Protection from Sex-based Harassment in Public Bill

2nd reading
Friday 16th June 2023 Lords Chamber

Second Reading

15:14

Moved by

[Lord Wolfson of Tredegar]

That the Bill be now read a second time.

[Lord Wolfson of Tredegar (Con)]

My Lords, for those watching, whether live or a recorded transmission at some future date, perhaps I should make two points at the outset. I am conscious that a man—that is, me—is proposing that the Bill be read a second time, and that the Minister, and indeed the noble Lord who will speak for the Opposition Front Bench, are also both men. There are in fact two good reasons for this. First, a technical reason is that nothing in the Bill limits it to women being the object of the harassment. Men can also be an object of harassment, although, on the vast and overwhelming majority of occasions, it is women who suffer from this crime. Secondly, and far more importantly, the reason why it is actually good that men are debating the Bill is that violence against women is not a matter just for women but for all of us. Therefore, I am pleased, if I can put it that way, that men in the Chamber are engaged in this debate.

I should also say for those watching that the limited number of speakers in this debate does not indicate that there is no enthusiasm in this House for this subject; on the contrary, it is exactly because there has been such broad cross-party support both here and in the other place that we have so few speakers today.

I must first thank a host of organisations and charities who have contributed to work on the Bill. In particular I mention in the parliamentary context Greg Clark MP, who introduced the Bill in the other place after his success in the ballot and who was kind enough to discuss the form of the legislation with me at the outset. It is therefore also kind of him to entrust me, if I can put it that way, with introducing Second Reading of the Bill in your Lordships’ House today. However, the Bill, like other matters the House has debated today, is a cross-party effort in the sense that it has been supported, very strongly, across all parties. In that context, it is only fair for me also to mention Stella Creasy MP, who contributed significantly to the debate on the Bill in the other place and has worked in this area on a number of matters. I am also grateful to my noble friend the Minister, the Government Front Bench and other Front Benches for their support on the Bill.

Violence against women is experienced all too often in public places and indeed in private locations as well. It has always been wrong and has always been incapable of any justification. However, it is fair to say that in the last number of years there has been an increasing groundswell of public feeling on this issue, and I both regret and welcome that increased focus. I regret it because it shows that our society still suffers from this type of behaviour all too often. However, I also welcome it because the increased focus on this issue and indeed related issues will help us all to reduce, if not rid our society of, this sort of behaviour.

This is a very short and very focused Bill. It will not solve the problem, but it will be part of the solution. It builds on existing legislation; it does not criminalise anything which is not already illegal. However, it provides a higher sentence if the crime is motivated by the sex or the perceived sex of the victim—and that is as perceived by the offender, not the victim. It entails that if someone commits an offence under the existing Section 4A of the Public Order Act 1986 and does so because of the victim’s sex, they can get a longer sentence: up to two years, rather than up to six months as now. It relates to behaviour in any location except where both the victim and the perpetrator are in a private dwelling.

The Bill does not specify the types of behaviour that will be covered, since that will be case dependent, but the Explanatory Notes give some likely examples. These include following a person—for example, deliberately walking closely behind someone as they walk home late at night; I should say that I have heard about that from my own daughters on occasion—making an obscene or aggressive comment towards a person; making an obscene or offensive gesture towards a person; obstructing a person making a journey; and driving or riding a vehicle slowly near a person making a journey. Importantly, there is a reasonable conduct defence, which was the subject of some discussion in the other place, and an amendment was brought in which now requires Ministers to produce statutory guidance for the police about the new offence, in particular about the reasonable conduct defence. That reasonable conduct defence is already in the legislation, in Section 4A, but there will be statutory guidance about it.

The Bill does not fill a gap in the law: there is no gap. Public sexual harassment behaviour is already covered by existing criminal offences, especially offences in the Public Order Act. So, we do not need or, I suggest, want a new offence. When I spoke from the Front Bench, I frequently said that the statute book is not there as a form of semaphore to send signals. This does not create a new offence; as I said, it creates a higher sentence for a particular form of the offence.

