Committee (8th Day) (Continued)
21:04
Amendment 214
Moved by
214: After Clause 124, insert the following new Clause—
“Sex-specific incarceration for violent and sexual offenders
After section 20 of the Gender Recognition Act 2004 insert—“20A Sex-specific incarceration(1) Where a person with a gender recognition certificate is serving a conviction for a violent or sexual offence, that person shall be treated with respect to housing on the prison estate by reference to the sex registered at their birth.(2) Where a person with a gender recognition certificate is remanded in custody for a suspected violent or sexual offence, that person shall be treated with respect to housing on the prison estate by reference to the sex registered at their birth.”” Member’s explanatory statement
This amends the Gender Recognition Act 2004 to ensure that prisoners with a gender recognition certificate who are suspected or convicted of violent or sexual offences are treated as their sex registered at birth with respect to housing on the prison estate.
Lord Blencathra Portrait Lord Blencathra (Con)
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My Lords, I am moving this amendment in my name and those of my noble friends to defend the rights of female prisoners. This is not something I ever imagined I would have to do. In my 38 years in Parliament, I have always supported the rights of women, but I was never a champion because a large number of parliamentarians were far better qualified than me and I thought that women’s rights were generally headed in the right direction—not as quickly as they should be, but in the right direction nevertheless.

Now, I find that the rights of women are under the greatest threat I have seen in my lifetime. It is not just about their rights to safe places such as bathrooms, changing rooms, NHS single-sex wards and in prison; their whole existence as biological women is under existential threat as some people—nearly all men—seek to erase the word “women” from the lexicon or commandeer it for the use of men who identify as women. Let me be crystal clear: I completely support the right of men, as guaranteed in the Equality Act, to change their gender and identify as women. They must not be discriminated against. However, let us be equally clear that men who identify as the female gender are not biological women because, as has been said before, only women have a cervix and a womb, and only women bear children. It is not transphobic to point out that elementary biological fact, which has been at the root of human existence for countless millennia.

I believe that the threat against women is increasing daily. Young lesbian women are being condemned as transphobic if they refuse to have sex with men who claim to be women. What a perversion of common sense and reality that is. However, it is worse than that. The police say that there has been a doubling of crime by female paedophiles. That is a big fat exaggeration. Sexual abuse by women has increased, but it is still infinitesimally small in comparison to that by men. Lynne Owens of the National Crime Agency says that the problem of male paedophilia may be seven times higher than first thought. There has been a huge increase in male paedophiles, some of whom then describe themselves as women; of course, a thoroughly woke police force swallows that nonsense and records it as if the rape and sodomy of children was done by real women. Some of our police forces are trashing the reputation of women by accusing them of crimes committed by men. I believe that the message should go out to the police service that when a male is arrested or commits a crime, he should be recorded as male and never as female, no matter how he designates himself.

I turn to prisons, the substance of my amendment. I am afraid that the situation there is just as bad. Although I suspect that I am in a minority in this House—as I am on many things—I am not one of those who believes that women should not be sent to prison. When the crime justifies it, women should go to prison and be punished. However, that punishment should not include the threat of rape and violence from big, brutish rapists who have decided to identify as women and get sent to a women’s unit. The female prison estate is currently run as a mixed-sex institution because the MoJ’s policies permit prisoners of the male sex, where they identify as transgender and fulfil certain criteria, to be allocated to the female estate and held in women’s prisons alongside vulnerable female offenders. Eligible males include those convicted of the most serious, violent and sexual offences and those with intact male genitalia.

Among others in prison at the moment, there is a vile man—I would describe him as vile—who raped two children, got his gender recognition certificate while in prison and is now swaggering around a female prison wing. I cannot name him or his prison. I believe that women’s prisons should be separate, single-sex facilities for the safety, dignity and privacy of women in prison. Since the Corston report in 2007, it has been acknowledged throughout the criminal justice system that women in prison exhibit patterns of vulnerability that distinguish them from both women in the wider community and male offenders. Female offenders report disproportionately high rates of previous experience of violent and sexual abuse; they also experience high rates of mental health problems. Indeed, in the previous debate, I heard the noble Lord, Lord Dubs, say that three-quarters of women in prison had suffered male violence before being sent to prison. A recent study of prisons in Scotland found a high prevalence—almost 80%—of significant head injury; these injuries were most often caused by repeated incidents of domestic abuse occurring over several years.

For many female prisoners, time in prison is often the first opportunity to tackle the complex issues around their offending, improve their health and access the services they need. Where women in prison have been the victims of sexual and violent assault, prison is often the first time they can be confident that they will be away from their male abusers. Where women in prison have been the victims of sexual and violent abuse at the hands of men, the presence of any offender of the male sex may have an inherently traumatising effect, regardless of the nature of offence committed. It is for good reason that approaches to tackling female offending have consistently emphasised the need for trauma-responsive services.

The Ministry of Justice policy that permits prisoners of the male sex to be housed in the female estate is called The Care and Management of Individuals who are Transgender. The policy states that all male prisoners who identify as transgender and who are in possession of a gender recognition certificate must be allocated to the female estate. The conviction, offending history, risk profile or anatomy are of no consideration.

Theoretically, a decision may be made to transfer to the male estate after risk assessment. We know of no situation where this has happened. Even the most high-risk male prisoners have remained in the female estate, including those convicted of violent and sexual offences against women and those with intact male genitalia. In respect of male prisoners who identify as transgender and who have no gender recognition certificate, initial allocation is to the male estate. The prisoner may then make an application to be transferred to a women’s prison.

In March 2021, a judicial review was brought against the Secretary of State for Justice, challenging the lawfulness of the MoJ’s policies that permit prisoners of the male sex to be housed in the female estate. Judgment was handed down in July and found that these policies are not unlawful. It would be quite extraordinary if the MoJ was found to be operating an illegal policy. However, the judgment was clear that the court had been called on to rule as to the lawfulness of the policy and not its desirability.

Lord Justice Holroyde acknowledged the negative impact of these policies on women in prison. He said

“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence. I also readily accept the proposition … that some, and perhaps many, women prisoners may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender women who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.”

He also said:

“I fully understand the concerns advanced on behalf of the Claimant. Many people may think it incongruous and inappropriate that a prisoner of masculine physique and with male genitalia should be accommodated in a female prison in any circumstances.”


I agree with Lord Justice Holroyde that it is both incongruous and thoroughly inappropriate. If it is lawful to house prisoners of the male sex who have been convicted of the most serious violent and sexual offences alongside women who have been the victims of violent and sexual assault, that law must change. It is wrong.

Under the Gender Recognition Act 2004, people who fulfil certain criteria are able to obtain legal recognition of their acquired gender. Legal recognition will follow from the issue of a gender recognition certificate by a gender recognition panel. A new birth certificate is also issued, with the sex marker changed to reflect the acquired gender and the name changed to the newly adopted name. There is no requirement for surgery or medical treatment to obtain a GRC.

GRCs have been obtained in prison by males convicted of violent and sexual offences who have then transferred to the female prison estate. I do not consider that the original intention of the Gender Recognition Act was to enable violent or sexual offenders of the male sex to be housed with women in prison, much less those who retain fully functioning male genitalia. I also make this point: these male prisoners want to identify as women. That is perfectly okay. Apparently, they do not want their male bodies, but every single one of them have retained their male genitalia as they swagger around female prison units. I suggest that those men, particularly those in prison, are simply faking being a woman to get access to real biological women in a female estate.

21:15
Clauses in the Gender Recognition Act clearly indicate that a GRC entitles a bearer to be treated as a member of the sex with which they identify for most purposes but not all. Hence, possession of a GRC expressly does not affect recording of parenthood. The possibility of being convicted of a crime defined as one that only a man can commit is also unaffected by possession of a GRC, as is the possibility of being a victim of a crime defined as one which only a female can be a victim of. Primogeniture is also unaffected.
I submit that incarceration for violent and sexual offences is a situation where a GRC should not take precedence over unchanged biological sex. The MoJ may be acting lawfully but it is not acting decently nor doing its duty to protect biological-sex women. Indeed, the Ministry of Justice policy documents do not talk about women, but call them non-transgender women, automatically giving top billing to men identifying as women, with real women described as non-transgender. That is why I say that women are being erased from the lexicon. A male, no matter how he identifies, should never be housed in a women’s prison. Like many government departments and organisations, the Ministry of Justice has fallen for the minority, militant transexual agendists, giving far more rights to men who claim to be women than to women themselves. My amendment is a small first step to defend women. There will be many more amendments to come as people realise that the assault on women is now a clear and present danger. I commend my amendment to the Committee.
Baroness Brinton Portrait Baroness Brinton (LD) [V]
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My Lords, the problem that Amendment 214 is trying to resolve is already addressed in the very strict codes of practice and guidance to the prison sector. Given that there is a full system of assessment of transgender prisoners, the prison environment in which they are currently placed and that in which they would like to be placed, it is worth running through the detail.

