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.

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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.

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[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.

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[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.