“(1) The Secretary of State must issue guidance to—
(a) chief officers of police,
(b) the chief constable of the British Transport Police Force,
(c) the chief constable of the Ministry of Defence Police, and
(d) the chief constable of the Civil Nuclear Constabulary,
about the offence in section 4B of the Public Order Act 1986 (intentional harassment, alarm or distress on account of sex).
(2) The guidance must in particular include guidance about the reasonable conduct defence in section 4A(3)(b) of that Act.
(3) The Secretary of State may revise guidance issued under this section.
(4) The Secretary of State must arrange for guidance issued under this section to be published.
(5) A chief officer of police or a chief constable mentioned in subsection (1) must have regard to guidance issued under this section.”—(Greg Clark.)
This new clause requires the Secretary of State to issue guidance to the police about the new offence in section 4B of the Public Order Act 1986. It also requires that guidance to include provision about the application of the reasonable conduct defence in section 4A(3)(b) of that Act.
Brought up, and read the First time.
With this it will be convenient to discuss the following:
Amendment 3, page 1, line 7, leave out “because of” and insert “due to”.
Amendment 7, page 1, line 8, leave out “(or presumed sex)”.
Amendment 8, page 1, line 10, leave out ““presumed” means presumed by A;”.
Amendment 4, page 1, line 14, after “not—” insert— “(za) A is a man or a woman,”.
Amendment 5, page 1, line 16, leave out “because of” and insert “due to”.
Amendment 6, page 1, line 16, after “other” insert “subsidiary”.
Amendment 1, in clause 3, page 2, line 20, after “1” insert “, (Guidance)”.
This amendment is consequential on NC1.
Amendment 9, page 2, line 20, leave out from “on” to the end of line 21 and insert “
In line with your advice, Madam Deputy Speaker, I will address my new clause and the amendment in my name specifically, and I will also touch on the amendments tabled by my hon. Friend Sir Christopher Chope. I will not rehearse the reasons for the Bill. We have had a substantial debate on Second Reading and in Committee, and I hope it may be possible to say more on Third Reading.
New clause 1 would require the Secretary of State to issue guidance to the police about the new offence proposed in the Bill, and that guidance must include, but is not limited to, guidance on the defence of reasonable conduct that is already contained in the Public Order Act 1986.
During our debate in Committee, some Members were understandably concerned that the perpetrator of an act of deliberate harassment of a person on the grounds of their sex could escape the consequences of their actions by asserting that they thought their behaviour was reasonable. Some Members thought there was a risk that the police might be put off from taking the offence seriously, because of that potential defence. In fact, in the Public Order Act, reasonableness is not in the eye of the accused. Simply saying that behaviour that was intentionally designed to cause alarm or distress was reasonable does not provide a “get out of jail” card. Having clear guidance on this point would ensure that the matter is crystal clear to the police and all the authorities.
The proposed requirement for statutory guidance therefore provides that clarity, but it is not limited to that; the guidance can include other matters, should that prove desirable in future. The guidance would be addressed to the police, as is obvious from the terms of the new clause, but in practice its use would be wider than that, and would include the Crown Prosecution Service. That is because statutory guidance, once issued, is in practice taken by all parties to be authoritative. Indeed, there is no point in having separate guidance for the police, the CPS and any other body.
This is far from the only occasion when guidance is formally issued and addressed to one particular audience, rather than being proliferated to multiple actors. For example, statutory guidance within the Stalking Protection Act 2019 is formally issued to the police, but was drawn up in consultation with other statutory partners, including the Crown Prosecution Service. I envisage and hope that the Minister will be able to confirm that the same approach will be taken in this case, and that the CPS would be involved in drawing up the guidance to which my new clause refers.
It seems to me, reflecting on the debate we had in Committee, that an amendment that guidance must be issued and must include, inter alia, statutory requirements on the interpretation of reasonable conduct, is a pragmatic and practical way of responding to the points made in the debate. I am delighted that new clause 1 has attracted widespread support, including that of the Government, whose assistance in drafting it I grateful acknowledge.
How long does my right hon. Friend expect it to take for this guidance to be produced? The guidance requested last year on the draft code of practice on the recording and retention of personal data for non-crime hate incidents took more than one year to produce. Does he envisage a similarly long period? To what extent does he expect the House to have a say on the content of the guidance?