The noble Lord, Lord Blencathra, quoted from last year’s judicial review, but paragraph 75, where the explanation for the ruling starts, states:

“It is clear that the number of transgender women in women’s prisons is small, and the number who hold GRCs (and are therefore entitled to be treated as women in accordance with the Gender Recognition Act 2004) is very small.”


I say that in the light of the tone of the speech by the noble Lord, Lord Blencathra, which made it appear that there was a large invasion of trans women in women’s prisons.

The number of transgender prisoners is very small. However, the guidance on the management of prisoners is lengthy and clear, because transgender prisoners have human rights, as all prisoners do, and because they themselves are at serious risk in prison. The most recent statistics are from last year, and in its coverage of the data, the BBC noted:

“The total number of transgender victims far exceeds the number who were suspected of carrying out sex attacks, with only one such case in 2019.”


Between 2016 and 2019, of 97 sexual attacks in the women’s prison estate, seven trans women had been involved in sex assaults, either as the alleged perpetrator or assistant, with 90 of the sexual assaults being carried out by cis women. A further set of figures from the Ministry of Justice states that 11 trans women had been sexually assaulted in the men’s prison estate in 2019 alone. All this tells us that trans women are far more likely to be victims of assault in prisons than perpetrators and that many more women are assaulted by cis women in prison than by trans women.

However, even if the number of trans prisoners assaulting others is very low, it is right that there are safeguards in place, so what does the guidance say? It says that after a prisoner declares and can provide evidence that they are living in the gender that the offender identifies with, there will be an initial local transgender case board which will, as appropriate, make arrangements for transfers to other parts of the prison estate.

The Parole Board published Guidance on Prisoners who are Transgender in March of this year, which sets out the law very clearly for the prison and probation services regarding prisoners who are transgender. The operational guidance states that

“all transgender individuals, irrespective of whether they are located in the estate which matches the gender with which they identify, must be allowed to express the gender with which they identify. However, decisions to locate individuals who are transgender in prisons that do not match their legal gender can be made only on the recommendation of a Complex Case Board. This board will take into account risk factors to the individual and risk to others”.

To make it clear, for any trans prisoners who might also be deemed a risk to other prisoners, a complex case board has to be called for transgender offenders, which will look at the complexity and specifically assess the risk of harm, prior to making decisions about prison location. The views of the offender must be presented to the board, but a number of healthcare and psychology leads would be there to ensure that any move to a women’s prison would be safe.

Options that a complex case board can consider include moving a prisoner to a women’s prison but keeping them in segregation or, if even that is felt to be too risky, moving them into a segregated part of a men’s prison that is staffed as if it were a women’s unit. There are also now a small number of transgender prison units. It seems that this document sets out well all the steps that need to be taken to protect the trans prisoner—who, as I have already said, is at much higher risk of assault than non-trans prisoners—while also protecting the other prisoners from someone who might be deemed a risk.

There was the case of Karen White, who sexually assaulted two women while on remand at New Hall prison in Wakefield in 2017. It is worth remembering that the Prison Service had to apologise in that case because it had not followed the procedures outlined above, failing all prisoners at New Hall. White should never have been put in a women’s prison and, had there been a complex case board, it would have assessed her as being a risk and not put her in a women’s prison.

The current Ministry of Justice and HMPPS 39-page policy on “The Care and Management of Individuals who are Transgender” says at paragraph 1.6:

“The proper assessment of risk is paramount in the management of all individuals in our care. The management of individuals who are transgender, particularly in custodial and residential settings, must seek to protect both the welfare and rights of the individual and the welfare and rights of others around them, including staff. Decisions must be informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all in our care and management.”


The process is there to protect all prisoners and to respect the rights and safety of all prisoners. This amendment is redundant. The actual facts of what is happening with trans women in prisons does not match the opening speech by the noble Lord, Lord Blencathra.

Lord Morrow Portrait Lord Morrow (DUP)
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My Lords, I support the amendment moved by the noble Lord, Lord Blencathra, this evening. I do so not just because I have attached my name to it, but because I emphatically agree with what it seeks to achieve. Anyone who knows me is aware that I am an advocate for a strong law-and-order approach to crime; for those who break the law, the punishment must fit the crime—which often includes imprisonment. This amendment, however, is trying to protect the dignity of female prisoners.

The female prison estate is currently run as a mixed-sex institution. This is because the Ministry of Justice’s policies permit prisoners of the male sex who identify as transgender and fulfil certain criteria, resulting in them being held alongside vulnerable female prisoners. Some of these prisoners have been convicted of the most serious violent and sexual offences and are biologically male.

It surely follows that women’s prisons should be separate-sex facilities to preserve, as far as reasonably possible, the safety, dignity and privacy of women in prison. Since the Corston report in 2007 it has been acknowledged throughout the criminal justice system that women in prison exhibit patterns of vulnerability that distinguish them both from women in the wider community and from male offenders. It is also worth noting that female offenders report disproportionately high rates of previous experience of violent and sexual abuse, and experience high rates of mental health problems.

Where women in prison have been victims of violent and sexual assault, prison is often the very first time they can be confident that they will be away from their abusers, who are usually men. I strongly contend that, where women in prison have been victims of sexual and violent abuse at the hands of males, the presence of any offender of the male sex may have an inherently traumatising effect, regardless of the nature of the offence committed.

It is the Ministry of Justice policy—namely, The Care and Management of Individuals who are Transgender —that permits prisoners of the male sex to be housed in the female estate. The policy states that all male prisoners who identify as transgender and who are in possession of a gender recognition certificate must be allocated to the female estate. This is irrespective of any conviction, offending history, risk profile or anatomy, including those who are high-risk prisoners and those convicted of violent and sexual offences against women.

I too was going to refer to the judicial review that was brought in March 2021, but the mover of the amendment has adequately covered that, so I will refrain. However, I shall again emphasise one line: while the policies were found not to be unlawful, it should be said again that the judgment acknowledged the negative impact of the policies on women in prison.

Furthermore, there is no requirement under the Gender Recognition Act 2004, if people fulfil certain criteria, for them to have surgery or medical treatment to obtain a GRC. It is a fact, as has already been referred to, that GRCs have been obtained in prison by males convicted of violent and sexual offences who have been transferred to the female prison estate. The latest data available on the number of male-sex prisoners who identify as transgender dates back to 2019, but back then it was 11 in number. I understand that new data will be available to be released, or at least is expected to be released, this month. Forcing women to share accommodation with prisoners of the male sex, particularly where those prisoners have been convicted of violent or sexual offences, arguably engages Article 3 on the right not to be subjected to inhuman or degrading treatment or punishment.

I urge your Lordships’ House to support this reasoned and sensible amendment, which is clearly intended to respect female prisoners, including their rights and dignity. Not to do so could be interpreted as not caring how female prisoners end up. Indeed, the conditions that they are subjected to could be construed as part of their prison sentence—which of course they are not, and never should be.

Baroness Meyer Portrait Baroness Meyer (Con)
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My Lords, Amendment 214 seeks to eliminate the risks and dangers to women in prison by the muddled use in legislation of the terms “sex” and “gender”. They are not interchangeable. They have come to mean very different things. Matters have reached such a pitch that I am tempted to paraphrase the 18th-century man of letters Dr Samuel Johnson and say that “Allowing a person with a full set of male genitals the legal right to serve a sentence in a women’s prison is not done well, but you are surprised to find it done at all”. It is, not to put a too fine a point on it, barking mad.

