Police, Crime, Sentencing and Courts Bill

Stella Creasy Excerpts

Consideration of Lords amendments
Monday 28th February 2022 Commons Chamber

[Kit Malthouse]

I acknowledge some of the problems with the amendment that the hon. and learned Lady sets out. I think it is Women’s Aid that rejected the amendment and said that it would do more harm than good on the basis that she outlined: it is not specific about targeting crimes against women in particular.

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

I would like to correct the record, because that is not what Women’s Aid has said.

The Minister highlighted the issue of a carve-out as being the reason why the Government do not believe in adding sex or gender to ensure that any perpetrator who attacks a woman or someone they believe to be a woman can be captured by the offences in question. I think we would all agree that is important, but he argues that the carve-out is not the right thing to do. Does he also make the same argument then that it is tokenistic to carve out offences based on racial or religious hatred, which we already do in our legislation? We have carve-outs. Stephen Lawrence’s killers were not prosecuted for a hate crime, but we recognise the hate behind it. Why does he think that women do not deserve the same protection?

[Kit Malthouse]

I had hoped to avoid the approach that the hon. Lady takes. Of course we believe that women deserve strong protection—we absolutely do—but all I can say to the hon. Lady is that the Law Commission, in looking at the evidence over a three-year period and consulting widely across the sector and society more generally, found that the additional complexity was likely to make it harder to prosecute these crimes. I ask her to reflect on the fact that in proceedings in this House, she put her name to an amendment compelling the Government to adopt the Law Commission’s proposals in full. I am not sure why she has now reversed that position, but I hope she appreciates that we are as dedicated to and interested in the safety of women as she is.

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[Kit Malthouse]

The Law Commission report is unequivocal about the dangers that it may present. The hon. Member for Walthamstow (Stella Creasy) is shaking her head, but the report’s conclusion says:

“We recommend that sex or gender should not be added as a protected characteristic for the purposes of aggravated offences and enhanced sentencing.”

That is the specific recommendation in the report. The Law Commission has much greater and more skilled legal minds than mine, and other groups do not support the amendment.

I realise that the issue is of great importance to hon. Members, and we must all reflect on the feelings of insecurity that women and girls feel in the public realm, but we are being told by the experts—by the Law Commission—that the measure is likely to do more damage than good. That is not necessarily a substitute for us not doing anything and I have outlined what more we may do, but the point is that we have to listen to the experts. To be honest, I am quite surprised that a party led by a former Director of Public Prosecutions would seek to ignore the Law Commission.

[Stella Creasy]

I would like to correct the record, because the Minister seemed to suggest that I was against what the Law Commission has said. He is asking all hon. Members whether they have read it so it is worth checking whether he has, because it says that there is a case for there being offences motivated by misogyny—for example, stirring up incitement or public sexual harassment. Those of us who have constituents such as Muslim women who get attacked in the street for being both Muslim and a woman recognise that misogyny is about not just sex but power, so we need offences to tackle that.

Does the Minister recognise that if the Law Commission is saying that there are offences motivated by misogyny, the risk of not including it as an aggravating factor is that we could end up in a whack-a-mole situation? For example, we could end up saying, “In these cases of incitement, what is incitement? In these cases, what might be sexual harassment?” It would be simpler to include it and it would recognise what the police are telling us. I stress that the police are telling us that they want this data and they want the courts to back them. They want misogyny to be treated in the same way as racial or religious hatred, because they see it driving crimes on our streets. I am pleased to hear that he is concerned for women, but women have had concern for donkey’s years. What we now want is action.

[Kit Malthouse]

I can appreciate the hon. Lady’s requirement for action. As I say, action is what we are trying to put in place. To be clear, again, we are not saying that the fact that we are declining to make this Lords amendment means that we should not do anything. As I said to my right hon. and learned Friend the Member for South Swindon, there are further offences that we need to consider.

In fact, the Law Commission’s report went further and said that if we were to introduce that offence, it would complement other work on offences that may be coming forward, such as cyber-flashing, which my right hon. Friend the Member for Basingstoke (Mrs Miller) has raised several times in the House; rape threats; and intimate image abuse. There are several areas where we need to consider interlocking offences, and that work will take time beyond this Bill to get right. As my right hon. Friend the Member for Romsey and Southampton North urged us, we are committed to adopting both recommendations of the Law Commission, and that is exactly the work that we intend to do in the months to come.