I would be very dismayed if it took a year to draw up such guidance, and my hon. Friend gives a cautionary warning. When the Minister responds to the debate, I hope he might undertake to produce the guidance with dispatch. I said a few moments ago that it is right and appropriate that guidance is drawn up in conjunction with the CPS, which also has regard to it, and that will take some time. I hope, however, that it will be a matter of weeks rather than a large number of months. The Minister and I are experienced in office, and we know that only the Minister can give an assurance as to how long it will take, but I am delighted that my hon. Friend shares my impatience to get on with it.
As my hon. Friend knows, guidance is issued by the Government of the day. It is not a statutory instrument, and we are not proposing that it should be. I think it would be desirable for such guidance to be shared not just with the House but in public. Guidance that is important should enjoy the confidence and wisdom of those who intend to use it.
Finally, does my right hon. Friend envisage that the guidance should first be produced in draft form, so that there is an opportunity for people to be consulted publicly on it?
Again, that is a matter for the Minister, but I would not only be content with that but think it a desirable route to take.
On the amendments tabled by my hon. Friend, he is right to seek to ensure that legislation in this House is properly scrutinised and debated, and the points he has raised—including those he just made—are pertinent and valuable. As I hope he might expect, I have studied his amendments carefully, so let me deal with them in turn.
Amendments 3 to 5 prefer the words “due to” to “because of”. Precise language is important—he and I share that view—but I do not think that the preference on his part signifies any difference in interpretation. The expression “because of” is extensively used in existing legislation. For example, section 66(4) of the Consumer Rights Act 2015 refers to circumstances in which someone suffers loss or damage
“because of the dangerous state of the premises”
That is “because of” rather than “due to”. With perhaps more immediate relevance to our discussions, the Equality Act 2010 uses “because of” rather than “due to”. For example, paragraph 3(5) of schedule 11, on school admissions, refers to circumstances in which a school
“does not admit a person as a pupil because of the person’s sex”,
rather than “due to” it. It may well be that my hon. Friend’s use of language is more elegant than that contained in the laws already on the statute book, but I hope he will agree that there is some virtue in linguistic consistency in the law. That is the reason behind that choice of words.
My hon. Friend’s amendment 4 clarifies that it does not matter if person (A) specified in the Bill—the perpetrator of the offence in question—is a man or a woman. Although the majority of reports of public sex- based harassment have been by men towards women, the Bill applies totally equally to both sexes, and at no point does the Bill mention anyone’s sex. There is no ambiguity in the Bill on that point. If my hon. Friend is concerned that this may not be clearly understood in practice, such as by the police, it may be a candidate for inclusion in the statutory guidance to which we have already referred. As he will recall, the guidance specifies interpretation of reasonable conduct but is not limited to that. If, perhaps after taking soundings from the public, there turns out to be some ambiguity in people’s minds—if not in the Bill—there is the opportunity to address that.
Amendments 2 and 6 would introduce a concept of subsidiarity and primacy. In other words, an offence would be committed only if the sex-based harassment was the primary motivation or aspect of the behaviour, rather than one of a number of aspects. I completely understand the point my hon. Friend puts forward, but I will say two things in response. First, one of the purposes of the Bill is to bring harassment on the grounds of sex in line with the existing law as it affects other protected characteristics, such as race. To take race as an example, to be guilty of the aggravated offence of public harassment on the grounds of race does not require the racial elements to be the primary element of a torrent of abuse that one person might direct at another. Nor is public racial harassment defensible on the grounds that racist harassment was merely a secondary aspect of the behaviour in question.
Indeed, not only is there the argument of consistency, which the Bill seeks to address, but, in this case, it is right that it is framed in this way because racist abuse should not happen at all. The law should be clear on that, and that applies equally to harassment on the grounds of someone’s sex. For reasons of consistency with the established law elsewhere and, in my view, what is right, we should not introduce a special filter for primacy on the grounds of sex that does not already apply to race and other offences that already have this protection.
Amendments 7 and 6 would delete references to “(or presumed sex)”. The current treatment in the Bill is, again, drafted to be consistent with the Bill as it applies in other contexts, particularly to protected characteristics. To use the example of racial harassment again, section 28 of the Crime and Disorder Act 1998 makes it clear that an offence is racially aggravated if the offender demonstrates hostility
“based on the victim’s membership (or presumed membership)” of a racial group. It is not always possible with 100% accuracy to determine a person’s race or sex in a public place. Indeed, Shakespeare would have been robbed of many a dramatic plotline were it otherwise. But that does not mean it should be acceptable to hurl abuse intentionally at someone who turns out not to be of the sex that was assumed, any more than it would be acceptable to scream racial abuse in public at someone who turned out not to be of the race that the perpetrator presumed them to be. Therefore, again, for reasons for consistency with the existing law and for reasons of justice, I think the drafting of the Bill has it right.
