Police, Crime, Sentencing and Courts Bill

Baroness Hayman Excerpts

Lords Hansard - part one & Committee stage
Wednesday 3rd November 2021 Lords Chamber

Moved by

[Baroness Hayman]

131: After Clause 54, insert the following new Clause—
“Voyeurism: breastfeeding
(1) Section 67A of the Sexual Offences Act 2003 (voyeurism: additional offences) is amended in accordance with subsections (2) and (3).(2) After subsection (2), insert—“(2A) A person (A) commits an offence if—(a) A records an image of another person (B) while B is breastfeeding;(b) A does so with the intention that A or another person (C) will look at the image for a purpose mentioned in subsection (3), and(c) A does so—(i) without B’s consent, and(ii) without reasonably believing that B consents.”(3) In subsection (3), for “subsections (1) and (2)” substitute “subsections (1), (2) and (2A)”.”Member’s explanatory statement
This amendment would extend the definition of voyeurism in the Sexual Offences Act 2003 to make it an offence to take a photograph or video of a person breastfeeding without that person's consent.

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[Baroness Hayman (CB)]

My Lords, this amendment is in my name and those of the noble Baronesses, Lady Cumberlege and Lady Brinton, and the noble Lord, Lord Pannick. I am grateful to all of them for their support.

This amendment seeks to provide protection for mothers from being photographed or videoed without their consent while breastfeeding their babies. I suspect that few Members of the House will have been aware that such unpleasant, intrusive and distressing behaviour takes place at all, and will be surprised that it is not actually an offence. I suspect that even fewer would seek to defend what the then Minister, Victoria Atkins, described in Committee in another place as

“this unacceptable, creepy and disgusting behaviour”.—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 24/6/21; col. 748.]

Ms Atkins paid tribute in that debate to the many women who have shared their experiences and distress, and their demands for a change in the law in recent months, as do I.

I particularly congratulate Julia Cooper, who began the campaign for a change in the law after her own experience, and initiated a petition that has now been signed by over 30,000 people and supported by organisations such as the National Childbirth Trust, La Leche League and Mumsnet. Her experience was this: during a visit to a park in Greater Manchester, she noticed a man first staring at her as she fed her baby and then attaching a long-range zoom lens to his camera and taking photographs. She confronted him and asked him to delete the photos. He refused, saying it was his right. She then approached a park warden. He also unsuccessfully asked the man to delete the photos and then said that there was nothing more he could do because the law offered no protection. The response of Greater Manchester Police was exactly the same: sympathetic but powerless. Other women have come forward with similar stories and described how deeply distressing and violating an experience it has been, and their shock at having no recourse when their privacy has been invaded in this way.

This amendment therefore seeks to provide protection and a remedy for individuals affected by this unpleasant behaviour, and to deter and, if necessary, punish those who perpetrate it. But the context is not simply a matter of protecting the individual. Successive Governments have supported and protected women who breastfeed their babies, and continue to promote this public good. The Department of Health encourages women who can and choose to do so to breastfeed their babies because it brings powerful public, as well as individual, health benefits. Only last week, the Chancellor allocated £50 million to support breastfeeding in his package of help for young babies and young families. The Equality Act protects breastfeeding mothers from discrimination in employment and the provision of services. So it is illegal for a cafe owner to refuse to serve a breastfeeding mother, but not for a man to hover over her with a camera, videoing her as she feeds her baby in a playground.

Far fewer babies are breastfed in this country compared with many others in Europe and beyond. It is very obvious from repeated surveys on the issue that embarrassment and the logistical difficulty of combining feeding a baby with “normal life” is one of the main deterrents that keeps breastfeeding rates in this country so low, with all the detrimental effects on individual and public health. Failing to sanction unwanted, intrusive photography can only add to women’s reluctance and their fears.

Noble Lords will recall that, in 2019, Parliament took action against another unpleasant, intrusive aggression against women, upskirting, by passing the voyeurism Act. But the provisions of that Act are very narrowly defined and do not protect women in the circumstances we are discussing today. This amendment mirrors the provisions of the 2019 Act by adding the photographing or videoing women breastfeeding without their consent to the list of prohibited acts under the Sexual Offences Act 2003, to which the provisions of the Voyeurism (Offences) Act then apply.

When this issue was discussed in Committee in another place, the Minister did not query the need for action, and obviously shared the disquiet among Members at the present situation. She suggested that the matter could be considered in the strategy on violence against women and girls, but that strategy has now been published without any reference to the issue. Her main argument, however, was that we should wait for the Law Commission, which is reviewing the law around the taking, making and sharing of internet images without consent. That is a very broad subject, and we know how slowly grind the wheels of such a report’s journey to legislation. Even when the Law Commission recommends action, there is no guarantee that it will be agreed. Fewer than 50% of Law Commission reviews commissioned in the past decade have, as yet, led to legislative change. Rather than waiting on a review that may or may not be accepted by the Government after more consultation, and then for a relevant legislative vehicle, we have the chance in this Bill to act on the specific, clearly defined issue and to protect mothers and babies now.

I am ashamed to say that it is nearly 50 years since I first entered Parliament. One thing that I have learned in that time is that legislative time can be as precious a commodity as financial resources. This Bill gives us the opportunity to protect women from the damage and distress that is currently occurring. I hope that the House and the Minister will agree that we should grasp that opportunity. I beg to move.