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[Sarah Jones]

The aim of the amendment is to try to make misogyny a hate crime in whatever form it comes, and to be as inclusive as possible in that definition.

[Stella Creasy]

Does my hon. Friend agree that given that “gender” is defined in legislation—indeed, the Government rather helpfully defined it in their consultation document, so we have a definition of “gender”—it is therefore important that we focus on perpetrators? The point behind hate crime is that I could be a victim of antisemitic abuse whether I am Jewish or not. It is about the motivation of the perpetrator. By recognising that sex or gender can motivate hostility based on misogyny, we are ensuring that no perpetrator could have a defence where they demean a victim, and no perpetrator can avoid that hostility being reported because somebody wants to put them in the trans box rather than in the misogyny box. The amendment is inclusive, but it ensures that it protects women, whether they were born or become one, using definitions that already exist in law.

[Joanna Cherry]

rose—

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[Caroline Nokes]

My hon. Friend is absolutely right. It is in our schools that those calls are strongest, which means that young women in their school uniforms are being significantly impacted. They feel scared to walk home alone. They are given advice to stay to well-lit areas, to ensure that they walk in areas with CCTV and to be careful on public transport. Yet again, we are saying, “Girls, be careful,” and not, “Men, don’t do it.” That is why I feel so strongly about specific legislation on public sexual harassment that empowers women to point at behaviours and say, “That is a crime.”

[Stella Creasy]

I completely agree with everything that the right hon. Member said. It is frustrating as always that, yet again, we are asking women to think about how they keep themselves safe rather than thinking how we stop the perpetrators, let alone the focus being somehow on street lighting, as if these incidents happen only in certain places and spaces. She talks about public sexual harassment. One of the challenges, as the Law Commission admits—I have met and talked to the Law Commission about this—is that not all harassment motivated by misogyny is sexual. I go back to the Muslim women targeted to have their hijabs torn off and disabled women, who are targeted in particular. How can we expand our understanding of how misogyny is driving crimes if we think it is only about sex? Does she agree that we need to find a way to recognise that broader concept of harassment, abuse and incitement, as the Law Commission said should happen but did not come up with legislation?

[Caroline Nokes]

The hon. Lady makes an important and powerful point. It is imperative that we look at this issue not just in terms of sexual harassment. I apologise for detaining hon. Members a moment longer than I intended, but I want to highlight the case of a constituent who came to see me. She was 23-years-old and had a job in Waitrose pushing trolleys around the car park. She said, “I hate lunch time.” That seemed an odd comment to make, so I asked, “Is it particularly busy at lunch time?” She said, “No. It’s when the white van men turn up.” She told a tale of how, in the depths of winter, when wearing a beanie hat, a puffer coat and a mask—it was at the height of covid—a man walked up to her, put his hands either side of her face and said, “You’re too beautiful to be doing this job.” I have spoken to colleagues in this place who are eminent lawyers— they know much better than me what is criminal and what is not—and asked them, “Where’s the crime?” Not one of them could come up with an actual crime for that. The hon. Lady is therefore right: that was not sex-based; it was just harassment in the same way as we see people stood outside abortion clinics hurling abuse at people going to access those services. We must ensure that abuse directed at women on the grounds of their gender or sex is tackled, and tackled effectively.

The Women and Equalities Committee is about to do an enormous piece of work about the cultures that underpin this problem and hopes to come up with recommendations that the Government will listen to and act on. We want to see legislation that makes women feel safer because they can point at behaviours and say, “That is a specific crime,” that allows perpetrators to look at behaviours and think, “Actually, I shouldn’t do that—I might get in trouble,” and that allows the police and the Crown Prosecution Service to look at behaviours and think, “There’s the crime.”