21:30
The defiance of science, biology, common sense and reality can be traced back to the Gender Recognition Act 2004. This allows men who identify themselves as women to be recognised as women, even though they may be biologically unaltered from the day they came into this world in their birthday suits. The dangers and risks are obvious. Without our amendment, this legislation makes them even greater. The law also allows new birth certificates to be issued, without requirement of surgery or medical treatment. For all legal purposes, men become females with just a tap of a key on a computer. Piling absurdity on absurdity, it becomes a criminal offence to reveal that they were ever born as men.
As night follows day, just as paedophiles are attracted to the teaching profession and children’s charities, so men with violent sexual intent will be able to seek a gender recognition certificate as a licence to molest and rape women. The Ministry of Justice, in its folly, cannot provide figures for men guilty of such acts because, in a policy of self-inflicting Catch-22, they are categorised as women.
It is surely a fundamental right that women in prison, like women in a gym changing-room or a women’s lavatory, should be allowed to find themselves cohabiting with a person who does not have a penis. We all know that women in prison are especially vulnerable. It is therefore unthinkable that the law should allow them to be menaced by men incarcerated for violent and sexual abuses. The noble Baroness, Lady Brinton, says that it is only a small number, but a small number is a number. Is that what the law is about? The law should protect all.
Let me make one thing very clear: I am second to none in my support for gay, lesbian and trans rights. This has nothing to do with it. I still have the scars from having to fight as a young woman for equal opportunities in the male-dominated financial services industry. I still bear the scars of having to fight off crude sexual advances that today would carry a jail sentence. In one case, because I refused to submit to my boss’s advances, my promotion was held back for more than a year. This is why I was once a Stonewall supporter. It fought the good fight and won. The Marriage (Same Sex Couples) Act 2013 was a triumph for the humane society we strive to be.
However, today I weep for what Stonewall has become. It is now a cockpit for factions fighting over the meaning of trans rights, where many assert that biological sex does not exist. It is a modern version of the medieval controversy over how many angels could dance on a pinhead. I find it astonishing how many government departments and corporations have bought into this obscurantism.
Things have to change, and change soon. Approval of our amendment would be a start. No person with male genitals should be allowed to be remanded into women’s prisons or serve their sentences there. If the police insist on entering self-identified gender into their records, they must balance it with biological sex. Will the Minister ensure that Amendment 292G, which calls for the police to record birth sex rather than gender, is implemented?
Too many things are going backwards: life expectancy is down; obesity is up; the weather is becoming more violent; and the world has still not shaken off the coronavirus. Let us not add to our woes by bringing down the curtain on the age of reason by replacing it with the age of bigoted fabulists. Will my noble friend assure the House that he will not let ideology trump facts and ensure that women are better protected?
Lord Pannick Portrait Lord Pannick (CB)
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My Lords, the noble Baroness’s speech ranged very broadly indeed. We are in fact debating a complex penal issue where we have a policy that addresses the matter very sensibly, as the noble Baroness, Lady Brinton, explained.

I will add just one point to this debate. It is not difficult to see the danger to people who were registered as male at birth but who are now registered under the Act as female if they were required to be placed in a male prison, as this amendment would require, irrespective of the particular circumstances of their case, as long as they are a sexual or violent offender. It should not need to be emphasised, but I will emphasise it because it is the fact, that many of these people have had hormone treatment, and some of them have had reconstructive surgery that has given them primary and sometimes secondary sexual characteristics of a physical nature. What do the proposers of the amendment think will happen to such people if the Home Office is obliged to place them in a male prison?

Of course we would all agree that, if there is an offender in custody for a suspected violent or sexual offence who is in possession of a gender recognition certificate and poses a risk to others in custody, then specific steps should be taken to isolate and deal with them. But that does not justify or require ignoring a gender recognition certificate in the way the amendment proposes.

Baroness Fox of Buckley Portrait Baroness Fox of Buckley (Non-Afl)
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My Lords, it has to be said that when I talk to members of the general public and tell them that it is MoJ policy to allow prisoners of a male sex to be housed according to their self-declared gender identity in a women’s prison, irrespective of whether they have taken any legal or medical steps to acquire their gender, that they do not need to have gone through any physical transformation and still retain male genitalia, which we have heard lots about already in this debate, and that they do not even need to have obtained a gender recognition certificate—they need just to declare that they are women and demand that they are moved to the women’s estate, and it is seriously considered—they are aghast. It falls under the category of, “Has the world gone mad?”

That common-sense response might not feel appropriate when discussing legislation, but in this instance it may help us to look at this issue in practical, real-life terms, not just in abstractions. That is why I welcome the amendment very strongly. Although it does not resolve all my concerns, I welcome its modest, narrow aim of removing the most egregious aspect of this situation: allowing male prisoners who identify as trans but have convictions of violence or sexual offences against women to live with women prisoners. There really is no point in the Government issuing strategies and grand words about violence against girls and women if the same Government have no qualms about letting rapists share the same confined living quarters as vulnerable women in prison who, let us be frank, cannot leave or escape because they are locked up by the state. This amendment’s focus is on convicted sex offenders and it is urgent that the Government take notice.

It is important to note that when gender-critical commentators and academics raise qualms about the general policy of housing transgender prisoners in the women’s estate, they are often dubbed transphobic and accused of holding a prejudiced view of all trans women as sexual predators, but this is a malign caricature. At this point I give a shout-out of solidarity to Professor Jo Phoenix, an esteemed and conscientious criminologist who has been harassed and traduced for raising such legitimate concerns.

Wherever one stands on the general issue, this amendment is specific and cannot be accused of implying that all natal men, however they identify, are a sexual threat to women, because that would not be true. We are talking only about convicted sex offenders and those guilty of violence. I still hope this probing amendment might encourage the Government to look more closely at a range of issues in this area. I particularly want the Government to consider whether the Ministry of Justice’s involvement over a period of time with the controversial lobbying group Stonewall, which has already been referred to by the noble Baroness, Lady Meyer, as with so many public bodies, may—just may—have led to the skewing of policies in a particular direction.

For example, I know how keen this Government are on data and statistics, but as Kate Coleman, the founder of Keep Prisons Single Sex, has noted—this just seems incredible to me—the MoJ admits that it does not know how many prisoners identify as trans because, with a gender recognition certificate, they are counted by their new legal gender. I am not sure how the noble Baroness, Lady Brinton, can be so sure of the statistics she quotes, because the tools designed to assess any threat posed by male prisoners who identify as trans women cannot be picked up accurately. If someone with a GRC attacks a female prisoner, it will be recorded as an assault by a woman on another woman.

I also want to query who is listened to in this discussion on what is obviously a clash of rights. In the course of the recent High Court ruling we have heard about, Lord Justice Holroyde outlined the need to balance

“the subjective concerns of women prisoners”

with

“the rights of transgender women in the prison system.”

This made it sound as though the women, the biological women, were all being overly subjective, and the transgender women had rights. Describing one side as subjective and the other with rights misses a crucial point, because that transgender woman has an identity that is not an objective fact but a subjective desire and then a declaration. Why are women prisoners’ subjective but rational concerns afforded less weight here?

When the High Court acknowledged that women prisoners may well be worried and “scared” about sharing prison accommodation with male-bodied prisoners, the court said that that fear was not enough to outweigh the desire of some male prisoners to be housed with women. I wonder: when did the prison estate, or indeed the law, allow its policies to be dictated by prisoners’ desires? I have worked with prisoners over a number of years, particularly with Debating Matters Beyond Bars. Many of the prisoners I have worked with have declared that they desire decent prison education. They desire retraining and better conditions. The prison authorities certainly did not accommodate their desires, so why are these desires accommodated when it comes to the trans issue?

Finally, I am keen that the Government look carefully, and use this probing amendment to do so, at how staff in prisons understand the issue of sex and gender in the context of training. The MoJ policy entitled The Care and Management of Individuals who are Transgender advises staff to complete an “eLearning module” on transgender identity. One of the training courses is named intersecting identities. I have looked at these, and it all rather terrifies me. It is one-sided, jargon-ridden and ideological. I hope this amendment might point the Government to raise and review the whole issue. For now, at least, a very modest amendment should be taken seriously if they really mean they care about protecting women from violent men.

Lord Cormack Portrait Lord Cormack (Con)
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My Lords, I just want to intervene briefly. I support this amendment. To me, it is morally wrong for a physical man to be in a woman’s prison. It is as simple as that. If he has identified himself as a woman, and deserves to be in prison, there should be special facilities that do not bring people of that sort into close proximity with women or—if they are in danger—with men.

21:45
The fact of the matter is that we are denigrating womanhood. Some time ago in this House, we debated the Bill to grant maternity leave to the Attorney-General—a perfectly laudable and reasonable thing to ask us to do. In that Bill, there was no mention of the words “mother” or “woman”—the person giving birth. Thanks to pressure from both sides of this House, there was a small advance. Rather than risk a defeat, the Government altered the wording of the Bill. That seemed an entirely reasonable outcome.
I hope that we can tackle this issue in a calm and moderate way. Its prime purpose is the defence of women and womanhood. Our mother has probably been the most important person in most of our lives. We are denigrating motherhood if we allow physically equipped males to cohabit in women’s prisons.
In her speech, the noble Baroness, Lady Fox of Buckley, referred to a remarkable young woman, Kate Coleman. She is a highly intelligent graduate who has had personal contact with a number of the real women who have suffered indignity, embarrassment and much worse by having physical males—who say that they are female—in women’s prisons. Everyone, regardless of his or her identity, deserves dignity. If special provisions have to be made for a group of trans people, so be it. Everyone particularly deserves that dignity at the most vulnerable moments of their lives. A woman in prison deserves it. A woman in hospital deserves it. We would be giving way to the slogan-mongers and the sort of people who terrorised that academic at Sussex University if we did not recognise that this is a real issue which deserves to be approached in a balanced, moderate, sensible way, recognising the physical difference between the sexes.
This is a probing amendment. It is not perfect. Very few amendments are. When my noble friend comes to reply, I hope he will indicate that the Government are prepared to talk to some of us who have these acute concerns, to see if some amendment can be fashioned for Report. This is a real problem which we must not ignore.
Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, the late intervention by the noble Lord, Lord Cormack, was helpful in suggesting to the Minister that what I think we would all acknowledge is a complex, sensitive and controversial issue would benefit from a sensible roundtable discussion in which the Prison Service was open to some scrutiny. Part of the issue around gender, sex and identity in government as a whole is that policy has been developed mainly by officials who have come under the influence of certain groups, which Ministers have basically accepted and it has not been subjected to proper scrutiny.

