Public Order Bill (Seventh sitting)

Alex Cunningham Excerpts

Committee stage
Tuesday 21st June 2022 Public Bill Committees

[Anne McLaughlin (Glasgow North East) (SNP)]

Thank you for allowing me to speak, Mr Dowd, despite my being a couple of minutes late. I am sorry, but I could not find room 10; I could find rooms 9 and 11 but not 10. I thought I was in a Harry Potter plot.

[Alex Cunningham (Stockton North) (Lab)]

It is the one in between.

[Anne McLaughlin]

Yes, but it does not have a number outside. I was unable to be here last week due to a diary clash, and I apologise for that, although I advised the Committee.

I recall that the previous week the Minister and others in the debate and here today suggested that there is some hypocrisy going on. That is my reason for saying a few words today. I want to explain why they are wrong in their assessment. That said, the measure applies to England and Wales only, so I will abstain in any vote because, as most colleagues know, the SNP does not vote on matters that do not directly impact on their constituents. However, I will put my name to a motion similar to this at the SNP conference later this year.

The position is not hypocritical, because there is a world of difference between somebody being harassed, as the Minister puts it, by protesters, and being told an airport is not doing enough for climate change. There is a world of difference between that and somebody being told with words, verbally, on a poster, or implied by presence, “You are killing your child. You individually are responsible for the death of your child.” That is what those protesters are saying.

I know women who have had abortions, and even those certain from the outset that it is absolutely the only and right choice for them, wrestle with their conscience, and they live with that decision forever. The guilt is there already; they do not need somebody else to make them feel even more guilty, yet that is what the protesters do. Even the ones who silently stand and pray quite often have posters with pictures of foetuses and the message that abortion is murder. It is cruel in the extreme.

Nobody changes their mind once they have got to the clinic. Nobody who turns up at the clinic and who is attacked by someone verbally, on posters or by their presence, stops and says, “Wait a minute—you are right. I am killing my child. I am going to cross the road to you and ask for your help.” That does not happen. It is fine for people to have those views and want to offer assistance, but not at that stage and in that way. That is why it is completely different from any other type of protest talked of in the Bill. I am sorry that I cannot vote for it. That is not much good for the hon. Member for Ealing Central and Acton, though others are not going to vote for it anyway. However, I do want to voice solidarity, because I support the gist of what she is trying to do.

--- Later in debate ---

[Dr Huq]

My ideal would be to sit down with the Government to make something better. I will not press the new clause to a vote today, because I think it can be improved—I take those points—so I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 2

Hostility towards sex or gender

“(1) After Section 5 of the Public Order Act 1986 insert—

‘5A

Offences aggravated by sex or gender

(1) An offence under section 5 of this Act is aggravated by sex or gender where the offence is—

(a) aggravated by hostility toward the sex or gender of the victim,

(b) of a sexual nature, or

(c) both of a sexual nature and aggravated by hostility toward the sex or gender of the victim.

(2) A person guilty of an aggravated offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

(3) It is not a defence under this section that a person did not believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress if a reasonable person in possession of the same information would think that there was a person within hearing or sight who was likely to be caused harassment, alarm or distress.

(4) An offence is “aggravated by hostility towards the sex or gender of the victim” for the purposes of this section if—

(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s sex or gender (or presumed sex or gender); or

(b) the offence is motivated (wholly or partly) by hostility towards members of a group based on their sex or gender.

(5) In this part, gender has the same meaning as in the Gender Recognition Act 2004.’

(2) Part 3A of the Public Order Act 1986 (Hatred against persons on religious grounds or grounds of sexual orientation) is amended as follows—

(a) In the heading for Part 3A at the end insert ‘or grounds of sex or gender’.

(b) In the italic cross-heading before section 29A at the end insert ‘and hatred on the grounds of sex or gender’.

(c) After section 29AB insert—

‘29AC

Meaning of “hatred on the grounds of sex or gender

29AC In this Part “hatred on the grounds of sex or gender” means hatred against a group of persons defined by reference to their sex or gender.’

(d) In the italic cross-heading before section 29B at the end insert ‘or hatred on the grounds of sex or gender’.

(e) In section 29B(1) at the end insert ‘or hatred on the grounds of sex or gender’.

(f) In section 29C(1) (publishing or distributing written material) at the end insert ‘or hatred on the grounds of sex or gender’.

(g) In section 29D(1) (public performance of play) at the end insert ‘or hatred on the grounds of sex or gender’.

