Amendment 114G (to Amendment 114F)

Police, Crime, Sentencing and Courts Bill - Report (6th Day) – in the House of Lords at 6:00 pm on 17th January 2022.

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Votes in this debate

  • Division number 3
    A majority of Members of the House of Lords voted to add a new Clause titled “Offences motivated by hostility towards the sex or gender of the victim”

Baroness Noakes:

Moved by Baroness Noakes

114G: After Clause 55, in subsection (3), leave out “or gender”

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, my Amendment 114G amends my noble friend Lady Newlove’s amendment and removes “or gender” from subsection (3) of her proposed new clause. When my noble friend tabled a different misogyny amendment in Committee, she constructed it using the formula “sex or gender”, and I argued against that formulation.

My noble friend’s new clause is headed “Offences motivated by hostility towards the sex or gender of the victim”, but the text of the clause is puzzling. Subsection (1) defines “relevant crime”, for the purposes of the new clause, in terms of

“hostility or prejudice based on sex”— not on sex or gender. Of course, because it is the perception, that would also cover the perception of trans people. Sex has a definition, which picks up on that of the Equality Act 2010. When we get to subsection (2), which is about the recording of relevant crimes, that, too, because it makes no reference to gender, would clearly apply only to relevant crimes expressed in terms of sex, as set out in subsection (1).

Those of us who received the briefing this afternoon from the honourable Stella Creasy MP will have noted that it claims that this amendment refers throughout to sex and gender, but it quite clearly does not. Subsection (1), which governs subsection (2), refers only to prejudice or hostility based on sex. The problem is when we get to subsection (3), which is where my amendment bites. It states:

“A court considering the seriousness of an offence arising from a relevant crime”— remember that a relevant crime is expressed in terms of hostility or prejudice based on sex—

“must treat the fact that the offence is aggravated by hostility or prejudice towards sex or gender as an aggravating factor”.

I really do not understand how that is supposed to work, and I do not think that “or gender” can fit with the definition of “relevant crime”, as it has been defined wholly in relation to sex in subsection (1).

In addition, gender is not defined in the proposed new clause. Sex is defined, in subsection (1), although sex is actually a relatively easy concept, for which most of us could provide a ready definition, but gender is a much more difficult concept. My amendment would remove “or gender” from subsection (3) of the proposed new clause, to make all of it make sense and not have an extraneous “or gender”.

We do not have time today to debate how “gender” is creeping into our language in a way which undermines women and women’s rights. I believe that it would be a mistake to add gender to the hate crime framework. That is because transgender people are already covered by the transgender identity element of existing hate crime law, so the use of “sex or gender” must mean that gender has a wider meaning, but there is no recognised wider meaning for gender—nor, as I pointed out, is one provided in the new clause. Legislating for gender separately from transgender identity, which already exists in hate crime legislation, will open up a Pandora’s box of gender identity which will have repercussions for women. I believe that it is best avoided.

To that extent, I disagree with the Law Commission’s recent report on hate crime, which tends towards adding gender to sex. The Law Commission’s final report is much more nuanced than its earlier report, and I am sure that that is the result of its consultation, to which it had very many responses, but I believe that the Law Commission has still only scratched the surface of the issues that will come in general once we start inserting gender alongside sex in our laws, because of the vagueness of the concept and its capability of meaning so many different things, many of which will undermine the position of women in our protection frameworks.

I do, however, agree with the Law Commission that the case has not been made for extending hate crime law in this area. The Law Commission expressly recommended against the part of Amendment 114F which would make hostility or prejudice an aggravating factor in sentencing. The consultation responses to the Law Commission’s draft report did not support making these changes, even with—or, in some cases, especially because of—the domestic violence and sexual offences carve-outs, which, as my noble friend Lady Newlove explained, have been incorporated in her new clause by virtue of subsection (4). The carve-outs themselves were found, inter alia, to add complexity to how the law worked and to be tokenistic; many other reasons were given by the Law Commission.

The Law Commission would probably approve of the additional recording that is contained in Amendment 114F, because it found that the evidence base supporting a change in the law is currently very thin. In Committee, several noble Lords cited with approval the recording initiative of Nottinghamshire Police, and my noble friend Lady Newlove has referred to it again, but the Law Commission’s report is clear about what has come from that exercise so far and that it is of very low evidential value, for various reasons explained in its report. So we still have a largely evidence-free area in the context of trying to make significant new laws. I am not clear that subsection (2) adds anything to what the Government have already said that they are prepared to do in respect of requiring further reporting by police forces.

