Protection from Sex-based Harassment in Public Bill

(Limited Text - Ministerial Extracts only)

Report stage
Friday 24th March 2023 Commons Chamber

[Anneliese Dodds]

In that case, I will just say that I mentioned those points in relation to new clause 1 and the other amendments. I believe that the right hon. Gentleman has set out very clearly the rationale, as has my hon. Friend the Member for Walthamstow, spelling out why we require guidance—we all hope that it will come speedily—but also why it is important that the legislation is consistent with other Acts in this area. I hope that the House will bear those remarks in mind when deciding how to vote.

[The Minister for Crime, Policing and Fire (Chris Philp)]

It is a great pleasure to speak to the amendments before the House on Report. I am grateful to my right hon. Friend the Member for Tunbridge Wells (Greg Clark) for his new clause 1 and amendment 1, and I am happy to confirm formally that the Government support those amendments.

As my right hon. Friend has set out, the new clause would require Ministers to publish statutory guidance for all police forces, to which those police forces would have to have regard. In particular, the guidance would need to include material about the reasonable conduct defence that has been the focus of so much discussion. There has been some concern, expressed by the hon. Member for Walthamstow (Stella Creasy) and others, that a subjective interpretation of the reasonable conduct defence might be adopted by defendants in an attempt to repudiate responsibility for their actions or to avoid conviction.

It is the view of the Government that what constitutes reasonable conduct can be defined objectively with regard to their conduct, without needing to have regard to somebody’s internal thought processes. However, we agree that guidance would be valuable in order to be completely clear about that point and to remove any ambiguity, so we are happy to support new clause 1 and amendment 1 in the name of my right hon. Friend the Member for Tunbridge Wells.

It will of course be possible for many other people besides the police to refer to the guidance, including the Crown Prosecution Service, which we would expect to operate on the same basis as the police when prosecuting those offences. To respond to a very reasonable question from my hon. Friend the Member for Christchurch (Sir Christopher Chope), we want to get this done as quickly as possible. I certainly would not want or expect it to take anything like so long as a year, which he referred to in his speech in a different context; I hope it can be accomplished in a matter of months.

My hon. Friend also said that the guidance should be subject to input and scrutiny to ensure that it is constructed in a way that is proportionate and reasonable, and I am sure the hon. Member for Walthamstow would agree. I would therefore expect opportunities to be provided to interested parties to provide that comment and I will give consideration to whether we should have a formal consultation process on the guidance. We should be mindful that that would introduce additional delay, but, given that the point has been raised, we will give it thought and strike the right balance between getting the guidance done quickly, which everyone wants, and making sure that interested parties both in Parliament and outside have an opportunity to input into its construction.

I am grateful to my right hon. Friend the Member for Tunbridge Wells for tabling the amendments and to other hon. Members, particularly the hon. Member for Walthamstow and my hon. Friend the Member for Christchurch for offering their comments.

[Sir Christopher Chope]

Would it not be normal to produce the draft guidance and then consult on it, rather than expecting the Government to come up with the perfect solution after they have received representations in general? I strongly urge my right hon. Friend to take the approach of having draft guidance first.

[Chris Philp]

It is occasionally possible for the Government to come up with something perfect straight away, but I accept that that does not always occur. The process that my hon. Friend just set out, where the Government might publish a draft and invite comments on it, either informally or via a formal consultation, seems to me a sensible way of arranging matters.

[Stella Creasy]

One of the concerns behind much of this is about consistency in the law. With other forms of harassment legislation, how reasonableness is defined is already written in. I invite the Minister to consider whether the important thing is not to come up with a whole new set of guidelines, but simply to clarify and be consistent in how we expect courts and juries to consider that concept when somebody claims, “I thought my behaviour was reasonable,” and the law says, “Well, you ought to have known,” in other forms of harassment legislation. This is not about a new piece of guidance; it is about clarifying matters so that we do not inadvertently damage the ways in which our courts can work. For example, the CPS guidance on the Serious Crime Act 2015 talks about how defendants “ought to know” about the course of conduct—again, with oblique directions that judges can give. There is plenty of guidance out there; we really just need to compile it into one document, do we not?

