Police, Crime, Sentencing and Courts Bill

Lord Sandhurst Excerpts

Lords Hansard - part one & Committee stage
Wednesday 17th November 2021 Lords Chamber

I say to the Minister who will reply that the responsibility of Ministers dealing with this sort of debate is to specify what gain there is, if any, by having such a low age of criminal responsibility. I think they will struggle.

[Lord Sandhurst (Con)]

My Lords, perhaps I may begin by saying that I support Amendment 220. I endorse it completely and have nothing further to say on it. Noble Lords have spoken with great eloquence and force. As the noble Baroness, Lady Chakrabarti, has explained, my Amendment 221ZA, is a probing amendment designed to correct the terms of a subsection in Amendment 221 in case that amendment goes forward and the Government are interested. Let me explain.

I should say at once that Amendment 221 is, in principle, good. If accepted, it would require the Government to carry out a review of the age of criminal responsibility. I have no argument with that whatever. The issue that I raise is with the list of factors to be considered by any such review and, in particular, the use of the word “gender”. The right word there should be “sex”. The requirement in Amendment 221 is that the review should take into account certain factors. It can take other factors into account, but the following are mandatory:

“age, gender and ethnic background”.

My focus is on gender. Those noble Lords who sat through the important debate on Monday night will have heard lengthy discussion of those terms and their use in legislation. I will come back to that.

When I drafted my amendment rather hurriedly on the Thursday, I focused on the terms in the Equality Act. Why I did so will become obvious in a moment. I used too many words; I just lifted other factors in order to include them. I am now satisfied that the only proper course is to remove the term “gender” and substitute that with “sex and gender reassignment”. The cohort, if the review were to take place, will be those under 18 and, for the large part, those materially younger. One could call them children. Importantly, “sex” is established in statute and describes physiology. It is not a social construct. It is easily identified, and is listed and defined, as I shall explain, in the Equality Act. It should be noted that “gender” is not so defined. I say that for noble Lords who were not here on Monday or have not studied the Act in detail.

Section 11 of that Act states:

“In relation to the protected characteristic of sex … a reference to a person who has a particular protected characteristic is a reference to a man or to a woman; … a reference to persons who share a protected characteristic is a reference to persons of the same sex.”


There is further elaboration in Section 212, which defines “man” and “woman”—in other words, the terminology that has just been explained. It states that,

“ ‘man’ means a male of any age … ‘woman’ means a female of any age.”

There we have it all clearly defined. Sex is a physiological condition and, importantly for the purposes of a review, it is an objective fact, not someone’s opinion. It is not what someone identifies as. We are talking here about people under 18, usually those much younger. Also, we all know that sex is registered at birth. It is on the birth certificate.

In the case of a small number of people who are under 18 and may fall within the ambit of the review, there may be those to whom the term “gender assignment” will apply. They will be few, but if that does apply within the meaning of the legislation, that, too, will be a fact, not an opinion. That is because gender reassignment is also a protected characteristic under the Equality Act. Section 7(1) of that Act defines gender reassignment as follows:

“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.”


So gender reassignment likewise refers to a physiological process and does not include mere self-identification or opinion. Lastly, in case anyone were to ask, “What about gender recognition certificates?”, they simply do not apply. One cannot have one of those if one is under 18. I say that so that everyone knows where we are.

Put simply, if there is to be such a review, the mandatory—if that is the right word—considerations should be age, sex, gender reassignment and ethnic background, but not gender. I commend this approach and await with interest the Minister’s response.

[Baroness Chakrabarti (Lab)]

I should say briefly in the absence of the noble Baroness, Lady Bennett of Manor Castle—perhaps it is not my place to do so because it was her amendment that I signed—that I should thank the noble Lord, Lord Sandhurst. We have been using various terms in Committee, but on this occasion he must be right. If one were considering children under 18 in the context of a review of the age of criminal responsibility, it would be a glaring omission to include “gender” instead of “sex” in the legislation.

Sometimes it may be appropriate to use both terms, and I supported that position on Monday in the particular context of a different amendment about hostility towards people. What I tried to suggest, and which Twitter does not reflect, is that hostility can be towards people in broader categories than those protected under the Equality Act. I would not want someone to be subjected to violent hostility, even on grounds that are not currently in the Equality Act, because they were non-binary or whatever. That is not really the point in this context. If I may say so, the noble Lord, Lord Sandhurst, put it very well.

What is more, I hope that the noble Baroness, Lady Bennett, will forgive me for making that concession, given that this is a probing amendment and her list of factors to be considered in any review was inclusive and not closed. I hope it is helpful to respond to the noble Lord, Lord Sandhurst, in this way.