of reasonable people—to use the word of the hon. Member for Walthamstow—who have sought over many years to find a way forward on this really serious issue.

We know it is a serious issue because each one of us has listened to tales from our constituents and organisations in our patches. I always highlight the incredible work of Plan International UK, Girlguiding, the Women’s Institute and Soroptimist International. I had the pleasure of speaking about this issue at the Soroptimists’ regional conference, probably at the start of last year, although I fear that it may have been 2021. I am sure they will not mind me saying this, but it was a group of mature ladies. They were very clever, very sharp and very determined to ensure that their daughters and granddaughters do not experience the same things they had, albeit some years before.

The hon. Member for Walthamstow painted a picture of her daughter. My message to the Committee is that they are all our daughters. Those of us who are blessed with daughters often cite our experiences, but it is about every woman and young girl out there who has been the victim of this sort of harassment. The tragedy is that they all have.

I will not speak to my new clause, which was deemed out of scope—you need not worry about that, Sir Gary —but I will speak to the broad theme of this Bill, which is a huge step forward. We have been looking for this progress. I know it has been considered over many years by the Home Office under successive Home Secretaries. I pay tribute to the work of my right hon. Friend the Member for Witham (Priti Patel), my hon. Friends the Members for Louth and Horncastle (Victoria Atkins) and for Redditch (Rachel Maclean), and the Minister. I know they want to find a way forward.

I regard the Bill as the first step—this should strike fear into everyone’s heart. I will be completely candid: this is not perfect legislation. It omits some of the things that I would like to have seen included. We must keep a weather eye on what has been done to improve it when it comes back on Report and how it works in practice, because that is what really matters. It does not matter that we get the wording right in a piece of legislation if it is not any use on the ground. It is the practical implications that will make a difference to all those women out there who walk home with their keys in their hand.

We cannot shy away, and the hon. Member for Walthamstow did not shy away, from the fact that this is about women protecting themselves from male perpetrators. My Committee, the Women and Equalities Committee, is doing an enormous piece of work on misogyny and violence against women and girls. We never shy away from saying that in the vast majority of cases—of course I acknowledge that it is not every case—the behaviour is perpetrated by men, and it is cultural.

--- Later in debate ---

[Miss Dines]

To be able to get forward to the next step of the offence, the prosecution must always prove intent, so we would not get to the statutory defences until we have dealt with intent, and intent depends on the circumstances. I think we all know that it is all quite obvious, although I and the Government are willing to look at a better form of wording. I appreciate that my right hon. Friend feels passionately about this issue, and it is something that will be considered very carefully.

[Stella Creasy]

I thank the Minister for her time looking at this, because I have spent many hours doing so. I pay tribute to the Clerks, who were incredibly patient as we worked through the almost circular logic of when intent comes into this offence, partly because it is not a new offence; it is a kind of offence-plus, which is where some of the challenges about the decision on intent could be.

With the Government’s support on Report, we could learn lessons from other protections from harassment and other harassment legislation about the reasonableness test and where it comes in. I know that that would get support from the Opposition and the Minister’s colleagues, and it could clarify the point at which a defendant could claim reasonableness. That may be the way to do it, in the same way that this offence-plus also brings in the concept of discounting whether sexual gratification was part of the process. There will clearly be a point at which somebody decides whether it is a 4A or 4B offence, and that seems to be the point at which we could be clearer about the intent and whether somebody reasonable would know about it. We could put that in the Bill to give directions to judges and magistrates about how to interpret “reasonableness”, which is what I think we are all looking to get to. I hope that that is a helpful intervention to clarify where I think there is space to marry the two different types of legislation together.

[Miss Dines]

The hon. Lady makes very interesting points, and I know she is particularly interested in intent. It is right that we need to prove intent as part of the offence. I would question how much of a barrier this is in relation to the sorts of behaviour that the Bill is intended to address. I remind right hon. and hon. Members that the explanatory notes suggest five examples of behaviour that the Bill would cover, and I know the hon. Lady will be very aware of them. They are:

“(a) following a person (for example, deliberately walking closely behind someone as they walk home at night);

(b) making an obscene or aggressive comment towards a person;

(c) making an obscene or offensive gesture towards a person;

(d) obstructing a person making a journey; and

(e) driving or riding a vehicle slowly near to a person making a journey.”