[Chris Philp]

I completely agree with the hon. Lady. There is existing guidance and practice in other areas that quite rightly clarifies or confirms that the assessment of reasonableness includes what somebody ought to have known, and that inferences can be drawn from their behaviour. She is quite right to point to that existing guidance and practice, and I completely agree that we should be consistent on that. I am sure that looking at that would help to draw up the draft in a quick manner. A combination of the approaches suggested by the hon. Lady and by my hon. Friend the Member for Christchurch will quickly lead us to the right answer and enable us to publish something—a draft—and get views on it, as my hon. Friend suggested. It sounds to me as if there is a rapid, sensible, pragmatic and consistent way forward.

Let me turn now to the amendments moved by my hon. Friend the Member for Christchurch. On the topic of his good humour, I have been informed by the Government Whips—a source of unimpeachable reliability, obviously—that his Mobile Homes (Pitch Fees) Bill has successfully passed its Second Reading unopposed in the other place. I hope that that provides an early boost to his good humour. Although it does not relate directly to an amendment, I just want to respond to one important point that arose in his speech, on something that I have noticed, too: adverts on London underground tubes referring to people’s behaviour in terms of where they look. He said that those were produced by the Government. For the sake of clarity, those advertisements are in fact produced by the Mayor of London in his capacity as the head of Transport for London.

As the House has heard and would expect, my right hon. Friend the Member for Tunbridge Wells has given the various amendments tabled by my hon. Friend the Member for Christchurch close and careful consideration, as have colleagues in the Home Office. We completely understand that my hon. Friend the Member for Christchurch has tabled the amendments after a great deal of consideration, and we have taken them very seriously indeed, so I will go through them one by one.

First, amendments 2 and 6 would require the other person’s sex—the victim’s sex—to have been the principal motivation for the defendant’s behaviour. As my right hon. Friend the Member for Tunbridge Wells has set out, he has drafted the legislation in the way that he has so that we are following precedent, and, as the hon. Member for Walthamstow said a moment ago, it is best that, where possible, we are consistent in the way we legislate. If any component of the motivation for the defendant’s behaviour is concerned with the sex of the victim, that is, in itself, of great concern. It may not be the principal component in some cases—it may simply be one component or a subsidiary component—but it is serious none the less.

The aim of the House is to protect people from sex-based harassment, and it strikes me that, whether the sex-based component is the principal component or a subsidiary component, the seriousness remains. Having considered that very carefully and, of course, discussed it with the Bill’s promoter, my right hon. Friend the Member for Tunbridge Wells, our feeling on balance is that the drafting as it was best translates the House’s intention into legislation and is consistent with the rest of the statute book.

Amendments 3 and 5 would replace the words “because of”. Once again, as my right hon. Friend has set out, those words appear in a number of other contexts, in other pieces of legislation, and although we cannot, as he said, dispute the command of the English language and elegance of expression of my hon. Friend the Member for Christchurch, there is a great benefit to consistency with other pieces of legislation. We feel that following precedent and maintaining that consistency is a good idea.



Amendments 7 and 8 would restrict the new offence to cases in which the harassing is done because of the victim’s actual sex, rather than what the defendant presumes the victim’s sex to be. I agree with my hon. Friend the Member for Christchurch that getting into wider discussions about the distinction between sex and gender would probably not be helpful in the context of this debate. We are considering here a circumstance in which someone harasses someone else in the erroneous belief that that person’s gender is the opposite of what it actually is. I think that what matters is the intent to cause sex-based distress and harassment, and that even if the perpetrator, or the alleged perpetrator, was mistaken in their assumption about the sex of the victim—or the purported victim, the complainant—that does not minimise or mitigate the seriousness of the act, because the intention was there and the act was undertaken.