When we debated this in Committee, I argued that we should not legislate until we had received the Law Commission’s report, and that we should also allow the Government to respond to that report. Of course, we now have the Law Commission’s very substantial final report, and it clearly recommends that misogyny should not be added to the hate crime laws. It suggests some alternative ways of dealing with the underlying problem. I hope that any noble Lord thinking of voting for my noble friend’s amendment today has had a chance to have a look at the very significant analysis included in the Law Commission’s report on this subject.

We also ought to allow the Government time to respond to the report. It has been out for only five or six weeks, and we cannot realistically expect a response to a very significant report, running to 600 pages, so soon. I look forward to what the Minister has to say about timing when she responds this afternoon. It clearly is important to get the Government’s response, but I do believe that we should wait for it, especially in the context of the fact that the Law Commission has not recommended that we go down the route proposed in Amendment 114F.

Those who want to make misogyny a hate crime believe that the treatment of women in our society remains a big issue that needs to be dealt with—and so do I. I just do not believe that Amendment 114F is the right solution at the right time. If, however, Amendment 114F is pressed to a Division, I believe it should be amended by my Amendment 114G in order to make it make sense. I beg to move.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench 6:15 pm, 17th January 2022

My Lords, I rise to support the original amendment, moved so ably by the noble Baroness, Lady Newlove, and to oppose the amendment to the amendment from the noble Baroness, Lady Noakes, which she moved just now. I hope she will forgive me for saying that her introduction of her amendment displayed a great deal of confusion, which is being much magnified in debate, about the differences, in so far as they exist, between the words “sex” and “gender”.

Gender is causing no confusion in the law, but I would urge the noble Baroness and others to take the trouble to have a look at the first legal textbook written on this subject, called A Practical Guide to Transsexual Law; it is authored by Robin White of Old Square Chambers in London, who is a trans woman herself and extremely expert in cases arising from trans issues, and her colleague in the same chambers, Nicola Newbegin. If noble Lords are suspicious about a lawyer in your Lordships’ number recommending the reading of a legal textbook, I reassure them that it is not because I want to make them go to sleep while doing their reading before they go to bed at night; it is actually one of the most fascinating textbooks written in recent years—and it has the virtue of being short as well.

The issues described in that book, which have interested me since I introduced the first transsexual rights Bill in the other place when I was a Member there, have evolved greatly over the years. I would say to those who are suspicious or uncomfortable about these issues that young people—people born after 1995, to date at random—they do not understand the problem. To them, trans people are included among their friends, and it is “just a thing, not an issue”, to quote one of my own daughters on the subject. It is becoming increasingly common for young people to move in circles where trans men and women, and, for that matter, gender diverse men and women, are absolutely standard parts of the community.

The Equality Act, which has been in existence for a considerable time, says that you must not be discriminated against because of your gender reassignment as a transsexual and that you may prefer the description “transgender person” or “trans male” or “female”. There is much more I could read out to your Lordships that illustrates that the law has been in place and has been well understood for a long time.

Let us just consider what the noble Baroness, Lady Newlove, is trying to achieve in subsection (3) of her proposed new clause. I need to confess a sort of interest at this point, in that I am married to a circuit judge who tries criminal cases only. So perhaps I have a little bit more evidence in my mind—she certainly does not agree with everything I say, by any means— on how judges behave not just from my own practice but from a lot of discussion about these issues. The amendment provides:

“A court considering the seriousness of an offence … must treat the fact that the offence is aggravated by hostility or prejudice towards sex or gender as an aggravating factor when determining a sentence.”

Can one seriously suggest that a circuit judge, or a magistrate for that matter, does not understand what that means? If the judge understands what that means, surely it is as just as any other aggravating factor.

Let us look at it down the other end of the telescope. Five or six young women go out for a night out, and during the course of that night out an offence takes place in which there is hostility or prejudice towards the one of them who is a trans woman. Would it really be right for the other five to have an aggravated sentence brought upon the offender, if the hostility was towards them as women on the grounds of sex, but not that trans woman, if the hostility was shown to them on the grounds of gender? It is a nonsensical suggestion, and what is in the noble Baroness’s proposed new subsection (3) is just common sense—the sort of common sense that judges apply in the courts every day. So I would urge your Lordships to take the view that the use of the phrase “sex or gender” in this amendment is just good 2022 common sense and, if one is minded to support the amendment, one should support it in its original form.