I ask right hon. and hon. Members whether it can be plausibly claimed that a person carrying out that sort of behaviour does not actually intend to cause harassment, alarm or distress. It is not benign behaviour; it is almost as if that behaviour speaks for itself.

[Miss Dines]

I am grateful for that intervention. Of course, there are lots of different types of offences, and the circumstances that are explained are normally—I will not say “more serious”, because all these offences are serious—higher-level punishment serious offences. The Government have worked very hard in this area with the non-death strangulation measures that have been brought forward, and we seek the Labour party’s support for those sorts of measures. To some extent I agree with the hon. Lady, and to some extent I do not. For every matter that comes before the courts, it depends on the circumstances of the case. But things do evolve, and I accept that point.

[Stella Creasy]

Will the Minister give way?

[Miss Dines]

May I make a little progress? Things do evolve. Perhaps some people in the 1970s would have thought that following somebody closely in a car to pay them a compliment was acceptable. We now know that it is totally unacceptable; things evolve. Quite rightly, we know that such behaviour is certainly not benign. The climate is thankfully very different now and there is much greater awareness, but there is always more to do. If it can be plausibly claimed that somebody who does that was doing it without intent, we would have to get to the reasonableness defence.

--- Later in debate ---

[Miss Dines]

I thank the hon. Member for that intervention. My question is whether it could be plausibly claimed that such behaviour is not intended. I do not doubt that some defendants will try to claim that they had no malign intent when they walked closely behind someone at night, for example—defendants will try anything—but it would not be plausible, and I do not believe it would succeed.

There may be some other types of behaviour where intention to harass is harder to prove. I am reluctant to say that they are less serious, because all public sexual harassment behaviour is serious, but we are talking about relative degrees of severity. Perhaps an example is a wolf whistle in a crowded place in broad daylight, at some distance from a victim. Let me stress immediately that such behaviour is very far from okay. It is demeaning and objectifying to the woman, and has no place in our society, but it is perhaps the type of behaviour where non-criminal responses are more appropriate. I remind hon. Members of our Enough campaign, which doubtless they have seen. An intention test can usefully differentiate behaviour where the criminal justice path is the right one from behaviour where societal interventions are more appropriate.

[Stella Creasy]

The Minister is being very generous in giving way. A few years ago, when I left Parliament late at night and I walked up the steps to go to the underground, a young man—I was probably old enough to be his mother—walked up behind me, and slid his arms around my neck and then slowly round my breasts. He was trying to persuade me that I wanted to go to the Red Lion pub with him. I was very clear that that was not acceptable and I was not going to go. He followed me all the way down the street and I had to be quite physical to get him off me.

In that instance, he believed his intent was to charm and seduce me. He thought that that was an acceptable way to approach somebody. The difficulty with this legislation as it is currently constructed is that he could say in court, “My behaviour was reasonable—I thought it was reasonable.” In other forms of harassment legislation, that concept of reasonableness could be tested by whether anybody else would think it reasonable, but that would not come into play here, because of this difference in how we define what harassment is in different pieces of legislation. This is not about whether we could prove intent per se; it is the gap between how we define harassment in other forms of legislation as opposed to under public order offences, because they are about the first time somebody has contact with somebody.

I know the Minister said she and the officials will look at this. I hope they will. I hope we can clarify that it is not about whether something is serious and it is not about whether someone has intent; it is specifically about this concept of who decides whether behaviour is reasonable, so someone can mount a reasonableness defence. I am sure that young man would argue until he was blue in the face that I just could not take a compliment. That was not a compliment. It was harassment. It was intimidating and it was scary, and it is exactly the sort of behaviour the Bill is designed to capture—but he would have that defence unless we close the loophole. That is what we are getting at.

[Miss Dines]

I respectfully suggest that that stark example supports my position—that it would be so obvious what he was doing, and what he intended, that the defence would very easily be wiped away. But we need to keep that defence for the one or two circumstances where it should be reasonably argued.