In amendment 9, my hon. Friend, as presaged in his earlier intervention, seeks to specify a commencement date of
Should the Bill be approved by the House today, as all colleagues know, it would then need to go to the House of Lords, whose procedures and timings are not always clear to at least this Member of this House. If my new clause 1, requiring statutory guidance to be issued, is inserted by the House, that will, as we discussed a few moments ago, take some time, especially if we provide an opportunity to take soundings on it before it is adopted. So I fear that
In conclusion, I am very grateful to my hon. Friend for his thoughtful and apposite amendments. I hope he can tell that I have seriously considered their effects. In no case am I antipathetic to the quite reasonable questions he raises about them, but I do think they have answers in the current drafting of the Bill, with the new clause I am moving today, so I hope that at the end of the debate he will feel able not to press amendments and, should circumstances arrive, to join me in continuing a campaign for great dispatch on the part of the Government.
I rise as the person who tabled the original amendments in Committee that prefigured new clause 1, to recognise this as the best of Parliament. When we come together to write legislation we believe will make a positive and constructive difference to people, listening to each other’s concerns and recognising the positive pare that scrutiny can play in the process, it can bear fruits that we can all support. I welcome and support new clause 1 as a recognition that there was a concern and an issue with the concept of reasonableness being at the heart of public order offences. Let me clarify what I mean by that.
Let me clarify what I mean by that: this legislation is about harassment, and other forms of harassment legislation have always had within them a test that someone’s behaviour cannot be considered reasonable if general opinion would be that their behaviour was unreasonable. In layman’s terms, when it comes to the harassment that we are talking about, if someone were being followed down the street and shouted at—particularly about their sex or presumed sex—even if that person were to claim it was reasonable, a magistrate should be able to say that it was patently not. The person responsible should not be able to evade prosecution under this legislation. However, this Bill was originally based on public order offences legislation, which does not include that distinction about whether somebody ought to know that their behaviour was unreasonable.
It is very welcome that the Government have listened and agreed to put out guidance to consider that point. I hope that setting out what I believe that guidance should cover will be a helpful guide to the Government, and perhaps will answer the genuine queries from Sir Christopher Chope about whether there can be involvement in it. For many of us, getting this issue right goes to the heart of how this legislation will deliver the effective freedom that we hope for particularly, but not exclusively, for women, as it is women who are overwhelmingly reporting the kind of incidents that we are talking about in this legislation.
One of the challenges will be the initial decision as to whether someone has committed an offence. Many of us are extremely used to the idea that the challenge is our reaction to someone’s provocation, rather than the provocation. I hope that new clause 1 will recognise that, consistent with other forms of harassment legislation, a defendant arguing that their behaviour is reasonable should not be a reason not to proceed with a charge. I want to be clear about that, because I understand why people would be concerned. No one is suggesting that the reasonableness defence should not remain; we are arguing that it should for the courts or the magistrates to decide whether the behaviour was reasonable, rather than the defendant. In setting out the guidance, I hope that the Government will give weight to the idea that the presentation of a reasonableness defence, which is quite frequent in harassment cases but not necessarily in public order offences, should not deter the CPS or the police from seeking to proceed with a prosecution. In that sense, it would be consistent with the guidance on the Serious Organised Crime and Police Act 2005 or the Protection from Harassment Act 1997.
In reference to some of the amendments tabled, agree with Greg Clark about the importance of consistency in the law. I add my support to his argument about retaining the provision on presumed sex within the Bill. The most important thing about this legislation is that it turns the lens from the behaviour of victims—women in particular, because although this legislation covers both men and women, and male and female perpetrators, women will particularly benefit from our clarifying that street-based harassment is unacceptable and is illegal already, and therefore carries a higher penalty if it is targeted in this way. Too often, the victim’s behaviour has been called into question in decisions whether to prosecute. It important that the legislation is written in such a way to turn our attention back to the perpetrator. Were we to have loopholes, whether around reasonableness or the status of the victim, we could inadvertently undermine the capacity of the police and the CPS to secure that outcome.