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[Mrs Maria Miller (Basingstoke) (Con)]

I think, listening objectively to today’s debate, there is an enormous level of agreement on both sides of the House that there is a job of work to be done to protect women against abuse, and that there are different options for how we might achieve that. That is the point at debate: what we do, not whether we need to do something. That is really important to acknowledge. I thank my right hon. Friend the Minister for his opening explanation of the resistance particularly to amendment 72, and I commend my near neighbour in Hampshire, my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes), the Chair of the Women and Equalities Committee, for her excellent and impassioned speech on why we need to do more.

The Lords amendments show that more can be done. Lords amendments 13 and 57 show that the Government can continue to be pressed to do more on these important issues. I am glad to see that they are doing more to extend serious violence duties to include domestic abuse and sex offenders. Lords amendment 57 extending the time limit in the way that it does will significantly help. The real issue is, if we want to tackle the issue of sexual harassment and the abuse of women, how do we do that most effectively? I think Amendment 72 has been looked at in detail by the Law Commission, which has been looking at the issues since 2018. There is, I am afraid to say, widespread support for the Government’s thesis that this is not the right way to tackle the problem.

The Law Commission is very clear that there is demonstrable need for additional law when it comes to supporting and protecting women and girls, and that there is more than ample evidence of the harm that is done. Its real concern is how we tackle this in practice. We have to listen very carefully; otherwise, we risk undoing the good work that has been done. The need for additional law is not under debate; it is the form that that law takes. Sometimes we just have to take a moment, and I think that this is a case in point. We cannot just say, “Something must be done.” We have to ensure that we are doing the right thing. We have to accept the role of the Law Commission in helping us to make law that works in practice. It does not see misogyny being a hate crime as the way to solve the problem that has been so eloquently outlined by hon. Members on both sides of the House. Its concern is not because of a lack of understanding of the problem; it is whether the change that is being proposed will work in practice.

Although I listened very carefully to the interventions of the hon. Member for Walthamstow (Stella Creasy), it concerns me that the solution that is being put forward involves carve-outs for domestic violence and sexual offences, which could in a way suggest, or give people ammunition to say, that those issues are not as connected with misogyny as I am frankly sure that most Members of this House would agree that they are. The concern is not about being able to prove that a crime was motivated by hostility to gender—a point made by the CPS and Rape Crisis. In particular, Rape Crisis said that such an approach would make trials even more complex—an issue brought out by an hon. Member earlier. I also fear trial juries being asked to navigate questions around gender-based hate crime, which frankly we in this House find very difficult to navigate our minds around—all of this leaving people very confused.

I really hope that the Minister, although he may not be able to go much further today, can very shortly tell us much more about what he will be doing on issues that the Women and Equalities Committee has been looking at for more than five years. We did Select Committee reports on sexual harassment in schools back in 2015, in universities, in public spaces, online and in the workplace. This is not a new issue; this has been an issue looked at not only by the Law Commission but by the Select Committee for well over six or seven years. It would be disappointing if the Government were coming back now to say that they will be taking further the idea of public sexual harassment, as if it were a new notion that had just emerged from the ether. It is something that many of us have been looking at, and calling for it to be tackled more effectively, for a number of years.

Perhaps my right hon. Friend the Minister can, when he sums up, indicate in a little more detail how he intends to take forward what I think will be a sensible way of trying to tackle the issue that has been so eloquently talked about in today’s debate. Adding sex or gender into hate crime law may not be the way to tackle things, but there is extensive evidence of how the harm disproportionately impacts women, especially online. The Government have a VAWG strategy, and today they are launching a communications strategy, but too many of us still see deficits in the law when it comes to sexual harassment. There needs to be more focus on prevention by demonstrating across the board that sexual harassment towards women, in the same way that my right hon. Friend the Member for Romsey and Southampton North talked about, is a crime that is utterly unacceptable whenever it occurs, at any stage of our lives. Until we get to that stage, all of us will be calling on the Government to take more action.

[Stella Creasy]

I will start, because I have had an unintended hiatus from being in the Chamber as a result of having to breastfeed a child, by welcoming the Government’s commitment to amendment 56. It is a cross-party amendment, and I pay tribute to Lord Pannick and Baroness Hayman for the work that they did in the House of Lords on it, my hon. Friend the Member for Manchester, Withington (Jeff Smith), who also led on it, and above all to Julia Cooper, who was a much braver woman than me. I experienced someone taking a photograph of me breastfeeding my child without my permission. She did too, but she challenged the person and went to the police. The police said that there was no protection for her. She started a petition. She took that voice and has turned it into this legislation. We should all be grateful for a woman like that, who stood up.