--- Later in debate ---

[Greg Clark]

My right hon. Friend, a former Home Office Minister, makes a characteristically well-informed point about having the right intentions to make this an Act of Parliament that will not just sit on the statute book, but have a material effect on prosecuting perpetrators. As I said on Second Reading, we want to avoid the need for a large number of prosecutions by making it crystal clear to everyone that such behaviour is unacceptable and is a serious criminal offence. We should look at that and reflect on it.

It is fair to point out, as the Minister did, that the guidance in the explanatory notes to the Bill makes it clear that listing behaviours that are in scope establishes, in effect, that such behaviours would not be considered a justification that could overcome the question of intent and unintentionality. I will not go through the list that the Minister mentioned. One means would be to refer to other legislation. Another might be to consider the examples currently included in the explanatory notes and whether there might be a way to give them greater prominence so that prosecuting authorities, police forces and courts could take them into account. I hope that she will consider that as well.

[Stella Creasy]

In thinking about how to get this right, perhaps it would also be helpful to clarify that other forms of harassment legislation look for a course of conduct because they generally cover experiences in which we think somebody might have had a number of interactions with their victim. In this case, however, we are talking about the first time that people interact with people. The challenge is whether those ideas about “boys will be boys” and the clumsy attempts at trying to get somebody’s attention become even more part of the discussion about whether it was harassment.

For the magistrates who deal with these cases, it is even more important that we are clear that if somebody says, “I just thought that if I slapped her bottom, she would notice me,” that is not reasonable, because in today’s era slapping somebody’s bottom is not the best way to get their attention or express interest in them. Because we are dealing with that first form of contact, we have to match in this legislation the way in which we have talked about what is reasonable in other legislation. Otherwise, the cultural barriers that we are trying to get through will come into play even more, because they will fill the vacuum that a course of conduct would otherwise fill.

--- Later in debate ---

[The Chair]

Stella, is it correct that you are not pressing amendment 5 to a vote?

[Stella Creasy]

I am not going to press it this time, Sir Gary, but I do want to be clear that there is an issue that needs resolution. I withdraw on the basis that something will come back on Report—

[The Chair]

Order. I am afraid you cannot speak again. You have made that point very firmly, and I know the Minister has heard it.

Clause 1, as amended, ordered to stand part of the Bill.

Clause 2

Extent, commencement and short title

Amendments made: 2, in clause 2, page 2, line 5, at end insert “, subject to subsection (1A)”.

This amendment is consequential on NC2.

Amendment 3, in clause 2, page 2, line 5, at end insert—

“(1A) An amendment made by section (Consequential amendments) has the same extent as the provision amended.”

This amendment is consequential on NC2.

Amendment 4, in clause 2, page 2, line 6, leave out “Section 1 comes” and insert

“Sections 1 and (Consequential amendments) come”.—(Greg Clark.)

This amendment is consequential on NC2.

Clause 2, as amended, ordered to stand part of the Bill.

New Clause 2

Consequential amendments

“(1) In paragraph 1 of Schedule 1 to the Football Spectators Act 1989 (relevant offences for the purposes of Part 2), in each of paragraphs (c), (k) and (q), after ‘4A’ insert ‘, 4B’.

(2) In Schedule 8B to the Police Act 1997 (offences which are to be disclosed subject to rules), in paragraph 102, after paragraph (e) insert—

‘(ea) section 4B (intentional harassment, alarm or distress on account of sex);’.

(3) In Schedule 9 to the Elections Act 2022 (offences for the purposes of Part 5), in paragraph 35, after paragraph (e) insert—

‘(ea) section 4B (intentional harassment, alarm or distress on account of sex);’.”—(Greg Clark.)

This new clause consequentially amends the Football Spectators Act 1989, the Police Act 1997 and the Elections Act 2022 to include a reference in those Acts to the offence in new section 4B of the Public Order Act 1986 (intentional harassment, alarm or distress on account of sex).

Brought up, read the First and Second time, and added to the Bill.

Bill, as amended, to be reported.