My major appeal to the Minister tonight is to allow for that and to open up a dialogue in which those of us who are gender-critical are not accused of being transphobic or under the pay of alt-right American organisations, something which, I am afraid, has all too often clouded the debate. I have an Oral Question tomorrow about Professor Kathleen Stock—a classic case of someone who has expressed quite legitimate views being subjected to horrendous abuse and basically left simply to put up with it herself; it was very late on that the university came her defence. There are so many examples of this, mainly affecting women. There is a lot of misogyny in this debate, and women are left defenceless by pathetic public bodies which are frightened to upset certain groups such as Stonewall. We know this—in how many government departments has policy been developed by officials, with Ministers having virtually no say?

My appeal to the Minister tonight is to take this seriously and to say there is a legitimate debate—not one in which we call each other names, but where we actually start to discuss these issues. It has never been allowed; there has been no real public debate or scrutiny in Parliament. These issues are so sensitive, and with every Bill that goes through, this debate will take place. We know that the Government are split on this, but they have got to get themselves together and start to have a proper dialogue. That is the appeal I make to the Minister.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, I am afraid it is not just the Government who are split on this. With two notable exceptions, rarely have so many noble Barons spoken with such passion and at such length for the dignity of women—and there is nothing wrong with late-flowering feminism. I say that quite sincerely to the noble Lord, Lord Blencathra, who I had the privilege of advising as a young lawyer in the Home Office some years ago now. There is nothing wrong with late-flowering feminism and, indeed, nothing wrong with speaking up for the dignity of all people. I say that as a self-identifying feminist and human rights campaigner.

The debate has ranged widely, which may be fine even at this late hour, but it has ranged beyond the specific issue. Noble Lords have brought up various issues to do with the lexicon and whether people feel that their dignity is lost, or that somehow their femaleness, or their womanhood, is challenged by newcomers, migrants to their sex, et cetera. To get back to the actual issue, life is complicated, prisons are vulnerable spaces and everybody in prison is inherently potentially threatening but also potentially vulnerable. I want to get back to the actual substance of this amendment and what it is trying to address. I say to the noble Lord, Lord Blencathra, that, if he and I were trapped in a lift with a third person—this is just a hypothetical, not an invitation, I promise—and the third person was a cis woman, born a woman, still a woman, always a woman, but none the less a white supremacist with previous convictions as long as your arm for violence against non-white women, I would feel much more threatened by the presence of that offender than by the presence of the noble Lord, Lord Blencathra. He is looking quizzical, but my point is that the Secretary of State has responsibilities to people in custody, in particular, and to people in vulnerable spaces that cannot be dealt with using the blunt instrument of an amendment like this.

I am not making nit-picking points. I am trying to address points that I think the noble Baroness, Lady Brinton, tried to make early on. Forgive me—it is no criticism, but some noble Lords responded subsequently with speeches which were understandably carefully prepared in advance, without the opportunity to hear her rather sensitive and thoughtful setting out of the way in which the Government to date are trying to address their administrative and serious human rights responsibilities to deal with all vulnerable people in prison.

I suggest to the noble Lord that in the hypothetical lift I would be at far greater risk from the white supremacist with previous convictions. This is not a total hypothetical, because this has happened in male prisons where non-white offenders have been murdered by fellow cis males—that being the term for people born and always a man—because of a lack of diligence about the offending and attitudinal profile of a person.

If we really care about people being safe in custody, which we must, this will not be resolved by a blunt instrument. This is not a drafting point or a nit-picking point. In my view, we have too many people—and I suggest too many women—in prison anyway, and we need to pay more attention to who is with whom and how we are taking care of them.

Something like this amendment, which says that your birth sex is always your sex for the purposes of imprisonment and incarceration, would mean that someone born a woman who then went through hormone therapy, possibly more interventionist therapies and even surgery would always be in a women’s prison. That would not necessarily always be the right outcome.

What I am trying to suggest is that, yes, I care about being a woman and, yes, I care about being a feminist, but I am a human first and foremost. I do not hate men. I do not fear all men. I am not a self-loathing cis woman. I believe that in this Committee, perhaps more than anywhere, we should be capable of taking some of the heat out of these sensitive issues, as I think we tried to do in an earlier—I called it historic—debate. Debates about the lexicon and wider dignity, important and heated though they are, will not make women safer and they will not make prisoners safer.

Baroness Meyer Portrait Baroness Meyer (Con)
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We are talking about men who feel they are women but who have male genitalia being in a women’s prison. We are not talking about men who had operations. We are talking about men who, after being in a prison for several months, might have needs and could attack women. Some of those men are paedophiles and are violent.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I hear the noble Baroness, and I do not call her a late-flowering human rights spokesperson or feminist. I know that when she spoke on another Bill about parental alienation, she very clearly identified and recognised that people of both sexes were capable of this behaviour. Perhaps if she had had the opportunity to listen to the remarks of the noble Baroness, Lady Brinton, before she prepared hers—I make no criticism of that, because we all do it—she would recognise that the Government are already moving quite a long way to deal with these difficult administrative duties of care.

I believe that people of good will and good faith, as I consider this Committee to be, can deal with this without using some of the language that—forgive me— some noble Lords have used repeatedly. Repeatedly calling people one sex even though it is very important to them to be another does not help. This place—this Committee and your Lordships’ House—should not be a place of culture war. This should be a place where we make difficult things a little bit easier because of rational thought and the respect that we pay each other and therefore everyone else.

22:00
Baroness Fox of Buckley Portrait Baroness Fox of Buckley (Non-Afl)
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I want to respond to that because I think another point that follows from what the noble Lord, Lord Hunt, said is that the other argument that comes up all the time is that if you raise these issues you want a culture war, which I think the noble Baroness, Lady Chakrabarti, was implying.

On terminology, if we are all going to get offended, I do not particularly find descriptions of people as “cis” very helpful either, so when it comes to language issues, the point is that there are tensions that exist outside this place. We know that and it is disingenuous to pretend that there are not.

The noble Baroness rightly pointed out that this is a question of administrative duties of care. This amendment has been very carefully worded in a very narrow way about a very specific issue. What is the objection to that? This is precisely a responsible administrative duty of care, regardless of any hyperbole that people do not like other people using even when they use it.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I thank the noble Baroness for that intervention. If I offended her in any way by my remarks—

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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—I apologise. Clearly one of the reasons this is so sensitive is that, beyond this Committee and this Chamber, there is not yet even a settled courtesy about some of these matters. If I have offended any Member of the Committee, I apologise.

I was born a woman, and I still identify as a woman, but I have always tried to disagree well with people, including those on the Benches opposite, who I disagree with across the piece. I have never seen all men as a threat, and I have certainly never seen people of other races, sexualities or sex as a threat, and I am not calling anybody names in this debate.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, this is an important debate. I think I am perfectly entitled to intervene; I do not see why I cannot. I agree with a lot of what my noble friend said about the tone of the debate. My problem is the accusation of transphobia.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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But I did not make it.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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No, my noble friend did not make it, but it is made by many people. Those who are perhaps arguing from my noble friend’s point of view never defend people such as Kathleen Stock when they suffer such abuse. I welcome this debate, which is why I intervened, because, frankly, it is very helpful to try to set a place here. I agree with my noble friend that the Lords is, above all else, a place where we can start to have some reasoned discussion, but there are huge tensions and sensitivities on both sides. I must come back to the Minister: the fact is—

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My noble friend is intervening on me.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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That is very true. My noble friend is right. I will take that and ask her to respond to me.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I am grateful for that. Forgive me, again, if I have called anybody names. That has not been my intention. This is difficult terrain. The path of human rights does not run smooth and there are all sorts of difficult issues to be dealt with. There are some people beyond this Committee and your Lordships’ House who seek to set people against each other. The focus of this legislation, and your Lordships’ focus in this Committee, should be to ensure the safety of vulnerable people in prison, whatever sex they were born and whatever sex they now identify as. I was trying to suggest that that is not just about biology. It is also to do with criminality, profile, attitude and so on. I believe we have too many people in prison and that we therefore have too many women in prison.

I would defend academic freedom and debate, by the way. Forgive me if I have not been seen to do so. I believe that my record on free speech matters is decent enough. I urge noble Lords to send a signal to the wider world that, in this place at least, we can disagree well and focus on protecting all vulnerable people in prison.