Section 2 is therefore important. It refers to the guidance I mentioned, which will be issued to all relevant parties by the Secretary of State and provides that the chief constable and others in the police must have regard to that guidance. I should say, in parenthesis, that I found that a little odd when I first looked at it: I thought it could be taken for granted that chief constables would have regard to guidance. I presume, therefore, that this is standard drafting, but I would not want it thought that, in any other case, if we did not say they must have regard to it, that means that they can ignore it. I shall leave that there for the moment.

I draw the House’s attention to the consequential amendments in Section 3, not because they are in any way problematic but because I feel I should, because the first of them amends the Football Spectators Act 1989, and I should probably declare my registered interest as the chair of the Football Regulatory Authority in that regard. Section 4 extends the Bill to England and Wales. Wales was bought in by an amendment in the other place. That was received with enthusiasm by the Welsh Government. I do not think I need to declare an interest there—I will just read out my name from Hansard in due course.

The critical point with the Bill is that legislation will not solve the problem. We need social and cultural change, but a legislative change can be part of the solution. I am very proud to have played a small part in getting the Bill to this stage and I very much hope that all parts of the House will be able to support it and therefore add another brick, so to speak, in the wall we are building, slowly but surely, against this type of behaviour. For those reasons, I beg to move.

15:23

[Baroness Hussein-Ece (LD)]

My Lords, I thank the noble Lord, Lord Wolfson, for introducing this very welcome Private Member’s Bill. It is long overdue. I also welcome the fact that a man is introducing it and other men are speaking to it. I certainly do not feel like the token woman in this debate; I very much welcome support from all sides of the House.

Sexual harassment in public is something that most women and girls, and some men, will experience. Unwanted attention, sexual advances and intimidating behaviour in public spaces and on public transport are a fact of life, sadly, for many women and girls. I was reflecting on this and remembering my mother telling me about numerous occasions on which she was harassed when she came to this country as a 20 year-old and about the impact that that had on her confidence and her ability to go out and about on her business independently, without having to rely on male relatives.

I personally experienced that frequently when I was at school, as many girls did. I remember that, when I was in the sixth form, that culminated, while I was coming out of the school gates with some friends, in a man exposing himself to us. In that instance, the school called the police and, thankfully, he was apprehended, but I think we are all aware that the impact of that is quite devastating for many young girls.

I have had men shout out lewd and aggressive comments and, if they are ignored, as many of us try to do, they sometimes become even more aggressive and even obscene. I have been tailgated while driving and followed. Like many women, I have learned to change my behaviour to feel safe. Just a few weeks ago on the Tube, I witnessed a couple of young men making loud and lewd comments to a young woman about her appearance, and I am sure that she got off the tube just to get away from them.

The majority of women will have their own personal experiences; that is a sad reality of life. I have two daughters, who have also been subjected to this type of behaviour from a very young age, and I have seen the impact it has had on them. So I welcome the aim of the Bill to make it unacceptable to harass someone on the grounds of sex. Importantly, it sets out for the first time that it is not simply a woman’s or a girl’s responsibility to avoid these situations—it is society’s job to stop individuals behaving like this. I agree with the noble Lord that we need cultural change; that will not happen overnight, but at least the Bill will put a building block in place that will enable some of that change. I believe that is slowly happening with the younger generation. My young son and his friends talk about how they have witnessed this and find it unacceptable, and they have intervened when they see young girls being harassed by men.

Plan International UK research found that three-quarters of girls and young women aged 12 to 21 have experienced a form of sexual harassment in a public space in their lifetimes, and the shocking figure of 62% will often avoid activities such as going out, socialising or going to the gym because they are worried about experiencing public sexual harassment.

My concern, shared by organisations that have been campaigning on these issues, is that in its current form it could fall short of delivering on its potential. I will highlight two main reasons. First, public offences are normally based on the concept of intent—whether someone intended to harass someone else—and they may well give the defence that, “I just thought my behaviour was reasonable”. The bar for proving a perpetrator’s intention is currently set too high. Will a perpetrator get away with sexual harassing people in public by claiming that it was just a joke or a compliment, or that they do not know how to take a compliment? The Bill does not explicitly define public sexual harassment, leaving such behaviour up to interpretation. We know that misogyny plays a big role but, until it is clearly defined, it will be all too easy to dismiss as mere banter.

