Police, Crime, Sentencing and Courts Bill

Lord Wasserman Excerpts

Lords Hansard - part two & Committee stage
Monday 22nd November 2021 Lords Chamber

Moved by

[Lord Wasserman]

292G: After Clause 170, insert the following new Clause—
“Recording the sex and acquired gender of alleged victims and perpetrators of crime
After section 44 of the Police Act 1996 insert—“44A Recording sex registered at birth and acquired gender (1) Police forces in England and Wales must keep a record of the sex registered at birth of each person who is—(a) the alleged victim of a crime reported to that police force, or(b) arrested for a crime by a member of that police force.(2) Police forces in England and Wales must keep a record of the acquired gender of each person with a gender recognition certificate who is—(a) the alleged victim of a crime reported to a member of that police force, or(b) arrested for a crime by a member of that police force.(3) Provision by a police force to the Secretary of State of any protected information recorded under subsection (2) above does not constitute an offence under section 22 of the Gender Recognition Act 2004.””Member’s explanatory statement
This amends the Police Act 1996 to ensure that the sex registered at birth and acquired gender, if appropriate, of anyone who is the alleged victim of a crime or who is arrested for a crime will be recorded by police.

[Lord Wasserman (Con)]

My Lords, before I say anything substantive about this amendment standing in my name and the names of the noble Baronesses, Lady Morris of Yardley, Lady Grey-Thompson and Lady Ludford—who apologises for not being in her place this evening—I apologise to the House myself for having been unable for medical reasons to attend the Second Reading of this important Bill. However, I watched the debate with much interest, and was impressed by the wide range of issues raised and the very strong feelings with which many of those issues were discussed.

For me, the key point at Second Reading was made by the Minister, my noble friend Lady Williams of Trafford, who, when introducing the debate, described the Bill as having one overarching objective; namely, to keep the public safe. I have devoted almost the whole of my professional life to advancing this objective, both in this country and abroad, and it is for this reason that I enthusiastically welcome the Bill and welcome the opportunity to speak to this amendment.

If I were asked to name the most important lesson I learned from my long experience of policing, on both sides of the Atlantic, I would say that it is the importance of accurate, timely and comprehensive information in reducing crime and making communities safe. Without such information, policing and crime reduction become simply a matter of guesswork and luck. With such information, however, our police forces and those who advise and assist them can begin to understand why, when and where crimes occur, and to develop effective evidence-based plans, strategies and tactics for tackling them. In a nutshell, the more comprehensive, consistent, timely and accurate the information available to our police forces, the more effective their efforts and the safer our communities will be.

Everyone who cares about policing and public safety recognises this, and it is this concern for consistent, accurate and comprehensive national information which accounts for Section 44 of the Police Act 1996, which gives the Home Secretary the power not only to require all forces in England and Wales to collect, maintain and return information about criminal behaviour and policing but to

“specify the form in which information is to be provided.”

It is this power to specify the form of the information to be provided that makes our national collection of criminal statistics so useful, because it permits the Home Office to issue its so-called counting rules—a set of memoranda that spell out in detail what information is to be collected by individual forces. These rules, which are kept regularly up to date to reflect new crimes and other changes in legislation, ensure that our national collection of criminal information is accurate, comprehensive and timely, rather than a set of random figures that reflect the whims and preferences of individual chief constables or police and crime commissioners.

I am making something of these Home Office counting rules because I want noble Lords to appreciate that there are already in place tried and tested arrangements to collect information from the police and to ensure that these collection arrangements are easily amended in the light of practical experience on the ground. For this reason, I very much hope at this late stage of this evening’s debate to concentrate on the main proposals of the amendment and not get bogged down in discussing the modalities of how this information should be collected. These are matters of detail for practitioners to consider in the light of the general principles that Parliament lays down for them, and not really matters for primary legislation.

Let us turn, therefore, to the heart of the amendment. It aims to fill a serious gap in our national collection of criminal statistics caused by the fact that, at present, police forces are not routinely or consistently required to collect data on the sex of all alleged victims or perpetrators of crimes. As a result, practice on the collection of sex data varies across forces and, in recent years, there has been a confusion with gender and related concepts, such as gender identity, which have been compromising the accuracy of our national data relating to sex. For example, most police forces currently allow biologically male alleged perpetrators to self-identify as women, even when charged with rape, and will then record the crime as carried out by a woman.

As is obvious from this example, our present laissez-faire attitude to how sex is recorded by forces across England and Wales has important practical consequences. It deprives policymakers and police practitioners of accurate and consistent national statistical data about discrimination on the basis of sex. It thus makes it very difficult, if not impossible, to develop effective evidence-based policies for fighting these crimes, especially crimes relating to violence against women and girls—the tackling of which is one of the Government’s principal objectives and one to which they are committed by international agreement.