(h) In section 29E(1) (distributing, showing or playing a recording) at the end insert ‘or hatred on the grounds of sex or gender’.

(i) In section 29F(1) (broadcasting or including programme in programme service) at the end insert ‘or hatred on the grounds of sex or gender’.

(j) In section 29G(1) (possession of inflammatory material) at the end insert ‘or hatred on the grounds of sex or gender’.”—(Alex Cunningham.)

Brought up, and read the First time.

[Alex Cunningham]

I beg to move, That the clause be read a Second time.

The new clause was tabled by my hon. Friend the Member for Walthamstow (Stella Creasy), to whom I pay tribute for her tireless campaigning on this issue. Last year, when we were debating the Police, Crime, Sentencing and Courts Bill, I and my Labour colleagues on the Bill Committee spoke at length about how the Government were missing a golden opportunity to take robust action to protect women and girls from the violence and harassment that they face every day. Sadly, however, the Government chose to miss that opportunity, instead pushing the Bill through without any consideration of the steps that they could take to ensure that women and girls were able to go about their lives without worrying about their safety.

You can imagine, Mr Dowd, how pleased I was last week when, about to present my private Member’s Bill on the Floor of the House, I heard the right hon. Member for Tunbridge Wells (Greg Clark), a few Bills ahead of mine, presenting his Protection from Sex-based Harassment in Public Bill to make provision against causing intentional harassment, alarm or distress to a person in public when the behaviour is done because of that person’s sex. I do not know whether he was seeking some form of review or specific action, but clearly there is support for such measures in all parts of the House. It is time for the Government to put aside all the talk about acting on misogyny and to accept the new clause. Furthermore, given the Minister’s speech in the debate on new clause 1, I feel somewhat encouraged that he, too, is ready to take some action.

Last week I received a letter from the hon. Member for Louth and Horncastle, who is the Minister for ending violence against women and girls. She provided an update on the Government’s response to the end-to-end rape review. She ended her letter by saying:

“Thank you for your engagement on these crucial issues. Violence against women and girls is a global problem and it is our collective mission to support victims and bring perpetrators to justice. I look forward to working with you to address these crucial issues and bring about the transformational change that victims deserve.”

I found that message extremely heartening because she is, of course, correct that we need to work together in all parts of the House as a collective to improve the dire outcomes that women and girls face when seeking justice. I hope the Minister will share that sentiment, engage positively with the substance of the proposed new clause and accept that it should be included in the Bill.

I know that the Minister will be aware of the scale of the problem, which affects women and girls across the county on a daily basis. Some 66% of girls in the UK have experienced sexual attention or sexual or physical contact in a public space. That gets worse with age: a report by UN Women UK published in January 2021 showed that in a poll of 1,000 women, 71% had experienced sexual harassment in a public space. That figure rose to 97% for women under 25. That harassment, intimidation and abuse never shows up in formal crime statistics, not because it is not serious enough, but because women do not think that going to the police will help.

House of Commons Library data shows that half a million crimes against women go unreported every year, and women are less likely than men to report abuse to the police. Research shows that two thirds of women experience abuse or harassment in public places, but 80% of them do not report those crimes to the police as they do not believe they will be addressed or taken seriously.

There are two reasons why it is so important that these supposedly lower-level offences are taken seriously by the police and the criminal justice system. First, those who perpetrate violence against women are often repeat offenders whose violence and abuse shows a pattern of escalation. That is not to say every misogynist who shouts at women in the street goes on to violently attack women, but many of those who do carry out such attacks start by throwing verbal abuse. If we can identify, monitor and—where necessary—restrict those who commit the early offences, we will be better able to prevent the all-too-familiar pattern of escalation before it has dire consequences.

Secondly, by letting these offences go unregistered or unpunished, we are sending a message about how seriously—or not—we take violence against women and girls. If someone is abused because of their sexuality, ethnicity or religion, the law rightly says that the abuse—based on who someone is—is unacceptable. Unfortunately, the law does not say the same thing if someone is abused simply for being a woman or a girl.

We all recognise that more needs to be done to tackle misogynistic abuse, but if we do not act, we are endorsing a legal system that is permissive of such abuse. If we do not act, we are endorsing a system that sees women repeatedly targeted but then choosing not to report the crime because they—too often rightly—suspect that it will not be treated as seriously as it should. I cannot repeat that fact enough: until we demonstrate that the law is on the side of women and girls, most of them will not report the abuse, which we ought to recognise as crimes.