Baroness Falkner of Margravine Portrait Baroness Falkner of Margravine (CB)
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My Lords, I declare an interest as chair of the Equality and Human Rights Commission. As most noble Lords will know, we are the body charged with protecting the protected characteristic of sex as well as that of gender reassignment and the fundamentally important human right of freedom of expression. All those things have been discussed today relatively calmly, on the whole. On debating well, I start from first principles and say that we should never try to close down debate—and yes, we should debate well.

I thank the noble Lords, Lord Blencathra, Lord Morrow and Lord Farmer, and the noble Baroness, Lady Meyer, for proposing this amendment, which basically seeks to ensure that female prisoners are protected from harm. This is a complex area, where the rights of trans women prisoners to have their legal sex recognised has to be balanced with those of female prisoners, who may be fearful of attack, if they know that a dangerous sex offender with male anatomy is housed with them, for example. The important point is that, when you are incarcerated and do not have the liberty to leave a place of danger, the state’s duty to look after you is profound. You do not have the choices that other people have.

The noble Lords and noble Baroness have proposed that prisoners with a gender recognition certificate who are suspected or convicted of a “violent or sexual offence” are treated

“by reference to the sex registered at their birth.”

I understand the intent behind this amendment, which is essentially to secure the safety of natal women. However, it raises some issues that require further thought—for example, the risk of violence towards trans women prisoners housed in a male prison as well as to trans men in a female prison. I urge noble Lords not to frame this serious and complex issue either in a numbers game—are there very few or not so few?—or in what may or may not be our personal outlook, if we find ourselves in that position. The law is frequently a straitjacket, and it is not sufficiently malleable to accommodate the complexity of identities around us.

At the heart of this issue is the need to protect female prisoners and ensure that they have access to single-sex spaces, including bathrooms, sleeping accommodation and other areas that they need. Violent and sexual offenders are a threat to their fellow inmates, regardless of their sex or gender identity. Cases of assault sadly already happen in single-sex prisons. However, in the case of trans prisoners who may be violent or who may have committed crimes involving sexual assault, it is right that we now need to give additional thought to how they are housed. As it stands, the law stands calls for these decisions to be made on a case-by-case basis. While this will be right in many situations, it may also raise the question of how female prisoners can have confidence in their ability to safely access spaces such as toilets within the prison, precisely because they cannot know the outcome of a case-by-case assessment, as opposed to the generality of a law that exists for them. Further thought needs to be given to the facilities provided to trans people and whether provision can be expanded for trans people that ensures that all sides of that debate can be safe and secure within the prison estate.

A further problem with the amendment is that, oddly, it is too narrow and does not capture the issue of trans men or trans women who do not have a gender recognition certificate but, nevertheless, self-identify in the gender and can therefore apply and be granted a place in the relevant prison estate. I do not think the noble Lords who put down the amendment intended for it to be quite so narrow—certainly their speeches do not reflect the narrowness of the written words. These are not straightforward issues, and it is right that we properly consider the balance of rights of different prisoners. I do not believe that the amendment gets that balance right, but it does ask serious and important questions that need to be addressed in law.

If the Minister is minded to pursue these arguments through Report, I ask that he give extremely serious consideration to the importance of getting the balance of rights correct and ensuring that all prisoners have the duty of the state to safeguard them upheld as we go forward.

Baroness Butler-Sloss Portrait Baroness Butler-Sloss (CB)
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My Lords, I had not intended to speak, but I would like to support what the noble Baroness, Lady Falkner, has just said. There are two groups of people who need support. I agree with her that the well-intentioned amendment of the noble Lord, Lord Blencathra, does not actually meet the problem. These two groups are the women who are women at birth and remain women, and those who were men at birth and become women. Both groups, even in prison, need respect for who they are and what has happened to them. I do not think that the prison system is well adapted at the moment to deal with trans women, and the Minister needs to think with some care whether rather more should be done to help that group of women.

However, the help for that group of women should not be at the expense—I venture into dangerous ground —of those who remain women. This is an extremely tricky area, and we know from areas outside the prison system just how tricky is it. I do not envy the Minister or the Ministry of Justice the situation in which they find themselves because this did not exist—as far as we knew—even 10 or 20 years ago but, my goodness me, it exists now. There are two groups, both of whom need not only respect, but understanding and care, even within a prison.

Lord Paddick Portrait Lord Paddick (LD)
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My Lords, I have been engaged in the debate on trans issues for many years and I have the scars to prove it. I have even been criticised for simply engaging in the debate, by some trans people for even listening to radical feminists, and by feminists because I am not a woman. I have met with, listened to, and talked with many people on all sides of these issues, including radical feminists, gender-critical people, trans people and intersex people. I continue to listen, and I continue to try to understand the views expressed by all sides.

I can feel my blood pressure rising when I hear the comments of many noble Lords around the Chamber. Then I think for a while, and I think to myself that it was not that long ago that I perhaps held similar views until I actually started talking to the people whose lives we are talking about—people who honestly and genuinely believe that they are in the wrong body, if you like, and those who genuinely believe that they are women even though they have male bodies, for example. That is when you begin to understand that these things, which appear completely counterintuitive, make sense for those people. I do not condemn people for what they have said because it was not that long ago that I might have thought along similar lines.

22:15
Baroness Fox of Buckley Portrait Baroness Fox of Buckley (Non-Afl)
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Can I just clarify one thing? Many trans people do not agree with some of the orthodoxies that have become associated with trans activism. The inference was that some people possibly have a particular view because they have not met any trans people. That is not true. Whole swathes of trans people do not go along with a particular political opinion, for example in relation to prisons, as in this instance. I am concerned that it is not seen that those people who argue a gender-critical view are doing it because they are ignorant and have not got out enough.

Lord Paddick Portrait Lord Paddick (LD)
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I hear and understand what the noble Baroness says. However, on this amendment, I am clear. We oppose Amendment 214 from the Front Bench. We do not support the noble Lord’s amendment, but we understand completely the concerns that he and other noble Lords have. However, we feel that the risks that the noble Lord seeks to minimise are already minimal, and that other risks that need to be managed are not covered by this amendment.

The amendment seeks to amend the Gender Recognition Act to reduce the risk that transgender prisoners present to others. This is neither necessary nor desirable for the following reasons. First, there are very few transgender prisoners. In a data collection exercise between March and May 2018, only 44 of 124 public and private prisons said that they had any transgender prisoners at all. The fact that there are so few transgender people in prison is also an indication of the level of offending by transgender people, the seriousness of that offending and the extent of the threat that they pose.

Secondly, the risk of mental health problems, self-harm and suicide is far greater among the transgender community than it is among those who are not transgender. Clearly, in a prison setting, the risk of mental health problems, self-harm and suicide is likely to be higher for all inmates; for transgender prisoners, it is likely to be very high indeed. In November 2015, an inmate who said that she would kill herself if she was sent to a male jail was found dead. Vicky Thompson, aged 21, died a week ago at the all-male HMP Leeds. Friends said that Thompson, who was born male but had identified as a woman since she was a teenager, had asked to be sent to a female jail in Wakefield. This is the sort of impact that having an unbalanced amendment, such as the one proposed by the noble Lord, Lord Blencathra, can have on transgender people.

Thirdly, if the Prison Service thinks that the risk presented by a transgender prisoner is such that they should be housed in a prison contrary to their legal gender, it can allocate them to a part of the estate that does not match their legally recognised gender. The decision must be taken after consultation with experts and at a high level, but it is possible.

A number of noble Lords have referred to the High Court judgment in July 2021, where lawyers for a female inmate in the female prison estate brought a judicial review against the MoJ. The MoJ argued that the policy pursues a legitimate aim, including

“facilitating the rights of transgender people to live in and as their acquired gender (and) protecting transgender people’s mental and physical health.”

It is interesting that I am actually quoting from the same case as other noble Lords have quoted from. Lord Justice Holroyde said:

“It is not possible to argue that the defendant should have excluded from women’s prisons all transgender women”—


as this amendment proposes. He continued:

“To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender.”


The case was not actually about excluding all transgender women; it was about challenging how policies applied to those who had been convicted of serious or violent offences against women—as the noble Lord’s amendment does.

The Lord Justice went on to say that trans women’s offending history was a factor that the existing policies were required to consider. He said:

“the need to assess and manage all risks is repeatedly emphasised”

throughout existing MoJ policies. He continued:

“In an exceptional case, a high risk transgender woman, even with a GRC, can be transferred to the male estate because of the higher level of security which is there available.”


Therefore, there is a mechanism to do exactly what the amendment is seeking to do, but on a risk-assessed basis.

The court also heard that expert panels are also involved in the process when allocating transgender prisoners and are “expressly required” to consider the trans woman’s offending history, her anatomy and her sexual behaviours and relationships. The Lord Justice said:

“They can in my view be expected to be astute to detect any case of a male prisoner who, for sinister reasons, is merely pretending to wish to live in the female gender.”