At this point I should say that I had meant to address at the start of my speech a question that arose while my hon. Friend the Member for Christchurch was speaking. Let me deal with it now. I agree with my hon. Friend that concerns about prison capacity should not constrain what the House may do in framing new legislation. It is of course incumbent upon Parliament to legislate and set out criminal offences. The police will investigate, the Crown Prosecution Service will prosecute and the courts will, if appropriate, convict. It is then up to the Government to ensure that adequate prison capacity is available. I know that my right hon. Friend the Lord Chancellor and Secretary of State for Justice is engaged in a substantial prison building programme, and I agree with my hon. Friend the Member for Christchurch that prison capacity constraints or availability should in no way fetter the House as it considers legislation.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

The Minister is making some very good points, with only one exception: I think that the Mayor of London, Sadiq Khan, has had a good record in this general area. When it comes to the prison population, however, is it not about time that we did something about the 1,000 young people who are convicted under joint enterprise? That could open up so much capacity in our prisons.

--- Later in debate ---

[Chris Philp]

The hon. Gentleman has made an important point, and I am sure that—as you have implied, Madam Deputy Speaker—the House will have an opportunity to consider it on another occasion.

Amendment 4 would make the Bill state that the defendant can be a man or a woman. As we heard earlier from my right hon. Friend the Member for Tunbridge Wells, the defendant could indeed be a man or a woman, and indeed the victim could be a man or a woman, because, as we have established, the Bill makes no distinction between men and women. We do not generally set out in legislation the permitted genders of potential perpetrators, or those who might be guilty. Almost every offence is capable of being committed by a man or a woman, but we do not usually need to put that on the face of a Bill, and I do not think we need to do so in this instance. However, my hon. Friend the Member for Christchurch was right to raise this issue and to seek the clarification that I am happy to provide.

Amendment 9 requires the Bill to come into force on 1 August this year. I entirely share the desire of my hon. Friend the Member for Christchurch and the hon. Member for Walthamstow to get the Bill activated quickly. Let me be candid and say that, as a Minister, I sometimes find it frustrating that it takes longer to get things done than perhaps it ought to, so I share the sentiment expressed in the amendment. As my right hon. Friend the Member for Tunbridge Wells said earlier, there is some uncertainty about the timing of the Bill’s passage through the other place. Obviously, their lordships regulate their own business, and we cannot be certain about how they may seek to dispose of the Bill.

There is also the question about the guidance, which we have discussed already, and the suggestion that we publish a draft that people can then comment on. That will take a little time. I hope it is a few months, but I do not want to create a tripwire that we inadvertently stumble over. I suggest that we proceed, as is often the case in primary legislation, with commencement via a statutory instrument, with a firm undertaking from the Government that we will seek to do this as soon as possible. The Bill clearly commands, in principle, widespread support across the House, and for the sake of protecting women and men it is important that we get this on to the statute book, and operational and effective, as quickly as possible.

Question put and agreed to.

New clause 1 accordingly read a Second time, and added to the Bill.

Clause 3

Extent, commencement and short title

Amendment made: 1, page 2, line 20, after “1” insert “, (Guidance)”.—(Greg Clark.)

This amendment is consequential on NC1.

Third Reading

--- Later in debate ---

[Chris Philp]

I will be extremely brief, because I know that many other Members want to bring Bills forward today, and other Members have made excellent contributions. I quickly congratulate again my right hon. Friend the Member for Tunbridge Wells (Greg Clark) on bringing forward this legislation. I congratulate many Members on the work they have done on this issue, particularly the hon. Member for Walthamstow (Stella Creasy) and my hon. Friend the Member for Thurrock (Jackie Doyle-Price).

It is important that this Bill is only one part of a wider piece of work to protect women and girls. Of course, this is a Government who brought forward legislation on forced marriages, stalking, upskirting and making sure that serious sexual offenders spend more of their sentence in prison. We have brought forward the Domestic Abuse Act 2021, introduced the Domestic Abuse Commissioner and legislated on female genital mutilation. There of course is a lot more work to do, and I look forward to working with colleagues in government and across the House to make further progress.