Protection from Sex-based Harassment in Public Bill

Greg Clark Excerpts

2nd reading
Friday 9th December 2022 Commons Chamber

[Greg Clark (Tunbridge Wells) (Con)]

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

Two weeks ago, a group of more than 50 girls and women walked after dark from Rusthall, one of the villages in my constituency, to the centre of Tunbridge Wells. Those women, several of whom are in the Public Gallery, walked together to make a point. They felt safe together, but had they walked the same route alone at night, they would have felt afraid. Some would not have embarked on the journey at all, and many would have taken avoiding action such as getting a lift, a bus or a taxi. Some would have arranged to walk with someone else. Others would have deployed tactics all too familiar to women and girls across the country such as pretending to have a conversation on their mobile phone to signal that they were in contact with someone else. If alone, they would have been fearful of being followed or of having an offensive, suggestive or obscene comment directed at them, or of being obstructed or intimidated as they walked alone, as well as the fear of being physically assaulted.

For every woman and girl on that walk, hundreds more find that they have to engage in these routines and protections day in, day out to feel safe—and that is in Tunbridge Wells, a place with a strong community, a committed police force and less crime than in many others. When I visit schools, and especially sixth forms, confidence in using our streets, especially at night, is almost always raised by students, including by one young woman who came to see me to describe how outraged she was by the experience of being kerb-crawled by a man in a car when she was out jogging one morning. Why should a woman feel less confident on our streets than a man? The streets are theirs equally, but that is not how it is experienced.

According to the charities Our Streets Now and Plan International, who have done so much to highlight the issue and press for change, twice as many girls and women feel unsafe when alone on our streets as do boys and men. It is not just the commission of physical violence or assault that makes women feel unsafe. Deliberately distressing acts such as following a woman closely through the streets at night or directing explicit, abusive comments at women can and do contribute to that insecurity.

At the moment, there is no specific offence of public sexual harassment, yet in private settings, such as the workplace, everyone knows that sexual harassment is specifically and explicitly prohibited. Other types of harassment in public are identified in law—rightly, in my view—as being especially serious. They include harassment of someone on the grounds of their race or because they are gay. My Bill would close a loophole in the law whereby deliberately harassing another person on the grounds of their sex with the intention and effect of causing alarm or distress would be a specific criminal offence. It would, like harassment on the grounds of sexuality or race, be capable of similar penalties, should the court wish, as those other crimes.

The proposal was subject to a consultation carried out by the Home Office. I am grateful to the former Home Secretary, my right hon. Friend the Member for Witham (Priti Patel), for her passionate commitment to confronting the issue and for launching the consultation before the summer. The Bill follows that consultation, and I am grateful for the assistance of the current Home Secretary, and to the Minister and her officials for their help in preparing it.

The Bill is a simple one, as private Members’ Bills should be. It is intended principally to close a loophole and bring into alignment the treatment of harassment on the grounds of sex with harassment on the basis of other protected characteristics. It follows the comments of the Law Commission to its report on hate crime laws in December 2021, which said the Government should consider

“a specific offence to tackle public sexual harassment, which would likely be more effective than adding sex or gender to hate crime laws.”

One reason not to simply add sex to the list of hate crimes is that although harassment on the grounds of race is considered to be driven by a hatred towards a person’s race, specifying hatred or hostility could leave open a legal defence that a man who deliberately harassed a woman in public was not guilty of a hate crime offence, because it could not be proved that his behaviour was motivated by actual hatred of women. The simplest way to proceed, and a subject that the Home Office consultation examined, is to add to the existing law of harassment in the Public Order Act 1986. My Bill would therefore add a new offence of intentional harassment, alarm or distress on the basis of sex to that Act of Parliament.

Under my Bill, if an act of intentional harassment, alarm or distress is carried out in a public place because of the relevant person’s sex, an offence of sex-based harassment has been committed and can be punished, as with offences on racial grounds or grounds of sexuality, at the higher tariff that applies to those crimes by dint of the Crime and Disorder Act 1988—in other words, above the limit set in the magistrates court.

It is important to make a few features of the Bill clear. First, it is not meant to—nor will it—criminalise thoughtless or clumsy words. It is sometimes the case that behaviour, although unwelcome, is not motivated by the deliberate intention to cause alarm or distress. Sometimes, men and boys—even girls and women—can say or do the wrong thing without meaning to make another person threatened or alarmed. Such behaviour is not within the scope of the Bill, neither is behaviour that would be considered reasonable by normal standards. The Bill targets people who deliberately target other people to do them harm.

Secondly, although I referred to sexual harassment, the scope of the offence includes, but does not have to entail, a motivation of sexual gratification. Just as in the workplace, the harassment of women may be based on attitudes towards women that might not be best described as linked to sexual gratification. Thirdly, the Bill is drafted to address the specific loophole in the law about harassment based on sex. That means, in principle, that it applies to women and men if they are deliberately publicly harassed based on their sex. Public sexual harassment can affect men and boys, but we should be clear that it disproportionately affects women and girls.

Some might be concerned that my Bill, if enacted, would place extra pressure on police forces to investigate and arrest those suspected of deliberately sexually harassing women in public places. We all want the police to focus on fighting crimes, but these are serious crimes that affect the lives of millions of girls and women every day, causing them to change their behaviour when they should have no reason to do so. Recent years have shown that it is important that all of us, including the police, give greater attention to the protection of women. The consequence of passing this law to make sexual harassment in public a specific offence, triable if necessary in the Crown court, will be to establish that setting out deliberately to alarm or distress a victim is a serious matter that will be dealt with seriously.