What Julia faced is what we are also here tonight to talk about on amendment 72. I certainly hope that the Minister, who has come to the debate rather late but I appreciate has come with a deep concern for women’s rights, has been talking to his colleague Lord Wolfson, whose argument against making it illegal to photograph without her consent a woman who was breastfeeding was that a man might be taking pornographic photographs of his wife on a beach and accidentally catch a woman breastfeeding in his camera lens, and that would be terrible. Of course, many of us think for some time about that husband’s discussions with his wife before we think that that is a realistic example.

Time and again on the Bill, we are told that, when it comes to women’s safety, matters are complex. It is put in the “too difficult” box. The trouble for Ministers tonight is that next week will be the anniversary of the murder of Sarah Everard. Since Sarah was murdered, we have had more deaths: the murders of Bibaa and Nicole, and of Sabina. In my constituency, I hear countless stories of violence against women. It is the fierce urgency of now that drives this piece of work. I am sure that the Minister is aware, because he has been asking us repeatedly whether we have read the report of the Law Commission, of its provenance. I was on the upskirting Bill, and the Government agreed to commit to the recommendation of the Law Commission as a result of an amendment that we tabled then, recognising that there were crimes driven by misogyny, and that that was putting women at risk.

It was time to turn the debate around—to stop telling women to keep themselves safe and providing money for lighting, because somehow it is about where they go running, and to start saying that this is about the perpetrators, and holding them to account for what they do. The challenge before the Minister is Lords amendment 72, which, again, is another cross-party effort. I pay tribute to Baroness Newlove, who is a goddess in my mind for her determination to speak up for victims, and Lord Russell, as well as my colleagues on the Government Benches who have been working to look at these issues. We are listening to the police. We are listening to the quarter of police forces that already record sex or gender when it motivates crimes, to help them catch the perpetrators. They recognise that it helps. It helps them to develop the patterns of behaviour.

I gently say to the Minister that when he says the problem is that women do not report, he needs to ask himself, as the policing Minister, not why women are not reporting, but why they do not feel they can come forward to report. It is not about the women; it is about the reporting. It is about the response they get. My colleague, the right hon. Member for Romsey and Southampton North (Caroline Nokes), is absolutely right when she says that everybody knows a victim and everybody probably knows a perpetrator. Many women will have experienced sexual harassment. They will have experienced abuse online, offline and in our daily lives to such an extent that it infuses what we do: the flinch when we come out of a tube station to make sure there is nobody behind us; carrying our keys in our hands; worrying about what our daughter is wearing; and hoping that our son is not one of those people who does it.

The truth for the Minister is that the police are telling us, “Actually, we have a clear policy that helps us to identify people early on.” He is right when he talks about patterns of escalation. Many perpetrators start with what people might think of as lower-level offences. I have to tell the Minister that I have always said I will stop campaigning on this issue when I go to the wedding where the bride gets up and says, “Well, he followed me down the street demanding I get in the back of the van because he wanted to grope me and I thought it was the most romantic thing ever.” It does not happen. What does happen is that that is the daily experience for women across the country and the truth is that the Bill does not offer anything to resolve that. It does not offer anything to back the police, when they say to us that they want to capture that data.

I understand the concern raised about the carve-out and I will come on to that specifically, but we should be very clear that the first thing the amendment would do is record all that data, including domestic abuse and rape, as misogynistic, because it would help to form a pattern. When we talk to the police in the areas where they are recording it, it is not, frankly, the catcalling that people are reporting. It is serious sexual assault, violence against women, rape and abuse, because they have the confidence that the police are going to recognise it for what it is, which is serious violence.

