Voyeurism (Offences) (No. 2) Bill (Third sitting)

Stella Creasy Excerpts

Committee Debate: 3rd sitting: House of Commons
Thursday 12th July 2018 Public Bill Committees

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

It is an honour and a privilege to serve under your chairmanship, Ms Buck.

I am grateful to the hon. Lady for providing an opportunity to discuss this important issue, and I appreciate the impact that this activity can have on the individuals affected. I am also grateful to my right hon. Friend the Member for Basingstoke; I know she spent much time considering the Bill, including giving up her time on Tuesday to give evidence to the Committee. I am grateful for the leadership she provides as Chair of the Women and Equalities Committee, and the powerful position she has taken on tackling ongoing challenges around sexual harassment.

The three amendments that were tabled by my right hon. Friend and have been moved today by the hon. Member for Dwyfor Meirionnydd would remove the element of purpose, so that upskirting is caught in all circumstances, save for when a defence is established. Those defences are outlined in amendment 1. We understand the objective of ensuring that the offences are wide enough to catch all those who should be criminalised for taking upskirting photographs, and we understand the hon. Lady’s motivation in moving the amendments. It is important to raise and consider these issues, and I am grateful for the opportunity to do so.

Before turning to the amendments, it might be helpful to explain why the Bill has been drafted as it has. The Bill seeks to rectify a gap in the law. That gap exists in relation to where the act takes place: it is possible to prosecute for upskirting in a private place or a public place, but possibly not in a place that is neither private nor public, such as a school. A school is not open to the general public, so it is not public, but it is open to many, so one could not expect privacy.

The Bill specifies two purposes for which an offence can be committed: to obtain sexual gratification or to humiliate, alarm or distress the victim. The reason these purposes are identified is not only that they are clear and appropriate, but that they use language that is familiar to criminal justice agencies. These motivations are used in current legislation. They are used, word for word, in Scotland. They are also familiar to the English system. That means that the Bill as drafted has precedent in law, and we know it will catch inappropriate wrongdoing.

I will deal with a few criticisms that have been made of the Bill’s breadth. It has been said that it will not catch all those who should be caught—for example journalists, as the hon. Lady mentioned—but if a person takes a photograph with the intention of uploading it to a website where others will look at it for sexual gratification, the uploader will be caught. It will not matter that the person who took the image is not obtaining sexual gratification themselves—for example, if they just want to get paid for the photograph. If they share it with another person with the intention that that person obtains sexual gratification, they will still be caught by the new offences.

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

Will the Minister talk us through how that would be proven? The concern for many of us is that by not taking out the differences of purpose for the actual offender, we will create a difficult investigatory chain. Will she explain how, if she keeps the requirements around purpose in the Bill, she would expect the police and courts to prove that third-party sexual gratification was part of the process?

[Lucy Frazer]

I was going to come on to those issues. Does the hon. Lady mind if I deal with them in a moment? I will deal with how motivation will be proven in a moment, but I will just finish the point about the breadth of the provisions.

A number of criticisms have been made; I have mentioned the one about journalists, but there are others. It has been said that the Bill will not catch those who carry out this activity for a laugh, but if the person knows that the laugh is for the purpose of humiliating the other person, they will be caught. As Assistant Commissioner Martin Hewitt said on Tuesday, it is hard to imagine any other reason for which someone would take an upskirt photo that could not be prosecuted under the new offences, as drafted. As Ryan Whelan said:

“There is no requirement that the prohibited motive be the only motive”.

The hon. Lady also referred to the Crown Prosecution Service, but it is important to point out that the CPS stated:

“We anticipate that most offending will fall comfortably within these categories.”

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[Liz Saville Roberts]

rose—

[Stella Creasy]

rose—

[Lucy Frazer]

I will take the intervention of the hon. Member for Walthamstow first.

[Stella Creasy]

For clarity, the Minister set out that if we were dealing with someone who had taken the photos not for their own sexual gratification but perhaps to make money from them, we would need to prove third-party sexual gratification. Will she explain how she expects that to be proven, as opposed to the sexual gratification of the original offender?

[Lucy Frazer]

I am happy to do so. Obviously, each case will depend on its own facts, but one can imagine a circumstance in which a journalist is taking photographs for money and that is his intention. However, he sells a photograph—he has taken it with the intention of selling it on—to a pornographic website on the internet. It would be difficult to suggest that that photo was being put up for any purpose other than for other people’s sexual gratification.

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[Alex Chalk]

I rise briefly to oppose the amendments, although I recognise that they have validity and force. I am not suggesting that they are misconceived, but, on balance, the Committee should vote against if necessary, and I will explain why.

The first point is one that has already been made. We should not lose sight of the fact that almost everyone who has spoken about these matters recognises that the overwhelming majority of offending would comfortably have been caught. Although a point has been made about the Director of Public Prosecutions, it is worth considering precisely what she said in paragraph 2.6 of her written evidence:

“The Bill introduces purposes for which such activities are committed. We anticipate that most offending will fall comfortably within these categories.”

That is important—it is worth underscoring the point—because while one can imagine some individuals in court saying, “This was just for fun, wasn’t it? We were having a good time and it was just larks,” or equally a journalist saying, “My motivation was to get money,” it is always open to the Crown to say that that was a subordinate motivation that comes within the scope of the Bill. Therefore, it will be vanishingly rare, I suggest, for any defendant credibly to argue—with emphasis on the word “credibly”—that no part of his or her motivation fell within the scope of the Bill.

It is also worth considering the representations that were made in a wider context. Ryan Whelan, the lawyer representing Gina Martin, said in written evidence:

“However, most if not all of these cases”—

referring to other suggested motives—

“can be caught by the Bill as it stands. There is no requirement that the prohibited motive be the only motive and the offender who acts to humiliate, distress or alarm the victim is not somehow given a defence because he does those things for financial gain, a laugh or to exert power.”

The point I want to make is that, often, in life and with respect to the Bill, people do stupid and illegal things for a blend of motives. It is no good them standing in court and saying, “My primary motive is not within the Act. Therefore, I should walk out of this court scot free,” because most juries would give that short shrift.

[Stella Creasy]

This is a very interesting conversation. The only person who has mentioned how consent might influence such a decision was the Minister, in a very narrow context. The hon. Gentleman’s comments are all about the offender. If this is a victim-centred Bill, it does not matter whether somebody was having a laugh or was sexually gratified. It matters whether the person whose photo was taken said, “Yes.” Where does that come in his hierarchy?

[Alex Chalk]

The hon. Lady is absolutely right. Ultimately, we are trying to prevent offending so that victims can get justice. One aspect of victims getting justice is ensuring that something is put on the statute book as quickly and efficiently as possible. The key evidence, if I may say so—the centre of effort that came from Gina Martin’s evidence—is that she wants to see this on the statute book. For it to mirror the situation in Scotland has an added advantage.