The real purpose of the Bill is to help to change the culture of society so that it becomes even more obviously unacceptable to abuse, humiliate and intimidate women and girls in public. I hope that few prosecutions under the law would ever be required, but it is important that the law is there. We have seen that this is possible. To see someone abusing someone else racially in public is now universally seen as deeply shocking and obviously wrong. In my spare time, I enjoy attending football matches, and it is not many years since it was quite common to hear racial abuse on many terraces. It would be inaccurate to say that it has been completely eradicated, but it is vastly less frequent and is taken with great seriousness not just by the authorities, but by other people present.

Too many girls and women feel unsafe when alone on our streets—twice as many as men. Two thirds of girls and women have changed their plans at some time because they have been worried about or have experienced public sexual harassment. Our streets are their streets, and they should not have to do that. The Bill, if it is supported by Parliament, would eradicate the unconscionable situation in which public sexual harassment is not a specific crime. It will make it clear that the crime is serious and it will provide sanction against those who deliberately set out to frighten women and girls on our streets. It is a tightly drawn but, as I hope the House will agree, valuable step in protecting the more than half of our population who, for too long, have had to change their ways of living their lives when the abusers should change theirs.

[Dr Luke Evans (Bosworth) (Con)]

My right hon. Friend is making a fantastic point. I fully support the Bill, but it still has to go through Parliament. Is he aware of the StreetSafe service, run by the police, through which any person who feels unsafe can report dark spots, lights that are out and difficult areas? Authorities can then look at and address them to make sure that we are immediately safer in our communities.

[Greg Clark]

My hon. Friend makes an excellent point, which allows me to emphasise that although I think my Bill will be a great step forward in providing for a specific offence, many other measures are needed. That includes providing information nationally and, especially, locally. I commend the Home Office for its initiative in recent weeks to advertise in public places, encouraging people to step in when they see women and girls being abused. All of us as Members of Parliament and everyone in the community can step up and make a difference through those actions.

Those of us in the Chamber today can go a step further and make it very clear that the offence of harassing someone on the grounds of their sex in public will be taken very seriously. It will provide clarity that people will be arrested for that, and I hope that it will lead to a safer future for women and girls in this country. On that basis, I commend the Bill to the House.

--- Later in debate ---

[Greg Clark]

I would like to briefly respond to this excellent Second Reading debate. I thank all colleagues for coming in, and we have heard powerful contributions from all parts of the House. As the Minister said, it is particularly good not only that we have heard from the accomplished Women and Equalities Committee Chair, my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes), but that a galaxy of former holders of office are represented here. I welcome the Minister stepping into her new responsibilities, and she clearly has plenty of good advisers.

I will not comment on every speech, as some Members want to get on to the business to follow, nor will I add to the long list of organisations outside this place that have been mentioned, but I do want to emphasise one that was mentioned, the Soroptimists. They are very active and important members of the Tunbridge Wells community, and they are represented in the Public Gallery, today so I emphasise my welcome to them.

It is clear from the speeches made today that there is universal recognition that public sexual harassment is an all too frequent experience that women and girls, especially, endure every day in all parts of the country. The most powerful change we can and must make is cultural—it must become as obviously unacceptable to abuse a woman on the streets of our country on the basis of her sex as it is to abuse someone on the basis of their race or sexuality—but the law can play an important role in accelerating that cultural change. As we heard, the lack of any specific crime of public sexual harassment can contribute to uncertainty on the part of victims as to whether it is worth reporting it to the police, as well as to uncertainty, I dare say, in the minds of perpetrators who might commit these crimes that this is a crime. They should be well aware of that. The Bill will make a significant step in establishing that deliberately intimidating and abusing women is a crime.

Good suggestions have been made about how the Bill might be improved and I hope that the Bill Committee will provide that opportunity. That said, I am conscious that, for a private Member’s Bill that does not have the luxury of Government time attached to it, what might be the Bill’s ideal scope and coverage has to be proportional to the opportunity that we have, which is to change the law to make public sexual harassment an offence for the first time in our history, and to do so before the summer. Future Bills, whether they are Government or private Members’ Bills, could make further reforms, and I hope that Members will have that in mind in Committee.

I want to end by thanking the Home Secretary and the Minister for their support and for the hard work of their excellent officials in advising me on the Bill’s contents. I am grateful to the Government Whips Office and its officials. In particular, my hon. Friend the Comptroller of His Majesty’s Household is very effective, and she is assisted very ably today by my equally honourable Friend, the Vice-Chamberlain of His Majesty’s Household. I also thank the superb Clerk of Private Members’ Bills in the House Service, Anne-Marie Griffiths, and the print team for its patience and responsiveness when the deadlines for printing the papers for the Bill sometimes went close to the wire. In the hope that we might make the first big step towards safety and confidence for women and girls right across the country, I commend the Bill to the House.

Question put and agreed to.

Bill accordingly read a Second time; to stand committed to a Public Bill Committee (Standing Order No. 63).

Protection from Sex-based Harassment in Public Bill

Greg Clark Excerpts

Committee stage
Wednesday 22nd February 2023 Public Bill Committees

[The Chair]

I welcome colleagues to this important Committee. I have a few preliminary reminders. Please switch electronic devices to silent. No food or drink, except for the water provided, is permitted during sittings of the Committee. Hansard colleagues would be grateful if Members emailed their excellent speaking notes to [e-mail].

Clause 1

Intentional harassment, alarm or distress on account of sex

[Greg Clark (Tunbridge Wells) (Con)]

I beg to move amendment 1, in clause 1, page 1, line 6, leave out “in England”.

This amendment extends the application of the offence in new section 4B of the Public Order Act 1986 so that it can be committed in Wales as well as in England.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 5, in clause 1, page 1, line 19, at end insert—

“(c) A considered that carrying out the conduct referred to in section 4A(1) was reasonable because of the relevant person’s sex (or presumed sex).”