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

My Lords, I want to take a slightly different view of this. We support misogyny being treated as a hate crime and, personally, I do not understand the arguments of the Law Commission in relation to domestic violence and sexual offences. The same objections could be made to existing hate crimes such as homophobia, but they exist alongside these serious offences without difficulty. I wonder whether proposed new subsection (4) in the amendment is necessary.

May I suggest an alternative way out of the gender debate? I wonder whether, in line with the Law Commission’s report on hate crime in relation to other aspects of hate crime, the words in brackets—“or perceived sex”—should be added to the word “sex” at the end of new subsections (1)(a) and (1)(b) proposed by the amendment. I am thinking of the following hypothetical example. A man who shouts demeaning and derogatory terms for a woman, indicating a hatred of women, and who without provocation attacks a stranger in the street, indicating that the attack is motivated by a hatred of women, should be charged with the aggravated misogyny offence, whether the assailant is mistaken in identifying the victim as a woman or not. It should not matter whether the victim is a woman or not; it is the motivation of the attacker that is important. If that motivation is hatred of women, it should be an aggravating factor.

However, despite my concerns about the wording of the amendment, we have waited long enough for this important and necessary change in the law. Any defect in the wording of the amendment can be addressed in the other place, and if the noble Baroness divides the House, we will support her.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated 6:30 pm, 17th January 2022

My Lords, I raised my opposition to a version of this amendment previously. For once, I was planning to keep out of the gender identity argument—although I agree with both the speech and the amendment from the noble Baroness, Lady Noakes—but I feel I must make some response to the noble Lord, Lord Carlile, who said that the concept of gender is causing no problems in the law or among judges. I am delighted about that, but let me tell you that the concept of gender is causing a huge number of problems for many women.

The judge advises that we need to talk to young people who include trans people among their friends. I point out that I have trans people among my friends and spend a huge amount of time talking to young people. There is not just one view on this; there are lots of views. One of the problems we have to recognise is that open debate about gender and trans issues is often chilled, for fear of accusations of hate or bigotry—and, ironically, most of the misogynistic abuse that I and other women have received in recent months and years has been on this issue of being gender-critical.

I will now go back to what I was going to say. My opposition to this amendment is based on a key concern: the need to avoid fuelling a narrative of fear that posits the idea that terrible and unimaginably horrific, but rare, instances of sexual violence and murder are part of a continuum of widespread misogynistic attitudes. This can too easily align everything from online trolling and catcalling to rape and domestic abuse under the label of misogyny—hatred of women.

There is limited time because we have very major things to discuss, so I will focus my remarks. I appreciate that the amendment from the noble Baroness, Lady Newlove, explicitly distinguishes between sexual violence crimes and other forms of crime that may be motivated by misogynistic intent, and that it is not an attempt to create any new criminal offences, being more concerned with the police recording and reporting of the number of crimes motivated by hostility towards sex and, sometimes, gender. This, we are told, is crucial to identifying patterns of behaviour and targeting police resources, so that we can build a national picture of violence against women and girls. However, hate crime legislation generally, as echoed in this amendment, in fact means that the data collected is based almost entirely on subjective perceptions and will not allow an accurate picture to emerge.

The amendment talks of a reported crime in which

“(a) the victim or any other person perceived the alleged offender, at the time of or immediately before or after the offence, to demonstrate hostility or prejudice based on sex, or (b) the victim or any other person perceived the crime to be motivated (wholly or partly) by hostility or prejudice towards persons who are of a particular sex”.

So this amendment would not help us understand data as fact but more how victims—or any other third parties—subjectively see either the motivation of the alleged offenders or the crime. To compound the issue, there is no legal or formal definition of “hostility”, so the CPS suggests that we use the everyday understanding of the word, which includes ill will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike. This can lead only to the possibility of an ever- widening set of crimes being badged as misogynistic, with the only evidence being subjective.