The second point, over and above the inconsistency, is about the sexual offenders register, which is critically important for this reason. If someone is put on the sexual offenders register, that is major deal, because if they act in breach of that they will go inside. It is absolutely right, by the way, that that happens. If somebody commits an offence such as this for a sexual motive, it is quite correct that they should go on the sexual offenders register. Indeed, the overall tenor of the evidence is that the Bill is right to draw a distinction between those who commit the offence to humiliate or degrade and those who commit it to achieve sexual gratification.

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[Stella Creasy]

It is a pleasure to serve under your chairwomanship, Ms Buck, this fine Thursday morning. I rise partly in response to the hon. Member for Cheltenham. I apologise for being unable to listen to the second set of evidence. The Committee will have to forgive me; I am afraid I had a rather unpleasant medical emergency. Members will be pleased to see that I am back on my feet and trying to respond.

The amendments matter because of a couple of concerns that I want to put on the record. I understand the case set out by the hon. Member for Cheltenham from his experience. Let us take it as a given that everybody on the Committee wants the legislation to pass and be as good as it can be. The challenge and the difference is about whether it will meet that second test. The amendments address a concern that many of us have and that, if I am honest, the hon. Gentleman set out very well in how he talked about the crime and how he believes, given his experience as a criminal barrister, the legislation would be enacted. He did not at any point, even when I prompted him, say that the courts would consider the fact that the victim said, “No, I didn’t consent to this.”

The concern about setting out specific motivations is that it takes the power away from the victim to be the one who defines what happened, and that it is wrong. When we start to include particular categories, we take the conversation away from whether a woman such as Gina Martin, or a man who had a camera put up his kilt, said, “No,” or, when they found out what had happened, said, “That was not something I consented to.” Instead, we start quibbling about the motivations of the perpetrator. We all want to ensure that victims come first in the law.

[Alex Chalk]

The hon. Lady is absolutely right that victims should be in charge of their own bodily integrity, and that includes whether they are upskirted or touched intimately. However, on either formulation—the Government’s or that in the amendment—that is taken as read. In other words, it is a key part of the offence that it has to be shown that the victim did not consent. Of course, if the victim says, “Oh yeah, absolutely—I’m perfectly happy,” that is taken as read. It is the same in the Government’s formulation and in the amendment.

[Stella Creasy]

I thank the hon. Gentleman for his intervention, but he and I disagree on that. By putting in notions about the motivation of the offence, we automatically start queering the conversation away from that very simple point—whether we can prove that the person consented—and we start saying, “Hang on a minute; was it about sexual gratification?” or, “Hang on a minute; can we prove it’s a third, or indeed a fourth, party?”

If only this was about pornographic websites. We live in a culture in which people will take such pictures and engage in that behaviour not just to humiliate, but to entertain. I am sure that the hon. Gentleman is a regular reader of Heat magazine, and magazines such as Closer. He will have seen such pictures being used to entertain. The risk of setting out the motivations is that we create loopholes and take the focus away from consent. He and I agree that consent should be the primary focus. Saying it is taken as read is not the same as making it the primary, defining factor.

The right hon. Member for Basingstoke has been brilliant about identifying some of the challenges. By removing these requirements, we take the focus back to the victim. I worry, and I suspect that other Committee members worry too, that there will be a case in which somebody says, “It wasn’t for sexual gratification; I was making money, but doing so to entertain.” That is the world we live in now. We have voyeurism for the sake of voyeurism. There is no sexual element to it; there is simply the pleasure of seeing somebody else in an awkward position. It is not necessarily about humiliation or distress. Again, setting bars for what has to be proved would create an environment that none of us want.

[Alex Chalk]

If an individual who said, “I’m selling it to Closer magazine,” turned up in court and said, “Do you know what? I had no idea that it might humiliate, alarm or distress the victim”, does the hon. Lady really think that he is likely to be believed by a jury?

[Stella Creasy]

We are going to come on to some of the broader questions underpinning the offence. The sad truth is that this is not the first time that people have tried to humiliate, and to humiliate mainly women. This is not the first time that there has been a sense of entitlement to see, to judge and to talk about the privacy of a woman’s body. Do I have confidence that there would be people on the jury who would think, “Well, fair play”? Sadly, that is the society that we live in and we are making legislation in that society. I wish I could be with the hon. Gentleman in having confidence that in the 21st century people would recognise that treating women as pieces of meat for their entertainment is no longer acceptable, but, sadly, both case law and modern society tell us that we still have a long way to go.

The risk for all of us is that we create a loophole in the legislation, where people quibble about whether it was entertaining or not, rather than ask the simple question: did she say yes? Did she say she was happy for it to happen, because it was something she was doing for her career, or whatever? I wager him that we would have a case where we would have that kind of discussion, and ask him to think what it would be like for the victim in that circumstance to have motivation pored over in court, rather than the simple question of whether she said yes or no.

We are not pushing these amendments to a vote today, but we have to recognise that there is a risk that there could be a loophole. There is a risk that we are sending a message from this place that our focus is going to be all about the ins and outs of motivation, rather than on saying that, in 2018, consent and equality are what matters in our legislation and we will introduce legislation accordingly.

[Helen Whately (Faversham and Mid Kent) (Con)]

I rise to speak briefly on the question of motive, which we are all clearly thinking about. Although there is widespread support for the Bill, this is an important question on the detail.

I certainly feel that the weight of evidence we heard was on the side of victims, and victims arguing that motive should not matter. If someone were a victim of upskirting, whatever the reason for doing it, it would still feel awfully humiliating and degrading for that person. We have heard the concern that someone might argue in defence that it was just for a laugh or high jinks. I do not think any of us believe that that is appropriate, because it would be deeply humiliating, but there is a concern that that might be argued as a defence—even though, as my hon. Friend the Member for Cheltenham, who has expertise in the area, has said, it would be highly unlikely that that would be permissible as a defence as the intention would clearly be to humiliate somebody.

The weight of evidence has been in support of the principle that motive should not matter. We should just think about the other side. Who would give evidence on the other side of the argument? There are lots of people who are standing up for victims, and we heard very compelling cases from people who have been victims, including a very powerful one that we have been asked not to quote from.

There was only one witness who gave the other side of the story very strongly. Lisa Hallgarten from Brook said:

“It is interesting that we are going from lots of schools not even excluding a child who has been proven to be involved in sexual bullying or harassment to moving to prosecution. It would be good to think about the different steps that are appropriate at different ages for a child and different kinds of offence.”––[Official Report, Voyeurism (Offences) (No.2) Public Bill Committee, 10 July 2018; c. 32, Q73.]

What she brought to light is that we are going from nought to 60 here. The Government are absolutely doing the right thing and I have huge respect for the hon. Member for Bath for pushing this—we must urgently plug this loophole in the law—but there is a question of proportionality and of making sure that we do not unintentionally criminalise people. Being a criminal would have such a huge impact on lives—I think about teenagers. As I say, it is totally inappropriate to do this for a laugh, and the level of sexual harassment and bullying in schools concerns me. The Minister mentioned that 10-year-olds and upwards may be criminalised by the Bill, so we must be mindful of the need to get the balance right.