The amendment aims to fix this problem by amending the Police Act 1996 to require all forces to collect, for

“each person who is … the alleged victim of a crime reported to that police force, or … arrested for a crime by a member of that police force”,

at least one and in some cases two pieces of personal information. The first is the sex registered at birth of the alleged victim or arrestee, and the second is the acquired gender of that person, provided that he or she has a gender recognition certificate—known as a GRC—which legally recognises their acquired gender in the UK. I am sure some noble Lords would wish to argue that neither of these categories is appropriate in the context of the criminal justice system and that forces should collect only information on alleged victims’ or arrestees’ gender identity as he or she declares it to be. Let me deal with this argument in stages.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I thank my noble friend Lord Wasserman and others for explaining this amendment, which relates to the recording of sex and gender by the police.

The Government do not currently stipulate how a victim’s or offender’s sex at birth or gender identity must be recorded by the police. It is an operational matter for each individual police force to decide what information to record in cases where a crime is committed, taking into account any relevant national guidance. There are no other instances across government where there is a mandatory requirement to record both a person’s sex as registered at birth as well as their acquired gender, if that is applicable. The Office for Statistics Regulation is clear that it is for each department to decide when and how it collects data, including data on both sex and gender.

We have already stated that we do not plan to require biological sex to be recorded across the criminal justice system in our response to a recent petition calling for the biological sex of violent and sexual offenders to be so recorded. The response cited the practical difficulties in recording biological sex, some of which have been cited this evening, as well as the implications for those with a gender recognition certificate as justification, the implications of which I will touch on later.

I understand that this issue has received media attention, with the media reporting that there have been cases of sexual offences committed by transgender women where these crimes, which are traditionally male crimes, have been recorded as being committed by women. The Daily Mail reported that the Home Office is working with police to develop a new procedure for officers to record the sex of criminals in order to ensure that crime statistics are more accurate.

As noted in much of this reporting, the Home Office has already started work with the National Police Chiefs’ Council to promote a standardised approach—a phrase that lots of noble Lords have used—to the recording of all protected characteristics, which is currently at an early stage. Further, the Office for Statistics Regulation has issued draft guidance for the collection of sex and gender data for public bodies. This work should bring greater accuracy and consistency of the recording of sex and gender and allow the police to understand how best to collect it. I think it is through these processes, rather than legislation, that it is appropriate to improve the accuracy of the recording of sex and gender.

There are also a number of legal concerns arising from the amendment. It is unclear why the Government would need to mandate the uniform recording of this information regarding both alleged victims and perpetrators for all offences, and how this would be considered both necessary and proportionate for operational purposes. Accordingly, it could amount to an unlawful interference in someone’s right to respect for their private and family life under Article 8 of the European Convention on Human Rights. The requirement might also breach Article 14 on the basis that it amounted to discrimination where transgender individuals are concerned. It is not clear, due to the scope of the amendment, that such a requirement could be lawfully justified.

I put it to the Committee that legislating so that the police routinely record this type of data is not the solution to the problem of standardising how sex and gender are recorded. Reasonable and appropriate actions are already being taken to address this that do not carry the same potential consequences as mandating it by law. There will be more to be said on this in the coming months, as the noble Baroness, Lady Chakrabarti, said, but I hope that for now I have said enough to persuade my noble friend to withdraw his amendment.

[Lord Wasserman (Con)]

My Lords, I am grateful to my noble friend the Minister for her comments, which were thoughtful and helpful, as ever. I assure the noble Baroness, Lady Brinton, that now, after midnight, I will withdraw my amendment. She need not worry about any more debate.

I recognise very much the problems of collecting this information, which is why I went out of my way to speak at some length about the Home Office counting rules. I happened to be involved with their development when I was at the Home Office. They are very much based on consultation with the National Police Chiefs’ Council, experts, think tanks, academics and so on. As I said, these rules ensure that the collection arrangements are easily amended in the light of practical experience on the ground. I have no doubt that any debate about the collection of such information will get careful consideration by the experts at the Home Office who run the counting rules, by the police, and others.

I still think that it is important to have national criminal information. One of the weaknesses of our system, as we said in an earlier debate on the Bill, is that we have 43 separate forces with 43 chief constables, each deciding how they will collect and maintain crime statistics. This is not the best way to do it. Some noble Lords will no doubt suggest a single police force, as in Scotland. That is not such a good idea, but there is another way of doing it—by Parliament setting clear rules at high level, and the experts then deciding how best to collect the information sensitively, with due respect to human rights and to people’s deepest feelings, ensuring that they take the population with them. Having said that, I beg leave to withdraw my amendment.

Amendment 292G withdrawn.