He concluded:

“the policies require a careful, case-by-case assessment of the risks and of the ways in which the risks should be managed. Properly applied, that assessment has the result that non-transgender prisoners only have contact with transgender prisoners when it is safe for them to do so.”

This is the same case that noble Lords have been quoting from.

Yes, the Lord Justice said:

“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence.”


He added that some women prisoners,

“may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender woman who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.”

This amendment says nothing about whether the person has had sex-reassignment surgery, and there are trans women with gender recognition certificates who have not undergone gender reassignment surgery. The amendment, therefore, is not fit for purpose.

There are two sorts of risk that need to be managed here. There are the risks to the transgender prisoner, either from themselves, in terms of mental health, self-harm and suicide, or the risk from other prisoners, such as the risk of a transphobic attack or an attack based on their acquired gender if they present as a woman in a prison housing men, for example. There may be risks that the transgender person poses, perhaps because of a previous history of violence or sexual offences, but those falling into this category are few and far between and can be dealt with under the law as it stands. Any attempt to stereotype all transgender women as a threat to women flies in the face of the facts and needs to be robustly challenged.

The implication that transgender women are a threat to children reminds me of the sort of abuse that was directed towards me as a gay man a few decades ago.

Lord Blencathra Portrait Lord Blencathra (Con)
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The noble Lord is looking at me and implying that I suggested that transgender men were a threat to children. I said no such thing at all. I quoted the case of a male rapist who had raped two children. I was not suggesting that this was endemic in the transgender community, or that they are a threat to children at all. That is not what I said, not what I implied, not what I intended.

Lord Paddick Portrait Lord Paddick (LD)
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I am grateful for the clarification that the noble Lord has given, and I will allow noble Lords to read the official record and draw their own conclusions from what he said.

The noble Lord’s amendment manages only one of these risks—arguably the much lower risk. Each case should be, and is currently, managed on a case-by-case basis, and that should continue. We oppose the amendment.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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We, too, oppose the amendment. I think we all accept that transgender women are entitled to live in their chosen gender. The law protects transgender women and transgender men from discrimination because they are transgender men or transgender women. The position that is outlined in this amendment leads all transgender women to be consigned to the male prison estate—a point made very forcibly by the noble Lord, Lord Pannick. The moment one says that, one sees the total unthought-out nature of the amendment.

The way forward was, I believe, charted by the noble Lord, Lord Pannick, and the noble Baronesses, Lady Falkner and Lady Brinton. The noble Baroness, Lady Falkner, indicated in a powerful speech that one is dealing, in effect, with rights that may conflict: on the one hand, the right of a transgender woman to be properly protected, including in her choice to be a transgender woman, and on the other, the possibility that certain prisoners, including transgender women, can be a threat to other prisoners in the women’s estate. The way that that is dealt with at the moment was well outlined by the noble Baroness, Lady Brinton, in her excellent and detailed speech. The prison authorities deal with it on a case-by-case basis using a series of detailed processes. Should we continue with that, or should we condemn every gender recognition-certificated transgender woman who is charged—maybe not convicted —of a violent or sexual offence to being in the male estate?

For my own part, it is pretty obvious that one should continue with the current arrangements. I am sure that they could be improved—I am not in a position to detail any improvements that could be given to them—but that case-by-case basis must be a better approach than that adopted by the amendment in the name of the noble Lord, Lord Blencathra. I would go further and say that I do not suggest to the noble Lord and those who have also supported the amendment that they come back with something else. This is much better dealt with on a case-by-case basis, so we on this side of the House oppose the amendment. We do not think it is appropriate; we do not think it even tries to balance rights, and we would not support it coming back on Report.

22:30
Lord Wolfson of Tredegar Portrait The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
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My Lords, having heard the noble Lord, Lord Paddick, perhaps I can begin with two confessions. First, I frequently listen to and discuss issues with people with whom I firmly disagree including, on occasion, Members of your Lordships’ House. Secondly, I do not propose to change that approach.

This amendment from the noble Lord, Lord Blencathra, relates to the management of prisoners who have changed their legal gender by obtaining a GRC—a gender recognition certificate. The effect of the amendment would be that a prisoner with a GRC who is convicted of or on remand for a violent or sexual offence would be, and would have to be, held in a prison matching their sex at birth.

I assure the noble Lord, Lord Hunt of Kings Heath, that I and the MoJ take this issue very seriously but, and with no disrespect to any noble Lord whose speech has ranged more widely, we are in Committee on this Bill. I shall confine my remarks to the subject matter of the amendment rather than the broader questions, whether on Stonewall or related topics, interesting and thought-provoking though they were. The Committee will be aware that the MoJ left the Stonewall diversity scheme in June this year, but I reiterate the department’s commitment to diversity in all its diverse forms. Our policy is not driven by ideology; it is driven by compliance with the law of the land and to consider protection for all—I repeat all—the prisoners in our care.

Reference has been made to the 39-page policy. Let me just read what the section under “Outcomes” says:

“The high-level outcomes of the new Policy Framework are intended to strike an appropriate balance, ensuring”


first that:

“All transgender individuals are managed safely with their rights properly respected and in accordance with the law”


and, secondly:

“Decisions are informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all individuals in custodial settings and approved premises. This includes an assessment of risks presented to and by transgender individuals.”


The Committee will have noted the two references to balance in that section, as pointed out by the noble Baroness, Lady Falkner of Margravine. As the noble and learned Baroness, Lady Butler-Sloss, pointed out, two groups—perhaps at least two, I would say—need respect and understanding in prison. I suggest to the Committee that that policy is correct in law and, I believe, in principle too. With all due deference to my noble friend Lord Cormack, I suggest that it is morally correct as well.

This is about legality, safety and dignity, so in answer to the point put to the Committee by the noble Baroness, Lady Fox of Buckley, no: the world has not gone mad and it is a gross mischaracterisation of government policy to suggest that I or the Government have “no qualms” about letting rapists share living quarters with women. I assume that point was put because the noble Baroness does not understand what the policy is, so let me explain the actual policy to her and to the Committee.

The policy is that transgender prisoners are allocated to a prison matching their legal gender but can be held in a prison opposite to their legal gender where they would otherwise present an unmanageable level of risk to other prisoners. The current policy therefore allows for prisoners with GRCs to be held in a prison matching their sex at birth, where that is appropriate. I can therefore confirm, because I have had this checked, that contrary to the position set out by the noble Lord, Lord Blencathra, there are trans women with GRCs who are now housed in the male estate following the risk assessment process.

The critical point, as pointed out first, I think, by the noble Lord, Lord Pannick, and then adopted by others, is that that policy differs from that suggested by the amendment because the current policy is not a blanket approach. The amendment is a one-size-fits-all approach, or a blunt instrument, as I think the noble Baroness, Lady Chakrabarti, put it. We manage prisoners with GRCs on a case-by-case basis. That is absolutely right, because we want to make sure that there are no assaults in any prison by any prisoner on any other prisoner or, of course, on a member of staff.

The amendment would end the balanced approach. It would mean that a prisoner with a GRC would never be held in the part of the prison estate that matched their acquired gender, even though in some cases this would pose a manageable level of risk and would, on balance, be the safest and most appropriate course of action. It would lead to a prisoner with a GRC having to be kept in a prison that matched their sex at birth, even when that posed an unmanageable level of risk, which would be an utterly bizarre conclusion. It would mean, for example, that a prisoner who had transitioned from female to male and had obtained a GRC would be kept in a women’s prison, even if that posed an unmanageable level of risk to the women they were in prison with. We are very conscious, as my noble friend Lady Meyer pointed out, that women in prison are especially vulnerable. This amendment, I am sure unintentionally, might expose them to greater danger.

It is simply not possible to argue that holding transgender prisoners with GRCs in a prison matching their sex at birth is always necessary and proportionate in every instance. By far the better policy is the policy we adopt, which is to look at matters on a case-by-case basis. I also point out that the amendment applies only to prisoners with GRCs, which most transgender prisoners do not have.

Before I sit down, I will pick up two further points—first, the point from my noble friend Lady Meyer on Amendment 292G. I see that my noble friend Lady Williams of Trafford has come into the Chamber. I think that she or another member of the Home Office team will have the delight of dealing with that amendment on a future occasion and I do not want to steal her thunder on that this evening.

My noble friend Lord Cormack and the noble Lord, Lord Hunt of Kings Heath, said “talk to us”. I started by saying that I am always happy to talk to everyone, and I mean that. However, on this issue, when the most important information to provide is how the policy is operated, I suggest with respect to noble Lords that perhaps the best way forward might be to replicate something we did on the Domestic Abuse Bill and have what I think I called a teach-in from officials, who will be able to provide noble Lords with information and explain how it works. I have been able to check and they would be very happy to do that. We will arrange that in the normal way.