[Baroness Brinton (LD) [V]]

My Lords, I have added my name to this amendment. I start by thanking the campaigner, Julia Cooper, who the noble Baroness, Lady Hayman, quoted earlier, for her extraordinary diligence and campaign and her 30,000-signature petition to Parliament. I also thank the excellent Pregnant Then Screwed charity and Stella Creasy MP for their briefings.

The noble Baroness, Lady Hayman, has spoken eloquently on the need to add to the offence of voyeurism that of those breastfeeding. I echo her comments on the critical need to encourage mothers to breastfeed for as long as possible—hopefully for a minimum of six months. The truly long-term health benefits to babies are well evidenced, not least in the extra immune protection they are given, lasting for years. It is good that Clause 13(6) of the Equality Act 2010 currently protects breastfeeding women by saying that any business that displays less favourable treatment, or denies a woman access to goods or services, because she is breastfeeding can be in breach of the Act. This has been tested in the courts under the employment discrimination in McFarlane and another v easyJet Airline Company Limited, where the employer did not provide reasonable adjustments for new mothers who returned to work while still breastfeeding. However, there is no protection in itself of the act of breastfeeding, so it cannot be used to require the police or the courts to act to tackle the practice of taking photos or videos without consent.

I was pleased to be a member of the Liberal Democrat team supporting the Voyeurism (Offences) Act 2019, which created the criminal offence of up-skirting. Offenders now face up to two years in jail and being placed on the sex offenders register for taking a picture under a person’s clothing without them knowing, with the intention of viewing their genitals or buttocks. This law banned the degrading practice, with the intention of deterring perpetrators, better protecting victims and bringing more offenders to justice. As the law specifies the location in the body to which the Act applies as being below the waist, this legislation does not protect those who breastfeed from a similar intrusion. I remind your Lordships’ House that we did not need to wait for a Law Commission to decide whether that Act should go through.

Julia Cooper’s experience, outlined earlier by the noble Baroness, Lady Hayman, is chilling. The 30,000 people who have signed her petition, and the evidence taken from Pregnant Then Screwed, show that this is not an isolated incident. Polling by YouGov in May this year shows that 75% of the public think that breastfeeding voyeurism should be banned. One new mother told Pregnant Then Screwed: “Just a few weeks ago, in my first time out with my new-born, feeding on a park bench, a man walks past, gets a camera out and, pretending to take a photo of something behind as he walks by, the camera tilts down on me. He caught me off guard so I didn’t say at the time, but I am now far more conscious of who is looking and would call them out. But we shouldn’t have to think like this.”

Why should we not follow the recommendation of Victoria Atkins MP, the Government proposal that the ongoing Law Commission review on taking, making and sharing intimate images without consent is the correct vehicle for legislation? This review is currently expected to report in the spring of 2022 and might make recommendations to expand the list of protections under voyeurism legislation, but even this is not guaranteed.

This simple amendment echoes the up-skirting legislation by seeking to amend the Sexual Offences Act 2003. It also uses the language of the 2019 Act and would require consent to photograph or record breastfeeding without prosecution, ensuring that women breastfeeding are given the same protection. If passed as part of this Bill, it would quickly—in legislative terms—give protection to women who breastfeed, without compromising the Law Commission review, which would have time to consider this change, if necessary, in more depth.

It is important to say that the amendment has the support of the National Childbirth Trust, the La Leche League and the Breastfeeding Network. Those of us in favour of the amendment are pleased that the Government think that it is unacceptable for breastfeeding voyeurism to take place. I thank the Minister for that, but will he say why, if the Government support the principle of the amendment, it would be acceptable to delay its implementation for years, which would be the result of taking the Law Commission route? Why not use the route of the up-skirting legislation, which did not have to wait for the Law Commission? I hope that the Minister will be able to support the amendment.

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I am certainly not saying, in answer to the point made by the noble Baroness, Lady Brinton, that it is acceptable to delay for years. I am saying rather that it is critical that we get this right. If the Law Commission had not started its work or was going to report in five years’ time, it would all be different, but the Law Commission is reporting in this area in a matter of months, and I respectfully suggest that the appropriate way in which to proceed here is to see what it says, and then we can get an absolutely first-class piece of legislation in place. So, with respect, I invite the noble Baroness, Lady Hayman, to withdraw her amendment.

[Baroness Hayman (CB)]

My Lords, I am extremely grateful to everyone who has spoken in the debate and for the support that has been shown, from all sides of the Committee, for taking action to combat a wrong that everyone accepts should not be allowed to be perpetrated. I have got a law degree, and I do not want to be rude about lawyers—and of course I listened with huge interest and respect to what was, if I may say, a very legalistic response, after the warm words and acceptance in principle on the issue from the Minister. He respectfully suggested to me that the best course was to wait for the Law Commission—he said for a few months. It would be a few months, maybe, for the first round of the Law Commission, but a lot more than a few months before we got the possible legislation.

I respectfully suggest to the Minister that there is another interpretation. We could legislate now and, when we have the Law Commission report on the wider issues, and we are looking at all the esoteric—I think that was the perfect word—examples that he gave, we could then put right anything that was wrong. But in the meantime we would have taken action and, in the meantime, on the 80:20 rule, we would have done a great deal to protect women.

Not all women can breastfeed and not all women want to breastfeed, but those who do deserve the protection of the law. With respect to a possible meeting with the noble Lord between now and Report to try to make this a better amendment in terms of drafting—I take his point about purpose, but I think the Committee knows what the purpose is, and we could get an amendment that would do some good. In the meantime, I beg leave to withdraw the amendment.

Amendment 131 withdrawn.