I also say to the Minister gently that he might want to correct the record, because the Law Commission did not look at this very proposal. This proposal is based on the Bertin amendment. The Bertin amendment carves out a definition of serious sexual violence which we did not have, so by its very definition the Law Commission could not have looked at it to consider whether or not it addresses that concern. It is not that we should not record data where crimes are misogynistically motivated, but how we deal with them in sentencing. Carving these offences out does not mean that they are not misogynistic; it means we ensure that the already pitiful sentencing regime does not go any lower.

There is something crucial in the amendment about how it works with the police and the courts, and what the police are telling us in the areas where they are doing this. I see Government Members who have police who are doing it. The police want the courts to back them. They are gathering the data and using it to track perpetrators, finding them early on in their offending careers before we get to the points that people are talking about in the press. They want the courts to back them, just as they back them when it comes to hatred of someone’s skin colour or their religion.

Twenty or 30 years ago, when I was a young woman—a long time ago—there was a culture where things were said on TV and things that people said that we would now rightly recognise as racist or as religious hatred. Hate crime legislation does not just target perpetrators, but cultures. Most of all it changes the culture within the police, because the police forces that are doing this are talking about the mindset change among their members. As a Member for a local community where women have been ignored by the Met police for years, I have to say that that mindset change is something we should all desperately want, so we can recognise the danger when somebody starts following women and how that might escalate. We have all seen it in those reporting histories.

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[Mrs Miller]

I am listening very closely to what the hon. Lady is saying, but the Law Commission was very clear in saying that this would make matters so much more complex, and it worries about how that would affect securing the sort of convictions that I know the hon. Lady and I want to see.

[Stella Creasy]

I hope the right hon. Member will understand what I am saying. The Law Commission did not look at this amendment, which has learned from the Bertin amendment. [Interruption.] She shakes her head, but the Bertin amendment, which sets out explicitly the offences we would carve out, did not exist during the time of its work. One argument the Law Commission made was with regard to the difficulty of carving those offences out. The amendment builds on where a carve-out can be made.

[Kit Malthouse]

rose—

[Stella Creasy]

I will happily give way to the Minister. I hope he is not going to tell me again to read the Law Commission review.

[Kit Malthouse]

This is an important issue and I am grateful to the hon. Lady, but I just wanted to point out to her that the Law Commission said in its consultation paper that it thought it might be possible to overcome the challenges involved in excluding certain violence against women and girls contexts and there would still be value in including sex or gender within hate crime laws for the remaining criminal contexts. It specifically considered the notion of carve-outs. However, following further reflection and analysis, and with the benefit of detailed and thoughtful consultation responses, it now believes that all the possible models to do so create more problems than they solve. So the Law Commission did look specifically at this model of carve-outs, and indeed it specifically considered the option of the full recognition of sex or gender in aggravated offences, with enhanced sentences on the same basis as for other recognised characteristics.

[Stella Creasy]

I am sorry, but the Minister is conflating two different things here. The Law Commission did not look at the Bertin amendment. What it looked at was whether one might inadvertently downgrade sentencing for rape or domestic abuse by including it within this hierarchy. That is why, for example, Rape Crisis was concerned about a generalist clause. I am sure the Minister has spoken to Rape Crisis since the Law Commission’s report was made. I certainly have. I talked to it about this amendment, and it has been much more positive about it. I hope, if the Minister is quoting Rape Crisis, that he will listen to it when it says that it recognises what is being tried here.

I am not here to say that the Lords amendment is perfect, but I am here to say the because there are other crimes that could be motivated by misogyny, which it is right to recognise within sentencing and to treat as serious—for example, exposure, cyber-flashing, assault or blackmail targeted at disabled women; we see a lot of that in the evidence base—that means that we should dismiss this entirely and say, “Well, we won’t do this at all,” is yet again to ask women to wait for something that will never come. That is the challenge we have here.

The Minister wants to say, “Let’s not politicise it.” I agree. I extend my hand to him to say let us work together to get this right, but let us recognise that misogyny is driving crimes and that the Law Commission has said that. Its arguments were technical ones about how to do the drafting, not about the principle. I hope that the Minister would acknowledge that, because he cannot both argue—

[Kit Malthouse]

I have said that specifically.