Many of us have an instinct to be campaigners. We stand up for the women of the world and we want to put an end to such horrendous, degrading offences, which technology has made possible—the law has not necessarily kept up with technology—but in this room we are not so much campaigners as legislators. We must be conscious of the enormous power of Government, which has certainly struck me since I became a Member of Parliament, and ensure that our decisions are proportionate.

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[Liz Saville Roberts]

Once again, I shall work with others to redraft and refine the amendment, in discussion with Members in the other place, with the intention of tabling it on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stella Creasy]

I beg to move amendment 6, in clause 1, page 2, line 13, at end insert—

“(4A) Where a court is considering for the purposes of sentencing the seriousness of an offence under this section, and either or both of the facts in subsection (4B) are true, the court—

(a) must treat the fact mentioned in subsection (4B) as an aggravating factor (that is to say, a factor that increases the seriousness of an offence), and

(b) must state in open court that the offence is so aggravated.

(4B) The facts referred to in subsection (4A) are—

(a) if, at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim having (or being presumed to have) a particular sex characteristic, or

(b) if the offence is motivated (wholly or partly) by hostility towards persons of who share a particular sex characteristic based on them sharing that characteristic.

(4C) For the purposes of subsection (4B), ‘sex characteristic’ means the protected characteristic of sex in section 11 of the Equality Act 2010.”

This amendment ensures that if the crime is motivated by misogyny then that will be considered by a court as an aggravating factor when considering the seriousness of the crime for the purposes of sentencing.

[The Chair]

With this it will be convenient to discuss new clause 1—Requirement to amend guidance—

‘The Director of Public Prosecutions shall ensure, within six months of this Act coming into force, that any guidance issued under section 37A of the Police and Criminal Evidence Act 1984 is amended to ensure such guidance specifies information to be provided to the Director of Public Prosecutions to assist with—

(a) the prosecution of an offence under this Act, and

(b) the identification of any aggravating factor to an offence under this Act.”

This new clause requires the Director of Public Prosecutions to ensure that guidance provided to the police is amended to require the police to provide information to assist with the prosecution of the offences under this Bill or the identification of any aggravating factors.

[Stella Creasy]

These proposals reflect the context in which we are trying to make legislation. Our conversation proves some of the challenges that we face, and today the national police chiefs are discussing this very issue. It is a simple truth that this country’s law now protects nine different characteristics, under the Equality Act 2010. However, that protection does not extend within our courts. Therefore, not only is there limited redress when people want to take on offences such as upskirting, but we cannot reflect where somebody’s protected characteristic was part of the offence in understanding how we challenge that offence and the message that we send. Currently, when aggravating factors are dealt with in sentencing—which is what the amendments relate to—there is a gap, which means protection is not offered in relation to somebody’s sex, although we offer that protection around somebody’s sexuality, racial background or religious background.

There is a simple, obvious conversation that we might have, which is, “Has somebody done this because, actually, they hate women and believe they have an entitlement to women? They believe that women are second-class citizens and that, therefore, it is their right to use film of them for entertainment.” That is not a new conversation in our society. Upskirting, and therefore the need for the Bill, reflects the fact that everyone now has a mobile phone in their pocket, but humiliating women, targeting women and treating women as pieces of meat for entertainment is a very old facet of our society.

These proposals recognise that if—superficially—we are legislating to deal with the symptoms of that attitude, we need to deal with the primary source. It is time, in 2018, for parity in the way we treat those protected characteristics—not just in the workplace, but in our court houses.

The proposals are about what we can do to tackle the cause of those problems and the fact that one woman in five in our society says she has been sexually harassed, and that upskirting is part of that. They build on the evidence we have from Nottingham that where misogyny is treated as a hate crime—that includes instances of upskirting—that has started to change the experience of victims when they report these crimes, and indeed the mindset of the police and the CPS in dealing with them.

That goes back to the question that the hon. Member for Cheltenham asked me. He seemed surprised that I would query that experience, but the honest truth is that for most women the experience of trying to report sexual harassment and of trying to say, “My body is not here to entertain you; it is here for me,” is very hard. Day in, day out, women in this country face a barrage of harassment and abuse, and upskirting is just one element of that.

Our legislation and our way of dealing with those crimes have not moved with recognising the cause, so we treat the symptoms. We come up with individual offences. We do not send the message that the issue is equality under the law. While we have the protections in the Equality Act, which are mirrored in amendment 6, they do not make a difference in court.

Some people will tell us, and I want to be clear that this is about sentencing when somebody has been proven to have done such a thing, that the courts could take account of them, but if somebody is targeting women—it does not have to be ethnic minority women, because then we could use the racially aggravated offence—we need to say that that is unacceptable in 2018.

In the same way, women who try to report harassment or upskirting have faced an uphill battle with the police, and that has come across in the evidence. We do not yet see hate against women as something that we have to say is on a par with racial hate and religious hate, so when women come forward to report such crimes, very often they get dismissed. Indeed, in some of the testimony, people talked about the police saying, “I’ll just delete it. It’s not that big a deal.” I can tell the Committee it is a big deal while we live in a society where we do not treat women and men equally, and we do not treat them equally under the law.

I hope that, today, the national police chiefs will look at the evidence from Nottingham and recognise that recording street harassment, including upskirting, as a form of hate crime and using that to drive how they identify where it happens, whether there are particular times that it happens and what that means for their policing priorities, will lead to a step change—not just as we have seen in Nottingham, but in every city, in every community. I am sure Members have all heard the stories about this happening.

I tabled these proposals to reflect the fact that this should happen after somebody has been found guilty. I recognised in the earlier amendments that the concept of consent should be the primary motivation as to whether somebody is found guilty of upskirting, and I also recognise the issue is not just about upskirting, but this is the legislation in front of us. As I have explained to the Minister, my purpose in tabling these proposals is to push these votes because we get so few opportunities to try to make legislation that really gets to the root cause of the problem. My fear is that even if we tackle upskirting, and even if new technology is created, the causes remain. The harassment, the inequality and the violence that women then face as a result will continue.

These proposals would do two things. First and foremost, they would put on par the ability of courts to take into account where there was evidence of hostility towards somebody as a result of their sex-protected characteristic. That is the legislation from the Equality Act. It is simply about equality. For Members who are not necessarily convinced on the argument about misogyny, this is simply about parity.

The new clause would encourage the police to do what I hope they will do today voluntarily: start collecting evidence for the purposes of being able to prosecute. The hon. Member for Cheltenham might argue that the courts might well be able to take into account harassment, but they cannot if there is no evidence and if the police have not built up a profile of, for example, the Dapper Laughs character—the person who has taken photos and encouraged people to take photos of women in compromising positions, not because they particularly find that sexually appealing, but because it is simply funny for them.

Why is that funny? Because it is about power. It is actually about the power to control and define what is important about that person by taking that photo. By taking away their mind, their voice or whatever they might say, and making it simply about their body, it is a power play and not sexual. But we would have no evidence for that because at the moment we do not systematically record this to enable us to say that that has been a particular offence.