The proposed new clause would be a crucial first step in tackling the harassment and abuse that women and girls face every day. It would, in simple terms, put in place harsher sentences for those who commit abuse or harassment motivated by misogyny or misandry. Sentences would be set at the same level as intentional harassment, allowing courts to recognise the higher degree of culpability that these crimes should carry. It would, for the first time, recognise that there is something particularly damaging about targeting someone solely because of their sex, in the same way that we do if someone is targeted for other aspects of their identity.

During the passage of the Police, Crime, Sentencing and Courts Act 2022 in the other place, the Minister there said that the Government would bring forward a consultation on public sexual harassment. That was some time ago, but I am afraid there are two reasons why I do not think that is an appropriate solution. First, a myopic focus on sexual harassment ignores other harassment that women and girls face on a daily basis. If the focus is narrowed to only behaviour that is explicitly sexual or for the purposes of sexual gratification, conduct such as ripping off a Muslim woman’s hijab would not be covered.

That would be counterproductive, because it would suggest that such behaviour is somehow less serious than sexual harassment, and it would prevent the police from gathering crucial information about patterns of offending. Instead, we need to adopt the approach that the new clause takes and recognise that, at its root, sexual harassment is about power and hostility, and we should treat it as such. We should not separate out sexual abuse from sexist abuse; we should treat them as symptoms of the same underlying problems.

The second reason is that we all know that a Government consultation is absolutely no promise of action. Indeed, the Government’s own adviser on sexual harassment has said that both she and the Home Secretary are supportive of action, but the idea is being vetoed by those higher up in Government. Given how few people are able to overrule the Home Secretary, the Minister will forgive me if I am sceptical that a Government led by the current Prime Minister will take action on sexual harassment without being pressed to do so.

Even putting those misgivings aside, this is not an issue that can wait for the slow cogs of Government policy making to engage. If we do not take the opportunity that the new clause offers us, it could be years before we have another opportunity to act. In that time, millions more women will experience this behaviour and not report it because they know our legal system does not treat it with the seriousness it deserves. I appreciate that we are yet to see the detail of the Protection from Sex-based Harassment in Public Bill, in the name of the right hon. Member for Tunbridge Wells. Whatever measures he may succeed in introducing, however, it could be a year or more before they take effect. We can take out the uncertainty now and prevent further delay.

Proposed new subsection (2) is aimed at those who may never carry out a violent or abusive act themselves, but who may encourage others to do so. Encouraging racial or homophobic abuse is already a criminal offence, and rightly so. As we have seen across the world, and during the tragic events in Plymouth last year, there are people out there who seek to stir up hatred of women for no reason other than that they are women. That is clearly unacceptable, and I was pleased that the Law Commission recommended last year that we bring our laws into the 21st century and tackle the stirring up of misogynistic and misandrist hatred.

I am sure the Minister will say that the Government are considering very carefully what the Law Commission has said and will respond in due course, but we know that when it comes to radicalisation, every day can make a difference. Every day that the Government delay is another day in which poisonous ideologies, such as so-called incel culture, have a chance to spread further and do more damage to the fabric of our society. This new clause would enable us to skip the inevitable delays of Government going back and forth over an issue when the right course of action is clear to us all, and immediately tackle those who seek to spread such hate. I know that the Government may act eventually in this area, but I appeal to the Minister and other Government Members to put an end to it all—end the talk about the issues I have raised, end the delay in taking action and back the new clause.

[Anne McLaughlin]

I certainly support properly acknowledging and tackling crimes motivated by sex or gender, but this new clause applies to England and Wales only, so I will abstain, in keeping with my party’s aforementioned stance. However, I think it would be useful for Members to look at the report commissioned by the Scottish Government on misogyny, entitled “Misogyny—a Human Rights Issue”. The independent working group was headed up by Baroness Helena Kennedy QC from the other place, and the report was published on International Women’s Day, 8 March—also my birthday, if anybody wants to put that in their diary. The recommendations were described by the First Minister as “bold” and “far reaching”. It would be great to have both Governments working together on this.

I offer my solidarity with the hon. Member for Walthamstow (Stella Creasy) and the hon. Member for Stockton North, who has just given a really good speech, on the issues that they are trying to tackle with the new clause. I could say a lot more about misogyny—we all could—but I think he has covered it really well.