The practical outcomes could be severe and serious, as the amendment would alter sentencing. This means, essentially, that, if someone thinks or feels that someone else is being hateful towards them, and the hostility in carrying out the crime is based on sex and explains their offence, that is enough for that person to be locked up in prison for longer. There is also a more insidious punishment: this amendment might mean that more and more behaviour—we know that we mean especially that of men and boys—is deemed to be misogynistic, destroying the reputation of those people once they are labelled as bigots who hate women, according to this categorisation, without necessarily being branded as such in reality.

According to the campaign literature sent out ahead of this discussion, this label of hostility via sex can be used to imply far more than hostility. However minor the original crime, if it is labelled as sex-based hostility we are told that it is an almost inevitable slippery slope and that this is the kind of person who will carry out, if they are not stopped, the most heinous crimes, such as rape, sexual violence and murder. Meanwhile, HOPE not Hate sent round a missive saying that this kind of sex-hostility is a slip road to far-right extremism.

Finally, the Fawcett Society claims that this amendment will give women protection from crime and help ensure the safety of women and girls. I say that it will not: if anything, it could distract the police from the practical, difficult but essential work of on-the-ground patrolling of streets, painstaking investigations, and so on, and the courage to see through those investigations and prosecutions. It might take valuable resources for the police away from policing if they are tangled up in the reporting and monitoring of staff and data which I do not think, as I have shown, is reliable. Consider one of the most gross examples of the abuse of women and girls: the grooming gangs that operated in parts of the north-west of England. Those women and girls would not have been helped one iota had those crimes been called misogynistic. The shameful neglect in the investigation and prosecution of that incident was surely not about whether it was seen as being driven by hostility to sex. This amendment avoids the real problem, is tokenistic and will not help women at all.

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

My Lords, I have put my name to this amendment and will speak very briefly, not least because I have the privilege of being one of the Deputy Speakers of this House. I would just remind noble Lords that we are at Report, and at Report we are not meant to give either Second Reading or Committee speeches—it is a discourtesy to the House to be discursive. That is all that needs to be said on that.

Some noble Lords may be familiar with a newspaper that is normally far too left-wing for me, the Daily Telegraph. There is an article in today’s paper by a gentleman called Charles Hymas, which says—and I have no reason to believe it is not true, since I understand that there are fairly close links between the aforementioned organ and the party in government—that there are quite a few quite senior Back-Benchers in another place who are very keen to use this amendment, assuming your Lordships pass it, to enable them to have a proper discussion in another place about this issue and to decide then, as our elected representatives, whether this case has sufficient merit to be put into law and in what manner and form that should happen. I suggest that they are rather better qualified to do that than we are.

Having said that, my Lords, I will support this amendment. I think we should send it back to another place for them to have another look. The other place is also a better place to have what can be an extremely contorted and overimaginative debate about gender and the relative merits of sex and gender.

As others have said, I am not sure that generationally we are the best-equipped assembly to opine on these subjects. That does not mean that we are not able to have a point of view, and I am aware that some noble Lords and noble Baronesses have a very strong point of view. I simply point out that, however strongly they may feel, there are a great many others of a younger generation, and down the other end, who feel differently. I support this amendment, because I think your Lordships should give the other place a chance to decide for itself.

Photo of Lord Winston Lord Winston Labour

My Lords, I hope the noble Lord does not think I am being discourteous to the House by making a short intervention in this important debate. We have to be very careful about legal definitions of sex and gender. Primarily, the definitions are not legal but are in fact biological, as I have said in this Chamber before. That is a problem. That is one of the reasons why I agree with what the noble Baroness, Lady Fox, just said. For example, we have to understand that there are situations in which there might well be problems with—whatever you call it—misogyny or hate. Take a transgender woman who was originally assigned as a male and still has the genes of a male, and possibly some of the hormonal function of a male, who competes in a sporting event. That is a difficult issue that has not yet been properly dealt with. Clearly, it is quite likely that from time to time those sorts of situations will cause considerable anger, hostility and all sorts of effects that might be an offence under the Bill. We at least need to record that and decide how we deal with it.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, I support the amendment, and I want to deal with one or two things that have come up in this discussion. The noble Baroness, Lady Noakes, suggested that the evidence base is very thin. The evidence base of women receiving threatening and abusive behaviour and sometimes assault, accompanied by expressions that make it very clear that it is directed at them as women, is substantial. I have just been receiving evidence for a working party in Scotland, and over this past year it has been shocking to see the extent to which this is a serious problem for girls and women. It should not be underestimated, and of course it is accelerated by social media, which is encouraging the kind of verbal assault that is so disgusting and disgraceful that it is hard to imagine women and girls having to deal with it in their daily lives. It really is endemic, so I do not think that what we are trying to do here can be minimised.