I appreciate this element is new, and I understand people’s concerns about whether we should get into it in this Bill, but I say to the Minister that we have not had any opportunities and these debates have been around for some time. If she were to say to, “We are going to review this, because there is an anomaly here where we protect characteristics in other parts of legislation, but we do not protect characteristics in the court,” I would happily work with her and go away and look at this. I recognise these proposals might not be the right way to address the problem, but we cannot avoid this debate and this inequality any more, because it is upskirting this week, but it will be something else next week.

Misogyny is pervasive in our society and I would wager it is on the rise, because we live in a society where people think somehow we have equality. Every time I say that, all the men in the room look quizzical and all the woman roll their eyes, because we know how much further we have to go. These proposals highlight a simple point about this legislation, which is that it fits a symptom of a bigger challenge, and if we can target the bigger challenge, we can make real progress.

One of the frustrations for me as a Back Bencher is how few opportunities we get to make any real progress on issues such as this, so I am interested to hear what the Minister has to say. Has the Ministry of Justice been looking at these issues and the evidence from Nottingham on how treating misogyny as a hate crime has driven change in how issues such as upskirting are dealt with?

I am really interested to hear what the Minister thinks we can do, if we do not accept these proposals, to make it explicit that, if somebody targets women in this way and shows that hostility, the courts should be able to take that into consideration. There should be a requirement to have the evidence to be able to make that case.

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[Lucy Frazer]

The hon. Member for Walthamstow has campaigned hard on a number of issues, including this one. I am grateful to her for her interesting and thoughtful speech and for giving us the opportunity to discuss these issues.

Upskirting is a terrible crime and an horrific invasion of privacy for those affected, and it is right that offenders are appropriately punished. Creating a specific upskirting offence sends a clear message to potential perpetrators that such behaviour is serious and will not be tolerated. The offence carries a maximum sentence of two years’ imprisonment, which is a serious penalty. It is in line with the sentence for racially aggravated assault, assaulting a police constable while resisting arrest and other sexual offences, such as voyeurism and exposure. Additionally, the Bill will ensure that the most serious sexual offenders are subject to notification requirements, having been put on the sex offenders register. Those are common with sexual offences and assist the police with the management of sex offenders in the community.

Statutory aggravating factors do not usually apply to just one or two offences, as would be the effect of the amendment. Judges already take into account, on a factual basis in sentencing, the circumstances of the case. Creating an additional aggravating factor for this new offence would make it inconsistent with all other sexual offences. There is no rationale for the amendment to apply specifically to this offence alone.

Similarly, it would be wrong to suggest that patterns of offending would not be considered in sentencing. For example, if in addition to taking a photo the offender went on to share it with others, the additional harm caused would be taken into account in sentencing. If the offender took hundreds of images of women, rather than just one, the additional harm or potential harm caused would be linked directly to the seriousness of the offence and would be taken into account in sentencing. If the offender has been convicted of a similar or the same offence previously, or if a prior offence indicated intent or aggression on the basis of gender, it must be considered by the judge in determining the appropriate sentence.

In addition, the independent Sentencing Council already publishes guidelines, setting out the factors that magistrates and judges should consider in determining the seriousness of offending and the harm caused for the purposes of sentencing. An updated version of the guidelines is currently the subject of a public consultation.

[Stella Creasy]

Will the Minister talk us through the message she thinks we are sending? We have religiously and racially aggravated offences where we specifically say—not for individual cases, but as a matter of course—that it is a challenge where someone is motivated by hostility around someone’s race or religion. What message does she think that sends, and why does she not think we should send the same message about someone who is motivated by hostility towards a certain sex?

[Lucy Frazer]

The hon. Lady raises an interesting and broad issue. It is a conversation that we need to have and that it is good to have, but the question before us today is the legislation and the appropriateness of the measures we are putting forward in this Bill, which is about upskirting. It is a narrow issue. I recognise her frustration and desire to raise the issues she cares about in a broad sense in a narrow Bill, but as my hon. Friend the Member for Faversham and Mid Kent said earlier, as legislators—the Government, the Opposition and Parliament—we have an obligation to ensure that the legislation we are putting forward, debating and voting on is appropriate.

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[Stella Creasy]

I do not disagree with the Minister. I believe that misogyny as an aggravating factor could be ascribed to a number of offences. If she will forgive me, I will not take lessons from her about legislating. As an Opposition MP, it is not within my gift to timetable the legislation to be able to deal with these things. She said it is an interesting conversation, but will she commit to reviewing the anomaly we are pointing out with the amendments? Right now, we do not protect sex in the same way that we protect race and religion within sentencing. Through that review, the points that the hon. Member for Cheltenham and I are making could be addressed. Will she at least commit to that review? It would be welcome.

[Lucy Frazer]

The hon. Lady says she is a Back-Bench MP and so does not have the power or ability to change laws, but let us remember how this legislation came before the House. It was a private Member’s Bill brought forward by a Back-Bench MP. The Government have supported the Bill because it is the right Bill to take forward. It identifies a gap in the law, and we are bringing it forward.

I would also like to touch on the statutory guidance referred to in the hon. Lady’s new clause. It is important to ensure that the legislation is applied effectively by police and prosecutors so that this behaviour is tackled robustly and consistently. I should point out that we already have that in train. Following a request from the previous Lord Chancellor to the then Home Secretary and then Attorney General, work is under way to develop and update the guidance on upskirting, without the need for legislation to command us to do so.

We are committed to working together across the Government to ensure that the new offences and the existing law are used effectively to tackle upskirting. The Home Office is working with the College of Policing to develop police guidance on the powers that currently exist to tackle some cases of upskirting, including outraging public decency. The guidance will be further updated to capture the proposed changes to the law in the Bill. The guidance will be aimed at all frontline officers, control room staff and investigators and will be created in consultation with the National Police Chiefs’ Council and the CPS.

The previous Attorney General discussed this issue with the DPP, and they are clear that all cases involving upskirting need to be considered carefully. The CPS will ensure that guidance is updated to reflect the proposed new offences, as well as to raise awareness of existing offences.

[Stella Creasy]

I am going to push the Minister on the point about a review. It is wonderful to see a Back-Bench private Member’s Bill get Government attention. All of us recognise the circumstances in which that was made an imperative, but the reality is that the Government set the timetable for dealing with these issues. If she is serious that these are issues that the Home Office is updating guidance on, and that people are starting to look at this anomaly around misogyny versus other forms of hate crime, will she commit to a review? Will she commit to going away with her assistants and looking at these issues, and asking whether there is a case for change, such that she might bring forward legislation herself? Otherwise, these are warm words and, as the suffragettes taught us, it is deeds, not words, that matter.

[Lucy Frazer]

Just to clarify, the guidance I was talking about is the guidance in relation to upskirting—that is what is being updated. The Government always keep matters under review. We keep criminal law under review. I am sure that the Home Office, where matters affect it, also keeps issues under review. While I recognise the intent behind the amendments, I ask the hon. Lady not to press them.

