Amendment 219

Police, Crime, Sentencing and Courts Bill - Committee (8th Day) (Continued) – in the House of Lords at 11:00 pm on 15th November 2021.

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Baroness Newlove:

Moved by Baroness Newlove

219: After Clause 131, insert the following new Clause—“Aggravation of offences on grounds of hostility related to sex or gender(1) Section 66 of the Sentencing Code is amended as follows.(2) After subsection (1)(e) insert—“(f) hostility related to sex or gender”.(3) After subsection (4)(a)(v) insert—“(vi) the sex or gender (or presumed sex or gender) of the victim, or”.(4) After subsection (4)(b)(v) insert—“(vi) hostility towards persons who are of a particular sex or gender.””

Photo of Baroness Newlove Baroness Newlove Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, the murders of Sarah Everard, Bibaa Henry and Nicole Smallman earlier this year shocked the entire country, and rightly so. Yet we know that these cases are not an exception. In the seven months after Sarah Everard’s death, another 81 women were killed, and countless more were subjected to sexual violence, abuse and harassment.

We repeatedly hear from the police that women do not come forward to report crimes—yet the evidence shows that they are right to be concerned that the violence and abuse they face often do not result in criminal sanction. A UN Women UK survey in January 2021 showed that 80% of women of all ages said that they had experienced sexual harassment in public spaces. Some 96% of respondents did not report this, with 45% saying that it would not change anything. In March this year, HOPE not hate published figures showing that 85,000 women are raped each year, but only 1.4% of rape cases in England and Wales that had been recorded by the police ended with the suspect being charged. This is the lowest figure ever recorded. We know from the Office for National Statistics that more than 2 million crimes against women have gone unreported since 2018.

Today I am proposing Amendment 219 so we can learn from police best practice in tackling this epidemic of violence and restore confidence that the police get the seriousness and scale of the problem. In 2016, Nottinghamshire Police, under the leadership of Sue Fish, became the first police force in the country where women and girls could report a case of abuse and harassment and have it treated as what it is: a hate crime. Over 11 police forces follow this approach, including north Yorkshire, Avon and Somerset and Northamptonshire.

I want to take on some of the myths. First, Amendment 219 does not create any new offences. It is about recognising the causes of existing offences and how serious this is for society. Secondly, this is not about catcalling; street harassment is already illegal. We rightly do not accept casual racism in our streets. Why should we accept those who try to intimidate or exercise power over women by screaming abuse at them? Talking about this as being about wolf whistling minimises the experiences women have. In Nottingham, women came forward to report stalking, groping, indecent assault and kidnapping, knowing police would take these matters seriously and see how women have been targeted. Independent research showed that this improved victims’ confidence to come forward and changed the culture in the police towards understanding the causes of violence against women. Reporting crimes increased by a quarter, giving police the crucial information they needed to identify repeat offenders. We know that many offenders graduate from apparently minor offences, such as harassment, to more serious ones. This policy helps the detection and prevention of these crimes by repeat offenders.

Thirdly, this is not just about data; it is about how we treat violence against women and girls. We rightly recognise that crimes motivated by racism or homophobia are especially serious and that those who commit them should face harsher sentences. When we do not extend equal treatment to those who target women simply for who they are, it is little wonder that many women do not feel the police take seriously the violence and abuse they face. The Government agreed earlier this year to ensure that all police forces do this, and we await implementation. Yet, as the hate crime co-ordinator in north Yorkshire told us, without the courts following this up through their sentencing, the impact of this policy is limited.

Amendment 219 would ensure that our courts reflect this hostility in determining the sentence someone receives. It uses the same logic as other forms of hate crime, such as religion, race or sexual orientation. It would insert “sex or gender” into Section 66 of the Sentencing Act. I know some colleagues will ask about this wording. First, it ensures that crimes motivated by hatred towards either men or women for being men or women would be recognised as such, but make no mistake, the evidence shows that women are overwhelmingly the victims. In Nottinghamshire and Avon and Somerset, 90% of victims reporting were women. In Devon, it was 80%.

Secondly, this means our focus is on the perpetrator and not the victim. Currently the CPS says a hate crime is:

“Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice”.

Perception matters in hate crime. Whether someone is born a woman or becomes one, if they are targeted for being a woman, then being able to record that motivation will help tackle the cause and find those responsible for the harm. To try to exclude some women from this or set out different criteria for this particular type of hate crime is to give perpetrators a free pass. It risks valuable information about offending patterns being missed and potentially gives perpetrators a chance to further demean a victim by claiming they cannot experience misogyny because they are trans.