My final point is that, in welcoming the guidance, I hope it will be widely shared with places such as schools, colleges and universities, where this is a particularly endemic problem. That will serve to ensure that women and girls feel empowered to make formal complaints and to educate boys and men on what is acceptable behaviour.

15:28

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I congratulate the noble Lord, Lord Wolfson, on introducing the Bill. I also congratulate him on taking on the chairmanship of the Football Regulatory Authority. I suspect that is something he will have to declare many times in future years.

I shall not repeat some of the figures that the noble Baroness, Lady Hussein-Ece, has given, regarding the reasons why everyone is against sexual harassment and how it is so gender-based. I suspect I received some of the same briefing materials as she did.

I thank the noble Lord, Lord Wolfson, for the way in which he introduced this Bill by emphasising that it is not introducing a new law as such but increases a maximum sentence and reintroduces guidelines so that police can have better guidance on how these sorts of offences might be charged.

The noble Lord said that, when he was a Minister, he often said that legislating is not a form of semaphore. I take the point but, nevertheless, a form of semaphore is sometimes welcome. I have dealt with many bits of legislation, as I know the noble Lord has, in which we are trying to indicate that society’s attitudes are changing on violence towards women. A lot of legislation we have been involved with has been in the private sphere—domestic abuse and domestic violence. I know through my work as a sitting magistrate in Westminster Magistrates’ Court, where we now have dedicated domestic abuse courts, that we are seeing greater awareness of trying to manage the process through the court system because of the high dropout rate of victims of domestic abuse. That is in the private sphere, and this Bill is dealing with similar issues in the public sphere.

It is of course true that this is hugely gendered in the way it is experienced by women and girls, particularly young girls; it is something they grow up with and a persistent part of their daily lives. The noble Lord is providing a service to the House in this modest Bill, and he was right to be modest in the claims he was making for it—he is realistic in that. It is of course part of an ongoing campaign. We heard something of the nature of that ongoing campaign from the noble Baroness, Lady Hussein-Ece, when she talked about the limitations, as she and the campaigners described them, of the Bill, including the level of the bar of intent, where things can be dismissed as banter. Perhaps more legislation on such definitions will come forward in future—I do not know.

Nevertheless, I welcome the Bill. I welcome a bit of semaphore from this House to say that society’s expectations of behaviour are changing and that this is being reflected in our law courts and should be reflected in the activities of the police. With that reflection on the Bill, I am happy to welcome it.

15:32

[Lord Evans of Rainow (Con)]

My Lords, before I begin, I briefly pay tribute to the late Jo Cox. I thought of Jo at the recent Lords and Commons tug of war, because it was at such an event that I last saw her alive—she was cheering on the MPs as they beat the Lords.

It is a genuine pleasure to respond to this excellent debate. This is of course an issue of enormous public interest. I declare the interest of having a teenage daughter, who today finished her GCSEs, and this is of concern to us all as children grow up into adults. Had we been in any doubt about that, the significant public and media commentary about the Bill confirms just how important this issue is for the people of this country. I hope that the profound consideration we have all given to this legislation is a demonstration to the public that we really are determined to pass laws which will change their lives for the better.

I pay tribute to a range of people for bringing us to this point. In this Chamber, I thank my noble Lord Wolfson of Tredegar for sponsoring the Bill, and the other colleagues who have given such thoughtful speeches today. In the other place, the accolades must go to my right honourable friend Greg Clark MP, who was inspired to introduce this Bill by what he heard from one of his constituents about her experiences. I consider it important that the sponsors of this Bill in both Houses have been men, so that people do not think that this is just a “women’s issue”. For the same reason, I am very pleased to be responding to the debate today.

I pay tribute to my ministerial colleagues at the Home Office, Sarah Dines and Chris Philp, who steered the legislation so ably through the Commons Chamber, and to the many other Members of that House who provided important scrutiny of the provisions. I also emphasise the role of those many organisations outside Parliament that have campaigned for this legislation. This is not top-down legislation; rather, it is a fine example of a law which has come about thanks to the efforts of civil society and to the real groundswell of public interest in this issue since some of the terrible events of recent years.