Clause stand part.

Amendment 2, in clause 2, page 2, line 5, at end insert “, subject to subsection (1A)”.

This amendment is consequential on NC2.

Amendment 3, in clause 2, page 2, line 5, at end insert—

“(1A) An amendment made by section (Consequential amendments) has the same extent as the provision amended.”

This amendment is consequential on NC2.

Amendment 4, in clause 2, page 2, line 6, leave out “Section 1 comes” and insert

“Sections 1 and (Consequential amendments) come”.

This amendment is consequential on NC2.

Clause 2 stand part.

New clause 2—Consequential amendments—

“(1) In paragraph 1 of Schedule 1 to the Football Spectators Act 1989 (relevant offences for the purposes of Part 2), in each of paragraphs (c), (k) and (q), after ‘4A’ insert ‘, 4B’.

(2) In Schedule 8B to the Police Act 1997 (offences which are to be disclosed subject to rules), in paragraph 102, after paragraph (e) insert—

‘(ea) section 4B (intentional harassment, alarm or distress on account of sex);’.

(3) In Schedule 9 to the Elections Act 2022 (offences for the purposes of Part 5), in paragraph 35, after paragraph (e) insert—

‘(ea) section 4B (intentional harassment, alarm or distress on account of sex);’.”

This new clause consequentially amends the Football Spectators Act 1989, the Police Act 1997 and the Elections Act 2022 to include a reference in those Acts to the offence in new section 4B of the Public Order Act 1986 (intentional harassment, alarm or distress on account of sex).

New clause 3—Amendment of section 4A of the Public Order Act 1986—

“(1) Section 4A of the Public Order Act 1986 is amended as follows.

(2) In subsection (3)(b), at end insert ‘subject to the exception in subsection (3A)’.

(3) After subsection (3), insert—

‘(3A) Where a court is considering whether an offence has been committed under this section for the purposes of section 4B, it shall not be a defence for the accused to prove that his conduct was reasonable because of the relevant person’s sex (or presumed sex).’”

[Greg Clark]

It is a great pleasure to serve under your chairmanship, Sir Gary. I am grateful to colleagues for agreeing to serve on the Committee. We have great experience represented, including several fellow Select Committee Chairs, but the membership also covers the whole breadth of the House; we have some of its newest Members, and it is a pleasure to have them here.

The Bill is a short and simple one, but it is historic. It creates, for the first time, a specific offence of public sexual harassment, and provides for the possibility of that being punished on conviction at the higher tariff. I will not repeat the arguments made for the Bill on Second Reading, as this is its Committee stage, but it is fair to say that on Second Reading it commanded the unanimous support of the House after a debate that showed Parliament at its best. Indeed, many members of the Committee spoke in that debate, and did so powerfully. They drew in some cases on their own personal experience, and on those of their constituents, recounting the all too frequent reality of life for many women, in particular, of enduring being followed, obstructed, shouted at and having obscene gestures made at them because of their sex. The Bill aims to make it clear that such behaviour is a serious criminal offence, and to make it as obviously unacceptable to harass someone on the grounds of sex as to do so on the grounds of race or disability, for example.

I will concentrate in my opening remarks on the amendments I have tabled. If you will allow me, Sir Gary, I will say something about the other amendments that have been selected for debate, especially those from the hon. Member for Walthamstow, once she has made her opening remarks later in the debate. I am grateful for the support of the Government, and I thank the Minister and her excellent officials in the Home Office for their help in tabling the four amendments that I have tabled and that are before the Committee. They are designed not to alter the purpose of the Bill, but to improve its working in practice.

Amendment 1, by deleting the words “in England” in clause 1, will extend the Bill’s application to Wales. The subject matter of the Bill—the Public Order Act 1986—is devolved to Wales, but the House can legislate to extend it to Wales if the Welsh Government wish and the Senedd passes a legislative consent motion to that effect. I am pleased to say that the Welsh Government wish to apply the Bill to Wales, and they will table a legislative consent motion in the Senedd in time for it to pass before Report.

I hope the Committee will agree that it makes legal sense to expand the new offence to include Wales, because the Public Order Act on which the offence is based already applies to Wales. I am grateful to officials in the Welsh Government for their alacrity in supporting the Bill. By contrast, the section 4A offence in the Public Order Act does not extend to Scotland or Northern Ireland, so it would not be practical to expand the new offence to those countries, given that the Act on which it is based does not apply there.

New clause 2 picks up on the fact that the existing section 4A offence in the Public Order Act 1986 is referred to in three other Acts of Parliament: the Football Spectators Act 1989, the Police Act 1997 and the Elections Act 2022. Without the new clause, if in future someone were convicted under the new section 4B offence of sex-based harassment, they would no longer be covered by the sanctions that those other Acts contain for convictions under section 4A of the Public Order Act. Those relate to football banning orders, the disclosure of criminal records in Scotland and disqualification from elected office, which follow currently from conviction under section 4A of the Act. Amendments 2, 3 and 4 are consequential on new clause 2, providing, for example, for commencement regulations to be the same for new clause 2 as for clause 1.

I hope that my explanation of the amendments will command the support of the Committee. I look forward to the debate that follows and to hearing the case made by Members, particularly the hon. Member for Walthamstow on her amendment 5 and new clause 3. Having expressed gratitude to Members for being here, I remind them that this is a private Member’s Bill to which limited time is attached. We have an opportunity to right a historic wrong with this legislation, and I hope that we can approach the debate in a pragmatic fashion with the common purpose of achieving the change in the law that was so clearly the House’s wish on Second Reading.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

It is a pleasure to serve under your chairmanship, Sir Gary, and to continue to work on the Bill. I thank the right hon. Member for Tunbridge Wells for his diligence on this legislation. Many of us feel very passionately about the issue, and we are grateful for his commitment and the work he has done to bring so many people together around what has historically been quite a difficult issue to make progress on.