We already recognise that someone can be a victim of more than one type of hate crime, expect if the part of their identity being targeted is their being a woman. This is about respecting the victim and how they feel that they have been targeted, rather than demanding that they fit a specific tick-box. Muslim women may be victims of hate crime because they are Muslim and because they are women. Some 42% of black and ethnic minority women aged between 14 and 21 report experiencing unwanted sexual attraction and attention at least once a month. Many women and girls with intellectual disabilities also experience abuse for the dual reasons of their disability and their sex or gender.

The Government previously defined gender as part of the Gender Recognition Act reform consultation. Again, the CPS notes:

“There is no legal definition of hostility so we use the everyday understanding of the word”.

With any hate crime, the police and the CPS gather evidence and present it to the courts for them to decide whether it meets that everyday understanding. This amendment would require them to present evidence about the perpetrator because what matters here is holding the perpetrator to account, not debating the status of the victim. I do not want to be too presumptuous but, when my noble friend the Minister responds, she may say that she will wait until the Law Commission review of hate crime is completed. That is why this is more of a probing amendment. The review has been ongoing since 2018 and, in its draft recommendations, supported this proposal. Should it publish its final report, we could be informed by its work on Report. However, if it does not, this amendment would mean that we would not lose the opportunity the Bill offers to help tackle violence against women.

Indeed, a Law Commission review is no guarantee of action being taken. Since 2010, more than half its reviews have never made it on to the statute book, with many never even receiving a response from the Government. This includes the 2014 review of hate crime legislation, which is still awaiting a ministerial response. Even if the commission’s current review is published shortly, as promised, we may have to wait a year for the Government’s response, which could require further consultation. We would then have to wait for another legislative opportunity to be given parliamentary time for a new Bill to go through its various stages.

Women have been waiting my whole lifetime for action to be taken on these matters. There have already been 3 million more crimes committed against women since the Law Commission was asked to review the law in this area. Every year, we delay closing this gap in our hate crime laws. I understand why more women question whether the Government are serious about keeping them safe. The evidence shows that this policy is not a silver bullet for the problems with policing and the courts, but it is progress and best practice. The time for waiting is over; now is the time for doing. The women and girls of this country deserve nothing less. I beg to move.

Photo of Lord Polak Lord Polak Conservative

My Lords, I am pleased to join my noble friend Lady Newlove and the noble Lords, Lord Ponsonby and Lord Russell, in proposing this simple but effective amendment, which would ensure individual protection against hostile aggravations and offences based on sex or gender.

The noble and learned Lord, Lord Judge, a former Lord Chief Justice, explained that adding sex or gender to the list is consistent with the statutory provisions in the Equality Act. If we are to have a statutory list, sex and gender should be expressly included. He voiced his surprise that the legislation omitted this category of potential victims. It is clear that this amendment would plug a gap in the law and ensure that all people subject to harassment or violent assault are better protected. As Robin Moira White, a barrister at Old Square Chambers, suggested, if this amendment is not accepted, all those subject to these abuses will continue to remain at risk. Quite plainly, this amendment is a catch-all clause; it is designed to protect everyone.

To quote a letter kindly written to me by the noble Baroness, Lady Hunt of Bethnal Green,

“this amendment provides comprehensive coverage for all women. This is about Sarah Everard, and many nameless others.”

A slew of tragic events, most recently the brutal murders of Sarah Everard and Sabina Nessa, continue to strike fear into young women who just want to get home safely. It is our duty to ensure these protections and we can help by including sex and gender in the Bill. It should be a given right that every individual can arrive home safely after a day at work or simply meeting friends at the pub. This amendment is just one way of ensuring that everyone, regardless of their sex or gender, is protected. It is our duty to ensure that what happened to Sarah, Sabina and countless others does not happen again. I am certain that this amendment goes some way towards achieving that important aim.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees 11:15 pm, 15th November 2021

My Lords, I support this amendment to which I have added my name, tabled by the noble Baroness, Lady Newlove, whose statement was typically eloquent. I will not say that I rise “briefly”, since earlier today almost every noble Lord who said that went on to speak at length.

This amendment is essentially a continuation of a discussion that the Minister will remember extremely well from springtime, when we were talking about the Domestic Abuse Bill and misogyny in particular. That was probably the first time in this House that we had ever really had discussions about misogyny. Eight months is a very long time when it comes to domestic abuse. Now every noble Lord is aware of misogyny and of how pervasive it is. To some extent, those eight months have helped the case for an amendment such as this.

On 17 March, as the noble Baroness, Lady Newlove, mentioned, the Minister announced that the Home Office will require all police forces in England and Wales to record crimes, primarily against women, that they regard as misogynistic in intent. We were told that this would happen by autumn. I have checked on a search engine when autumn officially ends and, much to my surprise, it ends on 21 December, which seems rather late. Therefore, the Government have a little more time to deliver, but if the Minister cannot tell us this evening, can she please come back and tell us when the guidance that will be given to police forces to collect this data—systematically and consistently, which is the most important thing—will be available?