[Stella Creasy]

It is interesting whether people put their money where their mouth is, and how we recognise when we can make progress. Too often, especially when it comes to women’s issues, the question is to do it at some other time. I am sorry to hear the Minister not committing to a review. I would happily have worked with her on that review and the evidence. I fear that the police chiefs will be ahead of her in committing to make the recording of misogyny as a hate crime something that the police do, which would be very welcome. I am also sorry that Labour Front Benchers are not with us on the importance of making progress where we can.

I have no desire to split people on this, but I think there is support for it. I put the Minister on notice, however, that it will come back on Report. I also tell my Front Benchers that it will come back on Report, and I hope that they will be more positive.

The other thing I am worried about is that on a Bill about controlling women, it appears that some people have been told that amendments in Committee delay things. That is clearly not the case and we would not want to send a message that we are trying to deal with the symptoms, rather than the cause—which is what misogyny is—and that we are going to control women and restrict what they can change. It took 100 years for some women to get the vote. Let us not wait 100 years to make legislation that works for women. At this point, however, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Chair]

We have already had a thorough and very good debate on clause 1, so I am not inclined to have a stand part debate unless hon. Members are actively seeking one, which I do not believe they are.

Clause 1 ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

Bill to be reported, without amendment.

Voyeurism (Offences) (No. 2) Bill

Stella Creasy Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 5th September 2018 Commons Chamber

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

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

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

With this it will be convenient to discuss the following:

Amendment 1, in clause 1,  page 1, line 9, leave out

“for a purpose mentioned in subsection (3))”.

Amendment 2, page 2, line 1, leave out paragraph (c).

Amendment 3, page 2, line 6, leave out subsection (3).

As drafted the Bill potentially does not outlaw “upskirting” in certain cases such as for purely financial motives; or where the motivation is “group bonding” where the identity of the victim is irrelevant. This amendment makes all “upskirting” an offence.

Amendment 5, page 2, line 8, at end insert—

“(3A) It is an offence for a person (A) to disclose an image of another person (B) recorded during the commission of an offence under subsection (2) if the disclosure is made without B’s consent.

(3B) It is a defence for a person (A) charged with an offence under subsection (3A) to prove—

(a) that disclosure of the image was necessary for the purposes of preventing or detecting crime, or

(b) that A did not disclose the image with the intent of disclosing an image of another person’s genitals, buttocks or underwear.”

As the Bill is currently drafted it would be an offence to take an upskirting picture but not necessarily an offence for it to be distributed (existing “intimate image” legislation does not outlaw the distribution in all cases). This amendment makes it an offence to distribute non-consensual “upskirting” images.

Amendment 7, page 2, line 13, at end insert—

“(4A) Where a court is considering for the purposes of sentencing the seriousness of an offence under this section, and either or both of the facts in subsection (4B) are true, the court—

(a) must treat any fact mentioned in subsection (4B) as an aggravating factor (that is to say, a factor that increases the seriousness of an offence), and

(b) must state in open court that the offence is so aggravated.

(4B) The facts referred to in subsection (4A) are that—

(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on the victim having (or being presumed to have) a particular sex characteristic, or

(b) the offence was motivated (wholly or partly) by hostility towards persons of who share a particular sex characteristic, based on them sharing that characteristic.

(4C) For the purposes of subsection (4B), “sex characteristic” means the protected characteristic of sex in section 11 of the Equality Act 2010.

(4D) The Secretary of State shall, within twelve months of Royal Assent being given to this Act, request that the Law Commission review the provisions of subsections (4A) to (4C).”

This amendment ensures that if the crime is motivated by misogyny then that will be considered by a court as an aggravating factor when considering the seriousness of the crime for the purposes of sentencing.

Amendment 4, page 2, line 27, leave out

“mentioned in section 67A(3)(a) (sexual gratification)” and insert “of obtaining sexual gratification”.

Amendment 6, page 2, line 29, leave out from “the” to end of line 40 and insert

“offender was aged 18 years or older at the time of the offence”.

This amendment makes the offence notifiable in all cases when the offence is committed by a person aged 18 or over and for sexual gratification.

[Stella Creasy]

I want to put on record my tremendous respect for the very hard work done by Gina Martin to get this legislation before Parliament and by the hon. Member for Bath (Wera Hobhouse). It is a testament to the power of a good argument whose time has come. All these women are right that we should not wait around for this legislation, but we should make sure that it works.

I also want to put on record my support for the work that the right hon. Member for Basingstoke (Mrs Miller) has done, and for her amendments and the case she is making. I will be voting for the Bill and supporting it wholeheartedly, but I will also be supporting all efforts to improve it, because I do not believe that those two things are incompatible. We should never let the perfect be the enemy of the good. We should recognise that legislation with holes in it will inevitably return to us. It is in that spirit that I have tabled my new clause and amendment, which are about the context in which this crime takes place, and I am proud to see the support for them from across the House.

Let me be very clear that treating misogyny as something we should tackle is not about flirting. It is not about banter. It is not about telling all men that they are rapists. It is not even about new crimes. We cannot apply a hate crime tariff to something that is not already a hate crime. It is about something that has become so widespread that we treat it as a fact of life—but only for 51% of our population.

Across the UK, a huge majority—85%—of young women and nearly half of all women report experiencing sexual harassment in public places. Only one in 10 of them have ever reported receiving help after such incidents. Without recognising the role of misogyny in the day-to-day experiences of women in our society, our legal and criminal justice system masks the true extent of the hostility that exists against gender. This is not about criminalising wolf-whistling or flirting. It is about recognising existing crimes that are motivated by hostility towards somebody because of their gender, as well as recognising what they are—hate crimes.

Although women have protection in their workplaces under equality legislation, as soon as they step out of the door on to our streets, they are not protected. If somebody targets people on the basis of their faith or religion, they can receive a tougher sentence for their behaviour under the Criminal Justice Act 2003. Somebody who repeatedly targets women in the same way faces no such comparable sanction.

I hope that we all agree that our young women deserve better. It is particularly our young women who are reporting this as part and parcel of everyday life. One thousand women aged 14 to 21 were asked by Plan International about their experiences in public settings, whether on transport, walking on the street, just going to school or even going to work, with 66% saying they experienced unwanted sexual attention or sexual or physical contact in a public place. Some 40% said that they experienced verbal harassment and 15% said they had been touched, groped or grabbed at least once a month.

What does that mean in practice? It means the experiences of my own constituents, whom I asked about this issue. One woman was followed down the road by a man in a car demanding that she get in. She was then told that he was pranking her when she complained and called a racist for refusing to go with him. A mother wrote to me about her young daughter. Only last week, somebody had come up to her in a tube station, put his face right up in hers and shouted, “Sexy bitch, ” very aggressively. She had been sitting on a bus as men played videos of men masturbating, showing the phones to her to make sure she had seen them. As the mother said:

“This is not about trying to chat someone up—it’s a power play, exerting control and making women feel frightened and unsafe in their own streets.”