I was watching my three-year-old daughter gambolling down the street the other day. “Gambolling” is the right word; she was in a party dress, half dancing and half singing, and she was joyful. She was walking down the same street that I walk down when coming home from work, with my keys in my hand, looking around, nervous about who else might be on the street. It struck me how important it is that we do not give into those who say that this is too complicated an issue to make progress on.

The honest truth about being a woman is that you learn to live in fear. You learn in our society and our culture to be half aware of what is going on around you at all times, because you know that there is danger out there. When I look at my little daughter and think about what is to come, I know why this legislation is so important. I wager that everybody who has young children in their life thinks about these issues. In particular, tackling the public harassment that women face on a daily basis is long overdue, and many of us in this place have worked on it. That is why it is so important that we take the opportunity to get this right, because they come along so rarely. New clause 3 and amendment 5, which I tabled, and new clause 1, tabled by the right hon. Member for Romsey and Southampton North but not selected for debate as it was not in scope, all get at the same point about ensuring we take this opportunity we finally have to recognise in law the fact that misogyny is driving crimes against women and to act on it.

I was thinking about some of the euphemisms we use and the things that are part of the culture we grow up in. We become so used to the fact that women are at risk and face harassment and abuse on a daily basis that we minimise it. I remember when I was younger being very concerned about somebody I was told had “deserts disease”, because I did not understand what it meant, until somebody explained to me that they meant wandering palms. We talk about people being handsy, and we talk about “creepy”, but all these behaviours are criminal.

What this legislation does is so powerful, because it says that the criminal offences that have been so much a part of women’s daily experience of public life should be acted on. For many of us who have campaigned on the issue for years, one of the biggest frustrations has been being told that we could not act on these things, because if we did, so many people would be prosecuted that the system could not cope, so it was up to women to take the abuse and find ways of minimising it and protecting themselves, carrying their keys in their hand and making sure they were alert at all times when they were in public, rather than us stopping it. What this legislation does that is so powerful is to say, “No, actually, it is not women’s job to protect themselves; it is society’s job to stop the people doing this.” The amendments I have tabled speak to that culture and the challenge we face in getting this right.

As the right hon. Member for Tunbridge Wells said, this is based on public order offences. There are other pieces of harassment legislation, which I am sure many people are familiar with. I had the fortune in a previous lifetime to work on some of them, which is why, on reading the Bill, I was concerned to identify some of the challenges with using the public order offence. I hope the Minister recognises that I want us to get the legislation right. My amendment are probing amendments, but I hope that by the time we get to Report, the questions they raise can be answered by the Government, because this is not a partisan issue; I think that Members across the House recognise the point I am making.

Public order offences are based on the concept of intent—did someone intend to harass somebody? They therefore give the person who is accused of it a defence that says, “Well, I thought my behaviour was reasonable.” The concept of reasonable behaviour is contained in other pieces of harassment legislation, but in that legislation it is also defined by whether someone ought to know it was reasonable. The Protection from Harassment Act 1997 refers to conduct that

“occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person.”

In contrast, public order offences simply allow the perpetrator to define whether they thought their behaviour was reasonable. Every woman in this room will recognise the challenge that that presents, because I wager that all of them have probably experienced unwanted touching and unwanted behaviour. I pay tribute to the Clerks, who have been fantastic in working with me on how we address that challenge.

Let us put it in the simplest phrases: “Cheer up, love! I was just trying to chat you up.” “Can’t you take a joke, love?” “It’s a compliment.” “Don’t get your knickers in a twist!” We have all heard those phrases when we said to somebody, “Stop.” We have all had the experience of somebody feeling they are entitled to touch us and harass us because they think their behaviour is reasonable. These amendments speak to a simple point. Most men in this country know how to approach a woman if they find her attractive. They do not feel the need to touch her breasts or her bottom or to harass her and abuse her, but some do. If we do not close this legal loophole, a commonplace experience for women—being challenged when they speak up for themselves and say, “No, don’t touch me in this way. Don’t speak to me in this way. Don’t harass me. Don’t abuse me”—will become a legal defence, because in contrast with other pieces of harassment legislation, there is no provision that says someone ought to know their behaviour is unreasonable in the definition of intent in the Public Order Act.

My amendments will do something very simple. They will introduce the concept of “ought to know” that is contained in other pieces of harassment legislation. I hope the Minister recognises that that will help to create consistency in how we define harassment in law. More importantly, none of us wants to see those women who are brave enough to come forward under this legislation and say, “This person did this to me” be put on trial about whether they can take a joke. Nine times out of 10, that person will be a man. I recognise that the Bill does not specify gender, and that is important, but we know from the 11 police forces that are defining misogyny as a hate crime and recording the gender of victims that the victims are overwhelmingly—80% to 90%—women.

We do not want victims to be put on trial about whether their response—their statement that such behaviour was not acceptable—is reasonable, because that would bring into play the very simple concept of whether anybody else would think it is reasonable. That concept exists in other harassment legislation—not just the Protection from Harassment Act 1997, but the Serious Organised Crime and Police Act 2005. The Crown Prosecution Service guidance says:

“In determining whether the defendant ought to know that the course of conduct amounts to harassment, the question to be considered is whether a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.”

It is important to clarify, in relation to the Bill, that in public order offences a judge can give what is called an oblique direction to a jury, so they can say: “This concept of reasonableness is not necessarily right.” That is there as a precedent, but reasonableness is not defined in every single case.