I recognise the attempts from the hon. Member for Christchurch to test the legislation. If he read the scrutiny of the legislation in Committee, he would appreciate that, because that is where new clause 1 has derived from. I hope he will understand that many of us feel that the changes he suggests would undermine the Bill, because it would not be as clear that our sole concern is the people who harass, intimidate and abuse other people in public because they are focused on the sex or presumed sex of the victim. The important message that we want to send by passing this legislation is that the existing crimes should not be diminished, ignored and seen as part of everyday life, and that we should address them.
That is what I wanted to say, as the person who originally drafted the amendment that has led to new clause 1. I also recognise the cross-party working to get this legislation right. I hope that those who had concerns about new clause 1 or other parts of the legislation will see the benefit of having had these discussions, and that the Bill will benefit many of our constituents as a result.
It is a pleasure to follow Stella Creasy, who I know takes a great interest in this particular subject. I am delighted that she included in her remarks a reference to the fact that this legislation applies equally to men who are victims as it does to women who are victims.
When I looked at the Committee report, one of my concerns was that there was not even a mention of men and boys being victims. I therefore wanted to ensure that emphasis was given to the fact that the Bill applies to men and women equally. I am grateful to my right hon. Friend Greg Clark for emphasising that point and saying that, if needs be, that could be included in the guidance produced for prosecutors.
I want to emphasise the significant extent to which men are being sexually harassed. A report from Diversity Dashboard says:
“Sexual harassment in the workplace is widespread, and women suffer the most…although…a significant percentage of men are also victims of sexual harassment.”
According to the Nursing Times, many people do not report to their employer that they have been harassed and
“only 17% of sexually harassed male nurses actually report it to their employer. Overall, female nurses are more frequent subjects of sexual harassment. However sexual harassment statistics by gender tell us that men aren’t spared either.”
Indeed, 51% of the male respondents to the Nursing Times survey said they had been sexually harassed, which is a very high percentage. Diversity Dashboard goes on to say:
“Research shows that, when a man suffers a sexual assault in the workplace, a woman is a perpetrator in 76% of the cases…Additionally, it’s worrying and insensitive that such behaviour is seen as a joke when it involves male victims.”
That is why although men are overwhelmingly responsible for sexual harassment against women, we need to take into account that men are on the receiving end as well.
The reason this issue is so important at the moment is a growing belief among experts, including those in professions relating to psychiatry and psychology, about the impact of sexual politics, as it is called, on young men. Madam Deputy Speaker, you may have seen the recent article in The Spectator by Gus Carter, in which he says masculinity is now in crisis. He goes on:
“The polling company YouGov found that just 8 per cent of people have positive views of white men in their twenties, by far the lowest of any ethnicity or age group. Males are routinely presented as inherently dangerous, aggressive and animalistic, incapable of controlling their own instincts. You can see it on public transport, where government adverts announce that staring is sexual harassment. Us blokes can’t even be trusted to use our eyes properly.”
This is a very serious aspect of the debate around harassment and, as I prefer to put it, common decency, standards of behaviour and politesse. The sexualisation, in a sense, of harassment is having an adverse effect on young males. Teenage boys are being routinely disciplined by schools in circumstances in which their female counterparts are not. A female former teacher who left the profession last year is quoted in the article:
“Boys are now seen as potential perverts… There was this obsession with the victimisation of women. I thought we had been getting somewhere with sex and relationships, teaching the children to treat people with respect, but that has been totally set back.”
I will not go into all the other points that the article makes, but one that is relevant to this debate is that
“there seems to be an inability to hold two notions in our heads: that sexual assault is bad and that treating men as inherent sex pests is also bad. A reasonable worry about assault appears to have morphed into an institutional misandry. There is a lack of recognition that, as with all crimes, the proportion of perpetrators is vanishingly small. The awful behaviour of a few is leading to the mistreatment of all.”
The consequence of all this in relation to mental health issues for boys and young men, unless we are extremely careful with the language we use, will be that a situation that is already bad gets even worse. Since 2017, the NHS has found that the proportion of boys with probable mental health issues has increased by more than 50% to nearly one in five. The suicide rate for boys aged 15 to 19 has more than doubled over the past decade. The child psychologist Julie Lynn Evans has said that she thinks the pendulum has now swung too far in the other direction:
“The boys came out of lockdown into this slightly hysterical atmosphere of ‘Don’t touch, that’s inappropriate, that’s assault.’ They are being treated as guilty until proven innocent.”