With that explanation of government policy and the offer of the teach-in, I invite the noble Lord to withdraw the amendment.

Lord Blencathra Portrait Lord Blencathra (Con)
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My Lords, it is customary for every Peer who has moved an amendment to say that it has been a worthwhile debate. I genuinely think it has been a worthwhile debate because, as the noble Lord, Lord Hunt of Kings Heath, said, this subject has not been properly debated in this House or in Parliament before. It is a policy invented by officials that past Ministers have signed off on. It is certainly worthy of debate.

I say to the noble Baroness, Lady Chakrabarti, that the reason so many men spoke is that so many noble Baronesses who normally sit behind her are afraid to speak on this issue. They have spoken to me privately, as have some on the Lib Dem Benches and the Cross Benches, and said, “Please raise this issue; we dare not speak out.” That is not right. It should be possible for noble Baronesses on all sides to raise this issue of women’s rights.

In some ways there has been a certain degree of consensus on three issues. There is agreement that, first, the rights of transgender prisoners must be protected; secondly, that the rights of women prisoners must be protected; and thirdly, that my amendment is a blunt instrument that fails in certain aspects and, as the noble and learned Lord, Lord Falconer, said, that I ought not to bring it back on Report. I think that, with proper discussion, I will need to bring back a radically revised amendment on Report. I thank the noble Lord, Lord Hunt of Kings Heath, the noble and learned Lord, Lord Falconer, my noble friend Lord Cormack and the noble Baroness, Lady Falkner of Margravine, for suggesting that we need to get the balance of rights correct.

The noble Baroness, Lady Brinton, said that the numbers are small, but I dismiss the view that because the numbers are small this does not matter so much. The number of transgender women in prison may be small, but the fear they create in the women’s estate is quite considerable. This is about not just the number of attacks that have happened but the fear women have of being attacked. Their rights need to be defended too. I would welcome dialogue with the Minister, my noble friends and noble Lords opposite on getting that balance right.

Since the numbers are small, why can we not have special units for men who identify as women so that they are not, as the noble Lord, Lord Pannick, rightly pointed out, forced into the male estate where they would be victims of violence in some cases, or into the women’s estate where women fear, rightly or wrongly, that they will be attacked? Since we already have some specialist units, can we not have units for men who identify as women so that they can have their own accommodation with their own like kind, people who also want to identify as women?

I urge the noble Lord, Lord Paddick, to read what I said very carefully. I did not accuse transgender women of being a threat to women or children. I quoted the case of one man who was a rapist and raped children and who, after he went to prison, decided that he wanted a GRC and to identify as a woman. That is a totally different case from what the noble Lord inadvertently suggested I said.

On this occasion, I intend to withdraw this amendment, but I would like to pick this up with the Minister, the noble Lord, Lord Hunt, my noble friend Lord Cormack and possibly the noble Baroness, Lady Falkner of Margravine, if she is permitted to do so, and discuss an amendment which would try to get the balance of rights right, so that we protect women and transgender women and so that each can feel safe in their own prison space. With those words, I beg leave to withdraw the amendment.

Amendment 214 withdrawn.
Amendment 214A
Moved by
214A: After Clause 124, insert the following new Clause—
“Home detention curfews
(1) The Home Detention Curfew policy framework is amended as follows.(2) In paragraph 4.3.1 at the appropriate place insert—“Offenders who have previously breached a protective order”.(3) In paragraph 4.3.5 at the appropriate place insert—“Anyone with a history of offences relating to stalking, harassment, coercive control or domestic abuse”.”Member’s explanatory statement
This amendment would exclude offenders who have previously breached a protective order and those with a history of offences relating to stalking, harassment, coercive control or domestic abuse, from the Home Detention Curfew policy framework.
Baroness Brinton Portrait Baroness Brinton (LD) [V]
- Hansard - - - Excerpts

My Lords, I have laid Amendment 214A and I thank the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baroness, Lady Newlove, for also signing it.

The home detention curfew is a valuable and worthwhile scheme, allowing offenders to be released from prison to a suitable address and allowing for a smoother transition back into society. There are, however, a number of violent and sexual offences which rightly cannot be considered under this scheme, due to the risk the offender poses to the victim. This amendment seeks to expand the list of ineligible offences to include those which relate to ongoing harm or risk to a particular individual and which are not already excluded from the scheme. These offences include stalking, harassment, coercive control and domestic abuse.

The Minister knows from the many amendments that were tabled during the passage of the Domestic Abuse Bill and other Bills before it that in cases where perpetrators are fixated and obsessed, by the time they are convicted, many will have either a restraining order or another protective order in place. This amendment says that the home detention curfew should also not be considered in cases where such a restraining order or other protective order has already been breached.

The Government have described a key objective of this Bill as follows:

“We are changing release arrangements for serious violent and sex offenders, as well as for those whose risk to the public increases during their time in custody, so that they serve longer in prison.


These changes have the protection of the public at their core and ensure a firm but fair justice system.”


The victims of stalking, harassment, coercive control and domestic abuse, where the perpetrator has had a protective order made against them, often report that their perpetrator continues to try to control them, whether directly or indirectly, including from prison, sometimes without prison officials being aware.

One example is not untypical of the kind of perpetrator we believe should not be eligible for HDCs. The woman, who wishes to be anonymous, has been a victim of domestic abuse by her ex-husband and has been granted multiple restraining orders for her own protection since divorcing him. He was convicted in 2017 for breaching an order and in 2019 for two breaches of another order, and then faced trial for eight breaches of a third order as well as numerous counts of stalking against her, her partner and her family. This shows a clear history of breaching protective orders—over 10 times—and the victim is currently on her fourth restraining order.

22:45
In 2020 the ex-husband was convicted of stalking and sentenced to a two-year custodial sentence. However, the victim was shocked to find out that he could apply for a home detention curfew in January 2022, having served only six months of his sentence—that is, just under one-quarter. Understandably, given the history, she has been very concerned about her safety. Given the perpetrator’s history of breaching orders, she has little faith in his compliance with home detention curfews or in the police responding if he does fail to comply. There is no way of blocking his application despite his record.
The Minister said in reply to the last amendment that risk and safety were critical. Ministers have made it clear that tackling violence against women and girls is very much at the heart of this government strategy. We know that some of these particularly fixated perpetrators are highly likely to go on to reoffend, are likely to already have had protective orders and, the amendment says, must have already breached those orders—so, frankly, HDC is not an appropriate choice here. By not excluding stalking and the other offences that I have outlined, those most at risk—their victims—are most at risk of further harm.
I want to be clear that it is the obsessive behaviours demonstrated by breaching protective orders given by the courts that would act as the trigger to exclude from the HDC. The amendment seeks to ensure that, in the Government’s own words on this Bill:
“These changes have the protection of the public at their core and ensure a firm but fair justice system.”
Baroness Newlove Portrait Baroness Newlove (Con)
- Hansard - - - Excerpts

My Lords, I am pleased to add my name to Amendment 214A, along with the noble Baroness, Lady Brinton, and the noble Lord, Lord Ponsonby, because we care about protecting vulnerable victims of crime from harm and repeat victimisation.

Home detention curfew, or HDC, is a valuable scheme allowing certain offenders to be released early from their custodial sentence if they have a suitable address to go to. We all recognise the value that this brings in providing a managed way of releasing offenders back into the community. However, there are, rightly, a number of exclusions to eligibility for the scheme based upon the offender’s history of compliance as well as the offences for which they have been convicted. For example, sex offenders required to register, those sentenced for breach of curfew and those serving sentences for cruelty to children or racially aggravated offences are ineligible for HDC. These are just some of the criteria that currently can preclude someone. I believe, as do some colleagues around the Chamber with whom I speak, that the safety of the victim and the risk presented to them by the offender are of the utmost importance when considering suitability for release under HDC.

Amendment 214A seeks to add two new criteria to the framework governing home detention curfews: first, that offenders who have previously breached protective orders such as restraining orders are deemed ineligible; secondly, that those with a history of offences related to stalking, harassment, coercive control and domestic abuse are also deemed ineligible. Victims of these crimes are at high risk of repeat victimisation and are in desperate need of respite from their abuse to help them recover. Under HDC, that respite can be as little as 28 days, allowing no time to address the behaviours that characterise these offences.

Fifty-five per cent of stalking perpetrators go on to reoffend because of the fixated and obsessive nature that defines stalking, as the noble Baroness, Lady Brinton, has just said. Therefore, granting HDC in stalking cases is highly inappropriate and of grave concern, as these offenders regularly breach orders and bail conditions. Home detention curfew for these offenders poses a significant risk, catching victims as they let down their guard. To see an offender released so quickly can be highly distressing, retraumatising and risky; and it impacts trust and confidence in our justice system.