I do not think that I am exaggerating when I say that this is a landmark piece of legislation. Violence against women and girls is now at the forefront of the nation’s consciousness, which can only be a good thing. Of course, it was always at the forefront of the consciousness of women and girls, who have actually experienced it—including Members of this House, as the noble Baroness just shared with us. But it is now recognised universally as one of the most urgent priorities that we must address, and I know that that consensus is shared across the parties.

Of course, there are many forms of violence against women and girls that do greater relative harm than public sexual harassment; the terrible cases of Wayne Couzens and David Carrick are examples of that. But tackling public sexual harassment is still fundamentally important. As noble Lords here today will need no reminding, it does real harm to women and girls—the unpleasantness of the experience itself; the fear; the damage to mental health; the state of high alert when walking through the streets; the fearful anticipation of the walk home at night; and the enjoyable experiences forgone by avoiding, say, bars and clubs in the night-time economy.

With this legislation, we are sending a clear message that this behaviour is wholly unacceptable. But it is more than just a message: the legislation should give people more confidence to report crimes, and it should make the police more aware of how to respond to them. The statutory guidance added to the Bill on Report in the other place will help greatly in that regard. The legislation should make perpetrators think twice before walking closely behind someone down the street or shouting an obscene comment at them.

So far, I have talked about women and girls. To echo my noble friend Lord Wolfson, women and girls are the main victims of public sexual harassment, so the Bill will protect them in particular. But anyone can be a victim of this crime, just as anyone can be a perpetrator of it, so my message to men and boys is: this law is here to protect you too.

I will briefly remind noble Lords what the Bill does. Existing Section 4A of the Public Order Act 1986 provides that, if someone intentionally causes another person “harassment, alarm or distress” through the use of “threatening, abusive or insulting” words or behaviour, “disorderly” behaviour or the display of any “visible representation” that is threatening, abusive or insulting, they are committing a crime that carries a maximum sentence of six months’ imprisonment. That is the case unless both parties are in a private dwelling.

The Bill would create a new offence within the Public Order Act that would provide that, if someone commits an offence under Section 4A and does so because of the sex of the person to whom they intend to cause harassment, alarm or distress, they could instead receive a maximum sentence of up to two years in prison. The Bill also requires Ministers to publish guidance for the police about the new offence, to which they must have regard. This guidance must in particular cover the “reasonable conduct” defence inherited from Section 4A.

I hardly need state that legislation is not everything. The Bill is a necessary condition for putting an end to public sexual harassment, but it is not a sufficient one. We need to change the culture too, and to ensure that existing laws are enforced as well as they can be. I am proud that this Government have taken many such actions. Our StreetSafe tool, which has now been used to make around 28,000 reports, allows anyone to let the police know where they have felt unsafe.

Funding through the safer streets and safety of women at night funds has provided direct, practical protection to women and girls. For example, the police and crime commissioner for Surrey received £162,000 through round 3 of the safer streets fund to deliver a range of interventions aimed at improving the safety of women, with a focus on tackling indecent sexual exposures along Basingstoke canal. New guidance about the existing laws for the police was published 18 months ago and, for the CPS, 10 months ago. Above all there is our “Enough” communications campaign—because what is most important is changing the culture, making sure that everyone knows that it is not okay to harass, abuse or cause someone to feel fear.

I now turn my attention to some points that have been raised in this House and elsewhere. Concern has been expressed that the requirement to prove the defendant intended to cause harassment, alarm or distress will prove a barrier to prosecution. While I understand that concern, I do not share it. When the court is considering whether someone intended to cause harassment, while they will take into account what the defendant said that their motivation was, the real test will be what the objective circumstances show their likely motivation to be. I am sure that defendants will often say that they were just making a joke or paying a compliment. Defendants may say many things; they have nothing to lose. But it is what the court concludes which matters. If it is not plausible that they would be motivated by something other than the desire to cause harassment, I would not expect the court to be swayed by what the defendant says.

The need to prove intention—or mens rea, as the many legal experts in this House will know—is an element of many offences. Indeed, it is part of the existing defence of Section 4A of the Public Order Act, on which the legislation would build. Last year, there were 3,306 convictions for that offence—that is over 3,000 occasions on which it was proved, beyond reasonable doubt, that there was an intention to cause harassment, alarm or distress. I hope that provides reassurance to noble Lords that the intention test is no barrier to prosecution.