[Stella Creasy]

That is not what the Minister has said, but I am pleased to hear him say that—[Interruption.] Great. Wonderful—consensus is breaking out, but consensus will not deal with the fact that women right now are at risk and are being harmed. This proposal is helping to improve conviction rates and to track perpetrators in the areas where it is operating.

The Minister will be aware that an amendment to the Bill that became the Domestic Abuse Act 2021 was withdrawn in the other place because Ministers committed to making sure that all police forces would do the reporting, but they have not. We can agree that the reporting is necessary, but it is not sufficient to give the police the backing that they need or to say, “This is about street lighting”. We have to look at how we tackle violence against women and at why and how we could have a carve-out to make this work. That is essentially what an incitement offence would do—

[Kit Malthouse]

rose—

[Stella Creasy]

I will happily give way to the Minister; I can see him shaking his head and I am keen to hear his male voice about my experience of violence.

[Kit Malthouse]

I am sorry, but the hon. Lady seems determined to have a fight about this and I really do not want one. She keeps referring to street lighting, but that is one of a suite of things that we need to do generally in the public realm regarding safety. For clarity, I of course acknowledge that there are offences that are motivated by misogyny—I say that clearly, as I did in my opening speech—but this requires a number of approaches and solutions. We are merely saying that the evidence that the Law Commission and other groups put before us is that this particular approach is likely to cause more harm than good. We have committed to look at the other areas that it has highlighted, particularly the crimes that are motivated by misogyny, which I read out from its report. I reassure hon. Members that we are duty-bound to respond to the Law Commission’s report in six months, and we will do so.

[Stella Creasy]

I hope that the Minister will forgive me if I mention that there are, I think, more than 17 Law Commission reports that have been published since 2010 that the Government have not responded to and acted on—and that is just to look at the Law Commission. He also keeps saying that the Law Commission has looked at this proposal. No—the Law Commission looked at including sex or gender in all instances. It then looked at whether it was possible to have a carve-out, but we did not have the Bertin amendment, which specifically identified the offences in question and helped to shape this Lords amendment.

The Minister has said that he does not want to have a fight about this. Well, he is going to have one, because he is opposing the proposal and not coming up with any alternatives. He is not saying, for example, “We will introduce a proposal in the other place that addresses these issues” or that he will listen not just to all the chief constables across the country who have said that they want to see this happen, but to the organisations that have. Seeing as he is obsessed with major organisations, let us run through them: the Fawcett Society; Citizens UK; Refuge; Stonewall; HOPE not hate; Dimensions; Tell MAMA; the Jo Cox Foundation; and Safe & the City. Many of us have been talking to people who have expressed concerns to identify what those are and learn from them; that is where this amendment has come from.

The Minister will use the Government majority to vote this Lords amendment down, to say that violence against women is a complicated issue and that there are other approaches, and he will wait patiently and in fear that, yet again, there will be another moment as there was a year ago. The trouble is that, for us as women, waiting in fear is our daily experience, because we do not see things changing any time soon. We see the evidence base from Nottinghamshire and from the Met police. We want to know why there is a postcode lottery when it comes to the police taking violence against women seriously. We want to know why our courts want to exclude sex or gender from the protected characteristics that we rightly recognise when crimes are motivated by a hatred of somebody just for who they are, and we will tackle that.

People made many of these arguments 20 years ago on recognising racially and religiously motivated abuse. We now, rightly, all benefit from the protection and the freedom that has been given to people, so that they do not have to live in fear that they will be attacked just because of the colour of their skin or their religious identity. The Minister’s problem is that he says that he listens to and knows women and that he understands this area, but if he understands it at all, he should listen to the suffragettes, who told us that it was “deeds not words” that matter. All we have heard tonight is words.

This proposal is backed by the police. Opposition Members and many Government Members want to back the police and want to see the courts back up the police. If he does not accept this amendment, the Minister has the time and the opportunity in the Lords to come up with an alternative. He will have my support and that of the Cross Benchers to make that happen. However, if he continues to ignore women, to say that he understands the challenge and to blame them for not coming forward and reporting things—[Interruption.] He is right to shake his head, but he can probably go home without looking over his shoulder. Many of us cannot.

[Several hon. Members rose—]