As for suggesting that we introduce a complicated debate about the comparatively very few women who are trans women and might be included in this, that seems just extraordinary to me. It is a diversion from the fact that women, who make up more than 50% of the population and are not a minority, are experiencing this on a daily basis. Let us get real about it.

The noble Baroness, Lady Newlove, has pointedly made something part of her amendment. She says that the focus of this is on the perpetrator. How does it come about that an aggravation is used? It is because there is evidence, in addition to the evidence of a regular crime, that it has been motivated by antagonism and hatred towards women.

Of course, misogyny is wider than simple, old-fashioned hating. It is about a sense of entitlement, usually by young men, towards women and their bodies. The ways in which women have to experience verbal nastiness of a high level undermine their self-confidence and self-expression, so this is really damaging in our society. The noble Baroness, Lady Fox, says it is a nonsense to suggest that this leads on to more grievous crime. I am afraid that it is not a nonsense, because we know that it normalises certain kinds of behaviours that then go undetected by the police.

I really want us to think seriously about how we stop this happening. When women say this has to stop, what is the answer? A misogynistic aggravation is not the answer; it will not solve all the problems, but it is a starting point to let women know that misogyny is taken seriously by the legislature. That is why I support this amendment to the Bill.

I did the first international case, with the noble Lord, Lord Pannick, on transgender/transsexual persons wanting to be treated equally, so I know the suffering there is for trans people. But I also know that a trans woman going about her business in the example given can experience exactly the same kind of abuse and threatening and abusive behaviour as any woman who was born a woman. That distinction is really not worth our diverting our attention from the generality that something pernicious happens towards women in our society and undermines equality and the gaining of equality that we are all struggling towards.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green 6:45 pm, 17th January 2022

My Lords, acutely aware of the time, I will be extremely brief. It is a great pleasure to follow the noble Baroness, Lady Kennedy of The Shaws, and to agree with everything she just said.

I pick up a really important point from the noble Lord, Lord Russell of Liverpool. So many people have been campaigning on this issue for so long, with the noble Baroness, Lady Newlove, being such a powerful champion, and many other Members of your Lordships’ House as well. But I think we are looking tonight at two different kinds of amendments and two different structural issues. It is really important that we make it clear to those outside this Chamber that, as the noble Lord, Lord Russell, said, if we support Amendment 114F —I strongly support it—that will create the chance to have a debate in the other place. I want to make it clear to people that this is different from other amendments that will be considered later this evening.

My simple message to campaigners is that if Amendment 114F passes, as I hope it will, this is an opportunity for you to really make your voice heard in the other place. Write to your MP; make this a place where this debate is finally settled. I made a contribution in Committee, and back in March I made a contribution on the same issue on the then Domestic Abuse Bill. We really need to make progress, and this is an opportunity for this House and for people out there to get into this debate.

Photo of Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe Labour

My Lords, I will be very brief, since I supported an amendment in November attempting to achieve a similar outcome. I commend the noble Baroness, Lady Newlove, on her tenacity in pursuing this issue. This amendment simply builds on best practice already established in policing, where forces need to recognise the causes of violence against women. It attempts to fill a gap in our hate crime legislation, where sex and gender are the only protected characteristics not recognised, and to send a clear message that women’s safety matters. I simply reinforce those points and all those that the noble Baroness, Lady Newlove, made. I support her amendment.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Non-affiliated

I was not going to intervene in this debate, but I will do so briefly. First, I will not stand behind anyone else in a queue of people showing respect and admiration to my noble friend Lady Newlove, so it pains me when I find myself on the opposite side of an argument to her. That said, I agree with so much that she said in the way she described the crimes and assaults that many women experience. I also agree with a lot of what the noble Baroness, Lady Kennedy, said.

I do not want to get involved in any kind of discussion about the difference between sex and gender. The point that I want to put on the record, not least because of what the noble Lord, Lord Russell of Liverpool, said, is that there is not a consensus among women that misogyny should be introduced as a hate crime. I would be very concerned if that were to happen, not because I am in any way not concerned about the violence, the hatred and some of the discrimination that women face but because I do not want us to cultivate a society in which women are universally seen as victims and all men as aggressors. That is a risk and a potential consequence of us pursuing this course. I put that on record and look forward to the way in which my noble friend the Minister responds to this debate.