There is a risk that if we do not clarify that we want those same protections and the same questions in this Bill, that will create a legal loophole. My amendments are about that. I am sure the Minister will argue that they are not quite at the level they need to be. I completely understand that; this is a first attempt to flag the issue. If the Minister can suggest other ways to set out in law the fact that we need consistency and that we want to close the loophole, I would be very open to that, but the Bill will not do all the things we want unless we are clear that it does not matter that a person thinks it is reasonable to grab a woman by her breasts to express their sexual interest in her—most other people would not. This Bill is about those commonplace forms of public harassment—24,000 women every single day experience harassment—and it needs to be tightened up.

I hope Committee members understand where I am coming from with these amendments, and I hope they will find common cause across the House. I look forward to what the Minister has to say and to hearing how we might take the issue forward.

--- Later in debate ---

[Miss Dines]

I understand that point.

Section 4A makes it an offence if someone

“uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or…displays any writing, sign or other visible representation which is threatening, abusive or insulting”

if both the intention and the effect of the behaviour, or the display, are to cause another person harassment, alarm or distress. It provides that the offence

“may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling.”

There are two specified defences to this: first, that the defendant was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other building; and secondly—this has been the focus of some of the debate—that the defendant’s conduct was reasonable.

The section 4B offence introduced by clause 1 of the Bill will inherit and build on the provisions of section 4A. Subsections (1) and (2) of proposed new section 4B provide that the new offence will be engaged when a person commits an offence under section 4A and does so because of the sex of the person towards whom they are directing their conduct or because of the sex that the defendant presumed the other person to be.

Subsection (3) of the new offence makes two clarifying provisions. The first is that it does not matter whether there are additional motivations behind the defendant’s behaviour as well as the victim’s sex, as long as the victim’s sex was one of the motivations. The second is that the defendant’s motivation need not have been one of achieving sexual gratification; of course it could have been, but there are many other reasons why a person might decide to harass someone on account of their sex.

Subsection (4) of the new offence provides that the maximum sentence for a person found guilty of the offence would be, if they were tried in the magistrates court, a term not exceeding the general limit that the court can impose or a fine or both, or if they were tried before the Crown court, a maximum of two years’ imprisonment or a fine or both. That contrasts with the section 4A offence, for which the maximum sentence is six months. Since the maximum sentence for the new offence will be two years, which is above what the magistrates court can impose, the new offence will necessarily be capable of being tried in either the magistrates or the Crown court—triable either way, in the formal language—whereas the section 4A offence can be tried only in a magistrates court, or summary only, in the formal language.

Subsection (5) of the offence states that if a person is tried in the Crown court for the new offence under subsection (1) and is acquitted for that offence, the jury may still find them guilty of the section 4A offence. I commend the clause to the Committee. The new offence that it introduces will play a crucial role in ensuring that everyone—women in particular—can feel safe on our streets.

Clause 2 contains the standard provisions about the commencement, extent and short title of the Bill. Subsection (1) provides that the Act will extend to England and Wales. New subsection (1A) introduced by amendment 3 would place a caveat on that, to the effect that a provision introduced by the consequential amendments in new clause 2 would have the same geographical extent as the provision it amends. The practical meaning of this is that the amendment to the Police Act 1997, which relates to Scotland, would naturally extend to Scotland. The rest of the clause confirms that the provisions of the Act will come into force in line with the commencement regulations made by Ministers, as confirmed in the Act’s short title. I commend the clause to the Committee.

I thank Members for their contributions to the debate. These are long-standing issues, and I am sure we will debate them again. My Department will look very closely at whether this is the time for a sea change in the message in relation to intent and reasonableness.

[Greg Clark]

I am grateful for the chance to respond to the debate. It has been a relatively short debate, but it has successfully highlighted, first, the strong support there is for making this historic change to the law and, secondly, the desire and intention on both sides of the Committee to ensure that we take this opportunity to get it right. The contributions from my right hon. Friend the Member for Romsey and Southampton North and the hon. Members for Walthamstow, for Edinburgh West and for Birmingham, Yardley all point in that direction.

I am grateful to the Minister for her clear statement that she and her officials and colleagues in Government will reflect on the points that have been made, with a view to responding to them on Report and Third Reading. I am grateful to the hon. Member for Walthamstow for indicating that this is a probing amendment, and it has afforded us the ability to do just that.

Let us step back and reflect on where we are. Everyone agrees that we need to make this change in the law, but the hon. Member for Walthamstow and others have rightly focused on the question of intent. It is clearly a matter of common consent that a man who harasses a woman in public on the grounds of her sex should not be able to escape conviction simply by asserting that he did not intend to cause alarm or distress. That is not acceptable, and it is not the intention of the Bill.

On Second Reading the hon. Lady introduced the interesting and quite powerful concept of foreseeable harassment. We are talking about whether such conduct at the time is foreseeable. The graphic examples that Members have given fall into the category of behaviour that is clearly foreseeable as liable to cause harassment, alarm or distress, so there could not be a risk that that could be cited as a defence on the basis that the perpetrator did not intend to cause that. There are various ways of addressing that.

The hon. Lady helpfully referred to other legislation that the House has passed and, in so doing, no doubt reflected on precisely these issues. It is always beneficial to be able to draw on debates that have concluded satisfactorily, with the further advantage of maintaining consistency in the law. On the suggestion that the hon. Lady made, I am grateful for the Minister’s assurance that we will follow it up.

[Karen Bradley]

I congratulate my right hon. Friend on getting the Bill to this stage. It will be a fantastic Act of Parliament once it has passed through its final stages.