The article, which I think very telling, goes on to ask what we are going to do about this. Are we going to recognise that young men aged 18 to 24 are significantly more likely to be unemployed than women in a similar age group, and that women are outperforming men in university? We have this problem of workless men living with their parents and almost being discouraged or intimidated into not going out on the street—not only not finding jobs, but not finding girlfriends and so on.
A really serious problem is developing for us, which is why I thought it important to table an amendment to put it right. I am grateful to my right hon. Friend the Member for Tunbridge Wells for recognising the significance of the issue. Even—I say “even”—the hon. Member for Walthamstow seems to accept it, and I hope that when she makes remarks on the subject in future she will always emphasise that it is about not just one particular group of victims, but people in general, of both sexes.
Other amendments that I have tabled were designed to develop the debate, and I think we are having that debate. Let me deal first with the timescale and the fear that the guidance will be much delayed. I am not sure that the requirement to produce guidance is necessarily a reason that the Bill could not come into law first, with guidance to follow. The offence could still be created without being conditional on the guidance being produced first, so I do not think that an adequate reason for the Government not to accept a specific date of implementation. My right hon. Friend the Member for Tunbridge Wells generously says, “I try to keep an eye on some of these things.”
One reason why amendment 9 would put a specific date in clause 3 is that I had a similar experience with the Bill brought to this place by my right hon. Friend Sir Greg Knight on the abuse of parking rules by rogue parking companies. I suggested that the guidance that followed from the Bill should have to be delivered within a specified period; if it was not, the legislation would not take effect. I am afraid to say that as of today—this was, I think, two years ago—the legislation has still not come into effect. My right hon. Friend was sympathetic to my amendment, but the Government persuaded him to encourage me to withdraw it, in order to protect his Bill. I cite that as an example of the problems arising when we leave it to the Government to decide when and if legislation should take effect.
Perhaps my right hon. Friend the Minister for Crime, Policing and Fire will, when responding to the debate, deal with the issue around prisoners. One can understand that the Government might be nervous about a consequence of the legislation being that more people may be sent to prison. Certainly, that was one of the objections of a previous Government to the suggestion that we introduce more severe penalties for people convicted of causing death by dangerous driving. The argument was that it would result in extra prison places being taken up. I hope that he will say that the number of people in prison is not relevant to the debate, because surely the law should take its course; punishment should not exclude prison if prison is merited, just because we do not have enough room in prisons. If we do not have enough room in them, we need to remove from them some of the people who are still on indeterminate sentences, which I think are pretty unjust, and/or we need to build more prisons. That is why I think it is important to put a fixed date in the Bill, and I chose, arbitrarily,
I turn to my other amendments. On whether to use “because of” or “due to”, I concede that it is a “how many angels can dance on the head of a pin” issue. I am grateful to my right hon. Friend the Member for Tunbridge Wells for having looked at that point. On amendment 2 about primacy, proposed new section 4B(1) of the Public Order Act 1986, inserted by clause 1, says:
“A person (A) is guilty of an offence under this section if—
(a) A commits an offence under section 4A (intentional harassment, 5 alarm or distress), and
(b) A carried out the conduct referred to in section 4A(1) because of the relevant person’s sex (or presumed sex).”
I assumed that that would be the sole reason for that behaviour. Indeed, in discussing this with my right hon. Friend, I thought that that was his understanding of his Bill and no subsidiary or other reasons would be taken into account. However, I looked at the subsequent provisions and saw that proposed new section 4B(3) of the 1986 Act stated:
“For the purposes of subsection (1)(b)”— the one to which I have just referred—
“it does not matter whether or not—
(a) A also carried out the conduct referred to…because of any other factor”.
I could not understand why “any other factor” had been introduced, because it seemed redundant and it undermined his contention that when drafting this Bill he wanted it to be clear that this was the primary, if not sole, reason for the conduct being referred to. He has used a slightly different explanation today as to why he is unhappy with my amendments and is citing various precedents from other Acts and claiming “consistency”.
I would be grateful to the Minister if he could spell out whether he accepts that “the relevant person’s sex” must be the main reason for the conduct carried out, otherwise there will not be an offence being committed under the provisions of this Bill. If he is able to spell that out, and perhaps it will be repeated in the guidance, I will go home as a relatively happy bunny. On that note, at this very moment the other place is debating the Third Reading of my Mobile Homes (Pitch Fees) Bill, which is about changing the rules from using the retail price index to using the consumer prices index. I hope that I will be able to go home a happy bunny on the basis of its getting Third Reading in the other place, and I am most grateful to Lord Udny-Lister for taking it through that House. That, however, is an aside.