This morning I asked a very senior police officer, a lady who is on the National Police Chiefs’ Council, if she knew when it was coming. She did not but basically said, “Please get a move on, we are all dying for this to arrive.” Her own police force, one of the largest in the country, has systematically rolled out domestic abuse training for the vast majority of its officers, which has been extremely well received. They are absolutely primed to receive this guidance when it arrives, so please can we get a move on and please can we have a commitment, either at the Dispatch Box later or in writing, on exactly when we can expect this? If this very senior police did not know, I certainly hope that the Minister does.

This amendment has the virtue, above all, of brevity and great simplicity. It will probably not surprise noble Lords that the person behind the brevity and clarity, of which he is very much in favour, is the noble and learned Lord, Lord Judge. He is unable to be with us this evening. I think he hoped that brevity would mean just that when noble Lords said that they would be brief. Unfortunately, he was disappointed and so cannot be here, but we can assume that the thrust and nature of this amendment has a great deal to do with his guidance and his input. To use his phrase when we were talking about this, “Let’s just go for the jugular”. That is what this is about.

As other noble Lords have mentioned, the Equality Act 2010 defined nine different protected characteristics. This amendment specifically would equalise sex and gender with the other key innate characteristics: sex, sexual orientation, gender reassignment, race, disability and religion or belief. As noble Lords have said, it is designed to protect anybody and everybody; it is totally inclusive. It is not defining people by what gender they have, they chose to have, they think they have or were born with; it is designed to protect everybody.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

The noble Lord mentioned gender reassignment, but the amendment does not say “gender reassignment”, it says “gender”.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

If the noble Lord looks at the amendment, it says

“or presumed sex or gender”.

That is as presumed by the perpetrator.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

My Lords, my point is that in arguing for the amendment the noble Lord mentioned the protected characteristic of gender reassignment, not gender.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

I think I was quoting from the Equality Act, but if I was not—the noble Lord here says I was right, so if one looks at the Equality Act and the protected characteristics, that is one of them. If I am wrong, I apologise in advance.

Photo of Baroness Noakes Baroness Noakes Conservative

The noble Baroness, Lady Falkner of Margravine, is no longer in her place. Gender is not a protected characteristic under the equality legislation. Gender reassignment is.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

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

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

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

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

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

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

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Spokesperson (Scotland), Shadow Attorney General, Shadow Advocate-General for Scotland

The following characteristics are protected under the Equality Act: age—something else that we do not need to worry about; gender reassignment; and sex. There are others, but those are the three. Sex being a protected characteristic means that you are entitled not to be discriminated against on the ground of your sex, whether you are a man or a woman. That means that if you are a transgender woman, you will be entitled to be protected on the grounds of sex because you are a woman, and on the grounds of gender reassignment. So, the noble Lord says that gender is not a protected characteristic under the Equality Act, but a person is entitled, as one would expect, not to be discriminated against because of their sex.

Photo of Baroness Noakes Baroness Noakes Conservative

I thank the noble and learned Lord, Lord Falconer of Thoroton, for his lesson in equalities law. My Amendment 219A was degrouped from Amendment 219 late last week. While it is drafted more broadly than Amendment 219, I tabled it to address the very same issues covered by Amendment 219. I therefore believe that, for the convenience of the Committee, I should speak to my Amendment 219A now. I hope that the other noble Lords who have added their names—the noble Baronesses, Lady Ludford and Lady Grey-Thompson, and the noble Lord, Lord Hunt of Kings Heath—will do so as well. On that basis, I will not move Amendment 219A in the next group. I hope that, given all the amendments left still to be debated, the Committee will welcome this.

My Amendment 219A, like Amendment 219, does have cross-party support, so the issues raised by both amendments are not party-political in any sense. Indeed, I find myself in the unusual position of being on the same side of the argument as the noble Baroness, Lady Ludford; neither she nor I ever thought that we would be in that position. I have two main problems with Amendment 219, the first of which is directly addressed by my Amendment 219A. Amendment 219 pre-empts the work of the Law Commission, which, as we have heard, has been working on hate crime for some time now. Its consultation document runs to over 500 pages, with over 50 dedicated to sex or gender.

The Law Commission has received many thousands of consultation responses and is now working on its final position. I believe that its work should conclude before we legislate in this area, and my Amendment 219A gives the Government a regulation-making power to amend Section 66 of the Sentencing Act 2020 to implement the Law Commission’s recommendations. That gives the Government, if they agree with and accept the recommendations, the fastest possible implementation route. The Law Commission’s final recommendations may well be controversial and therefore would not qualify for the special procedures for Law Commission Bills that we use in your Lordships’ House, if primary legislation were the route taken. Amendment 219A therefore uses the draft affirmative procedure to enable some additional parliamentary scrutiny.