My right hon. Friend talks about other offences. It must be worth looking at how juries have interpreted other offences and whether those offences have led to successful prosecutions. If this language would help to get prosecutions—because it has been shown that that has happened in the past and lay members of a jury could understand the offence in a way that they perhaps would not understand it without that wording—it must be worth considering adding the wording to the offences.

[Greg Clark]

My right hon. Friend, a former Home Office Minister, makes a characteristically well-informed point about having the right intentions to make this an Act of Parliament that will not just sit on the statute book, but have a material effect on prosecuting perpetrators. As I said on Second Reading, we want to avoid the need for a large number of prosecutions by making it crystal clear to everyone that such behaviour is unacceptable and is a serious criminal offence. We should look at that and reflect on it.

It is fair to point out, as the Minister did, that the guidance in the explanatory notes to the Bill makes it clear that listing behaviours that are in scope establishes, in effect, that such behaviours would not be considered a justification that could overcome the question of intent and unintentionality. I will not go through the list that the Minister mentioned. One means would be to refer to other legislation. Another might be to consider the examples currently included in the explanatory notes and whether there might be a way to give them greater prominence so that prosecuting authorities, police forces and courts could take them into account. I hope that she will consider that as well.

[Stella Creasy]

In thinking about how to get this right, perhaps it would also be helpful to clarify that other forms of harassment legislation look for a course of conduct because they generally cover experiences in which we think somebody might have had a number of interactions with their victim. In this case, however, we are talking about the first time that people interact with people. The challenge is whether those ideas about “boys will be boys” and the clumsy attempts at trying to get somebody’s attention become even more part of the discussion about whether it was harassment.

For the magistrates who deal with these cases, it is even more important that we are clear that if somebody says, “I just thought that if I slapped her bottom, she would notice me,” that is not reasonable, because in today’s era slapping somebody’s bottom is not the best way to get their attention or express interest in them. Because we are dealing with that first form of contact, we have to match in this legislation the way in which we have talked about what is reasonable in other legislation. Otherwise, the cultural barriers that we are trying to get through will come into play even more, because they will fill the vacuum that a course of conduct would otherwise fill.

[Greg Clark]

The hon. Lady makes an important point that underpins the sense of consensus in this Committee. We need to be clear—so that the courts are clear and there is no ambiguity—that intended harassment will be punished.

[Laura Farris (Newbury) (Con)]

One point that is getting into a little bit of a muddle is that any unwanted touching is already assault. We are talking about a different offence. The harassment provisions under section 26(4) of the Equality Act 2010 set out clearly the reasonableness test and it is applied in that sense—that is, any unwanted conduct that has the purpose or effect of violating a person’s dignity or causing them humiliation or distress. Does my right hon. Friend agree that in effect we are transplanting the civil test into the criminal law?

On the issue of intent, about which we have had a lot of discussion, surely there is not only the issue of mens rea, which is one thing, but, as in other forms of law on things like nuisance and antisocial behaviour, if the person is reckless as to whether their conduct has a certain kind of purpose or effect, that is also enough for intent. Any form of touching would already be assault: we are not into a reasonableness test because it is a different offence anyway. Putting an arm round somebody or squeezing their bottom is a different crime. If someone says something sexual to a person, it is sufficient to say that if the court says they were reckless as to whether that would cause offence, the harassment offence is going to be made out anyway. It is in common with all equivalent offences of this nature.

[Greg Clark]

My hon. Friend brings her extensive legal learning and experience to bear on this issue and makes two important points. First, we should consider, before Report, the interactions with other aspects of the law. That is certainly important and one of the key conclusions of this Committee. Secondly, we should reflect on the fact that, even as drafted, the Bill significantly moves the dial on the ability of prosecuting authorities to secure convictions for behaviour that would constitute the proposed specific offence of public sex-based harassment.

[Siobhan Baillie (Stroud) (Con)]

Will my right hon. Friend give way?

[Greg Clark]

I am conscious that you have indulged me, Sir Gary, in giving me a second chance to speak so that I can respond briefly to the debate. I do not want to try your patience excessively, but I will of course give way to my hon. Friend.

[Siobhan Baillie]

My hon. Friend the Member for Newbury is right, but there is a huge frustration that the laws we have in place are not resulting in convictions. The examples we have been giving in relation to touching should already be an offence, but it is important that, when we interrogate this legislation with examples, we do not use examples of touching to see where we will get to with it. It is for the Home Office and all of us on the Committee to come up with the examples we can interrogate. Otherwise, we will fall foul of the ministerial team because we will always be referred to the existing legislation, even though that is a frustration for us all.

[Greg Clark]

I am grateful to my hon. Friend for that wise and helpful steer for the work that the Committee has clearly agreed to do, with the Minister’s consent. I hope that those Members who have contributed to the debate will work together to address the points that have been made so that, when we come to Report and Third Reading, we might find a way to address them.

I thank you, Sir Gary, for your chairmanship. I put on the record my thanks to the Minister and her officials in the Home Office and to the excellent Clerks team in the House for their guidance through what is clearly an important but also very technical change to the law we are proposing. We are very grateful for that. I end by acknowledging the presence earlier of one Committee member: the Mother of the House, the right hon. and learned Member for Camberwell and Peckham, who is currently chairing a Committee of her own but has indicated her strong support. We are very grateful for her appearance.

On that basis, and with gratitude for the indication from the hon. Member for Walthamstow that she will not press her amendment on the basis that we can consider its implications, I commend to the Committee my new clause and my amendments.

Amendment 1 agreed to.

[The Chair]

Stella, is it correct that you are not pressing amendment 5 to a vote?