The view has also been expressed that the law should be targeted at behaviour that is sexual in nature, rather than behaviour based on the victim’s sex—that is, on their being a woman or a man. I know that some of the organisations which have campaigned most actively for a new offence would prefer an offence which refers to unwanted sexual conduct. I would argue that the sex-based rather than sexual model of the Bill provides the most capacious coverage. It is hard to think of a behaviour that is sexual in nature but not also based on the victim’s sex. It is easier to think of behaviour which is based on victim’s sex but not sexual in nature—for example, shouting negative comments at a woman about her appearance or shouting that she should be at home in the kitchen. In other words, the Bill already covers unwanted sexual conduct, whereas a Bill based purely on that concept would exclude examples of behaviour which cause harm to a woman.

I confirm that it is the view of Ministers that public sexual harassment behaviour is already covered by existing offences. This view is shared by the police and CPS. This Bill is not about filling a gap in the law but about deterring behaviour, raising awareness and encouraging victims to report. The Bill in any case covers activity that causes harassment, alarm or distress only when that is also the intention of the perpetrator. That goes beyond any reasonable free speech principles. I direct noble Lords’ attention to the examples set out in the Explanatory Notes of the behaviour which might be covered by this law—for example: deliberately walking closely behind someone as they walk at night; making an obscene or aggressive comment towards a person; and obstructing a person making a journey. A reasonable person would not regard this as free speech. Of course, Explanatory Notes are not binding on courts, but they give courts and prosecutors a clear steer. In any case, there is a defence whereby the defendant can show that their conduct was reasonable.

The point has been made on whether the police will really have the evidence they need to enforce this law. The answer is: not in every case. That is true for any law, but we should not be unduly defeatist. There may be CCTV, mobile phone footage and witnesses. Just as we saw over 3,000 convictions last year for the existing Section 4A offence, we can also expect to see effective police investigations and convictions for this new offence.

Let us say here today that there will be an end to women having to put on trainers before they go home, in case they have to run; an end to having to ask their friends to text them when they get home; an end to having to hold their keys in the hand and to their being followed and being cornered; an end to the obscenities they are forced to hear; and an end to the aggressive comments, and the start of a time when women and girls—indeed, everyone—can walk the streets without fear. This Bill alone will not achieve those ends, but it will play a key part. I encourage all noble Lords to support this important Bill before us today.

15:44

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to all who have taken part in this debate.

As the noble Baroness, Lady Hussein-Ece, said from personal experience in a very moving speech, it is the effect of this sort of behaviour that we are trying to target. It is a pernicious effect, because it is not just the immediate effect on the victim, as the noble Baroness identified; it is the effect that the victim starts to change their behaviour. Even when there is no actual harassment going on, because of the fear that there may be harassment and because of knowledge of previous occasions, people change their behaviour. Of course, they should not change their behaviour; the behaviour we should seek to change is the behaviour of the perpetrators. Ultimately, that is why this is a matter of social and cultural change, and not just a change in law. But change in law, as all speakers identified, is part of the solution, even if it is not all of the solution. I am very grateful for her support and for what she said.

I am also grateful to the noble Lord, Lord Ponsonby of Shulbrede, who made the important point that we have to target actions in both the private sphere and the public sphere. Over the past few years, this House and the other place have done quite a lot of work in the private sphere, and it is therefore right, as he said, that we should turn our attention now to the public sphere.

I am also very grateful to my noble friend the Minister for his comprehensive support for the Bill and for identifying the change of culture that is needed. I was going to say a couple of words on the point about intent, but my noble friend the Minister dealt with that. I add only that courts are used to dealing with questions of intent—it is an ingredient in many offences—and I would not expect it to be a problem for the courts with this offence. Indeed, it is already part of the underlying offence in Section 4A.

On public sexual harassment and what it means, it is better not to have examples in the Bill. As I said, we have some examples in the Explanatory Notes. The danger is that examples in the future Act itself can limit the application, because you could be limited to the nature of the examples. The way we normally do legislation here is to allow the courts to interpret it. We can be confident that in this area the courts will interpret these words in a sensible and natural way.

As I have said on a number of occasions, this will not solve the problem, but it is part of the solution.

Bill read a second time and committed to a Committee of the Whole House.

House adjourned at 3.47 pm.