My amendments 7 and 8 talk about “sex” or “presumed sex”. Let us suppose that someone is in the business of harassing people on the basis of their sex—I hope that not many people are. Let us then suppose that that person thinks that they are harassing a man but it turns out that the person they are harassing is not a man and is in fact a woman——it may be the other way round, and they may think that they are harassing a woman and it then turns out that the person is not a woman but a man. The amount of alarm or distress that will be caused to the person on the receiving end will be significantly reduced if they are not of the sex that was intended by the person who was harassing—
I do not seek to quarrel with my hon. Friend. But let us consider the analogous situation in which a person with brown skin, relatively dark skin, were the subject of a humiliating torrent of racial abuse in the street but was not a member of a given racial group, I do not think that would diminish the impact and the offence intended by the person. Surely the same would apply in this case, and the person on the receiving end would feel humiliation and the perpetrator would have had exactly the same intention.
With the greatest respect to my right hon. Friend, I think he is conflating two dissimilar situations, because the situation he is describing is already an aggravated offence and what we are talking about here are offences that are not aggravated. Indeed, this Bill has been introduced because they are not regarded as aggravated offences and thereby qualifying for greater punishment.
It is a mistake to try to equate a situation where something is already an aggravated offence with the situation described in this Bill. If a person is harassing or making remarks to somebody in the mistaken belief that they are trying to insult a woman, but it turns out that they are a man, that seems to me to be a mistake. Although that will probably still enable the person to be convicted of a public order offence, it will be a public order offence not because of their behaviour, but because of that person’s sex. It is semantics, I am prepared to concede, but that is why I introduced that amendment.
I have tried to avoid—and have done so up to now—getting into the debate about the difference between sex and gender. I will not rise to my hon. Friend’s bait to try to develop arguments around that. The Bill, commendably, is specific to sex, and it leaves out gender. I will leave it at that if that is all right with my hon. Friend.
This brings me to the conclusion of my remarks. I will not say what my intentions are in relation to these amendments until I have heard from the Minister, which I hope, Madam Deputy Speaker, you will think is a reasonable approach to take.
First, let me say how pleased I am to see the Bill finally making its way through the House today. I thank all of the campaigners and people who have worked tirelessly on this issue, including, obviously, Greg Clark with all of his engagement, the civil servants who have been working with him, my hon. Friend Stella Creasy and the many other Members who have contributed to discussions on this subject for such a long time.
As we near the end of Women’s History Month 2023, I can say that the Bill is a welcome step in the right direction. I will, if I may, pull us back to the main subject at issue, which is around public sexual harassment. It does remain a major problem in our society. Plan International UK found that three quarters of girls and young women aged 12 to 21 experienced a form of sexual harassment in a public space in their lifetime. Those numbers increase for disabled women and girls, and for women and girls from a black, Asian or minority ethnic background. The impact of this harassment is shocking. Perhaps it is worth reminding the House about that as we discuss the Bill. In 2020, the Girl Guides found out that 80% of girls and young women feel unsafe when they are out on their own, increasing to 96% of young women aged 17 and 18.
In that case, I will just say that I mentioned those points in relation to new clause 1 and the other amendments. I believe that the right hon. Gentleman has set out very clearly the rationale, as has my hon. Friend the Member for Walthamstow, spelling out why we require guidance—we all hope that it will come speedily—but also why it is important that the legislation is consistent with other Acts in this area. I hope that the House will bear those remarks in mind when deciding how to vote.
It is a great pleasure to speak to the amendments before the House on Report. I am grateful to my right hon. Friend Greg Clark for his new clause 1 and amendment 1, and I am happy to confirm formally that the Government support those amendments.
As my right hon. Friend has set out, the new clause would require Ministers to publish statutory guidance for all police forces, to which those police forces would have to have regard. In particular, the guidance would need to include material about the reasonable conduct defence that has been the focus of so much discussion. There has been some concern, expressed by Stella Creasy and others, that a subjective interpretation of the reasonable conduct defence might be adopted by defendants in an attempt to repudiate responsibility for their actions or to avoid conviction.