I believe that it would be wrong for Parliament to anticipate the final views of the Law Commission. There are different views on both the principle and the substance of the extensions to the hate crime laws, and noble Lords would be wise to wait for the Law Commission’s final recommendations, rather than proceed on the basis of its provisional views.

On the extension of hate crimes to sex, the Law Commission was clear that it believed that two of its criteria for amending the hate crime legislation—demonstrable need and additional harm—were met, but it was far less clear that its third criterion of suitability was met. To mitigate that, its consultation includes some very significant potential carve-outs, covering, for example, domestic abuse and sexual offences so that, if hate crime were extended to sex, the very crimes that I know some noble Lords are particularly concerned about might not be included in the Law Commissioner’s final recommendations. This is not an area where there is a settled view about what should be done.

My second problem with Amendment 219 is a substantive one about whether, if hate crime laws are extended to sex, they should be—

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Spokesperson (Scotland), Shadow Attorney General, Shadow Advocate-General for Scotland

Does the noble Baroness know when the Law Commission might produce its final report and what the timetable thereafter would be—for example, how long there would then be before the Minister has to respond and how long thereafter before there would be some provision in relation to it?

Photo of Baroness Noakes Baroness Noakes Conservative

I think that was a trick question from the noble and learned Lord, Lord Falconer of Thoroton.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Spokesperson (Scotland), Shadow Attorney General, Shadow Advocate-General for Scotland

It is not a trick question; I would have thought that that piece of information might be quite important to evaluating her amendment.

Photo of Baroness Noakes Baroness Noakes Conservative 11:30 pm, 15th November 2021

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

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

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

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

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

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

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

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

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

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

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

Photo of Baroness Noakes Baroness Noakes Conservative

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

Photo of Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe Labour

My Lords, I rise to support Amendment 219 and to reinforce all the powerful arguments made by the noble Baroness, Lady Newlove. I am not a lawyer, but it seems bizarre that sex and gender have explicitly not been recognised in existing hate crime legislation. Crimes motivated by hostility to disability, transgender identity, race, religion and sexual orientation are all recognised, but not those motivated by sex and gender. Yet, in a report published in January this year by UN Women UK, 71% of the 1,000 women polled had experienced sexual harassment in a public place, rising to a staggering 97% of women under the age of 25.

This is made worse by the sad fact that there is widespread scepticism among women and girls about reporting violence and abuse to the police because they have no confidence that their claims will be acted on or even taken seriously. Violence against women and girls does not occur in a vacuum, of course. Hostility towards women and girls creates a culture in which violence and abuse is tolerated and repeated. That culture has to be changed, so a reform to legislation, which this amendment proposes and which I hope the Government will support, must be accompanied by a transformation of attitudes within the police.

I believe that there are encouraging signs that this is happening, albeit slowly. I was fortunate to attend the briefing that has been mentioned on this amendment given by the former chief superintendent of police for Nottinghamshire, Sue Fish—a pioneer of this approach —and Stuart Henderson, North Yorkshire Police’s hate crime co-ordinator, who is currently delivering this policy. It was absolutely fascinating to learn how much of a difference can be made when the leadership of the force is committed to driving a policy forward. A number of other forces are doing the same, and I commend this approach to the Metropolitan police force as it struggles to respond to the tsunami of criticism on gender-based hate crimes.

Because not all police forces have signed up, there is no consistency of reporting or approach to these crimes. That is why the amendment is necessary: to ensure that every woman and girl right across the country can feel confident that the role of misogyny in what they experience on a daily basis will at last be taken seriously and dealt with appropriately. It is also necessary because it would require police forces to record instances of motivation by hostility to the victim’s sex or gender, enabling them to monitor much more effectively the incidence of these crimes and so address and prevent them. Evaluation of this approach in Nottinghamshire showed improved victim confidence to come forward and report crimes, and benefits to the local police in their efforts to combat these crimes. It is a great tribute to Sue Fish that she persisted in pursuing the need for this change, and to Nottinghamshire Police for embracing it as pioneers.

Finally, I am aware that the Government have asked the Law Commission to look at this, and it is due to report imminently. I hope the Government will not use that as an excuse to kick this into the long grass; even if the Law Commission reports soon, too many of its reports are ignored by the Government and not implemented. In replying today, I hope the Minister will acknowledge the urgency of this issue and commit to concrete measures, as set out in the amendment, to address it speedily.

