Protection from Sex-based Harassment in Public Bill

Karen Bradley Excerpts

Committee stage
Wednesday 22nd February 2023 Public Bill Committees

[Miss Dines]

I thank my right hon. Friend for raising that example. I personally think that it is just as stark, and that it is just as easy to knock down the defence, because the intent is so obviously there. Intent is not a fanciful legal device. It is something that is pretty obviously stated, and a jury, judge or magistrate—whoever it is—would very easily be able to knock the defence away, but I do value the point that my right hon. Friend makes. The Government have accepted that they will look at that again, and I very much enjoy hearing these interventions.

The Government’s view is that even though these amendments would have the desired effect, they would not be necessary to criminalise the type of behaviour that concerns most of us here, but I do take seriously the concerns that lie behind them and I will give them further consideration. In the meantime, I suggest that the hon. Member for Walthamstow, having probed with quite a lot of debate, and made her point very forcefully, should perhaps not press the amendments.

Moving on to substantive matters more generally—I know that I have taken up a great amount of time—I speak in support of clause 1, which creates the new offence at the heart of the Bill by inserting a new criminal offence within the Public Order Act 1986 as a new section 4B. The offence will be dependent on the behaviour that falls within section 4A of the Act—namely, that of intentionally causing harassment, alarm or distress—and will provide that if someone committed behaviour under section 4A, and did so because of the victim’s sex, they could receive a longer sentence of up to two years, rather than the six months mentioned in section 4A.

The approach of building on the section 4A offence reflects the Government’s view that public sexual harassment behaviour is already covered by existing criminal offences, most commonly that section 4A offence. Had we instead sought to create a wholly new offence, that would have entailed overlap with existing ones, which would be not only unnecessary but actively harmful, as it would create confusion about the law—exactly the reverse of what we are trying to achieve here.

[Karen Bradley (Staffordshire Moorlands) (Con)]

I thank my hon. Friend for giving way. The argument is frequently put forward—as a former Home Office Minister, I have used it myself—that there will be duplication, and that that will be too much, but we need to find legislation that can be easily understood by the judiciary and interpreted properly, with proper training for police officers and others so that they can find the evidence needed. Sometimes an additional offence is not that harmful, because it will assist in getting the prosecutions that we all so desperately need. May I urge the Minister to consider that point in her deliberation about all the other points that we have discussed?

[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.