Protection from Sex-based Harassment in Public Bill

Lord Evans of Rainow Excerpts

2nd reading
Friday 16th June 2023 Lords Chamber

[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.