Girls and women are nervous about retaliation and worried about what might happen if they fight back. Women say that it is not about whether they are attractive, because violence is never far behind if they reject these advances.

This is about what makes a hate crime. It is not pleasant and funny; it is a way of keeping women and girls feeling on edge all the time and unable to move freely in their own areas. As the mother said, her children walk around “heads down, headphones in”, tensely and purposely avoiding eye contact or hassle from men. That is harassment—it is legally harassment. The women have said no, yet these men still persist. All of us worry what a man who behaves like that might go on to do if his behaviour is not addressed.

It is really important for us to be very clear that we are not talking about all men. Most men in this country do not behave like that towards women, and would be horrified to see that kind of behaviour happening to their mothers, daughters, wives, sisters or friends. In proposing my amendments, I want to defend the reputation of the men of this country. This is not about their behaviour; it is about some men’s behaviour—enough men’s behaviour to make women’s lives difficult, and enough men’s behaviour to mean that women experience hatred.

[Anna Soubry (Broxtowe) (Con)]

I am listening with great care, as ever, to the case that the hon. Lady is making, and I have some sympathy with it. My problem—will she help me with this?—is that I will be really troubled if we see all this offending as offences of hate against women, because much of it is genuinely in the category of sexual offending, which is often a deeper problem that must absolutely be stopped, prosecuted and so on, and sometimes it is harassment. I do not support the hon. Lady’s amendments; I think that we need to know more about this. Although my own view is that this absolutely needs to go to the Law Commission, I do not care where it goes, but it needs proper and full exploration so that we get this right. I am sure that she is right that some of the behaviour is misogynistic, but not all of it is.

[Stella Creasy]

As ever, I agree with much of what the right hon. Lady says. I think we need to say that the bigger thing she is talking about is misogyny. There are men out there who are hostile towards women and act accordingly. As a result, 51% of our population experiences harassment and a particular type of crime. At the moment, we cannot name, recognise and differentiate it, and therefore say, as we do with racially or religiously targeted hatred, that there is a premium on it. That is what the amendments would achieve.

This is also about what drives police behaviour, because if something is a crime, the evidence about it of course needs to be gathered. I have to admit to my honest frustration, as the first female MP for Walthamstow, where a number of people have tried to report their experience. Let me give the Minister some examples of the things we are talking about—the responses the women I have mentioned got back when they reported these crimes. In particular, in response to the woman followed down the street by a man demanding that she get into his car and threatening her with his behaviour when she tried to say no, the police said that the

“behaviour is only threatening, abusive, or insulting if the person…intended it to be so, or if he was aware…that it was so. The comments about his believing it to be a prank and being blown out of proportion would make that difficult to achieve.”

Let us think about that for a moment: the experience of the victim of this behaviour—their fear, their terror—means nothing because the man just said, “I was kidding”. We would not allow that for any other form of crime, so why do we allow it when it comes to men who harass women?

[Alex Chalk (Cheltenham) (Con)]

rose—

[Stella Creasy]

I will happily give way to my colleague from the Bill Committee.

[Alex Chalk]

As always, the hon. Lady makes a powerful point, but just because a defendant or suspect alleges that that was in their mind and therefore has a defence, it does not mean a tribunal of fact—magistrates or a jury—will believe it. Very often they say, “What a load of old nonsense. We’re going to convict you.” Does she agree?

[Stella Creasy]

I hesitate to say that the hon. Gentleman was not listening to what I said, but this was what the police said. Such a case will never get to a point at which a jury or somebody looks at the evidence base because we do not have a commitment to recording and recognising misogyny. Such a commitment would mean that the police would record and recognise it in the same way as racial or religious hatred. Before this case got to the test that the hon. Gentleman is setting, the police said that they would not investigate it further. The challenge facing women across this country is that we do not take this seriously: 66% of women have changed their behaviour to try to avoid street harassment as the police are not taking it seriously.

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

I am sure that the hon. Lady shares my concern that many crimes with a gendered aspect have rates of reporting and of final prosecution that are so low. We need to look at all the reasons for that.

[Stella Creasy]

I completely agree. This is the point about changing the mindset. Let me reassure the hon. Member for Cheltenham (Alex Chalk) that where police forces, particularly in Nottingham, have started to record misogyny as a hate crime—this is not a new idea—it is transforming the experience of women not just when it comes to street harassment, but when it comes to violence against women in total.

[Anna Soubry]

Will the hon. Lady give way?

[Sir Mike Penning (Hemel Hempstead) (Con)]

Will the hon. Lady give way?

[Stella Creasy]

I will happily give way to a Nottingham MP and then to the right hon. Gentleman, but then I really must make some progress, because I am conscious that other Members want to speak.

[Anna Soubry]

I rise purely to put on record that that has been done by Nottinghamshire police. I think it is the first force to do so, and we believe that the evidence is showing that it is having exactly the right effect on the police, in that they are taking this seriously and seeing it as an offence.

[Stella Creasy]

I desperately apologise to the people of Nottinghamshire for forgetting the “Shire”—I am not a fan of “The Lord of the Rings”. I hope the right hon. Lady will forgive me.

[Sir Mike Penning]

As a former Minister for Policing and Criminal Justice, I stress that just because the police were not willing to take the matter forward does not mean that an offence has not taken place. This will be driven forward by guidance to the police, particularly from the College of Policing, and by the evidence about what is happening in Nottinghamshire. The offence is there, whether or not we change the wording of the Bill today. Trying to force someone into a car is an offence, and the police should take it seriously.

[Stella Creasy]

I understand the point that my colleague is making, but women in this country have suffered from this chicken-and-egg syndrome for too long. The idea is that because the offence exists, somehow it will be taken seriously, but the bitter reality of women’s experience shows that that is not the case. New clause 1 is designed to amend the guidance that is given to the police in recognition of that fact. The existence of specific offences has driven change, as amendment 7 is designed to do. I do not disagree with my colleague, but unless we get the proposed measure in the legislation, the way in which the police deal with the problem will not change quickly enough to give the women of today the freedom to walk on the streets, as he does, without being frightened.

[Sarah Champion (Rotherham) (Lab)]

My hon. Friend will know that one reason why hate crime legislation is so powerful is that the emphasis is on the victim and how they perceive the crime. If misogyny was a hate crime, the police response to the examples that my hon. Friend has given would automatically not be permissible. Power is shifted to the victim.

[Stella Creasy]

As ever, my hon. Friend is on the money about the importance of a victim-centred approach. We know from Nottingham—[Interruption.] I do apologise; I meant Nottinghamshire—sorry, Frodo. We know from those examples that recognition of the multiple kinds of intersectional hostility that women may face has been a powerfully positive experience, particularly for women from black and ethnic minority backgrounds.

Internationally, this is not a new idea. Spain, Croatia, Sweden, Estonia, Italy, Belgium and France all recognise gender and misogyny as a basis for hate crime. We are talking about replicating our current model for racial and religious hatred, and saying that we should be able to recognise similar hostility in the sentencing of particular crimes. We should be able to recognise the hate as it is.