[Kit Malthouse]

The matter of whether and where sex or gender fits into hate crime legislation was, as the hon. Member for Stockton North has said, subject to significant deliberation during consideration in the previous Session, only six weeks ago, of the Police, Crime, Sentencing and Courts Act 2022. Before that, it was widely discussed during consideration of the Domestic Abuse Act 2021. Both Houses had an opportunity to express their views and come to a settled position, and I am afraid that I do not believe matters have changed since then. The hon. Gentleman has cited some distinction between new clause 2 and the previous attempts of the hon. Member for Walthamstow to amend the law in this area, but the essential issue remains the same. I suggest that we should consider hate crime laws in the round, rather than seeking to pick off individual items in a piecemeal way.

Let me deal first with the new clause’s proposed new section 5A to the Public Order Act 1986. To put it into ordinary language, it is an attempt to introduce a new offence of public sexual harassment. I remind Members that during debate on the Police, Crime, Sentencing and Courts Act in the previous Session, the Government committed—as the hon. Gentleman has said—to launch a consultation before the summer recess. I can confirm that that remains our intention. We are finalising those plans now, so given that undertaking, I am a bit surprised that the hon. Member for Walthamstow has tabled this new clause, as its effect would be to pre-empt that consultation. I have my views on the intrinsic merits of new clause 2, but it would be fairer and better for us to wait for that consultation to run its course and then draw our conclusions from it.

The other part of the new clause would amend part 3A of the Public Order Act, which deals with what could be described in shorthand as hate speech offences. The hon. Lady has in the past cited recommendation 23 of the Law Commission’s review, which does, in a basic sense, endorse the notion that those offences be extended to cover sex or gender. However, I am afraid that that overlooks a crucial detail: while the Law Commission dedicated just over 10 pages to that extension, it dedicated more than 70 pages to the need for those offences to be fundamentally reformed. The new clause does nothing to contribute to such reform, but root-and-branch change is needed, given that these are hate speech offences. They have the basic potential to significantly chill free speech, and are an area of law in which public consent for change must be carefully considered. The Law Commission noted that those offences represent

“some of the most controversial aspects of hate crime laws.”

There are also issues with the current legislation that we first need to grapple with. The Law Commission noted that the legal defences for people accused of those crimes are currently unclear, and certain terms used in the legislation are legally ambiguous. Most importantly, it tempered all proposals to expand the law with a condition that doing so must be coupled with provisions that make clear what is not criminal. For each characteristic added to the law, those so-called free speech provisions would clarify that merely offensive speech on topics related to such characteristics is not in itself a crime. The Law Commission noted that, particularly in relation to gender identity,

“without such protection, activists would seek to test the limits of the extended offence.”

The new clause does not account for those free speech protections. More broadly, it does nothing to reform the existing provisions as the Law Commission proposes; it only adds to the statute book, whereas the Law Commission suggests repeal and replacement.

In short, any reform of these laws would need to be comprehensive. If it is not, we risk compounding the problems in the law that the Law Commission identified and potentially harming free expression rights. We would essentially be building on very shaky foundations. The Law Commission found that one change is usually interdependent with another. As the hon. Member for Stockton North has said, the Government are actively considering all of the Law Commission’s recommendations, and I can assure the Committee that we are putting the final touches on the Government’s response to all 34 of the Law Commission’s recommendations and will publish that response shortly. I think it would be wiser for the Committee and, indeed, the House to wait for its publication. We do not think it is wise to put the cart before the horse, so I encourage the hon. Gentleman to withdraw the new clause.

[Alex Cunningham]

First, I know that the hon. Member for Glasgow North East cannot change the policy of the Scottish National party on the hoof, but I ask her to think about her sisters in England and Wales. Moreover, I do not think it is necessary for the Government to look at anything that has been brought forward by the Scottish Government or any other organisation, because the evidence on this issue is staring us in the face. We do not need additional evidence to prove that this sort of change in the law is needed.

The Minister mentioned how we have talked about these issues in the past while debating this or that Act, or this or that review. We have talked about it till the cows come home, but nothing has actually happened—there has not yet been any change in the legislation. He said that the Government are still hoping to launch their consultation ahead of the summer recess. On Monday we will be five weeks away from the summer recess. While the Minister says that they are still hoping for this, that does not give him very much time, especially if he does not actually know when it is going to start happening. Now is the time for action. He said that the Law Commission says that the law in this area is unclear. I am inviting the Committee to make it clear today by supporting the new clause. For that reason, I will be pushing it to a vote.

Question put, That the clause be read a Second time.