Photo of Baroness Jenkin of Kennington Baroness Jenkin of Kennington Conservative

My Lords, I too shall make a very brief intervention, in agreement with my noble friend Lady Stowell. I have some concerns that this is not the way to solve the problem of violence against women. I absolutely accept that misogyny does exist, I think women have good cause to be aggrieved about the increasing challenges we all face and the idea of misogyny as a hate crime certainly sounds attractive, but at a time when I have never known women angrier and more afraid, I think we have to ask whether this is really the right legislation to deal with our grievances. From my experience, women want better conviction rates for rape, better protection against domestic abuse and violence, and to be able to go for runs outside without fear of attack or even murder. With an average of two women murdered every week, that is what they want the police to focus on.

The Law Commission report says

“while we consider that there is a serious problem of crime that is connected to misogyny”—

I accept that too—

“we have concluded that the particular model of hate crime laws is unlikely to prove an effective response to misogynistic offending, and may prove more harmful than helpful, both to victims of violence against women and girls, and also to efforts to tackle hate crime more broadly. We suggest that reforms in other areas are more likely to result in tangible positive results.”

I agree, and I think there is a danger: we need to be careful what we wish for. There is every possibility that this kind of crime will get bogged down by bureaucracy and endless debate, none of which will improve the lives of women at all. The law of intended consequences may well be part of this. I just say to the noble Lord, Lord Carlile, that surely the example he gave is not correct, because transgender identity is already a protected characteristic. I was confused by that.

Photo of Baroness Hunt of Bethnal Green Baroness Hunt of Bethnal Green Crossbench

My Lords, I will not take up too much of the House’s time. I am a Covid baby—I have learned the culture of this House via screens—so I hope your Lordships will forgive me if I get the protocol incorrect, but I consider you all my noble friends. I am really struck by the amendment of the noble Baroness, Lady Newlove, and support it wholeheartedly because I have seen the benefit of hate crime legislation and the benefit of aggravated offences on the grounds of sexuality, disability and race. It is illogical to me that that is not extended to women when it exists for every other protected characteristic.

On a personal note, this issue of sex and gender is something that I have been researching for a very long time. I am the former CEO of Stonewall—since 2019 I have been free—but I have been thinking about these issues since 1998, when, as a student at St Hilda’s College, Oxford, we were debating whether transwomen should be allowed in that women-only college. So, I am slightly a 1980s baby, but have thought about these issues for a very long time.

I am often thought to be trans. I am not, but I am often thought to be. I do not have my tie on this evening because it is going to be a long night—and if, unlike the gentlemen, I have the option to drop it, I will—but when a woman has been told for most of her adult life to accessorise, she does get attracted to the tie racks in Liberty as an option for those accessories. I experience discrimination on the grounds of my gender, sometimes on the basis of my sex—because I am a woman and perceived to be a woman—but often on the grounds of my gender, my gender identity and my gender presentation. These things are complicated; they do not lend themselves to pithy statements.

I have huge sympathy with those who have very different views from mine on trans issues and I think there is probably more that we can talk about together than what divides us. We have become caricatures of ourselves by the medium of social media and I have a huge amount of respect for the noble Baroness, Lady Jenkin, and the work she has done around women in politics, but I know we disagree on this. I hope we can find ways to come together, but I think this amendment referring to sex and gender is wholly beneficial to women. I hope to support it, hope to see it taken back to the other place, and I thank the noble Lord, Lord Russell, for his support.

Noble Lords:

Front Bench!

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

My Lords, we strongly support the amendment in the names of the noble Baroness, Lady Newlove, the noble Lord, Lord Russell of Liverpool, and my noble friend Lord Ponsonby of Shulbrede. We strongly support the amendment because, as my noble friend Lady Kennedy pointed out, misogyny sits behind much harassment and intimidating behaviour that, unfortunately, many women experience as a reality every day in our communities. It fuels behaviour that, far too often, escalates into serious offences. We have to repeat, again and again, that violence against women and girls does not occur in a vacuum.