Photo of Baroness Grey-Thompson Baroness Grey-Thompson Crossbench

My Lords, I assure my noble friend Lord Russell of Liverpool that I intend to be brief. I speak to Amendment 219A, to which my name is attached. Sadly, as the noble Baroness, Lady Newlove, has pointed out, violence against women and girls is still a major issue in this country. I do not think a week goes by without us reading or hearing about some terrible act.

A few years ago, I, like many others, would have conflated the words “sex” and “gender”. We discuss the gender pay gap, where actually we probably mean a sex pay gap. It has become clear to me that, as language evolves, sex and gender mean very different things. The noble Baroness, Lady Noakes, has outlined this amendment very clearly, but I also believe that adding “gender” is unnecessary, as it could add further confusion to an area of law in which existing terminology is inconsistent and at times contested. Just in the short debate we have had tonight, we have seen that there is plenty more to discuss on the definition. I think we all agree that the protection of all people is important, and we should promote dignity, but that should be done without confusion.

I believe that we should wait for the Law Commission report, which I hope will be published soon, because it is a significant piece of work which will help inform the debate further.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

My Lords, time is against us, so I will be really brief. From all our debates so far, I am convinced that the issue of inconsistent policing is the one where I would put most of my money in terms of improving the situation. Her Majesty’s Inspectorate, which looked at the way police forces dealt with violence to women and girls, was very persuasive about the hugely patchy approach of police forces.

As far as the Law Commission is concerned, anyone reading its work will see that it is complex and that it did not come to an easy conclusion when it gave a provisional view that it would be helpful to add to the categories in the way suggested. Most notably, it identified the risk that hate crime laws could prove unhelpful in certain contexts such as domestic abuse and sexual offences. It then went on to quote evidence from the Fawcett Society, which argues that all sexual and domestic abuse offences committed by men against women should be understood as inherently misogynistic. There is therefore a risk that sex-based hate crime might disrupt this understanding because it would require juries to seek express evidence of misogyny in these contexts, potentially causing some offences to be non-misogynistic where there is insufficient evidence of this.

I am not qualified to comment on the detail, but it is clear that this is a complex issue, as are the issues of sex and gender. Given that the Law Commission will report by the end of the year, the key thing we want to hear from the Minister is that the Government will take the report seriously and it will not join other Law Commission reports in the long grass.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

My Lords, we are all impatient for the Law Commission report, but I believe it is best to await it before deciding how best to frame any law on hatred towards women. Sex and gender have become conflated in ordinary speech, even in legislation, but they are not the same. While “sex” has a clear meaning in law, as defined in the Equality Act, the term “gender” does not, and is taken to mean social roles or stereotypes associated with someone’s sex, and that is too tenuous, at least at this stage, to be a legal definition.

If the intention of adding “or gender” is to ensure that legislation also covers hate crimes perpetrated towards trans women, it is unclear why the law would not catch a crime directed towards a trans woman on the basis of presumed sex. In addition, crimes directed against someone based on their transgender identity are already covered by hate crimes legislation.

Going back to the conflation and confusion of sex and gender, I quote from a statement by the Equality and Human Rights Commission in 2018:

“‘Gender’ refers to socially constructed roles of women and men and/or an individual’s conception of their identity. The term is often used interchangeably with ‘sex’, partly in recognition that much of the inequality between women and men is driven by underlying social and power structures rather than by biological sex. Although the Equality Act protects people from discrimination because of their sex, other UK legislation (such as the regulations requiring employers to publish their gender pay gap) refers to gender. This may cause confusion in some circumstances.”

The EHRC went on:

“To avoid any ambiguity, we are reviewing our use of language across our website and publications to ensure clarity and consistency. However, it is important to note that any mistaken or structural use of the term gender does not affect how the law works in practice.”

I have not had the chance to check through all the EHRC publications since 2018, but those were wise words.

I want hate crime legislation to be extended to misogyny. I very much hope the Equality and Human Rights Commission continues its pursuit of clarity and consistency, and I was interested to hear the remarks of the noble Baroness, Lady Falkner. I cannot see that conflating sex and gender, as in this amendment, goes in the right direction. We should wait to hear what the Law Commission advises.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated 11:45 pm, 15th November 2021

My Lords, I am of a mind to be opposed to the introduction of a misogyny hate crime, but your Lordships will be delighted to know that I will not be sharing my broader thoughts with the Committee at this late hour. However, there are problems that we need to be clear about before we can even have this conversation. What is our definition of misogyny here? We just assume that we are talking about it as a hatred of women, but it is not straightforward to legislate against hatred of women in 2021, when there is such a toxic debate about what our definition of a woman is. What is a woman, and who is and is not a woman? We heard a very lively discussion earlier; we in this place do not necessarily agree.