Protection from Sex-based Harassment in Public Bill

Greg Clark Excerpts

Report stage
Friday 24th March 2023 Commons Chamber

[Greg Clark (Tunbridge Wells) (Con)]

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

[Madam Deputy Speaker]

With this it will be convenient to discuss the following:

Amendment 2, in clause 1, page 1, line 7, after “4A(1)” insert “primarily”.

Amendment 3, page 1, line 7, leave out “because of” and insert “due to”.

Amendment 7, page 1, line 8, leave out “(or presumed sex)”.

Amendment 8, page 1, line 10, leave out ““presumed” means presumed by A;”.

Amendment 4, page 1, line 14, after “not—” insert— “(za) A is a man or a woman,”.

Amendment 5, page 1, line 16, leave out “because of” and insert “due to”.

Amendment 6, page 1, line 16, after “other” insert “subsidiary”.

Amendment 1, in clause 3, page 2, line 20, after “1” insert “, (Guidance)”.

This amendment is consequential on NC1.

Amendment 9, page 2, line 20, leave out from “on” to the end of line 21 and insert “1 August 2023”.

[Greg Clark]

In line with your advice, Madam Deputy Speaker, I will address my new clause and the amendment in my name specifically, and I will also touch on the amendments tabled by my hon. Friend the Member for Christchurch (Sir Christopher Chope). I will not rehearse the reasons for the Bill. We have had a substantial debate on Second Reading and in Committee, and I hope it may be possible to say more on Third Reading.

New clause 1 would require the Secretary of State to issue guidance to the police about the new offence proposed in the Bill, and that guidance must include, but is not limited to, guidance on the defence of reasonable conduct that is already contained in the Public Order Act 1986.

During our debate in Committee, some Members were understandably concerned that the perpetrator of an act of deliberate harassment of a person on the grounds of their sex could escape the consequences of their actions by asserting that they thought their behaviour was reasonable. Some Members thought there was a risk that the police might be put off from taking the offence seriously, because of that potential defence. In fact, in the Public Order Act, reasonableness is not in the eye of the accused. Simply saying that behaviour that was intentionally designed to cause alarm or distress was reasonable does not provide a “get out of jail” card. Having clear guidance on this point would ensure that the matter is crystal clear to the police and all the authorities.

The proposed requirement for statutory guidance therefore provides that clarity, but it is not limited to that; the guidance can include other matters, should that prove desirable in future. The guidance would be addressed to the police, as is obvious from the terms of the new clause, but in practice its use would be wider than that, and would include the Crown Prosecution Service. That is because statutory guidance, once issued, is in practice taken by all parties to be authoritative. Indeed, there is no point in having separate guidance for the police, the CPS and any other body.

This is far from the only occasion when guidance is formally issued and addressed to one particular audience, rather than being proliferated to multiple actors. For example, statutory guidance within the Stalking Protection Act 2019 is formally issued to the police, but was drawn up in consultation with other statutory partners, including the Crown Prosecution Service. I envisage and hope that the Minister will be able to confirm that the same approach will be taken in this case, and that the CPS would be involved in drawing up the guidance to which my new clause refers.

It seems to me, reflecting on the debate we had in Committee, that an amendment that guidance must be issued and must include, inter alia, statutory requirements on the interpretation of reasonable conduct, is a pragmatic and practical way of responding to the points made in the debate. I am delighted that new clause 1 has attracted widespread support, including that of the Government, whose assistance in drafting it I grateful acknowledge.

[Sir Christopher Chope (Christchurch) (Con)]

How long does my right hon. Friend expect it to take for this guidance to be produced? The guidance requested last year on the draft code of practice on the recording and retention of personal data for non-crime hate incidents took more than one year to produce. Does he envisage a similarly long period? To what extent does he expect the House to have a say on the content of the guidance?

[Greg Clark]

I would be very dismayed if it took a year to draw up such guidance, and my hon. Friend gives a cautionary warning. When the Minister responds to the debate, I hope he might undertake to produce the guidance with dispatch. I said a few moments ago that it is right and appropriate that guidance is drawn up in conjunction with the CPS, which also has regard to it, and that will take some time. I hope, however, that it will be a matter of weeks rather than a large number of months. The Minister and I are experienced in office, and we know that only the Minister can give an assurance as to how long it will take, but I am delighted that my hon. Friend shares my impatience to get on with it.

[Sir Christopher Chope]

What about the ability of the House to comment on the guidance when it is produced, or during its preparation?

[Greg Clark]

As my hon. Friend knows, guidance is issued by the Government of the day. It is not a statutory instrument, and we are not proposing that it should be. I think it would be desirable for such guidance to be shared not just with the House but in public. Guidance that is important should enjoy the confidence and wisdom of those who intend to use it.

[Sir Christopher Chope]

Finally, does my right hon. Friend envisage that the guidance should first be produced in draft form, so that there is an opportunity for people to be consulted publicly on it?

[Greg Clark]

Again, that is a matter for the Minister, but I would not only be content with that but think it a desirable route to take.

On the amendments tabled by my hon. Friend, he is right to seek to ensure that legislation in this House is properly scrutinised and debated, and the points he has raised—including those he just made—are pertinent and valuable. As I hope he might expect, I have studied his amendments carefully, so let me deal with them in turn.

Amendments 3 to 5 prefer the words “due to” to “because of”. Precise language is important—he and I share that view—but I do not think that the preference on his part signifies any difference in interpretation. The expression “because of” is extensively used in existing legislation. For example, section 66(4) of the Consumer Rights Act 2015 refers to circumstances in which someone suffers loss or damage

“because of the dangerous state of the premises”

That is “because of” rather than “due to”. With perhaps more immediate relevance to our discussions, the Equality Act 2010 uses “because of” rather than “due to”. For example, paragraph 3(5) of schedule 11, on school admissions, refers to circumstances in which a school

“does not admit a person as a pupil because of the person’s sex”,

rather than “due to” it. It may well be that my hon. Friend’s use of language is more elegant than that contained in the laws already on the statute book, but I hope he will agree that there is some virtue in linguistic consistency in the law. That is the reason behind that choice of words.