I agree very much with what the noble Baroness, Lady Warwick, was alluding to and am proud of my own local police in Nottinghamshire, who have been leaders in this area, as the noble Baroness, Lady Newlove, pointed out. It was the first force, in 2016, to record misogyny as a hate crime. I can tell the Chamber that it made a very real difference in Nottinghamshire when the chief constable, Sue Fish, stood up and said she was going to make it a priority for her officers. It spoke to her officers in terms of how they dealt with it, but it also spoke to the women and girls, and indeed the men of Nottinghamshire, about the priority that was going to be given. It made a very real difference and continues to do so. Sue Fish should be congratulated on being the leader that she was and is.

This campaign to recognise misogyny as an aggravating factor in the same way that we recognise hostility against a person due to disability, race or other characteristics has been running for years. Now is the time for all of us to show some leadership, to close the gap in our law and to state clearly that we do not accept the status quo and that things must change. There is much support for this change and the Government should take this opportunity, an opportunity that exists for us now and that we should take.

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

My Lords, I was quite pleased to hear noble Lords saying that your Lordships’ House should curtail debate this evening: I have never experienced it in all my time as a Minister.

I start by thanking my noble friend Lady Newlove and the noble Lords, Lord Russell of Liverpool and Lord Ponsonby, for this amendment. It speaks to their continued commitment to tackling violence against women and girls and I know they have campaigned tirelessly on this issue. Given their sincerity and their deep and obvious desire to do what is best in this sphere, I am saddened that I am not going to give them much comfort on this amendment, and I shall explain why.

As noble Lords may be aware, last month the Law Commission published its final report, Hate Crime Laws. It is a weighty tome—some 545 pages—and, as always with the Law Commission, it is a thoughtful and well-argued document that warrants very close reading. On behalf of the Government, I thank the Law Commission for the thorough and intelligent way in which it approached the task that it was given. I assure noble Lords that the Government will give all the recommendations, of which there are 34, very detailed consideration. As is customary, a full government response will be published in due course; it will address each of the recommendations and I do not want to pre-empt that process.

However, ahead of that I should just draw noble Lords’ attention to what the Law Commission said on the specific issue which Amendment 114F addresses; namely, adding sex and gender to hate crime laws or, in common parlance, “making misogyny a hate crime”. In its report, the Law Commission was unequivocal that the course of action represented by this amendment would not be appropriate, as it would potentially prove detrimental to women and girls. Indeed, it noted that to add these characteristics to the hate crime legislative framework

“may prove more harmful than helpful” and would be

“the wrong solution to a very real problem.”

I add that transgender identity is already covered in hate crime laws.

In coming to the conclusion it did, the Law Commission applied its usual rigour, dedicating almost three years of thought and careful deliberation to its work. It did so by examining, in exhaustive fashion, whether any legal models would be appropriate to making misogyny a hate crime. It did so on the premise that

“violence against women and girls is extremely prevalent and harmful”, as noble Lords have said—eliminating all doubt, if there was any, that it did not in good faith stretch every sinew to find an appropriate solution through the hate crime framework. Finally, it did so while listening to and acknowledging the voices of many practitioners who are dedicated to tackling violence against women and girls before making its recommendations, independent of government or political considerations. In this regard, there are few greater examples of what might be called evidence-based policy-making.

Turning now to the report itself, it noted that the majority of consultation respondents opposed adding the characteristics of sex and gender to these laws. A majority of specialist organisations which responded to the consultation were also opposed in one way or another. It noted, for example, that the largest sexual violence support organisation in England and Wales, Rape Crisis, rejected proposals to recognise sex and gender in any format within hate crime laws. Other women’s advocacy organisations made support conditional on certain models being pushed that meant, as the commission puts it—and I think this goes to the heart of the matter—

“Even amongst those who supported hate crime recognition in this area, there was very little consensus as to what form it should take.”

My noble friend Lady Stowell of Beeston echoed that point.

I sense from our own previous debates on this matter that consensus on the seriousness of the problem obscures the huge complexity over its solutions, and this debate demonstrates that. On terminology alone, a majority of the Law Commission’s consultation respondents opposed the inclusion of both sex and gender. Others stated they would prefer excluding such characteristics altogether unless they focused solely on women. It is clear that there is little agreement on how to implement change here in a manner that is widely accepted and fair. Amendment 114G, in the name of my noble friend Lady Noakes, serves only to illustrate all too well the lack of agreement on this question.