We know that somebody can simply declare themselves a woman, regardless of biological reality. We know that the debate about whether only women have cervixes has scuppered leading politicians, who seem unsure about biology in that regard. I do not say this to be glib, in case the noble Baroness, Lady Chakrabarti, thinks I am trying to stir up trouble again. I do so because it seems a genuine issue that the conflation of sex and gender—I know that the amendment does not do that; it separates them out—means that “misogyny”, as hatred of women, is not straightforward at the moment.

I also want to know which or what misogyny this amendment is trying to address. If you erase, for example, sex-based rights, which is what some feminists think is going on at the moment, is that a misogynistic outlook? Some feminists certainly argue that it is. There is certainly a huge amount of visceral and vile hatred thrown at gender-critical women, meted out by some of the gender and trans extremists—not by trans people in general, I hasten to add, but the kinds of people who drove Professor Kathleen Stock out of her job at Sussex University. They sounded misogynistic to me, but are they the target of this amendment? I am drawing attention to the fact that wanting a misogynistic hate crime does not clarify to me what the amendment is trying to do.

I understand that what I have said is contentious and that not everybody here will agree with some of the points I have made even so far. In this context, is it appropriate to get the law, let alone the police on the ground, to try to untangle what is a very toxic discussion in society and implement this? I do not know how putting that on to the police will help women.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

Would the noble Baroness perhaps accept that if she was to speak to some of the senior police officers, men and women, who have to deal with the victims of hostility and aggravated crimes, largely motivated by misogyny, and ask them what they think misogyny is, she would get a very clear response? They interact on a day-to-day basis with people who are direct victims of it.

While it is very interesting to have a “Moral Maze”-like discussion at a theoretical level, to be clear, what those of us proposing this amendment, including the noble and learned Lord, Lord Judge, want, is to do something now for the victims experiencing hostility based on misogyny. We should not be talking in airy circles about this; we need to do something.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

I will try to avoid airy circles. Not long ago, I was invited to speak to a gathering of police officers of various ranks on the issue of hate crimes and I can safely say that it was a 50/50 split. As an aside, quite a number of the female officers there were supportive of me and my position, so this is not an airy-fairy, “Moral Maze” position, although it does try to have some principle.

I was about to go on to talk about policing. I understand that one of the reasons there is a sense of urgency about making misogyny a hate crime is in response to horrendous and high-profile murders and rapes of women. We are all mentioning Sarah Everard, but there are many more. I wonder whether, in fact, framing violence against women through hate will solve the problem that it says it will tackle. As far as I can see, we have laws against indecent exposure, stalking, voyeurism, sexual assault, domestic abuse and rape. They are criminal offences, largely serious, and I do not understand why an additional law would act as a further deterrent or reassure women—I do not get that. If, as some argue—I agree with them—women are having problems gaining justice for those very acts in the courts at present, why would hate crime as an aggravated offence make any difference if the crimes in question are not being policed, investigated or prosecuted satisfactorily in the first place?

When I read the literature on misogyny and hate crimes—this was mentioned by the noble Baroness, Lady Newlove—the theory goes that minor incidents of gross sexist behaviour are misogynistic and indisputably part of a continuum that will lead to more serious crimes. I worry, however, that there is a danger there of relativising the horrors of rape and murder and tangling up the police in events that are not as serious, meaning that they take their eye off the ball in what I think they need to be doing: policing the streets, protecting people, prosecuting and so on. I am worried that this will cause a distraction for the police from doing the very job they need to be doing.

To use one example—I have been involved in talking to people in the area—the organised networks of male grooming and the systematic abuse and rape of vulnerable young women in Rochdale and Rotherham were largely ignored by the authorities, downplayed and continually not discussed. That is what we should be discussing here. Labelling the abuse as misogynistic does not seem to me to help; I just want the authorities to do the job of investigating when women are abused. That is far more important.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

My Lords, I rise very briefly—the noble Lord, Lord Russell, will be pleased to know—to offer the Green group’s support for Amendment 219 in the name of the noble Baroness, Lady Newlove. I shall simply make two points, one of which draws on the recent intervention by the noble Lord, Lord Russell.

First, the noble Baroness, Lady Newlove, referred to the origins of this amendment. Nottinghamshire Police Force has been a pioneer in this area. In my contribution on this subject on the Domestic Abuse Bill, I looked back beyond that. If you look at the history of how Nottingham police came to be doing it, it began with a group called Nottingham Citizens and a survey it conducted among the people of Nottingham. That led to a conference held at the Nottingham Women’s Centre, which informed the police and police action. This is something that very much grew from the grass roots up. In response to many of the contributions from people advocating Amendment 219A instead: this has been proven to work. It is there demonstrably on the ground. The fact is there.