It is the view of the Government that what constitutes reasonable conduct can be defined objectively with regard to their conduct, without needing to have regard to somebody’s internal thought processes. However, we agree that guidance would be valuable in order to be completely clear about that point and to remove any ambiguity, so we are happy to support new clause 1 and amendment 1 in the name of my right hon. Friend the Member for Tunbridge Wells.
It will of course be possible for many other people besides the police to refer to the guidance, including the Crown Prosecution Service, which we would expect to operate on the same basis as the police when prosecuting those offences. To respond to a very reasonable question from my hon. Friend Sir Christopher Chope, we want to get this done as quickly as possible. I certainly would not want or expect it to take anything like so long as a year, which he referred to in his speech in a different context; I hope it can be accomplished in a matter of months.
My hon. Friend also said that the guidance should be subject to input and scrutiny to ensure that it is constructed in a way that is proportionate and reasonable, and I am sure the hon. Member for Walthamstow would agree. I would therefore expect opportunities to be provided to interested parties to provide that comment and I will give consideration to whether we should have a formal consultation process on the guidance. We should be mindful that that would introduce additional delay, but, given that the point has been raised, we will give it thought and strike the right balance between getting the guidance done quickly, which everyone wants, and making sure that interested parties both in Parliament and outside have an opportunity to input into its construction.
I am grateful to my right hon. Friend the Member for Tunbridge Wells for tabling the amendments and to other hon. Members, particularly the hon. Member for Walthamstow and my hon. Friend the Member for Christchurch for offering their comments.
Would it not be normal to produce the draft guidance and then consult on it, rather than expecting the Government to come up with the perfect solution after they have received representations in general? I strongly urge my right hon. Friend to take the approach of having draft guidance first.
It is occasionally possible for the Government to come up with something perfect straight away, but I accept that that does not always occur. The process that my hon. Friend just set out, where the Government might publish a draft and invite comments on it, either informally or via a formal consultation, seems to me a sensible way of arranging matters.
One of the concerns behind much of this is about consistency in the law. With other forms of harassment legislation, how reasonableness is defined is already written in. I invite the Minister to consider whether the important thing is not to come up with a whole new set of guidelines, but simply to clarify and be consistent in how we expect courts and juries to consider that concept when somebody claims, “I thought my behaviour was reasonable,” and the law says, “Well, you ought to have known,” in other forms of harassment legislation. This is not about a new piece of guidance; it is about clarifying matters so that we do not inadvertently damage the ways in which our courts can work. For example, the CPS guidance on the Serious Crime Act 2015 talks about how defendants “ought to know” about the course of conduct—again, with oblique directions that judges can give. There is plenty of guidance out there; we really just need to compile it into one document, do we not?
I completely agree with the hon. Lady. There is existing guidance and practice in other areas that quite rightly clarifies or confirms that the assessment of reasonableness includes what somebody ought to have known, and that inferences can be drawn from their behaviour. She is quite right to point to that existing guidance and practice, and I completely agree that we should be consistent on that. I am sure that looking at that would help to draw up the draft in a quick manner. A combination of the approaches suggested by the hon. Lady and by my hon. Friend the Member for Christchurch will quickly lead us to the right answer and enable us to publish something—a draft—and get views on it, as my hon. Friend suggested. It sounds to me as if there is a rapid, sensible, pragmatic and consistent way forward.
Let me turn now to the amendments moved by my hon. Friend the Member for Christchurch. On the topic of his good humour, I have been informed by the Government Whips—a source of unimpeachable reliability, obviously—that his Mobile Homes (Pitch Fees) Bill has successfully passed its Second Reading unopposed in the other place. I hope that that provides an early boost to his good humour. Although it does not relate directly to an amendment, I just want to respond to one important point that arose in his speech, on something that I have noticed, too: adverts on London underground tubes referring to people’s behaviour in terms of where they look. He said that those were produced by the Government. For the sake of clarity, those advertisements are in fact produced by the Mayor of London in his capacity as the head of Transport for London.
As the House has heard and would expect, my right hon. Friend the Member for Tunbridge Wells has given the various amendments tabled by my hon. Friend the Member for Christchurch close and careful consideration, as have colleagues in the Home Office. We completely understand that my hon. Friend the Member for Christchurch has tabled the amendments after a great deal of consideration, and we have taken them very seriously indeed, so I will go through them one by one.