--- Later in debate ---

My amendments 7 and 8 talk about “sex” or “presumed sex”. Let us suppose that someone is in the business of harassing people on the basis of their sex—I hope that not many people are. Let us then suppose that that person thinks that they are harassing a man but it turns out that the person they are harassing is not a man and is in fact a woman——it may be the other way round, and they may think that they are harassing a woman and it then turns out that the person is not a woman but a man. The amount of alarm or distress that will be caused to the person on the receiving end will be significantly reduced if they are not of the sex that was intended by the person who was harassing—

[Greg Clark]

I do not seek to quarrel with my hon. Friend. But let us consider the analogous situation in which a person with brown skin, relatively dark skin, were the subject of a humiliating torrent of racial abuse in the street but was not a member of a given racial group, I do not think that would diminish the impact and the offence intended by the person. Surely the same would apply in this case, and the person on the receiving end would feel humiliation and the perpetrator would have had exactly the same intention.

[Sir Christopher Chope]

With the greatest respect to my right hon. Friend, I think he is conflating two dissimilar situations, because the situation he is describing is already an aggravated offence and what we are talking about here are offences that are not aggravated. Indeed, this Bill has been introduced because they are not regarded as aggravated offences and thereby qualifying for greater punishment.

It is a mistake to try to equate a situation where something is already an aggravated offence with the situation described in this Bill. If a person is harassing or making remarks to somebody in the mistaken belief that they are trying to insult a woman, but it turns out that they are a man, that seems to me to be a mistake. Although that will probably still enable the person to be convicted of a public order offence, it will be a public order offence not because of their behaviour, but because of that person’s sex. It is semantics, I am prepared to concede, but that is why I introduced that amendment.

--- Later in debate ---

[Greg Clark]

I beg to move, that the Bill be now read the Third time.

I am grateful for the debates that we have had in Committee and in the House this morning. The amendments that have been accepted reflect our substantial debate in Committee. I am grateful to my hon. Friend for his amendments, which have afforded us the opportunity to clarify some important aspects of the Bill, and have some commitments made from the Dispatch Box that will be useful to us if, as I hope, the Bill continues to make progress.

We have taken some time this morning, and I am conscious that other colleagues have Bills that they are anxious to progress. If those Bills are to be properly scrutinised, that requires me to be brief. If the House decides to give the Bill its Third Reading, it will be an historic day. For the first time in our history, deliberately harassing, following, shouting degrading words or making obscene gestures at women and girls—and yes, on occasion, at men and boys—in public places, because of their sex, and with the deliberate intention to cause them alarm or distress, will be a specific offence, and a serious one at that.

The astonishing thing is that that has not been an offence until now, many years after it was made an aggravated offence to harass someone in public on grounds of their race, religion or sexuality, for example. Indeed, women—it is mostly women, although the Bill also applies to men—have had to alter the way they live their lives: to walk home using different routes; to arrange to be accompanied rather than walk alone; to have, or pretend to have, conversations on a mobile phone while walking alone; to hold keys clenched in their hands as a safeguard.

So prevalent is this that when visiting a sixth form at one of my local schools a few weeks ago, with young men and women of 17 and 18, I asked how many students in the class typically walked home with keys in their hands. Instantly, without conferring, every young woman in the class put up their hand. Not a single young man did, and they expressed some mystification that this happens at all. Such are the changes and accommodations that have, sometimes subconsciously, been made because of the potential and reality of harassment in public.

Our streets belong to women just as much as they belong to men. Women should be able to use our streets as confidently and safely as men do, free from abuse, humiliation, and physical or verbal violence. The Bill makes the specific but important step that harassing women—or men or boys, if it applies to them—in the street with the intention to degrade or terrify is not normal, natural or “just the way of the world”; it is a crime, and a serious one at that. The Bill will address that anomaly and move our legislation forward. I commend it to the House.

--- Later in debate ---

[Greg Clark]

With the leave of the House, I will briefly thank all those who have aided the passage of the Bill.

I start by thanking my constituents who, over the years, have shared with me their experiences and encouraged me to bring forward this legislation, supported by campaigning groups from across the country.

To turn those intentions into prospective legislation, one requires advice and support. I am grateful to officials and Ministers in the Home Office, including the former Home Secretary, my right hon. Friend the Member for Witham (Priti Patel), and the current Home Secretary and her ministerial team.

My hon. Friend the Member for Derbyshire Dales (Miss Dines), who has seen the Bill through its previous stages, is indisposed today. I want to put on record my thanks to her and to my right hon. Friend the Minister for very ably picking up the brief today and responding during the Report stage. I am grateful to him for that.

I thank the excellent Clerks of the House. In particular, I would like to single out the Clerk responsible for private Members’ Bills, Anne-Marie Griffiths, who does a tremendous job, supported by her very able colleagues. We are grateful for the advice that she has given.

Finally, I thank the no less able Whips on both sides, in particular my hon. Friend the Member for Castle Point (Rebecca Harris). She has developed a reputation for sensing the mood of the House. In a House that can sometimes be a forum for contention, my hon. Friend has great skill in being able to bring us together on occasions such as this one.

Having put on record my thanks, I commend the Bill to the House.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I thank the right hon. Gentleman. Anne-Marie Griffiths was here earlier and she will be back, but we will ensure that she is aware of those kind words.

Question put and agreed to.

Bill accordingly read the Third time and passed.