For my second point, I refer to the author Caroline Criado Perez and quote her:

“There is enough data to know that men who kill women do not suddenly kill women, they work up to killing women … If only we were to listen to women and pay attention to the misogyny and aggression and violence that they deal with on a daily basis.”

That is what Amendment 219 seeks to do. The noble Baroness, Lady Noakes, suggests that we have to wait and wait and wait. I would suggest we have been waiting lifetimes—centuries—for this action. We have a proven model that has been shown to work. Let us put it into effect.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, I congratulate the noble Baroness, Lady Newlove, her noble friend Lord Polak, my noble friend Lord Ponsonby of Shulbrede and the noble Lord, Lord Russell of Liverpool. I want to focus on the amendment, not on a wide-ranging debate about everything that is wrong in relation to sex and gender or discourse in society.

I want to congratulate the noble Baroness because it is a simple and focused amendment. The word “misogyny” does not even appear in it. It is not thought crime. It is not even a speech offence. It follows a well-trodden path of adding protected characteristics or certain characteristics to a list. Hostility towards people with these characteristics will be an aggravating factor in a crime that already exists and has already been proven or admitted beyond reasonable doubt in a court. I say to noble Lords who are worried that I will come back to their fears and try to assuage them.

It seems totally unconscionable to me that, for example, race and religion have been aggravating factors in the code for so long but not hostility towards women. Hence, in the waiting millennia—certainly decades—since the code, these factors have been added. Some people will say that we never needed to add aggravating factors at all, and we could always trust the courts to get it right. Whether that is true or not—and I am not sure it is—we have a well-trodden system, and it is unconscionable, particularly at this moment when women and girls are feeling the way they are, that we should say we must wait because it is all very complex. If it is not complex in relation to race, religion and sexuality, it is not complicated in relation to sex. These are people who have already committed a criminal offence.

Why add aggravation at all? If somebody gets drunk on a Friday night and gets into fights with people they come across, that is bad enough. But if they go out after a few drinks on a Friday night to single out a particular group or a particular type of person based on their race or religion, or go out beating up women, that is an additional public policy problem, and that is why aggravation in relation to the group is a matter for this Committee and for policymakers.

I want to address the concern of the noble Baroness, Lady Noakes, about sex in general. I have always understood sex and gender to be different things. I was brought up to believe that sex is more biological and gender is more the construct, but this debate will rage on. Noble Lords should remember, however, that this amendment is dealing with offences that have already taken place, and certain people have been targeted for these offences. With respect, therefore, we are not talking about other areas of public service provision: we are talking about offences that might be violent or sexual, but they are offences that have taken place.

I do not know what the approach of the noble Baroness, Lady Noakes, is, for example, to people who call themselves non-binary. I do not need to know. I am sure that she would agree that if people declared themselves to be that way, and people beat them up for that reason, that would be a problem. We do not want to live in a society where certain people are singled out for violence. That should be an aggravating factor. I am minded, perhaps, to say that it should be possible to be open-ended about these things, but we have not got to that place. Perhaps the Law Commission will in due course, but we are where we are today, and the fastest way to remedy this terrible injustice to women is to add sex and gender immediately and then wait for the Law Commission’s report.

If the promoters of Amendment 219A think that there may be other groups that need to be added and should not be left out, they can promote their amendment in addition to the one tabled by the noble Baroness, Lady Newlove. They certainly cannot suggest that it is an alternative, because sometimes the law needs to send a signal as well as work. This Bill is before us and we do not know when another one will come our way. We do not know when the Law Commission will report; we do not know what the reception to that report will be; we certainly do not know whether another Bill will come our way. How can we possibly, in good conscience, leave a status quo where an assault aggravated by race is covered, but an assault aggravated by the offender targeting a woman is not covered? I certainly cannot find that in my heart or in my conscience.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs) 12:00 am, 15th November 2021

My Lords, I thank the noble Baroness, Lady Newlove, for so ably and comprehensively introducing her amendment. We return to an issue that we debated during the Domestic Abuse Bill, making misogyny a hate crime. From the Front Bench, we support Amendment 219 and oppose the alternative Amendment 219A.

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

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

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

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

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

I also said:

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

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

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

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

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

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

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

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

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

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

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

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, I thank my noble friends Lady Newlove and Lady Noakes for tabling their amendments. Both have highlighted the importance of tackling violence against women and girls, as have other noble Lords. We rightly share this priority.

These amendments provide us with an opportunity to discuss the important issue of hate crime, and also to pay tribute to the work of the Law Commission. It performs an important service, considering complex matters of law and making recommendations for change and simplification. This very valuable function helps to bring coherence to complicated and technical areas of law.