There is already a framework that Ministers can use. The Crown Prosecution Service and the police already define cases involving hostility as

“any…offence that is perceived by the victim or any other person to be motivated by hostility or prejudice.”

The CPS does not have a legal definition of hostility; it uses the everyday understanding of the word. We all understand and recognise misogyny when we talk about ill will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike. We seek to echo existing protections and to put the protections that we offer someone for their religious or ethnic background in a position of parity with those that we offer them for their sex background.

I accept that amendment 7 is not a perfect amendment because it covers only upskirting, but upskirting is a classic example of an offence that happens within the context of misogyny. It is motivated by misogyny.

[Alex Chalk]

rose—

[Stella Creasy]

I will happily give way to the hon. Gentleman because I know he feels very strongly about this.

[Alex Chalk]

The hon. Lady is making a powerful point, but she has identified something that she is right to concede is a weakness. It would be very odd, would it not, if misogyny could be applied to the offence of upskirting but not to rape, sexual assault or revenge porn. Does she therefore agree that a solution might be to get the Law Commission to look at the matter in a more holistic way?

[Stella Creasy]

It is almost as though the hon. Gentleman read my mind—he is right. The data shows us that 15% of young girls say that they are being groped, and there might be somebody behind that and we want to record where it is happening. Clearly, this is not just about how people use mobile phones in the modern world. It is about the hatred towards women that exists among a small group of men in our society, and the damage that that is doing to our society as a whole.

I have said clearly that we would not press the amendments if we could have a meaningful and properly funded Law Commission review into all hate crime, including misogyny, looking at both existing and new legislation. I do not think that that is a lot to ask. I know that the Law Commission is open to looking at the matter and that it recognises the importance of new legislation. We required new legislation to extend such protections to disability and transgender identity.

[Victoria Prentis (Banbury) (Con)]

In the interim, while we wait for a wider review of the law on hate crime generally, would it be helpful for police guidance to reflect the points that the hon. Lady is quite rightly raising, in the way that it does on sexting, for example?

[Stella Creasy]

Absolutely. I would love it if all police forces, including the Metropolitan police—I know that the Mayor of London is looking into this issue—could learn from Nottinghamshire police and the other four forces that are acting, but I also recognise that the police are asking Parliament to offer guidance on these issues, and that is what we can do today. If we change the law and offer women new protections from hatred, we will send a clear message to women that they can report these crimes, and a clear message to the police that they should not only record them, but do something about them.

I am pleased that the Law Commission is open to reviewing this issue, and I am pleased to hear from those who work with people who deal with hate crime on a daily basis. The proposal in the new clause has the support of Refuge; the Southall Black Sisters; Stonewall; Citizens UK, which has been doing fantastic work campaigning on this issue in Nottinghamshire; the Fawcett Society; Tell MAMA; Dimensions, which works with people with disabilities; Solace Women’s Aid; and Respond, which works with children and adults with learning disabilities. There is a whole panoply of people who recognise that hate is holding our society back and that it is right that we make sure that that does not happen.

Right now, we say that if a woman is targeted in her workplace, we know who is wrong, but as soon as she steps outside, we do not know what happens. New clause 1 is about that gap in our legislation.

I know that some people—not just on Twitter—are going to ask about men. The “What about the men?”—the misandry point. The Law Commission review could look into all that, but let us be clear that it is not men who are trying to report this crime on a regular basis. It is not men who are experiencing this regularly. It is not men who are being targeted in this way. It is not men who we say are worthy of protection at work, but not if they dare to go out at night. Let us engage in all the whataboutery that we want to, but do not tell me that women’s experiences do not matter. When people argue against these proposals, they are saying that, on that basis, the existing protected characteristics are not that important—that there is a limit to how far they want equality to go.

I have had that in some of the comments I have received about this issue. A gentleman wrote to me today to say:

“Obviously this is a law to prevent perverts’ fantasies. Yet as a society why is it we have allowed women and even our daughters and granddaughters to dress even more suggestively than was the case generations ago that must be giving rise to fantasies…out there?”

Under your eye, Sir, if you have been watching. May you be blessed.

Another man wrote to me to say that I am abusing my position

“to push for Misandry to be juxtaposed with her Misogyny.”

and to

“target the bloke-hating females of the species”

because I am a

“a nasty feminist ‘I’m Offended’ snowflake whinger hell bent on emasculating male society.”

The vast majority of men in this Chamber and in our society do not want to be associated with that bile, but they do want to make sure that people are safe, and that is what this is really all about. It is not about flirting or banter. I have yet to meet a couple who have said that they met because he followed her down the street demanding that she get in the car with him. It is about how we make this a country where everybody is free.

I am really done with all the whataboutery and all the opposition to this. It is not really a lot to ask for, is it? We would like to be able to walk around this country free from fear. We would like those who target women in a hostile way to be held to account. We would like the harassment to stop.

I am fed up with being told that there have been private briefings saying that somehow this issue is too controversial—too difficult—and that we are going to delay legislation. This is 2018. This is not Gilead. It is not about all men, but it is about some men. There is only one person who can stop this legislation, and that is the gentleman sitting opposite—the Secretary of State—but I know that he does not want to do that. I know that he can hear a reasonable request to review all hate crime, and to look at new and existing legislation to get it right for the 21st century so that we can protect everyone from being targeted just for being who they are. I will tell him, though, that we will not keep waiting. We will not keep being frightened. We will not keep being hassled for going about our daily lives. Please, do not tell women to put up with this because you find it difficult. Let us get on and make 21st century laws to stop it.

[Mrs Maria Miller (Basingstoke) (Con)]

My hon. Friend the Member for Christchurch (Sir Christopher Chope) was right. In objecting, he has given Parliament the proper opportunity to scrutinise the Bill. If he had not objected, the Bill would have gone through on the nod and the amendments we are debating today would not have been possible. The failings of the private Members’ Bill procedures are not for discussion on Report. No one, least of all me, is denying the need to address swiftly the wrongdoing of upskirting, but that should not be at the expense of proper scrutiny. We have to wake up to the need to jettison antiquated, opaque procedures in this place, procedures that in this instance I believe have left a respected and longstanding hon. Member, my friend and fellow Wessex Member of Parliament, open to hostile attack for acting to ensure that this new law is subject to appropriate levels of scrutiny.

As we have just heard from the hon. Member for Walthamstow (Stella Creasy), the issues we are discussing today on upskirting are a part of far broader issues to do with image-based abuse and sexual harassment in public places. It is right that we address upskirting, but it is also right that we reject the piecemeal approach for dealing with these issues. The Women and Equalities Committee is looking at the issue of sexual harassment in public places. The hon. Member for Rotherham (Sarah Champion) is in her place. We have taken copious amounts of evidence on this issue and we will be issuing a report in autumn dealing with many of the issues that the hon. Member for Walthamstow has raised today. The Government need a cohesive strategy in this area. I believe this piecemeal approach is not the right way forward. Indeed, if we had a cohesive strategy, we would not need this Bill.