HDC can allow offenders to leave prison so quickly that the victim is entirely unaware. I am aware of multiple cases where a victim has been harassed by an offender following release on HDC, including the victim of a brutal assault, whose father told me what happened: “My daughter was convinced she saw the perpetrator within yards of her new flat. She had to walk around him on the pavement. I assured her that this couldn’t be possible, even with only serving half his sentence. Nevertheless, I checked with the prosecuting officer. He knew nothing of any early release, nor had the police been consulted. In fact, we discovered to our horror that my daughter’s assailant had been released barely three months into his sentence.”

This woman saw the man who assaulted her just yards from her new address—an address she moved to for safety, which was secret for a reason. Her father told me of the enormous distress and anxiety this caused as she relived her assault and felt constantly in fear. In this instance, she had signed up for the victim contact scheme, but a HDC decision had been made before she had been allocated a victim liaison officer contact. As such, the decision was made without any opportunity to input licence conditions and set an exclusion zone for her offender, or for her to contribute in any way by raising highly relevant issues. The relevant issues included the fact that the offender had been given a 10-year restraining order—an unusual intervention signalling the judge’s belief that he posed an ongoing risk. Relevant issues such as that he had previously contacted the victim on bail, showing that he had a history of not complying with orders, should have raised red flags and, under this amendment, would have precluded him from HDC.

The use of home detention curfews in these contexts presents an ongoing problem. If the nature of the offence relates to ongoing harm or risk to a particular individual, as detailed in this amendment, HDC should not be considered a suitable intervention. Those are the words of a father who is so worried for his daughter.

I know it is drawing late, but I would like to thank the London Victims’ Commissioner, Claire Waxman, and her office for bringing these concerning cases to my attention. We need to protect our vulnerable victims of crime.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
- Hansard - - - Excerpts

My Lords, my name is on this amendment as well. I have the same briefing as the noble Baronesses, Lady Brinton and Lady Newlove, so I do not have anything additional to say, other than that obsessional behaviour is a problem that one sees throughout the court system. While of course I support home detention curfews, it needs to be recognised that obsessional, fixated behaviour is a source of very serious risk—mainly to women, but not exclusively to women. I have seen, relatively recently, obsessional people in breach of a restraining order, a non-molestation order, bail conditions and licence conditions all at the same time. So I support the amendment in my name.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
- Hansard - - - Excerpts

My Lords, I am grateful to the noble Baroness, Lady Brinton, twice over. First, I thank her for tabling this amendment, which has enabled us to have this short but interesting debate. Secondly, I have to say mea culpa, because I failed to thank her for her contribution in the last group. I should have done so and I apologise for that. I hope that she will be able to hear what I am saying now, via the screen.

The home detention curfew—HDC—scheme has operated since 1999. It provides a managed transition from custody to the community for lower-risk offenders who serve sentences of less than four years. They may be released a maximum of four and a half months earlier than the date on which they must be released in any event, but on average they are released on HDC within three months of their automatic release date.

Offenders who are released under the HDC scheme are released under strict licence conditions. An electronically monitored curfew of at least nine hours a day is mandatory. Location monitoring may be added in cases where practitioners advise that it is required. Importantly, research suggests that offenders released early on HDC are no more likely to commit further offences than if they were released at their automatic release date. Compliance with the curfew conditions is closely monitored and breaches are dealt with robustly, which can lead to a swift recall to prison where necessary.

As my noble friend Lady Newlove pointed out, certain offenders are excluded in law from HDC. They include registered sex offenders, terrorists and those imprisoned for specified violent offences. But, as I have said, most offenders serving sentences of less than four years are eligible for the scheme. I underline the word “eligible”. The fact that a particular offender is, in principle, eligible, does not mean that that offender is suitable for release under the scheme. As the noble Lord, Lord Ponsonby of Shulbrede, has just said, offenders can, for example, exhibit obsessional behaviour. No offender can be approved for release on HDC without a robust risk-management plan in place. Where necessary, the governor can set additional licence conditions that can include exclusion zones or location monitoring. If the result of the assessment is that the offender cannot be safely managed at the proposed curfew address, HDC will simply not be granted.

We recognise that the release of offenders with a history of stalking, harassment, coercive control or domestic abuse can cause additional distress. We do not believe that adding those offences to the list of offences excluded by law and putting a blanket ban in place would be proportionate, or an effective means of safeguarding victims while maximising the benefits of the scheme. But we are currently reviewing the HDC policy framework to ensure that all the appropriate safeguards are in place to protect victims and the public and that unsuitable offenders are not released on HDC. With these reassurances and for these reasons, I urge the noble Baroness to withdraw this amendment.

Baroness Brinton Portrait Baroness Brinton (LD) [V]
- Hansard - - - Excerpts

I thank noble Lords for their contributions to this brief debate. The noble Baroness, Lady Newlove, spoke powerfully of the practical impact on victims of these fixated offenders after HDC has happened. I echo her thanks to Claire Waxman and her staff at the London Victims’ Commissioner’s office for their briefing and their assistance.

The noble Lord, Lord Ponsonby, helpfully reiterated the fixated behaviour of these offenders and how it is in their nature to breach orders. All the examples that the three of us have given show that they are likely to do so—and to do so repeatedly.

23:00
I thank the Minister for his kind comments about my contributions on both this and the previous amendment, but I understand that stalking, domestic abuse and coercive control are not lower-risk offences. We already know that stalking offenders in particular, but not solely, often do not comply with orders and reject treatment, providing a problem for their victims. We still believe that this puts the victims at risk of further harm and pressure if their perpetrators are allowed to have HDCs. Therefore, will the Minister agree to meet with me, the noble Baroness, Lady Newlove, and the noble Lord, Lord Ponsonby, to discuss this between now and Report? In the meantime, I beg leave to withdraw the amendment.
Amendment 214A withdrawn.
Clauses 125 to 128 agreed.
Schedule 12 agreed.
Clause 129 agreed.
Schedule 13: Community and suspended sentence orders: special procedures relating to review and breach
Amendment 214B not moved.
Schedule 13 agreed.
Clause 130 agreed.
Schedule 14 agreed.
Clause 131 agreed.
Amendments 215 to 218 not moved.
Amendment 219
Moved by
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.””
Baroness Newlove Portrait Baroness Newlove (Con)
- Hansard - - - Excerpts

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.

Lord Polak Portrait Lord Polak (Con)
- Hansard - - - Excerpts

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.

23:15
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.
Lord Russell of Liverpool Portrait Lord Russell of Liverpool (CB)
- Hansard - - - Excerpts

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.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
- Hansard - - - Excerpts

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

Lord Russell of Liverpool Portrait Lord Russell of Liverpool (CB)
- Hansard - - - Excerpts

If the noble Lord looks at the amendment, it says

“or presumed sex or gender”.

That is as presumed by the perpetrator.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
- Hansard - - - Excerpts

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

Lord Russell of Liverpool Portrait Lord Russell of Liverpool (CB)
- Hansard - - - Excerpts

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.

Baroness Noakes Portrait Baroness Noakes (Con)
- Hansard - - - Excerpts

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.

Lord Paddick Portrait Lord Paddick (LD)
- Hansard - - - Excerpts

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.

Lord Russell of Liverpool Portrait Lord Russell of Liverpool (CB)
- Hansard - - - Excerpts

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.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
- Hansard - - - Excerpts

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.

Baroness Noakes Portrait Baroness Noakes (Con)
- Hansard - - - Excerpts

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—

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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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?

Baroness Noakes Portrait Baroness Noakes (Con)
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I think that was a trick question from the noble and learned Lord, Lord Falconer of Thoroton.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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It is not a trick question; I would have thought that that piece of information might be quite important to evaluating her amendment.

23:30
Baroness Noakes Portrait Baroness Noakes (Con)
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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.

Lord Paddick Portrait Lord Paddick (LD)
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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?

Baroness Noakes Portrait Baroness Noakes (Con)
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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.

Baroness Warwick of Undercliffe Portrait Baroness Warwick of Undercliffe (Lab)
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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.

Baroness Grey-Thompson Portrait Baroness Grey-Thompson (CB)
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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.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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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.

Baroness Ludford Portrait Baroness Ludford (LD)
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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.

23:45
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.
Baroness Fox of Buckley Portrait Baroness Fox of Buckley (Non-Afl)
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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.

Lord Russell of Liverpool Portrait Lord Russell of Liverpool (CB)
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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.

Baroness Fox of Buckley Portrait Baroness Fox of Buckley (Non-Afl)
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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.

Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP)
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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.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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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.

00:00
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.
Lord Paddick Portrait Lord Paddick (LD)
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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.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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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.

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
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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.

None Portrait Noble Lords
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Oh!

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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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.

Baroness Newlove Portrait Baroness Newlove (Con)
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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.