The Government share the opinion that all hate crimes are a great injustice and should be dealt with by the full force of the law. I know that noble Lords are aware of the breadth of activity to combat the scourge of hate crime, but in the interests of the hour—I do not think I have ever started my first group of amendments at 10 past 12 at night, so this is a first—I shall consider the amendments before the Committee.

As I have stated in the House before, in 2018, as part of the updating of the Government’s hate crime action plan, we asked the Law Commission to undertake a review of current hate crime legislation. This specifically included concluding a review as to whether other protected characteristics, such as sex, gender and age, should be included. The review’s terms of reference were to review

“the existing range of protected characteristics, identifying gaps in the scope of the protection currently offered and making recommendations to promote a consistent approach.”

As noble Lords have said, the Law Commission’s final report is now imminent. It may be published as early as this month, and that of course is a matter for the Law Commission, which is fully independent of the Government. Noble Lords accepted this during the passage of the then Domestic Abuse Bill, and I think we should see it through in the way we agreed.

However, I do not think that we should commit to giving effect to all the Law Commission’s recommendations before anyone—including noble Lords—has even seen and studied them. It would be inappropriate for any Government to sign what is effectively a blank cheque.

In particular, I know many people hope that the Law Commission will recommend—if I can use the popular parlance—that misogyny should be made a hate crime. To those people, and indeed to any noble Lord, I would say, “Wait and see.” We do not know what it will recommend, and nor should we at this stage. As an independent body which considers and weighs up the evidence, the Law Commission will come to its own conclusions. We will only know what the commission’s advice is when the final report is published.

As the noble Lord, Lord Hunt of Kings Heath, pointed out, where the Law Commission suggested it was minded to consider adding sex and gender to hate crime legislation, it did so only in a consultation. But the purpose of a consultation is precisely to consult. The Law Commission will also want to consider what consultation responses have said and to shape its conclusions accordingly. Whatever the commission’s inclination might have been in 2020, we cannot assume the commission’s final position until it has been published.

It would be premature to accept Amendment 219 and negate the whole purpose of asking this distinguished, independent organisation to give full and proper consideration to the whole construct, purpose and design of hate crime legislation. What is the point of the Law Commission in the first place? I know that people have been critical of it, but I think it is a very useful tool to deal with certain complex issues.

It would also probably be premature at this stage to accept Amendment 219A. As I have said and my noble friend stated, we cannot pre-empt what the Law Commission will recommend. What I think we can say is that the law is complex and contentious, and that has been reflected in our debate tonight. It seems to me that there is every possibility that the Law Commission will make recommendations that will require primary legislation to implement and I do not think it would be appropriate to make what could be quite significant changes to our statute book through secondary legislation. I dare say that, were such a proposal ever to emanate from the Government, I would expect noble Lords to be critical.

Noble Lords:

Oh!

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

Yes, noble Lords can take that down and quote it against me.

The noble Lord, Lord Russell of Liverpool, asked me about timelines and when the police were going to start recording the data. As one noble Lord said, we are currently in consultation with the NPCC and forces on how to take that forward. We will ask police forces on an experimental basis to record and identify any crimes of violence against the person, including stalking, harassment and sexual offences where the victim perceives it to be motivated by hostility based on their sex.

In conclusion, significant changes to the law require a full parliamentary process, with the proposals considered by both Houses in the normal way, with all the requisite parliamentary stages. I do appreciate the desire for urgency—I am sure that noble Lords looking at the clock do as well—but I do not think that should be the grounds for changing legislation without full and proper parliamentary scrutiny. Accordingly, I cannot advise your Lordships to pre-empt the Law Commission’s report or to act ahead of knowing what it will recommend. I therefore invite my noble friend Lady Newlove to withdraw her amendment.

Photo of Baroness Newlove Baroness Newlove Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, considering the time, I will try to keep this short—I will not do a Second Reading speech to end.

This has been a really good debate, again; in fact, I think the whole session today has been interesting. I thank the Minister for her response. Obviously, the Law Commission does excellent work and, as she says, we will have to wait and see. What saddens me is that while we consult and have parliamentary Sessions and Governments and everything, the people on the ground need that support system and understanding, and they need the police service and the culture and everybody else to understand the hostility that they face. As a former Victims’ Commissioner, I have met many victims. Sadly, some went to report that they had been raped by their husband and were told, “You’re not the only one tonight, love”. That has really resonated about why it is so important.

Given that it is late, that this is a probing amendment and that, hopefully, we may have something from the Law Commission that we can come back to on Report, for now I beg leave to withdraw the amendment.

Amendment 219 withdrawn.

Amendment 219A not moved.

House resumed.