In wanting to move so swiftly to change the law, the Government are right to use the existing Scottish legislation as its base. However, the Scottish Act was passed eight years ago, and in that time the Scottish Government have themselves recognised significant shortcomings in their own law and made changes, changes that are not reflected in the Bill before us today. The amendments tabled in my name and in the names of right hon. and hon. Members from across the Conservative party, the Liberal party, Plaid Cymru, the Scottish National party and Labour seek to rectify those shortcomings and tackle the emerging problems that we are seeing with the Scottish legislation: very, very low levels of prosecutions and convictions, with legislation that has now been in place for eight years.

Amendment 3 makes all upskirting a crime. At the moment, the Bill is very narrowly defined. There should never be an instance when it is acceptable to take a photo up anyone’s skirt without their consent. The issue should be the lack of consent, not the motivation of the perpetrator. The perpetrator’s intentions can be difficult for the police to prove. Is it to humiliate? Is it to alarm? Is it to distress the victim? They may never know or care who the victim is. The picture may be shared for a laugh, or taken and sold and then sold on again. How do the police track the buyers and sellers of these photographs? The Bill explicitly does not outlaw upskirting per se; it outlaws it in certain circumstances.

--- Later in debate ---

Isabel Hardman has recently written a book about the need for Members of Parliament to concentrate on their key role of scrutinising, rather than doing other things, and if we are to scrutinise these Bills, we need to get down to looking at the detail, which is what my right hon. Friend has done. It is a pity that, because she expressed to the Government Whips some differences with the Government on the content of the Bill—which obviously I had done, too—despite her position as the Chairman of the Women and Equalities Committee, she was immediately deemed not qualified to serve on the Second Reading Committee. The Selection Committee had obviously decided that there were better stooges around than my right hon. Friend, or me for that matter. If we are to make the system of scrutiny work, we must free up the selection system under the Selection Committee. I note that there is a motion on the Order Paper for later today, and perhaps the Government’s mind might be concentrated a bit if there were an objection to it.

[Stella Creasy]

I feel the need to stand up for the members of the Committee, having been a member of it myself, and to reflect that the discussions we had in Committee about treating misogyny as a hate crime did not receive Front-Bench support. That made me, as a Back-Bench Member scrutinising the Bill, reflect on what more could be done to win that argument. It is not always a good thing to be told no.

[Sir Christopher Chope]

I have nothing but praise for the hon. Lady. Fortunately, the Opposition Whips, who are represented on the Selection Committee, obviously did not think it was necessary to allow the Bill to proceed without any amendment. It is worth putting on record that, during that Committee debate, the official Opposition spokesman said:

“The Opposition support the Bill completely, and will not propose any amendments.”––[Official Report, Second Reading Committee, 2 July 2018; c. 17.]

At that stage, the Opposition were blindly supporting the Bill, rather than being prepared to examine exactly how it might be improved.

--- Later in debate ---

[Lucy Frazer]

I will continue for the moment. If I have time, I will happily take further interventions.

The reason the Government do not favour widening the scope of the purposes is that a blanket liability risks criminalising those whom we do not want to criminalise. The amendments could bring in serious unintended consequences and risk bringing too many people within the scope of criminal law. As my right hon. Friend the Member for Basingstoke recognised, the amendments risk criminalising young children who are over the age of liability, which is 10, but who do not realise the impact of their actions and mean no harm when they carry out the act.

There is one further critical issue, which my hon. Friend the Member for Cheltenham (Alex Chalk) mentioned. If all the purposes were removed by amendments 1 to 4, there would be no need for the prosecution to bring forward evidence of the perpetrator’s motivation of sexual gratification. That could mean that those who posed a threat to the public were not put on the sexual offenders register, because the issue had not been determined in court.

My hon. Friend the Member for Christchurch and my right hon. Friend the Member for Basingstoke highlighted the small number of prosecutions that have been brought, and highlighted the fact that we anticipate only a few more in the impact assessment. The reason for that, as paragraph 29 of the explanatory memorandum makes clear, is that there are already laws that catch this activity. What the impact assessment identifies are the new offences that we think will be caught by filling this narrow gap.

The hon. Member for Rotherham rightly stated that we need to change the culture, not lock up more offenders, and education is an important part of that. We recognise, however, the value of the points that my right hon. Friend the Member for Basingstoke and others made, and therefore I am happy to confirm that the Government will review the operation of these offences after two years of their coming into force. This will include working with the police and the CPS and reviewing cases so far brought.

I will briefly deal with sharing. Amendment 5 would create a further offence of disclosing and sharing an upskirt image. We in the Department share the intention and desire to ensure that the sharing of images is robustly dealt with. The best way to do that, however, is not by way of an amendment to the Bill. Legislating in one area alone is not the right way forward. The Government are already looking at this wider issue. The Department for Digital, Culture, Media and Sport has already asked the Law Commission to look into online abuse.

The first stage of that review, which is an analysis of the existing law, will be completed in October, and I am pleased to confirm that following the completion of this first phase, the Ministry of Justice, working with DCMS, will ask the Law Commission to take forward a more detailed review of the law around the taking and sharing of non-consensual intimate images. This will build on the Law Commission’s review of online abuse and allow the Government to consider how to address this issue more widely, rather than just for upskirting images. As my right hon. Friend the Member for Basingstoke said, it is not appropriate to legislate in a piecemeal way.

My right hon. Friend also mentioned the Scottish changes in 2016. My understanding of them is that they were not specific to upskirting but created a separate offence in relation to the distribution of intimate images in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. This is the broader approach that we in government want to continue.

In his amendments, my hon. Friend the Member for Christchurch suggests that offenders under the age of 18 not be put on the sex offenders register at all. We are concerned that there will be offenders under the age of 18 who need to be on the register, and only if we put them on the register will we protect victims who need protection now and in the future. He also suggests that we need to toughen up and put everyone on it who is over 18. That will diminish the effect of the register and not allow police resources to be concentrated. For those reasons, and in the light of the fact that we are offering a review of legislation after two years and a review of offences more widely, I hope that hon. Members will not press their amendments.

[Stella Creasy]

I thank the Minister for listening. For the first time, we are now saying as a country that misogyny is not a part of life or something that should be tolerated but something we are going to tackle. Her commitment to the Law Commission review of all forms of hate crime, including misogyny, and the need for new and existing resources to fund it, is really welcome and a positive reflection of what this place can achieve. We have just sent a message to every young woman in this country that we are on their side. On that basis, I am very happy to withdraw the amendment. I look forward to working with the Minister and the Law Commission review in taking this forward.

Clause, by leave, withdrawn.

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

I remind the House that before Second Reading, as required by the Standing Order, the entire Bill was certified as relating exclusively to England and Wales and within legislative competence. The Bill has not been amended since then. Copies of the certificate are available in the Vote Office and on the parliamentary website.

Under Standing Order No. 83M, a consent motion is required for the Bill to proceed. Copies of the motion are now available Does the Minister intend to move the consent motion?