First, amendments 2 and 6 would require the other person’s sex—the victim’s sex—to have been the principal motivation for the defendant’s behaviour. As my right hon. Friend the Member for Tunbridge Wells has set out, he has drafted the legislation in the way that he has so that we are following precedent, and, as the hon. Member for Walthamstow said a moment ago, it is best that, where possible, we are consistent in the way we legislate. If any component of the motivation for the defendant’s behaviour is concerned with the sex of the victim, that is, in itself, of great concern. It may not be the principal component in some cases—it may simply be one component or a subsidiary component—but it is serious none the less.
The aim of the House is to protect people from sex-based harassment, and it strikes me that, whether the sex-based component is the principal component or a subsidiary component, the seriousness remains. Having considered that very carefully and, of course, discussed it with the Bill’s promoter, my right hon. Friend the Member for Tunbridge Wells, our feeling on balance is that the drafting as it was best translates the House’s intention into legislation and is consistent with the rest of the statute book.
Amendments 3 and 5 would replace the words “because of”. Once again, as my right hon. Friend has set out, those words appear in a number of other contexts, in other pieces of legislation, and although we cannot, as he said, dispute the command of the English language and elegance of expression of my hon. Friend the Member for Christchurch, there is a great benefit to consistency with other pieces of legislation. We feel that following precedent and maintaining that consistency is a good idea.
Amendments 7 and 8 would restrict the new offence to cases in which the harassing is done because of the victim’s actual sex, rather than what the defendant presumes the victim’s sex to be. I agree with my hon. Friend the Member for Christchurch that getting into wider discussions about the distinction between sex and gender would probably not be helpful in the context of this debate. We are considering here a circumstance in which someone harasses someone else in the erroneous belief that that person’s gender is the opposite of what it actually is. I think that what matters is the intent to cause sex-based distress and harassment, and that even if the perpetrator, or the alleged perpetrator, was mistaken in their assumption about the sex of the victim—or the purported victim, the complainant—that does not minimise or mitigate the seriousness of the act, because the intention was there and the act was undertaken.
At this point I should say that I had meant to address at the start of my speech a question that arose while my hon. Friend the Member for Christchurch was speaking. Let me deal with it now. I agree with my hon. Friend that concerns about prison capacity should not constrain what the House may do in framing new legislation. It is of course incumbent upon Parliament to legislate and set out criminal offences. The police will investigate, the Crown Prosecution Service will prosecute and the courts will, if appropriate, convict. It is then up to the Government to ensure that adequate prison capacity is available. I know that my right hon. Friend the Lord Chancellor and Secretary of State for Justice is engaged in a substantial prison building programme, and I agree with my hon. Friend the Member for Christchurch that prison capacity constraints or availability should in no way fetter the House as it considers legislation.
The Minister is making some very good points, with only one exception: I think that the Mayor of London, Sadiq Khan, has had a good record in this general area. When it comes to the prison population, however, is it not about time that we did something about the 1,000 young people who are convicted under joint enterprise? That could open up so much capacity in our prisons.
The hon. Gentleman has made an important point, and I am sure that—as you have implied, Madam Deputy Speaker—the House will have an opportunity to consider it on another occasion.
Amendment 4 would make the Bill state that the defendant can be a man or a woman. As we heard earlier from my right hon. Friend the Member for Tunbridge Wells, the defendant could indeed be a man or a woman, and indeed the victim could be a man or a woman, because, as we have established, the Bill makes no distinction between men and women. We do not generally set out in legislation the permitted genders of potential perpetrators, or those who might be guilty. Almost every offence is capable of being committed by a man or a woman, but we do not usually need to put that on the face of a Bill, and I do not think we need to do so in this instance. However, my hon. Friend the Member for Christchurch was right to raise this issue and to seek the clarification that I am happy to provide.
Amendment 9 requires the Bill to come into force on
There is also the question about the guidance, which we have discussed already, and the suggestion that we publish a draft that people can then comment on. That will take a little time. I hope it is a few months, but I do not want to create a tripwire that we inadvertently stumble over. I suggest that we proceed, as is often the case in primary legislation, with commencement via a statutory instrument, with a firm undertaking from the Government that we will seek to do this as soon as possible. The Bill clearly commands, in principle, widespread support across the House, and for the sake of protecting women and men it is important that we get this on to the statute book, and operational and effective, as quickly as possible.
Question put and agreed to.
New clause 1 accordingly read a Second time, and added to the Bill.