Understandably, this House ought to make the distinction between what might be popular and what might be necessary. However, the principal problem the commission found is that each possible option for adding sex and gender to hate crime presented unacceptable trade-offs. That is why there is so little agreement on the specifics, even among advocates. One key stakeholder concern was the finding that simply adding these characteristics in the same manner as those already represented would make it harder to prosecute crimes that disproportionately affect women and girls, like rape and domestic abuse. I do not need to explain to noble Lords why that is an intolerable unintended consequence.

I mentioned that the Law Commission was thorough. Inevitably, then, it turned its attention to legal models which might exclude some types of crimes and include others only where misogynistic hostility might be more apparent or did not include the same risks to prosecutions—public harassment, for example. This created a not unsubstantial problem that one of the central drivers of the review was to create parity across groups protected by hate crime laws. Creating a system where some crimes were excluded only as they concerned sex or gender runs directly contrary to this. None the less, the commission explored the possibilities.

This brings me to what I suspect Amendment 114F seeks to get at. It too applies the recognition of these characteristics only to certain offences. The Law Commission’s assessment of a number of models—akin to what is tabled here—similarly found them to be unsuitable. Specifically, it notes that recognising sex or gender only as it concerns certain offences gives rise to at least four problems. First, it would risk suggesting the excluded offences, such as domestic abuse, are by default not misogynistic or are somehow less important. Secondly, it is tokenistic to apply hate crime laws only to certain offences and especially where to do so would exclude the vast majority of most harmful crimes impacting women and girls. Thirdly, it would make the law more complex when a central aim of the review was to simplify it. Fourthly, it would treat sex and gender differently to the other protected groups in hate crime laws and therefore simply repeat the same principal problems of inequality that prompted the review in the first place.

I also want to address the elements of this amendment that concentrate on regulations for the collection of police data on such crimes. I can confirm that such provisions are unnecessary. There is already the capability for the Home Office to ask forces to collect data, subject to a dialogue with them about the feasibility of its collection. It is noteworthy, however, that the received wisdom about the success of pilots by forces to collect this data on their own initiative was not backed by the Law Commission’s review. Nottinghamshire, which the noble Lord, Lord Coaker, mentioned, had not been associated with increased reporting of hate crimes, and that is disappointing.

I know we all share a commitment to tackling violence and abuse against women and girls. That is not in question here tonight. The proposal to make misogyny a hate crime is a well-intentioned expression of this aim. But, in the face of a clear and objective analysis of the issue by a panel of experts, which has unequivocally recommended against a change in the law of this kind, and ahead of the wider government response to the detailed report, I cannot advise your Lordships to accept this amendment. Instead, I ask my noble friend to withdraw it.

Photo of Baroness Newlove Baroness Newlove Deputy Chairman of Committees, Deputy Speaker (Lords) 7:00 pm, 17th January 2022

My Lords, I thank everybody who has participated in this debate, whether you agree or not I think it has been—

Photo of Baroness Noakes Baroness Noakes Conservative

I believe I should deal with my amendment to my noble friend’s amendment before she gets into winding up. Much as I would love to wind up the whole debate, I will confine my remarks to my amendment, which simply sought to remove “or gender”. I think that is the smaller issue that we are dealing with today. The bigger issue is whether this is an appropriate addition to our hate crime framework in law. I will leave my noble friend to wind up on that, and I beg leave to withdraw my amendment.

Amendment 114G (to Amendment 114F) withdrawn.

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

My Lords, I will get it right this time—I have only been here 12 years.

I thank everybody who has participated in this amendment. I just want to say that this amendment has no bearing on the definitions of sex and gender. It creates no new criminal offences at all. As with religion, which is certainly not biological, targeted hostility would aggravate an existing and proven offence and with the courts deciding that aggravation has been proven as a fact, the courts are capable of dealing with it. I thank the Minister but, unfortunately, I still wish to test the opinion of the House.

Ayes 242, Noes 185.

Division number 3 Police, Crime, Sentencing and Courts Bill - Report (6th Day) — Amendment 114F

A majority of Members of the House of Lords voted to add a new Clause titled “Offences motivated by hostility towards the sex or gender of the victim”

Aye: 242 Members of the House of Lords

No: 185 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Amendment 114F agreed.

Clause 56: Imposing conditions on public processions